Open Access News

William New, Inside Views: The Last Defence Of The IP System: An Interview With Jamie Boyle, Intellectual Property Watch, January 28, 2009.  Read the whole interview; Boyle makes great good sense.  I've had to limit this excerpt to the parts with the strongest OA connection:

James Boyle is a leading thinker on copyright and knowledge access, and is author of a new book called The Public Domain: Enclosing the Commons of the Mind (available at thepublicdomain.org). He is a law professor and cofounder of the Center for the Study of the Public Domain at Duke Law School....

IPW: ...What actions do [policy-makers] need to be taking if they accept that there is in fact a problem?

BOYLE: ...I really think that some of what they should be doing is just what they do in every other area. So if I come to you and I say: “I really need you to approve this new drug, and I think it will really help, and I have a friend who took some and he feels much better.” That wouldn’t pass the laugh test....But we do exactly the equivalent of that in the intellectual property arena.

If you look at the history of the database directive, [a study of other countries] was simply not done. The EU simply presumed that since the United States was doing very well with no protection for unoriginal compilations of fact, that they would clearly do much better if they had that protection. In other words, they made the assumption that more rights obviously leads to more innovation, to more investment. In other words, they focused only on the output side and not on the input side. That’s a basic conceptual error.

The first thing that our policymaker should do is realise that every time you protect somebody’s output, their intellectual work, you extend their trademark, you give them control over some gene sequence, some line of code, you have extensive software patents, you are raising the costs of the inputs to another innovator further upstream....

IPW: You cast in a positive light, and you embody your own practice as your book is available through the Creative Commons licence, as our materials are. The benefits of open access, even of new creative works…

BOYLE: Yes, and I think my publisher, Yale University Press, commendably, allowed me to make this available under Creative Commons, and the book is, so far at least, selling very well. I think open access and commercial forms of distribution are not incompatible....

So, one of the other points I make in the book is there is a really sad tendency of the intellectual property establishment to assume that any new business method which doesn’t use the rights and methods they’re familiar with - that is to say use them to exclude - is automatically anti-intellectual property. This is just ridiculous. It’s like saying that if you have a condominium with a shared stairwell, that that’s anti-physical property....It’s not an attack, it’s a use.

IPW: Do you have a sort of formula for a creator to benefit from a more open approach? Is preventing commercial reproduction enough?

BOYLE: My position is one of agnosticism, again. I think it works for some kinds of creators in some places. I think the set of creators for whom it works is probably larger than we imagine. In the book, I argue that we have something that I call “cultural agoraphobia,” that we persistently underestimate the benefits of open approaches and overestimate the benefit of closed approaches, underestimate the dangers of closed approaches and overestimate the dangers of open approaches. So I think that in lots of situations, probably more than we imagine, it might well be consistent with it....

IPW: Would you advise the new US administration that the embracing of some of these concepts could help to spark innovative capabilities, etcetera, and help to turn around economies? ...

BOYLE: Well, absolutely. Obviously enormous amounts of money have to be pumped into all of the developed economies over the next year and a half. Everyone agrees on that....What should we be pumping it into? Right, that’s the question. And under what conditions? I think there is an extremely strong case for pumping money into research that will lead to levels of innovation and technological growth and making that research available as a public good....

We have not yet facilitated the flows of scientific knowledge in ways that I describe in the book that we could. We’ve bizarrely made a world in which the internet works incredibly well for porn and for shoes, but doesn’t work very well for the flow of scientific data....I think that changing course in that direction could actually have a powerful multiplier effect, and I give some examples in the book of places where free provision of government data has been an extraordinary method to prime the economic pump of activity....

Update (2/4/09).  Boyle has given another interview to Powell's Books and elaborates his position on OA:

[Q] By the end of your life, where do you think humankind will be in terms of new science and technological advancement?

[A] It depends. I really think we have a choice. One path actually makes the web work for science as well as it works for porn or shoes. It leaves open the basic building blocks of science, provides open access to scientific literature, and unleashes the power of the semantic web by tying together data sets, articles, and research results in a knowledge ecology more fruitful than anything we have now. The other path is a fallow set of walled private gardens of knowledge, protected by digital-rights management and strong copyright enforcement, a world where the fundamental components of new technologies such as synthetic biology are patented. (Imagine trying to develop computer science, if someone had a patent over Boolean algebra.) It's one of the most fundamental decisions in the direction of our culture. I think the choice is a real one and it is a tragedy that we don't see it.