Symposium

Property Rights in Environmental Assets

 Property Rights and the Environment
Kirsten Engel & Dean Lueck    

 Open-Access Losses and Delay in the Assignment of Property Rights              
Gary D. Libecap                                                                     

Even though formal property rights are the theoretically optimal response to open access problems involving natural and environmental resources, they typically are adopted only after considerable waste has taken place. Instead, the usual response in local, national, and international settings is first to rely on uniform rules and standards as a means of constraining behavior. While providing some relief, uniform rules do not close the externality, and excessive exploitation along unregulated margins continues. As external costs and resource values rise, there finally is a resort to property rights of some type. However, the need for transfers and other concessions addressing distributional concerns affects the ability of rights arrangements to mitigate open-access losses. This Article outlines the reasons this pattern exists and presents three empirical examples—overfishing, over extraction of oil and gas, and excessive air pollution—to illustrate the main points..

 Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources                                  
Carol M. Rose

Two types of public infrastructure—roads and property rights—are often thought critical to economic development; this Article compares their impacts on the natural environment. Both roads and property rights draw unfamiliar persons to remote areas, undermine existing informal resource practices, and enhance wide commercial trade, creating wealth but also reducing local resource diversity. New kinds of property rights hold much promise for environmental protection, but unlike roads and conventional property rights, environmental property rights would be tasked with curtailing commerce, as in roadless areas and caps on resource use. This sharp divergence from the traditional commercial mission of public infrastructure can limit support for environmental property rights, creating an opening for fuzzier and more consultative versions of environmental property.

 Governing Water: The Semicommons of Fluid Property Rights
Henry E. Smith

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and more riparianism exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

 Improving Efficiency by Assigning Harvest Rights to Fishery Cooperatives: Evidence from the Chignik Salmon Co-op
Robert T. Deacon, Dominic P. Parker & Christopher Costello    

During 2002–2004 a voluntary, profit sharing harvesters’ co-operative was allowed to operate in the Chignik Salmon fishery in Alaska. Regulators split the fishery’s total allowable catch between the co-op and independent harvesters. Our economic model predicts that the co-op would centrally coordinate its members’ activities, resulting in more efficient effort deployment than in the independent fleet. Empirical analysis of relevant data supports these predictions. We find that, in contrast to the independent fleet, the co-op concentrated effort among its most efficient members, fished closer to port, spread harvesting over a longer time span, and shared information on stock locations.

 The Property Rights Challenge in Marine Fisheries
Katrina M. Wyman

This Article argues that fisheries policymakers currently face a multifaceted challenge. Wild fish stocks are declining, aquaculture is growing, and there are many possible policy responses to these developments. Drawing on economic analysis of property rights, the Article frames the challenge facing policymakers as an optimization problem in which the objective should be to design property rights in fisheries that will produce the greatest net benefits. Complicating matters, the Article suggests that there is no single property arrangement that is optimal for fisheries in general and that policymakers will need to design many different property rights regimes to reflect local conditions.

 Bioprospecting and Biodiversity Conservation: What Happens When Discoveries are Made?
George Frisvold & Kelly Day-Rubenstein      

There has been extensive debate over whether private-sector bioprospecting for pharmaceutical compounds creates significant incentives for biodiversity conservation. We offer a case study of the discovery and commercial development of the anti-cancer drug taxol from the Pacific yew tree, highlighting neglected issues in the debate over bioprospecting and conservation incentives. The discovery of taxol and the search for taxol-like compounds illustrates how bioprospecting can substitute threats to biodiversity from over-harvesting for threats to biodiversity from habitat conversion. As this example illustrates, whether creation of market demand for genetic resources encourages or discourages biodiversity conservation depends crucially on underlying property rights.

Article

 Separating the Sony Sheep from the Grokster Goats: Reckoning the Future Business Plans of Copyright-Dependent Technology Entrepreneurs            
Jane C. Ginsburg

In MGM v. Grokster, the U.S. Supreme Court established that businesses built from the start on inducing copyright infringement will be held liable, as judges will frown on drawing one’s start-up capital from other people’s copyrights. The Court’s elucidation of the elements of inducement suggests that even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements. This Article addresses the evolution of the U.S. judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation of good faith efforts to avoid infringement. Recent inter-industry principles suggest that proactive avoidance measures may become a matter of “best practice.” The Article next considers whether statutory safe harbors insulate entrepreneurs who would have been held derivatively liable under common law norms. Finally, the Article compares the U.S. developments with recent French decisions holding the operators of “user-generated content” and “social networking” websites liable for their users’ unauthorized posting of copyrighted works.

Note

 Why Copyright Should Save Guitar Tablatures
Jason R. Simon

For years, amateur guitarists have made their own by-ear transcriptions of copyrighted compositions and posted them on the internet as tablatures. This Note explains that tablatures are not fair use of copyright under current U.S. law. While the policy of copyright forbids the current practice of amateur transcription, that policy also supports the practice under more limited circumstances. Tablatures represent how the internet allows consumers of art to share unique interests and educate each other in ways that are beneficial to the creation of art in general. In support of that aim, Congress should protect tablatures and other educational uses of art under the limited compulsory licensing scheme that this Note proposes.

Arizona Case Notes

 Cundiff v. State Farm: Allowing Double Recovery Under UIM and Workers’ Compensation
Melissa Healy   

 Webb v. Gittlen: Assignability of Professional Negligence Claims Against Insurance Agents
Shane Ham