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

Periodic Report Summary 2 - INCLUSIVE (Inclusive rights: A new model to organise legal relations to shared resources in tangible property and intellectual property)

The INCLUSIVE project studies and elaborates a legal concept of inclusivity as a mirror notion to exclusivity. Our research defines inclusivity by reference to situations in which the benefit of a resource, whether tangible or intangible, is (1) dedicated to (2) being shared (3) by a number of legal subjects, (4) in a symmetrical and collective way, (5) without any person having the power to exclude the others from such benefit.
This concept is the reverse of the exclusivity that is prevalent in our legal culture and in our legal notions of property and intellectual property. This project has analysed four situations where exclusivity does not define the enjoyment of a resource that is rather shared and not subject to exclusion of others, i.e. the public domain in copyright, collaborative and open creation leading to co-authorship, copyleft licensing in software, and new forms of co-housing based on participation. Despite some divergences (eg existence of a property right or not, organisation by contract, co-ownership opposed to one owner granting rights to users), those situations reveal the incapacity or difficulty of legal regimes to adequately address the dedication of a resource to a non-exclusive and shared benefit. Due to this inadequate legal regimes, inclusive entitlements that legal subjects enjoy in the resource are precarious: they lack the benefit of legal affirmative actions and remedies, enforceability against any person impeding the inclusive use in the absence of a duty to comply with inclusive entitlements, resilience to exclusive claims. Inclusive situations might not perpetuate over time, as they run the risk to being eroded by the operation of legal rules giving preference to exclusivity. To give some concrete examples, the user has no right to oppose to someone claiming an exclusive right in a public domain work; through successive sales of private units in a co-housing project to new owners who do not abide by the sharing objective, an inclusive co-housing might gradually be transformed into a traditional exclusive condominium.
This project studies a model of inclusivity that could give a legal form and some normativity to entitlements enjoyed by legal subjects and characterised by sharing and non-exclusion. Discrete legal concepts such as ownership, community, entitlement, agency, will be mobilised to design a new model of legal relationships to resources and to others. Key features of enforceability and sustainability will be attached to the model to be devised.