Full Appropriation and Intellectual Property
Abstract: Makowski and Ostroy  show that full appropriation of surplus is sufficient to give competition and efficiency. This is relevant for the theory of intellectual property because it suggests that government awards of monopoly to innovators – by increasing the amount they can appropriate – may lead to more efficient outcomes. We observe first that while full appropriation is sufficient for competitive outcomes in a static context, it is not necessary – in fact full appropriation by marginal individuals is sufficient. We then show how in a Makowski/Ostroy world in which competitors are strategic agents rather than passive price-takers competition is naturally less fierce over marginal contributions, and as a result government awards of monopoly may be socially undesirable.
Open Source License Proliferation: Helpful Diversity or Hopeless Confusion?
Abstract: My paper will explore the debate within the open source community about whether the proliferation of open source licenses (over 70 licenses now have the Open Source Imitative seal of approval) is beneficial or harmful to the open source model of innovation. On the one hand, new licenses reflect new ways of doing business and bringing technology to the market; on the other hand, new licenses create confusion among technology developers about which license to adopt and among users who must piece together technologies with multiple licenses (proprietary and open source). To illustrate the issue I will use, as a case study, my experience in creating the Simple Public License (SimPL) and its submission to (and ultimate approval by) the Open Source Imitative (OSI). I will explore the role that prominent organizations such as OSI can play in the process of “solving” the license proliferation dilemma, including some cautionary tales.
Abstract: Commercial web sites that accept customer-generated content from a large number of users (so-called “crowdsourcing” approaches) are generating much interest from customers and researchers alike. The tasks addressed, such as T-shirt graphic design in the case of Threadless.com and the generation of new product ideas in the case of Muji.net, can typically be completed by one user with a single effort. The “crowd” effect is realized by having many submissions with many individuals judging them. We suggest that engineering design and product development, in contrast, will require a managed approach with a defined sequence of phases, during which multiple tasks might be done in parallel. While a sensible process plan can be stated and imposed, we feel many significant questions arise regarding attributing credit for contributions. How do we recognize, for example, which early stage decisions were important and provide appropriate reward to those who contributed to their resolution? For optimal performance, should the crowd have a say in how rewards are divided? What if later stage work is more time consuming, but less influential? We will review relevant literature on this topic and suggest approaches for web-based open mechanical design.
Abstract: This paper introduces a research project that will examine intellectual property rights systems and knowledge pools as socially constructed environments. At this stage, we present the theoretical framework for the study and sketch a roadmap for examining particular types of structured pooling arrangements that involve intellectual property rights and knowledge goods. We anticipate conducting numerous case studies across a variety of disciplines. We welcome comments and suggestions about the framework and roadmap as well as candidates for case studies.
Facilitated access and Benefit-Sharing under the new FAO Treaty: The interface of open-source and proprietary agricultural innovation
Abstract: The new Food & Agricultural Organization (FAO) International Treaty on Plant Genetic Resources for Food & Agriculture (PGRFA), which was adopted in 2001 and entered into force in 2004, with 112 signatories, including the U.S.A., mandates both 1) "facilitated access" to genetic resources specified as part of the FAO "Multilateral System" (Article 12); and 2) sharing of benefits, including financial benefits arising from the commercial use of genetic resources derived from the Multilateral System (Article 13). One requirement of facilitated access is that recipients of specified PGRFA "not claim any intellectual property or other rights that limit facilitated access to [PGRFA], or their genetic parts, or components, in the form received from the Multilateral System" (Article 12.3(d)). However, the FAO International Treaty also clearly envisions that commercial use will be made of those PRGRFA, which presumably includes patented and/or PVP-protected uses, suggesting that the FAO Multilateral System for PGRFA is to operate somewhat analogously to the current interface between open-source and propriety software innovation, though subject to an obligation on the part of users of the Multilateral System to share financial benefits growing out of commercial uses of PGRFA. This paper will explore that analogy and draw conclusions about what lessons the interface of open-source and proprietary software development holds for the FAO Multilateral System for PGRFA, and vice versa.
While international harmonization of intellectual property law proceeds apace, it is increasingly accepted that individual countries have unique innovation trajectories and local understandings of intellectual property law. This paper unpacks the meaning of open source and proprietary innovation in the Canadian context. Canada provides an interesting case-study because of its high level of development, public university and healthcare system, the similarities between its IP development to that of developing countries, and other salient political, economic and social characteristics. Notably, there is no substantial objection at the level of implementation in Canada to open source models of innovation. Further, Canada participates actively internationally in developing, supporting and promoting innovative open source collaborations. This paper will highlight evidence gleaned over an 8-month study of innovation in the Canada health sector that suggests that the problem is instead one of coordination and the appropriate role of law, in particular identifying the regulatory 'nodes of influence' that actually change behaviour. The paper points to the nodes that have emerged as important from the research. The main conclusion of this paper is that while models of open source collaboration may develop, in order to be successful they must accurately reflect and understand domestic characteristics and peculiarities.
Abstract: In recent years, a new view of organizational innovation has emerged: a view of innovation as a distributed form of mass collaboration. More traditional views of innovation associated it with R&D spending, educational level of research staff, or number of patents held by a company. The collaborative view of innovation emerged, in part, in the face of research showing that these traditional measures do not correlate with business performance. In this new view, innovation emerges from what I call collaborative webs. Open source communities are a subtype of collaborative web. And although the open source model has rarely generated radical innovation, most recent radical innovations have emerged from other types of collaborative webs. As a result, the legal issues surrounding open source have broader implications for collaborative webs in general. I will identify the defining features of collaborative webs, discuss the subtype that we call open source communities, and analyze how these communities could be modified to be more innovative. I will argue that the goal of the IP regime should be to balance the competing needs of maximizing societal innovation while appropriately rewarding the individuals that contribute to that innovation. The current IP regime emphasizes individual rewards, to the potential detriment of societal innovation. One manifestation of this is the discomfort that the IP system has with open source models.
Abstract: Darwin’s theory of evolution by natural selection depends upon three observations about the natural world:
- All organisms tend to produce more offspring than can possibly survive in a world of limited resources,
- Offspring tend not to be identical, but tend to vary among themselves,
- At least some of this variation is inherited by future generations.
As an inference from observations (1)-(3), then on average (as a statistical statement, and not in every case) survivors will tend to be those individuals with variations that are fortuitously best suited to changing local environments. Since heredity exists, the offspring of survivors will tend to resemble their successful parents. The accumulation of these favorable variants through time will produce evolutionary change.
All organisms are subject to natural selection, including humans. Despite apparent mastery of many aspects of their environment, human evolution continues with every new generation. Until very recently, the major hurdle facing humans wishing to have offspring was finding a fertile mate. While selecting the traits of one’s offspring has remained an exercise in imprecision because of limitations in our understanding of, and ability to manipulate, the vehicles of heredity – genes - biotechnology now offers the prospect of precise selection of almost any individual trait encoded by one or more genes. Human evolution stands on the verge of becoming fine-tuned and deliberate where, previously, it had been gross-grained and greatly unpredictable. However, important decisions of law and public policy must be made about how best to govern the future of human evolution. One important issue involves patent rights. Most developed countries allow the patenting of previously undescribed genes, and the ribonucleic acids and polypeptides they produce. A gene patent confers on its owner the right to exclude others from making, using, selling, offering to sell, or importing any gene claimed in the patent. By allowing gene patent owners to control, to a significant extent, the ability of parents to choose the traits of their offspring, the patent system allows private policing of the evolutionary future of humanity. Under such circumstances, parents would have to pay to obtain permission for their offspring to evolve in ways those parents considered desirable. This paper explores the legal, policy, and societal implications the patent system has for the future of human evolution, and argues that public policy must grapple with the implications before current technological possibilities become societal realities. It further suggests that open source biology (specifically, open source genetics) offers an alternative to the prospect of the patent system as exclusive, dominant, or even significant arbiter of parental decisions regarding genetic enhancement of their offspring. An open source model of genetics has the potential to democratize accessibility of genetic enhancements, while altering the incentives that could encourage or discourage future genetic innovations. This paper also explores the implications that open source genetics could have on the future of human evolution, and considers whether either proprietary genetic enhancement (as mediated by the patent system) or open source genetic enhancement (e.g., as mediated by a General Public License governing the modification of existing genes) represent more desirable public policy, and societal outcomes, than would such alternatives as free access to, or a legal ban on, genetic enhancement.
 Stephen J. Gould, FULL HOUSE – THE SPREAD OF EXCELLENCE FROM PLATO TO DARWIN 138 (1996).
 Often in “isolated” or “purified” form.
Slouching Toward Open Innovation: Free and Open Source Software (FOSS) for Electronic Health Information
Abstract: The potential for Free and Open Source Software (FOSS) to enable open innovation in a particular software market depends on the characteristics of that market. From this premise, using a case study approach, this Article argues that some software markets have characteristics that disfavor initiating or expanding the use of FOSS. The case study involves software to manage health information for hospitals or physician groups in the form of the electronic medical record, or EMR. Proprietary software venders supply most of the products for this software market. Recently, the United States government undertook some initial, experimental steps to promote a FOSS package for EMR, raising the question as to whether the EMR software market is amenable to FOSS. This Article describes various factors that might signal a FOSS‑disfavoring market, including low technical aptitude among users, differences among users in their work flow and software interface needs, and users with dispassionate computing agendas. FOSS, however, might overcome these impedances in a particular software market if its unique motivational mix is strong enough. This Article describes potential facilitators toward FOSS traditions to support this possibility. One such facilitator, specifically for the EMR market, but perhaps generally for other markets, may be safe harbors for FOSS development within any relevant anti‑collaboration laws. Licensing facilitators include emphasizing asymmetric copyleft approaches such as dual licensing. This Article also discusses potential non‑licensing facilitators to augment the FOSS motivational mix for markets that might disfavor it.
Open, Cumulative and User Innovation
Abstract: As recounted by Chandler, the rise of modern industrial capitalism in the late 19th century and early 20th century was built upon the growth of large vertically-integrated firms. These firms created innovations in their own research labs, which they commercialized through their own product development, manufacturing and marketing.
However, some of this interpretation has ignored important examples of industrial cooperation, as with 19th century mining equipment (Nuvolari, 2004). In the past two decades, researcher have begun to examine the process of innovation cooperation between firms (Allen, 1983) and between users and firms (von Hippel, 1988). Most recently, the "open innovation" paradigm has been used by Chesbrough (2003; Chesbrough et al, 2006) to describe a broader class of interorganizational innovation cooperation.
Here I contrast theories of open innovation, cumulative innovation and user innovation to this Chandlearian ideal to suggest opportunities to integrate and build upon each. From this, I offer suggestions for future research.