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Haunss, S. Etikk i praksis. Nord J Appl Ethics (2016), 45–59 45
Public domain as a master frame?
Sebastian Haunss
University of Bremen, SOCIUM – Research Center on Inequality and Social Policy
sebastian.haunss@uni-bremen.de
DOI: http://dx.doi.org/10.5324/eip.v10i1.1969
In a widely cited article Boyle suggests that a movement against the growing
propertization of knowledge should develop a mobilization frame centered around
the idea of the public domain. Based on an analysis of the framing strategies in the
two most important protest mobilizations against extensive intellectual property
rights I discuss whether and to which degree these movements did actually put the
concept of the public domain at the center of their argumentation. The article uses
political claims analysis and discourse analysis to show that the actual framing
strategies relied on other frames. It closes with a discussion, explaining why the idea
of the public domain is essentially a defensive concept with a limited potential for
movements that primarily address the production of knowledge.
Keywords: Intellectual Property Rights, Public Domain, Social Movements,
Knowledge Society, Discourse Analysis
In a widely cited article, James Boyle (2003) develops a powerful narrative of
intellectual property rights as the “second enclosure movement”. While the first
enclosure movement transformed public land into private property, the second
enclosure movement transforms “the intangible commons of the mind” (Boyle
2003: 37) into intellectual property. In both cases, public access is restricted by
creating exclusive rights. To counter the growing propertization of knowledge,
Boyle argues that the idea of the public domain has to be developed. Like the notion
of “the environment” that had to be developed before it was possible to bring
together nature enthusiasts, conservationists, ecologists and others in the
environmental movement, “an emergent concept of the public domain could tie
together the interests of groups currently engaged in individual struggles with no
sense of the larger context” (Boyle 2003: 71) in the field of the politics of intellectual
property (Haunss & Shadlen 2009). Boyle thus suggests that a movement against the
growing propertization of knowledge should develop a mobilization frame centered
on the idea of the public domain.
More than a decade after this proposal was made, we can indeed see a revival of
the ideas of the public domain and the commons. In the digital realm, Creative
Commons has proven to be a veritable success story. Since December 2002, when
the first Creative Commons license was issued, millions of Internet users have
chosen to release their creative works (text, pictures, music, etc.) under a license that
largely reverses the exclusiveness and restrictions of traditional copyrights
This is an open access article distributed under the terms of the Creative Commons
Attribution 4.0 International License, which permits unrestricted use, distribution, and
reproduction in any medium, provided the original author and source are credited.
46 ETIKK I PRAKSIS NR 1 2016
(Dusollier 2006). The most recent data available shows that since then, not only the
absolute number of licenses but also the license adoption rate is still growing, so that
Creative Commons was able to announce at the end of 2015 that over 1 billion
works have been made available under its licenses (Creative Commons 2015). And
in addition to individual Internet users, governments, public administrations and
scientific organizations are also releasing their data and works under a Creative
Commons license. The success of the idea of a digital commons is paralleled by a
growing interest for the idea of the commons in the analog world as well – especially
after Elinor Ostrom received the in 2009 the Nobel Memorial Prize in Economic
Sciences for her institutional economic studies on the governance of the commons
(Ostrom 1990).
Has the concept of the public domain or the commons in effect become a
unifying master frame (Snow & Benford 1992: 138), bringing together various
organizations and protests under a shared interpretation and with a common goal?
Have these concepts played a central role in recent conflicts about intellectual
property rights? Or do other frames play a more central role in uniting social
movements that are addressing conflicts of the knowledge society?
To answer these questions, I will analyze the framing strategies of the opponents
of strong intellectual property rights by focusing on two conflicts in the field of the
politics of intellectual property: 1) the global mobilization on access to medicines,
and 2) the European conflict over software patents. These two conflicts so far
represent the largest mobilizations in which intellectual property rights have been
politicized and which involved forms of action usually associated with social
movements – most importantly large-scale public protests. Moreover, each conflict
has developed a lasting impact on IP politics. For both cases, the analysis will
examine whether and to what degree frames about the public domain and the
commons functioned as a master frame uniting various actors’ argumentations or
whether the actors involved in these conflicts constructed their argumentation
mainly around other frames that do not focus primarily on the propertization of
immaterial goods. The goal of the article is to judge the relative importance of the
ideas of the public domain and the commons in current conflicts of the knowledge
society.
On the following pages I will first briefly introduce the data sources and methods
used to identify the frames employed by the actors. I will then discuss the two
conflicts separately, starting with the access to medicines mobilization, because it
represents the broader conflict of the two. The article closes with a more general
comparative discussion of the framing strategies and how they should be
interpreted.
Data and methods
For the analysis of the actors’ framing strategies, I draw on empirical data originally
collected in a larger project about conflict in the knowledge society (Haunss 2013).
More specifically, in the access to medicines conflict, the analysis is based on 30
documents published by core actors involved in the conflict. These documents were
coded in a qualitative content analysis (Kelle, Prein & Bird 1995; Titscher, Meyer,
Wodak & Vetter 2000) in which passages were identified that represent the actors’
diagnostic, prognostic and motivational frames (Snow & Benford 1988). The coding
Haunss, S. Etikk i praksis. Nord J Appl Ethics (2016), 45–59 47
used the qualitative data analysis package RQDA (Huang 2010). Based on this
coding, it is possible to identify the master frames of each of the two camps. I
methodically followed Gerhards’ and Rucht’s approach to analyzing
mesomobilization processes, i.e. mobilization and negotiation processes among
groups mobilizing in a common campaign (Gerhards & Rucht 1992). Similar to
their study, my main interest was to identify elements of the collective action frames
that help the actors of a heterogeneous network to develop a common interpretation
and action strategy.
The analysis in the software patents conflict is based on a broader document
corpus. Because of the more limited geographical scope of the software patents
conflict, it was possible to base the analysis on the content coding of 124 newspaper
articles published in quality newspapers in Germany, Great Britain, France and
Poland between 1997 and 2005.1 As a first step, all articles mentioning the software
patents conflict in Europe or the issue of software patents in general were selected.
In these articles every instance of claims-making was coded according to a coding
scheme (Haunss & Kohlmorgen 2008) that is a further development of Koopmans’
political claims analysis codebook (Koopmans 2002). A claim in this context means
any demand, proposal, criticism, decision, etc. made by actors active in the respective
field of conflict in the form of statements or collective mobilizations. This can be a
parliamentary motion, a formal vote, a petition, a demonstration or any other act of
public political intervention. For each claim, the content of the claim, the date,
name and organizational affiliation of the claimant, addressees (if explicitly
mentioned) and the argumentative frame were recorded. Frames in this context are
the reasons that are given for a specific instance of claims-making. They are the –
sometimes explicit, often implicit – arguments or concepts used by the actors. To
give an example: An article reports that an actor has published a press release in
which he demands that the European Parliament should reject the directive, because
it would disadvantage small IT companies. This article contains a claim – the press
release – and a frame – “Software patents are bad because they negatively affect the
competitiveness of small and medium sized enterprises”. In the database this is then
coded as actor X making a claim (publishing a press release), using the frame
“competitiveness of SMEs”. It is furthermore recorded that the frame
“competitiveness of SMEs” is here used to argue against software patents in Europe.
Overall, the 124 articles contained 338 claims for which a clear actor position in the
conflict was given.
The original dataset covers statements from all actors present in the conflict,
those in favor of stronger intellectual property rights and those struggling against
far-reaching pharmaceutical patents in the developing world and against software
patents in Europe. The following analysis only draws on the statements from
oppositional actors, since my focus here is limited to the opponents of strong
intellectual property rights.
Access to medicines
On a global level, the broadest and most prominent conflict about intellectual
property rights was certainly the conflict about access to (essential) medicines. At its
core it was, and still is, a conflict about the effects of patents for pharmaceutical
products on access to drugs for patients living in countries of the Global South. The
48 ETIKK I PRAKSIS NR 1 2016
conflict was fueled, in particular, by the issue of access to HIV/AIDS medication
(for a more detailed discussion, see Reis, Terto & Pimenta 2009; ’t Hoen 2009;
Haunss 2013: Chapter 5).
The coordinates for this conflict were set by the dual dynamics of an accelerating
rate of HIV infections in a number of developing countries in Africa, Asia and
South America and a ratcheting up of IP protection that culminated in the 1995
TRIPS agreement. Medical advances have, for many patients in the Global North,
converted AIDS in the 21st century from a deadly illness to a manageable chronic
disease (Osborn 2008). But for most patients in the Global South, this is not yet the
case. By the end of the 1990s, about one-third of the world’s population did not have
access to essential medicines, and often even no access to primary health care. One
reason for this is that many countries lack the necessary medical infrastructure. But
even where this infrastructure exists, essential drugs are often simply unaffordable
for many people in the world’s poor countries. This is the epidemiological backdrop
against which several NGOs started a campaign for access to essential medicines in
the late 1990s.
The second thread of this conflict goes back to the Uruguay Round of world
trade negotiations. The Uruguay Round of multilateral trade negotiations started in
1986 and ended nine years later with the transformation of the General Agreement
on Tariffs and Trade (GATT) into the World Trade Organization (WTO). One part
of the negotiations was a multilateral agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) that was included in the final WTO treaty and
went into force on 1 January 1995. TRIPS marked an important change in
international IP politics, as it shifted responsibility for IP issues from WIPO and
other UN agencies to the WTO. All TRIPS member states are required to guarantee
in their national legislation a number of minimum standards of IP protection,
among them a minimum copyright term of 50 years after the death of the author, a
minimum patent term of 20 years (Art. 12) and a clause that patents must be
granted “in all fields of technology” (Art. 27–33) – including pharmaceutical
products. For many countries this meant far-reaching changes to their patent
legislations, and in the field of pharmaceutical patents it foreclosed the option of
process patents that some developing countries, notably India, had chosen until
then, and which had allowed them to produce cheap generic versions of brand name
medicines. Because the actual synthetization of a medicine’s active ingredient is
usually not overly complex in the pharmaceutical production process, process
patents allow firms to analyze the chemical composition of pharmaceuticals
available on the market, and then develop an alternative process2 to produce a drug
with the same chemical structure. TRIPS eliminated this option. Instead, all
countries are now required to introduce product patents in all fields of technology,
including pharmaceuticals, and to guarantee a 20-year minimum patent term. This
is the global IP backdrop of the access to essential medicines campaign.
The goal of the access to medicines campaign was, and still is, to provide patients
in the Global South with the drugs they need to fight the most dangerous illnesses,
above all HIV/AIDS. The access to medicines campaign started as an NGO
mobilization in 1996 with a meeting of several health NGOs in Bielefeld, Germany,
where the issue of access to medicines was discussed for the first time in a broader
civil society context (Schaaber 2006). At about the same time, Thailand and South
Africa were confronted with massive pressure from the United States when they
Haunss, S. Etikk i praksis. Nord J Appl Ethics (2016), 45–59 49
began to draft laws to incorporate the flexibilities the TRIPS agreement still allowed
into their national legislation, with the result that Thailand quickly abandoned their
plans and in South Africa, the law was immediately challenged before the High
Court by the South African Pharmaceutical Manufacturers’ Association (PMA) and
39 pharmaceutical companies for allegedly being unconstitutional (Sell 2002;
Cameron & Berger 2005). A number of developing countries, supported by an NGO
network, made another attempt to put a resolution on the agenda of the 1998 World
Health Assembly (WHA). This resolution urged WHO member states “to ensure
that public health rather than commercial interests have primacy in pharmaceutical
and health policies and to review their options under the Agreement on Trade
Related Aspects of Intellectual Property Rights to safeguard access to essential
drugs” (World Health Organization 1998) and was also met with fierce opposition
from US and international pharmaceutical associations, who were supported by the
United States and several European countries (Sell 2002: 504).
In 1999 the conflict gained international publicity, with Médecins Sans
Frontières (MSF) joining the NGO coalition and starting its own campaign.3 MSF’s
specific advantage was that it already had very high public visibility in countries of
the Global North. MSF also had a very high level of moral credibility, having been
awarded the Nobel Peace Prize in 1999, and the organization is a large buyer of
essential medicines, which it distributes in its medical aid projects in the developing
world.
In the following years, several other NGOs joined the network. In their campaign
for access to medicines they employed a broad arsenal of action forms. They
provided expertise to developing countries’ administrations and governments,
lobbied northern countries to counter the position of industry lobbyists, organized
meetings and conferences, published information material, and organized rallies
and demonstrations in countries of both the Global North and South.
The biggest success of the mobilization was the Doha Declaration on TRIPS and
Public Health at the WTO ministerial meeting in November 2001, in which the
member states declared that
the TRIPS Agreement does not and should not prevent Members from
taking measures to protect public health. Accordingly, while reiterating our
commitment to the TRIPS Agreement, we affirm that the Agreement can
and should be interpreted and implemented in a manner supportive of
WTO Members’ right to protect public health and, in particular, to promote
access to medicines for all. (WTO 2001)
The Doha Declaration also recognized the so-called “Paragraph 6 problem,” in
which TRIPS allows compulsory licenses predominantly for the supply of the
domestic market in Article 31(f). Negotiations to solve this problem showed a
continuing deep rift between developing countries on one side and the USA and
Europe on the other (’t Hoen 2009). An agreement which was reached in the WTO
General Council in 2003 and reaffirmed in 2005 (WTO 2003, 2005) de facto
narrows the scope of the Doha Declaration and installs a highly complex rule set
that many NGOs dismiss as unworkable (Cameron & Berger 2005; Médecins Sans
Frontières 2006).
The access to medicines conflict also played out at the local level in numerous
campaigns in South Africa, India, Brazil, Thailand and other countries. It was thus a
true transnational and multi-level mobilization, combining lobbying, information
50 ETIKK I PRAKSIS NR 1 2016
campaigns, demonstrations and the creation of counter-expertise at the national
and international level, within and outside organizations. During the conflict, a
collective actor emerged from a network of local and transnational NGOs, engaged
individuals, government officials from some countries of the Global South and
other actors that brought various issues together and connected mobilizations at
various levels. The mobilization connected local protests, like the demonstrations in
Thailand against the US-Thailand free trade agreement and for compulsory licenses
for HIV/AIDS drugs, transnational protest campaigns, like the one against
pharmaceutical lobbyists in South Africa, and lobby politics at international
organizations, like the work for the WTO Doha Declaration.
What was the argumentative kit holding this network together? Which frames
were developed to mobilize and unite such a diverse coalition? What role did the
idea of the public domain play in the discourse about access to medicines? Table 1
summarizes the frames used in core documents of the most important organizations
involved in the mobilization for access to medicines.
Table 1: Frames used in the access to medicines conflict
Frame
N
%
International Trade (TRIPS)
10
11,6%
Patents Restrict Access
10
11,6%
Primacy of Health
10
11,6%
Flexibilities
8
9,3%
Concrete Goals
7
8,1%
Compulsory Licenses
5
5,8%
Balance
4
4,7%
Innovation
4
4,7%
Lack of Access
4
4,7%
R&D
4
4,7%
Generics
3
3,5%
Market Failure
3
3,5%
Parallel Imports
3
3,5%
Global Patent Pool
2
2,3%
Humanitarian Crisis
2
2,3%
Power Differences
2
2,3%
Rich Countries are not Doing Enough
2
2,3%
Other
2
2,3%
Not very surprisingly, the actors involved in the access to medicines mobilization
identify international trade and the exclusive rights that patents confer as the core
problems restricting access to medicines in the Global South, and they argue that
Haunss, S. Etikk i praksis. Nord J Appl Ethics (2016), 45–59 51
health should have primacy over economic interests. The overall narrative of the
access to medicines coalition can be summarized as follows (Haunss 2013: 175):
1. The problem is that millions of people have no access to essential
medicines.
2. The main reason for this lack of access is that the prices for those drugs are
much too high in the developing world.
3. The cause for these high prices is a market failure: Drug production is
driven by profit margins and not by public health needs. Intellectual
property rights aggravate the problem by prohibiting competition, and
trade liberalization forces developing countries to introduce and/or
strengthen these intellectual property rights that are detrimental to public
health.
4. The problems can only be solved if public health concerns are given
primacy over private economic interests.
5. To solve the access problem, developing countries should use compulsory
licenses, promote generic competition and allow parallel imports. More
generally, developing countries should make use of the TRIPS flexibilities.
The transition period should be extended and a moratorium should
prevent developed countries from using the dispute settlement mechanism
against TRIPS violations in relation to access to medicines.
6. To address the problem more comprehensively, the TRIPS agreement
should be reformed and northern countries should refrain from including
TRIPS-plus clauses in bilateral or regional trade agreements.
7. Alternative mechanisms should be introduced to strengthen research and
development of drugs for the needs of developing countries (Neglected
Diseases Act, Medical Patent Pool), and additional financial resources
should be provided to help developing countries to cope with the problem.
The first three points represent the diagnostic frame of the access to medicines
coalition. Points four to seven are the prognostic frames in which actors define what
to do. The motivational framing relies on the urgency of the health problem.
The framing of the access to medicines coalition is obviously not centered on the
idea of the public domain. The argumentation instead focuses on the primacy of
health over economic considerations, claiming that the production and distribution
of medicines should primarily focus on the goal of combating serious illnesses and
helping patients. The argumentation contradicts the general economic assumption
that markets automatically lead to innovation and an optimal allocation of
resources. Instead, the access to medicines coalition argues that markets may well
lead to innovation, not necessarily in the areas where innovation would be most
needed due to pressing health problems, but in areas where medical innovations are
most profitable. Market processes alone are therefore not well suited to establish
access to essential medicines – especially in poor countries. This contradicts the
standard assumption behind the continuing expansion of intellectual property
rights, that the solution for the so-called tragedy of the commons (Hardin 1968),
and thus the most effective way to maximize innovation, would be the privatization
of knowledge.
While the public domain is not mentioned explicitly in the framing of the access
to medicines coalition, the idea nevertheless plays a role in at least two of the frames
used by members of the coalition. The argumentation for compulsory licenses and
52 ETIKK I PRAKSIS NR 1 2016
for a global patent pool both refer to policies which would secure public access to
the knowledge necessary for the production of essential medicines, at least in the
Global South. And the idea for an alternative to the existing global patent system
indeed found some support within the UN system, and in 2010 the “Medicines
Patent Pool” was founded as a UN-backed organization. Patent holders, and in
particular private pharmaceutical companies, can grant the Medicines Patent Pool
(MPP) a nonexclusive license for their essential medicines. The MPP can then
sublicense other firms to produce these drugs for patients in developing countries
(Cox 2012).
Coming back to Boyle’s suggestion that a movement against the growing
propertization of knowledge should develop a mobilization frame centered around
the idea of the public domain, we can see that in the largest and most transnational
mobilization against the current expansion of intellectual property rights to date,
the idea of the public domain plays a role but has not provided an overarching
master frame for the mobilization. This may be a consequence of the idiosyncrasies
of the specific case. The individual right to health has a strong normative value, and
the claim that pharmaceutical profit interests would deprive patients in the Global
South of this right creates an easily communicable injustice frame (Olesen 2015),
well suited for winning support for the cause of the access to medicines coalition.
This option is not as plausible in the case of software patents, where no human
rights of vulnerable populations are touched. In the next section I will therefore
analyze the framing in the second most prominent recent conflict about intellectual
property rights, which surprisingly developed around an issue that – before the
conflict – most commentators would not have seen as a candidate for a large-scale
protest mobilization: software patents.
Software patents
The conflict over software patents in Europe – from its beginning in 1997 to its end
in 2005 – involved a large number of actors and brought the former specialist issue
into TV’s evening news. The conflict started in June 1997 when the European
Commission published a Green Paper on the Community patent and the patent
system in Europe (COM 1997). It ended eight years later on 6 June 2005 when the
European Parliament rejected the “Directive on the Patentability of Computer-
Implemented Inventions” (COM 2002) with a majority of 648 to 14 votes. Between
these dates lay a contentious mobilization, in which new collective actors emerged
and entered the arena of IP politics in Europe, and which has lastingly altered the
power relations in this field. The goal of the diverse coalition of actors mobilizing
against the directive was effectively to make the patenting of software impossible in
Europe.
The goal of the Commission was to create a sound legal basis for granting
software patents in Europe. Patents for software became available in the US in the
1990s (Jaffe 2000) and have since been extensively used by the industry and
forcefully criticized by academics for breaking the patent system (Jaffe & Lerner
2004; Bessen & Meurer 2008). The problem with software patents is that, compared
to the traditional copyright protection of the program code, software patents offer
an additional and much broader option to create exclusive rights. Copyrights create
exclusive rights only for the specific code of a program. If another program creates
Haunss, S. Etikk i praksis. Nord J Appl Ethics (2016), 45–59 53
the same functionality with different code it therefore does not violate existing
copyrights. Patents, on the other hand, can create exclusive rights for a certain
functionality, independent of the specific code used to realize this functionality. For
two reasons it is often hard to determine whether or not a new piece of software
may infringe on an existing software patent. First, given the complexity of most
current software and the sheer number of patents, it is almost impossible for the
average software programmer to reliably judge whether or not new software may
possibly violate an existing patent. Second, this is aggravated by the tendency to
formulate patent claims to be as fuzzy as possible in order to maximize the scope of
a given patent.
In Europe, the European Patent Convention disallows patents for software “as
such” in Article 52. But in the practice of the European Patent Office (EPO), this
limitation has been interpreted very loosely so that the EPO now de facto grants
software patents as long as the patent claim also mentions the hardware on which
the software is run (Laub 2006). Nevertheless, because patents still have to be
enforced on the national level, and because not all national courts in EU member
countries follow the liberal interpretation of the EPO, the actual value of EPO-
granted software patents for firms is often not clear (Ballardini 2008).
Intensive lobbying and various forms of protest accompanied the drafting of the
directive and the ensuing legislative process. Proponents of software patents and of
the directive proposed by the Commission were mainly national and international
business associations and large ICT firms. Opponents came mainly from the Free
and Open Source Software (FOSS) sector, supported by civil society organizations
and small and medium sized enterprises (SME) business associations.
The conflict was characterized by dense, informal cooperation networks within
each camp and a strong polarization between proponents and opponents of
software patents. Opponents of software patents staged demonstrations in Brussels,
Strasbourg, and in several cities in the member states, as well as virtual
demonstrations on the Internet. Both sides used electronic media to lobby the
members of the European Parliament and to publicize their claims and positions.
The fault lines did not run along existing cleavages of the industrial age. It was
neither possible to locate the two camps along a left-right axis, nor was it a capital-
labor conflict, or a conflict between industry interest and other (e.g. civil society)
groups. All political parties in the European Parliament – except the Greens – were
split on the issue of software patents, and while civil society organizations sided with
the opponents, the majority of the oppositional actors were corporate actors
themselves.
I have elsewhere (Haunss 2013; Haunss & Kohlmorgen 2010; Leifeld & Haunss
2012) provided a detailed discussion of the development of the conflict and an
explanation of the surprising success of the comparatively resource-poor coalition
of software patent opponents. These topics are not the focus of this paper. The
interesting aspect here is what kind of frames the opponents used to argue and
mobilize against software patents. Did they invoke the notion of the public domain
in their fight against a further extension of patentability of immaterial goods? Or did
they construct their mobilizing frames around other concepts?
Table 2 gives an overview of the frames used by opponents of software patents. It
shows that – as in the access to medicines conflict – claims against software patents
were not mainly framed by referring to the notion of a public domain. In their fight
54 ETIKK I PRAKSIS NR 1 2016
against software patents, the actors involved in the conflict framed their demands
against software patents above all by arguing that software patents would diminish
the competitiveness of SMEs, that they would impede innovation and transfer of
knowledge, and that software patents would lead to monopolization in the ICT
sector. They also criticized the Commission’s ignorance of objections voiced by a
large number of software patent opponents and by the majority of the members of
the European Parliament as disrespect for democratic procedures in favor of narrow
lobby interests. Together these four frames were used in more than two thirds (67.4
%) of the claims in which arguments were given for the opposition to software
patents.4
Table 2: Frames used in the software patents conflict
Frame
N
%
Competitiveness of SMEs
42
23.2 %
Innovation and Transfer of Knowledge
31
17.1 %
Monopolies
25
13.8 %
Democratic Procedures
24
13.3 %
Open Access/Open Source
14
7.7 %
Economic Growth/Stability
13
7.2 %
Research and Development
10
5.5 %
Consumer Rights
8
4.4 %
National Economy
7
3.9 %
Competitiveness of the European Economy
7
3.9 %
Claims that are supported by arguments about the value of open source software
and – more generally – of open access to knowledge and information are present in
the opponents’ framing repertoire, but they make up only about 8 percent of the
frames. Thus, instead of focusing on the idea of the public domain and the
principles of open source and open access which would serve to create a public
domain in the area of computer software, the opponents constructed a clear
storyline centered around innovation: Innovation in the IT sector would depend
mainly on small firms and individual programmers whose livelihood (or business
model) would be threatened by the directive. Software patents would have a
negative effect on innovation in the IT sector and should therefore not be allowed in
Europe. This core story was embedded in anti-monopoly and pro-democracy
arguments. It contained a clear call for action (“Stop software patents!”) and a
strong motivational element (“Defend our livelihood!”), and thus provided a viable
base for a collective identity of the activists involved in the mobilization.
The role of the public domain in IP conflicts
Similar to the constellation in the access to medicines conflict, the idea of the public
domain in the software patents conflict did not provide a master frame for the
Haunss, S. Etikk i praksis. Nord J Appl Ethics (2016), 45–59 55
mobilization but structured a sub-narrative about alternatives to the current system
of strong and exclusive intellectual property rights. The idea of the public domain –
although not the term itself – is thus an important element in the actors’ framing,
but it does not play the role James Boyle suggested. Health, development,
innovation and democracy are instead frames that actors have chosen to mobilize
against the current system of extensive intellectual property rights and attempts to
further strengthen the scope of protection. Even though my analysis here builds
only on two cases – albeit the most prominent ones – I would argue that the low
salience of the public domain in the two conflicts is not a result of the case selection
but an expression of the more general conflict lines along which conflicts about the
production, appropriation and distribution of knowledge have developed and most
likely will develop in the future.
Boyle’s narrative of intellectual property rights as a second enclosure focuses on
the process of propertization: knowledge that originally is not private property is
transformed into property through intellectual property rights. Against this
propertization, the idea of the public domain somehow defends a natural state of
knowledge, which is still free for use by everybody and therefore is not (yet)
property. The idea of the public domain therefore at least partially contains a
defensive element. The public domain is something that already exists or has to be
recreated, and that has to be defended against encroachment by the processes of
propertization, which removes ever greater parts from the public domain.
In the two cases discussed here, such a defensive argumentation is present but
not dominant. Instead the focus lies in the production of knowledge. This points to
the limits of the enclosure metaphor for understanding knowledge society conflicts.
While intellectual property rights can restrict access to knowledge just as fences
restrict access to land, knowledge – in contrast to land – can be endlessly
reproduced and expanded. Therefore, not (only) the propertization of existing
knowledge but the production of new knowledge is the crucial element – or at least
production of new knowledge is the element that the actors involved in the conflicts
focus on much more than the public domain. The rules that govern the production
of knowledge determine who has access to this knowledge and under which
conditions. And therefore the production of knowledge is central to the IP conflicts.
I argue that both the conflict over access to medicines and the conflict over software
patents directly address this issue as a conflict about the appropriate mode of
innovation, i.e. a conflict about which set of social mechanisms should determine
how and where new knowledge is produced.
Two perspectives stand in opposition: the industrial mode vs. a decentralized
mode of innovation. The industrialized mass production of the industrial era is
accompanied by industrialized mass innovation – innovation that is concentrated in
large industrial units, be they large private or public research labs. The current
patent system fits this centralized and industrialized mode of innovation well, and is
directly challenged by the current IP conflicts. Opponents of software patents have
argued that without software patents, the “real” innovators of the European high-
tech sector would not be the handful of large transnational corporations who make
extensive use of the patent system, but the many thousands of small- and medium-
sized software and technology companies, who would rather suffer than profit from
patent protection in the area of software.
56 ETIKK I PRAKSIS NR 1 2016
In the access to medicines conflict, the industrial innovation model has been
challenged from a different angle. The core criticism here was not so much that the
big pharmaceutical companies would not be the “real” innovators, but that the
innovation would not create the most urgently needed knowledge. Instead of
producing drugs for the wealthiest patients, innovation should be geared to
producing drugs against the most dangerous illnesses. Public authorities should
therefore be able to intervene and redirect innovation processes and make existing
drugs available according to human needs.
Both conflicts also challenge the industrial innovation model on another level.
The social movement actors involved in the conflict insisted that knowledge policies
and innovation processes should not be determined through market processes, but
by the people and/or accountable and democratically legitimized institutions. An
alternative vision of a decentralized and democratic mode of innovation emerged
from these conflicts. The idea of the public domain is highly compatible with this
mode of innovation but does not guide the actors’ argumentative strategies.
In sum, the idea of the public domain did not provide an overarching master
frame, either because actors did not realize its potential or because they were not
aware of it. The public domain is simply not the metaphor that is best suited to
frame a conflict about the rules for the production of knowledge. Moreover, the
activists involved in the two IP conflicts discussed here do not reject the idea of
intellectual property as such. They argue that the granting of property rights should
require demanding social obligations for the property holders, just as material
property rights in social market economies also (at least ideally) entail societal
duties for the property holders.
Notes
1 The newspapers from which the articles were taken are, in Germany: Süddeutsche
Zeitung, die tageszeitung, Frankfurter Rundschau, Die Welt, Stuttgarter Zeitung; in
the UK: Daily Mail, The Times, The Guardian, Financial Times, Western Mail,
Morning Star, The Daily Telegraph, The Business, The Independent, The Observer;
in France: Le Figaro, Liberation, Les Echos, Le Monde, La Tribune; and in Poland
Gazeta Wyborcza, Polityka, Rzeczpospolita, Wprost.
2 India’s process patents-only policy de facto followed the Swiss example. Until
1977, Switzerland only had pharmaceutical process patents and introduced product
patents only after its pharmaceutical industry was well established (Boldrin &
Levine 2008: 216).
3 http://www.msfaccess.org/
4 In 31.4 percent of the pro- and contra statements, no explicit frame accompanied
the actor’s positioning against or for software patents.
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