The Case Against the Privatization of Knowledge: Some Thoughts on the Myriad Genetics Controversy

In the current debate on intellectual property, the work of Karl Polanyi is frequently referred to by jurists, mainly in connection with the story of the ‘old’ and ‘new’ enclosures. In this paper I suggest that the critical account of the rise of the ‘market economy’ provided by Polanyi can shed some light on important issues of modern property (and namely intellectual property) law. In particular, I advance the hypothesis that the paradigm of the ‘double movement’ might contribute to a better understanding of the contemporary movements of resistance against the increasing commodification of knowledge. Using the Myriad Genetics controversy as a paradigmatic example, I reflect on the importance of fundamental rights as an institutional safeguard against the expansionary tendency of intellectual property law and on the role of the judiciary as guarantor of social cohesion, endangered by the disruptive effects of market rationality. The analysis is based on a comparative assessment of the most recent trends in the field of property law and aims to provide a further contribution to the debate on the (intangible) commons.