Brush, S. B. (2004). Rights over Genetic Resources and the Demise of the Biological Commons. In Stephen B. Brush (Ed.), Farmers' Bounty. Locating Crop Diversity in the Contemporary World (p. 219-255). New Haven, CT and London: Yale University Press.
Stephen B. Brush contrasts the common heritage principle with intellectual property rights over plants and shows how the genetic commons are being closed. He highlights how the emerging situation cannot be described solely as a 'tragedy of the commons' (see Brush, 2005) but also as a 'tragedy of the anti-commons', where multiple owners have the right to exclude others from utilizing scarce resources and no one gets the effective privilege of use.
According to Brush, the concept of the 'tragedy of the anti-commons' was first coined by Heller and Eisenberg (1998) referring to the situation of biomedical research (Anitha Ramanna used the concept to describe the situation of agrobiodiversity management in 2003). After discussing bioprospecting in this context, Brush addresses the prospects for realization of farmers' rights (likewise see Brush, 2005). He highlights the dangers of an access system based on market negotiations between purported 'owners' and 'users' of genetic resources, as this is likely to 'abuse the rights of people who have long been involved in the common pool of genetic resources but find themselves arbitrarily excluded in contracting' (p. 255). He concludes that farmers' rights as provided for in the International Treaty 'remains a moral but largely rhetorical recognition of the contribution of farmers to the world's stock of genetic resources, and they provide only a limited mechanism to share benefits from using crop genetic resources or to promote their conservation' (p. 255).