Chidi Oguamanam



How Can IP Advance Public Interest?

Posted by Chidi Oguamanam on January 25, 2014 at 11:45 AM

Knowledge in (dis) service of public interest

by Chidi Oguamanam

The Punch January 24, 2014


I want to think aloud with the reader about our lifetime interrogation of Intellectual Property and its contested, contradictory and controversial role in the stewardship of knowledge dissemination and the frustrations over the impact of that stewardship in the advancement of public interest. Before I proceed, here are some of my basic assumptions; if you like, call them hypotheses:


1. Intellectual Property has been on steroids for quite some time now.


2. It is one of the major and sometimes obstructing checkpoints in the way to optimal translation and uptake of knowledge and innovation in society, with negative ramifications for the most vulnerable people.


3. Sub-optimal uptake of innovation is a fundamental disservice to the public interest.


4. There is presently some soul-searching on how to combat IP overreach and reposition the public interest for the greater good.


5. That mission (under 4 above) is a site for framing complexity in the search for theoretical grounding of various public interest oriented interventions around innovation (e.g. A2K (access to knowledge), open innovation, open access, copyleft, creative commons, GPL, wikie, TK commons, etc.)


The arguments have never been more compelling and more empirically demonstrable regarding the dynamics of collaboration, sharing, purposeful partnership and interdependencies of knowledge production. These dynamics are evident in the advancements in information communication and other digitally centred cognate technologies. But all these words constantly invoked for a balanced IP order are in danger of being hijacked and (mis)appropriated.


It is not as if we are first realising that knowledge production is a collaborative endeavour in which the producer and consumer are, for the most part, mutually dependent on a complex chain of interactions and role exchange. My academic work in the area of traditional agricultural practices consistently compels me to reflect on the essence of customary seed exchange. I have a renewed appreciation of how agriculture symbolises nature as a fundamentally open and self-sustaining phenomenon. Pollination, for example, is at the heart of knowledge exchange. It is a voluntary and non-voluntary combination of bioactive, artificial and other forms of social and ecological collaborative interventions. Humankind and other partners in the ecosystem (i.e. insects, birds, and animals) are inevitably involved in concerted, accidental, and deliberate dispersals of genetic materials in an open manner that supports food, agriculture and environmental sustainability. Nature in itself is a huge organic factory of self-sustaining collaborative system.


Sharing is universal and context-sensitive in regard to the details of its application. IP is deployed as an artificial modality for the sharing of knowledge. But IP yields different outcomes in response to how it is configured in the sharing of knowledge.


In what I call the “IP periphery”, sharing is a necessary consequence and logic of the inherently collaborative nature of knowledge production. In what I call the “IP core”, sharing is by tolling; a kind of tolling which caters to selective access and channels research and innovation to markets as opposed to needs.[1] In the IP core, innovation is underexploited in society.


The distinction between IP core and IP periphery is neither a geographic nor a geopolitical one as you’d think. For example, among custodians of TK, especially in global south and here in Africa, the contest between IP core and periphery is reflected in what Larry Helfer calls “claims to IP protection, and claims to be protected from IP”. The same tension exists among new digitally driven mega and micro-entrepreneurs. Here, while some actors operate from an open access/open innovation mindset, others stretch the potential of digital exclusions through IP overreach, technology locks and anti-circumvention measures.


So, the IP core and IP periphery is a convenient reference to observable tensions in IP. The periphery understands collaboration as the foundational basis for knowledge production and hence understands the centrality of sharing. The core loudly lays claim to collaboration, networking, sharing and interdependence of knowledge production process, potentially conflating the distinction between it and the periphery and beclouding critical distinctions. In IP core, the practices of vertical, horizontal and complex cross-licencing of IPRs depict knowledge sharing and the recognition of interdependence in knowledge production in the digital environment.


Take this case, Kanata, a suburb of Ottawa, Canada’s capital, is a mini silicon valley that lost its steam after the “.com bubble”. It is now the graveyard of many small-scale and medium-range hi-tech enterprises. Today, one of the new faces in Kanata is a company called the Rockstar Consortium. Rockstar is a product of collaboration between core IP and ICT players, namely Apple, Microsoft, Blackberry, Ericsson and Sony. They acquired by auction the IP assets of Canada’s moribund tech giant, Nortel, a total of 4,000 patents for $4.5m. With squadrons of lawyers, through Rockstar, the Consortium is now hunting down any company with the slightest suspicion of compromising Nortel’s patents especially those on Android operating devices. Rockstar is in court with Google! (accusing her of infringing seven patents including a patent that matches internet search terms with pop-up advertising). Rockstar is a non-practising entity, or a patent troll, which self-describes as an “IP licencing company”. It is a product of a shared and collaborative arrangement around knowledge. It is in the business of sharing and disseminating (more appropriately tolling) knowledge but it is not in the business of knowledge production.


Take another case: An African-Canadian of Algerian descent tells the story of his old mother who lives in rural Southern Algeria. In the 2000s, his subsistent farmer mother had carefully observed a pattern of drought-resistance among some crops on a segment of her farm field. After saving the seeds exclusively and experimenting with them, she was convinced of their genetic exceptionalism. After harvest, she deliberately went from house to house and offered to her neighbours the seeds of drought-resistant crops. When this first generation immigrant relayed the story to his son in Canada, the son asked: “Why would grandma do that?” His father asked, “Why not? The son continued, “Grandma could make a lot of money out of that, you know?” His father said; “I thought so too, and I asked her why, and she said: We are a community and not a competition”.


Despite the nuanced distinctions between IP core and periphery, none disclaims the value of sharing and the stewardship of IP in knowledge dissemination and uptake. But they do not have the same objective or aspiration for the same outcome in their claim to sharing or collaboration. Here is one of those cases when the counterfeit can meld undetected with the original. The state of affair calls attention to the need for theoretical rigour and careful framing of terms at the intersection of IP and public interest.


Finally, there is much complexity in how public interest is framed as a countervailing concept to IP overreach. Perhaps a less complicated approach to framing is necessary so that we do not lose focus on the outcome. When IP is the reason knowledge and innovation fail to have optimal social impact then it is not in the public interest. When IP is complicit in exposing the most vulnerable to deprivation, then it is not aligned to public interest. Like most progressive rights regimes, the assessment of IP ought to be premised on the terms of its impact, especially on the most vulnerable wherever they may be. The primary test of public interest in IP is the extent to which IP caters to the underrepresented and the most vulnerable. The question is whether IP can put the community first, before competition, and if so, whether that is feasible and how.


- Excerpts of a keynote address by Oguamanam, an Associate Professor of Law, University of Ottawa, Canada, at the Global Congress on Intellectual Property and the Public Interest in Cape Town, South Africa recently. ([email protected])

The Punch

Categories: None

Post a Comment


Oops, you forgot something.


The words you entered did not match the given text. Please try again.

Already a member? Sign In