Knowledge and Science as Commons

(from Vocabulary of Commons, article 62)

by Prabir Purkayastha

Knowledge and science as commons

They hang the man
And flog the woman
That steals the goose from the commons
But let the greater villain loose
That steals the commons from the goose
(English folk poem, circa 1764)

One of the key determinants of today’s world is the speed with which innovation takes place and is brought within the sphere of production. The growth of technology is a continuous driver of the economy. While a lot of discussions have taken place on the monopoly created through the ‘reproduction’ of the innovation via patents, relatively less attention has been focussed in the way innovation takes place and the structures within which innovation is either facilitated or retarded. Does the networked world of today carry new possibilities for alternate structures of creating knowledge and innovation that are currently being impeded by the patent model of incentivising innovation? Is it possible to expand the notion of ‘commons’ for developing these possibilities?

The technology model of generating innovation was conceived to be ‘private’ from the beginning. The patenting system originated in the days of the lone inventor and the need to protect his/her invention. Historically, the lone inventor has given way to large corporate or state funded research laboratories in the early twentieth century. Increasingly, science institutions have been also looking at producing knowledge in profit-oriented ways similar to those used by global corporations in creating new technologies. With the Bayh–Dole legislation in the US, this model has come to dominate publicly funded science in the US. In India, as elsewhere, the belief the direction that the US has moved in is a good way to go is gaining ground.

Interestingly, this is also a time in which alternate models of generating knowledge and innovation have gained ground. The Free Software Movement has shown that networked and open collaborations of ‘hackers’ can produce software of far better quality than what the best of well-heeled corporations working in isolation can manage. The power of open, collaborative structures, working without so-called material incentives is visible in this model. The Free Software Movement has thus resurrected older models that have played key roles in successful innovation in technology development, such as the cases of the steam engine development in Cornish mines and the blast furnace developments in Great Britain and the US.

The question we explore in this chapter is: if we accept the concept of a knowledge economy, what are the instruments most appropriate for the expansion of the knowledge economy, especially for developing countries such as India? Is there evidence to believe that incentives for innovation require a strong patenting regime or is this one of these claims made into truth through repetition?

Reproduction of innovation: Patents and copyrights

A number of recent cases in the US Supreme Court and in the US Federal Court dealing with patents have shown that companies investing heavily in advanced technologies are moving away from the patent model. A major exception to this is the big pharmaceutical company sector.

The current developments in software—the free and open source software (FOSS) movement—has forcefully counter posed the concept of ‘commons’ to that of intellectual property rights. Intellectual property rights, in this view of the world, is nothing but an attempt to exclude people from the domain of knowledge by enclosing it, similar to the enclosing of commons carried out over the last 500 years: it is simply using a legal artifice to privatise knowledge which is publicly held. The struggle against intellectual property rights of various kinds is then converted in a battle for preserving the global commons, specifically knowledge in its various forms.

The last few decades have seen the creation of a new category of private property rights called Intellectual Property Rights (IPR), bringing under one umbrella what were earlier disparate rights. Thus different kinds of private property rights—creative rights of authors under copyright and industrial property rights such as patents, trademark, trade secrets and industrial designs—has been brought under the common rubric of (IPR). The objective of this exercise of renaming was two fold. First, it sought to give a cover of individual creativity to legitimise essentially corporate rights. The second was to expand enormously the scope of these rights.

The impact of this new IPR regime, coupled with the global trading regime under WTO, has led to the private appropriation, on a grand scale, of commonly held biological and knowledge resources of society. The patents regime today has expanded to patenting of life forms, genetic resources, genetic information in life sciences, patenting methods and algorithms in computational sciences and even patenting of how business is done. Not only are methods and algorithms being patented, the copyright has been extended to software and all forms of electronically held information. Traditional knowledge and biological resources held and nurtured by different communities are being pirated by global corporations. Increasingly, the enterprise of science as a collaborative and open activity for creating knowledge is being subverted into a corporate exercise of creating monopolies and milking super profits from the consumers.

The impact of such appropriation is now visible. The HIV/AIDS epidemic has shown that what stands between life and death of the victims is the profit of big pharma. It is impossible for the vast majority of the people in the globe today to pay the costs of new life saving drugs which are patent protected.

If the IPR regime has been damaging to the life of those suffering from disease, what lies in store for agriculture is even worse. With biotechnology and bioinformatics, corporate seed companies and corporate plant breeders will control global agriculture and food production. With food prices already sky-rocketing, the impact of such a monopoly on the vast sections of the people can well be imagined.

Earlier, copyright was used to create monopolies in software. With changing interpretations of patenting, software is now also being patented in many countries. As the information technology spreads to all our activities, every sphere of such activities will be controlled by patents or copyrights.

Proponents of a strong IPR regime claim that even if patents have the above social costs, they are great for promoting innovations required by society. Even if we focus narrowly on the question of costs of patenting against the benefit it gives in terms of revenue, figures indicate otherwise: the bang is not worth the buck involved in patenting.

In a recent book, two researchers Bessen and Meurer have analysed the numbers in terms of revenues generated from patents as against cost of filing, maintaining and defending patents in courts. In their view, the data shows that except in the case of pharmaceuticals, patents generate far more litigation costs than revenue. The numbers are clear: domestic litigation costs—16 billion dollars in 1999 alone— was about twice the revenue for patents. Even in this, almost two thirds of the revenue was from pharmaceuticals and chemicals. Worse, the more innovative the company, more was the likelihood of it being sued.

The software and business method patents fared the worst, with costs far outstripping the benefits of patenting. Even if we examine, not the broader question of whether societies benefit due to greater innovation, but the very narrow one of whether companies that are innovative, benefit from patenting, the answer is that they do not. This answer that Bessen and Merurer come to is no different from what others have discovered in the past: if patents did not already exist, it would be a poor way of rewarding innovation.

Research of Bessen and Meurer, Boldrin and Levine also show that patents do not promote innovation in societies either. Most of the historical data from countries that had different forms of patent protection do not show significantly different rates of innovation. Neither are current data any different.

Historical look at patents: Cornish mines and blast furnaces in Cleveland Area

The need for patents has always been articulated as a necessary social evil. The US Constitution allows the Congress, ‘To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries’. Thus even in the US, this exclusive or monopoly rights is given not because the inventor somehow owns the idea embodied in the patent but to promote science and technology, therefore larger societal goals.

Patent as an incentive, gives a monopoly to the inventor for a certain period in lieu of which he/she makes the invention public. In economic terms, this monopoly allows the patent holder to extract rent from all users of the patents: it is the state allowing the patent holder the right to levy a private tax. Therefore, the question arises whether patents (or monopolies) are the best form of providing such incentives?

Even if we accept that material incentives need to be given to the inventors, patent monopolies however are not the only form of incentives. Others could be a royalty for the inventor from any producer who wanted to work the patent, but not a monopoly over all reproduction of the invention. This is what in patent literature would be referred to as an automatic license of right. Or it could be the state offering prizes from its kitty for socially useful inventions, a policy that a number of states have followed in the past for encouraging inventors.

The question is whether the monopoly patent regime has helped in promoting innovation. For this, let us start with the most celebrated innovation, which in all text books is stated to be one of the key elements of Industrial Revolution: the steam engine. James Watt perfected his version of the steam engine for which he secured a patent in 1769. In 1775, using the influence of Mathew Boulton, his rich and influential business partner, he succeeded in getting the parliament to pass an Act extending his patent till 1800.

This gives us an opportunity to examine the developments in steam engines and deciding whether the Watts patent helped in promoting innovation or did it actually stifle development. The major beneficiary of the advances in steam engines would have been the mining industry in Cornwall. Watt spent his entire time suing the Cornish miners if they tried to make any advances over his design. The firm of Boulton and Watts did not even manufacture steam engines then, they only allowed others to construct the engines based on Watt’s designs for which they claimed huge royalties. If we examine the increased efficiencies of steam engines and plot it against time, we find that after the initial Watts breakthrough, during the period that Watt had monopoly, all further improvements virtually stopped, starting again only after the expiry of his patents (figure below). During the period of Watt’s patents the UK added about 750 horsepower of steam engines per year. ‘In the thirty years following Watt’s patents, additional horsepower was added at a rate of more than 4,000 per year. Moreover, the fuel efficiency of steam engines changed little during the period of Watt’s patent; while between 1810 and 1835 it is estimated to have increased by a factor of five’. The major advance in steam engine efficiency took place not because of Watt’s invention but afterwards.

Interestingly, all those who made further advances, such as Trevithick, did not file patents. Instead, they worked on a collaborative model in which all advances were published in a journal collectively maintained by the mine engineers, called the ‘Lean’s Engine Reporter’. This journal published best practices as well as all advances that were being made. This was the period that saw the fastest growth of engine efficiency.

If we look at the research on increased patent protection helping innovation, very little concrete evidence has ever been found for this thesis. In fact, the evidence not only of Cornish mines but also in UK and the US of blast furnaces in the 19th Century, show that collective innovation settings lead to a faster diffusion of technology and more innovation as opposed to the closed, patent based monopolies. Thus, the advances in the two key elements of industrial revolution—steam engines and steel—both came out of a non-patented and open, sharing environment. The recent advances of FOSS is not an anomaly but merely the reflection that an open model of developing knowledge is a faster and surer way to innovation than conferring state monopolies.

Nature of knowledge commons

The nature of commons is obviously different if it refers to something that is finite from than if it is potentially infinite. Most of the earlier commons literature originated from goods which though considered as public goods, example air, are actually finite. If we do dump increasing pollutants in air, at some point its capacity will saturate. The same is not true of knowledge. The use of a Law of Nature—Theory of Gravitation—does not subtract anything from that theory by virtue of repeated use. Therefore, any enclosure of knowledge is doubly pernicious—it not only reduces access by others, it also puts a price on access to something which is infinitely duplicable.

If we consider only private and public property, only two forms of property are recognised. However, a whole range of ownership exist which are essentially held by groups or communities. Commons therefore allow the expansion from private to public through different forms of community ownership—it provides a variety of shades between private and public property before merging into public domain.

Software, a specifically 20th century creation, used an 18th century legal form—copyright—to impose restrictive access. The problems of this restrictive access is that it does not address the specificity of software—its’ generally short lifespan, the nature of the work and so on. The free software community has used the same legal means— copyrighting—to subvert the copyright regime. However, while in software, copyleft or use of a specific copyright license which allows others to use it under same conditions, this may be adequate, this alone is not enough to combat intellectual property rights enclosures, particularly the patenting regime. There, either public disclosure or patenting and offering the patents under license conditions similar to free software’s Gnu Public License (GPL) are both being tried.

Traditionally, music or books are not considered knowledge. They would be considered artefacts, which therefore could have ownership. Copyright—the dominant form of ownership of these artefacts—originate from the concept of authorship which is protected through copyright. Copyright has two aspects, one is that it confers permanent right against distortion and appropriation through plagiarism on the author, the other is the right to make copies. The second is a temporary monopoly which can also be bought and sold. However, the digital age brings out the possibility of infinite number of copies without any transmission loss. Books, films and books and music can be distributed freely at virtually no costs. How then do we consider copyright—the right of the author to recover money from his or her creative work through a monopoly, which produces artificial exclusions today? If technology makes reproduction a trivial exercise, should society artificially impose monopoly of the author? If not, how do we compensate the creativity of the artist or the writer? The creative commons license, which traces itself to the Gnu Public License, attempts to address some of these widening considerably the ambit of commons.

The enclosure of the knowledge commons is not only for areas such as science and arts, but also in traditional knowledge. As has been repeatedly pointed out, community based knowledge is appropriated by pharmaceutical and other companies and privatised in various forms. This pertains to biological resources nurtured by communities or specific knowledge and practices. The struggle for protecting the rights of such communities is also a struggle for protecting the traditional knowledge as commons. These commons are not public domain, but the common property of a group and therefore allows for community rights as opposed to private property of individuals and corporations. Recently, the commons license approach has been considered for protecting traditional knowledge also.

The impact of privatisation of knowledge and science is also changing the way science is being done. Science is no longer the collaborative and open activity aimed at creating new knowledge about nature. It has become a secretive exercise where a patent is filed before a paper is published. Ideas are not shared as they now have commercial value. This is occurring at a point of time where the internet and other forms of communications have multiplied the possibility of open, collaborative work enormously.

Production of knowledge: The institutional structure of science

The monopoly exercised over knowledge translates into the ability to extract super profits by using this monopoly to sell either software or a medicine or a seed. However, the potential of a commons approach lies in not only preventing such monopolies, but also in production of knowledge itself. The commons licenses are only one aspect of the larger struggle of production and reproduction of knowledge. The Free Software Movement has shown the power of the new networked structures in the creation of new knowledge and new artefacts. Never before has society had the ability to bring together different communities and resources. What stands in the way of liberating this enormous power of the collective for production of new knowledge and designing new artefacts is the monopoly rights and private appropriation inherent in the neoliberal IPR order.

The earlier system of development of scientific knowledge resided primarily within the structures of higher education. The universities, colleges and other institutions of higher learning were the centres were new advances in science were located. As these centres of education were relatively autonomous of both the state and the market, the system of generating new knowledge was not closely bound by immediate class needs of society. This is what produced within the university system a sense of independence and self-regulation—the education given to the students had larger purpose than merely serving capital or the needs of the state.

This is also why the educational system also provided a place for contestation—it was the place where new ideas arose not only in the various disciplines but also about society itself. The humanist view of science and technology fitted itself very well into this overall structure. Science was supposed to produce new knowledge, which could then be mined by technology to produce artefacts. The role of innovation was to convert ideas into artefacts—therefore the patenting system that provides protection to useful ideas embodied in the artefacts.

The transformation of this system that existed for more than a hundred years has come from two different sources. One is that science and technology are far more closely integrated than before, making the distinction between scientific knowledge and technological advance more difficult to distinguish. An advance in genetics can translate to the market place much more quickly than earlier. Computers and communications have a similar pace of development, drawing some of the sciences much closer to the systems of production than earlier. The second is the conversion of the university systems to what are essentially profit making commercial enterprises under the current neoliberal order. The dwindling public financing of education and the rise of corporate funding has emerged as a major threat to scientific research.

Market fundamentalism is today profoundly altering how education itself is taking place. Students are regarded as consumers and the university-education system is structured like any other commercial enterprise that looks primarily at its bottom line. A deeper analysis of nature, which has no immediate commercial market, is now being downgraded in favour of what the industry considers as ‘lucrative’ research. Not only does it distort the larger system in which long term knowledge is devalued in favour of immediate and short term gain, it also shifts research priorities away from what society needs as a whole to the needs of those who can pay. As university research is increasingly being funded by private corporations, a wholesale shifting of research priorities is taking place. Science is no longer for advancing knowledge and the well being of society but almost entirely for generating profits for the educational enterprise itself.

The impact of this can be seen from earlier if we compare science as it existed decades ago and now. Let us take two examples. The green revolution came out of public domain science—there was no price to be paid by the farmer for utilising its advances. Today, the gene revolution is controlled by a few private corporations—Monsantos and various pharma companies. The second example is when Salk was asked about who owned the patent to his polio vaccine, he said the people. An answer a scientist is unlikely to give today.

The Bayh Dole Act in the US is the one that converted publicly funded research into privatised knowledge. It has had very adverse impact in the US. Fortune Magazine held the Bayh Dole Act responsible for pushing up the cost of medicine in the US. ‘Americans spent $179 billion on prescription drugs in 2003. That’s up from ... wait for it ... $12 billion in 1980’. The same article also stated that the Bayh Dole Act had actually retarded the progress in science instead of helping it. Discovery of new molecules, a measure of innovation in pharmaceutical industry, has actually come down. It has however helped a few companies, universities and scientists become fabulously rich, but at the expense of scientific development and the common people. Unfortunately, the market fundamentalists world-over are pushing ideas similar to the Bayh Dole Act and other measures to convert the educational systems to University Industrial Complexes.

Science and open models

Today, the information technology sector has shown that new technologies and methodologies can be developed by cooperative communities. It may be argued that this sector is unique in that the ‘reproduction costs’ of the ‘artefacts’—the software— are relatively low. However, the question needs to be posed whether it is possible to design such approaches for other areas such as, say, the life sciences? Is it possible to have similar cooperative communities that work together to produce new products? Is it possible to envisage ways by which artefacts can be reproduced and reach the community without high costs of such ‘reproduction’? For this, we need to examine what are the structures of knowledge production that are in consonance with the needs of producing new knowledge and innovation in specific sectors. Two such examples are given below.

Agribiotechnology

There is little doubt that genetically engineered plants are going to create an enormous impact on agriculture in the future. That it has not done so till date is due to various reasons. One of course is that genetically modified organisms are in their infancy. The second, and perhaps even more important, is that unlike the Green Revolution that came out of public domain science, the Gene revolution is coming from private domain science. The prospect of agriculture of any country passing into the hands of a few multinational companies is not a re-assuring one. It is compounded by the fact that most of the successful biotech seed companies are either chemical companies such as Monsanto, Du Pont etc., while others are pharmaceutical companies—Novartis, Bayer, etc. The track record of both regarding public good has been rather poor. Therefore the discomfort that people have regarding their counties’ agriculture passing into multinational hands is not unjustified.

Greg Traxler, in his paper for FAO shows the rapid increase of transgenic crops in some countries and for specific crops. ‘In 1996, approximately 2.8 million hectares were planted to transgenic crops or genetically modified organisms (GMO) in six countries (James, 1998). Adoption has been rapid in those areas where the crops address important production problems, and by 2003 global area had risen to 67.7 million hectares in 18 countries (James, 2003)... Six countries (the USA, Argentina, Canada, Brazil, China and South Africa), four crops (soybean, cotton, maize and canola) and two traits (herbicide tolerance and insect resistance) account for more than 99 percent of global transgenic area’.

In order to explore such possibilities, a possible example would be the development of useful crop varieties in the agribiotech sector. The bulk of ‘innovative technology’ in this arena currently appears focussed in making genetically modified crops (GMOs, so to say), a technology that is patent-protected by the MNC sector. An interesting step away from this corporate model of agribiotech development has been the establishment of an ‘open source biology’ platform, centred around new microbes useful for making transgenic plants. The most advanced initiative of this kind is the Australia-based CAMBIA/BIOS. While the first acronym refers to the broader scope of promoting biological innovation for agriculture (Centre for the Application of Modern Biology to International Agriculture), the second refers to the Biological Innovation for Open Society, the specific arm of CAMBIA dedicated to open source biology. This particularly focuses on freeing the basic technological tools of biotech for general use, so that innovation at the application level is not restricted, particularly by the biggest multinationals in the biotech sector. It promotes a protected commons license for use in this regard. It also operates a web portal BioForge, similar to the SourceForge of the open source software movement. While the BIOS initiative is not identical to the free software idea, it appears to be the most developed initiative of this kind so far.

However, such a knowledge commons approach may still depend on the conventional manufacturing sector for delivery of the products— for example, the seeds—to the market. Also, it still involves making transgenic crops, which has already run into serious criticism.

One alternate possibility that is being discussed globally is to take advantage of the growing ability to sequence the entire genetic sequence of individual organisms at much lower costs. Such a step in traditional plant breeding for advantageous traits will allow the breeding programmes to overcome some of the major obstacles to creating crop varieties with advantageous traits that breed true so that seeds can be re-used. It would then allow the identification of combinations of genes that confer a particular trait and thus allow reliable selection of varieties with combinations of many advantageous traits. It would even allow the creation of carefully engineered crops in which the introduced gene form providing advantage is not from some other species but from the host crop itself. Such a programme would be of little interest to the profit-sector since farmers can re-use seed. It would require little by way of a manufacturing intermediary, since experimentally generated seed can simply be handed out to be bred by farmers themselves. And it is a programme that would demand a large-scale cooperative global effort between breeders and scientists. Breeders would need to collect and maintain source varieties and carry out careful breeding. Scientists must, on the other hand, generate new ways of handling and interpreting the large mass of data that sequencing-assisted breeding would yield—essentially, cutting-edge science would result from the enterprise as well.

Open source drug discovery

A similar possibility exists in the area of drug discovery. In 1995 the TRIPS agreement introduced a uniform and higher level of patent protection across the globe. The promise that this would lead to higher levels of innovation remains a mirage. Globally, the number of New Chemical Entities (NCEs) have progressively gone down over the past decade. Further, of NCEs approved for marketing, a very small fraction—less than 3%—constitute a significant advance over prevailing therapies. An overwhelming majority of new products address needs of the wealthy populations in the global North, while the disease burden is largely in the global South. While the industry researches drugs for lifestyle conditions of the affluent—obesity, erectile dysfunction, baldness, etc—conditions such as tuberculosis, kala azar, Sleeping Sickness, have to make do with decade old therapies. The last drug developed specifically for tuberculosis, was introduced some three decades back.

Can open source drug research and development, using principles pioneered by the highly successful Free Software Movement, help revive the industry? As the cost of genome sequencing drops and the speed at which the sequencing can be done increases exponentially, it is possible to harness this power to solve the problems of health in radically different ways. An open source model to promote innovation is not a new model and is used extensively in the software sector today. It organises research around researchers across the globe, which draw from a pooled source of information to which they contribute, and to which they pledge to plough back the new developments that accrue. A decade back such a model might have appeared a utopia. Not so today when very powerful tools are available that can create virtual models that can sequence genetic codes of humans that can identify potential targets for interventions in the genetic code. It is possible to process genomic information and on a much larger scale, create public databases of genomic information and protein structures, identify promising protein targets, and deliver such compounds for clinical trials. It would be based on a collaborative, transparent process of biomedical development to take on health challenges that big pharmaceutical corporations have neglected in favour of what they perceive as ‘block-buster drugs’. A number of interesting initiatives are currently under way, from tuberculosis to malaria.

There are interesting initiatives being taken in this particular area. Central Scientific and Industrial Laboratories (CSIR) in India has taken a highly ambitious program of generating the next generation of TB drugs,^{The details of this initiative can be found in http://mtbsysborg.igib.res.in/} still the number one killer in India, using an open source model of drug discovery. Malaria is again another area in which a similar initiative is under way since 1999. The Medicines for Malaria Venture has 19 projects which are in the Phase III of drug development.

Such a model can identify new candidates at a fraction of the cost that Big Pharma claims to spend on drug discovery. It has been argued that the major cost in drug development relates to clinical trials that need to satisfy drug regulatory agencies. Today, Big Pharma outsources clinical trials to a dispersed set of Contract Research Organisations. A collaborative open source model could use the same route, with the difference that the entire endeavour—from selection of promising candidates to marketing approval—is organised and overseen by a publicly funded entity or group that promises to place such research in public domain, without insisting on patent monopolies. It is an idea whose time has come and has the potential to revolutionise the way research is done.

A variant of this approach are the various Public Private Partnerships initiatives underway. All of them share the open source nature of drug discovery but may not subscribe to putting such drugs in public domain. Nevertheless, they have shown that it is possible to bring down the cost of drug discovery from the 500 million dollars claimed by Big Pharma to less than 50 million^{See Munos op cit.} —an order of magnitude drop. It is this price advantage in developing drugs that has now forced the use of such models for what are termed as the ‘neglected diseases’ or the diseases of the poor.

Clearly the IPR based model for innovation is just not working. Strong IP protection is encouraging protectionism and is harming the way science is done. Many more patents are taken out to stop others from working than to protect one’s own research. It is premised on very high costs of development, that are sought to be recovered through high monopoly pricing of products, thereby closing the door for research that targets conditions of the global poor who do not have pockets deep enough to afford the high prices.

This brings out the power today of using the open source or a commons approach to that of the proprietary systems in vogue today. This is not to say that there are no difficulties with the approach. Rather, it is to suggest a possible example of ways in which the framework of present-day science and technology can be re-cast and used in innovative ways for cooperative generation of useful knowledge. Obviously, each of these areas would have their own specificities as well as demand creating new structures to protect the knowledge commons.

It is clear from the above that the commons approach has emerged not as a marginal view but a rapidly emerging alternative to the current patent ridden approach to science. It is time that the developing economies base themselves not on a stronger (more restrictive) form of intellectual property rights regime but on a ‘commons’ approach. This is the direction that is not only in consonance with the well being of their people but also the direction that science increasingly will take. The issue is no longer whether such a model works in developing new science and technology but how soon will it displace the older model.

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