Yale Conference Looks At Innovation “Beyond IP”

NEW HAVEN – Intellectual property is not the only driver of human innovation. A two-day conference held here recently brought together a range of leading academics and others to share ideas on innovation occurring outside of, or in spite of, intellectual property rights.

The Innovation Law Beyond IP 2 conference was held on 28-29 March at Yale Law School.

“Intellectual property law is only one of many legal institutions that can help promote, stifle, or govern knowledge production,” the event website states. The subtheme for this year’s conference was “bringing the state back in.”

Summaries of presentations were posted for the conference on the Balkinization blog named for Yale Law Prof. Jack Balkin, director of the Yale Information Society Project.

The wide-ranging topics included innovation occurring without IP rights in areas such as: commercial drones, influenza R&D, government regulations and lack thereof, disruptive platform companies (think Uber, Airbnb, Bitcoin, Aereo etc.), genetic data, the commons (such as the knowledge commons), architecture, social publishing, global public finance, and a proposal for trademark innovation to support open collaboration.

Below is a look at a few of the presentations made during the two days.

Amy Kapczynski, professor at Yale Law School, discussed a case study on the World Health Organization “Global Influenza Surveillance and Response System.” Kapczynski describes the flu network as one that “gathers data and flu virus samples, tracks and predicts pandemic outbreaks, chooses strains that go into the flu vaccine each year, and helps optimize vaccine seed strains for manufacture. It also plays a critical role in helping regulators test these vaccines.”

An aspect that she particularly highlights is that the flu network, established in the 1950s by northern economies, worked well for decades without significant involvement of the intellectual property system. This was possible by a reliance on a system of open science, she says in her blog post on the talk. It was only in recent years when IP rights crept into the network that problems arose.

“Not only did intellectual property not play a role historically in this network,” she said in her presentation to the event. But when they did become involved, they “actually caused a crisis.”

“The first lesson of the study,” she said in the blog, “is that “intellectual production without IP” can work well even in areas that are capital intensive, and that such systems can be as plausibly efficient as the market-exclusionary version, including in allocative terms.”

The second key lesson, Kapczynski said, serves as a corrective to the emerging “beyond IP” literature. “That literature has mapped many domains of creative practice that function without traditional recourse to IP (from magic to comedy to Wikipedia, for example),” she said. “But it has largely ascribed creation in these contexts to norms, intrinsic motivations, and new technology. A close consideration of the Flu Network suggests that where the stakes are high, we should in fact expect intellectual production without IP to require recourse not just to these elements, but also to institutions and law.”

Stephen LaPorte and Yana Welinder, attorneys at Wikimedia, talked about some of the core tensions between collaborative communities and trademarks, why collaborative communities need trademarks, and a taxonomy of solutions that collaborative communities have developed, they explained afterward.

The essential tension is that trademark law expects goods to be produced through a process that is centralized and controlled, but collaborative communities thrive based on decentralisation and freedom. This becomes more significant as open source and free culture goods become more well-known. Linux, FireFox, Android, and Wikipedia are widely-used projects built through collaboration, they said.

It’s an application of trademark law that has been largely unexplored in academic writing. It shows that trademark law is very problematic for a large part of the information production in the information age. Our taxonomy is intended to provide a foundation for continued debate on how to best protect the work of collaborative communities, they said.

They are maintaining a guide based on some of the findings in their paper here: http://collabmark.org/

Lea Shaver, associate professor at the Indiana University Law School, discussed her paper on Copyright and Inequality, which she described in her blog post as about:

“the ways in which copyright protection often – perhaps inevitably – fails to incentivize books for certain audiences, because they are too poor, speak the “wrong” languages, or require niche content or formats. The project I will present at the Beyond IP 2 conference examines a possible solution to copyright’s inequality problem, one which holds the potential to finally bring books to billions of readers long neglected by the mainstream publishing industry.”

Here is a link to the audio file of Shaver’s presentation (9 minutes): https://dl.dropboxusercontent.com/u/96428516/Beyond%20IP.mp3

Joshua Sarnoff, professor at Purdue Law School, discussed the many approaches that the governments use to fund innovation, loosely categorized as subsidies; procurement; direct development; creating commons; and product, process, and market regulation (including granting intellectual property rights to attract private investments), he explained later.

He noted from his earlier work that we need much more information about the comparative advantages of particular institutions in order to achieve better innovation outcomes from our funding choices. But the focus of his present work is on how little our developing theories and our limited empirical information on institutions and trade-offs actually informs our innovation funding approach decisions, he said.

Instead, he said, he identified eight factors that actually drive our innovation funding choices: politics; regulation and liability; globalization (including supply chain fragmentation and comparative trade advantages); networks, power, and institutional characters; the economics and psychology of motivations; (in)stability of funding streams; options and portfolio funding approaches; and ideology – particularly relative faith in governmental and market-based solutions.

Sarnoff concluded with two suggestions for measures to improve our decision-making processes: collecting better data on funding inputs and outputs; and requiring alternatives assessments and documentation of the reasons for making particular funding-form choices.

Orly Lobel, a professor at the University of San Diego Law School, spoke about reactions to the sharing economy, such as Uber, and the case of Aereo, the antenna-sharing technology that was shot down in court. She said there was not recognition in the case that Aereo was a form of innovation.

Dan Burk, a professor at the University of California, Irvine Law School, called his topic “perverse innovation,” and said about Aereo that it was killed despite seeming to have been carefully calibrated by the company to fit the laws of the time on public performance.

He described in his presentation how innovators exploit loopholes, and design around limitations. For instance, the unusual car called the PT Cruiser was designed to fit in the “light truck” vehicle category, which allowed it to be held to a more favourable emissions standard, he said. In the case of lightbulbs, incandescent bulbs were banned before a successor bulb was invented, as a way to stimulate such invention.

A key is that “innovation has to be cheaper than lobbying, compliance, or non-compliance,” he said.

“Innovation is like the Spanish Inquisition,” Burk quipped. “Nobody knows what it’s going to turn up, or when.”