We live in an age of decentralized innovation in which civil liberties and cultural freedom depend on the freedom to innovate and share innovations with others. Increasingly, cultural freedom, access to knowledge, and freedom of expression depend on the ability of entrepreneurs to create new tools for sharing, producing, and distributing content. Increasingly, new ideas and new designs come from open source entrepreneurship communities in which loosely affiliated groups of individuals produce new knowledge and new technological tools. Innovation in software and hardware is inextricably connected to cultural innovation and the
dissemination of knowledge.
For these reasons, we can no longer protect civil liberties without paying attention to innovation policy and particularly to the individual freedoms to create, modify, distribute, and share advancements in information production and information technology. This freedom to innovate requires an open information infrastructure in which telecommunications policy, intellectual property laws, and technological architectures leave individuals free to build new things out of old, to remix, create, tinker, and repurpose.
Ronaldo Lemos, Center for Technology & Society, FGV-Rio
Commentator: Nagla Rizk, Access to Knowledge for Development (A2K4D) Center at the American University in Cairo
Some of the questions to be pursued by this panel include:
What policy areas (e.g. spectrum policies, open access) are the critical topics of study to address the freedom to innovate? To what extent is a human rights framing for these issues helpful or desirable?
What are the technological and legal architectures that are necessary to give individuals the space and the opportunity to innovate? How do these structures rely on, enhance or inhibit the enjoyment of rights? Whose rights are counted in this story?
Where will new content and information technologies come from and how we can empower as many different individuals as possible to maximize innovation? What is the role of civil and political liberties themselves in creating the conditions that facilitate innovation?
Introduction by Nagla Rizk: There is a blurring distinction between users and creators of knowledge. Meanwhile, there is a trend toward horizontally integrated, dynamic small firms, with an opposite trend toward large, vertically integrated players that rely on strong intellectual property protections.
Nagla points out that in developing countries, where market structures, competition law, and institutions are less well developed -- and market dominance may be more of a problem -- it could be important to make room for open source with supportive public policy.
Ed Felten: As a computer scientist, sees technology as an activity rather than as knowledge: A thing you do. Technologists engage with technology as humanists engage with texts. The freedom to tinker is important.
One key place where this has gone well is open source. Open source tools are a place where people can -- as new technologists typically do -- rip the lid off and play around with the technology. These settings also have sophisticated models of collaboration and governance.
Mobile phones provide a stark contrast. There's a battle between open and closed models not only in the U.S. but around the world.
IP protection and innovation can be reconciled. It's important to create a place where people can tinker, noncommercially, without running afoul of the legal tigers that stalk this space. Also, when we think about competition policy, it's important to consider the often-invisible smallest parts of the system: small companies and even individuals who don't think of themselves as companies. Making technology accessible will promote competition and let people in a broader range of cultural settings create things appropriate for the contexts they are in -- things the usual suspects would not have created.
Next, Ronaldo Lemos, curator of the largest music festival in Brazil and a leading figure in Brazil's free culture movement. He will discuss a law for the Internet. In Portugese, this is called a "marco civil" -- a civil rights law for the Internet. The goal is to improve lawmaking in Brazil.
First effort was a simple wordpress interface to gather input about what the new marco civil should say. The Minister of Justice and members of Congress from the two leading political parties attended the launch for this project -- reflecting support of both the federal government and the congress in Brazil.
The law will cover a long list of topics including:
2) Freedom of Speech
3) Rights of Access
4) Safe Harbors
6) Open Government Data
In 2007, a new legal proposal in Brazil would have criminalized many aspects of Internet activity. That proposal was defeated, and the fight galvanized Brazilian civil society. There is now a live and ongoing discussion about what the new marco civil should contain. Associations (including the bar association, and representatives of broadcasters and newspapers) also participated, along with individuals.
To make the project manageable, the marco civil excludes three hot subjects: copyright, telecom policy, and personal data. These areas also already have a body of already-developed policy in Brazil.
Participation by Internet users could emerge as a new collective right or interest, recognized in law, in Brazil. Web link, in Portugese: http://culturadigital.br/marcocivil/.
Next, Katherine Strandburg. Over the last few years, she has focused on the patent law and asked how it should accommodate new ways of innovating, including peer production. She builds on the work of Eric von Hippel and others, who study the extent and importance of user innovation, which happen when individuals make or invent something because they themselves want to use it.
The copyright context has been further ahead on a lot of these issues, but changing manufacturing tools (that allow custom manufacturing) and other factors suggest that physical products and patent law may be catching up.
These paradigms of innovation may be particularly important in developing countries, where mass production will cater less well to local context.
Open source can help because it can offer local control of critical resources such as operating system software.
The ability to innovate promotes lots of values that we generally associate with human rights, such as self-realization.
When people innovative for their own use, the incentive story that justifies existing patent law is weakened. There is nothing like the copyright idea of "fair use," in the patent system. Existing doctrine cannot recognize collective and incremental inventorship, making it difficult to deal with follow-on innovation. Innovation teams of users don't want, can't qualify for, or can't afford a traditional patent.
Last, what to do about private ordering? Purchase of a patented good will exhaust the patent protection, but contracts of adhesion can impose continuing conditions on users, and effectively circumvent exhaustion doctrine.
Three key papers on these topics:
Users as Innovators: Implications for Patent Doctrine, 79 U. Colo. L. Rev. 467 (2008)
Evolving Innovation Paradigms and the Global Intellectual Property Regime, 41 Conn. L. Rev. 861 (2009)
Constructing Commons in the Cultural Environment, Cornell L. Rev. (forthcoming in special edition with commentary, 2010) (with Michael J. Madison, Brett M. Frischmann)
Discussion and Questions from the Audience:
Nagla asks Ed to expand on public policy of open source: should there be any difference between developing and developed countries? Ed says the agnosticism he suggested was endorsed for the developing world. There is a complex interplay between profit motives and open source. For example, many firms contribute resources to open source projects for strategic business reasons. Many of the most important open source projects are already international in scope. So the projects will not be threatened by national monopolist. As long as policy across the board does not obstruct the possibility of choosing open source, it will be natural for a lot of innovators to end up on the open source side of things, at least when they are getting started.
Katherine adds that it's important to think also about what government agencies themselves will use. There, you may have a good reason to favor open source, which can give local control over public infrastructure.
Question: What about ownership of research? We need new innovation models and get away from the received view of counting patents as a measure of innovation.
Comment: But a great number of innovations are coming from clients to companies. It may turn out that a lot of the innovation we presently attribute to companies -- and allow them to patent -- are prior art because the client suggested the idea. We need "innovation traceability" that will allow us to know who actually added the value in the idea.
Katherine points out that tech transfer offices have on average not made money for thier universities, so some universities are starting to think about changing the posture they take toward their IP.
Ronaldo adds that in a developing country, you must change your perspective in order to see where the innovation is. Governments are enthusiastic about "innovation," but are trying to follow the traditional model of Silicon Valley. Also, another key element in the innovation discussion is to improve the quality of patent descriptions. The patent descriptions for many drugs actually haven't sufficed to allow a reader of the patent to reproduce the drug.
Nagla points out that innovation policy often comes from a maximalist, enforcement-oriented perspective in the West. Developing countries, on the other hand, need to focus on the innovation itself.
New question: When should you have to pay in order to innovate. Katherine answers by asking a questio of her own, which is, where can we expect innovation to happen without a need for incentives? Where do users already invent things in order to use the things themselves? On the other hand, we should also look at where there is market failure. Where are people not practicably able to pay for something of value, or where is there some other failure? These questions could inform a fair use right for patents. But in today's culture, everyone assumes that any use of a patent will require licensing.
Ed interjects that the answer depends on which sector you are in. In some sectors, like web technologies, the best tools for building innovation are free. In other sectors the inputs are costly. Low prices for inputs to innovation will attract innovators. Generally, the cost of inputs to innovation have been declining, across the IP sector, in recent years.
Question: That works well for software, but what about biotechnology, where the resource needs are more intensive? How should policy respond to the differences among types of innovation?
Ronaldo says: Ethanol was one area where Brazil did not have patents, and now most people are glad it did not.
Ed adds that in biotechnology, the reality is closer to the textbook story, where heavy upfront investment is needed. In the infotech space, patents strike innovators as irrelevant or a nuisance. They don't have clear extent that defines a landscape for the innovator to navigate.
Katherine adds that, while this is true, it may not suggest different satutory law for different industries. There are many historical cases in which information is shared among industry players, for mutual gain. This happened with steel mills, for example.
Final roundup questions: Rinaldo says his Center, in Brazil, has counseled those working on similar efforts in Mexico and other countries. In any case, Brazil's success shows that there is an alternative to three strikes laws and other maximalist policies.
Katherine agrees with a question that it is key to distinguish among various kinds of commons and public domain arrangements. It's an important area to study going forward.
Ed says it can be hard for people to see the benefits of openness, which can be less direct and harder to measure than the case for strong IP. The argument is more subtle than the argument for strong protection. This means it's important to make the information available, particularly about the past successes of open approaches.
Katherine points out that the Universal Declaration of Human Rights enshrines rights for authors -- rights that assume a traditional model of authorship. There may need to be a dialogue about updating some of those assumptions.
For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Saturday, February 13 at 14:30h to 16:00h.
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