Five Questions for James Boyle

July 2007

The following is an interview with James Boyle, the William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School. Professor Boyle is a prolific and influential writer of scholarly and popular articles about intellectual property policy, including his 1997 article, “A Politics of Intellectual Property: Environmentalism for the Net?” and his 2003 article “The Second Enclosure Movement.”* Because of his early use of environmental metaphors to discuss the Internet, intellectual property and the public domain, we asked Professor Boyle to be our first interview for Knowledge Ecology Studies. Professor Boyle answered five questions for the editors in July 2007.

1. Knowledge Ecology Studies is a new journal for policy-relevant research and commentary about the new knowledge ecology. What does the term “knowledge ecology” mean to you?

I’d resolve that question into an even more basic one. Why compare issues of intellectual property and access to knowledge to the ecology or to environmentalism in the first place? What insights does it give us? In my own work, the comparison has been useful in the following specific ways.

The environmental movement had invented the concept of “the environment” — a term that had nothing like the meaning we ascribe to it now until the late 1940’s or early 50’s. It used this term to tie together a set of phenomena that would otherwise seem very separate — pollution, destruction of habitats, conservation, species extinction, attitudes towards nature and so on. In doing so, it changed perceptions of self-interest and helped to form coalitions where none had existed before. What does the hunter share with the birdwatcher, or the asthma sufferer in the smog of L.A. share with the salmon fisher in Maine?

The process of the invention of environmentalism, however, was no mere semantic sleight of hand. Intellectually, it built on the insights of earth science about the fragile interconnections of the ecology and on the Pigouvian analysis of economic externalities -pollution about which we do not make rational decisions, because the cost is “invisible,” for example. It offers a profound critique of an economic orthodoxy built on the assumption of perpetual growth. I argued that, in a similar way, we needed a similar movement, and similar set of ideas in intellectual space. We needed to make visible the invisible contributions of the public domain, the “eco-system services” performed by the under-noticed but nevertheless vital reservoir of freedom in culture and science. And, just as with environmentalism, we needed not only a semantic reorganization, or a movement devoted to a goal, but a set of conceptual and analytic tools — better economic understanding of distributed creativity such as open source software, more refined analysis of the “other side” of intellectual property, whether that is the commons or the public domain, new ideas about how to spur innovation, even licensing tools such as the General Public License or Creative Commons, that use property rights to create a “commons” of shared material.

So for me, the knowledge ecology is the network of issues around innovation, access to knowledge, distributed creativity and so on — a network with interconnections we still understand only dimly. The reason to focus on the knowledge ecology, is to get beyond a 2 dimensional debate of intellectual property issues, conducted solely in legal terms — to bring in alternative ideas about innovation, both big and small, to focus on claims of distributional justice, to make distinctions between types of normative claims and knowledge goods. Above all its aim is to do for the world of knowledge, what ecological awareness did to assumptions about development and industrialization. By that I mean that it is important for us to reconsider the simple religion of maximalism, that the answer to every question is to create more intellectual property rights. Just as the environmentalists taught us about the contributions of the ecology to human health, and the need for sustainable development, so we have to develop a more sophisticated sense of the balance between intellectual property rights and the public domain, to understand that it is the interaction between the realm of the free and the realm of the protected that produces innovation, not one of them alone.

2. You make several references to the importance of social movements. Some highly visible groups have focused on the need for access and the freedom to use works. There are also discussions about new “business models” for knowledge goods, and the need to address the problems of earning a living. How do we reconcile the need for access with the need for investments and paychecks?

Again, I think we can learn from the environmental movement in both of those areas.

At its best, the environmental movement has worked because of the size of its big tent, and the diversity of the approaches being used within it. Greenpeace is very different from the Environmental Defense Fund, and both are different from the Audubon Society or a land trust. The combination of methods and perspectives is actually a strength, not a weakness. The Access to Knowledge (A2K) movement strikes me as having many of the same virtues. As for business models and economic underpinnings, one of the interesting things about this movement is that a set of social justice movements (for example, those focused on Access to Medicines) and a set of groups who are interested in different business models based around distributed creativity (for example, open source software developers) have found common cause in criticizing aspects of the current “1 size fits all” model of intellectual property.

My own view is a very pragmatic one. Environmentalists initially distrusted market mechanisms. I think that a majority would now say that market-based systems such as “cap and trade” are valuable tools in reducing emissions. The same goes for working with groups who aim to profit from distributed creativity. If companies such as IBM find shortcomings in our current system of intellectual property and knowledge transfer, then it is much more likely that those criticisms will be heard. This will be a much more effective attempt at legal reform if people are unable to tar it as anti-business or econophobic.

3. We normally think of intellectual property rights as being synonymous with the right to exclude — to forbid publication or copying of books, to deny a license to an invention, to enjoin someone from using trademarks commercially. Yet there are other types of intellectual property rights; those that come with a right to payment, but not a right to exclude, such as compulsory licenses or so-called “liability rules.” Do you think these have a place in the future of intellectual property?

Absolutely. Liability rules are found throughout the intellectual property system. Whether it is someone making a “cover version” of a song on payment of the statutory fee or the “march in” provisions of the Bayh-Dole Technology Transfer Act, the idea is to separate the right to compensation from the right to forbid use. My colleague Jerome Reichman has spent much of his brilliant career writing about the ways in which these liability rules can minimize some of the dangers of legalized monopoly while still making sure to compensate innovators and distributors. The case for liability rules is particularly compelling in cases of humanitarian emergency — such as access to essential medicines — and in cases of technological monopoly that is accompanied by strong “network effects” — control over a dominant operating system, say. There is also a powerful case for it in the world of mashups and remixed art. Some have suggested that we should have an intermediate position between a finding of fair use for a parody or satire on the one hand, and the ability of a copyright holder to gain an injunction over derivative works on the other. With those alternatives, a “remixer” either has total freedom or none at all. Is there a place for an intermediate category, in which the copyright owner cannot forbid the use but is entitled to some share of the proceeds for any commercial exploitation? The difficulty in all of these cases, of course, is the issue of the appropriate level of compensation. How do we set that level without markets to guide us? How does one avoid the dangers of state corruption or capture? These concerns are real. Still I think that if one actually looks at the number of places in which liability rules already work, and work well, it is reasonable to conclude that they could be used more widely.

4. What are the biggest threats to the knowledge ecology?

The (sincere but mistaken) belief that more rights automatically equals more innovation. The bizarre exceptionalism that leads us to believe that intellectual property policy is the only area of regulation in which we do not require empirical evidence about the actual consequences of our actions — as if drugs or environmental regulations were approved on the basis of anecdotes and industry endorsement.

Our persistent tendency to undervalue the potential contributions and overvalue the potential threats posed by openness — whether in network design, or the public domain — and to overvalue the benefits of closed systems and strong property rights. It is a bias, a tendency — not an absolute mistake. But it skews our policy in the wrong direction.

5. Excluding the talented faculty of Duke and the founders of the Creative Commons, who is not being read enough these days?

Yochai Benkler. His book, The Wealth of Networks, ought to be required reading for those interested in the subject.

* James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?” 47 Duke Law Journal 87 (1997). James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” Vol. 66 Law and Contemporary Problems, 33 (Winter/Spring 2003).

Posted in: Interview
Filed under: Intellectual Property Policy, Interview, Open Source, Public Domain