(Below is an abridged version of the background paper circulated at a workshop, organised to examine the notion of Science Commons – a collaborative, open source framework for promoting advances and innovations in Science. The workshop was jointly organised by Knowledge Commons, Economic Research Foundation and Delhi Science Forum.
Participants at the workshop included Samir Brahmachari (Director General CSIR), Deepak Paintal (Vice Chancellor, Delhi University), Abhijit Sen (Member, Planning Commission), Venkatesh Hariharan, Andrew Lynn, Jaijit Bhattacharya, Kiran Chandra, Satyajit Rath, C P Chandrashekhar, T Jayaraman, B K Keayla, S P Shukla, Jayati Ghosh, Prabir Purkayastha and G Nagarjuna.)
THE speed of innovation and the growth of technology are major drivers of the global economy. While a lot of discussions have taken place on the monopoly created through control over innovations by patenting, much less attention has been focussed in the way innovation takes place and the structures within which innovation is either facilitated or retarded. Does the networked world of today carry new possibilities for alternate structures of creating knowledge and innovation that are currently being retarded? Is it possible to expand the notion of “commons” to help such processes develop?
The patenting system originated in the days of the lone inventor and the need to protect his/her invention. Historically, the lone inventor has given way to large corporate or State funded research laboratories in the early twentieth century. Increasingly, institutions of scientific and technological research, have tended to duplicate the manner of working of global corporations, locating the production of knowledge in a framework premised on private profit. The Bayh-Dole legislation facilitated the adoption of this model by publicly funded science in the US. In India, as elsewhere, a similar trajectory is gaining ground. Interestingly, this is also a time in which alternate models of generating knowledge and innovation have gained ground. The Free Software Movement has shown that networked and open collaborations of “hackers” can produce software of far better quality that what the best of well-heeled corporations working in isolation can manage.
In a forthcoming book, two researchers Bessen and Meurer, have analysed revenues generated from patents as against cost of filing, maintaining and defending patents in courts. The data shows that except in the case of pharmaceuticals, patents generate far more litigation costs than revenue. Worse, the more innovative the company, more was the likelihood of it being sued. The software and business method patents fared the worst, with costs far outstripping the benefits of patenting. Even if we examine, not the broader question of whether societies benefit due to greater innovation, but the very narrow one of whether companies that are innovative, benefit from patenting, the answer is that they do not. Research also show that patents do not promote innovation — most of the historical data from countries that had different forms of patent protection do not show significantly different rates of innovation.
HISTORICAL LOOK AT PATENTS
Patent as an incentive, gives a monopoly to the inventor for a certain period in lieu of which he/she makes the invention public. In economic terms, this monopoly allows the patent holder to extract rent from all users of the patents: it is the State allowing the patent holder the right to levy a private tax. Therefore, the question arises whether patents (or monopolies) are the best form of providing such incentives?
Even if we accept that material incentives need to be given to the inventors, patent monopolies are not the only form of incentives. Other forms of incentives that have been used with success include, for example, a royalty for the inventor from any producer who wanted to work the patent, but not a monopoly over all reproduction of the invention. Another notion of providing incentives is that of a “prize fund”, from which prizes are awarded by the State for socially useful inventions – the quantum of the prize being proportional to the value of the innovation.
The question is whether the monopoly patent regime has helped in promoting innovation. Let us start with the most celebrated innovation, which in all text books is stated to be one of the key elements of Industrial Revolution: the Steam Engine. James Watt perfected his version of the steam engine for which he secured a patent in 1769. In 1775, using the influence of Mathew Boulton, his rich and influential business partner, he succeeded in getting the Parliament to pass an Act extending his patent till 1800. The major beneficiary of the advances in steam engines would have been the mining industry in Cornwall. Watt spent a large part of his life suing the Cornish miners, to prevent them from making any advances over his design. The firm of Boulton and Watts did not even manufacture steam engines then, they only allowed others to construct the engines based on Watt’s designs for which they claimed huge royalties. If we examine the increased efficiencies of steam engines and plot it against time, we find that after the initial Watts breakthrough, during the period that Watt had monopoly, all further improvements virtually stopped, starting again only after the expiry of his patents. During the period of Watt’s patents the UK added about 750 horsepower of steam engines per year. In the thirty years following Watt’s patents, additional horsepower was added at a rate of more than 4,000 per year. Moreover, the fuel efficiency of steam engines changed little during the period of Watt’s patent; while between 1810 and 1835 it is estimated to have increased by a factor of five.
Interestingly, all those who made further advances, such as Trevithick, did not file patents. Instead, they worked on a collaborative model in which all advances were published in a journal collectively maintained by the mine engineers, called the “Lean’s Engine Reporter”. This journal published best practices as well as all advances that were being made. This was the period that saw the fastest growth of engine efficiency.
There is very little concrete evidence to suggest that patents have consistently promoted innovation in the past. To the contrary, the above case of the steam engine and other instances such as the development of the blast furnace in the US and UK in the 19th century, suggest that collective innovation settings lead to a faster diffusion of technology and more innovation as opposed to the closed, patent based monopolies. It is significant that the advances in the two key elements of the industrial revolution – steam engines and steel – both came out of a non-patented and open sharing environment. The recent advances of Free and Open Source Software is not an anomaly but merely the reflection that an open model of developing knowledge is a faster and surer way to innovation than conferring state mandated monopolies.
SCIENCE AND OPEN MODELS
The current contours of the scientific discovery are defined by a “competitive” notion of exclusive discovery. They are consistent with a reductionist paradigm where small problems can be examined in isolation. Such models are unlikely to be adequate today. Cooperation in the scientific community on a far wider scale than has been the case so far is critical if major advances are to take place.
Today, the information technology sector has shown that new technologies and methodologies can be developed by cooperative communities. It may be argued that this sector is unique in that the “reproduction costs” of the “artefacts” – the software – are relatively low. However, the question needs to be posed whether it is possible to design such approaches for other areas such as, say, the life sciences? Is it possible to have similar cooperative communities that work together to produce new products? Is it possible to envisage ways by which artefacts can be reproduced and reach the community without high costs of such “reproduction”? Are there spaces to be found in which new, more intimately cooperative modes of scientific enquiry can be initiated? What is needed is to explore new ways of establishing ‘creative commons’, in which new technologies and methodologies are developed by cooperative communities. Some examples of this are given below.
There is little doubt that genetically engineered plants are going to create an enormous impact on agriculture in the future. There are several reasons as to why this is yet to happen. A major reason is that the science behind genetic modification of organisms is still in its infancy. The second and perhaps more important reason is that unlike the Green Revolution that came out of public domain science, the Gene revolution is coming from private domain science. The prospect of agriculture of any country passing into the hands of a few multinational companies is not a reassuring one. It is compounded by the fact that most of the successful biotech seed companies are either chemical companies such as Monsanto, Du Pont etc., while others are pharmaceutical companies – Novartis, Bayer, etc. The track record of both regarding public good has been extremely dubious. The discomfort that people have regarding their countries’ agriculture passing into multinational hands is not unjustified.
Greg Traxler, in his paper for the FAO discusses the rapid increase of transgenic crops in some countries and for specific crops. In 1996, approximately 2.8 million hectares were planted to transgenic crops or genetically modified organisms (GMO) in six countries. Adoption has been rapid in those areas where the crops address important production problems, and by 2003 the global area had risen to 67.7 million hectares in 18 countries. Six countries (the USA, Argentina, Canada, Brazil, China and South Africa), four crops (soybean, cotton, maize and canola) and two traits (herbicide tolerance and insect resistance) account for more than 99 per cent of global transgenic area.
The bulk of ‘innovative technology’ in the agri-biotech sector is currently focussed on making genetically modified crops – a technology that is patent-protected by the MNC sector. An interesting step away from this corporate model of agribiotech development has been the establishment of an ‘open source biology’platform, centred around new microbes useful for making transgenic plants. The most advanced initiative of this kind is the Australia-based CAMBIA/BIOS. This initiative focuses on freeing the basic technological tools of biotech for general use. It promotes a protected commons license for use in this regard. It also operates a web portal BioForge, similar to the SourceForge of the open-source software movement. While the BIOS initiative is not identical to the free-software idea, it appears to be the most developed initiative of this kind so far.
However, such a knowledge commons approach may still depend on the conventional manufacturing sector for delivery of the products – for example, the seeds – to the market. Also, it still involves making transgenic crops, which is a technology replete with implementation difficulties of both the political and the environmental kind.
One alternate possibility that is being discussed globally is to take advantage of the growing ability to sequence the entire genetic sequence of individual organisms at steadily declining expense. The incorporation of such a step in traditional plant breeding for advantageous traits will allow the breeding programmes to overcome some of the major obstacles in creating crop varieties with advantageous traits that breed true so that seeds can be re-used. Such a programme would be of little interest to the for-profit sector, since farmers can reuse seeds. It is a programme that would demand a large-scale cooperative global effort between breeders and scientists. Breeders would need to collect and maintain source varieties and carry out careful breeding. Scientists must, on the other hand, generate new ways of handling and interpreting the large mass of data that sequencing-assisted breeding would yield.
Open Source Drug Discovery
A similar possibility exists in the area of drug discovery. In 1995 the TRIPS agreement introduced an uniform and higher level of Patent protection across the globe. The promise that this would lead to higher levels of innovation remains a mirage. Globally, the number of New Chemical Entities (NCEs) have progressively gone down over the past decade. Further, of NCEs approved for marketing, a very small fraction – less than 3 per cent – constitute a significant advance over prevailing therapies. An overwhelming majority of new products address needs of the wealthy populations in the global North, while the disease burden is largely in the global South. While the industry researches drugs for lifestyle conditions of the affluent – obesity, erectile dysfunction, baldness, etc. – conditions such as Tuberculosis, Kala Azar, Sleeping Sickness, have to make do with decade old therapies. The last drug developed specifically for Tuberculosis, was introduced some three decades back.
Clearly the IPR based model for innovation is just not working. Strong IP protection is encouraging protectionism and is harming the way science is done. Many more Patents are taken out to stop others from working than to protect one’s own research. It is premised on very high costs of development, that are sought to be recovered through high monopoly pricing of products, thereby closing the door for research that targets conditions of the global poor who do not have pockets deep enough to afford the high prices.
Can open-source drug research and development, using principles pioneered by the highly successful free software movement, help revive the industry? An open source model would organise research around researchers across the globe, who draw from a pooled source of information to which they contribute, and to which they pledge to plough back the new developments that accrue. A decade back such a model might have appeared an utopia. Not so today when very powerful tools are available that can create virtual models, that can sequence genetic codes of humans, that can identify potential targets for interventions in the genetic code. It is possible to process genomic information and on a much larger scale, create public databases of genomic information and protein structures, identify promising protein targets, and deliver such compounds for clinical trials. It would be based on a collaborative, transparent process of biomedical development to take on health challenges that big pharmaceutical corporations have neglected in favour of what they perceive as “block-buster drugs”.
Such a model can identify new candidates at a fraction of the cost that Big Pharma claims to spend. It has been argued that the major cost in drug development relates to clinical trials that need to satisfy drug regulatory agencies. Today Big Pharma outsources clinical trials to a dispersed set of Contract Research Organisations. A collaborative open source model could use the same route, with the difference that the entire endeavour – from selection of promising candidates to marketing approval – is organised and overseen by a publicly funded entity or group that promises to place such research in public domain, without insisting on Patent monopolies. It is an idea whose time has come and has the potential to revolutionise the way research is done.