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Tuesday, December 09, 2008

Bollier on Wirtén on the public domain

David Bollier, The Public Domain as a “Jungle”, On the commons, October 28, 2008.  A book review of Eva Wirtén's Terms of Use:  Negotiating the Jungle of the Intellectual Commons, University of Toronto Press, September 2008.  Excerpt:

...In her new book, Terms of Use: Negotiating the Jungle of the Intellectual Commons, Eva Hemmungs Wirtén offers up an internationally minded, interdisciplinary meditation on the “intellectual commons.” Wirtén, a professor at Uppsala University in Sweden, is developing a sophisticated new frontier of public domain scholarship.

Not only does she explore the value of the public domain in history, and especially the tensions between industrialized and developing nations; she is comfortable discussing the commons as something distinct from the public domain and is conversant with the subtle, complicated political dilemmas posed by the commons.

Wirtén’s special interest in Terms of Use is the non-western, “undeveloped” world....

This raid of the South by the North has reached the point today, writes Wirtén, that plant genetic material from the less developed regions of the world provide “the base for fully 95.7 percent of the global food crop production.” Yet in 2002, Europe, the U.S. and Japan owned nearly 90 percent of all biotechnology patents filed at the European Patent Office....

Wirtén usefully explores the neglected underside of “openness” and “freedom” that American progressives champion. She points out, for example, that expansions of the public domain have been highly useful to multinational corporations as they seek to appropriate the genes, ethnobotanical knowledge and cultural works of indigenous cultures. If such resources must be “open” and in the public domain, then the most powerful, resourceful players will be free to appropriate and privatize them as they strive to develop commercial products. This theme has been powerfully explained by Anupam Chander and Madhavi Sunder in a notable 2004 law review article, “The Romance of the Public Domain,” which is recommended reading for anyone interested in this issue....

[P]aradoxes abound. Even though public universities have been in the forefront of patenting scientific research, they are also leading new efforts to establish new types of “science commons” for data, journal articles and research.

Similarly, even though large drug companies are aggressively patenting biological knowledge, they are also in the forefront of establishing new research commons in order to share data. The companies increasingly realize the dangers of the so-called “tragedy of the anti-commons,” in which fragmented and dispersed property rights make it difficult to share and collaborate, and therefore to innovate....