Professor Mario Biagioli is a Distinguished Professor of Law and Science and Technology Studies (STS), and Director of the new Center for Innovation Studies at University of California, Davis. To quote the website the Innovation studies center’s research “engages the many dimensions of the process of technoscientific innovation, from those that make it possible to those that constrain it. We focus predominantly on the upstream spectrum of innovation – from the design, articulation, and funding of research programs to the patenting and publication of their outcomes – paying particular attention to the process, practices, instruments, and techniques of innovation and to the conceptual and practical problems of knowledge transfer”. At the law school, he teaches courses on intellectual property in science, and on the history and philosophy of intellectual property.

Professor Biagioli was kind enough to dedicate some of his time to the Foundation in the form of a conversation with Jonathan Hankins. Topics covered were varied, but the major theme running through the discussion is responsibility in the patenting process. Many extremely interesting points came up, from how to lessen constraints on scientific research brought about by Intellectual Property and patent enforcement, to possible shifting goals and objectives in University and private research, and how to define and measure the responsibility implied in the taking or granting of a patent.

What follows is a transcription of the conversation.

Index
Part 1 (this page)
– The debate over IP (Intellectual Property)
Part 2 (second page)
– Patent terms as constraints
– The open source model
Part 3 (third page)
– The problem of responsibility
– The patent as a scientific goal

(Here the Issuu version. Below the HTML version)

The Debate Over IP (Intellectual Property)

MarioBiagioli. I think I should say something about the state of the debate over Intellectual Property (or IP), just to frame things. Among progressive commentators on intellectual property, by progressive commentators I mean people like Larry Lessig, James Boyle and Peter Jazsi and various others, there has been a sustained discussion about how to conceptualize but also almost visualize the large-scale implications of IP protection, to make sure that people who rely on intellectual property come to understand the impact that IP protection is going to have on future knowledge producers, writers, artists and so on. Their argument is quite interesting because it draws on the vocabulary of the environmental movement. Boyle for instance argues that before the development of environmentalism, people conceptualized the impact of development, (industrial development, housing development and so on), in terms of economic models, but those models did not have a way to account or literally to visualize, to represent and give immediacy to environmental costs.
So the standard argument would be you go to the gas station and pay to fill up the tank of your car, but while the cash transaction between you and the oil company accurately represents your purchase of gas, it does not take into account the environmental cost produced by the pollution that you will produce as a result of driving. The environmental cost – the cost of your activities to people and things that are not part to your purchase of gas – is not represented within the transaction, and that is what economists called an externality, a negative externality in this case.

The point that people like Boyle and Lessig have made is that what the environmentalists did was to make people realize that the environment was not represented by those models and in the policies that followed from them, that nobody was accounting for the environment in the context of these transactions, but that instead it needed to be factored in, and prominently so. The environment that used to be effectively just a kind of shadow entity in the context of economic models has become the thing that we all agree that needs to be protected.

They now say very much the same thing about intellectual property. We should think of culture as something like the environment, so when we patent inventions or we copyright our work, effectively we are developing a certain part of the cultural environment, and we need to make sure that we leave enough of it undeveloped, so that future knowledge and artistic and cultural production can take place.
Now at least there is a vocabulary to talk about responsibility in intellectual property, and it is a vocabulary very similar to that of environmentalism. We basically need to think in terms of impact statements. If you build a dam you will have to provide an impact statement of the dam on the environment, and the tendency now in progressive IP discourse is that we need to do the same thing. We should assess the impact of IP protection on the public domain before we apply intellectual property protection because effectively every time we do that we are taking out a piece of nature – a piece of the public domain – and “developing” it.

What intrigues me about this is that responsibility is often a very murky notion, but that the environmental framing of IP clarifies it a bit, maybe just a little bit. It is often difficult to figure out exactly what one is responsible for and to whom or what, or even to define responsibility as a concept. So the new discourse of IP and these analogies it develops between the public domain and the environment are important and useful because they at least provide a vocabulary to talk about responsibility. What I think remains a completely open question is how can you quantify that responsibility? What kind of matrix can you use? To play on the analogy of the environment you might say “well if I develop a certain housing project here I should create a certain number of acres of wetland to offset the impact”. It is not clear what the analogue would be in the case of IP. Can we come up with something like a “carbon footprint” analog for IP? I don’t think that you can…

Jonathan Hankins. Free something in return?

M.B. Well it is a different kind of object. Mostly we think of damage to the environment in terms of the quantity of pollutants that are dumped or the acreage, surface, of the land that gets developed and taken away from nature for good, but in the case of IP the damage is related to time. I don’t think it’s so much about how much text or how many inventions you patent; it is more about how long you keep those texts and inventions out of the free reach of other people. Because that is the nature of the constraint that IP poses to creativity. The constraints that are produced are about the fact that once something has been patented it cannot be touched or copied for 20 years. Environmental metaphors make you think in terms of shielding land from development or limiting the flow of pollutants into the environment, but that’s not the right response to the damage that IP does to the public domain because it doesn’t involve pollutants.
You can say that there’s an awful lot of bad literature, art, film, scholarship, and science out there that’s stinking up our cultural environment, but I don’t think you can blame IP for that. IP doesn’t pollute the public domain – it chokes it by making it private. And while once you have developed or industrialized a piece of land it is pretty difficult and very costly and time consuming to bring it back to natural park quality, as soon as you make patents or copyrighted work publicly available and useable, the damage, so to speak, is gone. They go back into the public domain instantly. So I really don’t think that protecting the public domain is like protecting nature or the environment.

(go to the second part – third part)

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