The specific carve out of banning the aff is necessary to create a negative space within The Commons that resolves the advantages and net benefit

6. The commons in the IP field The Commons Theory has gained noticeable interest in all types of property, among which IP is a peculiar and interesting one to debate on. In particular, the question that the legal literature has been asking right now is whether, in the light of the Commons, the idea of property is still needed to increase creation and innovation, the two most important aspects that jusitifed IP in the frst place.110 The utilitarian argument, by emphasizing the utility of intellectual products for the society as a whole,111 is the one according to which, without IP, the creation would result in intellectual products that are non-exclusive and non-rival.112 Users would access the product without paying its price, ie free-riding on it (non-exclusivity), and the resource would be used without depriving anyone else of such a use (non-rivalry).113 In this way the creator is contributing to the welfare of the entire society, but if she cannot recoup her investment, there would be a lack of incentive that ultimately results in a block of innovation and creation.114 To avoid this situation, IP, as private property in general, is introduced to correct the market failure that would derive from the use of only public goods. It is true that in case of intellectual products there would not be that depletion of physical resources that Garrett refers to in his ‘The Tragedy of the Commons’.115 However, according to this line of thought, without incentives given by IP, there would be an underproduction of works and inventions,which is always an ineffciency of the market.116

This type of conventional argument cannot be entirely accepted anymore: it is clear that in some communities, from painters to open-source developers, creativity is widespread without the implementation of IP, in the so-called ‘negative spaces’, due to non-economic factors in place that incentivize creative efforts.117 In fact, in creative industries—where usually IP would dominate—Commons, that are intended as resources that lack exclusivity, are consistently present, as evidenced, among others, by the author Dusollier.118 The author states that Commons in the IP field can derive from the delineation of the exclusivity granted by copyright and patent, which is mostly public domain and exceptions/limitations.119 Moreover, considering that sometimes authors and inventors decide to opt-out entirely from exclusivity to encourage the sharing and dissemination (as non-economic motivators) of their intellectual products,120 Commons can be the result of private ordering initiatives, such as open-source software, Creative Commons or open-source patenting.121 The issue is that, since all these instruments that represent Commons, are completely different from each other, if the same defnition is used for all of them, confusion might rise in relation to what a proper Commons in the IP context is.122 Therefore, it would be preferable to clarify these different categories of Commons before moving forward.

The first Commons is the public domain, that covers those intellectual resources that are not protected, or no longer protected by IP, and in this way, they lack any exclusivity,123 resulting in Commons at the highest grade. In particular, in patents— IP of interest for this paper—public domain results in abstract ideas, discoveries and other excluded subject matter,124 inventions that do not satisfy the patentability requirements and inventions that are no longer under patent protection and unregistered inventions. Another way to conceive Commons in the IP context is when there is not a total non-property, as in the case of public domain, but when non-property—whose main aspect is inclusivity—coexists with spaces of property—characterized by exclusivity.125 This relates to exceptions and limitations in patents, where, for instance, in the case of private use of the invention there is a general entitlement of inclusivity (as long as the invention is implemented in private), or based on the research exception, there is a Commons reserved to some specifc categories of people (researchers). The last form of inclusivity in the IP context is the most recent one and defned as the open innovation movement.126 The frst type of open innovation was the open software, which is based on ‘the freedom to run and use a program and to copy, modify, improve and redistribute it’.127 Open software adopts, as one of its main ‘commandments’, the free redistribution of the source code to everyone.128 This open-source concept found acknowledgement not only in the copyright feld with, among others, the notorious Creative Commons129 but also in the patent context. For instance, the Biological Open Source (BiOS) Licence, developed by the Centre for Applications of Molecular Biology in International Agriculture (CAMBIA), establishes a worldwide, non-exclusive and royalty free right to develop and apply the technology of two patents owned by the centre.130 Another example of open innovation in the patent feld, that proved to be useful during the Covid19 pandemic, relates to IP pledges that, although they assume various forms and labels, have as their main goal to make IP (and the knowledge within it) freely available to the public in the form of technological transfer.131 In particular, IP owners started to gather in organizations and make available their IP rights to users all around the world, without the latter being at risk of committing a patent infringement. These pledges are usually royalty-free, and in some cases—such as the Open Covid Pledge—self-executing, meaning that anyone who is interested can immediately use the IP without additional negotiation or formalities.132 Moreover, when there is the risk that the users may charge excessive price for the products that result from the IP freely available to anyone, some pledges—such as the Harvard– Mit–Stanford Pledge—require users to demand ‘fair’ or no more than ‘cost-plus’ prices.13

All these open innovation instruments, from open software to patent pledges, can be considered Commons, in the sense that they are inclusive in sharing and using a specifc resource.134 However, this category of Commons is different than the ones of public domain and exceptions/limitations. Within the open innovation instruments there can still be some exclusive rights that are, instead, completely absent in the public domain. Taking the IP pledges as the most prominent example, their main subject— knowledge—has been often covered by patents at the outset. Therefore, the inclusivity generated by this particular Commons derives from the exclusivity that the patent owner obtained through patentability. This is not a contradiction, since exclusivity, on which IP is based, is something different than exclusion.135 Exclusivity in a certain invention does not entail exclusion of others from using that invention. As a consequence, open innovation instruments are ultimately contracts where the patent owner decides willingly to create inclusive entitlements that are benefcial to the users of that invention.136 Some authors, such as Elkin-Koren, are quite critical of the recourse to such instruments, since this would entail to make IP reliable on private-ordering norms—contracts—potentially resulting in the impairment of the balance of different IP regimes.137 The specifc concern is that market players that own substantial IP would make their assets available to the users under very restrictive terms, probably more restrictive than normal licences, under the false assumption of open innovation.138 Although this risk is defnitely tangible, it can be argued that most open innovation instruments aim to make any margin of exclusivity impossible, by having a proper ‘selfbinding Commons’139 that would not allow IP owners to change terms of the contracts in a more restrictive way whenever they wish to. The legal mechanism that would apply in this context is the so-called ‘copyleft’, also defned in the patent context as grant-back, through which if someone wants to improve or modify a specifc work or invention, she is required to distribute such modifed work or invention under conditions of inclusivity. Hence, any modifed work or invention would be included under an open innovation scheme, resulting in a total correspondence between the contract and the IP resource.140

After assessing each Commons, it is important to highlight their specific advantages and disadvantages. The Commons which is the furthest away from exclusivity would be the public domain, that, on the one hand, allows anyone to use a specific creation unconditionally, but on the other hand, this unlimited use is almost impossible to enforce, since no one that is part of the public could claim and protect her privilege through a legal remedy.141 This lack of enforceability is one of the main reasons why Hardin argues for a ‘Tragedy of the Commons’, according to whom when things are left to the use of the public, they are destined to be overused or underused.142 A similar issue of enforceability can be found in the context of copyright and patent exceptions. Although in this case the inclusive privilege enjoyed by users for the exception is enforceable, this is possible only as a form of defence when a copyright or patent infringement case occur.143 Lastly, open innovation instruments, which originate from exclusive rights, create enforceable contractual rights against the licensor or the IP owner, but only on the condition that the freedoms granted by these Commons are perpetuated through the copyleft or grantback mechanism.144 Therefore, the will of the IP owner is still one of the main factors that influence the impact and importance of an open innovation instrument.

The concept of ‘negative spaces’ can be forwarded into the realm of patentability, considering that one of the most active open communities is precisely the one of software developers, whose technology could also in theory be protected through patents in case of computer programs inventions.145 However, these ‘negative’ spaces, in which Commons ‘reside’ as the only available goods, require a ‘positive’ feature, in the sense that they do not only have to claim unenforceable IP (‘negative’), but they have to fnd an alternative in order for this inclusiveness to be enforced in some other ways (‘positive’). Therefore, it is time to address the theoretical possibility to include the Covid-19 vaccine and other life-saving treatments within these ‘negative spaces’, on the condition that this Commons could be enforceable through a sui generis inclusive right.