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if potential users do not know what inventions are available, they have every incentive to find out. In any other realm of property, we would naturally assume that would happen. Why should we ascribe less rationality to potential users of knowledge?
One rejoinder is that basic inventions need collateral investments in order to become commercially viable. In order to get the private sector to make the collateral investments, they need exclusive licenses on an underlying property right.
However, that is not an answer. If improvements need protection not available under the law, then the Bayh-Dole Act is trying to overcome a deficit of intellectual property law. That is a completely different spin on the story. My view is that we should fix the thing that is broken, rather than something else. If collateral improvements need protection, then they should be protected. Protecting collateral improvements or applications is not a reason to allow restrictions on use of the underlying basic research, which was performed at public expense. If the thing that is broken is that there is not sufficient protection for improvements and commercialization, then that is the thing to fix. If fixed, the underlying basic research could be preserved in the public domain to stimulate improvements and commercialization in many parallel paths simultaneously, with no restrictions on use.
Let me conclude by coming back to the question, why intellectual property? I have given four answers that I regard as wrong. Are there any “right” answers? There are, in my view, some right answers, but they are very limited in scope, and they do not apply very convincingly to scientific knowledge or to scientific data. I believe there are two right answers.
The first is that the private sector may have better knowledge of what the private sector needs than a public sponsor would. There is a set of issues not about the efficiency of how research and development gets done, and not about monopoly pricing versus open access, but rather about the right things to invest in. There are many realms of scientific inquiry, especially those that are closely tied to industry and industrial development, that we would not want to put under the jurisdiction of a public sponsor. Under intellectual property rights, the private sector will apply at least a weak test of whether an R&D investment is worth the cost, namely, whether it is likely to turn a profit. In many realms, it is useful to apply that test.
However, this perspective also seems to be a clear rationale for treating basic research differently from follow-on applications. Nobody disagrees that we need genomic data or weather data. Nobody disagrees that we need certain kinds of environmental data. If there is no disagreement, the argument for intellectual property, in my view, is weak. We do not need the commercial sector to use their superior private knowledge or to apply the profit test as to whether the investment in R&D is a good one.
The second justification for intellectual property is that it concentrates costs among the users. There is a clear rationale, for example, for funding computer games through intellectual property, because the people who use them are a narrow population of 12 year olds. But there is no such justification, in my view, for using intellectual property to fund vaccines for infectious diseases, basic scientific knowledge, Census data or weather data that benefit all of us. Whether we know it or not, we are all users. The test of concentrating the costs among the users simply does not apply with very much force for those kinds of scientific discoveries.
In summary, I believe there are two valid tests for whether a particular subject matter should be supported under private incentives and an intellectual property regime rather than supported by public sponsors to be put in the public domain. It seems to me that most scientific research done in universities and national laboratories does not pass these tests. The other four justifications that I have heard for the expansion of intellectual property rights are not, in my view, sound arguments.