Love on US Korea FTA and access to knowledge

James Love has been talking to the US trade representative about the US/Korea free trade agreement and intellectual property.

"As noted in the 2006 Economic Report of the President, intellectual property rights can play an important role in creating incentives and rewards for investments in inventive and creative works. However, intellectual property rights can also be implemented in ways that are overreaching, anticompetitive, and protectionist, harming both economic growth and the interests of consumers.

Increasingly, economists, political scientists, business leaders and consumers are recognizing that intellectual property rights are forms of government regulation that have both costs and benefits, and which are also subject to regulatory capture by special interests.

Knowledge is the fuel of the modern economy, and trillions of dollars are spent on education and the creation and dissemination of information. We want businesses, consumers and other stakeholders to be informed, and take advantage of the best technologies and to manage knowledge resources wisely.

The freedom to use and share knowledge can be seen as the normal case (the general rule), and intellectual property rights as a limited exception (the exception to the rule). As noted in the February 2006 Economic Report of the President, it is difficult to find the right balance between intellectual property rights on the one hand and the freedom to use and share knowledge on the other hand.

Some level of intellectual property right protection is clearly necessary to create the incentives and rewards we need to support and reward creative and inventive individuals and communities. But we also very much need systems for creating and disseminating information resources that are not owned or controlled by anyone. The knowledge economy is a complex ecosystem. To support the discovery and development of new medicines, we rely upon a plethora of patent and sui generis methods of intellectual property protection to create incentives to invest in new medicines, but we also spend approximately $30 billion per year through the National Institutes of Health (NIH) on government funded research, much of which freely enters the global knowledge commons. The US government vigorously promotes the patent system globally, but it also provides more global public goods for medical research than any other country. The Human Genome Project, the HapMap Project, Medline, and other public goods are as important to the drug discovery system as are patents and high prices on new medicines.

There are trade related aspects of both issues in this knowledge ecosystem. The US government has supported the TRIPS and other multilateral and bilateral trade agreements that seek to address the issue of ensuring that every country provides minimum levels of protection for patents, copyrights and other types of intellectual property protection. These agreements deal with global "free riding" for investments that rely upon patents, copyrights or other types of intellectual property protection. But they do not address free riding issues relating to global public goods, such as costly project like the Human Genome Project or Medline. Nor do these agreements deal with another problem -- the possible anti-competitive and protectionist nature of intellectual property systems that are overly restrictive in terms of access to knowledge.

US trade policy lacks balance. It places all of its emphasis on one issue -- the possibility of free riding on investments that are protected by patents, copyrights or other types of intellectual property. It does nothing to address the free riding on public goods, and it is also doing nothing to address cases where inappropriate levels or badly managed intellectual property rights are an unwarranted encroachment on the public domain. There is simply no policy justification for this lack of balance. The reasons for a lack of balance are undoubtedly due to the vast lobbying resources of intellectual property right-owners, who can command the attention and attract the favors of political leaders and civil servants who supervise trade policy. It is also due to a lack of understanding of the importance of freedom and access to knowledge to the processes of innovation and economic growth.

Assumptions about the optimal balance between intellectual property rights and the public domain were shattered when the Internet emerged as the new platform for the sharing and distribution of knowledge resources. Everything about the Internet was a surprise. The core technologies for the Internet were either placed in the public domain, or freely licensed to everyone. Enormous attention was given to the benefits of open standards for certain key network and software technologies. The explosion of publishing on the Internet vastly increased the amount of information that was available without charge to anyone. New models for the development of "free software" were key to overcoming anti-competitive tendencies of some companies, and attractive as a superior model for designing, maintaining and enhancing certain services provided by software.

Scientists working on medical or agricultural research, and publishers of scholarly journals were deeply influenced by the amazing benefits of these new information technologies, as were venture capitalists and firms both big and small. New business models and new forms of collaboration among different communities of creative and inventive persons emerged overnight to explore and test these new possibilities. Some of this was strictly non-commercial, and some was very commercial. The "free" technologies of the Internet created enormous new private wealth, and vastly enriched the lives of the public at the same time. It is a dynamic and complex ecosystem that undoubtedly has done much to promote trade, investment, innovation, development and growth in other sectors of the economy.

Meanwhile, the rhetoric and policy objectives of US trade policy seemed firmly rooted in the past -- and in some cases, hostile to these new paradigms. The Korean FTA is an opportunity to consider new thinking about trade policy. One possibility is to consider a new chapter in the FTA on Access to Knowledge (A2K). The United States is the largest source of public domain knowledge resources in the world, and the world benefits from a number of important limitations and exceptions in US copyright laws. But we also benefit from public goods provided by our trading partners, and the limitations and exceptions in foreign patent and copyright laws that guarantee greater access to their knowledge resources."