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Intellectual-Property Ecology

What tree huggers can teach us about the public domain of ideas.
March 1, 2002

 What do bird watchers and bird hunters have in common? The question was posed by Duke University law professor James Boyle, one of the hosts of an extraordinary meeting on intellectual property held last November at the Duke Law School in Durham, NC. Boyle’s answer is provocative: after years of pursuing separate agendas, these incongruous groups ultimately came to understand that they have a shared interest in protecting the “environment.”

Does the same principle hold in the intellectual-property realm? Do we all, no matter what our fields of endeavor, need to cultivate a greater appreciation for the IP equivalent of the natural environment? Judging from the energy and commonality at the Duke meeting-billed as the first-ever “Conference on the Public Domain”-it would appear that we do.

Let’s consider this environmental analogy. As recently as the 1960s, there was no “environment” in the broad sense of the word. Sure, some conservation groups like the Sierra Club had long been in the wilderness protection business. And Rachel Carson’s landmark Silent Spring, published in 1962, brought the misuse of pesticides to public attention. But still, even with rallying points like the Cuyahoga River catching fire in Cleveland in 1969, the people who worried about such things tended to see them as disparate issues. Like water pollution. Or overpopulation. It wasn’t until 1970 that such groups finally came together at the first “Earth Day.”

Now, fast-forward a few decades and jump into that intangible, amorphous realm we call “intellectual property.” There is a growing catalogue of worries about IP issues-from the emergence of overly broad “business method” patents to heated charges that proprietary claims on pharmaceuticals stifle affordable access to medicine in the Third World. A day hardly goes by without a high-profile intellectual-property battle heading to court. Meanwhile, university researchers are griping that open, collegial dialogue is being eroded by proprietary interests and secrecy as professors vie to create startups and get rich.

These issues are interwoven because they all involve balancing similar kinds of private and public needs in a knowledge-based economy. And yet, the various parties-from the League for Programming Freedom to the American Library Association-have tended to work in isolation on their own narrow sets of issues. But the parochialism is fading as parties learn they’re arguing about the same issues. Which is why the Duke meeting could go down as a watershed: it marked the start of an organized movement to protect the conceptual commons.

In attendance were an eclectic array of actors from distinct intellectual-property battles. Members of the open-source software movement were there in force, as were first-amendment and copyright lawyers fresh from some big recent court cases (like Napster and that absurd battle in which author Alice Randall finally won the right to publish The Wind Done Gone, her parody of Margaret Mitchell’s Gone with the Wind, despite shrill objections from the Mitchell Trust.)

Academic scientists were also well represented. Several groups are banding together to insist on licensing arrangements that will mandate that, six months after publication in a scientific journal, articles will be made freely accessible to all over the Web. Similarly, biomedical experts came to explore ways to surmount barriers that prevent exchange among colleagues-things like the almost notorious material transfer agreements that include increasingly stringent provisions about how research materials and results can be shared. Equally notable was the presence of compilation artists whose work-deriving from “sampling” pieces of existing art and music-has been shut down or forced underground by strict new restrictions on copying like the Digital Millennium Copyright Act.

It was fascinating to see the sparks of commonality among this diverse group. Warning that greed and shortsightedness threaten to despoil innovation the way a previous frontier-minded generation despoiled the natural environment, a series of speakers urged the group to consider itself as an environmental movement for the new millennium-guarding collectively against the encroachment of proprietary intellectual-property rights.

The environmental theme is powerful indeed. A growing body of thinkers now believes society should view the sphere of information and ideas we call the “public domain” as an ecosystem. As such, it can remain healthy only if its relationship with the market-as embodied in intellectual-property law, technology and social practice-is kept in balance.

There’s little question that, once it caught on back in the 1970s, a broad conception of “the environment” helped galvanize a sea change in perceptions about the appropriate use of natural resources. It is too early to know the extent to which the disparate critics of the current IP regime will coalesce under a similar banner. Still, an important conceptual hurdle has been overcome. And ultimately, maybe even the IP bird hunters and bird watchers can find common ground, providing financial incentives for people to innovate by protecting the fruits of their labor, but also supporting enough sustainable cross-pollination to spur future innovation.

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