Nies Lecture in Intellectual Property: Henry E. Smith

Description

Presented by Henry E. Smith, Fessenden Professor of Law at Harvard Law School

Semicommons in Fluid Resources

In order to capture the benefits of property, resources must be individuated into legal "things" to some extent. The degree of separation into things can be analyzed in terms of both benefits and costs. On the benefit side, non-rigid separation allows for multiple use, and it saves on delineation costs. On the cost side, incomplete separation leads to the possibility of externalities and strategic behavior. Certain resources, which can be termed "fluid," show high benefits of multiple use and high delineation cost. Fluid resources include water and intellectual property. As a result, complex institutions mixing exclusion and governance, including structures of semicommon rights, often grow up around fluid resources. This lecture will address how, in such a semicommons, the indirectness of exclusion rights, extensive governance regimes, and group institutions all help overcome the tradeoff between partial separation and strategic behavior.