Tag Archives: patents

The golden touch and the miracle of the loaves

[This piece will appear as a chapter in the book From Intellectual Property Rights to Access to Knowledge by Gaelle Krikorian and Amy Kapczynski (eds.) to be published by Zone Books in 2009.]

Dionysus … decided to reward Midas for his hospitality and granted him one wish. Midas wished that everything he touched be turned to gold. Dionysus warned him about the dangers of such a wish, but Midas was too distracted with the prospect of being surrounded by gold to listen. Dionysus gave him the gift. Initially, King Midas was thrilled with his new gift and turned everything he could to gold, including his beloved roses. His attitude changed, however, when he was unable to eat or drink since his food and wine were also changed to unappetizing gold. He even accidentally killed his daughter when he touched her, and this truly made him realize the depth of his mistake. (Anna Baldwin, Midas, http://www.pantheon.org/articles/m/midas.html)

The best and the worst scenarios in access to knowledge can be seen today in two opposite trends: 1) in the genetic field, islands of proprietary genetic material are growing amidst a sea of free/open access biodiversity; and 2) in the information field, islands of free/open access initiatives are growing amidst a sea of proprietary resources.

The privatization of genes

In agriculture and genomics, a race to patent and thereby privately own genes continues to rage unabated. According to a 2005 study, one-fifth of the human genome already been patented. (Stefan Lovgren, “One-Fifth of Human Genes Have Been Patented”, National Geographic News, October 13, 2005. See http://news.nationalgeographic.com/news/pf/22064243.html) Patents are exclusionary devices and are therefore a form of private monopoly, in effect turning genes into private property. Genes are a natural monopoly. As the director of Duke University’s Center for Genome Ethics, Law and Policy Dr. Robert Cook-Deegan says, “You can find dozens of ways to heat a room besides the Franklin stove, but there’s only one gene to make human growth hormone.”(Lovgren, see above)

The privatization of genes is, of course, a prelude to commodification. Commodified goods (or bads, for that matter, such as carbon credits representing a right to pollute) then become subject to market mechanisms and forces. If there is carbon trading, can DNA trading be far behind? If we can have commodity futures, why can’t we have derivatives like carbon futures or DNA futures?

Commodification is an all-consuming trend in economics. Commodification respects none and targets all: land, culture, knowledge, information, human beings, water, air, atmosphere, nature, life, genes, relationships – truly anything and everything. Driven by corporate profit-seeking and gain maximization, commodification knows no end, no limits.

Like King Midas, today’s corporations and other gain maximizers turn everything they touch into commodities and, subsequently, into money. Wherever they look, whatever they look at, they see a dollar sign. If we followed their lead or allowed them to continue, our entire world, and everything in it as well as outside it, would sooner or later be for sale or for rent. Then we would end up like the cynic who “knows the price of everything and the value of nothing”.

The free/open source trend

There is, fortunately, an opposite trend.

Ideas about information freedom and sharing have percolated for sometime. They are called by different names, representing subtle differences in attitudes, perspectives and approaches towards access to information and knowledge. The earliest were ideas about public domain and the commons. But – as everything turned digital, accelerating the commodification of information – these early ideas were, apparently, insufficiently developed to deal with the rapidly changing nature of information. For instance, if software were simply released to the public domain, commercial interests were better positioned to take full advantage and incorporate it into their products. Also, object code (in contrast to source code) in the public domain remained largely inaccessible for modification. Thus, while many utilities and simple programs were distributed as public domain or “freeware”, no major software projects were. New approaches were also tried which relied on a license based on existing intellectual property concepts. These included the “shareware” license, the GNU Public License, the BSD License and their variations. Out of the latter two emerged truly huge software projects such as the Linux kernel, the GNU systems and utilities package, the BSD operating system, software application suites such as OpenOffice, and similar software.

The idea of free/open sharing caught on and extended to other fields. The Creative Commons license extended this idea to other literary and artistic works. The Wikipedia represented another huge effort to accumulate and share human knowledge in a completely non-proprietary way.

This new social movement might be called the free/open source information movement . It is now being embraced in other fields and promises to become the guiding principle for access to knowledge. In the academic community, free/open online journals are now emerging in the spirit of this movement, challenging the entrenched publishers of printed academic journals.

This movement may, in the future, merge with other “free” and “open” movements. In the educational field, a “free” schools movement – “free as in freedom” – has been simmering for some time, following the pioneering works of educators Maria Montessori in Italy, A.S. Neill of Summerhill fame in England, and John Holt in the U.S. Among the ideas that contributed to the intellectual ferment and the eventual peaceful uprising of the East Europeans was the “open” society concept given impetus by George Soros. The free exchange and sharing of seeds is a freedom that farmers will defend with their lives. If a convergence happens, a truly historic shift in mindset can occur, promising a freer and more open world.

We have to divide bread to share it, but sharing knowledge multiplies it. Because knowledge is literally food for the mind, the movement to ensure free/open access to information and knowledge will turn into reality the parable in this Biblical story:

In those days when there again was a great crowd without anything to eat, he summoned the disciples and said, “My heart is moved with pity for the crowd, because they have been with me now for three days and have nothing to eat. If I send them away hungry to their homes, they will collapse on the way, and some of them have come a great distance.” His disciples answered him, “Where can anyone get enough bread to satisfy them here in this deserted place?” Still he asked them, “How many loaves do you have?” “Seven,” they replied. He ordered the crowd to sit down on the ground. Then, taking the seven loaves he gave thanks, broke them, and gave them to his disciples to distribute, and they distributed them to the crowd. They also had a few fish. He said the blessing over them and ordered them distributed also. They ate and were satisfied. They picked up the fragments left over – seven baskets. There were about four thousand people. (New Testament, Mark 8:1-9; see also 6:34-44)

Join the commodification race and we will all acquire the golden touch. Adopt the free/open sharing perspective and the knowledge of some can miraculously feed all. The golden touch or the miracle of the loaves? Whichever road we take will determine whether we will enter a neo-feudal period ruled by information and genetic rentiers as they increasingly privatize human knowledge and genetic material, or a new flowering of human culture thanks to free exchange of ideas, information and knowledge.

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Greening the information sector

Social movements are beginning to respond to the specific issues involving the information economy. An illustrative set of responses can be seen in the programme of the Philippine Greens for a non-monopolistic information sector (Society, Ecology and Transformation by the Philippine Greens, 1997).

The Greens see the information sector as very important because of its special nature: information is a social good and it can be shared freely once it is created; and since information is a non-material good, the limits to material growth do not apply to information growth. The Greens consider their in harmony with this nature of information.

The following are the major elements of Philippine Greens’ programme for the information sector:

1. The right to know. It is the government’s duty to inform its citizens about matters that directly affect them, their families or their communities. Citizens have the right to access these information. The State may not use ‘national security’, ‘confidentiality of commercial transactions’, or ‘trade secret’ reasons to curtail this right.

2. The right to privacy. The government will refrain from probing the private life of its citizens. Citizens have the right to access information about themselves which have been collected by government agencies. The government may not centralize these separate databases by building a central database or by adopting a unified access key to the separate databases. Nobody will be forced against their will to reveal any information they do not want to make public.

3. No patenting of life forms. The following, whether or not modified by human intervention, may not be patented: life forms, biological and microbiological materials, biological and microbiological processes.

Life form patenting has become a major global issue, as biotechnology corporations move towards the direct manipulation and commercialization of human genetic material. Biotech firms are engaged in a frantic race to patent DNA sequences, microorganisms, plants, animal, human genetic matter and all other kinds of biological material, as well as in all kinds of genetic modification experiments to explore commercial possibilities. We much launch strong national and international movements to block these monopolistic moves and experiments, and to exclude life forms and other biological material from our patent systems.

4. The moral rights of intellectuals. Those who actually created an intellectual work or originated an idea have the right to be recognized that they did so. Nobody may claim authorship of works or ideas they did not originate. No one can be forced to release or modify a work or idea if he/she is not willing to do so. These and other moral rights of intellectuals will be respected and protected.

5. The freedom to share. The freedom to share and exchange information and knowledge will be recognized and protected. This freedom will take precedence over the information monopolies such as intellectual property rights (IPR) that the State grants to intellectuals.

A specific expression of the freedom to share is the “fair-use” policy. This policy reflects a historical struggle waged by librarians who see themselves as guardians of the world’s storehouse of knowledge, which they want to be freely accessible to the public. Librarians and educators have fought long battles and firmly held their ground on the issue of fair-use, which allows students and researchers access to copyrighted or patented materials without paying IPR rents. They have recently been losing ground due to the increasing political power of cyberlords.

6. Universal access. The government will facilitate universal access by its citizens to the world’s storehouse of knowledge. Every community will be enabled to have access to books, cassettes, videos, tapes, software, radio and TV programs, etc. The government will set up a wide range of training and educational facilities to enable community members to continually expand their know-how and knowledge.

7. Compulsory licensing. Universal access to information content is best implemented through compulsory licensing. Under this internationally-practiced mechanism, the government itself licenses others to copy patented or copyrighted material for sale to the public, but compels the licensees to pay the patent or copyright holder a government-set royalty fee. This mechanism is a transition step towards non-monopolistic payments for intellectual activity.

Many countries in the world have used and continue to use this mechanism for important products like pharmaceuticals and books. Compulsory licensing is an internationally-recognized mechanism specifically meant to benefit poorer countries who want to access technologies but cannot afford the price set by IPR holders, but even the U.S. and many European countries use it.

8. Public stations. Universal access to information infrastructure is best implemented through public access stations, charging at subsidized rates. These can include well-stocked public libraries; public telephone booths; community facilities for listening to or viewing training videos, documentaries, and the classics; public facilities for telegraph and electronic mail; educational radio and TV programs; and public access stations to computer networks.

Another approach in building public domain information tools is to support non-monopolistic mechanisms for rewarding intellectual creativity. Various concepts in software development and/or distribution have recently emerged, less monopolistic than IPRs. These include shareware, freeware, “copyleft” and the GNU General Public License (GPL). The latter is the most developed concept so far, and has managed to bridge the transition from monopoly to freedom in the information sector. In the personal computer arena, for example, the most significant challenger to the absolute monopoly of Microsoft Windows is the freely-available Linux/GNU operating system, which is covered by the GPL.

The first step in breaking up monopolies may be competition. But competition eventually leads to domination by the strong and those who can compete best, leading us back to monopolies. Isn’t it better to transcend competition and move further towards cooperation? This means a stronger public sector and sharing meager resources to be able to afford expensive but necessary facilities. In the information sector, this means building information infrastructures, tools and contents which are in the public domain.

9. The best lessons of our era. While all knowledge and culture should be preserved and stored for posterity, we need to distill the best lessons of our era, to be taught – not sold – to the next generations. This should be a conscious, socially-guided selection process, undertaken with the greatest sensitivity and wisdom. It is not something that can be left to a profit-oriented educational system, circulation-driven mass media, or consumption-pushing advertising.

[From Society, Ecology and Transformation by the Philippine Greens, 1997]