Introduction
In mid-March of this year, the TACD held a two-day conference on "The Politics and Ideology of Intellectual Property" in Brussels with support from the Rockefeller Foundation and the John D. and Catherine T. MacArthur Foundation. The dominant message that emerged from this conference was that intellectual property protection needs profound reassessment if it is to do more than defend vested interests. The broad-ranging discussions stretched from the philosophical basis for intellectual property to the concrete examples of how lobbying had influenced the fate of the EU's software patent directive.

Several significant points came to fore over the course of the two-day debate. It was widely acknowledged that consumers and civil society are starting to make an impact on the global debate on intellectual property, and that the digital communications revolution is putting stronger tools into their hands to continue the campaign. In parallel to this development, it was also clear that defenders of intellectual property are reinforcing their own resistance to any weakening of protection, and are energetically pursuing extension of rights. At present, no consensus exists on the critical point at which protection of private interests ceases to be a gain, and starts to become a loss for innovation and the public interest, let alone a methodology for computing it.

Other salient points which emerged from the panel discussions were that a "one-size-fits-all" approach is inappropriate for intellectual property, in relation to different product categories and in relation to the different countries and regions of the world. It was also felt by conference participants that it is no longer adequate for intellectual property discussions at international level to be restricted to intellectual property professionals. The concept that it is possible to share information without any loss to the transmitter of information is only slowly gaining currency.

The following passages highlight and summarize key interventions and debates from selected panel discussions that took place during the two-day conference.

IP and the Knowledge Commons - Rhetoric and Ideology

There is a growing awareness of how consumers are affected by intellectual property, but the public politics of intellectual property is very new, according to Peter Drahos of the Australian National University, who recalled how business was allowed to exercise unfettered private politics in the corridors of power as it wrote its own rules for the knowledge economy back in the early 1990s.

In a scholarly review of the concepts of property, Drahos elaborated the notion of the "positive common" - a state where everyone is joint owner of all things, as the product of consent, for preserving resources over time through collaborative activity. Crucially, he distinguished it from the concept of the "negative common", under which assets can be appropriated from the common without the consent of others, and subjected to contract.

It is this negative common approach that drives the politics of business in intellectual property. Not only does business favour taking for itself what is already there, but it is actively hostile to the emergence of self-organised communities that create new assets for the common - such as providers of free software, the modern equivalent of indigenous communities that are sustainable and efficient. In consequence, business seeks to destroy a form of economic organisation that is superior to – and even threatens – its chosen negative common approach.

Drahos also criticised the rhetoric surrounding claims that rights are needed to obtain market efficiency. Not only is this an unacceptable language of privilege, but it also disguises deep inefficiencies, on the pretext of bringing order to markets that would in reality be improved by opening them up. By conferring intellectual property rights, governments are in effect claiming to pick winners, and on two erroneous assumptions: one, that they have sufficient information to make that selection; and two, that there is a linear relation between intellectual property and innovation. The inadequacies of the first assumption are demonstrated by history. And the second assumption is questioned by most economists studying intellectual property rights, who tend to believe that after a certain point there is more loss than gain from strengthening rights.

Philippe Aigrain of Transversales challenged the entire basis of current thinking on intellectual property, which has been rendered largely obsolete by the arrival of the information era. The information era is not about digitization and copying, but about perception, analysis, comparison, production, creation, exchange, distribution, evaluation, assessment, recommendation, criticism, quotation, reuse, representation... The internet and all that goes with it offers the opportunity to move beyond the few-to-many information society, and to build a many-to-many information society. People can become practitioners rather than just consumers or professional producers: the information society is already eliminating the distinction, even if the few-to-many world is trying to impede the process, because it is scared of losing the monopoly grip it has enjoyed for so long.

In Aigrain's view, in these new circumstances, positive intellectual rights are in fact capabilities, rather than legal or contractual concepts, and they will be subject to a much more powerful and self-sustaining filtering than any legal framework can provide: they will either become effective, or they will disappear. The corollary is that there is no longer any need for property-like restriction rights or execution modes that are incompatible with the continued development of information commons and a many-to-many continuum information society. The debate is no longer about physical resources: for information, a new paradigm is needed, a new concept of relationships between creators, producers and users.

This new approach is emerging only gradually. It took a long time for printing to lead to concepts of freedom of expression or democracy – and the recognition of the new world order being created by the information age is not instantaneous either. But building a many-to-many information society is a noble goal – a necessary, if insufficient, precondition to building a free society in general. And some positive developments can already be seen, as these thoughts are inserted for the first time into international organisations as proposals, sometimes in incongruous alliances. The process needs to be extended – notably by creating a new generation which is brought up with a radically different view of the nature of ownership and information. What is needed, concluded Aigrain, is a generation of lawyers who have been trained without any contamination of the out-of-date world of intellectual property rights.

James Love, Director of the Consumer Project on Technology, warned against artificially turning an abundant commodity into a scarcity, by inappropriate use of intellectual property rights over information. He made a powerful plea for more precision in the intellectual property debate, and for a clearer focus on the interests of society as a whole.

A new approach is needed to reconcile the public interest in accessing the products derived from new knowledge, with the public interest in stimulating invention. Success will depend in part on a more accurate understanding of terminology. The "knowledge commons": the combination of knowledge and information that is not owned by anyone (broadly speaking, the public domain), or which is made available to the public by its owners, for free, or which can be freely accessed and used by the public, in areas where rights are limited by legal rules or by custom.

Intellectual property is itself a questionable term, which has acquired a propaganda value, and the aggregation of terms tends to confuse people. In reality, intellectual property covers not just patents, copyrights, trademarks, and trade secrets, but also a long list of other rights, including broadcaster rights, webcaster rights, rights of publicity, plant breeder rights, sui generis database protection, rights in pharmaceutical test data, orphan drug exclusivity, pediatric testing exclusivity, boat hull protections, publication rights, DRM/TPM measures, contractual protections of non-copyrighted materials, protection of traditional knowledge, folklore, access to genetic resources, material transfer agreements, and many other fields. In terms of broadcasting or podcasting, "rights" might more accurately be termed "power", "restriction", or "monopoly" – even the "power to steal" or "power to expropriate".

And the selective use of terminology further confuses the issue, argued Love. Defenders of intellectual property rights tend to use negative terminology for the activities of those seeking greater access (such as "piracy", "theft", "counterfeit"), and positive terminology in association with their own activities: "innovation", "wealth-creation", "incentive" and so on. Similarly, a loaded vocabulary is used by those seeking greater access, describing the exercise of rights in pejorative terms such as "monopoly", "privilege", or "anticompetitive", and their own actions in association with positive terms such as "freedom", "sharing", or "access".

The massive systems and resources deployed for promoting private goods can serve as a model for the knowledge commons too – but not to protect it or restrict access to it. Instead, efforts should be made to promote it, because unlike private goods, the knowledge commons is not a finite resource. The debate should turn not on disputes over legal niceties specific to one form of restriction, but instead on access to medicines - with new global frameworks for medical R&D, and on access to knowledge – not just music, but ranging across science and political discourse.

Discussion focused particularly on the extent to which the exercise of intellectual property rights inhibited access to knowledge even when creators wished to put it at the disposal of the widest public. Bruce Lehman of Akin Gump, Strauss Hauer & Feld rejected any suggestion that the world of rights holders is trying to impede the emergence of the information age by maintaining a stranglehold on free diffusion of material. While a rights holder may justifiably choose to protect his own rights, he has no power to limit the free choice of any individual creator to dedicate work to the public domain so it can be shared on a many-to-many basis. Everyone can join this community if they want to, as open source movement demonstrates, and nothing prevents it, he argued. But Aigrain defended his thesis that in practice, the interdependence of many creations and inventions allows holders of intellectual property rights on a component to block access to the whole, frequently frustrating some creators' wishes to contribute voluntarily to the information commons.

IP and the Knowledge Commons – Lobbying and Advocacy

Susan Sell of George Washington University depicted intellectual property as a servant that had become a master, and that had turned into a mechanism for depriving the world of access to books, seeds drugs, rather than facilitating it. Academic and scientific publications, drugs and seeds are vital to life chances, and intellectual property should also respond to social goals in terms of public health, malnutrition, and human capital through knowledge. But expanded rights have been accompanied by marked economic concentration, and current economic thinking behind intellectual property fails to take account of which publics are being served by the system. In consequence, small farmers in developing countries are left poor and unprotected.

Governance ought to incorporate a broad range of stakeholders rather than only the narrow group it has been focusing on, but it is difficult to promote constructive discussion in the complex institutional and regulatory context for intellectual property. Meanwhile, the baseline has shifted away from public access and towards private reward, and the system of protection is so multidimensional that a geneticist wishing to develop golden rice for distribution in poor countries was confronted with 70 patent holders across 32 organisations, requiring a year's delay and high cost to obtain access. Rich countries that built their wealth on lax intellectual property protection and discrimination are now rigorous defenders of intellectual property rectitude – and are determined to stop developing countries behaving as they used to.

As the current rules evolved, consumers were remote from policymaking. They are only now, in new alliances, often under a human rights rubric, starting to force the corporate world to take account of broader issues of access to knowledge, medicines, health, or sustainable agriculture. It is still an unbalanced struggle owing to the asymmetric power of the two sides, and the corporate lobby has intensified its efforts to influence governments towards rigorous interpretation of intellectual property rules, and to impose economic pressure on developing countries to sign up in bilateral agreements to more than what is provided for under international rules such as TRIPS (known as “TRIPS-plus provisions”).

Sells' advice was that consumers will have to make it more expensive for intellectual property defenders to fight for the status quo – taking advantage of opportunities such as avian flu to argue for compulsory licences on medicines, exploiting EU-US differences, such as on intellectual property on software, and building more adventurous alliances with other activist groups sceptical about intellectual property.

Sangeeta Shashikant of the Third World Network lamented the shift towards ownership of material that should be available for the common good, with the progressive tilt in favour of intellectual property owners, mainly from developed countries. She outlined some of the worst excesses of patent grabbing – notably on naturally occurring compounds, genes or gene sequences from plants which are traditionally grown in developing countries or are staple food crops. And she detailed how legislation and litigation was progressively favouring the interests of corporate patent holders over small farmers. She offered a nightmare vision of an uncontrolled stampede to auction off technological and cultural heritage in a context of increasing conflict and dissension.

International agreements strengthening intellectual property – particularly TRIPS – had been negotiated with little consultation, involvement or understanding among developing countries, she said, and had imposed new rules on them such as 20-year drug patents, in return for still-unfulfilled promises of increased market access in agriculture. Developing countries remain subject to strong pressures to accept tough intellectual property regimes.

As civil society becomes more aware of the impact of intellectual property on essential goods such as medicines or educational materials, the possibilities increase for emphasising the priority of health and development over commercial interests. It was civil society pressure that in part led to the Doha Declaration on TRIPS and Public Health in 2001. Awareness is also growing of biopiracy, and there is the start of action by developing countries and non-governmental organisations to counter it. Similarly, campaigns against patents on life forms are gathering momentum. Overall, civil society has triggered arguments over the need to evaluate the intellectual property system, particularly in the developed countries, to assure better balance between public and private interests, and to allow the policy space for each country to determine and design its own system, according to its own needs.

Sisule Musungu of the South Centre suggested that the underlying assumptions of international agreements on trade and intellectual property should be questioned. The comparative advantage justification that has traditionally been advanced – with the north exporting intellectual property while the south gains market access for agricultural goods in return - is no longer adequate in a more complex world. What is valid for developing countries is not necessarily valid for the least developed countries, who risk exclusion unless the language of advocacy lobbying is reassessed.

Musungu was particularly sharp in his denunciation of the closed mindset that rejected or resented interventions from least developed countries on intellectual property matters. The challenge for advocacy is to make clear that policy on intellectual property should not be made only by people who have worked in patent offices.

In discussion, the complexities of the challenges were underlined. While TRIPS has theoretical merits in offering flexibility over compulsory licensing and development priorities, developing countries are reluctant to take advantage of these possibilities because they are threatened with US trade sanctions or FDI droughts. While all developing countries have some interests in common, the approach to intellectual property – even among the more developed of them – varies widely, with China now seeking dominance in a patent "gold rush", Brazil taking a soft line on genetically modified organisms but a tough line on software patents, and India accepting drug patents but rejecting software patents. And even if there might be economic justifications for imposing higher intellectual property standards so the north can obtain higher rents from the south, the interests of consumers – both north and south – should also be taken into consideration in policy making.

IP and the Knowledge Commons – Political parties

David Hammerstein MEP, from the Green Group in the European Parliament, maintained that open knowledge is a new way of perceiving public good and private good, based on the awareness that innovation is not diminished by sharing. It is a mistake to follow a purely faith-based view that intellectual property automatically generates innovation, or jobs, or social or ecological cohesion. By conferring a temporary monopoly, intellectual property rights impede progress. The real issues are to ensure that public investment in research – such as in the EU's framework programmes - flows back into the public good, and to prevent over-strict intellectual property stifling innovation among smaller firms, limiting the flow of scientific journals, or imposing restrictions on digital libraries. It is not a discussion merely about items of knowledge on pharmaceuticals or about pieces of music: it is a new philosophy of society – with genuine free movement of services. What is needed is a broader debate on genetic and environmental issues, on the risks of undermining the common wisdom of millions of rural dwellers, or on the risks of patents blocking progress towards a dynamic service-based knowledge economy.

For Bruce Lehman of Akin Gump, Strauss Hauer & Feld, intellectual property is not a party political issue, as was demonstrated by the alliance formed between Greens and the European People's Party in the European Parliament over the software patents directive. But on grounds of his own personal convictions and his professional experience, he disagreed with claims that intellectual property retards growth or handicaps smaller firms. He was proud of his own record in Democrat administrations in helping stimulate economic growth through inventions protected by intellectual property. He stood by Democrat extensions of patent protection to new areas of technology, and by what he cited as the results: companies that had been embryonic have now come to assume 80% of the world market for software. Far from stifling growth, intellectual property had helped convert a depressed area in 1975 into what is now Silicon Valley. The US' ability to create jobs displaced from manufacturing has come from IT industries that have grown because of their links to strong academic institutions in an environment of intellectual property protection.

But he admitted to a regret over TRIPS – which he negotiated, and which he still believes in and makes no apologies for. If he were negotiating it now he would do it differently in one respect, to avoid what has been, he said, a huge failure for the US. The underlying bargain of TRIPS has not been respected on both sides, Lehman maintains: as the counterpart to increased intellectual property protection, the developed countries allowed market access to manufactured products from low wage countries – to the extent that even the Ipod is manufactured in China. But breaches of intellectual property protection in advanced developing countries are undermining the deal with piracy rates for software in China are as high as 90%. The developed countries should have introduced labour and environmental standards into the TRIPS agreement to ensure a more level playing field in manufacturing.

Rufus Pollock of the Foundation for a Free Information Infrastructure also felt there are no strong political party positions on intellectual property. Unlike the predictable right/left splits on labour law or monetary policy, there is no discernible ideological differences between political groupings in any country on intellectual property. The result is that voting patterns in legislatures are highly unpredictable – ranging from 100% in favour of copyright extensions to total splits on the software patent directive.

The underlying cause is an imbalance in the representation of interests. Although there are two distinct sets of interest – rights holders and the general public – it is rare to find the interests of the general public clearly set out. By definition, the public is dispersed, and – unlike rights holders – does not constitute a highly organised group. In consequence, a handful of companies dominate the music industry, and the debate over rights is conducted unevenly.

Pollock predicted that this situation would, however, change dramatically in the future. Awareness is growing of the importance of intellectual property issues, and civil society is starting to build positions accordingly. The debate about intellectual property and innovation is in the same phase now as the debate on environment was 40 years ago – before Greenpeace, climate change., or Kyoto. And it will evolve in similar fashion, with civil society involvement raising the quality of the debate and ensuring better representation of the interests of the public.

John Howkins of the Adelphi Charter accused the political class generally of paying insufficient attention to such a vital subject as intellectual property. In no other area of public policy is there such political ignorance and hot air. While there is a general expectation that politicians have a duty to go out and collect the evidence on subjects they form policy on, in intellectual property this basic preliminary exercise is considered unnecessary.

The lack of coherent or informed intellectual property policy – such as Howkins claims to have encountered in the UK, Brazil, France, or China – leaves governments incapable of striking the right balance in the inevitable trade-off between protecting innovation and providing for the public interest. Meanwhile, governments and international organisations are nonetheless continuing to make and modify rules, frequently strengthening property rights without a clear understanding of the impact on the public or on developing countries. Civil society must force politicians to do the research necessary to enable them to answer tough questions about where intellectual property moves from gain to loss for society.

The discussion revealed wide, though not unanimous, agreement that intellectual property policy discussions are unpredictable and often ill-informed, and that decisions tend to emerge which are not in consumers' interests, largely because politicians are easy prey to industry lobbyists vaunting intellectual property's merits in stimulating innovation and growth. The pharmaceutical industry was repeatedly criticised for its avaricious approach to intellectual property. Even where health emergencies might argue for suspension of patent protection on potentially life-saving treatments in short supply, other forms of intellectual property protection are still likely to be invoked to prevent copying, and the pharmaceutical sector remains firmly attached to the principle of injunctive relief to prevent infringements, it was alleged. The industry was also accused of frustrating the supply of generic medicines to the developing world, and of preferring to see people die rather than to sacrifice its intellectual property.

IP and the Knowledge Commons - new political paradigms

In the view of Tom Faunce of the Australian National University, the multinational corporate push for globally increased intellectual property – or what he chose to term "global intellectual monopoly privileges" (IMP) - is causing a world crisis in the governance of knowledge, development, culture and wisdom. Concentrated corporate ownership and control of knowledge, technology, biological resources and culture fosters growing inequality of access to education, knowledge and technology, undermining development as freedom, democracy and social cohesion.

It is not enough for a system just to fuel the economy. It is also reasonable to expect wisdom in a system. A public goods-focused institutional structures should provide legislation conducive to not-for profit corporations, constitutional protections of universal access to health care, education, social security and accident compensation, government-funded research, legislative protection of whistleblowers, and strong anti-trust laws and administrative agencies.

Some comfort may be derived from selected current developments, including the WIPO Development Agenda, the WTO general agreement on provisions of public goods, and the increased roles for non-government organizations in normative decision-making. But there is an urgent need to go further, with, for instance, a safety and cost-effectiveness treaty for medicines, and similar provisions in bilateral trade agreements.

It is time to abandon the "one-size-fits-all" approach in intellectual property, and replace it with evidence-based policy making taking more account of the particular characteristics of each country and sector, said Sisule Musungu of the South Centre. Otherwise, misconceptions will triumph, and the interests of the least developed countries will be overlooked as the EU and the US battle it out in international fora with the likes of Brazil, India, or South Africa.

An urgent response is needed to the extension and intensification of exclusive intellectual property rights that liberal globalisation is promoting, argued Mohamed Ben Ahmed of the University of La Manouba in Tunisia. He not only questioned the logic that associates intellectual property protection with innovation. He suggested the alternative of a collaborative and sharing approach in which knowledge is seen as a public good – a "Knowledge Society for All".

By placing access to knowledge at the head of equality concerns, a global movement can defend the social aims of intellectual property, recreating its balance and reintroducing a humanist and cultural dimension into the legal apparatus. This framework helps extend citizenship and democracy, by protecting authors, researchers, and innovators while allowing access to and use of all knowledge on the planet.

The discussion ranged over how much developing countries risk – in terms of lost alliances – when they sign up to the intellectual property camp, and how far any generalisations about the interests of LDCs are meaningful or useful, given their heterogeneous natures and interests. The race towards harmonisation was severely called into question. But despite some obvious attractions, dismantling TRIPS is not necessarily the answer. And abolishing LDC obligations under TRIPS would be a two-edged sword too, since it would leave unprotected LDCs' own innovation systems. Unless TRIPS was to be abolished internationally for all countries, exemptions for LDCs could marginalise them. The legitimacy of democratic process was also questioned – given that there are rarely national debates before sighing up to international treaties, and that, according to some extreme views, parliamentary democracy is no more than window dressing to legitimise oligarchy, that is subservient to the interests of corporate CEOs.

Concluding comments and reflections

Jill Johnstone of the National Consumer Council urged consumers to take control of the negative and exclusive language deployed in discussions of intellectual property, to resist characterisation of consumers as pirates and thieves. She also wanted to see consumers demanding that policymakers provide more hard evidence for their decisions and for their expectations from them.

Sangeeta Shashikant of the Third World Network questioned the purpose of intellectual property rights, and, even if they are accepted to be conducive to innovation, how much intellectual property is needed. More rights is not the answer: the motivations for innovation for top scientists are not intellectual property. The nature and scope of rights may need changing according to the product protected, since a grant of exclusive ownership may have costs for society: it is necessary to decide where to strike the balance between public and private interest on a sustainable evidence-based system – for vital items like seeds, medicines, learning tools, where there could be a different approach than for mechanical inventions or software.

Peter Drahos of the Australian National University offered two guiding principles. One was to allow for experiments in property – since experimentation in property rights aided 19th America to grow. But nowadays the US runs an intellectual property system that reflects its current "winner-takes-all" mentality. That may work well for the US - with its massive university and venture capital infrastructure - but it doesn't necessarily translate well to other countries. The other guiding principle is to tolerate diversity. Diversity makes for stability. Countries should be allowed to view their economy through different value sets. A single world policeman should not be trying to harmonise everything.

Bruce Lehman of Akin Gump, Strauss Hauer & Feld wished intellectual property rights were as important as this conference had suggested, but in reality they are not the controlling political or economic influence in the world. He is comfortable with the idea of changing the intellectual property terminology – as far as he was concerned, it was necessary only that something was defined so as to be able to put intangibles into a container and allow them to be traded in commerce, which is where the incentive aspect is at its strongest. And while intellectual property can be used in an abusive and anticompetitive manner – just as all property rights can – there is nothing in the intellectual property system that constrains the business model for trading intellectual property – anyone can give it away whenever they want.

Kenneth Cukier of The Economist sees intellectual property as a means rather than an end – and counselled against dogmatic views on how policy is crafted, as long as it attains its desired objective. His preference is for a market-based approach because of markets' ability to aggregate information. Since it is a man-made creation, man can decide and define how to use it and what goals it should serve. And while it has brought benefits, balance must be maintained, and nuances are needed where there's a market failure or where it's been captured by market interests. But if intellectual property reformers want to influence the evolution of intellectual property, they will have to raise their game – or they will be outgunned by the big and better-trained battalions defending the status quo.

The last word fell to James Love, Director of the Consumer Project on Technology, who welcomed the wide range of inputs that TACD was receiving, and that enriched its understanding of issues and policies. He recognised that better methods of communication were needed, but felt it was some real achievement that civil society and consumers are no longer being patronised by people in power as they were ten years ago. Future success depended on continuing to to work collaboratively and constructively, and to ensure that the debate is not conducted only at the level of technical specialists.