Even though academic science is one of the most productive commons, its fruits have increasingly been treated as private property, thanks chiefly to the Bayh-Dole Act of 1980 and other laws that allow universities to patent and license their research. The sums that universities as a whole reap from their patents are fairly insignificant — about $1.3 billion of revenues of $227 billion.
Still, most research institutions nurture the hope that they will “strike it rich” with a basic discovery. If that means converting more and more publicly financed research into private property and erecting new barriers of secrecy and patent restrictions, America’s universities have not shown much concern.
An obvious solution is to revisit the Bayh-Dole Act. Since this would likely involve a prolonged political struggle, however, it is encouraging to see Yale law scholar Yochai Benkler suggest some pro-active alternatives that can be pursued in the meantime. Benkler, one of the leading theorists of the commons, proposes two ingenious “commons-based strategies” that the scientific community can implement on its own. In an August 20, 2004, article in Science magazine, “ Commons-Based Strategies and the Problems of Patents,” Benkler proposes “publicly minded licensing” and “peer production” as ways to overcome the problems caused by patents and galvanize new research.
Citing the success of the GNU General Public License for software, Wikipedia and the Public Library of Science, among other models, Benkler suggests:
Universities could cooperate to seek wide adoption of open licensing provisions. One model is PIPRA, a collaboration among agricultural research universities to share their intellectual property and retain rights to use their technologies for subsistence and specialty crop development. Collectively, universities would have substantial negotiating power with the biotechnology and pharmaceutical industries.
The “open research license” (ORL) would allow researchers to use and nonexclusively sublicense a university’s technology for research and education. Another license, a “developing country license (DCL),” would allow “development, manufacture and distribution of end-product drugs if distribution is limited to developing nations.” One obvious goal would be to stimulate medical research on HIV/AIDS, malaria and other diseases that is currently inhibited by patents.
Benkler’s other proposal is that universities explore more “peer production” models to harness the computing power of large numbers of networked PCs, much as NASA has already done with its Clickworkers project to study craters on Mars using thousands of volunteers. (The peer production model is explored at some length in Benkler’s early essay, “Coase’s Penguin.”)
Universities and scientists could accomplish a lot through these initiatives, Benkler argues: They would “lose almost no revenue from end products, but would lose the remote likelihood of appropriating a basic enabling technology. Their gains would be reduced research impediments [fewer patent restrictions and costs] and improved public perception of universities as public interest organizations, not private businesses.”
It’s refreshing how a commons-based strategy can neatly sidestep some of the seemingly intractable structural problems posed by property law. For the long-term, however, Bayh-Dole could stand some fresh scrutiny and reform.