Full title : New Moves in 'Legal Jujitsu' to combat the Anticommons.
Mitigating IPR constraints on innovation thru a 'bottom-up' approach to systemic institutional reform.

Most of the discussion and debate among legal scholars and economists concerning the
so-called ‘anti-commons’ has been restricted to questions about the existence and seriousness of
the obstacles to discovery, invention and innovation that Heller and Eisenberg (1998) suggested
could result from “over-patenting” in the biomedical research area. But the anti-commons as a
conceptualization of the perverse resource allocation effects of the distribution of private
ownership rights has a considerably wider potential range of empirical relevance, and warrants
commensurately more careful study. This paper underscores that analytical point first by
considering a stylized model of the impediments imposed upon the conduct of research by the
burdensome licensing charges that arise from the dispersed distribution of ownership rights in a
multiplicity of research tools that are complementary. To make the structure of the generic
argument clear, this heuristic analysis focuses multiple database resources as the “research tools”
of interest, the individual access rights to each of which are in the hands of numerous intellectual
property owners. Adopting that approach both recognizes the emergence and growing role of
digital databases as critical facilities of the research infrastructure in many scientific and
technical domains, and serves to demonstrate the generality of the phenomenon of “multiple
marginalization” that emerges from the uncoordinated exercise of market power by individual
rent-seeking rights-holders in setting licensing charges on their IP. Having briefly examined the
relationship between that “core” phenomenon and other parts of the “anatomy of the anticommons,”
the paper turns to examine it may be possible for market processes to correct the
pathology. This portion of the paper briefly exposes a number of serious limitations of what
might be thought of as the “spontaneous,” profit-driven institutional responses that might arise to
mitigate the anti-commons – in imitation of the private copyright clearance agencies and music
performance rights collection societies. If it is unreasonable to expect that effective remedial
measures will not be forthcoming from that source, the case is strengthened for designing
policies that would promote the contractual construction of “scientific research commons” by
common-use licensing agreements among the owners of IP arising from publicly funded
scientific projects.