29 August 2013

Finnians Cows

Intellectual property as a matter of modernity and cows? As I began to type this post I received an email announcing that the Republic of Mozambique has deposited its instrument of accession to the Berne Convention, with effect as of 22 November 2013. In his recent lecture at Melbourne University Francis Gurry (WIPO Director General) begins by "recalling briefly the traditional explanations of why we have IP".
There are four main reasons, applicable to varying degrees to all the rights that we characteristically consider to be IP rights.
One set of explanations arises from the non-rivalrous nature of knowledge and information. Knowledge and information are private goods in production. They cost human and financial resources to create. In contrast, they are public goods in consumption. Once available, they may be used by another without lessening their enjoyment by the producer. This characteristic of knowledge was noticed by Columcille in his defence against the charge by Finnian in Ireland in the Sixth Century that he had copied the illuminations of a bible that Finnian had lent to him. When called before King Diarmuid to answer to the charge of theft, Columcille protested that he had not stolen anything, since Finnian still had his drawings and “Finnian’s book was none the worse for his copying from it.” In dismissing the defence, the king ushered copyright into the world by pronouncing “To every cow her calf; and to every book its copy.” 
Gurry goes on to comment that
I believe that there are three questions that are most likely to preoccupy us in the new context of IP. I shall call the first “entitlement”. It relates to the function of IP as a regulator of competitive behaviour that I described above. The second and third questions relate to the function of IP as the keeper of the social and economic equilibrium in respect of the multiplicity of interests surrounding innovation or creation. I shall call them “appropriability” and “access”. Each of these questions deserves a vastly more wide-ranging discussion than I am able to accord them here. I shall limit myself to sketching some highlights to provide an indication of why I believe that they are or will be the dominant questions in the new world of IP.
“Entitlement” is an age-old question. It is the question of the ownership of, or the right of control over, Finnian’s illuminations. It is about who invented or created something first, what are the boundaries between legitimate inspiration from someone else’s literary creation or design, on the one hand, and illicit imitation or slavish copying, on the other hand, and it has always animated the IP world. But it is likely to become even more animated, for three reasons.
The first reason is the enhanced values now involved as a consequence of the rise of the knowledge economy. The second reason is the rise in importance of espionage and the illicit appropriation of trade secrets and confidential information. Technology has enabled espionage on a widespread basis in a way that was not possible previously. This development has coincided with the rise in value of the intangible assets that are the target of the espionage. At the same time, the movement of skilled persons from enterprise-to-enterprise on an international scale is now commonplace. This is not a form of espionage, but it does create a potential vulnerability for the knowledge assets of enterprises.
These developments underline the importance of that branch of IP that is the protection of confidential information or trade secrets. Worldwide it is in a poor condition. There is very little uniformity in approach, with the common law and the civil law traditions viewing the matter juridically in completely different ways. There are few multilateral provisions; those that exist are in the Paris Convention on the Protection of Industrial Property and the TRIPs Agreement. It is an area in great need of attention. But giving it multilateral attention will not be easy. It is a difficult sell to promote secrecy in an age of transparency. Even if this is an  entirely superficial way of looking at the matter, this is the immediate reaction that one may expect and a great deal of care will need to be exercised in laying the basis for an international action.
The third reason for expecting greater animation over the question of entitlement is the silently growing tension between competition and cooperation. I have outlined the reasons why competition is heightening in the area of innovation and IP. At the same time, open innovation has become an increasingly important mode of behaviour in innovation. Open innovation may mean many things, but broadly it describes the tendency a firm to look outside itself to partnerships and collaborations to satisfy its innovation needs, rather than relying on purely inside processes to generate innovation. As has been said, the advantages of cooperation are increasing. This tension between competition and cooperation is going to be a defining issue in the coming decades and IP will be the means of resolving the tension. This is why Samuel Palmisano, the former President and CEO of IBM, has said that “[i]ntellectual property will become one of the key geopolitical issues of the twenty-first century“.
A second cluster of issues and questions will revolve around “appropriability”, which is, of course, not a word. I use it to describe two things– whether  something should be the subject of an IP right and whether something can be the subject of an IP right.
Whether something should be the subject of an IP right raises the question of what may be taken out of circulation and placed in the domain of private property. Theoretically, the position is clear. IP deals only with the new, the original and the distinctive. It only protects what did not previously exist and therefore does not involve any subtraction from the public domain. But in practice, the position is not so clear. The boundary between science and technology, or discovery and invention, is more and more difficult to draw, especially for lawyers, as the recent parliamentary and judicial attention given to gene patenting has shown. The question of what should be appropriated is not confined to scientific advances. It occurs equally with respect to the appropriation of words, signs and symbols through trademark law. Should colours be able to be the exclusive domain of one enterprise, for example?
A major challenge for IP here will be not to lose touch with the general public. As mentioned above, there is an increased social attention and focus on IP for a variety of reasons. If IP, whether through the legislature or the judiciary, takes decisions about appropriability that are not in consonance with the sentiment of the general public, it will lose the social credibility on which all good regulation depends.
Whether something is capable of being appropriated is an entirely different question that arises from the arrival of technologies of perfect and efficient imitation, notably the life sciences and digital technology. The problem that has emerged here is the disjunction between the cost of production, on the one hand, and the cost of reproduction, on the hand. In the case of a new pharmaceutical, the cost of production is estimated by industry to be in the vicinity of a billion dollars and to involve several years of work. Once available and disclosed, however, it can be reproduced by a competent graduate student in three months for a relatively meagre outlay. A new feature film may take two years to produce, involve several hundred persons and cost several hundred million dollars. But, once produced, it can be reproduced with perfect fidelity in a matter of seconds and for near zero cost. These developments are massive challenges for IP and, again, deserve much greater analysis than I am able to give them here.
The third issue that will occupy our attention in the new environment is access. As mentioned above, what IP does is to make access a saleable commodity. While this enables technology markets, it also creates social tension over the price of access and over the lack of access. We have seen this tension played out in relation to access to medicines and biomedical technologies, content on the Internet and climate change technologies, although the last area is more a theoretical debate than a full-scale political engagement that has seized the public’s attention.
It is unlikely that the tension around access will subside. For policy-makers, the challenge will be to try to orchestrate an informed and reasonable public debate. For corporations, the challenge will be to balance being competitive and getting a financial return on investment, on the one hand, with management of a potentially hostile public response, on the other hand. There is a paradox at work here, of course. No one minds, it seems, someone making billions out of new social networking or media technology, but there is widespread social unease at someone making billions out of a new life-saving drug. Which outcome do we want to achieve in the innovation system?