Tragedy of the anticommons

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Scientists are often reluctant to share their data. To deposit or not to deposit, that is the question - journal.pbio.1001779.g001.png
Scientists are often reluctant to share their data.

The tragedy of the anticommons is a type of coordination breakdown, in which a single resource has numerous rightsholders who prevent others from using it, frustrating what would be a socially desirable outcome. It is a mirror-image of the older concept of tragedy of the commons, in which numerous rights holders' combined use exceeds the capacity of a resource and depletes or destroys it. [2] The "tragedy of the anticommons" covers a range of coordination failures including patent thickets, and submarine patents. Overcoming these breakdowns can be difficult, but there are assorted means, including eminent domain, laches, patent pools, or other licensing organizations.[ citation needed ]


The term originally appeared in Michael Heller's 1998 article of the same name [2] and is the thesis of his 2008 book. [3] The model was formalized by James M. Buchanan and Yong Yoon. [4] In a 1998 Science article, Heller and Rebecca S. Eisenberg, while not disputing the role of patents in general in motivating invention and disclosure, argue that biomedical research was one of several key areas where competing patent rights could actually prevent useful and affordable products from reaching the marketplace. [5]


Early aviation

In early aviation, the Wright brothers held patents on certain aspects of aircraft, while Glenn Curtiss held patents on ailerons which was an advance on the Wrights' system, but antipathy between the patent holders prevented their use. The government was forced to step in and enforce the existence of a patent pool during World War One. [6]


In his 1998 Harvard Law Review article, [2] Michael Heller noted that there were a lot of open air kiosks but also a lot of empty stores in many Eastern European cities after the fall of Communism. Upon investigation, he concluded that it was difficult or even impossible for a startup retailer to negotiate successfully for the use of that space because many different agencies and private parties had rights over the use of store space. Even though all the persons with ownership rights were losing money with the empty stores, and stores were in great demand, competing interests got in the way of the effective use of that space.

Robber barons

Michael Heller says that the rise of the "robber barons" in medieval Germany was the result of the tragedy of the anticommons. [3] Nobles commonly attempted to collect tolls on stretches of the Rhine passing by or through their fiefs, building towers alongside the river and stretching iron chains to prevent boats from carrying cargo up and down the river without paying a fee. [3] Repeated attempts were made by the Holy Roman Empire, including several efforts over the centuries led by the Emperor himself, to regulate toll collection on the Rhine, but it was not until the establishment of the "Rhine League" of the Emperor, certain nobles, and certain clergy that the control of the "robber barons" over the Rhine was crushed by military force. River tolls on the Rhine, increasingly imposed by states rather than individual lords, remained a sticking point in relations and commerce in the Rhine basin until the establishment of the Central Commission for Navigation on the Rhine in 1815.


Michael Heller and Rebecca Eisenberg are academic law professors who believe that biological patents create a "tragedy of the anticommons", "in which people underuse scarce resources because too many owners can block each other." [5] Others claim that patents have not created this "anticommons" effect on research, based on surveys of scientists. [7] [8]

See also

Related Research Articles

Patent Intellectual property conferring a monopoly on a new invention

A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of years in exchange for publishing an enabling public disclosure of the invention. In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce his or her rights. In some industries patents are an essential form of competitive advantage; in others they are irrelevant.

Tragedy of the commons Depletion of a shared resource according to ones self-interests

The tragedy of the commons is a situation in a shared-resource system where individual users, acting independently according to their own self-interest, behave contrary to the common good of all users by depleting or spoiling the shared resource through their collective action. The theory originated in an essay written in 1833 by the British economist William Forster Lloyd, who used a hypothetical example of the effects of unregulated grazing on common land in Great Britain and Ireland. The concept became widely known as the "tragedy of the commons" over a century later due to an article written by American biologist and philosopher Garrett Hardin in 1968. In this modern economic context, "commons" is taken to mean any shared and unregulated resource such as atmosphere, oceans, rivers, fish stocks, roads and highways, or even an office refrigerator.

Environmental economics is a sub-field of economics concerned with environmental issues. It has become a widely studied subject due to growing environmental concerns in the twenty-first century. Environmental Economics "...undertakes theoretical or empirical studies of the economic effects of national or local environmental policies around the world .... Particular issues include the costs and benefits of alternative environmental policies to deal with air pollution, water quality, toxic substances, solid waste, and global warming."

Robber baron (feudalism) unscrupulous feudal landowner who resorted to banditry while protected by his fiefs legal status

A robber baron or robber knight was an unscrupulous feudal landowner who, protected by his fief's legal status, imposed high taxes and tolls out of keeping with the norm without authorization by some higher authority. Some resorted to actual banditry. The German term for robber barons, Raubritter was coined by Friedrich Bottschalk in 1810.

Market failure in economics, inefficient resource allocation resulting in a net loss of value

In neoclassical economics, market failure is a situation in which the allocation of goods and services by a free market is not Pareto efficient, often leading to a net loss of economic value. Market failures can be viewed as scenarios where individuals' pursuit of pure self-interest leads to results that are not efficient– that can be improved upon from the societal point of view. The first known use of the term by economists was in 1958, but the concept has been traced back to the Victorian philosopher Henry Sidgwick. Market failures are often associated with public goods, time-inconsistent preferences, information asymmetries, non-competitive markets, principal–agent problems, or externalities.

Public good (economics) Good that is non-excludable and non-rival

In economics, a public good is a good that is both non-excludable and non-rivalrous, in that individuals cannot be excluded from use or could benefit from without paying for it, and where use by one individual does not reduce availability to others or the good can be used simultaneously by more than one person. This is in contrast to a common good such as wild fish stocks in the ocean, which is non-excludable but is rivalrous to a certain degree, as if too many fish are harvested, the stocks will be depleted.

Ownership is the state or fact of exclusive rights and control over property, which may be any asset, including an object, land or real estate, or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties.

Geolibertarianism is a political and economic ideology which integrates libertarianism with Georgism.

As with all utility patents in the United States, a biological patent provides the patent holder with the right to exclude others from making, using, selling, or importing the claimed invention or discovery in biology for a limited period of time - for patents filed after 1998, 20 years from the filing date.

Garrett Hardin American ecologist

Garrett James Hardin was an American ecologist and proponent of eugenics who warned of the dangers of human overpopulation. He is most famous for his exposition of the tragedy of the commons, in a 1968 paper of the same title in Science, which called attention to "the damage that innocent actions by individuals can inflict on the environment". He is also known for Hardin's First Law of Human Ecology: "We can never do merely one thing. Any intrusion into nature has numerous effects, many of which are unpredictable." He is listed by the Southern Poverty Law Center as a white nationalist, whose publications were "frank in their racism and quasi-fascist ethnonationalism".

The commons is the cultural and natural resources accessible to all members of a society, including natural materials such as air, water, and a habitable earth. These resources are held in common, not owned privately. Commons can also be understood as natural resources that groups of people manage for individual and collective benefit. Characteristically, this involves a variety of informal norms and values employed for a governance mechanism. Commons can be also defined as a social practice of governing a resource not by state or market but by a community of users that self-governs the resource through institutions that it creates.

Common ownership refers to holding the assets of an organization, enterprise or community indivisibly rather than in the names of the individual members or groups of members as common property.

In economics, a common-pool resource (CPR) is a type of good consisting of a natural or human-made resource system, whose size or characteristics makes it costly, but not impossible, to exclude potential beneficiaries from obtaining benefits from its use. Unlike pure public goods, common pool resources face problems of congestion or overuse, because they are subtractable. A common-pool resource typically consists of a core resource, which defines the stock variable, while providing a limited quantity of extractable fringe units, which defines the flow variable. While the core resource is to be protected or nurtured in order to allow for its continuous exploitation, the fringe units can be harvested or consumed.

In economics, a good or service is called excludable if it is possible to prevent people (consumers) who have not paid for it from having access to it. By comparison, a good or service is non-excludable if non-paying consumers cannot be prevented from accessing it.

Traditional knowledge, indigenous knowledge and local knowledge generally refer to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities. Traditional knowledge includes types of knowledge about traditional technologies of subsistence, midwifery, ethnobotany and ecological knowledge, traditional medicine, celestial navigation, craft skills, ethnoastronomy, climate, and others. These kinds of knowledge, crucial for subsistence and survival, are generally based on accumulations of empirical observation and on interaction with the environment.

William Forster Lloyd FRS was a British writer on economics. He is best known today for one of his 1833 lectures on population control which have influenced writers in modern economic theory.

Michael Heller (law professor) economist

Michael A. Heller is a Professor of Real Estate Law at Columbia Law School. He concentrates on property law. Heller coined the term "tragedy of the anticommons" while working as a law professor at University of Michigan Law School in a 1998 Harvard Law Review article entitled "The Tragedy of the Anticommons: Property in the Transition from Marx to Markets".

A patent thicket is a concept with negative connotations that has been described as "a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology", or, in other words, "an overlapping set of patent rights" which requires innovators to reach licensing deals for multiple patents from multiple sources.

Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century that were especially based on the principles of free trade. Contemporary criticisms have echoed those arguments, claiming that patents block innovation and waste resources that could otherwise be used productively, and also block access to an increasingly important "commons" of enabling technologies, apply a "one size fits all" model to industries with differing needs, that is especially unproductive for industries other than chemicals and pharmaceuticals and especially unproductive for the software industry. Enforcement by patent trolls of poor quality patents has led to criticism of the patent office as well as the system itself. Patents on pharmaceuticals have also been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people. Alternatives to patents have been proposed, such Joseph Stiglitz's suggestion of providing "prize money" as a substitute for the lost profits associated with abstaining from the monopoly given by a patent.

University technology transfer offices (TTOs), or technology licensing offices (TLOs), are responsible for technology transfer and other aspects of the commercialization of research that takes place in a university. TTOs engage in a variety of commercial activities that are meant to facilitate the process of bringing research developments to market, often acting as a channel between academia and industry. Most major research universities have established TTOs in the past decades in an effort to increase the impact of university research and provide opportunities for financial gain. While TTOs are commonplace, many studies have questioned their financial benefit to the university.


  1. Roche, Dominique G.; Lanfear, Robert; Binning, Sandra A.; Haff, Tonya M.; Schwanz, Lisa E.; Cain, Kristal E.; Kokko, Hanna; Jennions, Michael D.; Kruuk, Loeske E. B. (2014). "Troubleshooting public data archiving: suggestions to increase participation". PLOS Biology . 12 (1): e1001779. doi:10.1371/journal.pbio.1001779. PMC   3904821 . PMID   24492920.
  2. 1 2 3 Heller, Michael A (January 1998). "The tragedy of the anticommons: property in the transition from Marx to markets" (PDF). Harvard Law Review. 111 (3): 621–688. doi:10.2307/1342203. ISSN   0017-811X. JSTOR   1342203 . Retrieved 2018-03-16.
  3. 1 2 3 Heller, Michael (2008). The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. Basic Books. ISBN   978-0-465-02916-7.
  4. Buchanan, James; Yoon, Yong (April 2000). "Symmetric Tragedies: Commons and Anticommons". Journal of Law and Economics. 43 (1): 1–13. CiteSeerX . doi:10.1086/467445.
  5. 1 2 Heller, M. A.; Eisenberg, R. (May 1998). "Can Patents Deter Innovation? The Anticommons in Biomedical Research". Science . 280 (5364): 698–701. doi: 10.1126/science.280.5364.698 . PMID   9563938.
  6. "The Permission Problem".
  7. Cook, Robert. "Gene Patents". The Hastings Center. Retrieved 2018-06-24.
  8. "Do Gene Patents Hurt Research?".

Further reading