Intellectual property stimulates creativity but at the same time holds back innovation, speakers said at a recent event on open innovation and alternative business models. The roundtable looked a range of models, such as open source and open data, and their advantages, to “all rights reserved” protection.

The event attempted to answer the questions: “Does intellectual property stimulate creativity or hold back innovation,” and, “are open innovation initiatives viable and competitive in today’s proprietary world” and what is their future.

The 19 March roundtable, entitled “Open Innovation in the Proprietary World,” was organised by the DiploFoundation. It was an event of the EU MAPPING project, where various experts from academia and private sector as well as other stakeholders from civil society and international organisations share their views on issues related to the digital transition, such as problems of personal data, intellectual property rights protection online, business models, economic exploitation of IP rights and open innovation.

The MAPPING (Managing Alternatives for Privacy, Property and Internet Governance) project, which commenced in March 2014 and is funded by the European Union, focuses on three areas: IP rights, privacy and internet governance. Its aim is to investigate and debate the existing innovation policies, business models and legal framework related to the implementation of the Digital Agenda for Europe and the changes needed to set up an improved governance structure for the EU innovation ecosystem.

Several roundtables and a larger stakeholder meeting, the General Assembly, are organised yearly. The end objective of the MAPPING project is to prepare a roadmap for European policies dealing with internet governance, privacy and intellectual property rights. The project will run till 2018.

The event opened with the presentation by Darren Todd, author of “Pirate Nation: How Digital Piracy is Transforming Business, Society and Culture.” He discussed whether intellectual property rights incentivise content creation and innovation or whether they stifle the creativity that they are designed to protect.

Making a distinction between copyright and patent protection, he gave the perspectives of both individuals and corporations.

“Neither the amateurs, nor the professionals are over-relying upon the “all rights reserved” law. They are concerned with commercial infringement,” he said. “That is well within the preview of alternative licenses,” he added.

However, this is not the case for corporations, such as film and music industries, Todd claimed. “Trade organisations are never going to deny control,” and they “will still petition such (copyright) protection, it is in their nature,” he observed.

Todd showed how patent protection could hold back innovation, and observed that pharmaceutical companies are “motivated to create but not to innovate.”

In his concluding remarks, Todd emphasised that IP rights both incentivise and stifle creativity. “We just have to make sure that there is enough of the first to keep a second to an absolute minimum,” he concluded.

On the issue of current intellectual property policies and whether they support innovation, Julia Reda, Member of European Parliament, Pirate Party, and a rapporteur for the review of the 2001 EU Copyright Directive, advocated for simplifying the copyright system in the EU, which she said would enable the free exchange of culture and knowledge across borders.

Reda highlighted two aspects that are important for progressive copyright reform: evidence-based approach and the political will.

Having 28 copyright systems of the EU member states and no harmonisation of such rules at the European level makes “the exchange of culture across borders within the European Union extremely difficult,” Reda said.

Rihards Gulbis, head of the Copyright Division of the Latvian Ministry of Culture, talked about the importance of legal certainty in copyright rules. Latvia currently holds the EU presidency.

According to Gulbis, the process of drafting and adoption of the single legislative proposal could entail long discussions among parties involved in its adoption, and result in vague provisions.

He observed that because of the legal certainty already achieved at the national level, EU member states are inclined to maintain their own legal framework.

Gulbis also stressed that legal certainty requires unified interpretation and application of the provisions. A single copyright regulation risks leaving out the flexibility of the copyright provisions, which is of high importance in order to keep pace with future technological developments.

“The most appropriate way forward,” he said, would be to “harmonise existing legislative provisions only so far as it is necessary for the ensuring of the digital single market, and by maintaining the possibility for member states to adopt legislative solutions which suit their cultural, social and economic needs.”

Development of IP policies requires deliberation on “how to accommodate not only interests of different stakeholders, but also an interest of achieving the greatest level of legal certainty and flexibility,“ Gulbis concluded.

Jim Killock, executive director of the Open Rights Group (UK), talked about the UK debate on copyright and innovation, how copyright interacts with innovation and what is driving UK IP policy.

The practical perspective of how to deal with legal uncertainty was offered by Philippe Laurent, counsel at Marx, Van Ranst, Vermeersch & Partners, tasked with a project on the protection of “interoperability information”.

The roundtable included discussion of business models of the free/open source movement. Panellists were: Mario Pena, chief business development officer and community manager at Safe Creative, an online copyright repository (Spain), Georg Greve, founder and former president of Free Software Foundation Europe, Giuseppe Mazziotti, assistant professor of intellectual property law at Trinity College Dublin, and Nnenna Nwakanma, co-founder and co-chair of FOSS Foundation for Africa (FOSSFA).

“Open source has become mainstream,” said Greve. “It is very clear that this is by now a gigantic global industry and the reason is very simple: it ultimately is about the freedom to build, to innovate and then use for commercial purposes as well.”

“Innovation can be developed without intellectual property protection,” observed Mazziotti. “At the same time what we need, and it is something which becomes increasingly difficult to achieve at the international and European level, is to define which areas should be targeted by intellectual property protection in the traditional sense, also with regard to which kind of works.”

In the afternoon session, Greve in his keynote speech entitled “Innovation through liberty” stressed the importance of adapting the laws to a changing environment. “We should review our laws to see if they still fit because the world changes. The world has changed and to a very large extent because of innovation,” he said.

Claire Gallon (Libertic), Dimitar Dimitrov (Wikimedia) and Ryan Scicluna (University of Malta) talked about the so-called facilitators of open innovation, namely, open data, open access and open education.

Dimitrov stressed the importance of sharing and the importance of attribution with regard to open access.

Scicluna discussed the role of academia in the process of facilitating open innovation and talked about various initiatives at the University of Malta in this respect.

“Open access is a fundamental enabler of open innovation for the simple fact that research being carried out is more effectively disseminated across multiple viewers,” he said.

“The whole community benefits from open access as research is widely more accessible and researchers have a higher chance of being accredited for their work,” Scicluna noted.

More information about the MAPPING project and upcoming events can be found here.

Elena Bourtchouladze (LLB, DEA) holds a PhD degree in Public International Law from the Graduate Institute (Geneva) with focus on the WTO TRIPS Agreement and WIPO Conventions. She is a researcher at IP-Watch, and has experience in regulatory and litigation at a multinational company and an international organisation.