The law locks up the man or woman

Who steals the goose from off the common

But leaves the greater villain loose

Who steals the common from off the goose.

The anonymous poem above was written in protest at the enclosure of common land in England – the process of converting the commons to private property and handing it over to a single proprietor. In two rhyming couplets, the poet managed to sum up the massive resentment felt by the commoners, resentment that has found eloquent expression over the last 500 years at the hands of writers as diverse as St Thomas More and Karl Polanyi.

Economists have told a very different story, however. With a few significant recent exceptions, they portrayed the process of enclosure as benign. Private property avoided the “tragedies of the commons” such as underinvestment and overuse. Thus it allowed an expansion of productive capacity that produced more social wealth – even if unevenly distributed – and helped feed more people. Enclosure, in this story, was a triumph; getting unproductive common resources back into the engine of the market.

In the last 20 years, the enclosure wars have been fought all over again; this time over the human genome rather than the grassy meadows of Old England. The critics of enclosure have condemned a “genetic land grab” that promised to privatize the common heritage of mankind, even as the defenders argued that patents over genes were necessary to spur investment and jump start biotech innovation. One branch of the debate was frankly moral, protesting the hubris and in some eyes, heresy, of claiming to own the human genome.

But another branch of the debate concerned the economic effects of intellectual property rights over basic genetic sequences. Would they indeed spur innovation? Or was this the equivalent of privatizing the alphabet or algebra, introducing a tangle of property rights into the most fundamental building blocks of research science, and actually thus slowing down innovation. After all, unlike a goose or a field, a gene sequence can be used by many scientists at once.

But something has changed in the wars over the genome and over ownership of basic biological sequences and data. In fits and starts, in public and private initiatives, the beginnings of a new consensus is emerging – something on which both sides of the debate can agree.

A story in the New York Times last week provides a perfect example. Entitled “Rare Sharing of Data Led to Results on Alzheimers” it describes an ambitious ten year initiative, uniting academics and commercial researchers in an effort to unlock the secrets of that debilitating disease. The key to the initiative was not the money involved, or even the public-private partnership. It was that all the participants agreed to share the data they discovered “making every single finding public immediately, available to anyone with a computer anywhere in the world.”

No one would own the data. No one could submit patent applications, though private companies would ultimately profit from any drugs or imaging tests developed as a result of the effort.” Ten years on, the project is producing results, a cascade of articles and experiments that are unraveling the mysteries of disease biology. With the causes of the disease better understood, all the parties – including the private pharmaceutical companies looking for competing cures – are better off.

Companies who had watched their drug pipelines dry up began to wonder if the old model of in-house development and jealous guarding of data could work to unlock such complex biological mysteries. And they were so convinced of this fact, they actually agreed to fund a large part of the effort, extending the norms of basic research science deep into a public-private collaboration.

The idea here is not to give up property rights. They will be essential in the development of therapies down the line. It is the realization that science – and commerce – will benefit from the establishment of a pre-competitive commons, a pool of information from which all can draw. In this case, by enlisting the National Institutes of Health as “honest broker,” the participants were able to discover and share a wealth of information from which the science will now proceed.

Other initiatives – the Bermuda Accords that guided the public process of sequencing the human genome, the Sage Bionetworks project, or the non-profit organization Science Commons – reflect the same basic idea. (Full disclosure, I was one of the founders of Science Commons.)

Just as public roads enhance the value of private property, so judiciously designed sharing arrangements can help jump-start commercial innovation. The process is complex. How does one guarantee that all can benefit? At what point do we stop sharing and allow privatization and property rights?

But we now have economic and legal tools that help us better understand the complexities of commons’ construction. Indeed, Elinor Ostrom won the Nobel Prize for Economics in 2009 for her work in exactly that field. The enterprise is not an ideological war but a pragmatic process of design.

The poem with which I began concludes with these lines. “And geese will still a common lack, Til’ they go and steal it back.” Hundreds of years after the first enclosure movement, science and industry are “stealing back” a science commons from which we all can benefit.

James Boyle is the author of The Public Domain: Enclosing the Commons of the Mind which is freely available here. You can read more on the Second Enclosure Movement — including the rest of the poem — here.

The nice folk at the Financial Times, where I write a column, have an enlightened attitude towards copyright.  When they arranged for me to be a columnist, they agreed to let me keep the copyright and to make articles available  under a Creative Commons license.  This is one of my recent columns for the FT.  If you find it of interest, you might want to reward them by checking out http://www.ft.com/techforum There is lots more there.

Though many of the headlines talked of Venter being God and having created life in the lab, that is not an accurate way to describe it. Venter started with a particular naturally occurring cell and effectively, de-compiled, analysed and then painstaking edited and reassembled that cell’s genome to create a version of the cell never found in nature. Researchers had already synthesized the genome of the polio virus, creating a genome that would actually “produce” a live virus that infected mice in the lab, but the size of that initiative was several orders of magnitude smaller. The significance of what Venter’s team did lay in the scale of the enterprise and the mastery of the code that it demonstrated. It is as if I took your computer, copied the operating system, figured out what each part of that system did, pruned, cut and edited its functions, and then reloaded a substantially edited system back into the computer – a version which actually proved capable of running it.

Why do this in the first place? Why create a cell with a synthetic genome? Synthetic biology is a term with lots of meanings, but at its most imaginative and inventive, it is striving to move from genetic tinkering to genetic engineering. At the moment we have lots of examples of artisanal editing of genetic code, splicing a gene for luminosity taken from jellyfish into a tomato plant, say, or creating a transgenic goat which secretes spider silk, or insulin in its milk. To an outsider these examples seem impressive (and sometimes creepy) enough. But according to the synthetic biologists, we are still largely at the stage of medieval artisans hand crafting objects; the artisan’s workshop produced impressive creations, but there were no standard screws, valves, gauges, no “off-the-rack” components, no assembly line.

Synthetic biology seeks to remedy that deficiency, to provide the standard platforms for all genetic engineering, so that the next researcher who wishes, say, to create a biofuel with low carbon emissions will be able to use a standard synthetic cell line, the genome of which is completely known, edited so that no unwanted functions remain. When you turn on your computer to finish that essay, or complete that spreadsheet, you do not first have to write an operating system – it comes already loaded. The code writers of synthetic biology want to provide you with something very similar and, just as with computer operating systems, there are reasons to believe there will be strong network effects – markets will tip towards standardization and those who control these basic biological tools will thus gain considerable market power.

In an article written for the journal PloS Biology in 2007, my colleague Arti Rai and I explored the likely legal future of synthetic biology. We found reason to worry that precisely because synthetic biology looks both like software writing and genetic engineering, it might end up combining the expansive patent law aspects of both those technologies, with the troubling prospect of strong monopolies being created over the basic building blocks of science itself. Some of the patents being filed are astoundingly basic, the equivalent of patenting Boolean algebra right at the birth of computer science. With courts now reconsidering both business method and perhaps software patents, and patents over human genes, the future is an uncertain one.

In the world of software, the proprietary model faces competition from open source alternatives, free both in price and in that their code is openly available and can be scrutinized and rewritten. Internet Explorer competes with the open source browser, Firefox. Microsoft dominates the desktop operating system market but there is a Linux alternative. Microsoft web server software competes with (and trails) the open source offerings from Apache and others. The same is true in the world of synthetic biology. The Biobricks Foundation is a nonprofit founded by scientists who are keenly aware of the parallels to the software world. They want to create an open source collection of standard biological parts, to make sure in other words, that the basic building blocks, the standard tools of this new world of biological science, remain “open” in a scientific commons. But their efforts, too, are rendered uncertain by the threat of overbroad patents on foundational technologies.

Innovation in synthetic biology has the potential to produce extraordinary scientific advances, helping to cure diseases, to engage in benign environmental engineering and biofuel development and much, much more. Patents will have an important role to play in that process – they will encourage investment and commercialization in ways that are socially beneficial. But patents that are handed out at too fundamental a layer could actually hurt science, limit research and slow down technological innovation. This is where the sloppiness of the reporting about the creation of artificial life has hurt public debate. The danger isn’t that Craig Venter has become God, it is that he might become Bill Gates. We do not want a monopolist over the code of life.

(Published in the Financial Times: May 27 2010 22:32 | Last updated: May 27 2010 22:32  The FT is enlightened enough to let me keep copyright in the articles I write.  Please consider rewarding them by looking at the other articles in the New Economy Policy Forum.)

James Boyle is William Neal Reynolds Professor of Law at Duke Law School and the author of The Public Domain: Enclosing the Commons of the Mind.