Collective Approaches To Solving The Anticommons

According to Robert Merges of the Boalt School of Law at U. C. Berkeley (Merges, 1996), theories on the economic nature of common-pool resources suggest that the roots of this problem cannot be effectively addressed through unilateral strategies; instead, some form of collective solution will be needed. Historically, public-policy collective measures taken to solve the problems of IP congestion include the following:

• Government exercise of intellectual "eminent domain," purchasing key enabling technology patents and placing them in the public domain.

• Government mandate of "compulsory licensing" of patents for a fixed fee.

• Government forced merger of firms holding mutually blocking IP.

Interestingly, however, private institutions or industry-led consortia have on occasion negotiated and organized effective actions themselves, without government mediation:

• Collective copyright enforcement of music compositions and recordings (e.g., ASCAP, BMI).

• Small contract-based patent pools.

• Industry-wide patent pools (e.g., Manufacturers Aircraft Association (MAA) formed in 1917, automobile industry patent pools in the 1920s and 1930s).

• Standard-setting patent pools (e.g., DVD technology).

Merges argues that such "collective rights organizations" are more economically efficient than the government-invoked solutions, especially compulsory licensing. Evidence shows that collective solutions have provided substantial savings for entire industries and for society at large. Despite the difficulties that must be surmounted in forming such a collective institution, time and again all players in an industry have seen it worthwhile to participate and conform to the rules and stipulations of the collective institution. However, horizontal collaboration through patent pools can provide a pretext for unhealthy degrees of collaboration and monopolization among the leaders in those industries and, given various abuses over the years, antitrust authorities view simple private patent pools with some suspicion (U. S. Department of Justice, 1995).

Despite these concerns, a strong case remains today for the formation of a multilateral collective rights organization to provide access to mutually complementary proprietary agricultural technologies and genetic resources. All currently unsatisfied parties—in both the public and private sectors as well as in both the biotechnologically advanced industrial economies and in the biodiversity rich developing countries—stand to benefit from some sort of "intellectual property clearinghouse." Furthermore, there are several new options to consider in terms of the potential arrangements for such an institution, particularly as major trends in IP information, management, and marketing are emerging with the advent of database and Internet technologies: tools such as IP informatics and online IP exchanges. These tools provide new options for collective IP rights organizations to work more like markets and less like cartels.

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