The contemporary global order for the promotion of innovation exaggerates the role of intellectual property (IP) as a closed proprietary model of knowledge production and protection. Partly as a boomerang effect of that order and/or partly as a coincidence of the phenomenal rise in the information and communication technologies, there has been increased gravitation toward open, collaborative, shared, communal, and interdependent models of innovation. This trend is typified by the rise of open software movement and cognate endeavors in the era of wiki, open access, creative commons, crowdsourcing, etc.
The discourse and dynamic of open innovation is, however, limited mostly to knowledge production in the digital realms. Open innovation is underexplored in the context of plant genetic resources for food and agriculture (PGRFA). Analysts are wont to ignore the significance of customary seed sharing and exchange as the centerpiece of the inherent open nature of innovation in agriculture, especially in indigenous and local communities (ILCs). A critical appraisal of emergent institutional and legal frameworks for the governance of PGRFA, through a complex interaction between the processes and programs of work at the Convention on Biological Diversity (CBD), the Food and Agricultural Organization (FAO)’s International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA or the Treaty) and the Consultative Group on International Agriculture Research Consortium (CGIAR) finds that they reflect pragmatic attempts at melding both the IP-driven closed model and the accommodation of open or public good approach toward the promotion of access and overall management of innovation in PGRFA.
One of the important lessons of the emergent regime in open innovation or a public good approach to R&D in PGRFA is a repositioning of the role of IP as not necessarily antithetical but potentially facilitative of open innovation. The 2010 CGIAR enunciation of Principles on the Management of Intellectual Assets (IA Principles) demonstrates the importance of a pragmatic deployment of IPRs to serve the interests of complex stakeholders involved in agricultural R&D without compromising the overarching imperative for optimal uptake of innovation by those in direst need. According to the CGIAR, the IA Principles provide “a clear framework […] to help knowledge travel freely […] to ensure that intellectual assets reach those who need them most [through] adopting common sets of principles with regard to production, acquisition, management, and dissemination of assets.” This approach aligns with new realities in favour of more open, collaborative, shared and non-proprietary essentials, which have been marginalized under the TRIPs agreement. Another obvious lesson from the CGIAR Consortium Intellectual Asset initiative is that subject to the contingencies of a given sector, the optimal exploitation of innovation would require a deliberate calibration of both exclusive and open models.
An IP system that is too strong undermines economic development and public objectives, which are (or ought to be) at the core of both IP and innovation systems in general. By contrast, an unfettered openness could chill the entrepreneurial investment that is necessary to convert invention into innovation for the common good of society. IP and open innovation are hardly ends in themselves. Consequently, fairly recent attempts at mapping the intersection of open innovation and IP within interdisciplinary inquiries focus on how the concepts could best interact to contribute to development. As an outcome, such interaction has potential to address global inequity, democratize creative processes, extend the benefits of innovation, uplift the quality of human life, and advance the optimal realization of human potential with significant impact on those people Larry Helfer and Graeme Austin call the most vulnerable members of the human family.
A word about open innovation: Innovation is inherently open to the extent that openness characterizes or depicts, in an ex post facto sense, universally-shared impressions on the nature of the innovation process as one that “rests on a public domain of ideas.” However, the uniqueness of open innovation arises when openness is a referential or comparative designation in relation to alternatives, especially the closed models that are usually (though, less accurately) associated with IP. Rarely is any innovation system completely closed or completely open. Everything is a matter of degree. Comparatively, open innovation emphasizes or depicts the flexibility in the generation, transition, translation, and transformation of information or knowledge across internal and external stakeholders in the innovation process. It captures the conduct of innovation in the framework of collaboration, collectivity, and community by promoting network-building, sharing and democratic participation. It also capitalizes on the incremental nature of innovation, the interdependence of knowledge systems, and all the actors in the innovation process—not the least of which are generators and users of innovation. Rather than latch onto any perceived demarcation between these two categories, the open innovation paradigm recognizes the interaction between them (i.e. generators and users) as a healthy extension of the innovation process.
The reification of “the culture in agriculture” in ILCs reflects the cooperative and collaborative system of sourcing farm labor and farm resources such as seeds or other genetic materials through a trans-generational, networked process of open knowledge exchange. But it is hardly as if the system of agricultural innovation in ILCs is totally open. It, too, adapts to complex and layered forms of individual, communal, or collective credit or reward for contributions to knowledge and innovation. That said, unlike the conventional IP system where exclusionism and proprietary control dominate, here we see consideration of openness, interdependence, and sustainability as pillars of knowledge production. Thus, before openness was fashionable it was of obligate first nature in agricultural traditions and overall knowledge production in ILCs.
Agriculture reifies or mirrors “nature” as a fundamentally open phenomena. This proposition is, for example, symbolized by pollination, which involves a voluntary and non-voluntary combination of meteorological, bioactive, artificial and other forms of social and ecological collaborative interventions. Humankind and other partners in the ecosystem (i.e., insects, birds, microbes, and animals) are inevitably involved in concerted, accidental, and deliberate dispersals of genetic materials in an open manner that supports food, agriculture and environmental sustainability. The intrinsic self-propagation of PGRFA and the universal culture of seed exchange historically, even if symbolically, remains the mainstay of agricultural production and innovation.
Despite the diversity in global agricultural knowledge systems, no such system operates in isolation. For example, notwithstanding the North-South geo-ecological disequilibrium in the natural dispersal of agro-ecological resources and global plant germplasm, agricultural biodiversity is nurtured and sustained by ILC farmers for the common good in centers of origin and diversity. These farmers’ fields are no less laboratories of genetic revolution than those of their more powerful and better-organized counterparts, steeped in modern forms of agricultural production now epitomized by the ag-biotechnology, especially genetic engineering. Modern ag-biotechnology not only depends on global agro-biodiversity and the sustainability of the plurality of various knowledge systems in agricultural production, its potential for optimal impact on society is largely dependent on the level of openness across these systems. That is why the concerns about Access and Benefit Sharing (ABS) and the imperative for open innovation models are at the center of legal regulatory structuring in PGRFA, as evident in the implementation initiatives of the ITPGRFA and the recent strategic recalibrations at the CGIAR, especially through the IA Principles.
Significantly, the Treaty supports an open approach to innovation in PGRFA through a global information system. Information exchange, access to and transfer of technology, and capacity building (targeting especially developing countries and countries with economies in transition) are constitutive elements of the system, as elaborated in Article 13 on technology transfer. Similarly, the CBD is in the process of consolidating an ABS Clearing House (ABS-CH) website pursuant to the Convention’s Article 18.3 and Article 14 of the Nagoya Protocol on ABS. The ABS-CH website allows for tracking and global audit of uses of genetic resources, toward entrenching open innovation and facilitating equitable benefit sharing over the uses of genetic resources and associated traditional knowledge.
Information exchange (or sharing) in these contexts can be distinguished from mere reference to “free information” in the conventional open innovation discourse symbolized by the free software movement. Free information (or the more familiar refrain in ICT, free content) may bridge access gaps, sometimes in order to temporarily fix inequity, but it does not guarantee systemic change or capacity building and socialization of knowledge for the benefit of recipients. More often, the innovation in question is usually a product of centralized or hierarchical order. Information exchange, however, reflects, in part, the essence of openness. Information exchange or openness is not an end. It is innately functional because of its ability to develop capacity or promote empowerment, and it is essentially democratic in its ability to fuel optimal epistemic traffic across diverse competences in society in a horizontal chain of interaction. Rather than serve as a one-directional hand-out meant for consumption or absorption, creating a producer/consumer dichotomy, openness supports “social, [or socialized] information-network-based, models of sharing [and exchange], participation and collaboration.”
Foundational discourses about open innovation are understandably linked to the impact of digital technology and the internet platform in reifying the elements of openness—specifically collaboration, dependency, networking, and sharing. In this conceptual frame, new information technologies are essentially disruptive as they serve to catalyze pressure, disorient or even dismantle the more conventional, closed innovation model often represented (albeit, less accurately) by IP rights. Consequently, it is tempting to characterize IP as a counterpoint to openness and to deny its relevance in open innovation. However, whether as a metaphor or as a direct analogy, the information-technology driven model of openness requires a pensive approach in regard to its adaptation to sectors in which networked communication technologies are only ancillary. One such sector is the agricultural sector, specifically as implicated in the context of the global regulation of PGRFA. Like several sectors of human innovative endeavor, PGRFA has and is still benefitting from the adaptations or deployments of networked digital technology in furthering and in creating new interest in open innovation.
Unlike in the software sector, the historic poster child for openness, innovation in PGRFA is prima facie an open process manifested across epistemic boundaries of all agricultural knowledge systems. However, despite the innate culture of openness over innovation in PGRFA, there is a glaring equity gap in the diffusion of the benefits of R&D, owing largely to the exaggerated stress on IP as a closed or proprietary model of innovation. That stress is exacerbated through global strengthening and universalization of the IP standard pursuant to the TRIPs agreement. TRIPs and other subsidiary systems, such as the International Union for the Protection of New Varieties of Plants (UPOV), successfully cast IP as selectively exclusionary and rigidly closed regime of protection in a manner that alienated the interests and contributions to innovation made by ILC farmers at the centers of crop origin and diversity. The unbalanced focus on IP, in turn, helped to fuel concerns about equity and ABS in the realm of PGRFA and also provided an impetus for expediting long-lasting efforts in other sites for addressing those concerns, notably the CBD, the Treaty, and the CGIAR-IARC system. Ongoing implementations of the Treaty, recent reforms at the CGIAR and potential coming- into-force of the Nagoya Protocol on ABS encourage the consolidation of open innovation in PGRs and the pragmatic role of IPRs in this new dynamic.
Chidi Oguamanam is an Associate Professor at the University of Ottawa’s Faculty of Law (Common Law). He is called to the Bar in Nigeria and Canada and is a member of Nigerian Bar Association and Nova Scotia’s Barristers’ Society. You can read Chidi’s full article that was used to create this blog here.