yalepatents.org is on temporary hiatus while I finish my dissertation, but I thought I’d share some relevant sources of procrastination from the past few weeks.  First of all, On Point, the news program from WBUR-Boston, hosted a discussion on gene patenting and the Myriad/BRCA case.  Tom Ashbrook and his guests hold an accessible discussion, providing a nice starting point for those interested in gene patenting and biotech industry.  Notably, Chris Hansen of the ACLU defends his organization’s side in the case, arguing that a ruling in favor of the plaintiffs will not hinder biotech patents, but will promote competition and innovation in the industry.

Getting away from the economic immediacy of biotech intellectual property, some recent literature begs the question: what is professional bioethics good for?  Some of the recent discussion has been prompted by a new book, Observing Bioethics, by Renee C. Fox and Judith P. Swazey.  Though I look forward to reading it as soon as possible, Sally Satel provides a provocative review in The New Republic. Satel, a resident scholar at the conservative American Enterprise Institute, has written that the political and professional wing of the bioethics movement (in government and on hospital staffs) has distracted attention from its academic soul, transforming a philosophical field into an activist one.

Arriving as populist movements battle healthcare reform, this critique of bioethics is quite timely.  However, the anti-bioethics position conveniently, and attractively, avoids anti-elitism.  Satel argues in a recent essay from the Hoover Institution that bioethicists simply don’t have an expert advantage over average citizens the way geologists do in the climate change debate.  Rather, when they participate in the political discussion or on hospital review boards, “their value is mainly cosmetic or bureaucratic”.

The Obama administrations’s Office of Science and Technology Policy has extended the deadline for comment about new rules requiring the results of government-funded research be available to the public.  These rules will, most likely, undercut the current system of research journals, which make money by charging both authors and readers (subscriptions run in the thousands of dollars).  The Electronic Freedom Foundation has weighed-in on the issue, calling public access “so blindingly, obviously good that you have to wonder why it hasn’t already been implemented.”  At Techdirt, Mike Masnick, who writes about the economics and politics of new media, says of science journals: “It’s a great scam, and they don’t want it to end.”

Open-access journals have come into their own recently; some of the titles from the Public Library of Science (PloS) have even broken even, showing that quality, peer-reviewed journals can operate with an open model.  However, as I wrote a few days ago, there is a spectrum possibility when it comes to “public access”.  Public repositories such as PubMed Central provide access to publications (i.e. text, figures, and supplementary data that is included in the original paper).  As research becomes more data intensive, the real challenge is going to design systems to hold extremely large data sets, and provide the public access to that data in the form of useful, interpretable “information”.

Bono, the lead singer of U2 (and the leading anti-poverty sunglasses model), has little apparent connection with biomedical patents.  However, featured prominently on the Times Op-Ed page last week was his version of the 10 ideas most likely to “change our world” over the next decade.  Number 2?  Enforcing intellectual property rights. Many people probably wonder why that seemingly simple priority is the slightest bit controversial (I used to be one of them).  This confusion is rooted in the pervasive, often unconscious, and wholesale embrace of the role of the state in enforcing claims to ideas and knowledge.  Indifference toward our government-imposed model of intellectual property has enormous implications for the status of knowledge, the relations between government and industry, and the future of a technological society.

Photo: David Shankbone

Maybe I’m taking Bono a bit too seriously.  (In all honesty, I haven’t really thought of him much since my days as a 14-year-old Achtung Baby fan).  In spite of his many good intentions, his status as an official, though occasional, Times Op-ed writer has seemed like an embarrassing attempt at hipness by the paper.  At least the Times hasn’t run an entire issue dedicated to Bono’s causes, as the UK’s Independent did in 2006.  From any reasonable perspective, the argument he makes about enforcing intellectual property rights is cringe-worthy, and reveals a surprising lack of political sophistication from someone who regularly meets with world leaders.  Claiming, as he does, that we should model a music-sharing crackdown on China’s internet censorship techniques, by encouraging the government to “track content” as it attempts to do with child pornography, is downright scary.

Scholars of law and society have said it before, much more eloquently, but our collective attitude toward the way our government administers knowledge and ideas is simple: indifference.  This contrasts starkly with many other issues that get people riled up: healthcare legislation, global warming, red-light cameras, terrorist investigations, vaccinations.  Even (or especially) among the tea-party masses supposedly surging up in a populist roar, it is clear that a large portion of our society cares about way the state treats them, and has some notion of their ideal government.  If the issue is guns or estate taxes, different groups are readily massed to debate the benefits and evils of government regulation.

Except among an echo chamber of legal and tech nerds, however, intellectual property is one gigantic role that government has carved out for itself that no one else really seems to notice, or care about.  As Bono points out, technology has brought huge changes to the ways that knowledge and technology is created and disseminated.  He fails to point out the equally gigantic power the government has taken, with surprisingly little public outcry, to protect those who would be considered “special interests” in any other political battle: copyright and patent holders.

There are several factors that have led to this situation, but the blame lies with the public itself.  There has been excellent PR on the part of those that benefit from lengthy copyrights and patent tangles–content owners, attorneys and other powerful institutions.  And, as imperfect and irrational beings we, ourselves, are confounded by this thing called intellectual property.  In the context of copyrights, James Boyle terms it “cultural agoraphobia”: a natural human tendency “to undervalue the importance, viability, and productive power of open systems, open networks and nonproprietary production.”  (For more, read his excellent book, The Public Domain).  He and others have also pointed how difficult for us to determine ownership, if any, of knowledge and content that flow as easily as bits, since we still mostly among physical property.

This is not a diatribe against the government’s role in maintaining a system of intellectual property rights.   However, I’ll give my own prediction for the next decade’s “big idea”: unless the public asks much more serious questions about how intellectual property rights are created and enforced, those who profit from them will see to it that our government expands to their aid, at an incalculable cost to all of us.