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Inclusive rights: A new model to organise legal relations to shared resources in tangible property and intellectual property

Final Report Summary - INCLUSIVE (Inclusive rights: A new model to organise legal relations to shared resources in tangible property and intellectual property)

In most legal regimes, exclusivity, comprising the right to exclude and the individuality of the possession, is presented as one core element of property, even if it is mitigated by many exceptions. The owner is the only one entitled and in capacity to decide over the use of the owned thing and can exclude anyone else.
The INCLUSIVE ERC project has challenged the exclusivity in property and intellectual property and developed a new legal concept of “inclusivity”. An increasing number of situations where many people share the benefit of a resource, are only imperfectly conveyed by the regime of property law and its ‘exclusion’ vocabulary. This project has explored cases where a number of legal subjects, sometimes constituted in communities, share entitlements to use a resource without any power to exclude each other, such as situations where no exclusive rights exist in a resource, but a privilege to use is enjoyed by all (public domain in copyright, res communes in some civil law regimes); situations where the owner employs her exclusivity to grant a right to use to everyone (copyleft licensing); situations where property rights are held in common in a resource whose creation and enjoyment is central to the community (participatory housing, open collaborative creation, collective gardens); situations where collective entitlements do not fit in figures of exclusive property right (traditional cultural expressions, indigenous rights to land).
Those cases share a common feature of inclusivity, meaning: (1) the absence of power to exclude others leads to inclusion of others who benefit from symmetric entitlements to use the resource, and (2) the impossibility of an individual exercise of one’s right implies a collectiveness of uses as one’s entitlements to use are interlaced with that of others.
INCLUSIVE offers an in-depth analysis of the meaning and role of the right to exclude in property law, in common law and civil law regimes, including in intellectual property. Second it seeks to diversify the model figures of property by looking at the multiple ways legal subjects collectively enjoy and use the objects they own, alone or with others, as well as the objects owned by others. Third, it develops a new legal notion of inclusivity and an original theory of property, which proposes to replace our current paradigm of exclusive and individual property by continuums from exclusion/inclusion, individual/collective, and ownership/non-ownership. Property situations could then be situated along those continuums so as to contribute to an enriched and more relevant theory of property, where right to exclude could transform into inclusion of others.
Finally, it pleads for this new model of property to receive some normative recognition. Using a few examples taken from case studies, INCLUSIVE demonstrates how the current legal rules are sometimes inapt to acknowledge and sustain collective organisation of resources. Collective and sustainable uses that are so essential in our contemporary world might hence be impaired.
Instead, the notion of inclusivity and the legal recognition of its normative dimension could capture the increasingly inclusive dimension of our relationships to resources, whether natural, tangible, environmental, cultural or informational and better address emerging vexing questions (e.g. public domain in IP, new forms of ownership and authorship, sustainability of natural resources, legal recognition of rights of communities). INCLUSIVITY also provides a missing unified theory of commons and a new legal tool capable of capturing contemporary practices in property, cultural creativity, innovation and environment preservation. The figure of inclusive property additionally supports a vision of generative property, whose objective is to preserve and regenerate resources, instead of a merely extractive property, and gives some place to collective rights, actions and communities.