From private exclusive IPR innovation regimes

to

« commons-based » innovation regimes

Issues and challenges

Benjamin CORIAT

Université Paris 13, CEPN/CNRS

coriat@club.fr

The role of the State in the XXI century

ENAP, Brasilia, September 3-4th, 2015

Aim of the presentation

Focus on some specific institutional arrangements (often

defined as « knowledge commons ») designed to :

– implement shared access to information databases

– generate new « communities of innovators » sharing their

contributions and results

Moreover explore in what sense (and under which conditions)

these new institutional arrangements can give rise to a new

regime of innovations, (defined here as a « commons

based » innovation regime)

Evaluate to what extend such an innovation regime can be

considered as a solution and an alternative to the prevalent

one, largely based and grounded on a system of private

and exclusive IPRs

Organisation of the presentation

Elements of context and history

The Open Science principles and why they matter so much The 80’s and the alteration of the OS principles

The new emerging commons-based innovation regime

– The FLOSS (Free/Open Source Software) main

principles and achievements

– E. Ostrom and the theorization of “knwoledge

commons”… and beyond

Final considerations : implication for state policies

1.

Context : why the need of new

organizing principles for research

and innovation activities

Once upon a time … (prevailed) :

the Open Science principles

• Context

– WW2 and the Manhattan project. The Bush report.

Science as the « Endless frontier »

– Powerful investment of the State to create a strong public

knowledge infrastructure in basic research (Univ and

Public Labs)

• Content

– Free access and open disclosure for basic research Arrow : clear frontier between non patentable (« basic upstream research) and

patentable matters : basic research is developed under OS principles

– Peer review as a mean of guaranteeing quality of the

publications

– Rule of priority (powerful incentive)

Efficacy

OS principles combined with « kingdoms of technologies »

(i.e a syst of IPRs covering only downstream inventions)

revealed to be a very efficient system to promote R&D and

Innovation activities

The whole system is congruent with the rise of the large

« chandlerian » firms (“fordist era”)

Most of the research is performed inside firms and remains

in it. So during that period (1945-1975) prevailed a rather

narrow and restricted « market for inventions »

For developing countries : a period of “ learning by

imitating” : (Japan, Korea, Taiwan ….)

The dramatic changes of the 80’s Dramatic extension and strengthening of the prevailing

IPR regime

• Bayh-Dole Act : patenting of publicly founded research

• New patentable matters : living entities (human genes and

the like) …; software & math algorithms (Biotech et TIC)

• Changes in Copyright Laws (extented to 70 years)

• Changing frontiers of what used to be the « public domain »

• Super 301 dedicated to protect the IPRs of US firms

• TRIPS and worldwide « upward harmonization » of the

prevailing international IP standards : end the development

based on “learniog by imitating

Rise of a so called « Second Enclosure Movement »

(Benkler et al) focused not on naturel resources but this

time on informational ones

Which practical consequences ?

• Increasing uncertainty on patent quality (« Patent

Thicket » )

• Increasing Risks and Litigation costs

• Threats inside the Academy on « Scientific Commons »

• Rise of « secondary markets » for patents and IP rights,

(no more for their use in innovation practices but only

for extracting money through the threat of litigation

against innovators)

– « Trolls » (RPX)

• Increasing tensions in international relations (TRIPS) )

– Drugs and access to care in poor countries …

– Biopiracy ….

– IP as an obstacle to the spread of « clean technologies »

to face climate change…

2. The building of « knowledge

commons » as alternative solutions to

the dramatic extension of exclusive

property rights

Two series of answers and initiatives emerged and

became key references

• A movement lead by professionnal software designers

and users aiming at re-establishing a space of

collaboration and innovation, free from the constraints

generated by patents and other exclusive IP rights: the

Free/Libre Open Source Software movement (FLOSS) [

also : Wikipedia, Open Publishing …]

• Ideas and solutions provided by a solid empirical and

theoretical tradition rooted in the works of E. Ostrom

(and Indiana University scholars) on CPR and other

forms of « natural » or « non natural » resources based

commons

Reactions and alternatives to the new

enclosure movement

The Free Libre/Open Source

Sofware (FLOSS) movement

FLOSS main achievements

• In the beginning : just a simple initiative taken by

professional actors against the privatization and the

enclosure of software that initially, (the1960’s and 1970’s)

were provided as « public goods » and were produced in a

cooperative way

• Then, through the FLOSS foundations emerged a series of

institutional innovations

– Different types of licenses were designed

guaranteeing free access to source codes, with

different levels of constraints for the users and developers

– Extension of the principle under the name of creative

commons, or scientific commons

• General meaning : institutionalization of new mode of

producing innovation through shared access : birth of

the notion of « communities of innovators » (Von Hippel)

The copyleft license as a constitutive rule for the

buiding of a new type of public domain

Principle

• Key point of the Copyleft (GPL/GNU) licence : the developer must re-

put in the public domain its contributions (« GNU is not Unix »)

Implications

1. Constitution of a public domain guaranteed as such : «anyone can

add but not withdraw »

The copyleft license is not a space of « absence of property », it is a

space of common and shared property; it is an institutional construct

guaranteeing free access and free use of the innovations generated

by the commons, but only to those who accept the rules of the

games

2. The commons are based on new incentives : benefit from the

creativity of the other stakeholders if you accept that they benefit from

your own creativity

… Opening to a series of new

practices & business models

Beside and along with the free and open source

software initiatives arose a series of innovative practices

…

Creative commons based on innovative licenses

Open innovation : often based on different models of

Crowdsourcing in R&D

… Opening to a series of new business models linking

firms, professional associations, state agencies,

individual contributors « (smart users …)

Elinor Ostrom

From natural-resource based

Commons to Knoweldge

Commons

Origins of the Concept

• The 80’s and the search of sustainable forms to fight the exhaustion

of most tropical lands (a research programm launched by the NRC in

the early 80’s)

– Field studies on different types of traditional (or renewed) forms of

CPRs (fisheries, forests, pastures … )

– Comparative studies : domains privately managed vs. guaranteeing

shared acces to the resources

• First results

– Many « cooperative » forms of administration and management of

such CPRs were more efficient when local actors and workers were

associated to the management of the CPRs

– The management of the CPR requires specific governing structures

and governing mechanisms suited to the needs of the « commoners »

– Theory : Critique of « tragedy of the commons » view (Hardin 1968)

Ostrom seminal contribution : Beyond the notion of

« exclusive rights », the importance of « bundle of rights »

Ostrom shows that in practice Property Rights coulld be

and often are distributed in a series of (shared) rights,

namely

Authorized Users

• Access : right to have access to the resource

• Withdrawal : right to take benefits from the resource

Administrators

• Management : implies the right to manage the resource (the CPR)

• Exclusion : right to decide who will benefit from the resource and to fix

the rules of the game for the authorized users

• Alienation : right to rent or sell to stakeholders one or many of the

pervious rights

In complete congruence with the contributions of the FLOSS

movement and achievements.

Ostrom seminal definition of commons

According to Ostrom commons should be defined by a

conjunction of 3 elements

• The resource shared by the commoners (stakeholders)

• The bundle of rights associated to the exploitation of the of the resource

• The governance structure (GS)

– The GS defines the rules in use

– The GS is the place where conflicts are managed and mitigated

– The fundamental role of the GS is to guarantee the reproduction of the CPR as such

What is specific to knowledge communs (KCs) ?

• KCs are made of technical, scientifical or cultural

collections of informations organized on open acces

between partners among whom a given dsitrubtion of

rights is managed by a structure of governance.

• Three distinctive traits of KCs / vs Natural Ressource

Commons

– Nature of the goods : based on non rival goods

– PR: in addition to withdrawal, there is a right to enrich

the stock of shared data with new information (free

software, Wikipedia, microbial commons… )

– Governance structure : oriented not towards the

conservation of the resource but towards addititivness

cumulativeness and innovation

Main contributions of the « Commons » approach

to innovation Ostrom (and FLOSS theorists) allows to go beyond the

alternative for/against IPRs, the idea is not the claim for

the end of IPR systems but :

• Thinking to new instutionnal arrangements combining

in innovative ways the different attributes of PR (access,

withdwal, addition, exlcusion, management, alienation)

distributed between the different stakeholders associated in

a common

• In such a way to build new incentives to innovate, based

not on competition between owners of exclusive rights,

but on new mode of cooperation allowing to take

advantage from shared acess to information

3.

Implications for state policies

How state policies are (or should be)

impacted ? • Rethink the way of assuming the classical prerogative

and responsibilities of the state as investor, law maker

and regulator

• Guarantee a sufficient level of investment in basic research

(universities, public lab’s) and key technologies

• Law maker and regulator : redesign IPR laws and the

knowledge infrastructure to favor the spread of the new

emerging ways of generating innovation through P2P and

open source platform

• Learn from national and foreign experiences (India and

pharmaceuticals…)

• Promote new behaviors of the state conceived as « a

partner » : facilitator, enabler, …

The state as “enabler” and “facilitator” to

promote commons-based innovations

Arises a series of new challenges

• Identify the right stake holders

• Guarantee the sharing and distribution of the different

rights among stakeholders in a given knowledge

commons( and/or community of innovators)

• Contribute to the definition of the rules of the game :

(withdrawal, additiveness, benefit sharing … )

• Contribute to the definition of the appropriate

« governance structure » and governance mechanisms

Already many successes in the field of software, shared

data bases, …

In rapid progress in biosciences

Final word : state, citizens and

democracy

Conventional models of democratic governance, are

generally conceived as governments acting on behalf

of citizens

Commons-based innovation communities clearly

belongs to the new model : a model where the state is

acting “together with” the citizens

Such a new behavior of the State is able to promote at

the same time a better economic efficacy, and a

progress in democracy

coriat @club-internet.fr

Thank you !