CONFERENCE REPORT:
THE POLITICS AND IDEOLOGY OF
INTELLECTUAL PROPERTY, MARCH 20-21, 2006, BRUSSELS

Hotel Renaissance, with support from the Rockefeller Foundation and the John D. and Catherine T. MacArthur Foundation

Contents

Executive summary

Day One
1) Welcome Session
2) Panel 1: IP and the Knowledge Commons - Rhetoric and Ideology
3) Panel 2: IP and the Knowledge Commons - Lobbying and Advocacy I
4) Panel 3: IP and the Knowledge Commons - Lobbying and Advocacy II
5) Panel 4: IP and the Knowledge Commons - Political Parties

Day Two
1) Panel 5: IP and the Knowledge Commons – The Politics of Access to Knowledge
2) Panel 6: IP and the Knowledge Commons – The Politics of New Technologies
3) Panel 7: IP and the Knowledge Commons - New Political Paradigms
4) Panel 8: Concluding Comments and Reflections
5) Participants

Executive Summary

Intellectual property protection needs profound reassessment if it is to do more than defend vested interests. That was the dominant message from the two-day TACD conference on The Politics and Ideology of Intellectual Property.

The broad-ranging discussions stretched from the philosophical basis for intellectual property to the most concrete examples of how lobbying had influenced the fate of the EU's software patent directive.

Key points to emerge from the two days of debate included:

• a clear sense that consumers and civil society are starting to make an impact on the global debate on intellectual property, and that the digital communications revolution is putting stronger tools into their hands to continue the campaign.

• an equally clear sense that defenders of intellectual property are reinforcing their own resistance to any weakening of protection, and are energetically pursuing extension of rights.

• there is still no consensus – nor agreed methodology for computing - the critical point at which protection of private interests ceases to be a gain, and starts to become a loss for innovation and the public interest.

• a "one-size-fits-all" approach is inappropriate for intellectual property, in relation to different product categories and in relation to the different countries and regions of the world.

• it is no longer adequate for intellectual property discussions at international level to be restricted to intellectual property professionals.

• the concept is only slowly gaining currency that it is possible to share information without any loss to the transmitter of information.

Full Conference Report

Day One - March 20, 2006

Welcome and introduction

In his welcome to the conference, Jim Murray (Director, European Consumers’ Organisation - BEUC) characterised intellectual property as a global issue, and "a fight not yet won, but a fight that must be won". BEUC encounters problems with both the politics and the ideology of IP. It is faced with a European Commission that is not prepared to discuss what rights consumers might have in this field, but only what exceptions they might be occasionally entitled to. And it is faced with quasi-ideological assumptions that intellectual property rights are fundamental in the same sense as human rights; that intellectual property rights supersede all other rights, including privacy; and that more intellectual property automatically means more innovation and a better life for all. Against this background, any criticism of current intellectual property rights has been automatically viewed as an attack on the rights of private property or on the prospects for growth. But questions are increasingly now being raised by supporters of pro-market and pro-competition points of view, in the EU and the US, about the effectiveness of intellectual property regimes. This is because the anti-competitive effects of intellectual property are becoming more apparent and more damaging, and it is seen to be turning into an obstacle rather than a motor for development and growth. In the context of the evolution towards access to knowledge for all, there is now hope of new approaches winning through.

Sharing the welcome spot, fellow TACD Steering Committee member Ed Mierzwinski, of the US Public Interest Research Group, noted how attention is switching to an increasing focus on the consumer aspects of intellectual property. The battlegrounds are no longer just the specific issues of genetically modified organisms or privacy. The key questions now emerging are of a more political nature, such as whether there will be sufficient access to medicines or knowledge, and how much consumers will have to pay. The very term ‘intellectual property’ is now under scrutiny because of its intrinsic lack of balance. What is now at stake is whether a small number of powerful companies - with an ideology that is inherently in conflict with the public interest - control the decisions made on intellectual property, or whether civil society will play a bigger role. And this conference could play a major role in helping raise consciousness within civil society about the issues and the need for engagement.

Panel 1: IP and the Knowledge Commons - Rhetoric and Ideology

There is a growing awareness of how consumers are affected by intellectual property, but the public politics of intellectual property is very new, according to Peter Drahos of the Australian National University, who recalled how business was allowed to exercise unfettered private politics in the corridors of power as it wrote its own rules for the knowledge economy back in the early 1990s.

In a scholarly review of the concepts of property, Drahos elaborated the notion of the "positive common" - a state where everyone is joint owner of all things, as the product of consent, for preserving resources over time through collaborative activity. Crucially, he distinguished it from the concept of the "negative common", under which assets can be appropriated from the common without the consent of others, and subjected to contract.

It is this negative common approach that drives the politics of business in intellectual property. Not only does business favour taking for itself what is already there, but it is actively hostile to the emergence of self-organised communities that create new assets for the common - such as providers of free software, the modern equivalent of indigenous communities that are sustainable and efficient. In consequence, business seeks to destroy a form of economic organisation that is superior to – and even threatens – its chosen negative common approach.

Drahos also criticised the rhetoric surrounding claims that rights are needed to obtain market efficiency. Not only is this an unacceptable language of privilege, but it also disguises deep inefficiencies, on the pretext of bringing order to markets that would in reality be improved by opening them up. By conferring intellectual property rights, governments are in effect claiming to pick winners, and on two erroneous assumptions: one, that they have sufficient information to make that selection; and two, that there is a linear relation between intellectual property and innovation. The inadequacies of the first assumption are demonstrated by history. And the second assumption is questioned by most economists studying intellectual property rights, who tend to believe that after a certain point there is more loss than gain from strengthening rights.

Philippe Aigrain of Transversales challenged the entire basis of current thinking on intellectual property, which has been rendered largely obsolete by the arrival of the information era. The information era is not about digitization and copying, but about perception, analysis, comparison, production, creation, exchange, distribution, evaluation, assessment, recommendation, criticism, quotation, reuse, representation... The internet and all that goes with it offers the opportunity to move beyond the few-to-many information society, and to build a many-to-many information society. People can become practitioners rather than just consumers or professional producers: the information society is already eliminating the distinction, even if the few-to-many world is trying to impede the process, because it is scared of losing the monopoly grip it has enjoyed for so long.

In Aigrain's view, in these new circumstances, positive intellectual rights are in fact capabilities, rather than legal or contractual concepts, and they will be subject to a much more powerful and self-sustaining filtering than any legal framework can provide: they will either become effective, or they will disappear. The corollary is that we should not grant those types of property-like restriction rights or execution modes that are incompatible with the continued development of information commons and a many-to-many continuum information society. The debate is no longer about physical resources: for information, a new paradigm is needed, a new concept of relationships between creators, producers and users.

James Love, Director of the Consumer Project on Technology, warned against artificially turning an abundant commodity into a scarcity, by inappropriate use of intellectual property rights over information. He made a powerful plea for more precision in the intellectual property debate, and for a clearer focus on the interests of society as a whole.

A new approach is needed to reconcile the public interest in accessing the products derived from new knowledge, with the public interest in stimulating invention. Success will depend in part on a more accurate understanding of terminology. The "knowledge commons": the combination of knowledge and information that is not owned by anyone (broadly speaking, the public domain), or which is made available to the public by its owners, for free, or which can be freely accessed and used by the public, in areas where rights are limited by legal rules or by custom.

Intellectual property is itself a questionable term, which has acquired a propaganda value, and the aggregation of terms tends to confuse people. In reality, intellectual property covers not just patents, copyrights, trademarks, and trade secrets, but also a long list of other rights, including broadcaster rights, webcaster rights, rights of publicity, plant breeder rights, sui generis database protection, rights in pharmaceutical test data, orphan drug exclusivity, pediatric testing exclusivity, boat hull protections, publication rights, DRM/TPM measures, contractual protections of non-copyrighted materials, protection of traditional knowledge, folklore, access to genetic resources, material transfer agreements, and many other fields. In terms of broadcasting or podcasting, "rights" might more accurately be termed "power", "restriction", or "monopoly" – even the "power to steal" or "power to expropriate".

And the selective use of terminology further confuses the issue, argued Love. Defenders of intellectual property rights tend to use negative terminology for the activities of those seeking greater access (such as "piracy", "theft", "counterfeit"), and positive terminology in association with their own activities: "innovation", "wealth-creation", "incentive" and so on. Similarly, a loaded vocabulary is used by those seeking greater access, describing the exercise of rights in pejorative terms such as "monopoly", "privilege", or "anticompetitive", and their own actions in association with positive terms such as "freedom", "sharing", or "access".

The massive systems and resources deployed for promoting private goods can serve as a model for the knowledge commons too – but not to protect it or restrict access to it. Instead, efforts should be made to promote it, because unlike private goods, the knowledge commons is not a finite resource. The debate should turn not on disputes over legal niceties specific to one form of restriction, but instead on access to medicines - with new global frameworks for medical R&D, and on access to knowledge – not just music, but ranging across science and political discourse.

Discussion focused particularly on the extent to which the exercise of intellectual property rights inhibited access to knowledge even when creators wished to put it at the disposal of the widest public. Bruce Lehman of Akin Gump, Strauss Hauer & Feld rejected any suggestion that the world of rights holders is trying to impede the emergence of the information age by maintaining a stranglehold on free diffusion of material. While a rights holder may justifiably choose to protect his own rights, he has no power to limit the free choice of any individual creator to dedicate work to the public domain so it can be shared on a many-to-many basis. Everyone can join this community if they want to, as open source movement demonstrates, and nothing prevents it, he argued. But Aigrain defended his thesis that in practice, the interdependence of many creations and inventions allows holders of intellectual property rights on a component to block access to the whole, frequently frustrating some creators' wishes to contribute voluntarily to the information commons.

Panel 2: IP and the Knowledge Commons – Lobbying and Advocacy I

Susan Sell of George Washington University depicted intellectual property as a servant that had become a master, and that had turned into a mechanism for depriving the world of access to books, seeds drugs, rather than facilitating it. Academic and scientific publications, drugs and seeds are vital to life chances, and intellectual property should also respond to social goals in terms of public health, malnutrition, and human capital through knowledge. But expanded rights have been accompanied by marked economic concentration, and current economic thinking behind intellectual property fails to take account of which publics are being served by the system. In consequence, small farmers in developing countries are left poor and unprotected.

Governance ought to incorporate a broad range of stakeholders rather than only the narrow group it has been focusing on, but it is difficult to promote constructive discussion in the complex institutional and regulatory context for intellectual property. Meanwhile, the baseline has shifted away from public access and towards private reward, and the system of protection is so multidimensional that a geneticist wishing to develop golden rice for distribution in poor countries was confronted with 70 patent holders across 32 organisations, requiring a year's delay and high cost to obtain access. Rich countries that built their wealth on lax intellectual property protection and discrimination are now rigorous defenders of intellectual property rectitude – and are determined to stop developing countries behaving as they used to.

As the current rules evolved, consumers were remote from policymaking. They are only now, in new alliances, often under a human rights rubric, starting to force the corporate world to take account of broader issues of access to knowledge, medicines, health, or sustainable agriculture. It is still an unbalanced struggle owing to the asymmetric power of the two sides, and the corporate lobby has intensified its efforts to influence governments towards rigorous interpretation of intellectual property rules, and to impose economic pressure on developing countries to sign up in bilateral agreements to more than what is provided for under international rules such as TRIPS (known as “TRIPS-plus provisions”).

Sells' advice was that consumers will have to make it more expensive for intellectual property defenders to fight for the status quo – taking advantage of opportunities such as avian flu to argue for compulsory licences on medicines, exploiting EU-US differences, such as on intellectual property on software, and building more adventurous alliances with other activist groups sceptical about intellectual property.

Sangeeta Shashikant of the Third World Network lamented the shift towards ownership of material that should be available for the common good, with the progressive tilt in favour of intellectual property owners, mainly from developed countries. She outlined some of the worst excesses of patent grabbing – notably on naturally occurring compounds, genes or gene sequences from plants which are traditionally grown in developing countries or are staple food crops. And she detailed how legislation and litigation was progressively favouring the interests of corporate patent holders over small farmers. She offered a nightmare vision of an uncontrolled stampede to auction off technological and cultural heritage in a context of increasing conflict and dissension.

International agreements strengthening intellectual property – particularly TRIPS – had been negotiated with little consultation, involvement or understanding among developing countries, she said, and had imposed new rules on them such as 20-year drug patents, in return for still-unfulfilled promises of increased market access in agriculture. Developing countries remain subject to strong pressures to accept tough intellectual property regimes.

As civil society becomes more aware of the impact of intellectual property on essential goods such as medicines or educational materials, the possibilities increase for emphasising the priority of health and development over commercial interests. It was civil society pressure that in part led to the Doha Declaration on TRIPS and Public Health in 2001. Awareness is also growing of biopiracy, and there is the start of action by developing countries and non-governmental organisations to counter it. Similarly, campaigns against patents on life forms are gathering momentum. Overall, civil society has triggered arguments over the need to evaluate the intellectual property system, particularly in the developed countries, to assure better balance between public and private interests, and to allow the policy space for each country to determine and design its own system, according to its own needs.

Sisule Musungu of the South Centre suggested that the underlying assumptions of international agreements on trade and intellectual property should be questioned. The comparative advantage justification that has traditionally been advanced – with the north exporting intellectual property while the south gains market access for agricultural goods in return - is no longer adequate in a more complex world. What is valid for developing countries is not necessarily valid for the least developed countries, who risk exclusion unless the language of advocacy lobbying is reassessed.

Musungu was particularly sharp in his denunciation of the closed mindset that rejected or resented interventions from least developed countries on intellectual property matters. The challenge for advocacy is to make clear that policy on intellectual property should not be made only by people who have worked in patent offices.

In discussion, the complexities of the challenges were underlined. While TRIPS has theoretical merits in offering flexibility over compulsory licensing and development priorities, developing countries are reluctant to take advantage of these possibilities because they are threatened with US trade sanctions or FDI droughts. While all developing countries have some interests in common, the approach to intellectual property – even among the more developed of them – varies widely, with China now seeking dominance in a patent "gold rush", Brazil taking a soft line on genetically modified organisms but a tough line on software patents, and India accepting drug patents but rejecting software patents. And even if there might be economic justifications for imposing higher intellectual property standards so the north can obtain higher rents from the south, the interests of consumers – both north and south – should also be taken into consideration in policy making.

Panel 3: IP and the Knowledge Commons - Lobbying and Advocacy II

Sharon Bowles MEP recounted her experience of the EU's ill-fated Computer Implemented Inventions draft directive – the so-called "software patents" law. As a European patent attorney, she felt that the directive was so badly phrased that the status quo would be preferable. She also found the discussion of the proposal ill-sourced and ill-informed, and was shocked by the level of ignorance in the face of complexity. The eventual rejection of the proposal represented, however, a probable loss to interoperability.

Jonathan Zuck of the Association for Competitive Technology warned against shrillness and polarisation obscuring the substance of the debate of intellectual property – as had been demonstrated by the software patents debate, which turned into a cop-out, and a victory for nobody. He made a plea for intellectual property to be seen as an equaliser: by allowing small inventors and small companies the chance to play on the same field as major corporates, it can counterbalance the exercise of power by the few over the many. The reward it offers for risk is available to have-nots as well as to haves.

Florian Müller of NoSoftwarePatents.com also declared himself a defender of intellectual property rights, and criticised the overgeneralised and oversimplified EU discussions on software patents. He underlined the need for greater accuracy and fidelity in identifying the real interests and stakes in intellectual property protection. He felt the debate had overlooked many – particularly smaller firms - who didn't adopt a high-profile. It had been unduly influenced by full-page press advertisements funded by major companies, and had misinterpreted open source software as a job-killer rather than a cost-saver.

In discussion, numerous calls were made for the bar to be raised for the issue of patents, with tougher requirements on showing progress and real innovation, to prevent big firms using patent protection to seal off access to the market. The proliferation of patents made it almost impossible to conduct effective searching to avoid infringement. The possibility of differential patents was also raised – with greater protection being provided for categories (such as pharmaceuticals) that might be considered to deserve more protection than, for instance, software.

Panel 4: IP and the Knowledge Commons – Political parties

David Hammerstein MEP, from the Green Group in the European Parliament, maintained that open knowledge is a new way of perceiving public good and private good, based on the awareness that innovation is not diminished by sharing. It is a mistake to follow a purely faith-based view that intellectual property automatically generates innovation, or jobs, or social or ecological cohesion. By conferring a temporary monopoly, intellectual property rights impede progress. The real issues are to ensure that public investment in research – such as in the EU's framework programmes - flows back into the public good, and to prevent over-strict intellectual property stifling innovation among smaller firms, limiting the flow of scientific journals, or imposing restrictions on digital libraries. It is not a discussion merely about items of knowledge on pharmaceuticals or about pieces of music: it is a new philosophy of society – with genuine free movement of services. It is important therefore to avoid taking a blinkered view. What is needed is a broader debate on genetic and environmental issues, on the risks of undermining the common wisdom of millions of rural dwellers, or on the risks of patents blocking progress towards a dynamic service-based knowledge economy.

For Bruce Lehman of Akin Gump, Strauss Hauer & Feld, intellectual property is not a party political issue, as was demonstrated by the alliance formed between Greens and the European People's Party in the European Parliament over the software patents directive. But on grounds of his own personal convictions and his professional experience, he disagreed with claims that intellectual property retards growth or handicaps smaller firms. He was proud of his own record in Democrat administrations in helping stimulate economic growth through inventions protected by intellectual property. He stood by Democrat extensions of patent protection to new areas of technology, and by what he cited as the results: companies that had been embryonic have now come to assume 80% of the world market for software. Far from stifling growth, intellectual property had helped convert a depressed area in 1975 into what is now Silicon Valley. The US' ability to create jobs displaced from manufacturing has come from IT industries that have grown because of their links to strong academic institutions in an environment of intellectual property protection.

But he admitted to a regret over TRIPS – which he negotiated, and which he still believes in and makes no apologies for. If he were negotiating it now he would do it differently in one respect, to avoid what has been, he said, a huge failure for the US. The underlying bargain of TRIPS has not been respected on both sides, Lehman maintains: as the counterpart to increased intellectual property protection, the developed countries allowed market access to manufactured products from low wage countries – to the extent that even the Ipod is manufactured in China. But breaches of intellectual property protection in advanced developing countries are undermining the deal with piracy rates for software in China are as high as 90%. The developed countries should have introduced labour and environmental standards into the TRIPS agreement to ensure a more level playing field in manufacturing.

Rufus Pollock of the Foundation for a Free Information Infrastructure also felt there are no strong political party positions on intellectual property. Unlike the predictable right/left splits on labour law or monetary policy, there is no discernible ideological differences between political groupings in any country on intellectual property. The result is that voting patterns in legislatures are highly unpredictable – ranging from 100% in favour of copyright extensions to total splits on the software patent directive.

The underlying cause is an imbalance in the representation of interests. Although there are two distinct sets of interest – rights holders and the general public – it is rare to find the interests of the general public clearly set out. By definition, the public is dispersed, and – unlike rights holders – does not constitute a highly organised group. In consequence, a handful of companies dominate the music industry, and the debate over rights is conducted unevenly. The public tends to be more interested in listening to music than in debating rights issues related to it.

Pollock predicted that this situation would, however, change dramatically in the future. Awareness is growing of the importance of intellectual property issues, and civil society is starting to build positions accordingly. The debate about intellectual property and innovation is in the same phase now as the debate on environment was 40 years ago – before Greenpeace, climate change, or Kyoto. And it will evolve in similar fashion, with civil society involvement raising the quality of the debate and ensuring better representation of the interests of the public.

John Howkins of the Adelphi Charter accused the political class generally of paying insufficient attention to such a vital subject as intellectual property. In no other area of public policy is there such political ignorance and hot air. While there is a general expectation that politicians have a duty to go out and collect the evidence on subjects they form policy on, in intellectual property this basic preliminary exercise is considered unnecessary.

In an area of such vital importance to the future of every economy, this attitude is unpardonable. National patent offices are the central banks of a creative economy, and their assets should be available to nourish the growth of an economy based on imagination rather than on land or capital. In the new information age, there is the prospect of building wealth not on inherited money but on inherited ideas. The constant development and refinement of ideas – by those engaged in the exercise out of their own sense of self-fulfilment as much as those doing it for profit – can generate a new form of economy with successive innovation.

The lack of coherent or informed intellectual property policy – such as Howkins claims to have encountered in the UK, Brazil, France, or China – leaves governments incapable of striking the right balance in the inevitable trade-off between protecting innovation and providing for the public interest. Meanwhile, governments and international organisations are nonetheless continuing to make and modify rules, frequently strengthening property rights without a clear understanding of the impact on the public or on developing countries. Civil society must force politicians to do the research necessary to enable them to answer tough questions about where intellectual property moves from gain to loss for society.

The discussion revealed wide, though not unanimous, agreement that intellectual property policy discussions are unpredictable and often ill-informed, and that decisions tend to emerge which are not in consumers' interests, largely because politicians are easy prey to industry lobbyists vaunting intellectual property's merits in stimulating innovation and growth. The pharmaceutical industry was repeatedly criticised for its avaricious approach to intellectual property. Even where health emergencies might argue for suspension of patent protection on potentially life-saving treatments in short supply, other forms of intellectual property protection are still likely to be invoked to prevent copying, and the pharmaceutical sector remains firmly attached to the principle of injunctive relief to prevent infringements, it was alleged. The industry was also accused of frustrating the supply of generic medicines to the developing world, and of preferring to see people die rather than to sacrifice its intellectual property.

Day Two - March 21, 2006

Panel 5: IP and the Knowledge Commons – The politics of Access to Knowledge

Leonardo Cervera Navas of the European Commission’s DG Internal Market reassured the meeting that access to knowledge is on the political agenda at present, and that the Commission wants constructive dialogue to enrich its reflections. He outlined the state of progress with EU legislation in the area of intellectual property.

The Commission is now reflecting on the follow-up to its evaluation of the 1996 directive on the legal protection of databases, and is evaluating the balance it has struck between the public and rights holders, whether the rights granted are too restrictive, and whether the sui generis rights it created for database producers has resulted in a harmful concentration of publishers. The four options under examination are to repeal the directive, to withdraw the sui generis rights, to modify the directive in other ways, or to retain the status quo.

An evaluation of the 2001 directive on copyright in the information society has been postponed from 2004 because member states were late in transposing it. A study is now underway to review the impact of copyright on knowledge, consumer rights and reasonable expectations in copyright law, member states' transposition of exemptions and limitations of the directive, and the use of technical protection measures – as well as the problems that have emerged for right owners or commercial users and consumers in educational and scientific communities.

The EU's digital libraries initiative to promote access to cultural heritage and access to scientific information is going ahead in the face of an inevitable debate about rights. A recent online consultation indicated that right-holders supported the adequacy of the present copyright rules and the need to fully respect and enforce them, while cultural institutions highlighted problems in the present copyright framework that could potentially undermine efficient digitisation and digital preservation.

Antony Taubman of the World Intellectual Property Organization offered a defence of the system of intellectual property as "not so bad": it is more a question of how it is applied. Presenting a brief history of the emergence of intellectual property, he demonstrated that the system is itself the result of long efforts to provide outcomes that meet the principles of balance in policy tensions between public and private interests. Exclusive rights do not automatically conflict with public interests.

Continued success of the system depends on stronger, clearer and better harmonized patent examination, drawing from a broader and better documented prior art base (such as in the case of traditional knowledge), so that administrative efficiency becomes a concrete contribution to resolving policy tensions. WIPO's work on traditional knowledge and cultural expressions has at times raised anxieties both from proponents and opponents of the intellectual property system. But it is based on extensive and assiduous contact with indigenous sources, and the reflections in the specially-convened intergovernmental conferences are heavily influenced by the input from more than 120 indigenous and local communities.

The intellectual property system is criticized for misappropriating traditional knowledge or neglecting the interests of indigenous and local communities. But these very concerns are often expressed in terms that echo core principles of the IP system: promoting equity and balance, reconciling private and collective interests, recognizing distinctive origins and the legitimate source of innovation and creativity, suppressing free-riding and unjust enrichment, defending distinctive reputations from illegitimate exploitation, and providing for rights of attribution and integrity. This could provide the essence of an emerging consensus.

Despite objections from all sides, the aim is to define what intellectual property is and what it can be and do – to protect religious symbols or traditional medicines, to reinforce the right to say no, or to place conditions on how a knowledge resource is used (such as through equitable sharing of benefits). No outcome is excluded from the ongoing work, including possible development of an international instrument. But it can not be a panacea for all challenges faced by threatened indigenous communities.

Declan McCullagh of CNET dissented firmly with some of the views previously expressed in the meeting. He rejected the view of community ownership as an unconditional idyll: on the contrary, it tends to reinforce ecologically damaging behaviour, he argued, citing the way the American Plains Indians killed all the buffalo once they acquired horses, or the way the Malecite Indians of New Brunswick lost control of their beaver colonies to white trappers for lack of enforceable rights. And, he asked tellingly, "When did you last wash a rental car before returning it?"

He also argued that intellectual property is an intensely partisan issue. In the US, the Democrats get most of their funding from the entertainment industry, and the biggest lobbies are the movie and entertainment lobbies, the MPAA and the RIAA – generally headed by Democrats. It is no coincidence that the House and Senate judiciary committees are non-partisan on patents and trademarks, but much more partisan on other areas of intellectual property – notably on copyright. Recent years have demonstrated strong crisis-driven federal responses to ensure government insistence on copyright enforcement. There have been two bills to permit “fair use” circumvention of DRM - both introduced by Democrats. And the objective is principally rent-seeking.

Such activity has often been the subject of benign neglect – or "rational ignorance" - among other politicians or even among civil society. It is only to be expected, however, with so much legislation going through Congress; it is virtually impossible to follow everyting, and the process is further confused by "bundle purchasing" or horse-trading to push packages of unrelated legislation through in the course of alliances with wholly different objectives and interests.

In discussion, it was clarified that the European Commission was not intending to re-examine term length in its review of the copyright directive, but was aiming to assess the impact of a possible term extension. The Commission was also against the creation of 50-year rights for webcasters through a WIPO Treaty, but would be guided by what EU member states decide – although it will consult civil society. The Commission's current guiding principle is to foster on-line business and grant strong protection to rights holders.

The question was also raised as to whether WIPO is institutionally constrained from following the development agenda, given that 90% if its income comes from the patent fees – and hence from big US multinationals who have little sympathy for the development agenda.

Panel 6: IP and the Knowledge Commons – The politics of new technologies

Mark Cooper of the Consumer Federation of America analysed the political and ideological conflict surrounding the birth of collaborative production – that product of the digital revolution of the past quarter century, with its reduced emphasis on private incentives for production and a clear recognition of the public value of circulation. The emerging paradigm overturns established theories of allocation of scarcity and incentives of exclusion, clearly exposing the weakness that private provision does not always produce socially desirable outcomes. In circumstances where increased consumption by one person does not decrease the amount available for others – archetypically, in the case of digital information – allocation is irrelevant and exclusion is worthless.

Instead, the act of sharing increases the amount and value of the good available to others. Digital computation platforms linked in multi-scale and robust communications networks allow instantaneous distribution, interactivity and cooperation. Bringing a higher level of cooperation into the production function allows the sharing of critical resources to lower production costs, reduces the gap between consumers and producers, and lowers transaction costs, while tapping the energy of group-forming networks on the demand side increases value. This process is threatened by insistence on market transactions, imposition of property claims at keep points, or exclusion from groups.

Faced with this new phenomenon, incumbent regimes are resisting their dethronement. Content producers strive to restore their value chains, invoking state protection, and trying to tangle the new collaborative modes in old legal categories and constraints. Consequently, battle must be joined. The intellectual property rules should be rewritten to fit the technological age in which we live. The political economy of regime change in technology requires that consumers fight to preserve and enhance the historic opportunity that presents itself.

Luc Soete of the United Nations University made a plea for recognition of the particular character of human evolution: that success has come from collaborative action and altruistic behaviour. The new age of communications technology offers new opportunities for building on this strength, against a background of “creative destruction” of previous assumptions and practices.

The “creative activation” that new technologies make possible also has major implications for ownership. Unlocking access and activating users leads to the discovery of a huge diversity of creativity, which goes beyond commercial interests, but in which commercial opportunities are not eliminated.

Ownership rights in this new context require a different approach from those that have customarily been applied to physical public goods with a value from scarcity – where the sustainability of a public fish pond may, for instance, be better assured by granting ownership to an individual who then auctions the exploitation rights. A new wave of property rights for information might provide a new opportunity for monetizing value. ICT allows a radical increase in codification, access and tradability of information and communication.

But the appropriation of value out of information and knowledge depends in the first instance on the degree of “exclusiveness”, and there are clear limits to intellectual exclusion in respect of information and knowledge. The new circumstances demand a new behavioural economy.

On the basis of a straw poll he conducted among the audience, Kenneth Cukier of The Economist inferred that there was consensus at the meeting only on the concept of "no more rights". But at the same time most participants evidently wanted the maintenance of some intellectual property protection, even though, in an era of on-line collaboration, it is often seen as a barrier – for medicines access, or in terms of law suits against teenage downloaders, or through the abusive operation of patent trolls.

The answer to perceived ills in the intellectual property system is not to dismantle it, but to improve the application of what are essentially sound rules. It is false to assume that innovation will happen anyway without the incentives of intellectual property protection. Individual creativity is no longer enough: innovation depends too on the efficient allocation of resources, law, management, and intellectual property, particularly since so many inventions today are small increments – such as in the Ipod. And the research budgets of large corporations are based largely on the defence that is possible - through intellectual property - of small improvements.

Intellectual property turns innovation into a transferable asset, providing liquidity for knowledge, a market for technology and ideas, and serving as a bank for capital and as insurance against risks. It can hardly perform this role without some degree of asset exclusivity. However, in terms of the balance between public and private interest, intellectual property hasn't kept pace with other developments, and is now being – justifiably - pushed towards reform by non-governmental organisations as they become involved in patent policy discussions.

Much of the discussion turned on how to make valuations of information, since classic economics was an insufficient tool. Concepts of "use value" rather than "cash value" were advanced, along with suggestions of expanded methodologies for GDP measurement to incorporate opportunity costs or values of free access. Methods of measurement remained an open question, and further reflection was felt necessary on how to incorporate happiness into measures of GDP, and on how to resuscitate the link between economics and philosophy.

Panel 7: IP and the Knowledge Commons - new political paradigms

In the view of Tom Faunce of the Australian National University, the multinational corporate push for globally increased intellectual property – or what he chose to term "global intellectual monopoly privileges" (IMP) - is causing a world crisis in the governance of knowledge, development, culture and wisdom. As enhanced patents restrict access to existing and future medicines and medical technology, millions of poor people will suffer and die. Concentrated corporate ownership and control of knowledge, technology, biological resources and culture fosters growing inequality of access to education, knowledge and technology, undermining development as freedom, democracy and social cohesion. The resultant plundering of the knowledge commons for private gain undermines altruistic and compassionate conceptions of the meaning of being human, as reflected in the previously influential normative traditions of bioethics, international human rights law and comparative religion.

It is not enough for a system just to fuel the economy. It is also reasonable to expect wisdom in a system. A public goods-focused institutional structures should provide legislation conducive to not-for profit corporations, constitutional protections of universal access to health care, education, social security and accident compensation, government-funded research, legislative protection of whistleblowers, and strong anti-trust laws and administrative agencies.

Some comfort may be derived from selected current developments, including the WIPO Development Agenda, the WTO general agreement on provisions of public goods, and the increased roles for non-government organizations in normative decision-making. But there is an urgent need to go further, with, for instance, a safety and cost-effectiveness treaty for medicines, and similar provisions in bilateral trade agreements. This could give leverage over the global industry on commercial-in-confidence principles, marginal costs of production, parallel evaluations, and joint clinical trial registers. It should be accompanied by global licensing of multinational corporations, imposing taxes payable to the United Nations, and creating responsibilities for mutually negotiated specific communities or public goods projects.

The time is ripe to chart the principles for a future in which IMPs are linked with the great aspirations of humanity as expressed in normative systems such as bioethics, international human rights law and comparative religion. Without such a change humanity may drift into a shallow, materialistic future controlled by greedy Boss Sheriffs whose dominance will provoke an equally aggressive response from the disempowered through radical forms of religion.

It is time to abandon the "one-size-fits-all" approach in intellectual property, and replace it with evidence-based policy making taking more account of the particular characteristics of each country and sector, said Sisule Musungu of the South Centre. Otherwise, misconceptions will triumph, and the interests of the least developed countries will be overlooked as the EU and the US battle it out in international fora with the likes of Brazil, India, or South Africa.

Leaving aside the risk it has posed of provoking the US into abandoning WIPO, how should the success of the WIPO development agenda be measured? Not, perhaps, in terms of treaties agreed – but certainly in the way that it has changed the nature and terminology of discussion: no-one in WIPO now talks about protecting intellectual property; instead they talk of promoting intellectual creativity and transfer of technology.

Misconceived polarisation still tends to bedevil the debate, with an underlying (and geographically and culturally myopic) assumption that those who are against intellectual property must be communists. But at least intellectual property defenders no longer consider it irrelevant to have discussion with those who don't believe in intellectual property. The influence of a widening range of economic and other analyses is starting to be felt in the debate, and there is greater differentiation and sophistication in the approaches.

An urgent response is needed to the extension and intensification of exclusive intellectual property rights that liberal globalisation is promoting, argued Mohamed Ben Ahmed of the University of La Manouba in Tunisia. He not only questioned the logic that associates intellectual property protection with innovation. He suggested the alternative of a collaborative and sharing approach in which knowledge is seen as a public good – a "Knowledge Society for All".

By placing access to knowledge at the head of equality concerns, a global movement can defend the social aims of intellectual property, recreating its balance and reintroducing a humanist and cultural dimension into the legal apparatus. The new paradigm in which knowledge is seen as a public common is an opportunity to extend collective intelligence, and to deepen and enlarge cultures in their diversity on values of solidarity, equity and mutual respect. This framework helps extend citizenship and democracy, by protecting authors, researchers, and innovators while allowing access to and use of all knowledge on the planet.

The discussion ranged over how much developing countries risk – in terms of lost alliances – when they sign up to the intellectual property camp, and how far any generalisations about the interests of LDCs are meaningful or useful, given their heterogeneous natures and interests. The race towards harmonisation was severely called into question. But despite some obvious attractions, dismantling TRIPS is not necessarily the answer. And abolishing LDC obligations under TRIPS would be a two-edged sword too, since it would leave unprotected LDCs' own innovation systems. Unless TRIPS was to be abolished internationally for all countries, exemptions for LDCs could marginalise them. The legitimacy of democratic process was also questioned – given that there are rarely national debates before sighing up to international treaties, and that, according to some extreme views, parliamentary democracy is no more than window dressing to legitimise oligarchy, that is subservient to the interests of corporate CEOs.

Closing Session: Where do we go from here?

Jill Johnstone of the National Consumer Council urged consumers to take control of the negative and exclusive language deployed in discussions of intellectual property, to resist characterisation of consumers as pirates and thieves. She also wanted to see consumers demanding that policymakers provide more hard evidence for their decisions and for their expectations from them. And she urged greater open-mindedness about forming alliances – even temporarily – to counteract the unpredictability of political debate on intellectual property.

Sangeeta Shashikant of the Third World Network questioned the purpose of intellectual property rights, and, even if they are accepted to be conducive to innovation, how much intellectual property is needed. More rights is not the answer: the motivations for innovation for top scientists are not intellectual property. The nature and scope of rights may need changing according to the product protected, since a grant of exclusive ownership may have costs for society: it is necessary to decide where to strike the balance between public and private interest on a sustainable evidence-based system – for vital items like seeds, medicines, learning tools, where there could be a different approach than for mechanical inventions or software.

Ed Mierzwinski of PIRG is convinced that the old political model is finished. As civil society becomes more organised, it is starting to overturn the system in which powerful government defends powerful interests. The internet is largely responsible for this change in the way we think about the world, replacing the former "push" model of communication, and transforming consumers into producers. But as the tool to this new democracy, the internet needs defending.

Joëlle Rogé of WIPO insisted on her organisation's neutrality. It is WIPO's role to have meetings with all sides, to be open and to give information and provide opportunities for consultation and discussions.

Peter Drahos of the Australian National University offered two guiding principles. One was to allow for experiments in property – since experimentation in property rights aided 19th America to grow. But nowadays the US runs an intellectual property system that reflects its current "winner-takes-all" mentality. That may work well for the US - with its massive university and venture capital infrastructure - but it doesn't necessarily translate well to other countries. The other guiding principle is to tolerate diversity. Diversity makes for stability. Countries should be allowed to view their economy through different value sets. A single world policeman should not be trying to harmonise everything.

Bruce Lehman of Akin Gump, Strauss Hauer & Feld wished intellectual property rights were as important as this conference had suggested, but in reality they are not the controlling political or economic influence in the world. He is comfortable with the idea of changing the intellectual property terminology – as far as he was concerned, it was necessary only that something was defined so as to be able to put intangibles into a container and allow them to be traded in commerce, which is where the incentive aspect is at its strongest. And while intellectual property can be used in an abusive and anticompetitive manner – just as all property rights can – there is nothing in the intellectual property system that constrains the business model for trading intellectual property – anyone can give it away whenever they want.

Kenneth Cukier of The Economist sees intellectual property as a means rather than an end – and counselled against dogmatic views on how policy is crafted, as long as it attains its desired objective. His preference is for a market-based approach because of markets' ability to aggregate information. Since it is a man-made creation, man can decide and define how to use it and what goals it should serve. And while it has brought benefits, balance must be maintained, and nuances are needed where there's a market failure or where it's been captured by market interests. But if intellectual property reformers want to influence the evolution of intellectual property, they will have to raise their game – or they will be outgunned by the big and better-trained battalions defending the status quo.

Mark Cooper of the Consumer Federation of America offered a list of concrete goals that reform should be aimed at. It ranged from protecting fair use and preserving the right to share, to liberating orphan works and dormant works, and developing cost-benefit analyses of the non-commercial values of intellectual property.

Jonathan Zuck of the Association for Competitive Technology rejected the simplistic polarisation that still infected the debate – it is not a question of big versus small (whether talking of companies, countries, or levels of wealth). There are also small entrepreneurs, and their interests should not be forgotten merely because of frustration at abuses by big corporations.

The last word fell to James Love, Director of the Consumer Project on Technology, who welcomed the wide range of inputs that TACD was receiving, and that enriched its understanding of issues and policies. He recognised that better methods of communication were needed, but felt it was some real achievement that civil society and consumers are no longer being patronised by people in power as they were ten years ago. Future success depended on continuing to to work collaboratively and constructively, and to ensure that the debate is not conducted only at the level of technical specialists.

Peter O'Donnell, March 2006

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