Instituting the Freedom to Share

A national innovation policy must respect the legal protections for sharing as much as those for owning

March 20, 2015 02:43 am | Updated 02:43 am IST

An innovation policy for the human race is not the same as a national Intellectual Property Rights (IPR) policy which ultimately benefits only a handful of companies. As the current Indian government pushes for initiatives such as ‘Make in India’ and ‘Digital India,’ it cannot help but rely on raw materials provided by innovators who have fuelled the ‘sharing economy’ since the turn of the century.

The myth that “innovation” occurs with ideas from a few entities — which was convenient for some highly concentrated global industries at the end of the 20th century — has exploded in the 21st century. Wikipedia is the starting point for almost every act of learning. No proprietary software company, not even Microsoft, can resist the changes in the software industry brought about by free software, also known as open source software or Free and open-source software.

Music, photography and other creative arts have been made more accessible, both to audiences and to new creators, by the Creative Commons licensing approach which allows unlimited or near-unlimited sharing of creative works, turning audiences into distributors. Open access scientific journals are spreading the benefits of scientific scholarship to those who cannot afford subscriptions to expensive traditional journals. For instance, initiatives like the MIT Open CourseWare have made the finest curricula in world higher education available to teachers and students, free of charge. Massive collaboration among individuals, sometimes known as peer production — which not only occurs without ownership of ideas but cannot occur in the presence of over-burdensome strong IPRs — has changed human society forever.

This sharing economy, based not on ownership but rather on free collaboration in the digital Net, is now inextricably intertwined with the legacy ownership-based economy which depends on it for growth. Mobile communications, cloud computing, big data, and fast cheap genetic sequencing — indeed all the current sources of massive technical progress in human society — depend in crucial part on outputs like free and open source software, from the sharing economy. Fostering national innovation may occasionally involve payoffs to foreign rent-seekers (the Indian patent system is overwhelmingly exploited not by Indian companies, but by foreign “owners” seeking to tax Indian economic growth through extraction of royalty payments), but the core of any national policy must be freedom to invent, which in a developing society can only be provided by sharing rather than owning.

The principle of freedom to invent not just implies that legal institutions should respect sharing to the same extent as owning, but also social structures — in the educational system, government action, and cultural norm-creation — that foster inventiveness in the population. “Yankee ingenuity,” the technological flowering that made one part of the U.S. the workshop of the world in the early 19th century, was the outcome of economic realities, social policies and cultural practices much more than legal rules. So a national innovation policy means teaching students from the beginning of primary school that no one can own an idea.

It means helping farmers share seeds and ideas to improve the effectiveness of agriculture. It means enabling creation by everyone, not limiting creation to those who can afford patent licenses. It means recognising and rewarding those who devote their creativity to humanity, like Jonas Salk who refused to patent his polio vaccine so that the world, rich and poor, could be healed alike.

A national innovation policy must respect the legal protections for sharing as much as those for owning. The government should preferentially acquire goods and services made by sharing, using free software and non-patented pharmaceuticals wherever possible. Intellectual products of government, for which taxpayers have already paid, should be released under licenses that require free sharing by all, for everyone’s benefit. The government’s Internet policy should focus on reducing friction by encouraging sharing. The government should offer small rewards for making knowledge available to all, such as scanning books and other publications in libraries, to make the whole Indian civilisation over millennia available to every citizen, without distinction between the rich and poor.

Freedom to learn and freedom to invent is the innovation policy appropriate to the world’s largest and most rapidly developing democracy. Indeed it is to any democracy where the most basic of social commitments is the right of every citizen to an equal opportunity to learn and grow.

(Eben Moglen is Founding-Director of Software Freedom Law Center and professor of law and legal history at Columbia University. Mishi Choudhary is Technology lawyer and Executive Director at SFLC.IN, a donor-supported legal services organisation.)

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