Who Steals the Gene from Off the Common

My new Financial Times column on the creation of a science commons is now up.  For the ungated version, read on…

Who steals the gene from off the common

By James Boyle

Published: August 30 2010 23:31 | Last updated: August 30 2010 23:31

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 https://www.ft.com/techforum There is lots more there.

Tuesday, August 31st, 2010 patents, science, Science Commons, Uncategorized

1 Comment to Who Steals the Gene from Off the Common

  1. […] because I missed it five months ago. But recent weeks have brought some renewed analysis, including this essay on sharing scientific data and this discussion of what exactly is under scrutiny in a (different) gene patent case. […]

  2. Beth Skwarecki » More on gene patents on September 2nd, 2010

From the Blog

  • The Line: AI & The Future Of Personhood

    James Boyle

    My new book, The Line: AI and the Future of Personhood, will be published by MIT Press in 2024 under a Creative Commons License and MIT is allowing me to post preprint excerpts. The book is a labor of (mainly) love — together with the familiar accompanying authorial side-dishes: excited discovery, frustration, writing block, self-loathing, epiphany, and massive societal change that means you have to rewrite everything. So just the usual stuff. It is not a run-of-the-mill academic discussion, though. For one thing, I hope it is readable. It might even occasionally make you laugh. For another, I will spend as much time on art and constitutional law as I do on ethics, treat movies and books and the heated debates about corporate personality as seriously as I do the abstract philosophy of personhood. These are the cultural materials with which we will build our new conceptions of personhood, elaborate our fears and our empathy, stress our commonalities and our differences. To download the first two chapters, click here. For a sample, read on…..


    read more
  • Everything You Know About §230 Is Wrong (But Why?)

    James Boyle, Oct 25th, 2021

    There are a few useful phrases that allow one instantly to classify a statement.  For example, if any piece of popular health advice contains the word “toxins,” you can probably disregard it.  Other than, “avoid ingesting them.” Another such heuristic is that if someone tells you “I just read something about §230..” the smart bet is to respond, “you were probably misinformed.” 

    read more

  • Free, Open, Intellectual Property Textbook

    Jennifer Jenkins and I have just published the 2021 edition of our free, Creative Commons licensed, Intellectual Property textbook.

    read more

  • ‘Dumping: On Law Reviews’. The Green Bag

    I will probably never be published in a law review ever again after writing this.  I find myself curiously untroubled by the thought.  

    read more

  • Mark of the Devil: The University as Brand Bully

    I teach at Duke University, an institution I love.  The reverse may not be true however, at least after my most recent paper (with Jennifer Jenkins) — Mark of the Devil:  The University as Brand Bully.  (forthcoming in the Fordham Intellectual Property and Entertainment Law Journal).  The paper is about the university most frequently accused of being a “trademark bully” — an entity that makes assertions and threats far beyond what trademark law actually allows, something that is all too common, with costs to both competition and free speech.   Unfortunately, that university is our own — Duke. 

    read more

  • Tragedy/Comedy of the Commons @ 50

    The Economist was kind enough to ask me to write an article commemorating the 50th anniversary of Garrett Hardin’s Tragedy of the Commons.  ““THE ONLY way we can preserve and nurture other and more precious freedoms is by relinquishing the freedom to breed.” This ominous sentence comes not from China’s one-child policy but from one of the 20th century’s most influential—and misunderstood—essays in economics. “The tragedy of the commons”, by Garrett Hardin, marks its 50th anniversary on December 13th.”  Read the rest here.

  • Theft: A History of Music — Free Comic

    title

    read more

  • (When) Is Copyright Reform Possible?

    I am posting here a draft of a chapter for Ruth Okediji’s forthcoming book on the possibilities of international intellectual property reform.  In my case, the article recounts the lessons I learned from being part of the Hargreaves Review of Intellectual Property in the UK.

    “In the five months we have had to compile the Review, we have sought never to lose sight of David Cameron’s “exam question”. Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed. Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments. Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.” Ian Hargreaves, Foreword: Hargreaves Review (2011)

    Read the chapter.

  • Apple Updates — A Comic

    sampleEver been utterly frustrated, made furious, by an Apple upgrade that made things worse?  This post is for you.  (With apologies to Randall Munroe.)

    read more

  • Open Coursebook in Intellectual Property

    Cover of Intellectual Property: Law & the Information Society and link to purchase at Amazon.comDuke’s Center for the Study of the Public Domain is announcing the publication of Intellectual Property: Law & the Information Society—Cases and Materials by James Boyle and Jennifer Jenkins. This book, the first in a series of Duke Open Coursebooks, is available for free download under a Creative Commons license. If you do not want to use the entire casebook you can view and download the individual chapters (in a variety of formats) here. It can also be purchased in a glossy paperback print edition for $29.99, $130 cheaper than other intellectual property casebooks.

    read more

  • So you’ve invented fantasy football, now what?

    We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Society which will be published in two weeks is out now! It will be is of course  freely downloadable, and sold in paper for about $135 less than other casebooks.  (And yes, it will include  discussions  of whether one should ever use the term “intellectual property.” )  The book is full of practice examples..  This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?”  No legal knowledge necessary.  Why don’t you test your argumentative abilities…?

    read more

  • Free/Low Cost Intellectual Property Statutory Supplement

    Today, we are proud to announce the publication of our 2014 Intellectual Property  Statutory Supplement as a freely downloadable Open Course Book. Statutes Cover  It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.)  It also has a number of important international treaties and a  chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here

    read more

  • Persnickety Snit

    This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  It is about lawyers and language. 

    read more

  • Macaulay on Copyright

    Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

    At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

    The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

    read more

  • Mark Twain on the Need for Perpetual Copyright

    This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

    In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

    read more

  • Victor Hugo: Guardian of the Public Domain

    Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

    read more

  • “We Need To Start Seeing Other Futures..”

    Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

    read more

  • Discussion: “The Foolish War Against Song-Lyric Websites”

    Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a  thought-provoking read)  has an interesting  post up about attempts to shut down music lyric sites such as Rapgenius.com.

    read more

  • The Top Ten List of a Conference Planner

    Academics (and others) arrange conferences.  Perfectly normal people are invited to those conferences to speak.  Most of them are just as charming as can be… but then there are the special ones.  This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere.  Hold your heads up high.  After this, purgatory should be a snap.

    read more

  • (EM)I Has A Dream

    EM(I) Has A DreamAugust 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

    read more

  • The Prosecution of Aaron: A Response to Orin Kerr

    Aaron Swartz committed suicide last week.  He was 26, a genius and my friend.  Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

    read more

  • The Hargreaves Review

    An Intellectual Property System for the Internet Age

    James Boyle

    In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright..  Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.”   Today the Review will be published. Its conclusion?  “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth?  The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review.   (Full disclosure: I was on the Review’s panel of expert advisors.)

    read more

  • Keith Aoki — A Remembrance Book

    A slideshow and downloadable book remembering Keith in words and pictures.  You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon.  We tried to make it as beautiful as something Keith would create.  We failed. But we came close; have a look at how striking it is… all because of Keith’s art.

    read more

  • Now THAT is how you teach a class

    read more

  • RIP, Keith Aoki

    Our friend, colleague, co-author and brilliant artist and scholar Keith Aoki died yesterday in his house in Sacramento.  He was 55 years old.

    read more

  • Follow thepublicdomain on Twitter.