James Love Proposes an Ingenious Hack on the World Trade Organization

Computer programmer Richard Stallman invented a famous “hack” around copyright law when he created the General Public License, which enables a community of hackers to create their own commons of software code. Copyright law is used as a vehicle to serve the commons.

It sounds improbable, but could something similar be done with the procedures of the World Trade Organization? Could a treaty apparatus designed to serve multinational corporations be exploited in a new way so that it does not just promote free trade in private goods and services, but enables countries to collaborate to create public goods?

That is precisely what James Love, director of Knowledge Ecology International, recently proposed at the World Forum on Science and Democracy, held in Belém, Brasil, an event that is affiliated with the World Social Forum. Love is the hard-driving and sophisticated Washington-based activist who has done so much to fight strict drug industry patents and lower the cost of drugs for developing countries.

Love’s brilliant idea is to re-purpose the portion of the WTO agreement that deals with the market for services, and try to use it as a procedural platform that would let different nations cooperate in the creation of such public goods as open source software, shared scientific research on drugs and global warming solutions, the translation of works into other languages, and much more.

Here is how Love explained the proposal at the World Forum on Science and Democracy on January 26, 2009:

The world is confronted with a vast under-supply of public goods. Part of the problem is that the current trade system lacks the sufficient incentives and structures to address the free riding problems associated with the supply of public goods. There are increasing calls for a larger supply of public goods and a variety of proposals that involve government commitments to increase the supply of global public goods in specific areas, including but not limited to major projects such as the Kyoto Protocol to the International Framework Convention on Climate Change, the International Treaty on Plant Genetic Resources, the proposed WIPO Treaty on Access to Knowledge, and the proposed WHO Biomedical R&D Treaty.

Our goal is to create a new option that will allow governments to make binding offers and commitments for the supply of heterogeneous global public goods, involving in particular knowledge goods.

One of the objectives is to shift from the current WTO focus on trade liberation for private goods and the private enclosure of knowledge through mandatory standards for intellectual property and its enforcement (an area some believe has been over emphasized), to a more balanced agenda that also includes public goods and attention to pressing social needs.

One proposal is to model such an agreement in part on the WTO agreement on services — the General Agreement on Trade in Services (GATS). The GATS in the WTO is designed to privatize and liberalize trade in service, in part though a system of binding “offers.” These offers are not uniform among countries. Offers by one country depend upon their specific willingness to liberalize a specific sector, and the interest of other countries that they do so. Liberalization commitments are traded in a WTO environment where “asks” and “offers” cover a wide range to topics, including changes in tariffs or agricultural subsides, or requests for support of new intellectual property norms. What is key to the services agreement is its ability to accommodate a diverse set of offers, in a multilateral negotiation, where consensus on uniform norms is unlikely.

There is much criticism of the GATS itself, much of it we share. However, as a model for creating binding commitments for a diverse set of obligations, it is quite interesting. Hence, the earlier reference to the “hack” of the WTO. We are interested in borrowing from the GATS the structure of accepting binding heterogeneous offers to supply — in this case, not liberation of services, but the supply of public goods.

If such an agreement existed with the WTO, several countries could propose a collaboration to fund open source research on malaria. Countries could bind government agencies to require government funded research to be made available, for free, on the Internet, as was recently done by the U.S. NIH and in some other government research agencies. Like-minded countries could agree to make binding commitments to support the development of open source software, fund new databases, share the costs of hosting Wikipedia servers, pay for translations of scientific works into other languages, or for the creation of more accessible formats of books and articles for persons who are blind or have other reading disabilities. The lists of things that could be expanded and supported under such an agreement are endless.

In theory, all of these things could be done without a WTO agreement. The benefits of the WTO agreement would be several, however. First, it is quite costly to set up a separate treaty or agreement, particularly one that can so effectively enforce commitments, as can the WTO. Second, by introducing public goods into the WTO environment — the culture of the WTO would be profoundly changed. “Asks” and “offers” in the WTO negotiations would not longer be exclusively about the private goods market, or about the privatization and enclosure of knowledge itself. There would be an immediate shift to consider the competing benefits of greater openness, and a larger global commons. Knowledge that was produced to be “free” would have a new value, as a trading chip in the WTO environment.

What strikes me as so exciting about Love’s proposal is its attempt to use the WTO apparatus to contractually construct commons that would generate and share knowledge as a public good. Over time, this new the commons vector working under WTO auspices could begin to compete with and complement the market system as now constituted!

Love’s same presentation also describes previous proposal that the nations of the world adopt a a new incentive system for generating drugs. Under a new system of “medical innovation inducement prizes,” patent monopolies would be eliminated entirely and replaced with a system of large cash prizes to drug developers. The shares of a prize that companies would receive would be based on “the impact of their products on actual health outcomes over time, benchmarked against the state of technology that existed before the introduction of the new product.”

While the proposal is certainly visionary, it is extremely well thought-out and specific. The challenge now is moving it forward in international councils of policy and public opinion.

Originally published by David Bollier at Onthecommons.org under a Creative Commons Attribution license.