The purpose of the paper is to discuss how to regulate the access and use to biochemical and human genetic material currently considered as part of market framework. Looking beyond the protection of traditional public goods (such as land or water), the paper emphasizes the global debate around the progressive commodification of human genetic resources facilitated by an improper use of intellectual property rights. The discourse around commons is used to evaluate alternative tools and strategies to the issue of private appropriation of human genetic resources and natural compounds. Private property rights have traditionally been viewed as the most appropriate institutional scheme to manage and exchange essential or limited goods, balancing the so called “tragedy of the commons”. But there is also an increasing trend to see the imposition of private property regimes as an unreasonable tool used to exclude many others from an equal access to resources essential to the satisfaction of basic human rights.

Starting from these considerations, the paper illustrates the progressive development of the new forms of enclosure in the realm of the “intangible commons of the mind,” through several waves of expansion of intellectual property rights in the area of genetic materials and other similar intangibles goods. It then discusses how such proliferation of new enclosures is proportional to reduction of genetic materials in the public realm and can lead to a consequent decrease of the public domain, of new innovation and also of access to health care.

Drawing upon comparative and case study material, the paper seeks to investigate alternative governance solutions exploring a number of issues that stand at the intersection of comparative law, biotechnology and individual or group’s fundamental rights and freedoms.