The law locks up the man or woman

Who steals the goose from off the common

But leaves the greater villain loose

Who steals the common from off the goose.

The anonymous poem above was written in protest at the enclosure of common land in England – the process of converting the commons to private property and handing it over to a single proprietor. In two rhyming couplets, the poet managed to sum up the massive resentment felt by the commoners, resentment that has found eloquent expression over the last 500 years at the hands of writers as diverse as St Thomas More and Karl Polanyi.

Economists have told a very different story, however. With a few significant recent exceptions, they portrayed the process of enclosure as benign. Private property avoided the “tragedies of the commons” such as underinvestment and overuse. Thus it allowed an expansion of productive capacity that produced more social wealth – even if unevenly distributed – and helped feed more people. Enclosure, in this story, was a triumph; getting unproductive common resources back into the engine of the market.

In the last 20 years, the enclosure wars have been fought all over again; this time over the human genome rather than the grassy meadows of Old England. The critics of enclosure have condemned a “genetic land grab” that promised to privatize the common heritage of mankind, even as the defenders argued that patents over genes were necessary to spur investment and jump start biotech innovation. One branch of the debate was frankly moral, protesting the hubris and in some eyes, heresy, of claiming to own the human genome.

But another branch of the debate concerned the economic effects of intellectual property rights over basic genetic sequences. Would they indeed spur innovation? Or was this the equivalent of privatizing the alphabet or algebra, introducing a tangle of property rights into the most fundamental building blocks of research science, and actually thus slowing down innovation. After all, unlike a goose or a field, a gene sequence can be used by many scientists at once.

But something has changed in the wars over the genome and over ownership of basic biological sequences and data. In fits and starts, in public and private initiatives, the beginnings of a new consensus is emerging – something on which both sides of the debate can agree.

A story in the New York Times last week provides a perfect example. Entitled “Rare Sharing of Data Led to Results on Alzheimers” it describes an ambitious ten year initiative, uniting academics and commercial researchers in an effort to unlock the secrets of that debilitating disease. The key to the initiative was not the money involved, or even the public-private partnership. It was that all the participants agreed to share the data they discovered “making every single finding public immediately, available to anyone with a computer anywhere in the world.”

No one would own the data. No one could submit patent applications, though private companies would ultimately profit from any drugs or imaging tests developed as a result of the effort.” Ten years on, the project is producing results, a cascade of articles and experiments that are unraveling the mysteries of disease biology. With the causes of the disease better understood, all the parties – including the private pharmaceutical companies looking for competing cures – are better off.

Companies who had watched their drug pipelines dry up began to wonder if the old model of in-house development and jealous guarding of data could work to unlock such complex biological mysteries. And they were so convinced of this fact, they actually agreed to fund a large part of the effort, extending the norms of basic research science deep into a public-private collaboration.

The idea here is not to give up property rights. They will be essential in the development of therapies down the line. It is the realization that science – and commerce – will benefit from the establishment of a pre-competitive commons, a pool of information from which all can draw. In this case, by enlisting the National Institutes of Health as “honest broker,” the participants were able to discover and share a wealth of information from which the science will now proceed.

Other initiatives – the Bermuda Accords that guided the public process of sequencing the human genome, the Sage Bionetworks project, or the non-profit organization Science Commons – reflect the same basic idea. (Full disclosure, I was one of the founders of Science Commons.)

Just as public roads enhance the value of private property, so judiciously designed sharing arrangements can help jump-start commercial innovation. The process is complex. How does one guarantee that all can benefit? At what point do we stop sharing and allow privatization and property rights?

But we now have economic and legal tools that help us better understand the complexities of commons’ construction. Indeed, Elinor Ostrom won the Nobel Prize for Economics in 2009 for her work in exactly that field. The enterprise is not an ideological war but a pragmatic process of design.

The poem with which I began concludes with these lines. “And geese will still a common lack, Til’ they go and steal it back.” Hundreds of years after the first enclosure movement, science and industry are “stealing back” a science commons from which we all can benefit.

James Boyle is the author of The Public Domain: Enclosing the Commons of the Mind which is freely available here. You can read more on the Second Enclosure Movement — including the rest of the poem — here.

The nice folk at the Financial Times, where I write a column, have an enlightened attitude towards copyright.  When they arranged for me to be a columnist, they agreed to let me keep the copyright and to make articles available  under a Creative Commons license.  This is one of my recent columns for the FT.  If you find it of interest, you might want to reward them by checking out http://www.ft.com/techforum There is lots more there.

Though many of the headlines talked of Venter being God and having created life in the lab, that is not an accurate way to describe it. Venter started with a particular naturally occurring cell and effectively, de-compiled, analysed and then painstaking edited and reassembled that cell’s genome to create a version of the cell never found in nature. Researchers had already synthesized the genome of the polio virus, creating a genome that would actually “produce” a live virus that infected mice in the lab, but the size of that initiative was several orders of magnitude smaller. The significance of what Venter’s team did lay in the scale of the enterprise and the mastery of the code that it demonstrated. It is as if I took your computer, copied the operating system, figured out what each part of that system did, pruned, cut and edited its functions, and then reloaded a substantially edited system back into the computer – a version which actually proved capable of running it.

Why do this in the first place? Why create a cell with a synthetic genome? Synthetic biology is a term with lots of meanings, but at its most imaginative and inventive, it is striving to move from genetic tinkering to genetic engineering. At the moment we have lots of examples of artisanal editing of genetic code, splicing a gene for luminosity taken from jellyfish into a tomato plant, say, or creating a transgenic goat which secretes spider silk, or insulin in its milk. To an outsider these examples seem impressive (and sometimes creepy) enough. But according to the synthetic biologists, we are still largely at the stage of medieval artisans hand crafting objects; the artisan’s workshop produced impressive creations, but there were no standard screws, valves, gauges, no “off-the-rack” components, no assembly line.

Synthetic biology seeks to remedy that deficiency, to provide the standard platforms for all genetic engineering, so that the next researcher who wishes, say, to create a biofuel with low carbon emissions will be able to use a standard synthetic cell line, the genome of which is completely known, edited so that no unwanted functions remain. When you turn on your computer to finish that essay, or complete that spreadsheet, you do not first have to write an operating system – it comes already loaded. The code writers of synthetic biology want to provide you with something very similar and, just as with computer operating systems, there are reasons to believe there will be strong network effects – markets will tip towards standardization and those who control these basic biological tools will thus gain considerable market power.

In an article written for the journal PloS Biology in 2007, my colleague Arti Rai and I explored the likely legal future of synthetic biology. We found reason to worry that precisely because synthetic biology looks both like software writing and genetic engineering, it might end up combining the expansive patent law aspects of both those technologies, with the troubling prospect of strong monopolies being created over the basic building blocks of science itself. Some of the patents being filed are astoundingly basic, the equivalent of patenting Boolean algebra right at the birth of computer science. With courts now reconsidering both business method and perhaps software patents, and patents over human genes, the future is an uncertain one.

In the world of software, the proprietary model faces competition from open source alternatives, free both in price and in that their code is openly available and can be scrutinized and rewritten. Internet Explorer competes with the open source browser, Firefox. Microsoft dominates the desktop operating system market but there is a Linux alternative. Microsoft web server software competes with (and trails) the open source offerings from Apache and others. The same is true in the world of synthetic biology. The Biobricks Foundation is a nonprofit founded by scientists who are keenly aware of the parallels to the software world. They want to create an open source collection of standard biological parts, to make sure in other words, that the basic building blocks, the standard tools of this new world of biological science, remain “open” in a scientific commons. But their efforts, too, are rendered uncertain by the threat of overbroad patents on foundational technologies.

Innovation in synthetic biology has the potential to produce extraordinary scientific advances, helping to cure diseases, to engage in benign environmental engineering and biofuel development and much, much more. Patents will have an important role to play in that process – they will encourage investment and commercialization in ways that are socially beneficial. But patents that are handed out at too fundamental a layer could actually hurt science, limit research and slow down technological innovation. This is where the sloppiness of the reporting about the creation of artificial life has hurt public debate. The danger isn’t that Craig Venter has become God, it is that he might become Bill Gates. We do not want a monopolist over the code of life.

(Published in the Financial Times: May 27 2010 22:32 | Last updated: May 27 2010 22:32  The FT is enlightened enough to let me keep copyright in the articles I write.  Please consider rewarding them by looking at the other articles in the New Economy Policy Forum.)

James Boyle is William Neal Reynolds Professor of Law at Duke Law School and the author of The Public Domain: Enclosing the Commons of the Mind.

Entrepreneurs and venture capitalists spend a lot of time trying to figure out the next big thing; the new trend, product or web service that will take us by storm. Intellectual property scholars are a little different. We spend a lot of time wondering about the next bad thing.

What will be the latest empirically ungrounded expansion of rights, conferring monopoly rents on market incumbents with scant regard to unintended consequences?

Recent hearings on the future of the news industry at the US Federal Trade Commission (full disclosure: I was an invited participant) signalled the arrival of a new candidate. Newspapers are lobbying for a new federal intellectual property right over “hot news.” European equivalents have also been proposed.

Sadly, the “hot news” right is not as racy as it sounds. It does not offer legal protection for scantily clad celebrities. This is a legal right that extends far beyond copyright law to cover the facts of the news themselves; if I break the story, the hot news right allows me to stop competitors from repeating the facts – at least for as long as the story has immediate currency.

The right has existed in US state common law since a 1918 case called International New Services v. Associated Press. The British government did not like the sceptical coverage of the First World War by US newspapers owned by Randolph Hearst (the real life Citizen Kane). It banned them from using the transatlantic cables to report the news – an early 20th century version of the Great Firewall of China. In the process, the British government conveyed an effective monopoly of European coverage on the Associated Press.

Seeking to get around that monopoly, but also interested in making a buck, Hearst’s International News Services resorted to getting early editions of AP newspapers, or taking news from bulletin boards, collecting the facts and rewriting the stories with their own particular editorial slant. None of these acts were violations of copyright law. The case went to the Supreme Court which held that there could be a “quasi property right” (which is legal jargon for “we just made this thing up”) in hot news, at least against AP’s competitors.

Holmes and Brandeis – two of the most famous Supreme Court Justices of the 20th century – both dissented. Brandeis famously commented that the general rule of law was that knowledge and ideas, the “noblest productions of the human mind” should, after voluntary communication to others, be “free as the air to common use.”

Brandeis lost this one. Still, the effects were not huge. The hot news doctrine became a relatively limited right in a few states – including New York. It was occasionally invoked, often to obviously anti-competitive ends, such as unsuccessful attempts to claim that sports leagues “own” the scores from those leagues and can prohibit others revealing them. But because of constitutional limitations on what states can do to affect the choices made by Federal copyright law, its impact was relatively small,

Fast forward 90 years. The newspaper industry is struggling in the online world. You might think that it is not struggling because its content is being illicitly copied but because it has no good business model to make money off entirely licit, legal uses of its content. The momentary eyeball tracks across news pages just do not translate into enough subscriptions, advertisement clicks, or classified ad sales. You would be right.

In some cases newspapers have lost business because other services now do things better than they did – E-Trade, Edmunds.com or Zoopla provide more in depth information on mutual funds, cars or houses for sale than the sections of the newspaper devoted to them ever could. In the process, those sites take the lucrative targeted advertisements with them.

In other cases, the new services do things more cheaply – Craigslist classified advertisements is an example. And finally, the method of delivery changes the time readers spend on the news pages. Hal Varian – chief economist at Google – presented data at the FTC hearing showing that people read the news largely at work, sixty or ninety seconds at a time, hardly long enough to make much money with advertisements. His data also showed that the current collapse in revenues from subscription and advertising is part of a long term trend that began long before the web.

This is a complex reality. It may be that new business models – subscription sites, links to new devices such as the Kindle and the iPad – can revive newspapers. It may be that we will develop other methods to support investigative journalism – interesting experiments are already under way. But it would be an enormous diversion to let these struggles somehow convince us that the newspapers’ ills are the result of illicit copying and can be cured by yet another new intellectual property right.

Yes, there are legal aggregation sites – such as Google news – which contain short snippets of news stories. If newspapers want their content removed from these sites they can do so easily by simply changing the data contained in something called the robots.txt file. Google or Yahoo will no longer index their pages.

But the newspapers do not want to do this, because legal aggregators drive a great deal of traffic to them. And in any event, they do not need a new right to stop the practice. There are also sites that do illegally copy the entire contents, or the entire article. Their behaviour is already illegal under copyright law. (And in any event has a small effect on revenues. Do you read the FT stories at some shady site or at the FT?)

So the new right would have no effect on the real problem newspapers face. And it would give them almost no protection that they do not already have either through law or technology. What would it do? It would cast a pall of fear over free speech. Is my blog or twitter feed allowed to say that there has been an earthquake or that some political scandal has erupted? Or must I buy a license to say so? After all, in the new world bloggers are “competitors” as news sources.

In fact, the right would produce all kinds of effects the newspapers have not thought about. They are assuming that this new right will only be wielded by them. Not so. Think of political activists who break a story – for example the young conservative filmmakers who produced devastating information on the operation of the organization ACORN. They are a news source. They might think it was a great idea selectively to decide which news organizations got to report that story, at least as long as it was “hot.” Does that sound attractive? I think not. And then think of the difficulties of proof, the possibility of chilling of speech by wrongly claiming to be its source. Implementation would be a nightmare.

So there it is. Our next bad idea. In some ways it shares many characteristics with other recent expansions of intellectual property law. It is unsupported by data and it has unintended and anti-competitive consequences. The sad difference is that newspapers truly do face a wrenching future and the debate over how to pay for high quality investigative journalism is an important one. Unfortunately, the hot news right would do nothing to help solve the real problems newspapers face.

Instead, it would do much to impede the benign effects that the internet has on news gathering and distribution and to chill the social media that will surely be part of the marketplace of ideas in the future. The negative effects of a new legal monopoly without even the benefits to the current market incumbents! Which is what makes the proposal all the more poignant.

The nice folk at the Financial Times, where I write a column, have an enlightened attitude towards copyright.  When they arranged for me to be a columnist, they agreed to let me keep the copyright and to make articles available  under a Creative Commons license.  This is one of my recent columns for the FT.  If you find it of interest, you might want to reward them by checking out http://www.ft.com/techforum There is lots more there.

Let us start 2010 with some good news. In June of last year, I wrote about the Obama Administration’s record on technology policy. There was much to praise in the reinvigoration of the FCC’s commitment to “net neutrality,” (the commitment to a non-discriminatory internet) and a lot to hope for in terms of patent policy.

Unfortunately, in the copyright realm, the Obama administration had devoted itself, like its predecessors, largely to a content industry agenda which has given us mind-numbingly long copyright terms, intrusive legally backed digital rights management, and even a new proposal to cut individuals off from the internet simply for being accused, three times, of illicit downloading.

But the low point, as I noted, was that – even though 95 per cent of all the books in the world are unavailable to the visually impaired – the United States (and the EU) were opposing a treaty which would create a very limited exception to copyright to help visually impaired citizens. (For example, allowing people to generate a machine-readable audio book, or a Braille version, from a legally purchased digital text.)

The opposition to this proposal was not really on the ground of its effects. Most of those opposing it agreed that it would have almost no detrimental market effect whatsoever. It was that it represented an unacceptable principle – namely that a civilized copyright system demanded both rights and limitations on rights – such as fair use, fair dealing and the rights of the visually impaired.

That principle, the radical notion of “balance,” was anathema to the copyright ideologues. If it was necessary to sacrifice one’s visually impaired citizens to the idea of absolute copyright, then that was the price we must pay. That was the position as of June.

The good news? In December of 2009 the United States changed its position. Speaking at the World Intellectual Property Organization, Justin Hughes, a very distinguished and impressive senior advisor in the Department of Commerce, broke new ground. “We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law… The United States does not share that point of view.” The US, it seems, could actually stand up for the principle of a balanced copyright policy – at least in the context of the visually impaired.

It is a mark of how reduced our expectations have been in copyright law that this seemed like a great victory. When the decision not to throw the blind under the copyright juggernaut counts as enlightened policy, it tells one a lot. But I am a great believer in praising policy makers for doing the right thing, so kudos to Mr. Hughes and the Obama administration for having the spine to take a stand on principle. (EU policy makers might study the process to their advantage. The process of evolution from invertebrate to vertebrate is an exciting one.) Let us hope these words turn into real achievements for the visually impaired.

But sadly the rejoicing must have limits. Those of you who use that useful communications network known as “the Internet” might be interested to know that a treaty that could profoundly affect your rights is now being negotiated by a group of developed states including the United States and the EU. What is in the treaty? Well, that is something of a mystery. The treaty in question is called ACTA, the Anti-Counterfeiting Trade Agreement. When Knowledge Ecology International filed a Freedom of Information Act request for the draft of the treaty, the Obama Administration refused, claiming that this was “information that is properly classified in the interest of national security.”

Both the US and the EU have defended the secrecy and argued that by disclosing details to a few hand-picked ”stakeholders” – mainly industry representatives and a few NGO’s – they were actually being sufficiently transparent. Their commitment to transparency and democratic debate is so great that, in order to see the document, all participants were required to sign stringent non disclosure agreements.

From the leaks that have emerged it is clear that this treaty would reshape copyright law in both the US and the EU, largely at the behest of that same industry agenda that opposed the treaty for the visually impaired. Proposals include fines and imprisonment for non commercial file-sharing, increasing the liability of internet service providers for copyright infringements by their customers and much more.

Of course, if this were to be debated in public in London or Paris or Washington, those proposals would meet with furious objections by everyone from civil libertarians to the communications and consumer electronics industry. But that is exactly the point. The lesson of the Visually Impaired Treaty is that public pressure can have a benign effect on copyright policy, strengthening the hands of good, worthy public servants who actually want to do the right thing, but otherwise must dance to the content industry’s tune. That’s good news. The lesson of ACTA is that the content industry knows this very well. Which is why ACTA is being negotiated in secret. And that is very bad news for everyone who cares about not just copyright, but democracy.

James Boyle is William Neal Reynolds Professor of Law at Duke Law School, and author of The Public Domain: Enclosing the Commons of the Mind which can be freely downloaded at http://thepublicdomain.org