apresentação - benjamin coriat en final
TRANSCRIPT
From private exclusive IPR innovation regimes
to
« commons-based » innovation regimes
Issues and challenges
Benjamin CORIAT
Université Paris 13, CEPN/CNRS
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 !