I’d like to take that up as the topic of my post, through a look at the little-known legal life of the light bulb.

Thanks to Zetson for the CC-licensed image, via Flickr

More than a century after its introduction, the light bulb remains the defining icon of invention.

Justifiably so, in my opinion, because this widget almost single-handedly drove the demand for electrification. The light bulb was the killer app, if you will, for electric power. Which in turn enabled a whole new era of innovation.

But the story I want to tell is not one of great inventors and the inevitable march of progress. Hardly. It’s a story of legal battles, corporate strategy, social (in)justice, and lost technological opportunities.

Now as a girl, I was taught that Thomas Edison invented the light bulb. Full stop. That simple.

My fourth-grade class even took a field trip to Edison’s estate where, we were innocently led to believe, the Great Inventor single-handedly fathered the light bulb, the movie camera, and the phonograph (whatever that is).

Only very recently did I come to appreciate the much messier truth…

Edison’s team was merely one of dozens that co-invented electric light bulb. Scientifically speaking, his team’s discoveries were neither the first, nor the most important.

Image provided by the National Archives at www.ourdocuments.gov

What Edison did better than all the other inventors took place not in the laboratory, but in the office.

His lawyers pursued, obtained, asserted, and litigated key patents on light bulb technology in order to run competing bulb manufacturers out of business.

Edison then leveraged his monopoly on bulbs to corner the market in electricity service as well. And that was where he made the big bucks. Ever hear of GE?

Now the fourth-grade account suggests that we should thank Mr. Edison for bringing us this amazing technology. Without his long hours in the laboratory – he even slept there! – we would still be in the dark.

But when you look at the history more closely, Edison’s scientific contribution starts to look pretty dispensable.

Scientists had already published instructions for producing a glowing electric bulb in 1709. The technology was already commercially viable in 1876. A few years later, London’s Savoy Theatre switched from gas lighting to electric bulbs supplied by Joseph Swan.

It was at this point, in 1879, that Edison filed for his first patent on “an improvement in Electric Lamps and in the method of manufacturing the same.” The improvement Edison claimed was the use of a certain type of filament inside the bulb.

Now, a patent is just a claim to have invented something new and therefore, to own that technology as intellectual property. It’s not proof of inventorship. Moreover, patent filers often claim ownership of ideas much more broadly than the law and facts actually warrant.

For these reasons, competing companies often end up in court to determine exactly who owns what.

For example, Thomas Swan had light bulb patents of his own, the first predating Edison’s by 19 years. He had even been granted a patent in England claiming the same discovery Edison’s team claimed to have made. But he was unable to retain the legal upper hand.

Even though it was never legally established that Swan’s bulbs infringed on Edison’s patents, the shadow of IP law made it too risky for Swan to continue competing with Edison. The two companies merged.

In the process, competition in the light bulb market — and therefore the race to roll out improvements resulting in less-expensive, longer-lasting light — was severely curtailed. It would be half a century before ordinary Americans could afford electric lights.

For that to happen, it took not only the invalidation of key patents claims surrounding the light bulb, but also a bitterly contested political battle over the entry of federal and local governments into the business of electricity generation and supply.

The story of the light bulb reveals that the relationship between patents, innovation, and the spread of new technologies is more complex than is widely understood.

Companies who stand to benefit from longer, stronger patent protection would have us believe that patents promote innovation by providing greater incentives to invention. And there is good reason to believe that is at least sometimes the case.

But often, it works the other way. Patents are claimed by parties with no unique claim to invention, and used as weapons to stifle competition.

The result can be a paradoxical delay in scientific advancement, widespread access to new technologies, and opportunities for new businesses and opportunities that build upon that technology.

For an illustration, consider the biggest technological game-changer since electricity itself: the Internet.

photograph (c) alles-schlumpf, via Flickr

Where would we be today if Robert Cailliau and Tim Berners-Lee had sought patents on the World Wide Web in 1990, requiring anyone who wanted to provide a web-based service to negotiate a license with them?

Would we have smart phones, apps, and cloud computing today? Start ups? Google? Wikipedia? Internet memes? Even online shopping?

Almost certainly not. Software-based innovation moves so fast precisely because the Internet open, its underlying technology not controlled by any one company. It’s one area where IP law doesn’t get in the way of innovation.

Ensuring that access to new technologies spreads as rapidly as possible is an issue of distributive justice and, I argue, human rights.

But it’s also critical to economic growth. Each new technology paves the way for the next generation of business opportunities. When we slow their spread, we are shooting ourselves in the foot.

For more on these ideas, check out my speech at the Yale ISP’s recent conference on Access to Knowledge and Human Rights or my article forthcoming in the Wisconsin Law Review entitled The Right to Science and Culture.

February 11-13, 2010 at Yale Law School

This conference seeks to lay the groundwork – conceptual and strategic – to build bridges between the A2K and human rights communities pursuing common goals of promoting greater access to knowledge, culture, technology and tools for innovation worldwide.

Conference Organizing Partners include:

Thursday, February 11, 2010

Film Screening and Panel Discussion

Friday, February 12, 2010

Welcome and Opening Remarks

Panel I. Perspectives on Access to Knowledge and Human Rights

Panel II. Technologies of Dissent: Information and Expression in a Digital World

Panel III. The Right to Health: Promoting Innovation and Equity

Panel IV. The Right to Education: Realizing the Potential of Digital Tools

Saturday, February 13, 2010

Panel V. Freedom to Innovate: Knowledge, Technology, Culture

Panel VI. The Right to Science and Culture: Participation and Access

VII. Concurrent Workshops

Identifying Challenges & Opportunities for an African Information Ethics

The Right to Read: Copyright and Access for Persons with Disabilities

The Right to Development: Bridging the Gap between Human Rights & IP?

Panel VIII. Rights-Based Strategies for Advancing Access to Knowledge

Click any of  the links above for A2K4 panel descriptions, photos, summaries, video archives, and additional resources.

For more information about the conference, visit: A2K4: Access to Knowledge & Human Rights

Article 27 of the Universal Declaration of Human Rights recognizes the right of everyone to take part in cultural life, and to share in the benefits of scientific progress. This “right to science and culture” has great relevance for access to knowledge issues, but is still in the early stages of development.

This panel will explore the multiple faces and possible dimensions of the right to science and culture, examine the challenges and tensions inherent in conceiving of these goals as human rights, and identify ways for human rights and A2K advocates to utilize international human rights norms and fora, as well as national rights frameworks, to support related goals.

Particular attention will be paid to the Committee on Economic, Social and Cultural  Rights’ recently elaborated General Comment on the right to take part in cultural  life, and the forthcoming process on the right to share in the benefits of scientific  and technological progress.

Questions posed for the panel:

What are the most important current developments surrounding the right to  science and culture? How do these relate to the discussions surrounding  human rights and intellectual property?

Should access to knowledge be understood as part of the right to science and  culture? What would be the opportunities and risks of defining the right in  this way? What conceptual problems would need to be solved?

What are the possible alternative futures for the right to science and culture, as interpreted and applied in international human rights law? What impact  could this evolving norm have on access to cultural and technological goods,  and control of indigenous knowledge?

Panelists included:

Yvonne Donders, Faculty of Law of the Universiteit van Amsterdam
Eve Gray & Andrew Rens, University of Cape Town
Lea Shaver, Information Society Project at Yale Law School
Jessica Wyndham, AAAS Science and Human Rights Program

Moderator: William New, Intellectual Property Watch

Yvonne Donders:

The rights to enjoy the benefits of scientific progress and to take part in cultural participation are included in the Article 27 of the Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), but they are still relatively unknown.  The human rights framework has a lot to offer enforcement of these rights.

The human rights framework can help define entitlements and obligations and provide accountability.  It is unclear what these rights mean.  What do “enjoy”, “participate”, and “cultural life” mean?  Who gets to decide what they mean?  What steps must states take to protect and enforce these rights?  These are socio-economic rights–less substantive than typical civil and political rights.  These rights are not to be evoked by individuals, but rather provide broad policy goals.  They are real human rights as important as political and civil rights.  They are needed to enjoy other rights.  All human rights are interdependent and interrelated.

The human rights framework provides for a system of limitations–restrictions to protect the rights of individuals and welfare to society. UNESCO played a significant role in the inclusion of the rights to enjoy the benefits of scientific progress and to take part in cultural participation in the Universal Declaration and ICESCR in order to make culture and science more available to the masses.

What do the rights to enjoy the benefits of scientific progress and to take part in cultural participation imply?  There is no clarity on normative content of these rights or the obligations states have.  States have not paid much attention to Article 15 of the ICESCR.  More work is needed beyond the composition of the Venice Statement–particularly outreach.  There is a need to develop indicators to measure human rights.

The human rights framework offers support for freedoms and participation but doesn’t offer solutions to practical problems.  There is a need to explore the content and scope of these rights and to bring what is learned to the local level, where human rights protection starts.  Lawyers and judges should be informed on how to apply these rights.  Not enough of them know what to do with them or have even heard of them.

Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications

Jessica Wyndham:

Connections: Concepts, Constituencies and Coherence [powerpoint]

The American Association for the Advancement of Science (AAAS) has implemented a project focused getting input from the scientific community in the illumination of the right to enjoy the benefits of scientific progress, as articulated in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  The AAAS Science and Human Rights Coalition recognizes the value for science and scientists in addressing human rights issues, and the scientific community is becoming better informed about human rights.

Choices and opportunities to advance the Article 15 right to science exist all along the research and development continuum.  It is important to pay attention to the starting point of the research and development continuum in thinking about affecting policy in this area.  Important questions with regards to the Article 15 right to science arise at the point of funding and initial research for which the fundamental principles of the Venice Statement provide answers.  These principles, including equal access on a non-discriminatory basis and a focus on marginalized and vulnerable groups, can address questions about priorities in funding and R&D.

The issues involved with the Article 15 right to science concern diverse and largely unengaged constituencies.  Cooperation across interest groups is needed to increase the impact of efforts to advance this right.

Lea Shaver:

Science is a means to an end, and that end is technology.  In thinking about rights to share in the benefits of scientific progress, we need to attend to the issue of access to technology.  Technological advance and diffusion are often thought of as inevitable historical process, but this is an inadequate account of how technological progress and diffusion actually occur.

For example, the electric lighting first became commercially viable in the 1870s and then became accessible to the rich and to businesses, but electricity was still inaccessible to the masses at the dawn of the Great Depression in the US.  Other countries had achieved diffusion by this time–(1) through the establishment of state-owned utilities producing electricity and providing it to the population at large, as well as (2) through private monopolies established and regulated by the government and paid for by the companies that held them.  Meanwhile, the US had a patchwork of incompatible standards and markets lacking price competition.  Diminished competition resulted in high costs and high prices for both electric service and light bulbs.

Edison filed a patent for the light bulb in 1879, and the patent was challenged.  Edison told the public that it would be at legal risk buying from his competitors and began to neutralize and absorb his competitors through litigation and buy-outs.  By the 1930s, a social movement demanding access to electricity picked up steam, leading to greater intervention and regulation by the government and the establishment of locally owned utilities operating under common standards.  Business interests were harmed in the short-run, but firms adjusted their business models and adapted as electric lighting become more diffuse.

State choices shape access to science and technology.  The state chooses how to assign rights among inventors, how to mediate competition, whether intellectual property can be used to achieve consolidation, the regulatory role played by government, and how government should invest in technology or participate as a provider.

More details in her paper: The Right to Science and Culture

Eve Gray and Andrew Rens:

We should be concerned about the power play that occurs around the question of what constitutes science and whose voices are heard in science.  We are trapped in a neocolonial view of knowledge.  Scientific research occurs and is published primarily in North America and Europe, with little access for and participation from Africa.

From a South African perspective, the role played by Bantu education as well as the World Bank and IMF’s view of education in South Africa has had much to do with this.  Black South Africans were not traditionally viewed as entitled to access to science and math.  Bantu education focused on teaching blacks to become laborers, while the World Bank and IMF took the view that only primary education would be needed for economic growth.  This situation illustrates how public agency can establish and reinforce the denial of important rights.  The IMF now takes the view that higher education is needed for economic growth.  Public policy to encourage higher education has focused on access and admission to institutions of higher learning without addressing factors that prevent students from succeeding.

Global competitiveness of science programs continues to be judged on outputs, which solely concern publication in journals and patents.  The academic publishing world’s focus on impact factors tends to obstruct the publication of African research.  The narrow window of what constitutes output has the effect of disadvantaging precisely those countries with the greatest interest in access to science as a public good.

Hierarchies of research that place a premium on basic theoretical research also work to disadvantage developing countries whose expertise lies in applied research for the public good.  Applied research is a great value that developing countries have to share.

South African rights jurisprudence reflects the view that the right to science is part of first generation rights included in the right to free expression.  Rights to academic freedom and freedom of scientific research include both imparting and receiving dimensions that are viewed as inherent to freedom of speech. The South African Constitution is viewed as a transformative document intended to drive social change.   The Certification of the Constitution of the Republic of South Africa case was a challenge to the certification of the Constitution over the question of whether intellectual property was a human right, and the Court found that IP is not a universal human right.  Because IP is by nature an infringement of the right to benefit from scientific progress, it must justify itself.

What will it take for A2K to engage in the enforcement of the right to science?  There is a need for theoretical depth and the investment of time to achieve it.  Until then, A2K will have no success in contested arenas, like the courts.

Audience Questions and Answers

Q:  Eve, can you identify and discuss examples of groups in Africa that have achieved scientific advances with low resources?  If not, what can be done to encourage such achievement?

Eve: Yes.  Mobile technology provides one example.  Africans can offer lessons in how to mobilize mobile technology for social networking and interlinking mobile technology with the Internet.  The innovation potential is there.  The University of Cape Town is also a leader in collaborative development.

Andrew: Others are trying to push forward, and we are trying to catch up.  There is also a level of exploitation by people who should be helping innovators in Africa, like parading success stories around as examples of progress that is being made.

Q:  What role can private actors play in positively affecting the relationship between scientific knowledge and human rights?

Lea:  My focus has been on the choices state make, because they can be the easiest to get at.

Yvonne:  States have obligations to protect and can be responsible for the behavior of private actors in protecting other private actors.  We must pay attention to power structures, particularly in developing countries.  A developing country may be so dependent on a multinational company that it would be hesitant to adopt law that may hurt that company.  There are some possibilities for holding companies accountable, but we must keep power structures in mind.

Jessica:  The AAAS Science and Human Rights Coalition is examining how human rights principles are reflected in codes of ethics.  Scientists should be obligated to comply with human rights principles.

Andrew:  What private actors can do is often dependent on the question of what the state can do.  Patients and research subjects could also insert power as a check on the behavior of private actors.

Q:  There is a need for an open society-science dialogue at the starting point of research.  Most scientific decisions are made for benefit of shareholders.  There is great need for public interest voices in policy making.  Science should be politicized.

Lea:  How socio-economic and cultural rights have been neglected presents both challenges and opportunities for A2K.

Jessica:  US has signed but has not ratified the ICESCR.  We need to identify barriers and positive exemplars of how the Article 15 right to science is being implemented in order to encourage public participation.

Eve:  The publishing system is controlled by corporate interests.  We need to grow role of public intellectual and generate interest in applied research.

Yvonne:  There is the mantra of socio-economic rights being vague and these rights should be made more clear, but the right to privacy is vague too.  You can make these vague rights to science judiciable by focusing on policy, which is not much different from what is often done with civil and political rights.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Saturday, February 13 at 16:30h to 18:00h.

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