Populism and the Global Governance of Intellectual Property

he rise of the internet has ushered in a new era of volatility, marked by an increase in populism, and a greater concentration of wealth. These two trends are connected via the emergence of a new commons, social media, which on the one hand removes barriers to political participation, and on the other enables the rise of new monopolies that own and control these commons (Taplin 2017). Social media, as a new commons, has dramatically shifted the arena of politics and, in particular, the process of policy discussion and the setting within which policy is created. Governments and policy makers may like to pretend or believe that they continue to hold the exclusive domain, yet social media has a kind of gravity that pulls the broader process and people into itself. Even the current president of the United States, much to the chagrin of traditional actors, sees social media as the primary arena for public policy debate.

Unfortunately, we continue to use the language and concepts of past regimes to try and describe the elements, factions and power brokers of this new era. As a result, popular politics tends to manifest as nostalgic, protectionist, reactionary and in retreat. In this era, it seems far easier to take things apart than to create new structures.

The role of language and, in particular, story or narrative, is increasingly important as more participants join the discussion of policies and priorities. States no longer have exclusive domain or control over how societies wish to govern themselves. Therefore, this expanding and interactive constituency must be recognized by embracing language and structures that are as inclusive and accessible as possible. It must also be acknowledged that new technologies are particularly complex and difficult to understand, and are often ignored or misunderstood as a result. Hence the debate and public policies around emerging technologies have not been as thorough and accessible as they should be.

The Paradox of Social Media: Why IP Matters
 

While jargon tends to serve the purpose of contracting concepts and making discussion as efficient as possible, it also serves to exclude and alienate new voices or those who see themselves as outside politics. This raises one of the great ironies or paradoxes of this era, in that the platforms that foster inclusion also enable a rapid concentration of wealth (and attention). Social media is incredibly easy to use, it lowers the barrier to participation as much as possible and gives each user the opportunity to reach a global audience.

However, social media platforms are owned and controlled by a handful of companies who are using this near-monopoly position to enter (and disrupt) all sorts of different industries. Their model of disruptive innovation is something that countries, companies and communities around the world seek to emulate. Yet, while usage of these platforms is designed to be transparent and easy, the policies behind their success are designed to be opaque and inaccessible.

The economy is currently driven by intangibles (Medhora 2017): intellectual property (IP), whether data, software or concepts, that connect, analyze and enable the applications and services we increasingly depend upon.

The average person does not understand or, quite frankly, care, about IP, let alone the public policy surrounding it. Politically, this is a ticking time bomb.

In particular, there are two mechanisms of public policy discussion that have been lost since the rise of social media. One is the allocation of space for opposing views, and the other is the allocation of space for new (public policy) ideas. In legacy media, there was a general commitment to fostering debate and offering opposing perspectives, while, at the same time, there was space made available for emerging debates and issues of concern. Social media, in contrast, encourages people to connect with like minds and filter out opposing views. All space is taken up by a never-ending flow of posts and information, which makes it difficult for new or contrary ideas to emerge above the buzz of usual suspects.

Public policy issues such as network neutrality, privacy, algorithmic transparency and, more importantly, the ownership and regulation of social media have had great difficulty finding traction in an environment not conducive to opposing or dissenting perspectives. Instead, the focus is on what is trending, what is viral or, more accurately put, what is popular, in a system that encourages conformity and echo chambers.

Which brings us back to the paradox of social media. It is driven by sharing — by people passing on content, images, videos, quotes or news, almost always created by someone else; yet the IP that enables these platforms is also how their value is derived (Wortham 2017). People use these platforms as if IP does not exist, but these platforms exist because of IP laws. The echo chambers of social media seem to insulate the activity of users from the legal constraints of the larger society.

There needs to be greater awareness as to the relevance of this area of public policy, and the field of IP has to be accessible — democratized, if you will — if it is to continue to be healthy and relevant. For starters, IP policies need a different approach than traditional public policy. We are, after all, dealing with intangibles, items that do not exist physically, and therefore have different properties.

IP Governance via Inclusive Public Policy
 

If intangibles are easy to copy, should attempts be made to limit that feature, or should a new means of regulating or rewarding their reproduction be devised instead? Access to data and copyright material is an important issue, and policies around fair use tend to correlate directly with the ability to innovate, iterate and invent (Geist 2017). For example, in the field of machine learning and artificial intelligence (AI), copyright has been found to have a direct impact on bias found within algorithms (Levendowski 2017). The greater and more diverse the data fed into a neural network or model, the more accurate the performance.

Restricting researchers’ ability to access data directly limits the potential to compete globally in developing solutions driven by machine learning and AI. Generous fair use policies can make a big difference when it comes to making this important field more accessible and responsive. Can a policy in favour of open source technologies benefit a society more so than policies that restrict or protect the spread of knowledge?

Most countries operate on an innovation deficit. They take in far more IP than they export (Clarke 2017). Even on a raw materials level, perhaps they are losing (ownership) of data rather than increasing (their use of) data. There are policies that can help reverse this, empowering an economy to become more aware of and active in its trade in IP.

A sovereign patent fund (SPF) is a good example of this (ibid.). It involves the state creating a fund that amasses the patents held within a country. On the one hand, the power of said state is used to defend that IP; however, on the other hand, the resources of the state are used to export and license these patents globally, creating revenue for the government as well as the original patent holders. Such a fund would not only incentivize greater cooperation among citizens, companies and governments, but also foster awareness around the economic opportunities to be found via intangibles. A similar fund could be set up to manage the collection, sharing and selling of data. As the “Internet of Things” and new technology such as self-driving cars emerge, the data they collect will surpass the massive volumes being generated by social media. Creating a means by which countries can control, leverage and license this data, both domestically and internationally, will be regarded as an important economic instrument, as well as necessary for effective evidence-driven public policy.

The larger issue, however, becomes one of disputes, as often IP comes down to arguments of infringement, authorship, origin and permissions. Here again a new approach for mediating and governing disputes in a global context must be considered.

While international political populism has shown signs of being protectionist and anti-global, it certainly does not have to be, given the popular embrace of global communications platforms. The issue really comes back to language, accessibility and relevance. After all, disputes and broader notions of justice manifest all the time on social media, as people turn to the court of public opinion to air their grievances and seek external judgement. A system to govern global IP (or, similarly, data collection) could be created using the same tools that are being used to share IP globally, i.e., distributed peer-to-peer systems. Such a system could also employ language that is accessible and inclusive, thereby giving comprehension and legitimacy to these new rules of the game. For example, distributed ledger technology, often in the form of “blockchains,” can and will be used to govern the control, and usage, of both tangible and intangible property.

States and their associated actors would benefit from investigating and embracing how this technology could be used to create a transparent, accessible and participatory global IP regime.

Such a system could be used to register IP. This provides a groundwork by which creators can assert their rights in multiple jurisdictions, while also encouraging and incentivizing creators to make their works more widely available.

The company Blockstack is one example of a blockchain-based solution that uses blockchain technology to combine IP rights with privacy controls.¹ Blockstack’s desire is to transform the internet as we know it in order to bring greater security, privacy, while still respecting and enforcing IP rights. Systems such as Blockstack could also be used to help mediate disputes over IP — who owns it, who invented it or how it is being used. Such disputes can be done openly, and judgments can be made by other participants in the system.

While an SPF exists in a national context, this system could be a similar structure, only scaled up across the globe. Countries can choose to invest in the fund and thereby participate in its broader growth. As a voluntary system, it benefits from participation, and participants benefit from the value and access that the system provides. As a distributed system, no single country would be in control and, therefore, it can offer a sort of trusted intermediary status.

Citizens within each participating country can also learn and benefit from the system directly, finding value and relevance in it. This will not only help raise awareness with regard to the role of IP, but enable a greater number of participants to be active in the creation and trade of intangibles. Part of what alienates citizens from global trade agreements is a legitimate belief that these agreements do not reflect nor include their input or participation. Negotiated among nation-states, they exist at a level of government that is disconnected, and perhaps even irrelevant, to the average citizen or economic actor.

An alternative would be to create inclusive structures that accommodate nation-states, corporations and individuals. Certainly, social media networks are one example of this, where a single platform involves both institutions and individuals, each sharing their priorities and perspectives. Yet emerging peer-to peer-systems are also able to combine the participation of actors that are large, small and in-between.

The ease by which the internet enables participation suggests that exclusive systems can no longer be expected to remain legitimate. Rather, emerging systems of governance can, and should, be inclusive, so that they are relevant and available to the wide range of actors now engaged in the creation, usage and regulation of IP.

There is an emerging generation of entrepreneurs, developers, philosophers and artists who are actively creating distributed systems that enable widespread participation, and propose innovative models of governance. Much of this activity is happening at the level of individuals, often without regard for traditional states and regulatory bodies.

Involving and including these new players in policy design is important: as outsiders, they bring a perspective and culture to governance that more closely represents the politics and culture of digital networks. They are themselves a new kind of elite, so this does not resolve the challenge of populism; however, it does help to reconcile the conflicts between established authority and emerging systems.
 

Reconciling the Internet with the Rule of Law
 

The issue of populism is one of language and legitimacy. Step one is to integrate this new generation of internet-based leadership. Step two is to find accessible language that integrates this new generation into existing systems. Step three is extending that inclusivity to society as a whole.

The challenge moving forward will be to reconcile and harmonize these efforts with the rule of law and the broader international governance system. The opportunity for policy planners and governments is to harness these grassroots phenomena while using the (remaining) legitimacy of the state to create systems that enable the participation of a wide range of actors, and the emergence of a new system of international cooperation.

This is where the need for a broader public consensus is required. Doing so involves a transcendence of existing echo chambers, and instead a deliberate construction of a new inclusive culture that reflects the new (social media) commons.

The key to accomplishing this will be the usage of clear language, accessible concepts and a broader commitment to building inclusive and participatory systems — not necessarily an easy task given the existing political climate, and the traditional culture of policy development.