Yochai Benkler
Commons-Based Agricultural Innovation
Innovations Case Discussion: CAMBIA-BiOS
Computation and access to existing scientific research are important in the devel-
opment of any nation, yet both still operate at a remove from the most basic needs
of the world poor. On its face, it is far from obvious how the emergence of the net-
worked information economy can grow rice to feed millions of malnourished chil-
dren or deliver drugs to millions of HIV/AIDS patients. On closer observation,
Tuttavia, it becomes apparent that a tremendous proportion of the way modern
societies grow food and develop medicines is based on scientific research and tech-
nical innovation. Important implications for the direction of innovation and for
access to its products exist in the basic choice between two models: (1) a system
that depends on exclusive rights and business models that use exclusion to appro-
priate research outputs and (2) a system that weaves together various actors—pub-
lic and private, organized and individual—in a nonproprietary social network of
innovation.
The failure of the exclusive rights model in meeting the needs of people in
developing countries has received considerable public attention in the context of
Yochai Benkler a Professor of Law at Yale Law School. His research focuses on the
effects of laws that regulate information production and exchange on the distribu-
tion of control over information flows, knowledge, and culture in the digital envi-
ronment. His particular focus has been on the neglected role of commons-based
approaches towards management of resources in the digitally networked environ-
ment. He has written about the economics and political theory of rules governing
telecommunications infrastructure, with a special emphasis on wireless communi-
cations, rules governing private control over information, in particular intellectu-
al property, and of relevant aspects of U.S. constitutional law.
This discussion is excerpted from The Wealth of Networks: How Social
Production Transforms Markets and Freedom (Nuovo paradiso: Stampa dell'Università di Yale),
2006, pag. 341-356. The editors of Innovations initiated the proposal to publish this
excerpt, benefiting from the provisions of Creative Commons Noncommercial Share
alike license under which an online version of The Wealth of Networks was distrib-
uted.
© 2007 Yochai Benkler
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Commons-Based Agricultural Innovation
around
the HIV/AIDS crisis in Africa—particularly with regard to the lack of access to
existing drugs because of their high costs. Tuttavia, that crisis is merely the tip of
the iceberg. It is the most visible to many because of the presence of the disease in
rich countries and its cultural and political salience in the United States and
Europe. The exclusive rights system is, as a general rule, a poor institutional mech-
anism for serving the
needs of those who are
worst off
IL
globe—not only the vic-
tims of HIV/AIDS. Its
weaknesses pervade the
problems of food security
and agricultural research
aimed at increasing the
supply of nourishing food
throughout the develop-
ing world, and of access to
medicines in general, E
to medicines for develop-
ing-world diseases in par-
ticular. Each of these areas
has seen a similar shift in
national and international
policy
toward greater
exclusive
reliance on
rights, most important of
which are patents. Each area has also begun to see the emergence of commons-
based models to alleviate the problems of patents.
The failure of the exclusive rights
model in meeting the needs of
people in developing countries has
received considerable public
attention in the context of the
HIV/AIDS crisis in Africa—
particularly with regard to the lack of
access to existing drugs because of
their high costs. Tuttavia, that crisis
is merely the tip of the iceberg.
Leaving aside national efforts in developing nations, there are two major paths
for commons-based research and development in agriculture that could serve the
developing world more generally. The first is based on a loose affiliation of univer-
sity scientists, nongovernmental organizations, and individuals such as played sig-
nificant role in the development of free and open-source software. The second is
based on existing research institutes and programs cooperating to build a com-
mons-based system, cleared of the barriers of patents and breeders’ rights, outside
and alongside the proprietary system. The most promising current effort in the
former vein, and probably the most ambitious commons based project for biolog-
ical innovation currently contemplated, is BIOS (Biological Innovation for an
Open Society). The most promising models of the latter are the PIPRA (Public
Intellectual Property for Agriculture) coalition of public-sector universities in the
United States, E, if it delivers on its theoretical promises, the Generation
Challenge Program led by CGIAR (the Consultative Group on International
Agricultural Research).
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Yochai Benkler
CAMBIA-BIOS
As Richard Jefferson’s case narrative in this issue of Innovations describes, BiOS is
an initiative of CAMBIA (Center for the Application of Molecular Biology to
International Agriculture), a nonprofit agricultural research institute based in
Australia. BiOS is based on the observation that much of contemporary agricul-
tural research depends on access to tools and enabling technologies—such as
mechanisms to identify genes or for transferring them into target plants. When
these tools are appropriated by a small number of firms and available only as part
of capital-intensive production techniques, they cannot serve as the basis for inno-
vation at the local level or for research organized on nonproprietary models. One
of the core insights driving the BiOS initiative is the recognition that when a sub-
set of necessary tools is available in the public domain, but other critical tools are
non, the owners of those tools appropriate the full benefits of public domain inno-
vation without at the same time changing the basic structural barriers to use of the
proprietary technology. To overcome these problems, the BiOS initiative includes
both a strong informatics component and a fairly ambitious “copyleft”-like model
of licensing CAMBIA’s basic tools and those of other members of the BiOS initia-
tive.1 The informatics component builds on a patent database that has been devel-
oped by CAMBIA for a number of years, and whose ambition is to provide as com-
plete as possible a dataset of who owns what tools, what the contours of ownership
are, and by implication, who needs to be negotiated with and where research paths
might emerge that are not yet appropriated and therefore may be open to unre-
stricted innovation.
The licensing or pooling component is more proactive, and is likely the most
significant of the project. BiOS is setting up a licensing and pooling arrangement,
“primed” by CAMBIA’s own significant innovations in tools, which are licensed to
all of the initiative’s participants on a free model, with grant-back provisions that
perform an openness-binding function similar to copyleft.2 In coarse terms, Questo
means that anyone who builds upon the contributions of others must contribute
improvements back to the other participants. One aspect of this model is that it
does not assume that all research comes from academic institutions or from tradi-
tional government funded, nongovernmental, or intergovernmental research insti-
tutes. It tries to create a framework that, like the open-source development com-
munity, engages commercial and noncommercial, public and private, organized
and individual participants into a cooperative research network. The platform for
this collaboration is “BioForge,” styled after Sourceforge, one of the major free and
open-source software development platforms. The commitment to engage many
different innovators is most clearly seen in the efforts of BiOS to include major
international commercial providers and local potential commercial breeders
alongside the more likely targets of a commons-based initiative.
Central to this move is the belief that in agricultural science, the basic tools
can, although this may be hard, be separated from specific applications or prod-
ucts. All actors, including the commercial ones, therefore have an interest in the
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Commons-Based Agricultural Innovation
open and efficient development of tools, leaving competition and profit making
for the market in applications. At the other end of the spectrum, BiOS’s focus on
making tools freely available is built on the proposition that innovation for food
security involves more than biotechnology alone. It involves environmental man-
agement, locale-specific adaptations, and social and economic adoption in forms
that are locally and internally sustainable, as opposed to dependent on a constant
inflow of commoditized seed and other inputs. The range of participants is, Poi,
much wider than envisioned by PIPRA or the GCP. It ranges from multinational
corporations through academic scientists, to farmers and local associations, pool-
ing their efforts in a communications platform and institutional model that is very
similar to the way in which the GNU/Linux operating system has been developed.
As of this writing, the BiOS project is still in its early infancy, and cannot be eval-
uated by its outputs. Tuttavia, its structure offers the crispest example of the extent
to which the peer-production model in particular, and commons-based produc-
tion more generally, can be transposed into other areas of innovation at the very
heart of what makes for human development—the ability to feed oneself ade-
quately.
THE PUBLIC INTELLECTUAL PROPERTY RESOURCE FOR AGRICULTURE
The Public Intellectual Property Resource for Agriculture (PIPRA) is a collabora-
tion effort among public-sector universities and agricultural research institutes in
the United States, aimed at managing their rights portfolio in a way that will give
their own and other researchers freedom to operate in an institutional ecology
increasingly populated by patents and other rights that make work difficult. IL
basic thesis and underlying problem that led to PIPRA’s founding were expressed
in an article in Science coauthored by fourteen university presidents.3 They under-
scored the centrality of public-sector, land-grant university-based research to
American agriculture, and the shift over the last twenty-five years toward increased
use of intellectual property rules to cover basic discoveries and tools necessary for
agricultural innovation. These strategies have been adopted by both commercial
firms and, increasingly, by public-sector universities as the primary mechanism for
technology transfer from the scientific institute to the commercializing firms.
The problem they saw was that in agricultural research, innovation was incre-
mental. It relies on access to existing germplasm and crop varieties that, with each
generation of innovation, brought with them an ever-increasing set of intellectual
property claims that had to be licensed in order to obtain permission to innovate
ulteriore. The universities decided to use the power that ownership over roughly 24
percent of the patents in agricultural biotechnology innovations provides them as
a lever with which to unravel the patent thickets and to reduce the barriers to
research that they increasingly found themselves dealing with. The main story, one
might say the “founding myth” of PIPRA, was the story of golden rice. Golden rice
is a variety of rice that was engineered to provide dietary vitamin A. It was devel-
oped with the hope that it could introduce vitamin A supplement to populations
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Yochai Benkler
Tavolo 1. Selected University Gross Revenues and Patent Licensing Revenues
Sources: Aggregate revenues: NOI. Dept. of Education, National Center for Education Statistics,
Enrollment in Postsecondary Institutions, Autunno 2001, and Financial Statistics, Fiscal Year 2001 (2003),
Table F; Association of University Technology Management, Annual Survey Summary FY 2002
(AUTM 2003), Table S-12. Individual institutions: publicly available annual reports of each univer-
sity and/or its technology transfer office for FY 2003.
Notes:
UN. Large ambiguity results because technology transfer office reports increased revenues for yearend
2003 as $178M without reporting expenses; University Annual Report reports licensing revenue with all “revenue from other educational and research activities,” and reports a 10 percent decline in this category, “reflecting an anticipated decline in royalty and license income” from the $133M for
the previous year-end, 2002. The table reflects an assumed net contribution to university revenues
between $100-120M (the entire decline in the category due to royalty/royalties decreased propor-
tionately with the category).
B. University of California Annual Report of the Office of Technology Transfer is more transparent
than most in providing expenses—both net legal expenses and tech transfer direct operating
expenses, which allows a clear separation of net revenues from technology transfer activities.
C. Minus direct expenses, not including expenses for unlicensed inventions.
D. Federal- and nonfederal-sponsored research.
e. Almost half of this amount is in income from a single Initial Public Offering, and therefore
does not represent a recurring source of licensing revenue.
F. Technology transfer gross revenue minus the one-time event of an initial public offering of
LiquidMetal Technologies.
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Commons-Based Agricultural Innovation
agreements
in which vitamin A deficiency causes roughly 500,000 cases of blindness a year and
contributes to more than 2 million deaths a year. Tuttavia, when it came to trans-
lating the research into deliverable plants, the developers encountered more than
seventy patents in a number of
countries and six materials
transfer
Quello
restricted the work and delayed
it substantially. PIPRA was
launched as an effort of public-
sector universities to cooperate
in achieving two core goals that
would respond to this type of
barrier—preserving the right to
pursue applications to subsis-
tence crops and other develop-
ing-world-related crops, E
preserving their own freedom
to operate vis-à-vis each other’s
patent portfolios.
Increasing appropriation of
basic tools and enabling
technologies creates barriers to
entry for innovators—public-
sector, nonprofit organizations,
and the local farmers
themselves—concerned with
feeding those who cannot
signal with their dollars that
they are in need.
The basic insight of PIPRA,
which can serve as a model for
university alliances in the con-
text of
the development of
medicines as well as agriculture, is that universities are not profit-seeking enter-
prises, and university scientists are not primarily driven by a profit motive. In a sys-
tem that offers opportunities for academic and business tracks for people with
similar basic skills, academia tends to attract those who are more driven by non-
monetary motivations. While universities have invested a good deal of time and
money since the Bayh-Dole Act of 1980 permitted and indeed encouraged them to
patent innovations developed with public funding, patent and other exclusive-
rights-based revenues have not generally emerged as an important part of the rev-
enue scheme of universities. As table 1 shows, except for one or two outliers, patent
revenues have been all but negligible in university budgets.4 This fact makes it fis-
cally feasible for universities to use their patent portfolios to maximize the global
social benefit of their research, rather than trying to maximize patent revenue. In
particular, universities can aim to include provisions in their technology licensing
agreements that are aimed at the dual goals of (UN) delivering products embedding
their innovations to developing nations at reasonable prices and (B) providing
researchers and plant breeders the freedom to operate that would allow them to
research, develop, and ultimately produce crops that would improve food security
in the developing world.
While PIPRA shows an avenue for collaboration among universities in the
public interest, it is an avenue that does not specifically rely on, or benefit in great
measure from, the information networks or the networked information economy.
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Yochai Benkler
It continues to rely on the traditional model of publicly funded research. More
explicit in its effort to leverage the cost savings made possible by networked infor-
mation systems is the Generation Challenge Program (GCP). The GCP is an effort
to bring the CGIAR into the biotechnology sphere, carefully, given the political
resistance to genetically modified foods, and quickly, given the already relatively
late start that the international research centers have had in this area. Its stated
emphasis is on building an architecture of innovation, or network of research rela-
tionships, that will provide low-cost techniques for the basic contemporary tech-
nologies of agricultural research. The program has five primary foci, but the basic
thrust is to generate improvements both in basic genomics science and in breed-
ing and farmer education, in both cases for developing world agriculture. One
early focus would be on building a communications system that allows participat-
ing institutions and scientists to move information efficiently and utilize compu-
tational resources to pursue research. There are hundreds of thousands of samples
of germplasm, from “landrace” (questo è, locally agriculturally developed) and wild
varieties to modern varieties, located in databases around the world in internation-
al, national, and academic institutions.
There are tremendous high-capacity computation resources in some of the
most advanced research institutes, but not in many of the national and interna-
tional programs. One of the major goals articulated for the GCP is to develop Web-
based interfaces to share these data and computational resources. Another is to
provide a platform for sharing new questions and directions of research among
participants. The work in this network will, in turn, rely on materials that have
proprietary interests attached to them, and will produce outputs that could have
proprietary interests attached to them as well. Just like the universities, the GCP
institutes (national, international, and nonprofit) are looking for an approach
aimed to secure open access to research materials and tools and to provide human-
itarian access to its products, particularly for subsistence crop development and
use. As of this writing, Tuttavia, the GCP is still in a formative stage, more an aspi-
ration than a working model. Whether it will succeed in overcoming the political
constraints placed on the CGIAR as well as the relative latecomer status of the
international public efforts to this area of work remains to be seen. But the ele-
ments of the GCP certainly exhibit an understanding of the possibilities presented
by commons-based networked collaboration, and an ambition to both build upon
them and contribute to their development.
CONCLUSION
The BiOS initiative and PIPRA are the most salient examples of, and the most sig-
nificant first steps in, the development of commons-based strategies to achieve
food security. Their vitality and necessity challenge the conventional wisdom that
ever-increasing intellectual property rights are necessary to secure greater invest-
ment in research, or that the adoption of proprietary rights is benign. Increasing
appropriation of basic tools and enabling technologies creates barriers to entry for
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Commons-Based Agricultural Innovation
innovators—public-sector, nonprofit organizations, and the local farmers them-
selves—concerned with feeding those who cannot signal with their dollars that
they are in need. The emergence of commons-based techniques—particularly, Di
an open innovation platform that can incorporate farmers and local agronomists
from around the world into the development and feedback process through net-
worked collaboration platforms—promises the most likely avenue to achieve
research oriented toward increased food security in the developing world. It prom-
ises a mechanism of development that will not increase the relative weight and
control of a small number of commercial firms that specialize in agricultural pro-
duction. It will instead release the products of innovation into a self-binding com-
mons—one that is institutionally designed to defend itself against appropriation.
It promises an iterative collaboration platform that would be able to collect envi-
ronmental and local feedback in the way that a free software development project
collects bug reports—through a continuous process of networked conversation
among the user-innovators themselves.
In combination with public investments from national governments in the
developing world, from the developed world, and from more traditional interna-
tional research centers, agricultural research for food security may be on a path of
development toward constructing a sustainable commons-based innovation ecol-
ogy alongside the proprietary system. Whether it follows this path will be partly a
function of the engagement of the actors themselves, but partly a function of the
extent to which the international intellectual property/trade system will refrain
from raising obstacles to the emergence of these commons-based efforts.
We invite reader comments. E-mail
1.
È
A
Questo
similar
the GNU project
(2006), The Wealth of Networks (New Haven, CT: Yale University Press), available for free
download at
the General Public License of
2. Wim Broothaertz et al. (2005), “Gene Transfer to Plants by Diverse Species of Bacteria,” Nature
433:629.
3. Richard Atkinson et al. (2003), “Public Sector Collaboration for Agricultural IP Management,"
Scienza 301: 174.
4. This table is a slightly expanded version of one originally published in Yochai Benkler (2004),
“Commons Based Strategies and the Problems of Patents,” Science 305:1110.
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