The IProgress Project is aimed at promoting progress and innovation in the public interest.  Its goal is improving intellectual property law and policy through research initiatives focused on law and regulatory reform, software innovation, and legal education.

Intellectual property rights, especially copyright and patent, are intended “to promote progress in science and the useful arts.” This Constitutional call to progress has been understood in terms of two separate, but related public goods:  material benefits to improve living conditions and knowledge benefits to inform the marketplace of ideas.  Although the knowledge benefit is crucial to both basic research and commercial development, recent legislation and judicial doctrine have come to view progress principally in terms of material benefit.  This view is threatening to change the character of scientific research and artistic endeavor from public-regarding to private-regarding. 

The threat can be understood as a trend toward increased propertization, an increase in two respects.  First, private rights have been expanding quantitatively. The most visible example is the extension of patent protection to inventions that reflect only trivial improvements from prior art.  Second, rights are changing in character.  Rather than evaluating devices, expressions and other inventions by determining their impact on progress in science and the useful arts, both Congress and the federal courts too often treat intellectual property protection as a natural right of inventors and authors.  In this light, increasing private property rights is justified as naturally creating greater incentives to authors and inventors.  Yet empirical grounds for this natural incentive theory are lacking.  In fact, economists and policy makers recognize that more protection has sometimes created disincentives.  Moreover, the theory itself depends on the controversial assumption that economic gain is what motivates invention in science and the useful arts.  But for every Bill Gates there has been a Linus Torvalds, for every Walt Disney an Orson Welles, for every Andy Warhol a Vincent van Gogh.

If not an incentive theory, then what alternative approach can promote progress in science and the useful arts?  Another approach is already well-understood though not well-taken.  No one doubts the knowledge benefit’s centrality to progress.  Both pioneering inventors and those who have followed stand on the shoulders of their predecessors.  In that important sense, all invention is incremental.  Even Einstein’s brilliant formulations were mutations and deformations of prior art.  Both revolutionary and normal science depend on access to a rich public domain of knowledge. Whether solitary or communal, whether competitive or cooperative, innovation cannot proceed without the spillover of knowledge from private efforts into the public marketplace of ideas.

But the increasing propertization of copyright and patent is threatening to choke off the flow of public knowledge that fuels progress.  What is to be done?

The IProgress Project proceeds from the view that progress depends on the public good of knowledge produced by inventors and authors. It is the dispersion and advancement of public knowledge, first and foremost, that patent and copyright policy should protect and promote.  To this end, the Project has four components.  First, faculty, students, visiting scholars and other project associates will undertake scholarly research and produce position papers intended to initiate policy dialogue, including sponsorship of private workshops and public conferences that will bring together software innovators and policy designers.  Second, tools and metrics will be designed and developed in partnership with Professor David Johnson’s software tool initiatives and Professor Beth Noveck’s e-Democracy Project.  Currently, exciting design work is underway for software based on a peer-to-peer approach to patent evaluation.  Other items on the agenda include a patent registry for experiments and a more accessible data base of prior art.  Third, new courses will be added to the Information Law curriculum with an eye toward allowing even more student experience with tool design for policy analysis of Intellectual Property Law.  Finally, the Project will include a public interest module that will address issues of  timely interest as they arise, in partnership with the American Antitrust Institute in Washington, D.C., the Institute for Advanced Study in Lucca, Italy, the Centre for Asia Pacific Technology Law & Policy in Singapore, and public interest affiliates of the Institute for Information Law & Policy at NYLS, both in the U.S. and abroad.