Ideas That Shape Our Lives: Intellectual Property and Open Access

Faun Rice is the Manager of Research and Knowledge Mobilization at the Information and Communications Technology Council (ICTC).

Last month I went to receive my third dose or “booster” of an mRNA COVID-19 vaccine. I walked to the local Italian Centre in East Vancouver, stood in a moderate line, and watched an ad for take-home lasagna while waiting to be released from post-dose supervision. An unremarkable day, but a significant global privilege. The booster is available to me in Canada today, my American in-laws several months ago, but for much of the world not at all.

This order is not due to chance. Economic forces contribute to determining which countries and companies have the money to purchase vaccine doses, and which have the production infrastructure and intellectual property (IP) licensing to produce them domestically. Similar conditions, such as talent and capital availability, shape who produced vaccine candidates. The COVID-19 pandemic has underscored how seemingly abstract concepts like IP—policies that protect the creations of human intellect—in fact directly impact our lives.

Vaccines are just one example of a much larger debate surrounding IP rights. President Joseph Biden, economist Mariana Mazzucato, and other public figures contend that vaccine patent holders should waive their IP rights for the greater good. Others, including the President of the World Bank David Malpass, argue that IP waivers, even temporary ones, would reduce the profit motive companies need to iterate and scale rapidly. Another common rejoinder to those in favour of waiving vaccine patents is that manufacturing capacity is the real bottleneck prohibiting global vaccine equity, not IP. Importantly, significant debate exists on whether or not this is the case, and countries such as South Africa and India have asked the World Trade Organization to waive international IP protections for domestic production.

When advocates talk about waiving IP rights, what exactly are they requesting? The alternative could be called “open access,” “free and open source,” “PatentLeft” or a variety of movements that seek to provide free access to designs and/or products. IP protection secures a strategic advantage for a company or researcher in exchange for the time they have put into research and development. Open access encourages free access to data and information, without penalty for re-use—though, often, still respecting attribution of the original creator. (While some use the term “open x” to summarize this set of movements, given that it is also a company name this article uses 'open access' as shorthand for all of the above instead.)

Open access comes with its own set of pros and cons: for example, the cost of hosting and distributing open access products must be borne by someone, and is often simply paid by researchers and creators rather than subscribers and consumers. Furthermore, open access methods and IP protection are not mutually exclusive—for example, IP law regimes typically include “fair use” or “fair dealing” protocols that allow works to be referenced or reused in commentary, news reporting, parody, or education.

IP and open access proponents wage ideological battles when public interest is on the line: two classic debates are whether important medicines and technologies to combat climate change should be protected by IP. Beyond being critical to the future of humanity, medicine and climate change mitigation technologies have something else in common. Despite having intangible designs that can be protected or shared, they require manufacturing infrastructure, trained personnel, and physical goods to produce. They must be compiled and shipped using complex supply chains.

A field of emerging research asks: how do the pros and cons of open access and IP change in an economy where even products are entirely intangible? Unlike a vaccine, an app does not require a factory, raw materials, and trained personnel to scale. Jonathan Haskel and Stian Westlake outline part of this conversation in Capitalism Without Capital (2017), contending that intangible assets are sunk costs (it’s hard to get a loan for them because they can rarely be resold if they fail), they’re infinitely scalable, they create spillovers (are easily copied, for better or worse), and they are very powerful when combined (e.g., a virtual platform + content). Furthermore, intangible assets complicate national economic boundaries: for example, many of us likely do not know how much of our Spotify subscription fees are diverted to our home countries, Spotify, or the artists that we listen to.

Intangible assets like apps might not feel as urgent to the future of humanity as medicines or carbon sequestration. Nevertheless, whether they are protected by IP rights or made open access/open source is critical to several issues. First, to the global economy. As countries try to lift their heads above the fog of digital consumption, they have begun to ask: how do we retain some of the wealth generated by the intangible economy, particularly if we are not the home of Spotify, Facebook/Meta, or Microsoft? This may take the form of digital services taxes, or, countries like Canada may well ask, how do we compete better and produce the next intangible giant? Without good planning and foresight, some see a dangerous future where Canada’s well-educated population is working for multinational companies and the products of public education go primarily to profit other countries.

As Capitalism Without Capital again points out, the ability to benefit from the endless “spillover” potential of intangible assets is unequally distributed—firms that have already successfully scaled are leading by miles and rapidly consolidating, creating new problems for competition policy. This gets a little abstract: but consider a large software company, with thousands of talented people working for it. If you are a very skilled software engineering graduate and you come across the same next big idea as the large software company, which of you is more likely to develop it first, scale it first, and get it in front of the most users? The vision of creating the next big thing with just a laptop and a dream increasingly feels naïve.

The unequal concentration of intangible assets has greater implications than which countries are wealthier than others. Personally, I feel that the discussion is a bit shallow if it simply asks how a country like Canada could somehow create its own platform monopoly (and somehow get it to pay a fair amount of domestic corporate taxes). A more interesting question than “which country can produce the next intangible giant,” and one of true public interest, might instead be: “who gets to design the intangibles of the future”? How diverse and decentralized is that “who,” such that they can serve the broadest range of interests?

This is where the open access-related movements really enter the ring. Perhaps closely-held IP is a genuine and worthy way to encourage innovation, allowing companies to internalize wealth from their R&D and iterate rapidly. Conversely, better access to information and better freedom to operate without patent litigation might produce better and more public interest technologies. While leading firms still likely benefit disproportionately from the intentional spillovers of open-source designs, allowing broader international and public access to the process of creating the tools and media we use may still have better outcomes than an application that is created by a single organization with a profit motive in mind. Furthermore, researchers who try to measure the impact of open-source software and open access research suggest that it creates significant economic return. The Linux Foundation is a great example of an open-source project that has undoubtedly provided great value to people and economies around the world.

That is not to say that open access is a silver bullet. Open projects in an intangible economy still need oversight and guidance to serve the public good. First, even if a project is publicly co-created by diverse actors, it may still not be representative of its users (e.g., Wikipedia editors disproportionately nominating women’s profiles for deletion). Second, open-source projects can still be vulnerable to patent litigation and may need allies to prevent this (see the history of The Linux Foundation and the creation of the Open Invention Network). And third, open-source projects may generate tools that have dangerous applications. OpenAI has refrained from open-sourcing some of its natural language processing (NLP) models, in part for commercialization and in part because of the potential for them to potentially generate mis- and dis-information. This problem is the hardest to tackle: in an international landscape, who is responsible for preventing actors from taking immensely powerful open source tools and using them for ill?

At the heart of all these problems, I feel—and I am biased, as a social scientist, to feel this way—that talk of intangibility misses something important about everyday experience. It's oddly easy to imagine intangibles without ever connecting them to their designers’ or users’ real lives, as if they were innovated into existence, circled the globe, then converted into wealth without ever touching ground. Can intangible assets really be separated from the material if they are conceived at a barbeque in Silicon Valley, or emerge immaculately from decades of public sector basic research funding? I’ve been to Wikipedia Edit-A-Thons and eaten the campus pizza that accompanies them, and all of us brought material experience to what we chose to write about.

To be judged on the same playing field, open solutions and IP-protected solutions must take into account not only economic contributions, scale, and use, but also the diversity and experiences of their creators and their impact on end users. Protected intangibles may be easier to monitor and regulate, open innovation may be designed and used for a greater diversity of people, but both should ultimately be judged not by the wealth they create—an interim proxy for social good that can be realized in any number of ways—but by the immediate and long-term impact on users, including how many users ultimately benefit from them. We see this as a measurement of value with vaccines: why should an app be different? Talking about the material, tangible origins and impacts of our intangible economy may be one way to start.

The perspectives in this article are those of the author and not of ICTC.