A Natural Experiment With Intellectual Property’s Original Intent Reaches a Milestone

In 2001, I and an undergraduate student at the University of British Columbia started an intellectual property experiment with the original intent of this area of law. I didn’t think of it that way at the time, but now that fifteen years have passed and the results of this imagined experiment could be said to be in, I want to set it out here in those terms (warning: unabashed hubris to follow). What we set in motion in 2001 and have worked on steadily since then is a piece of software. I sketched out workflow and wrote the words, while Kevin Jamieson wrote the code for the first iteration and then he graduated; he was followed by Alec Smecher, who has built a team that we refer to collectively as the Public Knowledge Project.

This fifteen-year experiment has involved creating an environment in which intellectual property might be able to better serve its original legal purpose. Among English-speaking legal systems, the intent and purpose is perhaps best captured in the U.S. constitutiol clause from 1787 that empowers the United States Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (1.8.8).

Our experiment with intellectual property’s original intent involved putting a number of principles to the test. For example, cast in this light, we sought to assess if combining the application of intellectual property law to different forms of human expression, such as writing computer code and reporting research results, could be mutually reinforcing in affecting the promotion of science. That is, the original software package, which we called Open Journal Systems, was designed to manage and publish peer-reviewed journal articles and issues.

We used our intellectual property rights with the software to place it under a GNU General Public License. This ensured that those who could not otherwise engage in this promotion and progress of science and the useful arts had the means to do so. We wrote into the code strong instructional support for installing and operating the system to further lower the barriers that might otherwise retard such progress. And then we encouraged those who published journals using the software to use a Creative Commons license for the published articles of research and scholarship. This licensing would prevent restrictions in these publications promoting further work.

We extended the experiment by testing whether public funds, principally through Canadian research grants, and tax-exempt funds through private foundations, could be redirected toward preserving and extending the original concerns of intellectual property in ways that might not otherwise happen.

The results of this experiment are ongoing, but a significant milestone has been reached and some conclusions warranted. After fifteen years, Open Journal Systems has had 44 releases, with each upgrading the quality of publishing (through the continuing support of that funding), bringing us, on August 31, 2016, to OJS 3.0, representing a third generation of the software. But the real proof for this natural experiment resides in the takeup and use of the software. In 2015, the number of active journals, publishing ten or more items during the year (with an average of 42 overall), exceeded 10,000 titles for the first time.

Latin America and the Caribbean account for 3,289 journals, making it the largest region of use, with 60 percent of the journals are published in the Global South. Brazil alone has 1,934 journals. The software is available in Spanish, Portuguese, and French, among the 32 languages into which users have translated the software. There is the Holos Environment published by São Paulo State and the Jonathan Edwards Studies Journal at Yale; the Hydro Nepal: Journal of Water, Energy and Environment located in Kathmandu, and Canadian Journal of Sociology at the University of Alberta. The Indonesian Journal of Pharmacology is published by Gadjah Mada University in Indonesia, and the International Journal of Žižek Studies resides at Leeds University. The distribution of the journals geographically, as well as their openness and specialization of the topics, is part of the promotion of that progress on the global scale within which intellectual property operates today.

We take this growth and distribution to affirm the positive results for each of the elements in this intellectual property experiment with the law’s original intent. The law’s application to both code and prose, with the support of public and tax-exempt funding, has acted as an incentive, in the original spirit of intellectual property law, to promote the progress of the sciences and the useful arts. These are but preliminary results, marked by the passing of an initial milestone. They are encouraging results, especially when you consider the number of people involved around the world with those 10,000 journals, all of them participating, if inadvertently, in this experiment in determining the future of intellectual property law’s original intent.

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