Sans in­tel­lec­tual prop­erty

We need to re-imag­ine the role of the state in cre­at­ing knowl­edge with­out in­tel­lec­tual prop­erty rights


Can there be knowl­edge dis­sem­i­na­tion with­out IPR?

THE CON­VEN­TIONAL view is that in­tel­lec­tual prop­erty rights (iprs) are the best way to pro­mote in­no­va­tion. With­out the re­wards that iprs such as patents and copy­rights con­fer, there would be lit­tle in­cen­tive to in­no­vate, goes the ar­gu­ment. That, of course, is not true at all. There is an in­ter­est­ing uni­verse of pos­si­bil­i­ties be­yond in­tel­lec­tual prop­erty and, as this col­umn has ar­gued in the past, such rights are not al­ways the main driv­ers of in­ven­tion.

Academia, which is ac­tively en­gaged with this con­cept, has been com­ing up with in­ter­est­ing new con­cepts as the re­cent Yale Law School con­fer­ence on In­no­va­tion Be­yond IP did. Held in New Haven, US, one fo­cus of the con­clave was on the role the state can play in fos­ter­ing knowl­edge cre­ation and in­no­va­tion out­side the ambit of iprs. There are many ex­am­ples of dis­cov­ery with­out iprs—or in spite of it—and one case study that high­lighted what the state could do in this re­gard was the who Global In­fluenza Sur­veil­lance and Re­sponse Sys­tem (gisrs).

Es­tab­lished in 1952,the sys­tem has linked 138 na­tional in­fluenza cen­tres, six who col­lab­o­rat­ing cen­tres, sev­eral reg­u­la­tory lab­o­ra­to­ries and ad hoc groups to gather data and flu virus sam­ples. The gisrs data­base has been pro­vid­ing real time sur­veil­lance in­for­ma­tion since 1996 through its Flu Net­work which tracks and pre­dicts pan­demic out­breaks. It also chooses the flu strains that go into vac­cines each year and plays a crit­i­cal role in get­ting the vac­cines tested by reg­u­la­tory agen­cies.

The Flu Net­work was able to pro­duce high-qual­ity science with­out any re­course to iprs. This was pos­si­ble be­cause an al­ter­na­tive in­for­ma­tion pro­duc­tion sys­tem of “open science” was at work with state sup­port. In her study ti­tled “Bring­ing the state back in”, Amy Kapczyn­ski, pro­fes­sor of law at Yale Law School and fac­ulty direc­tor of the Global Health Jus­tice Part­ner­ship, made a sharp but un­fash­ion­able point that prob­lems cropped up only when ipr en­tered the pic­ture in re­cent years. In fact, they ac­tu­ally caused a cri­sis in the net­work which had been his­tor­i­cally free of ipr wor­ries.

This raises an in­ter­est­ing ques­tion. If the state is needed to en­force iprs, which any­way cre­ate mar­ket in­ef­fi­cien­cies, does it not make the state a plau­si­ble com­peti­tor to the mar­ket on ef­fi­ciency grounds? Why, then, should we use in­tel­lec­tual prop­erty rather than the state, asks Kapczyn­ski?

In a blog post on her study of the Flu Net­work, she says that the first les­son she drew is that in­tel­lec­tual pro­duc­tion with­out in­tel­lec­tual prop­erty works well even in ar­eas that are cap­i­tal in­ten­sive, and that it can be as ef­fi­cient as the mar­ket-ex­clu­sion­ary sys­tem that iprs en­tail.The sec­ond key les­son is a cor­rec­tive to the emerg­ing “be­yond IP” lit­er­a­ture. “That lit­er­a­ture has mapped many do­mains of cre­ative prac­tice that func­tion with­out tra­di­tional re­course to IP (from magic to com­edy to Wikipedia, for ex­am­ple). But it has largely as­cribed cre­ation in th­ese con­texts to norms, in­trin­sic mo­ti­va­tions and new tech­nol­ogy.”

Th­ese el­e­ments alone would not be suf­fi­cient when the stakes are high as with the Flu Net­work. The sup­port of in­sti­tu­tions and the law would be vi­tally im­por­tant with such projects, she ar­gues. There­fore, ideas about the role of the state would have to be re­cast and re-imag­ined. Fun­da­men­tally, what has to change is the “re­flex­ive pes­simism” about the state that is shared by both the neo-lib­eral, pro-in­tel­lec­tual prop­erty camp and their crit­ics.For both, the im­age of the state is of a bu­reau­cratic Leviathan—in­ert, in­flex­i­ble and cor­rupt—although that im­age was dis­proved by its role in the Flu Net­work. Both sides need, and do rely upon the state.Not just on any state though, but “a ca­pa­ble, re­spon­si­ble and em­pow­ered state”. Would that it were pos­si­ble!


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