October 22, 2020

Bill Gates: Is he an IP Maximalist, or an Open Access Advocate?

Maybe both. On July 20, the Wall Street Journal reported:

Frustrated that over two decades of research have failed to produce an AIDS vaccine, Microsoft Corp. Chairman Bill Gates is tying his foundation’s latest, biggest AIDS-vaccine grants to a radical concept: Those who get the money must first agree to share the results of their work in short order.

I can’t link to the full article because the Wall Street Journal – the only major American newspaper whose online operation is in the black – puts nearly all of its online content behind a paywall. But as it happens, there isn’t a great deal more to say on this topic because the Gates foundation has declined to specify the legal details of the sharing arrangement it will mandate.

Grant recipients and outside observers were unsure whether data-sharing requirements of the grants could pose potential legal or patent conflicts with Mr. Gates’s vow to respect intellectual property. Foundation officials said this week researchers would still be free to commercialize their discoveries, but they must develop access plans for people in the developing world.

The foundation declined to make its attorney available to address these concerns.

As David Bollier noted, the lack of detail from the Gates Foundation makes it difficult to know how the tradeoffs between sharing discoveries, on the one hand, and using IP to harness their value, on the other, will actually be made. But be that as it may, there seems to be a general question here about Mr. Gates’s views on intellectual property. As Mr. Bollier put it, it may appear that hell has frozen over: that Mr. Gates, whose business model depends on the IP regime he frequently and vigorously defends, is retreating from his support of extremely strong intellectual property rights.

But hell has (as usual) probably not frozen over. The appearance of an inherent conflict between support for strong intellectual property rights and support for open access is, in general, illusory. Why? Because the decision to be carefully selective in the exercise of one’s intellectual property rights is independent of the policy questions about exactly how far those rights should extend. If anything, the expansion of IP rights actually strengthens arguments for open access, creative commons licenses, and other approaches that carefully exercise a subset of the legally available rights.

If copyright, say, only extends to a specified handful of covered uses for the protected work, then an author or publisher may be well advised to reserve full control over all of those uses with an “all rights reserved” notice. But as the space of “reservable” rights, if you will, expands, the argument for reserving all of them necessarily weakens, since it depends on the case for reserving whichever right one happens to have the least reason to reserve.

And just as it is the case that stronger IP regimes strengthen the case for various forms of creative commons, open access and the like, the reverse is also true: The availability of these infrastructures and social norms for partial, selective “copyleft” strengthens the case for expansive IP regimes by reducing the frequency with which the inefficient reservations of rights made legally possible by such regimes will actually take place.

That, I think, may be Mr. Gates’s genius. By supporting open access (of some kind), he can show the way to a world in which stronger IP rights do not imply a horrifyingly inefficient “lockdown” of creativity and innovation.

Comments

  1. Doug Lay says:

    Where did you get the information that the WSJ is the only major American newspaper whose online operation is in the back. Seems like I reacall from a couple of years back that the NYTimes was in he black (this was before TimesSelect) while the WSJ was still working toward profitability.

  2. Creative Commons unwittingly has the same effect: “Look at how good it is that everyone has so many IP restrictions, they can then be beneficient in waiving these as appropriate”.

    It’s as if this is an argument for having the privilege to enslave, because it consequently enables the owner to grant liberty.

    Perhaps it would be better if all published art was emancipated?

    Why does anyone need to restrict another’s freedom?

  3. I think perhaps you are being too charitable in your analysis. I don’t believe Bill Gates is motivated by any higher principles.

    Bill Gates can afford to demand that results be shared for two reasons:

    1) The intellectual property that determines his net worth is in a totally different domain than AIDS research. It won’t affect *his* bottom line if he doesn’t patent a vaccine.

    2) He controls the research cash in this case. Grantees have to accept his terms or lose the grants. I presume that the grants are targeted at university labs, where cash is a serious issue.

    The Protein Data Bank went through a similar squall, as I recall. I believe at some point the NSF (National Science Foundation) began to demand that grantees release their crystal structures within some pre-specified period of time, so that the rest of the scientific community could build on their work. A patent-like delay was built in so that the scientists doing the grunt work (solving structures) would also have time to do scientific analysis and publish it. But ultimately, the structures would have to be released for the benefit of the entire community. The argument was that the NSF was a *public* funding source, and as such, the public deserved the benefits of the research. I’m not sure Bill Gates can make quite the same case, but then, he controls the purse strings. Though I’m sure he’s aware of the precedent he may be setting, I just don’t think he’s terribly worried about being inconsistent.

  4. john s erickson says:

    The full text of the WSJ article is available here:

    http://yaleglobal.yale.edu/display.article?id=7860

    Took about five seconds to find via you-know-what…

    John

  5. Bill Gates is so whooped. He was a grinch until he got hitched. We can thank his wife for bringing him around. I wish she would talk to him about WGA too.

  6. enigma_foundry says:

    The ability of the NFP sector to leverage open source IP regimes gives it a critical advantage to the for profit sector, when it comes to large scientific endeavors. I know this is a somewhat of a fringe idea right now, (and was even more so when I presented this idea in a paper in back in 2003) but I’d suggest you look at what some NFP’s are doing in the pharma research and development sphere.

    Here a a couple that are pretty impressive:

    http://www.danforthcenter.org/
    &
    http://www.stjude.org/

    And look at the Intellectual Property Sharing that the Danforth Center participates in: http://www.pipra.org/main/purpose.htm

    Now consider the following:
    1. There are considerable tax and legal advantages to being a non-for-profit;
    2. The IP sharing that NFP’s participate will give them more IP at less cost.
    3. The NFP sector as of 1997 was the third largest contributor to the GDP, contributing $349 billion to the U.S. economy, dwarfing the $85 billion contributed by the motor vehicle parts and manufacturing sector, for example. This sector has grown at an average annual rate of 5.1% from 1993 to 1998, beating GDP growth which was 3.1% annually. And this before the baby boomers reach their prime years for donating.

    My prediction: The NFP sector is going to be a big competitor with the for-profits in pharma RD&P.

    Oh, BTW the numerous nuisance law suits between big pharma over IP are not going to happen to the NFP sector. Before big pharma legally attacks an NFP they are going to have to have a ironclad case. Not saying it can’t happen, just that a for profit is going to think twice before suing an NFP, especially one with high visibility.

    So there are several key advantages of the NFP sector over the traditional for profit pharma RD&P infrastructure.

    What are the disadvantages?

  7. How is the AMD thing relevant here?

  8. enigma_foundry says:

    I think perhaps you are being too charitable in your analysis. I don’t believe Bill Gates is motivated by any higher principles.

    I am now fan of Microsofts business practices, but many of Andrew Carnegie’s competitors were not fond of his business practices. But at the end of the day, Bill Gates is just a man like all of us. It is much to his credit that he is building this charity.

    Bill Gates can afford to demand that results be shared for two reasons:
    1) The intellectual property that determines his net worth is in a totally different domain than AIDS research. It won’t affect *his* bottom line if he doesn’t patent a vaccine.
    2) He controls the research cash in this case. Grantees have to accept his terms or lose the grants. I presume that the grants are targeted at university labs, where cash is a serious issue.

    Well, it appears there is one reason hear not two. You are representing the voice of the for profit sector, and you don’t understand how you will compete with the NFP/NGO sector. You understand enough to see clearly that the NFP sector will be able to out compete you. Well, that’s exactly how markets build value–through disruptive business models, which are ultimately transformative.

    ……Though I’m sure he’s aware of the precedent he may be setting, I just don’t think he’s terribly worried about being inconsistent.

    Recall that Windows took off after it was hitched to an open standard (that of the PC, developed by IBM. Without that standard, would Windows have attained its “viral” growth….? I doubt it.

    You mentioned the protein data bank, and just in case your still hungover

    😉
    http://www.rcsb.org/pdb/static.do?p=education_discussion/molecule_of_the_month/pdb13_1.html

  9. “[T]he Wall Street Journal — the only major American newspaper whose online operation is in the black — puts nearly all of its online content behind a paywall.”

    Not a coincidence, I suspect. If your content is so compelling that hundreds of thousands of people are prepared to pay for it, you’ll make money. Your observation reminds me of the annual appearance of the NYT story headed something like, “Crime rate drops, but incarceration rate rises.” Well, of course.

  10. “[T]he Wall Street Journal — the only major American newspaper whose online operation is in the black — puts nearly all of its online content behind a paywall.”

    Not a coincidence, I suspect. If your content is so compelling that hundreds of thousands of people are prepared to pay for it, you’ll make money. Your observation reminds me of the annual appearance of the NYT story headed something like, “Crime rate drops, but incarceration rate rises.” Well, of course.

  11. – a charity is the most viable form of business model for the richest man to be.
    from a tax perspective it means he can do more and keep more of what he has.

    – sharing between the staff of your organisation and including groups you pay to do a job is not usually considered open source or revolutionary.

    – this person with this amount of money claiming patent realestate in world health
    would mean that the world would be locked into dependence on Gates for access to
    the right to develop cures and medicines.

    I see no evidence of open source ethics.
    Without them this person with more money than the World Health Organisation
    has just moved to an area where he can claim more patent assets because really unusual and innovative and valuable new patent material is probably currently more available in medicine than computing.

    There has been no act or announcement which idicates anything other than
    optimal business strategy for a patent holder business at this point.
    Open access to medical research may well be more restricted as a result.

  12. Doug Lay says:

    I still haven’t seen support for the claim that the WSJ is the only major American newspaper whose online operation is in the black. That’s an ideologically-loaded claim (sinec the WSJ, unlike most papers, charges to view most of its content), especially since it’s dropped in as an aside in a post about something else. It would be nice to see some backup for this claim.

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