My daily runs – interrupted by a chest infection in recent weeks, but now restarted – often take me past the Harwell Campus, which must be one of the most important concentrations of technology businesses in the country. During the pandemic, the government funded the building of a production facility for vaccines – then sold it off to a private company (as reported here by the BBC). The government denies that it sold it, claiming that it was never the government’s property anyway, but it was certainly paid for with public money and the non-profit company that did actually own it should surely have been contractually prevented from selling it – to safeguard public investment. What an old-fashioned view I have of these things! As far as I know, it hasn’t made any vaccine yet. 

More recently, Moderna has started – and now nearly finished – building another vaccine research, development and production facility on the Harwell Campus (read about it here). It’s hardly necessary when there’s an unused one only a mile away, and it’s big and ugly and unsuited to the predominantly rural landscape – it’s not within the existing built-up area, it occupies what were open green spaces including football pitches and the area where there used to be an annual bonfire night celebration, complete with a hugh bonfire that probably made a failry significant contribution to global warming. And all this in an area of outstanding natural beauty, which seems to count for nothing in planning terms. To build it, the contractors closed off the route I have been running for about 30 years and which was surely a customary right of way (though I have to admit I did not raise hell about this as I should have done). They also dug up and built over the historic runway from which the first airborne troops set off for Normandy on D-Day (more exactly, the previous evening, I think: and Montgomery himself must have been present, as a previous occupant of the farmhouse adjacent to our house remembers him staying the night with her family). There is still a war memorial at the end of the runway, and now also an interpretative board that, when erected, helped understand the landscape – no longer, as it’s all under a huge building. They also destroyed the experimental catapult pit that contained the equipment that the RAF hoped would enable them to get aircraft airborne with heavier payloads than they could manage under their own power, but which never worked very well. What price history? And the Prime Minister at the time was a great fan of, biographer of, and in his own mind it sometimes seemed reincarnation of, Churchill. 

What was RAF Harwell during World War II became the Atomic Energy Research Establishment (and its two reactors, resembling giant baked beans tins and called Dido and Pluto (though I always thought it was Aeneas) remained local landmarks although not for much longer), and is now owned by the AERE’s successor UKAEA, jointly with the Science and Technology Facilities Council and Public Health England. All very much in the public sector, surely. Which is why I am vexed when footpaths are closed, or when signs stating that the land is private appear. I accept that parts of the Campus are a licensed nuclear site, and regardless of ownership must be off-limits (patrolled by the only UK police force that can carry firearms at all times, though they tell me they don’t do so in practice, and which has a right of hot pursuit – both facts that I picked up in my pre-reading before going to university to begin my legal studies, quite a few years ago), but the rest of it should be the property of the public. 

It seems to me that, as nature does with vacuums, the modern world – the post-capitalist world – abhors public property. And this is not only tangible property (I’m getting to the point at last): despite the success of initiatives such as Creative Commons and the open-source movement, the trend is towards more and more enclosure (to use another concept from the world of agricultural land) in the intellectual property world. It’s a trend that looks closely related to the “technofeudalism” that Yannis Varoufakiswrites about in his new book, which I am sure contains a great deal of interest to intellectual property lawyers. I’ll get into that sometime later, once I have read his work.

In the IP world, we can see many developments that expand the realm of private ownership. Patent offices continue to measure success by the number of patents granted, while critics of the patent system would regard this as a bad thing. Likewise with the number of trade marks registered: each one represents a diminution of the scope for free speech, further depletion of the stock of available trade marks, foreclosure of the market to businesses who can’t find a suitable brand or can’t use the one they have developed in their home country. The breadth of trade mark applications continues to make life difficult for smaller businesses, who are often bullied by big trade mark owners. And in the copyright field, big tech takes what it wants – using others’ copyright works to train their AI engines, for example – without seeking permission from, still less remunerating, the copyright owner.

I am teaching a new cohort of University of London International Programme students, and getting to know a new group of students coming fresh to UK IP law always makes me reflect – their first experience of it is this, whereas mine 43 years ago was very different and I don’t think the changes in the interim are altogether a good thing. Perhaps not at all a good thing.