Between July and September, 2013, The American Assembly surveyed members of the ‘Global Congress on IP and the Public Interest’ community to learn more about their research and priorities. We invited responses from anyone who had either been to a Global Congress, been invited, or expressed interest in coming to one–a total of around 600 people. We received around 90 responses.
While the responses aren’t a representative sample of the community’s views on these issues, they make for interesting reading and are well worth a look for those interested in the intersection of research and IP policymaking. Broadly speaking, they describe a community focused on understanding how innovation systems for science and culture work, from rights and incentives to enforcement and changing cultural practices.
Rather than attempt a synthesis of the responses, we’ve decided to present this material in two ways.
First, we’re publishing selected, edited, and–in some cases–revised responses that offered relatively detailed accounts of the field or specific recommendations for future research. The first of 4-5 installments is below.
The goal isn’t full representation of the community (however one might define it) or an authoritative list of its priorities, but simply to share back as many of the detailed suggestions and insights as we can.
If this process is useful to people, we can think about doing it again (and making it better and more inclusive) ahead of the next Global Congress. If you didn’t participate but want to share a few paragraphs about research needs, here’s the place to do so. If we receive a bunch of new ones, we’ll publish them.
Thanks very much to all who participated.
Andrew Rens, Duke University, USA
Looking ahead at research needs, I continue to see a lot of value in large, collaborative, comparative projects. I outline three promising possibilities.
1. Realizing human rights to health, education and speech
A large-scale, long-term project is necessary to address opportunities to develop access to knowledge and access to medicines as human rights through litigation. Developing analyses of the intersection of human rights and intellectual property through the lens of human rights litigation will ensure that the analyses remain grounded and pragmatic and immediately useful outside the academy.
A first stage would consist of a series of research studies looking at past litigation successes, such as those of Treatment Action Campaign in South Africa, and also identifying potential litigation targets around the world where fundamental rights arguments could be brought to bear. The project would then refine the kinds of arguments, tactics and evidence needed for the litigation targets. The initial focus could be on recording what worked in the HIV/public health movements before a generation of activists who fought those battles move out of the field. Another early focus would be how civil society actors reduce the expense of litigation.
A second stage would lay the theoretical ground work necessary for civil society to begin work on the targets in much the same way as the many articles on the right to health in South Africa laid the groundwork for the subsequent constitutional litigation. A third stage would involve teaching and training as much as research, to enable civil society organizations and their lawyers to engage in impact litigation. This would require a large network of scholars and activists in developing countries, the creation of a journal or other outlet for research studies, and training for human rights lawyers.
2. Trade Treaties and Democratic Theory
It is important to explore the ways in which trade treaties have become mechanisms to sidestep democratic processes. Although the opacity of trade treaties has been criticized by the Access to Knowledge movement, the circumvention of democratic has not received much attention from disciplines concerned with democracy, especially the theorization of democracy. Political science, political philosophy and constitutional scholarship haven’t yet analyzed the anti-democratic turn in international trade regulation.
3. Interconnections of access to knowledge and access to medicines
A project that explores the interconnectedness of access to medicines and access to knowledge would address the problem from a multi-disciplinary perspective including economics, other social sciences, technology policy, philosophy as well as law. The hoped-for outcome would be the creation of a common analytical framework or at least language for access to medicines and access to knowledge researchers.
Andrew Bridges, Fenwick & West LLP, USA
I believe that there needs to be comprehensive mapping of all the forums that shape policies to govern the activities of technology and Internet intermediary companies. This includes intergovernmental organizations and events like WTO, WIPO, OECD, and IGF; other groups such as ICC and BIAC; national governmental agencies such as USPTO, CR Office, USTR; trade associations such as IIPA, IIPI, INTA, IACC; and legal groups such as ABA, AIPLA, IPO.
Susan Sell, George Washington University, USA
I would like to see more country-level research on how various countries seek to integrate intellectual property policies into broader national goals. (For example, China’s “indigenous innovation” program is an interesting effort).
I also would like to see scholars making more connections between the economics of innovation, intellectual property law, and the various roles of multiple institutions in intellectual property policymaking. For instance, the Federal Trade Commission in the US has been alert and active in punishing competition-killing deals between brand-name and generic pharmaceutical firms, while the Justice Department has been lax.
Mohammed El Said, U Central Lancastershire, UK
The Arab region remains absent from the majority of research conducted in the area of IP, public health and access to medicines. more empirical research is needed regarding the impact of FTAs on the region, including data exclusivity, patent extension terms, lack of generic competition …etc.
Nagla Rizk, American University, Egypt
It is important to develop better indicators for knowledge and innovation generated in developing countries, which often escape conventional measurements (such as the World Bank Knowledge Assessment Matrix , which, for example, cites the number of patents as an indicator of innovation. Clearly this does not apply to developing countries where a good part of innovation is informal). Results of this work would redefine the global knowledge assessment metrics and maps. Such metric(s) would capture the value emanating from informal innovation and knowledge sharing in developing countries. Jeremy deBeer has done work on informal innovation, and I am thinking perhaps (only perhaps) the work of Eric Von Hippel on user generated innovation may be of interest. In any case, this work would require a first phase of theoretical conceptualization of the index, and a second one involving extensive fieldwork on the ground to apply the index.
Sean Flynn, American University, USA
One key question is: How do countries break out of the upwards IP ‘ratchet’—the tendency of IP policy to advance via new, higher floors? Two types of research seem useful: case studies of the renegotiation of IP obligations downwards, and precedents or clear pathways for the withdrawal from trade or investment agreements that contain onerous IP obligations.
Ahmed Abdel-Latif, ICTSD, Switzerland
A growing number of developing countries are elaborating IP policies and innovation strategies. Yet there is overall little comparative analysis concerning the key features and implications of these policies and strategies and, in particular, the extent to which they are consistent with the broader development objectives of these countries in the areas of public health, education and the environment.
Many developing countries are engaged in policies concerning the commercialization of publicly funded research following the Bayh-Dole model in the US. A number of countries have or are in the process of enacting legislation for this purpose (Brazil, South Africa, India). However, there has been little comparative research about how this framework is being implemented and what lessons could be drawn so as to ensure that the development needs and specific socio-economic circumstances of these countries are taken in to consideration in these policies.
Nick Ashton-Hart, CCIA, Switzerland
I would say generally that international IP will not move much now given patent reform in the US (again, maybe real this time…), the beginnings of a copyright review there, and in the EU, definitely a copyright review. These two countries/blocks won’t want to see any substantive changes while they are deciding what they want to do.
The result I think is that research needs to open better windows on what works and what doesn’t work about these systems. For example, there isn’t nearly enough research on the transaction costs of licensing of copyright as an activity in its own right—despite how inefficient all the manual, company by company, country-by-country licensing of creative works is. Where there is a solution that may help – such as extended collective licensing in Scandinavia, there’s really little research on how and why it works.
There’s also not enough research exploring what happens to money paid by licensees. Academic research should test the conventional wisdom about how little of the pie makes it to creators, from what, and why. For example, digital money is almost all getting kept by middlemen and not going to creators thanks to the structure of contractual relations from the bricks and mortar days, yet this is getting little or no attention from researchers.
Finally, there is also very little research on how large or small a portion of the money that should go to developing country rightsholders actually makes it there, despite a long history where artists from small countries actually permanently leave their homeland simply because if they don’t they’ll never make a living. Copyright has been broken in fundamental ways even in its primary market-serving guises. Unfortunately this hasn’t gotten much attention; there’s been a great deal of attention on fair use, libraries, etc. but the best way to make clear that copyright doesn’t work is to document how badly it works at dealing with everyday, mainstream uses, uses that every consumer is aware of and has participated in.
Here’s Part 2 on Copyright, Users’ Rights, and Enforcement