A manifesto on WIPO and the future of intellectual property

2004-09-28 00:00:00


In this Manifesto, Professor Boyle claims that there are systematic
errors in contemporary intellectual property policy and that WIPO has
an important role in helping to correct them.

I. Introduction

Intellectual property laws are the legal sinews of the information
age; they affect everything from the availability and price of AIDS
drugs, to the patterns of international development, to the
communications architecture of the Internet. Traditionally, those
laws have been made as state-facilitated contracts among affected
industries. To the extent that "the public interest" ever figured in
those discussions, it was assumed to be limited to the eventual
ability to purchase the 'products' - drugs, films, books - whose
creators and distributors receive their incentives from intellectual
property rights. Yet intellectual property rights are not ends in
themselves. Their goal is to give us a decentralized system of
innovation in science and culture: no government agency should pick
which books are written or have the sole say over which technologies
are developed. Instead, the creation of limited legal monopolies
called intellectual property rights gives us a way of protecting and
rewarding innovators in art and technology, encouraging firms to
produce quality products, and allowing consumers to rely on the
identity of the products they purchased. The laws of copyright,
patent and trademark are supposed to do just that - at least in some
areas of innovation - provided the rights are set at the correct
levels, neither too broad nor too narrow.

The World Intellectual Property Organization, or WIPO, has built
itself around the attempt to promote and harmonize intellectual
property laws internationally, though the organization's actual
responsibility within the UN system is significantly broader:
"promoting creative intellectual activity and . . . facilitating the
transfer of technology related to industrial property to the
developing countries in order to accelerate economic, social and
cultural development." WIPO is only 34 years old, but its history
stretches back 120 years, to the treaties of Paris and Berne. During
that period, WIPO and the international secretariats that were its
precursors have done work of great value. But times have changed
since 1883, and even since WIPO itself was founded in 1970; at the
same time, some of the oldest lessons of intellectual property law
have apparently been forgotten or ignored. WIPO has a uniquely
influential role to play in setting innovation policy worldwide. But
fundamental changes need to be made in both role and attitude if the
organization is to serve its real goal - the promotion of innovation
in science, technology and culture for the benefit of the peoples of
the world.

A. The Maximalist 'Rights Culture' and the Loss of Balance

– As intellectual property protection has expanded exponentially in
breadth, scope and term over the last 30 years, the fundamental
principle of balance between the public domain and the realm of
property seems to have been lost. The potential costs of this loss
of balance are just as worrisome as the costs of piracy that so
dominate discussion in international policy making. Where the
traditional idea of intellectual property wound a thin layer of
rights around a carefully preserved public domain, the contemporary
attitude seems to be that the public domain should be eliminated
wherever possible. Copyrights and patents, for example, were
traditionally only supposed to confer property rights in expression
and invention respectively. The layer of ideas above, and of facts
below, remained in the public domain for all to draw on, to
innovate anew. Ideas and facts could never be owned. Yet
contemporary intellectual property law is rapidly abandoning this
central principle. Now we have database rights over facts, gene
sequence, business method and software patents, digital fences that
enclose the public domain together with the realm of private
property . . . the list continues. And while these rules differ
from nation to nation, the pressure is to harmonize them only
upwards, adopting the strongest protections of facts, the longest
copyright terms, the greatest scope of patentability.

– Intellectual property policy is in the sway of a maximalist
"rights-culture" which leads debates astray. The assumption seems
to be that to promote intellectual property is automatically to
promote innovation and, in that process, the more rights the
better. But both assumptions are categorically false. Even where
intellectual property rights are the best way to promote
innovation, and there are many areas where they are not, it is only
by having rules that set the correct balance between the public
domain and the realm of private property that we will get the
innovation we desire. Yet trade treaties require very high "floors"
of international intellectual property protection while rarely
imposing "ceilings," even though too much intellectual property
protection is just as harmful, and as distorting of trade flows, as
too little. This asymmetry is reflected in the international
policy-making process.

– As an organization that specializes in the subject, WIPO should be
comparatively immune from the fallacy that intellectual property
policy should always aim towards stronger rights. But since the
alternative is to make intellectual property policy through trade
organizations in which the developing countries have even less
influence, in many areas states have used WIPO to join, rather than
to restrain, the intellectual property rights arms-race. This is
deeply unfortunate, because it abdicates the role that WIPO could
and should have. In fact, the maximalist agenda is not good policy
even for the developed world. It represents the interests and
attitudes of a remarkably narrow range of businesses, and does so
with little democratic scrutiny; participation by civil society in
the formulation of intellectual property policy has been far
narrower than in any field of comparable importance. To have the
specialized agency within the United Nations that is responsible
for maintaining the correct balance in the intellectual property
system, buy into this narrow and biased maximalist rights culture
would be little short of a tragedy.

B. WIPO and International Development: One-Size ('Extra Large') Fits

– The history of development in intellectual property is one of
change. The countries that now preach the virtues of expansive
minimum levels of intellectual property protection, did not
themselves follow that path to industrial development. Intellectual
property protections changed over time, responding to the internal
and external economic and technological context. Even within
industries in particular developed countries, patterns of use of
intellectual property typically vary as the industry matures and
develops. Compare the freewheeling beginnings of Silicon Valley to
its current well-stocked legal departments, for example. Given this
history, one would expect that international intellectual property
agreements, whether made through trade treaties or in the context
of WIPO, would be highly sensitive to the idea that "one size does
not fit all" when it comes to intellectual property policy and
developing countries - who themselves are hardly a homogeneous
group. Though WIPO and the Trade Related Aspects of Intellectual
Property Rights (TRIPS) both make claims to flexibility, critics
have pointed out that the actual practice has been to push the
developing countries to adopt 'TRIPS-plus' levels of protection -
while progress on making humanitarian and regional exceptions, even
ones clearly contained in international agreements, has been
grudging. Again and again one finds the same assumptions: Rights
are always the best path to innovation. More rights means more
innovation. International treaties should set minimums (but not
worry about maximums). One size fits all. And it is "extra large."

– This "one size fits all" attitude has been widely condemned, in
both the developed and developing world. In the words of the UK
Commission on Intellectual Property, "Intellectual property systems
may, if we are not careful, introduce distortions that are
detrimental to the interests of developing countries. Developed
countries should pay more attention to reconciling their commercial
self-interest with the need to reduce poverty in developing
countries, which is in everyone's interest. Higher IP standards
should not be pressed on developing countries without a serious and
objective assessment of their impact on development and poor
people. We need to ensure that the global IP system evolves so that
the needs of developing countries are incorporated and, most
importantly, so that it contributes to the reduction of poverty in
developing countries by stimulating innovation and technology
transfer relevant to them, while also making available the products
of technology at the most competitive prices possible." Yet because
the debate on intellectual property policy is so narrow - both in
terms of intellectual assumptions and groups participating - the
"one size fits all" attitude is often the one that dominates.

– Even where flexibility and exceptions are built into the
international regime, developing countries often lack the technical
and legal expertise to take full advantage of them. In intellectual
property law, exceptions and limitations are deeply important. They
are part of the policy rather than merely a suspension of it. Thus
it is just as important to WIPO's mission to enable developing
countries to make use of the flexibility built into the system as
it is to persuade them to adopt and implement the latest draconian
digital rights management legislation. In practice, however, the
resources flow only one way.

C. WIPO in an Online World: Fighting Rather than Embracing the Net?

– WIPO now presides over the harmonization of a set of laws that
regulate the citizen-publishers of cyberspace as well as protecting
traditional publishers from competitors in the same industry. The
reach of the law is markedly different: it regulates more people
directly, regulates them with different effects, through different
means, and implicating different norms. The acts that triggered
intellectual property protection were once the preserve of major
industrial concerns. Those who were regulated knew the law
intimately. They were well-represented, both as the law was made
and as it was applied, and they were on guard against a well-
understood set of economic threats from their horizontal
competitors. But the new citizen-publishers of the Net are not
well-represented in domestic and international councils and their
interests are most certainly not limited to "passive consumption."
They cannot meet the threat of a lawsuit or prosecution by turning
to in-house lawyers. Can we therefore apply the assumptions of the
last 120 years to the policy process that makes these rules? Or are
we to say that their work, their contribution to culture and
debate, is somehow unimportant?

– Intellectual property rules not only affect a different audience,
they also directly implicate different values. More than ever, they
have direct and measurable impact on privacy protection, freedom of
expression, the design of the communications infrastructure and
access to education and cultural heritage. If the policy process
was ever merely a technocratic effort to facilitate the interests
of affected industries, it cannot claim to be so any more. Yet
policy making has been slow to keep up with these changes, both in
process, and content.

– Debates at WIPO frequently seem blind to the change in the level
of "spillover" of the agreements it promotes. Rules that were made
to stop one Victorian publisher from copying another's book did
little to put practical constraints on an anonymous letter writer
campaigning on women's suffrage. But the practical and
technological effects of intellectual property regulation of the
Internet might very well have effects on a modern-day human rights
activist seeking anonymity, or a whistle-blower trying to reveal
some corporate misdeed. This does not mean that we should give up
regulating the Internet. But it does mean that we must do so with
far more sensitivity to the effects of that regulation - regulation
that is increasingly inscribed in technological form.

– The communications technology possessed by millions of citizens
has capacities for reproduction and distribution that were once
reserved to the giants of industry. This fact has been featured in
debates over intellectual property policy largely as an appeal to
the threat of unauthorized distribution and piracy. But it also
presents another paired risk, one that has, sadly, not received as
much attention; that our intellectual property rules actually
hamper the ability of the Internet to generate intellectual
activity, encourage new methods of innovation, and distribute
culture and education worldwide. The Internet is the most
democratic speech technology yet invented, one with the greatest
potential of allowing freedom of expression to those who do not own
a printing press or a television station. It allows us to dream of
offering, to a truly global audience, access to the educational,
cultural and scientific materials of the world. Our intellectual
property rules need to embrace this fact, rather than legislating
that the Internet become like some more familiar and less
democratic medium.

– Policy makers have had 20/20 vision about the dangers of almost
costless copying, but have been blind to its benefits - both to
traditional content companies and to the larger society. In fact,
it is remarkable to consider that the areas where the Internet has
succeeded most readily - for example as a giant distributed
database of facts on any subject under the sun - are traditionally
those in which there are little or no intellectual property rights.
The software on which the Internet runs is largely open source,
another Internet-enabled method of innovation to which policy
makers have been slow to adapt. The Internet offers us remarkable
opportunities to achieve the real goals that intellectual property
policy ought to serve: encouraging innovation and facilitating the
dissemination of cultural and educational materials. Yet policy
making has focused almost entirely on the Internet's potential for
illicit copying. An example demonstrates the point.

– Copyright term limits are now absurdly long. The most recent
retrospective extensions, to a term which already offered 99% of
the value of a perpetual copyright, had the practical effect of
helping a tiny number of works that are still in print, or in
circulation. Estimates are between 1% and 4%. Yet in order to
confer this monopoly benefit on a handful of works, works that the
public had already "paid for" with a copyright term that must have
been acceptable to the original author and publisher, they deny the
public access to the remaining 96% of copyrighted works that
otherwise would be passing into the public domain. Before the
Internet, this loss - though real - would for most works have been
largely a theoretical one. The cost of reprinting an out-of-print
book or copying and screening a public domain film was often
prohibitive. But once one adds the Internet to the equation, it
becomes possible to imagine digitizing substantial parts of the
national heritage as it emerges into the public domain, and making
it available to the world. Now this is truly fulfilling the goals
of copyright: encouraging creativity, and encouraging access. It
has positive effects on education, on development and on
creativity. Instead, the process of international "harmonization"
grinds on, relentlessly extending copyright terms retrospectively,
locking up cultural and educational materials that could and should
be available to the world. The "loss" caused by copyright here
rivals and exceeds any possible loss from "piracy"; yet one will
listen in vain for this loss to be mentioned in international
debates on the subject. There are many other instances; the erosion
of copyright formalities has massive unintended negative effects in
the online context, for example, but the maximalist "rights
culture" seems to be oblivious to all of them.

D. Blindness to Alternatives: In and Out of the System

– Even when the system of intellectual property works just as it is
supposed to, it clearly will not solve certain pressing human
problems. A pharmaceutical innovation policy that relies solely on
patent incentives for example, will never supply adequate medicines
for the diseases of the global poor. By choosing to focus our
innovation policy in the pharmaceutical area solely on the
provision of patent incentives, we are choosing to have children
die of malaria and sleeping sickness. This is not a criticism of
drug companies, or even of the current system of patents - both are
working as they are designed to. It is a criticism of the belief
that this system is the only way to produce innovation. It is thus
incumbent on organizations such as WIPO to be more hospitable to
proposals that attempt to reform, or to supplement the intellectual
property system, or to offer alternatives to it. It is tragic that
it has taken 120 years for us to return to the exploration of
mechanisms for encouraging innovation - such as state sponsored
prize systems whose products are distributed at marginal cost -
that were widely discussed and even sometimes practiced in the
years before the Paris and Berne conventions. Sadly, that history -
and the many thoughtful criticisms of the limits of intellectual
property policy that it was part of - seem to be lost to
contemporary debates in WIPO. The rights culture is myopic, but it
also suffers from historical amnesia.

– Alternatives can also exist within the current system - using the
rights currently provided. Open source software and collaborative
efforts in science and medicine have shown that there are many ways
to produce high quality innovation, innovation that the
intellectual property system should facilitate and encourage in the
same way it encourages more traditional, proprietary methods. Yet
policy-makers have sometimes seemed either uncomprehending or
actively hostile to such attempts, as if the intellectual property
system required fidelity to a certain business-model of innovation.
A perfect example is the remarkable hostility shown by some
national governments to a recent proposal that WIPO explore the
potential of these open and collaborative efforts. The proposal was
warmly received by WIPO staff. Yet it was squashed by pressure from
companies pursuing a different business model, who were able to
rely on the language of the "rights culture" to convince state
decision makers that only 'closed source' models were legitimate.
One high ranking US official in the Patent and Trademark Office
even argued that such a meeting would be contrary to WIPO's goal,
which is "to promote intellectual-property rights. To hold a
meeting which has as its purpose to disclaim or waive such rights
seems to us to be contrary to the goals of WIPO." The level of
ignorance revealed by such a comment is lamentable. The open source
software community uses intellectual property to achieve its