Above photo: Yale.
Transforming intellectual property and research and development.
The current public health crisis is demonstrating how deficiencies in our approach to intellectual property (IP)—a unique set of rights and protections that applies to the creations of the human intellect—and research and development (R&D) imperil the health, safety, and livelihoods of millions of people around the world. As has happened all too often in the past, the choice to prioritize corporate profits and an exclusionary version of IP rights and R&D over affordable medicines and medical supplies is proving not only to be deadly, but also threatens to dramatically increase economic, geographic, and social inequality.
While originally intended to stimulate innovation by protecting ownership of knowledge and creativity, the current approach to IP has increasingly become a driving force for the accumulation and protection of assets by a narrow set of multinational companies and elite interests. Moreover, the incredible rise of intangible assets such as IP rights has become a defining feature of contemporary, financialized capitalism and a crucial source of control in an economy that increasingly values data, brands, algorithms, and proprietary software.
This current approach has resulted in sluggish rates of innovation, increasing economic and racial inequity, and reductions in competition, among a host of other deleterious outcomes. Because of this, calls for IP reform are becoming increasingly common across the political spectrum.
Relatedly, R&D has increasingly been directed towards private interests and private profit in recent decades, resulting in reduced public spending on R&D as a percentage of GDP, the creation of a system of double taxation whereby consumers pay for public investments in innovation and then again through excess costs for products and services, and a reorientation of R&D spending (both public and private) towards maximizing profits, rather than alignment with pressing social, economic, and ecological needs.
The rationale driving this approach to IP and R&D is that private ownership, market forces, and profit (supported by public subsidies and tax breaks) incentivize innovation and efficient resource allocation, stimulating economic growth and job creation. But this does not stand up to evidence. Instead, by allowing these critical systems to primarily benefit private interest and corporations, we are failing to equitably develop and distribute products and services, adequately compensate workers and taxpayers, and maximize and stimulate innovation to address the intensifying and intersecting crises we now face.
In place of this, we need a new approach to the conceptualization, design, and implementation of IP and R&D; one that recognizes how critical these interconnected and entwined systems are to building a more equitable, sustainable, and democratic 21st-century economy. To do so, we recommend extending and embedding principles of democratic public control and ownership over IP and R&D, as well as reforming corporate behavior, to reverse encroachment and expand the public commons. This includes:
- Moving towards a public knowledge commons approach to IP rooted in the principles of public ownership and equitable access;
- Ensuring that publicly-developed IP is held for the public benefit;
- Increasing public research and development (R&D) with a focus on public benefit, addressing the intersecting economic, social, and ecological crises we now face, and confronting increasing global threats to humankind (such as climate change);
- Challenging corporations and monopoly power by linking public ownership and control of IP and R&D with efforts to increase competition in various economic sectors and diversify the ownership structure of enterprises and services (including cooperatives, publicly owned enterprises, and sustainable local and regionally based companies);
- Boosting workers’ rights and empowerment by giving workers a voice in new IP and R&D systems and institutions and removing IP rights and protections from compa- nies that abuse workers;
- Centering global solidarity and reparations (including technology transfers) to ac- knowledge and redress the role of the US and UK in extracting wealth, knowledge, and resources from the rest of the world (primarily the Global South) through centu- ries of colonialism, enslavement, and imperialism.
In order to see these principles embedded, we suggest a series of policy proposals that can guide a new approach to IP and R&D in the UK and the US.
First, we need to grow public investment in socially and environmentally beneficial research and development to meet the needs of the future. This must entail reversing the declines of recent decades (relative to GDP) and increasing public R&D investment to around 2% of GDP or more over the next ten years. While large, such an increase is necessary to confront the intensifying crises we now face, such as climate change, within rapidly shrinking time frames for action. Moreover, in addition to spurring innovation and sustainable economic development, it could also reduce consumer costs and increase public health and wellbeing, all of which would provide a return on investment that far outweighs the additional expenditures.
However, where this investment is channeled and who it impacts and benefits is critical. Public spending on R&D isn’t necessarily always in the public interest, and is sometimes championed by corporations to bolster private profits (e.g. corporations sometimes advocate for greater public spending on early-stage R&D so that it can be appropriated and leveraged down the road for private gain). Boosting R&D investment in a way that promotes equity, sustainability, and democracy will require an overhaul of our tax systems (such as reducing cross-border tax competition and ending tax avoidance schemes), the establishment of new institutions (such as the creation of a public investment bank or a series of national and regional investment banks, through which public investment in R&D could be channeled to grow innovation), and the development of a broader industrial/economic strategy that focuses on securing ecological sustainability, nurturing alternative models of ownership, and reducing corporate concentration and power.
Second, we need to also ensure that intellectual property serves the common good, with a mission orientated and common ownership approach. Structured appropriately, IP can help stimulate innovative ideas and products to address today’s interconnected crises, from developing affordable access to medicines to driving technological advances to meet the climate crisis challenge. Strengthening and formalizing public interventions and regulations could go some way to alleviating the pricing and usage problems that plague the IP and R&D systems. For instance, we should link the granting or continuation of IP protections, as well as public R&D investments, to certain public good standards (such as tax justice, population health, equitable access to medicines, and workers’ rights).
Third, we need to grow the public stake in creations of the mind through the development of publicly owned and democratically governed IP Commons entities. Building from some emerging precedents around the world, these entities would begin to shift us from an innovation system based on enclosure and competition to one that centers principles of cooperation and greater pooling and sharing of the risks and rewards of IP. Strategies to build these IP commons could include: requiring that IP generated from publicly funded R&D be put into the commons (either immediately or after a short period of exclusivity); requiring that IP revoked from or denied to private corporations due to labor or public good abuses be put into the commons; and/or shortening the length of exclusive use of IP protections grants and transitioning that IP to the commons after expiration. These publicly owned common entities, or IP pools, could, depending on the circumstance, operate on a license model, an open-access model, or perhaps most likely, a combination of both.
One of the keys to the challenge of reimagining R&D is the need to reorient the role of the state from one reduced to correcting market defects, subsidizing and supporting economically and politically powerful business interests, and intervening to prop up private businesses and profits when the market system slips into crisis, to one involved in actively and proactively shaping and determining output and innovation that is in the public interest. Governments at various scales (local, regional, national, or federal, as appropriate) could draw from domestic and international examples and create publicly funded and managed venture capital funds to invest and manage shares in private firms—especially start-up ventures, companies experimenting with new and innovative technologies, and enterprises in strategically important sectors (such as renewable energy and climate change mitigation). Such a network of public VC funds would both support a more mission-orientated state and enable the gains of high-risk, high-reward investment to better return to the public.
At the heart of these reforms to IP and R&D is the goal to confront and challenge corporate power and its effects on workers and communities across the world. For instance, as we navigate the difficult landscape of COVID-19, the power and control exerted by pharmaceutical giants has become increasingly evident. Similarly, addressing the looming threat of catastrophic climate change has for decades been stymied at every turn by the concentrated power of fossil fuel corporations and their financial backers. We need strengthened powers of intervention for the public to gain control over critical economic sectors and institutions. This includes, for instance, control over drug pricing and the ability of governments to step in and produce generic drugs to ensure that nobody is left without access to medicines. To that end, in addition to the other suggestions around ownership, control, and regulation of IP, we recommend the creation of one or more publicly owned pharmaceutical and manufacturing entities in the UK and US to not only control the cost of drugs domestically but safeguard affordable medicine internationally through technology transfers and open access to medical and pharmaceutical research.
Many of the challenges and crises we face are global in nature and will only be solved through genuine international cooperation based on solidarity and reparations for centuries of extraction and exploitation. Among many other things, this requires technological transfers, which goes far beyond simply making it slightly more affordable for low and middle-income countries to purchase products and services owned and controlled by large corporations headquartered in the Global North. Rather it should involve removing IP restrictions on certain critical innovations and overhauling the pro-corporate, pro-enclosure IP rules and systems that predominate in international free trade agreements and institutions to support economic development, ecological sustainability, public health, self-determination, and poverty alleviation in the Global South. Here, we recommend drawing on the need for (and increasing discussion of) a global pool of COVID-19 response technologies, which would allow for the compulsory sharing of intellectual property, data, and know-how relating to medicines and vaccines during a health emergency as an illustration of how this could be developed.
As countries grapple with the devastating challenges of COVID-19 and we, hopefully, move closer towards the development of a vaccine, the injustices and insufficiencies of the current approach to IP and R&D are becoming increasingly apparent. It is imperative that we quickly move away from the current system that prioritizes corporate profits sourced from monopoly rights to one that values and centers public health, social equality, and ecological sustainability.
The design, implementation, and governance of our IP and R&D systems are critically important. However, the incredible rise of the intangible economy has dramatically altered these systems and our wider economic landscape. Rather than stimulating and supporting the innovation needed to power the 21st-century digital economy, the enclosure of ownership of creations of the mind has been capitalized on to generate vast profits and considerably increase the power and control of a small group of large corporations and their owners. This has resulted in a series of adverse consequences, from languishing innovation to exacerbating racial, economic, gender, and geographic inequality, to reducing competition, to abusive corporate practices related to workers’ rights, tax justice, and consumer protections. In sum, it is becoming increasingly clear to observers from across the political spectrum that the current approach to IP and R&D is not fit for purpose.
Given their inherently political nature and central role in the economic system, were our IP and R&D systems to be transformed, they could be harnessed for the common good and to build an equitable, democratic, and environmentally sustainable future for all. Extending principles of democratic ownership is key to this transformation. From the creation of a public knowledge commons, to substantially increasing public R&D funding, to embedding global solidarity and reparations, to challenging corporate power, to bolstering workers’ rights, we have the power to reimagine management of creations of the mind.
Through increasing public R&D investment to 2% or more of national GDP, we can significantly boost innovation to address the many intersecting crises and challenges we now face (and are likely to face as the century progresses), and channel that investment to stimulate innovations that benefit society, promote equality, and create environmental reliance and an ecologically sustainable economy. This investment would be supported by a new ecosystem of institutions, such as local, regional, and national publicly owned investment banks, as well as approaches to provide a foundation through which alternative models of ownership can flourish to challenge corporate power.
In place of inefficient tax giveaways, incentives, and subsidies, we should develop a mission-orientated approach to ensure that innovations are geared toward tackling today’s intersecting crises, safeguarded by strong regulations and the mandate for proactive public intervention and economic planning. At the heart of this strategy is the need to significantly grow the public stake in IP, by reorienting the role of the state from a laissez-faire and crony capitalist approach to one inherently involved in shaping the production and distribution of innovations. This should be done first and foremost through the development of a publicly owned and democratically governed IP commons to redirect revenue generated from patents back into the public purse (and back into further investments in innovation), rein in and reshape corporate behavior by safeguarding workers’ rights and preventing tax abuse and loopholes, stimulate innovation, and promote equality. This would be complemented by the creation of publicly owned, and democratically governed venture capital funds at various levels of governance to provide investment (in return for appropriate ownership stakes) in startup ventures and highly innovative enterprises.
As the COVID-19 crisis has demonstrated, we particularly need to explore pioneering ways to reverse the stagnation in the development of needed medical products, control drug prices, and bring about universal access to medicines, clawing back the power and control exerted over this vital sector from big pharmaceutical companies. In place of corporate capture and control over life-saving and life-prolonging medicines, we need publicly directed, accountable, and owned pharmaceutical development, manufacturing, and distribution entities to not only regulate pricing in the US and UK but provide access to medicines throughout the world through technological transfers.
Indeed, from COVID-19 to the climate crisis to rampant social and economic inequality, the interwoven crises we face today are international in their nature. Moreover, the US and UK in particular must acknowledge and actively redress the incredible harm they have wrought on much of the rest of the world, especially the Global South, through colonialism, enslavement, imperialism, and the ongoing process of wealth and knowledge extraction. A reparative approach in general, and technological transfers in particular, must thus go far beyond simply making prices more affordable and products more available in the Global South. Instead, any new approach to IP and R&D must center a comprehensive shifting of rights and control by transferring certain IP, removing IP restrictions on various critical innovations and making them available to all, and overhauling the pro-corporate, pro-enclosure IP rules and systems that predominate in international free trade agreements and international institutions.
IP and R&D systems and approaches are critical to the functioning of any economic system, and despite decades of privatization, enclosure, and corporate capture, they are still, largely, within our ability to reimagine and redesign. By applying principles of democratic public ownership and control, we can, and must, turn these systems into engines that power an equitable, democratic, and sustainable 21st-century economy.
This report is produced in collaboration with The Democracy Collaborative and Common Wealth as part of the Democratic Public Ownership project.