Mitigating 'anticommons' harms to research in science and technology
Paul A. David
#2011-001
There are three analytically distinct layers of the phenomenon that has
been labeled 'the anticommons' and indicted as a potential impediment to
innovation resulting from patenting and enforcement of IPR obtained on
academic research results. This paper distinguishes among 'search
costs', 'transactions costs', and 'multiple marginalization' effects in
the pricing of licenses for commercial use of IP, and examines the
distinctive resource allocation problems arising from each when
exclusion rights over research inputs are distributed among independent
owners. Where information use-rights are gross complements (either in
production or consumption), multiple marginalization—seen here to be the
core of the 'anticommons' – is likely to result in extreme forms of
'royalty stacking' that can pose serious impediments to R&D projects.
The practical consequences, particularly for exploratory scientific
research (contrasted with commercially-oriented R&D) are seen from a
heuristic analysis of the effects of distributed ownership of scientific
and technical database rights. A case is presented for the contractual
construction of 'research resource commons' designed as efficient IPR
pools, as the preferable response to the anticommons.
Keywords: anticommons, R&D, multiple marginalization, IPR licensing,
patent hold-ups, royalty stacking, distributed scientific databases,
copyright collections societies, contractual commons
JEL Classification Codes: L24, O31, O34, O38