Saturday, March 15, 2014

#BeyondIP Blog Symposium: Golden & Wiseman, Vertinsky, Pager, and Silbey

Following up on my opening post and our first four contributions, we have another four posts in the Innovation Law Beyond IP blog symposium at Balkinization. First, John Golden and Hannah Wiseman describe their paper, The Fracking Revolution: A Case Study in Policy Levers to Promote Innovation, which will be presented in our "Comparing Innovation Policy Levers" along with my paper with Daniel Hemel. Golden and Wiseman's study of public policies behind the fracking boom reveals a "complex backstory [that] features multiple significant roles for government action" including "government-funded R&D, tax and regulatory relief, and a FERC-sanctioned surcharge on interstate gas that financed the private Gas Research Institute." While a case study does not provide "universal truths," it does reaffirm the government's capacity to use a diverse policy mix. "The relatively modest role of patents in the story behind the shale gas boom suggests that, under appropriate circumstances, a mix of alternative policy levers can substitute for the benefits often thought to be supplied by patents."

Second, Liza Vertinsky has posted about Public-Private Partnerships as Innovation Strategies, which will be presented in our "Organizational Structures" panel. Public-private partnerships "form the backbone of current U.S. strategies to accelerate biomedical innovation," but Vertinsky argues that our policies "must respond more directly to the tensions between the cooperative and competitive aspects of public-private partnerships." Vertinsky proposes "a limited statutory patent fair use as one way of protecting and expanding the reach of the cooperative mechanisms on which public-private partnership strategies rely."

Finally, we have posts about both papers that will be presented in the "Cultural Production Without IP" panel. Sean Pager opens his post on Incubating Indies: Distributed Subsidies for Diverse Culture with a lament about there being nothing to watch at the local Cineplex. Pager notes that there are many ways besides copyright to support film and creative media production, and he argues that we should "look at this entire mix of direct and indirect public subsidies and consider ways to refocus incentives toward achieving more diverse, innovative outcomes." He focuses on mechanisms that involve (a) distributed allocation (rather than centralized decisions about who benefits) and (b) ex ante funding (to avoid the problems with the delayed and speculative funding of ex post rewards like copyrights, which Daniel Hemel and I discuss here). For example, he argues that tax deductions should be allowed for donations to indie film projects on crowdfunding sites; that state subsidies should be redirected toward lower-budget local films; and that public funding should be invested in infrastructures for creative production.

The other presenter in the "Cultural Production Without IP" panel, Jessica Silbey, has posted on Real Accounts from Creators and Innovators: Making Do with Intellectual Property Misfit. For her forthcoming book, Silbey "conducted face-to-face interviews with an array of artists, scientists, engineers, IP lawyers and business people," and her "interview data largely undermines long-standing economic explanations for IP. . . . Metaphors of real and personal property, the value of hard work and time, the importance of reputation, relationships and freedom dominate the interviews. By and large, these are not U.S. intellectual property interests." Silbey ends her post with a call to "refocus our research and discussion on particular fields and specific innovative and creative practices," and also to give more attention to "what counts as 'progress' at which IP regulation is ultimately aimed."

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