Many legal scholars, philosophers, and journalists now call into question the suitability of exclusive intellectual property rights embodied in a legal regime such as TRIPs. They regard the traditional conception of intellectual property as stifling and antiquated. They are unconvinced about the validity of some sort of ‘natural’ ownership right to the intellectual products of the mind. How can ideas and immaterial, abstract objects be ‘owned’ by someone? Why should the government restrict access to intangible goods which are meant to be shared? Why should we regard the source of these intellectual objects as creators and authors of their ideas, rather than as ‘mere transmitters’ of eternal verities (Hesse 2002, p. 32)? The effort to extend property rights has often been referred to as the second ‘enclosure’ movement.1 Enclosure occurs when a durable, proprietary right is assigned to an intellectual work or some other form of ‘common’ property so that it becomes unavailable to the public unless they are willing to pay something like a licensing fee. Thus, these expansive property rights encroach with impunity upon the public domain. Knowledge appropriated from the public domain is privatized and made virtually inaccessible for long periods of time. The extension of property rights to the human genome is often cited as an illustration of how common property, belonging to everyone, can become subject to ‘enclosure’.2 But what are the costs of gene patents or an ownership stake in one’s genetic information? Normative analysis is rightly skeptical of these property claims. The antidote...
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