IP Commons - Michigan 7 2024 BFHR

IP COMMONS AFF/NEG
EXPLANATION
In the status quo, IP earned from projects that involve federal government funding are given to the private (or quasi-private) entity for licensing. This affirmative argues that the federal government should maintain ownership of IP that is derived from projects funded by the federal government, and that licensing of that IP should be done on the federal government’s terms.
An “intellectual property commons” would be managed by a “IP Commons Management Body” that would set terms for licensing federally owned IP. This body would license it for free to licensees who are focused on innovations that provide social goods and non-profits. The government would use the licensing revenue to fund future R and D on social goods, as well.
The strengths of the aff:
--It envisions a role for state management of the economy that runs directly counter to neoliberal trends of the last 50 years
--It has a couple of good framework-style cards (Kapczynski, Mazzucato) that defend imagining a post-neoliberal state, institution-building and changing the way we talk about private vs public innovation (Mazzucato ties that change to young adults choosing career paths informed by that new narrative)
--It has a good criticism of moving too far away from property and ownership, something aff teams can credibly accuse negs of doing (AT Cap K --- Market Fill-in)
--It still gets to reasonably large impacts
Weaknesses of the aff:
--It is meant to be read versus k’s of “property,” “ownership” and “markets,” the 2ac file is not strong enough to hold up vs the full suite of negative arguments put out so far at camp.
--It is potentially anti-topical, because it weakens private intellectual property
--It still links (as every aff on this topic does) to the property/markets/innovation K’s, so you will not win a conclusive no link. You’ll need a perm, framework argument and alt answers in addition to the aff’s “narrative shift” arguments.
If I had a few more days of research, I’d read:
People Powered Money
The Intellectual Commons: Toward an Ecology of Intellectual Property
A Post-capitalist Politics
1AC
1AC---Inherency/Solvency
Meaningful innovation is unequivocally driven by the public sector. But, it takes all of the risk with no reward. A public IP returns IP to its rightful owner, turning the system against the private sector, AND maximizing creation and dissemination of public goods
McCann 20, researcher at the New Economics Foundation interested in systemic and radical reform of the economy and the creation of a twenty-first century commons. He is co- author (with Stewart Lansley and Steve Schifferes) of Remodelling Capitalism: How social wealth funds can transform Britain. He is also part of the movements to reform money, author of Scotpound: A digital currency for the common good and co- author of the book People Powered Money; to reform land, writing about Common Ground Trusts and a founder of the Land Justice Network; and the digital economy, with recent publications including Blocking the Data Stalkers and Digital Self Control. (Duncan, “Commoning Intellectual Property: Public funding and the creation of a knowledge commons,” Common Wealth, https://assets-global.website-files.com/62306a0b42f386df612fe5b9/637dfe77345b29128b30d9e0_Commoning%20Intellectual%20Property.pdf)//BB
However, any intellectual property that results from publicly funded research does not belong to the public, who paid for it, but instead is available for the private sector to enclose and profit from. Indeed, the state does not recoup anything directly for that investment. The state is left to cross its fingers and hope that it receives a satisfactory return on its investment in R&D through economic growth, the creation of new jobs and the corporate and private tax that this leads to. However, what historically may have been true is today highly contested. Many companies are very good at minimising their local tax bills by creatively structuring their businesses while the innovative new companies, especially the tech-based ones, do not generally create mass employment opportunities. We contend that this needs to change, with the public sector taking more direct ownership of the resulting IP in order to share more broadly in the rewards, rather than just the risks. The idea that the state should just facilitate, administer and regulate the economy, rather than engage in more direct directing and management, started gaining wide acceptance in the 1970s. This is now changing. Probably the most important piece of intellectual property (IP) being worked on now is the search for a vaccine to Covid-19. This discovery, which could probably be written on a small piece of paper, would be one of the most valuable assets on the planet, both socially and economically. This IP could have been generated in broadly three different ways. Firstly, it could have been developed using purely public sector money, including the fundamental research as well as testing and trials. Secondly, it could have been created purely through private endeavour (although actual cases of this are rare). Finally, and most likely, it could have been created through a mix of private and public sector money. Although each of these three cases differs in the contribution that public money played in generating the result, they also share some things in common, notably that the public sector would not own any part of the resulting IP. All the profit would flow to the private sector owner of the IP and that should the public sector wish to use the IP it would need to pay for it. This makes no sense economically and does not represent good value for public money. We urgently need a new system that allows the public sector to leverage the investment that it makes in R&D. The goal of any new system should be to recognise the role of the state as a major funder of R&D by changing the ownership regime, maximise innovation, license that IP from publicly funded R&D with purpose in mind and ensure that the non-monetary value of IP can be leveraged. We proposed the creation of a Public IP Commons that would change the way that the IP from publicly funded R&D is owned and managed. We propose that the public should retain ownership of the IP that results from publicly funded R&D. The public sector also contributes significantly to private R&D by offering substantial tax credits, through R&D tax credits, or relief, through the Patent Box relief scheme, to companies and there is a strong rationale for the public sector should retain some ownership of the IP covered by these subsidies. We then propose that all public IP should be managed by the IP Commons Management Body. The body would operate a licensing regime that would need to avoid the problems of being too exclusionary and too open, learning from the management of other commons. Just like all successful commons, we must ensure that there are proper rules and mechanism to govern and manage access to this new IP commons. Although these arrangements would be novel with regard to the distribution of public funds for R&D these arrangements are commonplace in any private sector organisation where the output of the work that one is paid to do, either as an employee or consultant, becomes the property of your employer. The government would merely be adapting and improving on existing practice within the private sector. Our proposal has several benefits over the existing model. It clearly acknowledges the nature and significance of the investment of public money into R&D and ensures that any resulting IP is owned collectively. The proposal for the Public IP commons also aligns the public sector’s risk and reward when funding R&D. At present the state certainly takes its share of the risk, often investing in early stage innovation, with its hyper speculative returns. The public sector should be able to reap direct returns. A system where the IPCMB retains direct ownership and control of the IP offers an opportunity for the public sector to set different targets for the use of its IP. We believe that this will ensure that the IP is utilised to maximise potential innovation, since it will be available for all to use, while ensuring a return for those using the IP commercially, all the while retaining the power to provide special licenses when there is a real social return. When companies are required to pay for licenses the IPCMB should allow for that payment to be made in money or equity. Being able to pay for the license in equity reduces any potential pressure on company balance sheets while also further increasing the sharing of risk and reward in the innovation process. Another benefit of the proposed IP Commons is that it does not necessitate any reform of the national and international IP regime, which is complex and difficult to change, but merely seeks to align the private sector regime to the public sector. We need to urgently need to change from the status quo. We hope that this paper will be part of the important discussion that needs to take place about how best to recognise the new role of the state and how to ensure that the IP that we the public fund delivers most benefit to us. The Public IP commons will radically change the domestic R&D sector and enable a large quantity of IP to be accessed by more companies and individuals fostering a more innovative economy.
Public IP ownership creates a virtuous cycle of publicly owned innovations built to maximize social goods
McCann 20, researcher at the New Economics Foundation interested in systemic and radical reform of the economy and the creation of a twenty-first century commons. He is co- author (with Stewart Lansley and Steve Schifferes) of Remodelling Capitalism: How social wealth funds can transform Britain. He is also part of the movements to reform money, author of Scotpound: A digital currency for the common good and co- author of the book People Powered Money; to reform land, writing about Common Ground Trusts and a founder of the Land Justice Network; and the digital economy, with recent publications including Blocking the Data Stalkers and Digital Self Control. (Duncan, “Commoning Intellectual Property: Public funding and the creation of a knowledge commons,” Common Wealth, https://assets-global.website-files.com/62306a0b42f386df612fe5b9/637dfe77345b29128b30d9e0_Commoning%20Intellectual%20Property.pdf)//BB
Total public sector spending on R&D, both directly and through tax relief, was £14.4bn in 2017-18, and yet receives no direct return.13 Given the scale of this investment of public resources, it is therefore important to look at the value that the public sector gets in return. Unlike when the private sector invests in R&D - whereby it would seek direct monetary returns either by monetising the specific product or service that had been created or improved through the investment, or by licensing the IP itself to others - the public sector currently expects to receive its return indirectly, through increased tax receipts and employment. As well as making sense to seek more direct returns, albeit not always financial, for the public from the state’s spending on R&D the changing scale and nature of the public investment in R&D outlined in the previous sections re-enforces the reason why we should also rethink the way in which the state shares in the upside of its risky investments.
— Indirect Value Capture not enough
Many economists believe that the state already receives a satisfactory return on its investment in R&D through economic growth, the creation of new jobs and the corporate and private tax that this leads to. The reality, however, is more complex. Many large companies are very good at minimising their local tax bills by creatively structuring their multinational businesses in order to record as much profit as possible in low tax jurisdictions. Google, for example, whose game-changing search algorithm was developed with funding from the National Science Foundation,14 is a master at this tactic. The employment benefit is also somewhat questionable, especially around tech driven automation businesses none of which are mass scale employers. Earnings per employee are often wildly higher in modern business that they have been in the past. NESTA’s Stian Westlake argues in a direct response to these arguments that the corporation tax system still raises a considerable amount of money, totalling £54.4bn in 2018/19. He asserts that ‘[t] his isn’t the Late Roman Empire. The tax system raises a lot of money, enough to fund generous innovation investment.’15 Such commentators also raise the point that if tax collection from large multinationals is the core of the problem, we should focus on fixing that system, which already employs many thousands of people, rather than create an entirely new mechanism to reward the state for its investment. Enacting country by country accounting systems16, which force multinational companies to report on revenue and profit by country thereby enabling local tax collection, or revenue-based taxes (as opposed to profit-based taxes), such as the proposed Digital Services tax,17 would be good examples of potential solutions. A clear counter argument to ‘fixing’ the corporate tax system is that since capital and business is now so mobile, even the threat of additional taxes could result in the company moving staff and operations abroad. This risk has had a massive chilling effect on the national and global tax regime, therefore reinforcing the need to tackle the ownership of the IP rather than attempting to recoup public benefits solely through fixes to the tax system. Although reforming the tax system is, separately, necessary and important, this need for reform is not an argument against the public sector, as the direct funder of R&D, having the right to own the IP output of the research it funds. This is especially the case if the ultimate aim of any reform, as in this paper, is to maximise innovation by making the IP as available as possible at as low a licensing cost as possible while ensuring that those companies who profit from the usage of IP generated through public funds also pay back into the pot, thereby enabling more R&D to be funded and/or release funds for frontline services and other uses.
An IP Commons would be managed by the “IP Commons Management Body” that uses “Social Return on Investment” as its framework for management, licensing and R and D.
McCann 20, researcher at the New Economics Foundation interested in systemic and radical reform of the economy and the creation of a twenty-first century commons. He is co- author (with Stewart Lansley and Steve Schifferes) of Remodelling Capitalism: How social wealth funds can transform Britain. He is also part of the movements to reform money, author of Scotpound: A digital currency for the common good and co- author of the book People Powered Money; to reform land, writing about Common Ground Trusts and a founder of the Land Justice Network; and the digital economy, with recent publications including Blocking the Data Stalkers and Digital Self Control. (Duncan, “Commoning Intellectual Property: Public funding and the creation of a knowledge commons,” Common Wealth, https://assets-global.website-files.com/62306a0b42f386df612fe5b9/637dfe77345b29128b30d9e0_Commoning%20Intellectual%20Property.pdf)//BB
Creating an IP Commons
Our contribution to this debate is to put forward a new model that meets our four goals outlined at the beginning of this section. We propose to change the way that the IP from publicly funded R&D is owned and managed. We propose that the public should retain ownership of the IP that results from publicly funded R&D. We then propose that all public IP should be managed in order to avoid both the problems of being too exclusionary and too open, learning from the management of successful commons. Just like all successful commons we must ensure that there are proper rules and mechanism to govern and manage access to this new IP commons.
— How it would work
Under the new regime all intellectual property that is the result of publicly funded research would have to be assigned to the government by its creator.48 This would require a change in the terms of the funding given out by the UK government which would stipulate that any IP resulting from the grant would need to be assigned to the government. Although these arrangements would be novel regarding the distribution of public funds for R&D these arrangements are commonplace in any private sector organisation where the output of the work that one is paid to do, either as an employee or consultant, becomes the property of your employer. The government would merely be copying existing practice within the private sector. The government would create an IP Commons Management Body (IPCMB) which would administer the IP that was transferred to the government. The IPCMB would license out its IP using a variety of different licensing arrangements depending on the type of use and the nature of the entity requesting access to the IP. A licence is an agreement between the IP owner and another party. It grants them permission to do something that would be an infringement of the rights of the IP owner without the licence. The IPCMB should consider making all the IP Commons available under as ‘licenses of right.’ This is a designation endorsed by the Intellectual Property Office (IPO) and means that the patent holder has agreed to licence their patent to anyone who asks. The licence will still be an ordinary, commercial licence and the terms and fees will be a private matter between the owner, in this case the IPCMB, and the licensee, but the IPO will step in if terms cannot be negotiated. The main advantages of having IP endorsed with a licence of right is that it sends a clear signal to companies and organisations that the IPCMB is happy to licence their IP. The IPCMB would operate a different strategy than many companies and organisation that hold large quantities of IP. The IPCMB would not seek to maximise the monetary return but would focus on encouraging innovation while at the same time seeking a reasonable return. The IPCMB could use a variety of measures, including potentially Social Return on Investment,49 to decide the appropriate license structure on a case by case basis. Once again, although these would be new activities for a government to conduct they are commonplace within the private sector and there are many companies and organisations that manage large and complex portfolios of IP issuing a variety of licenses with a variety of conditions and prices depending on the entity asking for the license and the aims of the holder of the IP. The main difference between the IPCMB and the majority of other IP holders is that it would have a specific goal to maximise innovation in the economy through the use of the IP, while seeking a reasonable return from those who profit from its use. However, the IPCMB would also grant licenses at no cost for companies and organisations wanting to use or integrate the IP but generate no profit. This could apply to company structures that specifically mandate there to be no profit, like a CIC or a charity, but could also apply to a new start-up that is currently generating no revenue or profit. The licenses for a start-up currently generating no revenue and a structure permanently focused on a social goal that generates no profit would be different though. For the start-up it is likely to be either short, given that the company almost certainly intends to become profitable, or change from free to fee paying once certain revenue of profitability milestones were met. On the other hand, a CIC or charity could expect a longer or even perpetual license to use the IP at little or no cost. As well as profitability being a key determinant of the type and cost of the license from the IPCMB the purpose of the use and

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