[Ip-health] KES Interview - Five Questions for James Boyle

[James Love]

http://www.kestudies.org/ojs/index.php/kes/article/view/29/39

Interview - Five Questions for James Boyle
KEStudies Vol. 1 2007

The following is an interview with James Boyle, the William Neal
Reynolds Professor of Law and co-founder of the Center for the Study of
the Public Domain at Duke Law School. Professor Boyle is a prolific and
influential writer of scholarly and popular articles about intellectual
property policy, including his 1997 article, "A Politics of Intellectual
Property: Environmentalism for the Net?" and his 2003 article "The
Second Enclosure Movement."* Because of his early use of environmental
metaphors to discuss the Internet, intellectual property and the public
domain, we asked Professor Boyle to be our first interview for Knowledge
Ecology Studies. Professor Boyle answered five questions for the editors
in July 2007.

1. Knowledge Ecology Studies is a new journal for policy-relevant
research and commentary about the new knowledge ecology. What does the
term "knowledge ecology" mean to you?

I'd resolve that question into an even more basic one. Why compare
issues of intellectual property and access to knowledge to the ecology
or to environmentalism in the first place? What insights does it give
us? In my own work, the comparison has been useful in the following
specific ways.

The environmental movement had invented the concept of "the environment"
-- a term that had nothing like the meaning we ascribe to it now until
the late 1940's or early 50's. It used this term to tie together a set
of phenomena that would otherwise seem very separate -- pollution,
destruction of habitats, conservation, species extinction, attitudes
towards nature and so on. In doing so, it changed perceptions of
self-interest and helped to form coalitions where none had existed
before. What does the hunter share with the birdwatcher, or the asthma
sufferer in the smog of L.A. share with the salmon fisher in Maine?

The process of the invention of environmentalism, however, was no mere
semantic sleight of hand. Intellectually, it built on the insights of
earth science about the fragile interconnections of the ecology and on
the Pigouvian analysis of economic externalities -pollution about which
we do not make rational decisions, because the cost is "invisible," for
example. It offers a profound critique of an economic orthodoxy built on
the assumption of perpetual growth. I argued that, in a similar way, we
needed a similar movement, and similar set of ideas in intellectual
space. We needed to make visible the invisible contributions of the
public domain, the "eco-system services" performed by the under-noticed
but nevertheless vital reservoir of freedom in culture and science. And,
just as with environmentalism, we needed not only a semantic
reorganization, or a movement devoted to a goal, but a set of conceptual
and analytic tools -- better economic understanding of distributed
creativity such as open source software, more refined analysis of the
"other side" of intellectual property, whether that is the commons or
the public domain, new ideas about how to spur innovation, even
licensing tools such as the General Public License or Creative Commons,
that use property rights to create a "commons" of shared material.

So for me, the knowledge ecology is the network of issues around
innovation, access to knowledge, distributed creativity and so on -- a
network with interconnections we still understand only dimly. The reason
to focus on the knowledge ecology, is to get beyond a 2 dimensional
debate of intellectual property issues, conducted solely in legal terms
-- to bring in alternative ideas about innovation, both big and small,
to focus on claims of distributional justice, to make distinctions
between types of normative claims and knowledge goods. Above all its aim
is to do for the world of knowledge, what ecological awareness did to
assumptions about development and industrialization. By that I mean that
it is important for us to reconsider the simple religion of maximalism,
that the answer to every question is to create more intellectual
property rights. Just as the environmentalists taught us about the
contributions of the ecology to human health, and the need for
sustainable development, so we have to develop a more sophisticated
sense of the balance between intellectual property rights and the public
domain, to understand that it is the interaction between the realm of
the free and the realm of the protected that produces innovation, not
one of them alone.

2. You make several references to the importance of social movements.
Some highly visible groups have focused on the need for access and the
freedom to use works. There are also discussions about new "business
models" for knowledge goods, and the need to address the problems of
earning a living. How do we reconcile the need for access with the need
for investments and paychecks?

Again, I think we can learn from the environmental movement in both of
those areas.

At its best, the environmental movement has worked because of the size
of its big tent, and the diversity of the approaches being used within
it. Greenpeace is very different from the Environmental Defense Fund,
and both are different from the Audubon Society or a land trust. The
combination of methods and perspectives is actually a strength not a
weakness. The Access to Knowledge (A2K) movement strikes me as having
many of the same virtues. As for business models and economic
underpinnings, one of the interesting things about this movement is that
a set of social justice movements (for example, those focused on Access
to Medicines) and a set of groups who are interested in different
business models based around distributed creativity (for example, open
source software developers) have found common cause in criticizing
aspects of the current "1 size fits all" model of intellectual
property.

My own view is a very pragmatic one. Environmentalists initially
distrusted market mechanisms. I think that a majority would now say that
market based systems such as "cap and trade" are valuable tools in
reducing emissions. The same goes for working with groups who aim to
profit from distributed creativity. If companies such as IBM find
shortcomings in our current system of intellectual property and
knowledge transfer, then it is much more likely that those criticisms
will be heard. This will be a much more effective attempt at legal
reform if people are unable to tar it as antibusiness or econophobic.

3. We normally think of intellectual property rights as being synonymous
with the right to exclude -- to forbid publication or copying of books,
to deny a license to an invention, to enjoin someone from using
trademarks commercially. Yet there are other types of intellectual
property rights; those that come with a right to payment, but not a
right to exclude, such as compulsory licenses or so-called "liability
rules." Do you think these have a place in the future of intellectual
property?

Absolutely. Liability rules are found throughout the intellectual
property system. Whether it is someone making a "cover version" of a
song on payment of the statutory fee or the "march in" provisions of the
Bayh-Dole Technology Transfer Act, the idea is to separate the right to
compensation from the right to forbid use. My colleague Jerome Reichman
has spent much of his brilliant career writing about the ways in which
these liability rules can minimize some of the dangers of legalized
monopoly while still  making sure to compensate innovators and
distributors. The case for -- such as access to essential medicines --
and in cases of technological monopoly that is accompanied by strong
"network effects" -- control over a dominant operating system, say.
There is also a powerful case for it in the world of mashups and remixed
art. Some have suggested that we should have an intermediate position
between a finding of fair use for a parody or satire on the one hand,
and the ability of a copyright holder to gain an injunction over
derivative works on the other. With those alternatives, a "remixer"
either has total freedom or none at all. Is there a place for an
intermediate category, in which the copyright owner cannot forbid the
use but is entitled to some share of the proceeds for any commercial
exploitation? The difficulty in all of these cases, of course, is the
issue of the appropriate level of compensation. How do we set that level
without markets to guide us? How does one avoid the dangers of state
corruption or capture? These concerns are real. Still I think that if
one actually looks at the number of places in which liability rules
already work, and work well, it is reasonable to conclude that they
could be used more widely.

4. What are the biggest threats to the knowledge ecology?

The (sincere but mistaken) belief that more rights automatically equals
more innovation. The bizarre exceptionalism that leads us to believe
that intellectual property policy is the only area of regulation in
which we do not require empirical evidence about the actual consequences
of our actions -- as  if drugs or environmental regulations were
approved on the basis of anecdotes and industry endorsement.

Our persistent tendency to undervalue the potential contributions and
overvalue the potential threats posed by openness -- whether in network
design, or the public domain -- and to overvalue the benefits of closed
systems and strong property rights. It is a bias, a tendency -- not an
absolute  mistake. But it skews our policy in the wrong direction.

5. Excluding the talented faculty of Duke and the founders of the
Creative Commons, who is not being read enough these days?

Yochai Benkler. His book, The Wealth of Networks, ought to be required
reading for those interested in the subject.

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* James Boyle, "A Politics of Intellectual Property: Environmentalism
for the Net?" 47 Duke Law Journal 87 (1997). James Boyle, "The Second
Enclosure Movement and the Construction of the Public Domain," Vol. 66
Law and Contemporary Problems, 33 (Winter/Spring 2003).

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_____________________________
James Love, Knowledge Ecology International (KEI)
http://www.keionline.org, mailto:james.love@keionline.org
voice +1.202.332.2670, fax +1.202.332.2673, US mobile +1.202.361.3040, Geneva mobile +41.76.413.6584