[Ecommerce] A Manifesto on WIPO and the Future of Intellectual Property

Thu Sep 9 18:27:05 2004

http://www.law.duke.edu/journals/dltr/articles/2004dltr0009.html

A MANIFESTO ON WIPO AND THE FUTURE OF INTELLECTUAL PROPERTY

James Boyle(1)
Duke Law and Technology Review
September 9, 2004

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
=91products=92 - 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=92s 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 =91Rights Culture=92 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 (=91Extra Large=92) Fits Al=
l?

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 =91TRIPS-plus=92 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=92s
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=92s book did little to put
practical constraints on an anonymous letter writer campaigning on women=92=
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=92s 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 =91closed
source=92 models were legitimate. One high ranking US official in the Paten=
t
and Trademark Office even argued that such a meeting would be contrary to
WIPO=92s 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 remarkable level of innovation;
without copyright, the General Public License would be unenforceable.
People who develop the software get rights under that license, and agree
to limitations, just as in a patent pool or any other deal. Saying that
this flourishing and imaginative use of intellectual property rights is
somehow outside the world of intellectual property is like saying that the
only legitimate use of real property is to sit on it and let no one in, on
any terms. It is absurd. Again, the =91rights culture=92 imposes a blindnes=
s
that curtails our imagination just when it should be most active.

II. The Guiding Principles of Rational and Humane Intellectual Property
Policy

          If we are to have an intellectual property policy that genuinely
promotes innovation, international development and human
well-being, we need to expose the assumptions of the maximalist
rights culture to the democratic scrutiny they have so sorely
lacked. More than 50 years ago, environmentalists taught us to
see beyond a disconnected set of problems in the natural world -
polluted streams and air, disappearing wetlands - to a larger
interconnected system called the environment. Successful
development could only proceed if it were sustainable; the
environmental impact must be part of the analysis. Similarly,
both nationally and internationally, we need to recover the
traditional insight of our intellectual property laws; that it
is not rights that generate progress, but the balance between
rights and the public domain, a balance that is highly context
dependent. One size cannot fit all.

          This argument has implications far beyond WIPO, of course, but
it also implies the need to reorient WIPO=92s mission in the
coming century. WIPO has made some halting steps towards this in
its most recent Medium Term Plan, but if it is to fulfil its
goal of encouraging intellectual activity, and serving the
citizens of the world, it must abandon the tunnel vision of the
maximalist rights culture and adopt the following seven
principles.

1. Balance

          Intellectual property policy must maintain a balance between the
realm of protected material and the public domain. When WIPO
documents speak of "balance" they generally refer to a balance
between producer and consumer, or developed and developing
nations. But the intellectual property system depends on a
different, and neglected, kind of balance. Science, technology
and the market itself depend on a rich "commons" of material
available to all, just as they also depend on the incentives
provided by intellectual property rights. Too many rights will
slow innovation as surely as too few. The WIPO secretariat
should be required to perform an "Intellectual Environmental
Impact Statement" on each new proposal for the expansion of
rights, detailing its effects on the public domain, and the
commercial, innovative, artistic and educational activities that
depend on the public domain.

2. Proportionality

          Each piece of intellectual property legislation imposes costs as
well as benefits on the public. Extending the copyright term
retrospectively, for example, denies a twenty year swath of
culture to the public in order to benefit the tiny minority of
works that are still being exploited commercially. Any other
regulation that enforced massive costs for tiny benefits would
be subject to intense scrutiny. Intellectual property regulation
through WIPO should be no exception. A formal, detailed and
specific statement of costs and benefits should accompany any
proposed action.

3. Developmental Appropriateness

          The history of intellectual property law over which WIPO has
presided is actually one of considerable change, with a
considerable variation in the rules both over time and space, at
different moments of economic development. In tune with this
history, WIPO needs to be a counterforce to the tendency to
impose =91one size fits all=92 solutions worldwide, not the place
where "TRIPS-plus" standards are to be pursued.

4. Participation and Transparency

          Intellectual property law always had implications beyond the
regulation of competitors in the same industry, but today those
implications are so great and so pressing that they demand a
much more participatory and transparent procedure. WIPO needs to
continue the welcome steps it has already taken to increase the
participation of civil society groups in the discussion and
debate. When intellectual property implicates everything from
access to essential medicines and free speech to education and
online privacy, it cannot be made according to the assumptions
of a narrow coterie of lawyers and industry groups.

5. Openness to Alternatives and Additions

          Intellectual property is a remarkable human invention, but it
cannot solve all problems. A pharmaceutical innovation system
built on patents, for example, will not cure the diseases of the
global poor. To solve those problems, and others like them, we
must think more imaginatively about alternative and additional
methods of encouraging and organizing innovation. WIPO, which
has long had expertise in thinking about the limits of
intellectual property, and which has certainly presided over
developments far outside of the narrow range of copyright,
patent and trademark, should become the most prominent global
institution in which those alternative methods are proposed and
debated. WIPO=92s goal cannot be the narrow one of creating bigger
and bigger intellectual property rights. In the words of the
agreement between WIPO and the UN, its goal is the broader one
of "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." In the long term, we
must come to understand that the requirement of a level playing
field in international trade is not that each country adopt a
uniform set of intellectual property rights, but that each
country bear its fair share of global research and development
expenses - however, that process is organized in a particular
sector or area. The answer to the child with sleeping sickness
or malaria cannot be "our tools cannot solve your problems."
WIPO must be the institution in which we join, rather than
fight, the search for alternatives.

6. Embracing the Net as a Solution, Rather than a Problem

          From the mid-1990's onwards, the tendency in international
intellectual property has been to treat the Internet as a threat
rather than an opportunity. Despite the fact that the Net has
demonstrated again and again the possibility of generating,
through dispersed collaborative networks, innovation and
intellectual activity of exactly the kind WIPO is supposed to
foster, policy makers have focused only on the threat of illicit
copying. WIPO should establish a standing committee which
focuses on two key issues: the barriers that traditional
intellectual property erects against global educational and
cultural access (for example, through overly long copyright
terms retrospectively extended), and the ways in which the
traditional rules of intellectual property need to be rethought
when they are applied to the citizen-publishers of cyberspace.
WIPO must work with the new medium, rather than seeking to
cripple it in order to make it more like the old media in which
traditional intellectual property rights arose.

7. Neutrality

          Within the realm of existing intellectual property rights, our
policy must be neutral between different methods of using those
rights to encourage innovation. For example, both closed source,
proprietary and open source, collaborative software developers
use the intellectual property system to generate innovation of
global worth. It is not WIPO=92s job to pick winners in this
competition between different methods of innovation. WIPO should
be as concerned about the impact of software patents on open
source software development, as it is about the impact of
software piracy on closed source software development.
Intellectual property rights are tools, and WIPO needs to
respond creatively and flexibly to the new ways in which those
tools can be used, not view any new method of innovation as
somehow illegitimate.
III. Conclusion

          The ideas proposed here are not radical. If anything they have a
conservative strand - a return to the rational roots of
intellectual property rather than an embrace of its recent
excesses. Patents, for example, have a restricted term and were
always intended to work to fuel the public domain. Copyrights
were intended to last only for a limited time, to regulate
texts, not criminalize technologies, to facilitate rather than
to restrict access. Even the droits d=92auteur tradition was built
around the assumption that there were social and temporal
limitations on the author=92s claims; natural right did not mean
absolute right. Neither Macaulay and Jefferson, nor Le Chapelier
and Rousseau would recognize their ideas in the edifice we have
erected today. In the name of authorial and inventive genius, we
are creating a bureaucratic system that only a tax-collector or
a monopolist could love. But genius is actually less likely to
flower in this world, with its regulations, its pervasive
surveillance, its privatized public domain and its taxes on
knowledge. Even if the system worked exactly as specified, it
could not solve some of the most important human problems we
face, and it would likely hamper our most important
communications technology. And now we foist that system on the
world, declaring that anyone who does not have exactly the same
legal monopolies as we do is distorting trade. True, WIPO=92s
power to undo these trends is limited at the moment. Trade
negotiations have become the preferred arena for expanding
rights still further. But if these trends are to be reversed
there will need to be an international, informed, democratic
debate about the trajectory we are on. WIPO=92s role in that
debate is a central one. It should embrace that role, rather
than seeking to jump onto the bandwagon of ever-expanding
rights.
Afterword

          This manifesto is my attempt to bring greater democratic
scrutiny to bear on some pressing problems in international
intellectual property policy. It was prepared for a Meeting on
the Future of WIPO, convened in Geneva in September 2004 by the
Open Society Institute, the Consumer Project on Technology and
the Duke Center for the Study of the Public Domain, but it
represents my views alone. It attempts to compress into a few
pages, for a non-specialist audience, problems that have had
lengthy tomes devoted to them; in the process a lot of issues
get short shrift or are ignored altogether because I felt they
receive adequate attention elsewhere. I owe gratitude to a
number of people for their comments on, though not necessarily
their agreement with, this work. Thanks go to Arti Rai, Jennifer
Jenkins, Larry Lessig, Sisule Musungu, Yochai Benkler, Justin
Hughes, Cory Doctorow, Anthony So, Jamie Love, Bernt Hugenholtz,
Wendy Seltzer, Vera Franz, Darius Cuplinskas and Terry Fisher.