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Privatising Public Knowledge Draft Regulations: confusing the public domain and the commons

Tuesday, April 21st, 2009

Yesterday I explained how the proposed regulations for the Intellectual Property Rights from Publicly Financed Research are unconstitutional. This post examines the confusion between two distinct concepts, ‘the public domain’ and ‘open source’ aka ‘the commons’.

The distinction between the public domain and the commons created by open licences is well known to intellectual property lawyers, especially software lawyers, who regularly encounter open source. However since the regulations confuse the two terms I’ll set it out briefly.

Prof James Boyle at Duke University has written an excellent book on the Public Domain, its both scholarly and easily accessible to non-lawyers. If your work involves research, science, technology, art, culture or knowledge then its a worthwhile read, if you are an IP lawyer its a necessity. The book ‘The Public Domain‘ is available for download without payment here, under a Creative Commons Attribution Share Alike Non Commercial 3.0 licence.

That doesn’t mean that the book is in the public domain. One can only use the book according to the terms of that licence. The licence allows you to freely download the book, to translate it, and to send copies to your friends but if you do translate it, then your translation must be under an equivalent licence.
On the other hand if the book was in the public domain like these books, then you could create a version over which you could claim rights in other words you could make an all rights reserved version of the book. You can’t do that with Prof Boyle’s book because Prof Boyle retains the copyright. He gives away some rights, but keeps others. He explains the difference like this:

“The term “commons” is generally used to denote a resource over which some group has access and use rights—albeit perhaps under certain conditions. … Some would say it is a commons only if the whole society has access. That is the view I will take here. The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others…So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works.” (p39)

This distinction is not only clear to lawyers, David Bolliera journalist turned technology policy expert has also released a book under an open licence entitled Viral Spiral (free download) and he describes the difference in non lawyer terms here:
“The public domain is an open-access regime available to all; it has no property rights or governance rules. The commons, however, is a legal regime for ensuring that the fruits of collective efforts remain under the control of that collective. The GPL, the CC licenses, databases of traditional knowledge, and sui generis national statutes for protecting biological diversity all represent innovative legal strategies for protecting the commons.”

Being a lawyer I’d want to complicate Bollier’s description just a little, the public domain is subject to governance rules, rules which allow the incorporation of the public domain into an all rights reserved intellectual property claim, but don’t permit the exclusion of others from that element of the public domain. So for example one can use a mathematical formula in a patent, the patent can exclude others from making a similar invention but they can use the formula elsewhere. Another example would be that one can copy a text in the public domain for example Bleak House, and claim copyright (a peculiar type of copyright called a published edition) not in the copy but in a reformatted version. As a result someone can’t run off hundreds of copies of your new edition although of course someone else can put out their own printed version of Bleak House.

However the regulations don’t reflect this distinction. Proposed Regulation 2 says in part (my italics):
“(12) In a specific case where a recipient does not wish to protect intellectual property governed by the Act because it wants to place such intellectual property in the public domain through open-source systems, the recipient must apply to NIPMO for approval in prescribed Form IP1, that such intellectual property be placed in the public domain through open-source systems.
(13) When making the appiication under sub-regulation (12), a recipient will be required to demonstrate to NIPMO the following considerations that are impacted by the intellectual property:
(a) it is in the public interest that the intellectual property is in the public domain through open-source systems;
…(14) NIPMO must, in making a decision under sub-regulation (12), consider the considerations demonstrated by the recipient and strike a balance of the following:
(c) the needs of the people of the Republic that could be serviced by such intellectual property, and in particular whether such needs would be best serviced by placing the intellectual property in the public domain through opensource systems or protection through established means;”

There are similar formulations elsewhere in the regulations. So what is the problem? The problem is that some results of research belong in the public domain, and some require what the Act and regulations refer to as ‘protection’ but which would be better described as ‘control’ and that control can best be achieved through open licences, licences which indeed ‘protect’ knowledge by ensuring that uses remains open.

The phrase ‘or protection through established means’ is the most troubling, because it ignores of the decades old success of FOSS, Free Open Source Software, in the computer industry, and of the history of science itself which regarded knowledge as a commons, until the recent incursion of Thatcherite economics. Both of these are more far more ‘established’ than the recent American fad for software patents.

The regulations should simply exempt research results which are best protected by being placed in the commons, for example, software which is open source software should be placed in a category that exempts researchers and research institutions from having to apply for it to be patented/non patented. Others, such as genetic data, are best placed in the public domain, so that knowledge will advance faster. The South African research community is best placed to create guidelines.

However the regulations don’t do this, instead they require that every result which is best placed in the public domain, or protected in the commons by an open licence should require that busy researchers have to pause their research while waiting for permission from an administrative bottleneck.

Posted in A2K, Privatising Public Knowledge | 2 Responses »
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Intellectual Property Rights from Publicly Financed Research Bill

Friday, June 13th, 2008

A putative bill which creates a system require patenting of tax payer funded research will be published today.

The  bill is titled the Intellectual Property Rights from Publicly Financed Research Bill. It will shortly be presented to the Portfolio Committee for Science and technology.

The Bill is an improvement on the first draft circulated for comment during 2007. However even a cursory reading reveals a number of serious problems with the Bill.

  1. The Bill is based on a flawed premise; that the fundamental purpose of university research is to generate revenue through licence fees. As a result its procedure is flawed, since it creates a structure which will tend to prevent sharing of knowledge, regardless of whether there is any probability that the research will result in a commercial product. Instead of creating structures to identify research likely to yield successful commercial products and obtaining registered rights for that specific research the Bill creates a structure which regards a decision not to obtain registered rights as the exception rather than the rule.

  2. Despite representation the Bill still fails to make any provision for membership by research institutions in international research consortia. The requirement that research results must be subject to attempts to commercially exploit it in the manner required by the Bill is directly contrary to the conditions of participating in international research consortia. The consequence will be that South African research institutions will no longer be able to engage in multi-country research.

  3. The Bill also fails to make any provision for research for which funds are received from philanthropic donors who make funding available on condition that research will be freely available. For example the Gate Foundation, the wealthiest foundation in the world, which is focused on addressing diseases which affect the developing world requires that research which if funded by the Foundation should be published on open access terms, as a result of the Bill no South African university will be able to agree to those terms, and therefore cannot be a site for funding on research into HIV/AIDS and Malaria

  4. The Bill requires that software be commercially exploited, by means of proprietary licences. This is directly contrary to the governments open source policy

  5. If something can be the subject to intellectual property protection anywhere in the world then such protection must be obtained. This requires Universities and Research Councils to obtain software patents which are available in a few other jurisdictions, such as Australia, however South African patent law does not permit software patents, and the Minister of Public Administration has condemned opportunistic software patents as abusive. In addition given the variety and range of intellectual property schemes over the globe the Bill imposes a legal duty which no-one can comply with, which is to have a comprehensive knowledge of all the intellectual property laws on the planet.

  6. The Bill forecloses on the policy options available for the Department of Trade and Industry in reforming the patent system. For example universities could provide expertise for patent examination to supplement the capacity of the Patent Office, however universities which must patent all their research will have conflict of interests which prevent them from providing expert copyright review.

I intend to elaborate on these issues on this blog over the next few weeks.

Posted in A2K, Innovation, Privatising Public Knowledge | 1 Response »
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