A TRAGEDY OF THE PUBLIC KNOWLEDGE ‘COMMONS’? Global Science, Intellectual Property and the Digital Technology Boomerang
Radical legal innovations in intellectual property protection have been introduced by the little noticed European Database Directive of March 1996. This initiative, part of the larger institutional transformations initiated in response to the economic ramifications of rapid progress in digital information technologies, poses numerous contentious issues in law and economics. These are likely to create ambiguities for business and non-profit activities in this area for years to come, and the terms on which those issues are resolved will materially affect the costs and organizational feasibility of scientific projects that are of global reach and significance. This is the case especially in fields such as geology, oceanography and climatology, which depend heavily upon the collection, management and analysis of large volumes of observational data that cannot be regenerated. More generally the conduct of open, collaborative science – along with many of the benefits that flow from it for the developed and the developing economies alike – may be seriously jeopardized by the consequences of the new database protections. This raises the spectre of a new and different “tragedy of the commons,” one created by continuing the unbalanced pressure to extract greater economic rents by means of controlling access to information. “Over-fencing,” which is to say, the erection of artificial cost barriers to the production of reliable public knowledge by means of reliable public knowledge, threatens the future of “the public knowledge commons” that historically has proved critically important for rapid advance in science and technology. The paper sets out the economic case for the effectiveness of open, collaborative research, and the forces behind the recent, countervailing rush to strengthen and expand the scope of intellectual property rights protection. Focusing upon innovations in copyright law and the sui generis protection of hitherto unprotected content, it documents the genesis and analyzes the economic implications of the EC’s Database Directive, and related legislative proposals (H.R. 3125, H.R. 354 and H.R. 1858) in the US. The discussion concludes by advancing a number of modest remedial proposals that are intended to promoted greater efforts to arrive at satisfactory policy solutions for this aspect of “the digital dilemma.”
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