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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.