A “fork in the road” is probably one of the more overused metaphors in the English language. However, in the case of the current moment, few would likely argue against its applicability. We have been given a terrifying glimpse at what lies down one of the paths ahead. A global pandemic has killed almost a million people, nearly 200,000 in the United States alone, and decimated the economy. The West Coast is gripped by out-of-control wildfires, the smoke from which is choking major metropolitan areas that are home to tens of millions of people. Hurricane after hurricane is pummeling the East and Gulf Coasts in one of the most active seasons on record. And protests against white supremacy, systemic racism and police brutality have been met with an increasingly authoritarian and violent response. Faced with these intersecting social, economic and ecological crises, many of our political leaders, especially those associated with the Trump Administration, have vacillated between paralysis and doubling down on an ugly and dangerous embrace of xenophobia, white nationalism, climate denial and conspiracy theories.
We must urgently change course and begin to take steps down a different path — one that leads towards a new system that is economically and racially equitable and reparative, ecologically sustainable and genuinely democratic. However, voting alone will not get us there. It will require us to fundamentally interrogate every aspect of our political economy and consciously redesign each piece. Chief among these are the interconnected systems of intellectual property (IP) and research and development (R&D), the cornerstones upon which so much of our economy is built.
Confronting the challenges ahead, most notably climate change and its associated effects (including the increased likelihood of global pandemics), will require the development of a vast array of new innovations, technologies and medicines. Moreover, it will also require rapidly deploying new and existing technologies around the world. However, in recent decades, IP protections have increasingly become a driving force for the accumulation and protection of assets by a narrow set of multinational companies and elite interests, resulting in sluggish rates of innovation, increasing economic, racial and geographic inequality, and reductions in competition, among a host of other deleterious outcomes. Similarly, R&D has increasingly been directed towards private interests and private profit, resulting in reduced public spending on R&D as a percentage of GDP and a reorientation of R&D spending (both public and private) towards maximizing profits, rather than alignment with pressing social, economic and ecological needs.
In a new report from The Democracy Collaborative (where I am Research Director) and Common Wealth (part of our transatlantic “Ownership Futures” series), we discuss how principles of democratic public ownership could inform the needed restructuring of the U.S. and U.K. IP and R&D systems. As a first step, we must rise to the challenge of boosting public R&D investment to meet the innovation needs of what promises to be a challenging century ahead. Specifically, we suggest that public funding (from all levels of government) for R&D should rise to at least 2% of GDP annually over the next ten years. In the United States, this would reverse decades of decline and return public R&D investment to about what it was in the early 1960s.
Arguably, the crises we now face are far greater and more existential than those of 60 years ago, and we should have at least the same level of R&D response. For instance on climate change alone, many experts agree that in addition to deploying existing renewable energy and carbon reduction technologies, a big increase in public R&D is critical to stopping climate change and mitigating its effects. “Many policies stimulate clean energy innovation and create global technology spillovers (e.g. carbon taxes, subsidies for renewable energy, phasing out fossil fuel subsidies),” a recent report from the organization “Let’s Fund” states. “But the most effective policy is increasing government budgets for public clean energy research and development (R&D).”
However, where this investment is channeled and who it impacts and benefits is critical. Public spending on R&D isn’t necessarily always in the public interest and is sometimes championed by corporations to bolster private profits. Boosting R&D investment in a way that promotes equity, sustainability and democracy will require, among other things, the establishment of new institutions (such as public investment banks) and more participatory governance processes, as well as the development of a broader industrial and economic strategy that focuses on securing ecological sustainability, nurturing alternative models of ownership, reducing corporate concentration and power, and strengthening workers’ rights and control.
We also need to ensure that our approach to intellectual property serves the common good and facilitates — rather than impedes — the global proliferation of critical technologies, especially those related to preventing climate change and securing public health (such as clean energy and battery technology, vaccines and pharmaceutical drugs and innovations related to food production). This includes more conventional reforms, such as reducing the length of patent and copyright terms, limiting the types of inventions and innovations that can receive IP protections, restricting patents to processes rather than products, and removing IP protections if an invention or product is not being utilized (or is being underutilized).
However, it also includes reasserting public control over the IP system (which is, to begin with, simply a set of rights and protections granted by the government). This may include building on and strengthening approaches like compulsory licensing, which allows governments to bypass IP restrictions, and laws such as 28 U.S. Code § 1498, which, as one article put it, “gives the government the right to use patented inventions without permission, while paying the patent holder ‘reasonable and entire compensation.’” It also should include ensuring that the public retains an ownership stake in, and control over, any inventions and products that were developed thanks to publicly funded R&D.
In the absence of such provisions, we risk perpetuating the current system of “double taxation” whereby the public invests in R&D for many critical products and innovations, and then pays again in the form of exorbitant prices charged by the corporations that ultimately end up controlling the product’s IP. This is particularly true in the pharmaceutical sector, and in the context of the current crisis, it appears likely that ultimately the government will be forced to spend considerable sums to purchase a successful Covid-19 vaccine from companies like Moderna, despite having already invested tens of millions, if not billions, of the public’s dollars into the vaccine’s development.
Ultimately, however, we must move away from an IP and R&D system based on enclosure and exclusivity towards greater levels of openness and collaboration. This is especially important because many of the challenges and crises we face are global in nature and will only be solved through genuine international cooperation. To do so, we suggest developing publicly owned and democratically governed IP Commons entities or IP pools that could, depending on the circumstance, operate on a license model, an open-access model or, perhaps most likely, a combination of both.
In addition to helping facilitate international cooperation in the face of global challenges, these commons entities could also be a vehicle to provide both domestic and international reparations in the form of technology transfers and R&D support. The economies of the United States, the United Kingdom, and other so-called technologically “advanced” nations were built on systems of imperialism, colonialism, racism and enslavement, and we believe that reparative approaches and global solidarity must be central to any agenda for IP and R&D reform (and democratic public ownership in the 21st century more generally).
While there is an understandable hunger in the United States for a sense of normalcy after an extended period of social and economic turmoil, a return to the status-quo of a year ago, or even four years ago, is not feasible, nor should it be desired. Doing so would do little to redirect us from the unsustainable and unstable path we are currently heading down. As difficult as it may be, we should view the current moment as an opportunity: a crisis-driven wake-up call to change course and reimagine every facet of our political economy, from the IP and R&D system on up, before it is too late.