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The Genius of Intellectual Property and the Need for the Public Domain

James Boyle & Jennifer Jenkins 1

I will start by talking about the genius of the intellectual property system and about what this system is supposed to do. Then I will turn to a broad, overall vision of recent expansions of intellectual property protection and talk a bit about the available conceptual tools, both economic and noneconomic, for thinking about appropriate limits on intellectual property protections. I will conclude with some suggestions about an appropriate larger framework for conducting the inquiry around which this symposium is built.

Although I am going to say a number of negative things about the current state of intellectual property protection, I want to start by stressing what a wonderful idea intellectual property protection is. The economists tell us that intellectual property allows us to escape the problems caused by goods that are nonrival and nonexcludable by conferring a limited monopoly (although some would argue about that nomenclature) and allowing producers of information or innovation to recover the investment that they put into it. But the real genius of intellectual property is that it tries to do something that my colleague Jerry Reichman calls “making markets”: that is, it tries to make markets where markets would otherwise be impossible.

For many of you, making markets might seem a cold and unattractive phrase. But you should view it with the romance with which economists view the possibility of making markets. When I say markets, you should get excited: You should think about a spontaneous and decentralized process where all of us have the possibility to innovate and to recover something of the costs of our innovation.

If you are a radical feminist and want to write a book condemning the contemporary workplace, if you have a unique image of what can be done with a slack key guitar, if your pen can draw the horrors of cubicle life in a way that would amuse millions over their breakfast newspaper, the idea is that you could venture out there into the world; and if the market works (if the intermediaries do not stifle your expression, which they often do), you would be able to offer your creation to the public. Similarly, innovations in other areas—the drug, the invention, the Post-it note—would be put to the test of a decentralized set of needs and desires. The market would in turn allow us to say, “this is what we want.”


1The oral presentation was given by James Boyle, William Neal Reynolds Professor, Duke University School of Law. The prose version was cowritten with Jennifer Jenkins, Director of the Duke Center for the Study of the Public Domain. For further discussion of the issues in this presentation, see James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” 66 Law & Contemp. Probs. (Winter/Spring 2003), draft available at http://james-boyle.com/; James Boyle, “The Second Enclosure Movement?” Duke Law School Conference on the Public Domain Webcast Archive (Nov. 9, 2001), available at http://www.law.duke.edu/pd/realcast.htm; and “Tensions between Free Software and Architectures of Control” (Apr. 5, 2001), available at http://ukcdr.org/issues/eucd/boyle_talk_text.shtml.



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Page 10 2 The Genius of Intellectual Property and the Need for the Public Domain James Boyle & Jennifer Jenkins 1 I will start by talking about the genius of the intellectual property system and about what this system is supposed to do. Then I will turn to a broad, overall vision of recent expansions of intellectual property protection and talk a bit about the available conceptual tools, both economic and noneconomic, for thinking about appropriate limits on intellectual property protections. I will conclude with some suggestions about an appropriate larger framework for conducting the inquiry around which this symposium is built. Although I am going to say a number of negative things about the current state of intellectual property protection, I want to start by stressing what a wonderful idea intellectual property protection is. The economists tell us that intellectual property allows us to escape the problems caused by goods that are nonrival and nonexcludable by conferring a limited monopoly (although some would argue about that nomenclature) and allowing producers of information or innovation to recover the investment that they put into it. But the real genius of intellectual property is that it tries to do something that my colleague Jerry Reichman calls “making markets”: that is, it tries to make markets where markets would otherwise be impossible. For many of you, making markets might seem a cold and unattractive phrase. But you should view it with the romance with which economists view the possibility of making markets. When I say markets, you should get excited: You should think about a spontaneous and decentralized process where all of us have the possibility to innovate and to recover something of the costs of our innovation. If you are a radical feminist and want to write a book condemning the contemporary workplace, if you have a unique image of what can be done with a slack key guitar, if your pen can draw the horrors of cubicle life in a way that would amuse millions over their breakfast newspaper, the idea is that you could venture out there into the world; and if the market works (if the intermediaries do not stifle your expression, which they often do), you would be able to offer your creation to the public. Similarly, innovations in other areas—the drug, the invention, the Post-it note—would be put to the test of a decentralized set of needs and desires. The market would in turn allow us to say, “this is what we want.” 1The oral presentation was given by James Boyle, William Neal Reynolds Professor, Duke University School of Law. The prose version was cowritten with Jennifer Jenkins, Director of the Duke Center for the Study of the Public Domain. For further discussion of the issues in this presentation, see James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” 66 Law & Contemp. Probs. (Winter/Spring 2003), draft available at http://james-boyle.com/; James Boyle, “The Second Enclosure Movement?” Duke Law School Conference on the Public Domain Webcast Archive (Nov. 9, 2001), available at http://www.law.duke.edu/pd/realcast.htm; and “Tensions between Free Software and Architectures of Control” (Apr. 5, 2001), available at http://ukcdr.org/issues/eucd/boyle_talk_text.shtml.

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Page 11 At present it seems that we want Post-it notes and Viagra and Britney Spears: The point is that this particular construction of culture and innovation is made possible by intellectual property. It is that transaction between the successful innovator or cultural artist and the public that intellectual property tries to make possible, together of course with all the failed innovations, for which there are no audiences, or at least no interested audiences. The genius of intellectual property, then, is to allow the possibility of a decentralized system of innovation and expression, a system in which I do not have to ask for polka or house music to be subsidized by the state, where I do not need to go to some central authority and plead the case for the funding of a particular type of innovation. Instead, through the miracle either of my own initiative (and the capital markets) I can say “I have faith in this, and we will see whether I am right or wrong.” I will make a bet, or my investors will make a bet. That is the genius of intellectual property. Now I am going to say a lot of very negative things, but do remember that initial positive idea. I want to start with an image of the old intellectual property system. (This is going to sound something like a golden age, which is not what I intend, but given the time constraints, I have to simplify somewhat drastically.) The first thing to realize is that intellectual property rights used to be quite difficult to violate, because the technologies and activities necessary to do so were largely industrial. You could tell a friend about a book, lend it to him, or sell it to him, but you would need a printing press readily to violate its intellectual property protection. So intellectual property was an upstream regulation that operated primarily between large-scale industrial producers competing against each other. Horizontally it operated to stop them from simply taking the book du jour and ripping that off, or taking the drug formula and ripping that off. But it had relatively little impact on individual users or consumers and on everyday creative acts, whether in the sciences or in the arts. Second, intellectual property protection was extremely limited in time. Prior to 1978, 95 percent of everything that was written, as my colleague Jessica Litman has pointed out, went immediately into the public domain, because a work was not protected by copyright unless you affixed a copyright notice onto it. Even if you did affix a copyright notice, the copyright would expire after some period of time. We started off in the United States at 14 years of copyright protection. Even up until 1978, this initial term had been extended only to 28 years, at the end of which you had to renew your copyright to maintain protection. A considerable percentage of the things under copyright went into the public domain at that point, because they were not renewed, because there was no salient market. They were then available for all to use. This has changed completely. Now the default is that everything is automatically protected. Every note written in this auditorium will not pass into the public domain until after your lifetime plus 70 years. Third, intellectual property was tightly limited in scope. If you look at the areas that intellectual property now covers, you can see a sort of steroidlike bloating in every dimension. I look back at some of the confident phrases in my old syllabi: “No one would ever claim that a business method could be patented.” Wrong. “No one would ever claim that you could have intellectual property rights over a simple sequence of genomic data, like CGATTGAC.” Wrong. And of course, “copyright protection only lasts for life plus 50 years.” Wrong. Intellectual property rights now cover more subject matter, for a longer time, with greater penalties, and at a finer level of granularity. These rights are now backed by legally protected technical measures, which try and make intellectual property protection a part of your use of a work, so you do not have the choice to violate an intellectual property right. They may also come with an associated contract of adhesion, which tells you how, when, and why you may make use of the work. We have, in other words, a bloating or expansion on every substantive level—breadth, length, depth, and scope. But also a kind of expansion that, because of the changes produced by digital technology and other copying technologies, has changed fundamentally from being industrial regulation that affected upstream producers—the publisher, the manufacturer of the drug—to personal regulation that applies literally on the “desktop.” In a networked world, copying is implicated in everyday acts of communication and transmission, even reading. It is hard for us to engage in the basic kinds of acts that make up the essence of academia or of the sciences without at least potentially triggering intellectual property liability. It is in fact the paradox of the contemporary period that at the moment when the idea of every person with his or her own printing press becomes a reality, so does his or her own copyright police; and for every person's digital lab, the potential of a patent police nearby.

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Page 12 So we have this enormous expansion of intellectual property rights. Although I used the negative terms “bloating” and “expansion,” in theory this could all be perfect. It might be that our legislators, responding doubtless to carefully phrased economic arguments rather than to straightforward economic payments, had wonderfully hit the economically optimal balance between underprotection and overprotection. That could have happened. But can we at least be skeptical? Do we really want, for example, to conduct the following experiment with the American system of science and innovation? “We never really knew how the American system of science worked in the first place, but, by and large, it did. Now let's change its fundamental assumptions and see if it still works.” This is an interesting experimental protocol. And, if human subjects are not involved, it might even be a useful one. But it would seem that if you only have one system of science and innovation, then breaking it might have negative consequences. So fundamental tinkering in the absence of strong evidence that the tinkering is needed would not seem like the optimal strategy. If, then, we are slightly skeptical and are engaged in a process of trying to reflect on what the correct balance is between intellectual property and the material that is not protected by intellectual property, what are the conceptual, practical, political, and economic tools that we have at our disposal? Well, by simplifying 300 years of history into a minute and a half, there is a longstanding tradition of hostility to and skepticism of intellectual property. Thomas Jefferson in the United States and Thomas Macaulay in Britain expressed this very nicely. It is an antimonopolistic sentiment coming from the Scottish Enlightenment. It is a sentiment that sees the biggest danger as being that monopoly makes things scarce, makes them dear, and makes them bad, as Macaulay said, and that intellectual property is a monopoly like any other. It may be a necessary evil, but it is an evil, and we should therefore carefully circumscribe it. We should put careful limits around it— constitutional limits, limits of time, and so forth. The antimonopolistic critique of intellectual property offers, of course, a useful set of correctives to our current steroid-fueled expansion. But what we really do not see for nearly 150 or 200 years is any mention of something called “the public domain.” Instead, there is an assumption that what is not covered by intellectual property will be “free,” a term that is tossed around just as loosely by the philosophers I have mentioned as it is by the contemporary philosophers of the Internet. What do we mean by “free”? No cost? Easily available? Uncontrolled by a single entity? Available with a flat fee on a nondiscriminatory basis? “Free” as in “free speech” or “free” as in “free beer,” as Richard Stallman famously observed? Although there are a lot of definitions, it is not very clear what norm of freedom we are trying to instantiate. Now, over the past 25 to 30 years, one sees in debates about intellectual property an affirmative mention of the public domain. The Supreme Court said that it would be unconstitutional to withdraw material from the public domain, or to restrict access to that which is already available. Academics, including my colleagues David Lange and Jerry Reichman, have written very interestingly about the role and function of the public domain, and I have added a little bit to that discussion myself. Paul David, Suzanne Scotchmer, and others have also contributed to these discussions in fascinating ways. But I think they would all agree that when we talk about the “public domain,” it is not quite clear how that term is defined. What is the public domain? Is material made available through the fair-use privilege under copyright law part of the public domain or not? One could debate that. Is material that is in the public domain only that material which is entirely uncovered by intellectual property, such as a book whose copyright term has expired? Or can it include the little chunk of unprotected material within a work that is otherwise covered by intellectual property, such as the ideas or facts underlying protected expression? We do not have a very good notion. How does the public domain function? We really do not know that very well either. The intellectual property system we have inherited had a strategy of braiding a thin layer of intellectual property rights around a public domain of ideas and facts, which could never be owned. But one could own the expression or the invention made out of those ideas and facts, leaving the ideas above and facts below in the public domain for the next generation to build on. That actually sounds like an interesting strategy of a mixed public domain and property system. However, this system is one that we are busily demolishing through expanding intellectual property protections, without, so far as I can tell, either good empirical evidence that it is necessary to change its fundamental

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Page 13 premises or good economic models that the changes will work. There is remarkably little empirical study of the actual effects of intellectual property, or of the actual need for particular intellectual property rights rather than the concept itself. I think that this is what we should demand. As one of my colleagues has said: We should not succumb either to merely good data or to good economic models, we need a little bit of both. Where does this leave us? We are in a situation now that is akin to where the movement to protect the environment was in the 1940s and 1950s. At that time, there was no environment per se. This way of quilting together a series of problems and issues and ecosystems—problems of pollution, ecosystem functions, our relationship to the biosphere—was literally invented in the 1940s, 1950s, and 1960s by a series of brilliant scientific, popular, and other works, which told us that we should see these problems as a whole. We are in the process of creating our “environment” in the intellectual world. That environment, in my view, is the public domain, and we are still looking for our writers of Silent Spring or A Sand County Almanac. We need the writers who would manage both to conjure up what it is the public domain does for us and to delineate the ways in which it functions. We need the writers who would give us the equivalent of the notion of ecological interconnections—the unexpected reciprocal connections that turn out to be fundamental. We need the writers who would give us the sense of modesty that environmentalists gave us about interventions in living systems, the sense that perhaps we do not understand terribly well how the public domain operates; so if we tinker with it radically, things will not automatically go well. We seem to lack that sense of modesty; indeed, we seem to be possessed of an extraordinary hubris. We also lack the associated scholarly analysis, from economic, legal, historical, and other perspectives. There is a need to look at the optimal balance and interconnection between that which is protected and that which is not; to look at the types of production systems that the Internet makes possible, like peer-to-peer production; to follow the kinds of fascinating studies like the one produced by Jerry Reichman and Paul Uhlir on the possibility of establishing well-functioning scientific commons in the new world of scientific inquiry. As we look at the contemporary mixture of that which is protected and that which is not, it is apparent that we cannot simply say that everything should be free. As Jerry Reichman and Paul Uhlir point out, there are multiple subtle types of limitations and restrictions that may actually be necessary to allow for the free flow of data. Nor can we romanticize the past of big science under the Cold War model, under which so much research was actually paid for by the state but material was not automatically available to everyone. Big science, as we know, has had its own monopolies and blockages. Instead, we need new cognitive orientations from which to think about these issues. We need, for example, to take a leaf out of the books by the theorists of the commons, such as Elinor Ostrom, who have studied how well-functioning commons continue. We have to analyze carefully how commons are not in fact automatically tragedies, but, as Carol Rose has described, can be comedies: collective resources that are better managed collectively than they would be individually. (The environmentalists have taught us that rhetoric is no substitute for careful science, but we also need a process of actually getting people to understand the stakes.) So how are we to proceed? Our job in the National Academies is to produce studies, to produce expert opinions, and to concentrate on this field. I would suggest here too that the environmental movement offers us some hints. One of the fascinating things about the environmental movement is the way that elite scientific, economic, and other forms of academic inquiry are put together with a popular movement that is much broader based. A similar approach is needed here to understand the impact of intellectual property expansions. We cannot simply focus on the old questions of the impact of the Bayh-Dole Act, or whether there should be a research exemption to patent law, although these are indeed important issues. The reason that we cannot do that is because there is an urgency to the task, which is going to require speed greater than that produced by the occasionally glacial process of convincing Congress or other bodies, including private bodies, that they have taken a wrong step. The urgency of our task is underscored by a number of developments accompanying the recent expansions in intellectual property. First, there is a generational shift occurring. Many of the people in the audience were brought up in an era in which the Mertonian ideals of science were taken for granted. They start from the assumption that data should be free and need to be convinced that this assumption should be changed in particular cases. (I will not say they cannot be convinced, but they need to be convinced; and the burden of proof lies with

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Page 14 the people who would advocate restriction.) I would argue that, for many younger scientists, this ideal is no longer true. The idea of paying for data is no stranger than paying for reagents. They start from the assumption that data are a costly input like all others, rather from the belief that some economies actually work better when fundamental, upstream research is available freely, even if property rights are introduced further downstream. I do not think one can assume that scientists will automatically continue to have the same kind of skepticism that they currently express toward intellectual property expansions like those enacted in the European Directive on the Legal Protection of Databases and in recently proposed database protection legislation in the United States. A second development is that the universities and the science establishment, traditionally the “public defenders for the public domain,” are changing. When new expansions of intellectual property were proposed, this community, together with librarians and a few others, would suggest a little restraint, would advocate limitations on expansions that went a little far. This was an extraordinarily valuable role for them to play in the legislative process. But it is a role that we can no longer take for granted. Universities, in particular, are now major beneficiaries of intellectual property expansion. Every university has a chief technology officer or an intellectual property licensing officer—a person whose job it is to maximize revenue. That person does not get promoted by giving away a lot of data. It would be crazy for us to think that, under that kind of impetus, the universities will always play the same role in the policy-making process that they have done before, unless activity is taken through both the National Academies and other learned societies to awaken us to the danger posed. The types of actions that need to be taken span the traditional boundaries between the arts and sciences, or between the realms of patent and copyright. We need to explore a wide range of options, from the equivalent of the Nature Conservancy—a private initiative to preserve a particular resource that is under threat—to the large-scale scientific study, to the economic modeling that tells us the limits of the ecosystem, to the coalition building that is exemplified by organizations like Greenpeace. Happily, organizations paralleling these types of functions are currently moving forward, such as Creative Commons, the Electronic Frontier Foundation, Duke Law School's newly created Center for the Study of the Public Domain, and Public Knowledge. We need to support these organizations and tie together the interests of these and other groups engaged in individual struggles by articulating our common interest in protecting a valuable, shared resource. So what should we take away from all of this discussion? I would offer the following central points to guide the discussion that follows. Debates about the desirable limits of intellectual property are as old as the field itself. Similarly, debates about the role of public and private financing of scientific investigation have a long and distinguished history. In striking respects, however, contemporary events have shown the limits of both the “antimonopoly” perspective on intellectual property and of the assumption that “public” automatically equals “free” or that “private” automatically means “controlled.” The hypertrophy of intellectual property protections over the past 20 years has exacerbated these problems, while the increasing reliance of universities on patent funding and licensing income promises to destabilize an already unstable political situation. As I pointed out earlier, universities traditionally played the role of “public defender for the public domain” in the legislative and policy process. That role can no longer be relied on, and much work needs to be done to make sure it does not altogether disappear. This is a point of fundamental importance to our intellectual property policy. Finally, the traditional alternative to propertized scientific research—government-funded, Cold War-style science—has both practical and theoretical problems. What is to be done? The answer is a complex one. Theoretically we need a much better understanding of the role of the public domain and of the commons—two terms that are not equivalent—in innovation policy. Practically, we need a series of concrete initiatives, aimed at both public and private actors, to stave off the ill effects of “the second enclosure movement.” Some of those initiatives are already under way, but much more effort is needed. On the positive side, this symposium represents, if not the solution, at least an important recognition of the magnitude of the problem. Given the role of the National Academies, it is hard to think of a more pressing issue for it to confront over the next 10 years.