Intellectual property rights are supposed to give people incentives to innovate. That’s the cherished grand narrative. But what’s actually happening on the ground? A dispatch by Steve Lohr in today’s NYT suggests that the edifice of IP law may be killing basic research in the cradle:
The legal wrangling over intellectual property rights in research projects involving universities and companies, specialists say, can take months, sometimes more than a year. This legal maneuvering, they say, is not only slowing the pace of innovation, but is also prompting some companies to seek universities research partners in other countries, where negotiations over intellectual property are less time-consuming.
It turns out that the legal apparatus to negotiate and enforce intellectual property rights is a fairly unwieldy and costly enterprise unto itself. Big transaction costs. Expensive lawyers. The intense legal jockeying to determine who will own new scientific knowledge, paradoxically, is preventing scientists from having the freedom to collaborate and generate that knowledge in the first place! The absence of a knowledge commons means that a commercial market can’t emerge.
The good news is that four major tech companies (IBM, H-P, Intel and Cisco) have collaborated with seven major research universities and the Kauffman Foundation to forge a new set of guidelines for making open source software research freely available. The guidelines are intended to promote “collaborative innovation” in software development by bypassing the customary constraints of patent and copyright law.
For those people who equate the commons with communism, it’s worth pondering this statement by John E. Kelly III, Senior Vice President, Technology & Intellectual Property at IBM: “Open source software and standards developed among universities, government and the IT industry form the basis for genuine collaborative innovation. This collaboration will lead to greater commercialization throughout the IT industry. Because of that, it is imperative that these principles guide our efforts to collectively improve current intellectual property practices.” (emphasis added)
The new guidelines are an implicit retreat from the ethic promoted by the Bayh-Dole Act, the 1980 law that presumes that university research will be commercialized more rapidly if universities can patent their research. Tech businesses and scientists alike are discovering that the marketization of academic research has some serious downsides, especially for basic research. IP restrictions are preventing researchers from trading information, collaborating and innovating. The lack of a knowledge commons has serious functional implications.
The new guidelines have not yet been posted on IBM’s or the Kauffman Foundation’s website, so it’s hard to tell how broad and effective a solution they are; the market ethic fostered by Bayh-Dole has penetrated deeply into academia, altering its institutional priorities and identity in many instances. Still, it’s encouraging that major tech companies are taking practical steps to reinvigorate the knowledge commons as an indispensable foundation of their commercial fortunes.