In recent years, there has been growing recognition that the current system of intellectual property (IP) rights fails to adequately serve the public interest, particularly when it comes to research and development (R&D) funded by taxpayers. The traditional model, in which private entities retain ownership and exclusive rights to IP resulting from publicly funded research, has led to a situation where the public often pays twice – first to fund the research, and then again to access the resulting innovations. This system also fails to maximize innovation and social benefit from public investments.
To address these issues, policy experts have proposed creating an “Intellectual Property Commons” to manage IP resulting from federally funded research and development. At the heart of this proposal is the creation of an IP Commons Management Body (IPCMB) that would retain public ownership of IP derived from publicly funded projects and manage licensing of that IP to serve the public good.
The key principles of the IP Commons model include:
- Public retention of ownership: Rather than granting ownership to private entities, the federal government would retain ownership of IP resulting from research it funds.
- Mission-driven management: The IPCMB would be tasked with managing this publicly-owned IP to maximize innovation and social benefit, not just financial returns.
- Tiered licensing approach: The IPCMB would implement a flexible licensing system with different terms based on the type of entity and intended use. For example:
- Free or low-cost licenses for non-profits, social enterprises, and projects focused on public benefit
- Standard commercial rates for established for-profit companies
- Customized terms for projects with clear social impact
- Open access for basic research: Fundamental research findings would be made openly accessible to promote further innovation.
- Performance requirements: Licenses could include stipulations for licensees to achieve certain public interest milestones or outcomes.
- Transparency and accountability: The IPCMB would maintain a public database of federally owned IP and licensing information.
- Stakeholder input: Regular consultation with diverse stakeholders, including public interest groups, would inform fair licensing practices.
This approach offers several key advantages over the current system:
- It recognizes and leverages the critical role of public funding in driving innovation
- It allows the public to share more directly in the returns from its investments in R&D
- It promotes wider access to innovations, particularly for social goods
- It provides a mechanism to direct innovation toward pressing societal needs
- It maintains incentives for private sector engagement while better balancing public and private interests
Importantly, the IP Commons model does not require a complete overhaul of existing IP law. Rather, it works within the current system to better align public investments with public benefit. The IPCMB would utilize existing licensing mechanisms, but with a mandate prioritizing social returns alongside financial ones.Critics may argue that such a system could dampen private sector innovation or prove too bureaucratic. However, proponents contend that by making a larger pool of innovations accessible to more entities, it could actually accelerate innovation, particularly in areas neglected by market forces alone. The key is in creating a flexible, responsive system that can be tailored to different situations while maintaining core principles of openness, fairness, and public good.
The case has many potential advantages.
- Addresses market failures: Public R&D funding helps overcome market failures where private companies underinvest in basic research and high-risk innovation. Government funding can support important long-term and risky research that companies won’t pursue on their own.
- Spurs economic growth: Historically, federally funded R&D has led to major technological breakthroughs that drive economic growth. Restoring funding to previous levels (1.1% of GDP) could spur new innovations and industries.
- Enhances national competitiveness: Increased public R&D is necessary to maintain U.S. leadership in science and technology, especially given rising competition from China and other countries investing heavily in research.
- Creates jobs: R&D investments create high-skilled jobs directly in research and indirectly through commercialization of new technologies. This can help address unemployment during economic downturns.
- Tackles societal challenges: Mission-oriented R&D can be directed toward solving major societal problems like climate change, pandemics, etc. that require large-scale, coordinated efforts.
- Promotes equity: Targeted R&D funding and scholarships can help address racial and geographic disparities in research opportunities and economic development.
- Modernizes economic policy: Updating Keynesian theory to better account for financial systems allows for more effective responses to modern economic crises.
- Leverages private investment: Public R&D funding helps de-risk technologies and attract follow-on private sector investment, multiplying the economic impact.
- Builds innovation ecosystems: Strategic investments in universities and research facilities strengthen regional innovation clusters and ecosystems.
- Provides economic stability: Countercyclical R&D spending during down
Implementation of an IP Commons would require careful design and likely some trial and error. Key considerations include:
- Defining clear criteria for what constitutes “public funding” that would trigger IPCMB management
- Developing transparent processes for setting licensing terms
- Establishing mechanisms to track and evaluate social impact
- Ensuring sufficient resources and expertise within the IPCMB
- Crafting policies to handle joint public-private funding scenarios