[p2p-research] In praise of the public domain

[Ryan]

  Sent to you by Ryan via Google Reader: In praise of the public domain
via dw2 by David Wood on 3/26/10

James Boyle’s book “The public domain: enclosing the commons of the
mind” is an extremely thoughtful, carefully written account of a major
issue.

The issue is that a very powerful and useful resource is, largely
unwittingly, being deeply damaged by people following actions that on
the surface seem to make sense.

The resource in question can be called “the public domain”. It’s the
general set of ideas, designs, and artforms which we can all build on,
to create yet new ideas, designs, and artforms. Everyone who writes a
book or blog article, draws a picture, composes music, designs a
product, or proposes a new scientific theory, takes all kind of
advantage of this public domain. However, this domain is under
increasing attack.

The attack comes as a result of concepts of “intellectual property”
being applied too aggressively. In this line of thinking:

- People generally need incentives to undertake arduous work to create
new ideas, designs, and artforms;
- An important aspect of incentive is expected monetary reward from
expected benefits from these ideas, designs, and artforms;
- Any technology or social practice that undercuts this potential
monetary reward is, therefore, suspect;
- In particular, the growing ability of computer tools and Internet
distribution means that we need to tighten laws governing copying;
- Otherwise, the incentive to create new ideas, designs, and artforms
will be undermined;
- As a result, laws about copyrights and patents need to be extended.
Of course, Boyle is far from being the first person to criticise this
general line of thinking. However, what makes Boyle’s book stand out is
the balance which he brings.

Boyle carefully explains the merits of the arguments in favour of
intellectual property, as well as the merits of the arguments against
extending laws about intellectual property. He believes there is
substantial benefit from patents and copyrights continuing to exist. As
he notes in the final chapter of his book:

If the answer were that intellectual property rights are bad, then
forming good policy would be easy. But that is as silly and one-sided
an idea as the maximalist one I have been criticizing here. Here are …
examples:

1. Drug patents do help produce drugs. Jettisoning them is a bad
idea—though experimenting with additional and alternative methods of
encouraging medical innovation is a very good one.

2. I believe copyrights over literary works should be shorter, and that
one should have to renew them after twenty-eight years—something that
about 85 percent of authors and publishers will not do, if prior
history is anything to go by. I think that would give ample incentives
to write and distribute books, and give us a richer, more accessible
culture and educational system to boot, a Library of Congress where you
truly can “click to get the book” as my son asked me to do years ago
now. But that does not mean that I wish to abolish copyright. On the
contrary, I think it is an excellent system…

(The text of the entire book is available free online, under a creative
commons licence.)

But Boyle also argues, persuasively, throughout his book, that there
need to be limits to the application of ideas about intellectual
property. As summarised at the start of the ninth chapter:

It is a mistake to think of intellectual property in the same way we
think of physical property…

Limitations and exceptions to those rights are as important as the
rights themselves…

The public domain has a vital and tragically neglected role to play in
innovation and culture…

Relentlessly expanding property rights will not automatically bring us
increased innovation in science and culture…

The second enclosure movement is more troubling than the first…

It is unwise to extend copyright again and again, and to do so
retrospectively, locking up most of twentieth-century culture in order
to protect the tiny fragment of it that is still commercially available…

Technological improvements bring both benefits and costs to existing
rights holders—both of which should be considered when setting policy…

We need a vigorous set of internal limitations and exceptions within
copyright, or control over content will inevitably become control over
the medium of transmission…

The Internet should make us think seriously about the power of
nonproprietary and distributed production…

Perhaps the most powerful argument in the list above is the third one:
we need a healthy public domain, for the good of all of us – so that
new ideas, designs, and artforms can continue to be developed. To make
this argument more vivid, Boyle builds an intriguing analogy:

In a number of respects, the politics of intellectual property and the
public domain is at the stage that the American environmental movement
was at in the 1950s.

In 1950, there were people who cared strongly about issues we would now
identify as “environmental”—supporters of the park system and
birdwatchers, but also hunters and those who disdained chemical
pesticides in growing their foods. In the world of intellectual
property, we have start-up software engineers, libraries,
appropriationist artists, parodists, biographers, and biotech
researchers. In the 50s and 60s, we had flurries of outrage over
particular crises—burning rivers, oil spills, dreadful smog. In the
world of intellectual property, we have the kind of stories I have
tried to tell here. Lacking, however, is a general framework, a
perception of common interest in apparently disparate situations.

Crudely speaking, the environmental movement was deeply influenced by
two basic analytical frameworks. The first was the idea of ecology: the
fragile, complex, and unpredictable interconnections between living
systems. The second was the idea of welfare economics—the ways in which
markets can fail to make activities internalize their full costs. The
combination of the two ideas yielded a powerful and disturbing
conclusion. Markets would routinely fail to make activities internalize
their own costs, particularly their own environmental costs. This
failure would, routinely, disrupt or destroy fragile ecological
systems, with unpredictable, ugly, dangerous, and possibly irreparable
consequences. These two types of analysis pointed to a general interest
in environmental protection and thus helped to build a large
constituency which supported governmental efforts to that end. The duck
hunter’s preservation of wetlands as a species habitat turns out to
have wider functions in the prevention of erosion and the maintenance
of water quality. The decision to burn coal rather than natural gas for
power generation may have impacts on everything from forests to
fisheries. The attempt to reduce greenhouse gases and mitigate the
damage from global warming cuts across every aspect of the economy.

Of course, it would be silly to think that environmental policy was
fueled only by ideas rather than more immediate desires. As William
Ruckelshaus put it, “With air pollution there was, for example, a
desire of the people living in Denver to see the mountains again.
Similarly, the people living in Los Angeles had a desire to see one
another.” Funnily enough, as with intellectual property, changes in
communications technology also played a role. “In our living rooms in
the middle sixties, black and white television went out and color
television came in. We have only begun to understand some of the
impacts of television on our lives, but certainly for the environmental
movement it was a bonanza. A yellow outfall flowing into a blue river
does not have anywhere near the impact on black and white television
that it has on color television; neither does brown smog against a blue
sky.” More importantly perhaps, the technologically fueled deluge of
information, whether from weather satellites or computer models running
on supercomputers, provided some of the evidence
that—eventually—started to build a consensus around the seriousness of
global warming.

Despite the importance of these other factors, the ideas I
mentioned—ecology and welfare economics—were extremely important for
the environmental movement. They helped to provide its agenda, its
rhetoric, and the perception of common interest underneath its
coalition politics. Even more interestingly, for my purposes, those
ideas—which began as inaccessible scientific or economic concepts, far
from popular discourse—were brought into the mainstream of American
politics. This did not happen easily or automatically. Popularizing
complicated ideas is hard work. There were popular books, television
discussions, documentaries on Love Canal or the California kelp beds,
op-ed pieces in newspapers, and pontificating experts on TV.
Environmental groups both shocking and staid played their part, through
the dramatic theater of a Greenpeace protest or the tweedy
respectability of the Audubon Society. Where once the idea of “the
Environment” (as opposed to “my lake,” say) was seen as a mere
abstraction, something that couldn’t stand against the concrete
benefits brought by a particular piece of development, it came to be an
abstraction with both the force of law and of popular interest behind
it.

To me, this suggests a strategy for the future of the politics of
intellectual property, a way to save our eroding public domain.

In both areas, we seem to have the same recipe for failure in the
structure of the decision-making process. Democratic decisions are made
badly when they are primarily made by and for the benefit of a few
stakeholders, whether industrialists or content providers. This effect
is only intensified when the transaction costs of identifying and
resisting the change are high. Think of the costs and benefits of acid
rain-producing power generation or—less serious, but surely similar in
form—the costs and benefits of retrospectively increasing copyright
term limits on works for which the copyright had already expired,
pulling them back out of the public domain…

How important are these issues?

We can all laugh at the famous xkcd stick figure cartoon lamenting
“sometimes I just can’t get outraged over copyright law”.

But Boyle writes persuasively on this topic too:

Who can blame the stick figure? Certainly not I. Is it not silly to
equate the protection of the environment with the protection of the
public domain? After all, one is the struggle to save a planetary
ecology and the other is just some silly argument about legal rules and
culture and science. I would be the first to yield primacy to the
environmental challenges we are facing. Mass extinction events are to
be avoided, particularly if they involve you personally. Yet my
willingness to minimize the importance of the rules that determine who
owns science and culture goes only so far.

A better intellectual property system will not save the planet. On the
other hand, one of the most promising sets of tools for building
biofuels comes from synthetic biology. Ask some of the leading
scientists in that field why they devoted their precious time to trying
to work out a system that would offer the valuable incentives that
patents provide while leaving a commons of “biobricks” open to all for
future development. I worry about these rules naturally; they were
forced to do so.

A better intellectual property system certainly will not end world
hunger. Still it is interesting to read about the lengthy struggles to
clear the multiple, overlapping patents on GoldenRice—a rice grain
genetically engineered to cure vitamin deficiencies that nearly
perished in a thicket of blurrily overlapping rights.

A better intellectual property system will not cure AIDS or rheumatoid
arthritis or Huntington’s disease or malaria. Certainly not by itself.
Patents have already played a positive role in contributing to
treatments for the first two, though they are unlikely to help much on
the latter two; the affected populations are too few or too poor. But
overly broad, or vague, or confusing patents could (and I believe have)
hurt all of those efforts—even those being pursued out of altruism.
Those problems could be mitigated. Reforms that made possible legal and
facilitated distribution of patented medicines in Africa might save
millions of lives. They would cost drug companies little. Africa makes
up 1.6 percent of their global market. Interesting alternative methods
have even been suggested for encouraging investment in treatments for
neglected diseases and diseases of the world’s poor. At the moment, we
spend 90 percent of our research dollars on diseases that affect 10
percent of the global population. Perhaps this is the best we can do,
but would it not be nice to have a vigorous public debate on the
subject?…

As for myself, I’ve already listed as one of my proposed high
priorities for society over the next decade,

- Patent system reform – to address aspects of intellectual property
law where innovation and collaboration are being hindered rather than
helped
Boyle’s book is a great contribution to the cause of finding the best
“sweet spot” balance between intellectual property and the public
domain. It deserves to be very widely read.

Footnote: Many thanks to Martin Budden for drawing my attention to this
book.


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