How the U.S. Chamber’s IP Principles Can Reset the IP Debate: A Conversation with Patrick Kilbride

“If you can’t sign on to these principles you can’t say you are pro-IP. None of these principles prevent anyone from having a robust debate about the nuances and merits of specific policies, it just requires you to say intellectual property is good.” – Patrick Kilbride

Last month, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) announced that it had joined with 30 other signatories to publish a framework of intellectual property principles designed to reshape the narrative around intellectual property (IP) rights and maintain America’s global lead in innovation. Broadly speaking, the principles focus on five primary goals to be achieved by American lawmakers and policymakers: 1) national security, 2) technological leadership, 3) fostering creative expression, 4) enforcing the rule of law, and 5) ensuring full access to the innovation ecosystem for all.

“It is time to prioritize IP protections,” Senior Vice President at the GIPC, Patrick Kilbride, said at the time the principles were released. He added: “A failure to do so will endanger future investment in innovation.” In the conversation below, with myself and IPWatchdog CEO and Founder Gene Quinn, Kilbride delves deeper into the GIPC’s motivations for creating the principles and getting buy-in from some of the most prominent leaders in the IP space.

Gene Quinn (GQ): What’s the one thing you really want people to know about these principles?

Patrick Kilbride (PK): IP is fundamental to all of the things that make America strong – national security, technological leadership, creative expression, rule of law, universal access to property rights. Somehow, the IP narrative has gone off the rails, led by the rise of populist politics, where people have been led to expect something for nothing. But as we know, there’s no free lunch. So, this is an effort to reframe the narrative in terms of the benefits we know the IP system delivers and to make those benefits relatable to policymakers. Instead of defaulting to tropes about monopoly profits on the one hand or corporate wokeism on the other, we’re giving policymakers and thought leaders, especially those who don’t do IP policy every day a reminder of why it matters. That is the essence of the mandate from the GIPC board—to get to these fundamental truths about IP and make them accessible to everyone.

Eileen McDermott (EM): What was the impetus for creating the principles, and how did you go about getting to the consensus?

PK: The [GIPC] Board felt the IP narrative had gone off the tracks and the ascendency of populist politics was leading the discussion of IP into monopoly profits and corporate wokeism and away from what we know to be sort of the fundamental deliverables of IP policy in terms of a functioning knowledge economy, economic and national security, tech leadership. This was an effort to remind policy and thought leaders who don’t think about IP policy about the importance. To help them avoid reflexively thinking and speaking in stereotypes about patent trolls and efficient infringement and instead coalesce around these pillar principles. We started the project with the GIPC Board and then we reached out to several dozen of the leading organizations and thought leaders involved in IP. I did quite a bit of reshaping over a six-month period to get to the final product. It’s really a coalition document that the Chamber has helped to advance. The reception has been universally enthusiastic. People felt it was something that was needed.

GQ: The term “diversity and inclusion” has become a lightning rod—but in this particular space, it seems like if we were really interested in fostering diversity and inclusion, you would have better, stronger IP policies, and you would make sure that people in lower income and marginalized communities understood the powers and the benefits of it so they could take advantage of it. From a national security perspective, it strikes me that we have these untapped resources of creativity all throughout the United States.

PK: First, in the conventional sense of diversity and inclusion, we want to ensure that communities that have not broadly participated in the benefits of the IP system in the past have access to all the benefits of those rights. Then, too, when we’re talking about diversity and inclusion in the IP context, we’re also focused on democratizing the innovation ecosystem. What did the United States do differently than every other country in the world? It made IP rights universally available and accessible to anyone whose invention or creative work met the basic qualifications for the right. Over time, what’s happened is that it’s become much more difficult for everyone to access these rights because of the complexity and the cost and the frequency and duration of litigation. So, we’re reminding policymakers we need to re-democratize IP.

Here’s what gives me hope: When you hear from young people online, for example, they are thinking about their brand identity, photos, voice; they have a broader sense of IP than just the narrow legal rights we have established under law. It’s their ability to have agency in a digital economy. And I think that’s where we’ve got to be headed as an IP community—toward providing better access to legal rights for those individuals.

GQ: So, is a part of this also about educating the populace? Going into churches and community groups as well, or is this really just focused on policymakers?

PK: This is focused on policy leaders and thought leaders, but underpinning it, the Chamber is doing work at the state and local levels, especially in creative industries, to showcase the presence and the impact of creators. We want to be able to showcase a community and all of the different people who contribute to the creative ecosystem, from the music store, to the high school music teacher, the band leaders, the local live music venue and the theater, to help policymakers to see that microcosm is something that exists in Anytown, USA. It’s pervasive. And then the goal is to leverage that model and do the same in terms of the innovation ecosystem. So, we’re simultaneously doing that outreach at the grassroots level.

GQ: How will you know the initiative around the framework has been successful?

PK: The ultimate metric is going to be how key congressional Committee Members and other influential figures are articulating a world view of IP. Are they talking about exclusivity, monopolies and profits, or are they talking about national security, technological leadership and a licensing model that promotes collaboration across diverse stakeholders? It’s a soft measure, but it is how we will know it has penetrated to the real world.

At the beginning of each Congress, we look to see who is an IP leader and who has a track record, and which new Members—because of background, constituency or Committee assignment—may be inclined to be champions of IP rights, and then we engage with them and their staff and invest the time to help them understand the nuances of some of the issues. These principles will become a critical component of these conversations.

EM: You talk about AI protections across the board, but a lot of creators have mixed feelings about AI. What does it mean to strengthen protections for AI in order to remain a leader in emerging technologies while still balancing the fears of creators about the threats of AI?

PK: With respect to AI, IP is going to be one of the first issues to be tackled from a regulatory perspective, so it was critical that we address that in this document if it was to be relevant and timely. We needed to: 1) make sure that IP rights are respected as AI systems are developed and implemented and 2) we need to make sure that entrepreneurs have access to AI tools as they develop new IP. Addressing those issues of how proprietary information is treated and the eligibility of AI-assisted outputs for rights are critical core issues that need to be addressed. In the principles, we’re simply noting that all of our members tell us they come at AI from all directions – they’re developers, contributors, customers, etc. – and so they have universal stakes. Content creators, inventors and drug developers alike all say AI is going to be important to them and we need to figure this space out.

GQ: One of the reasons this struck a chord with so many of us is these principles are really first principles; if you’re in favor of an innovation economy, there need to be principles you sign on to. If you’re not willing to say patents are good, you can’t be a member. Do you agree?

PK: Yes, these are first principles. In a sense, we are calling the bluff of people in the IP community to declare themselves. Are you really for IP or not? Because if you can’t sign on to these principles you can’t say you are pro-IP. None of these principles prevent anyone from having a robust debate about the nuances and merits of specific policies, it just requires you to say intellectual property is good because IP delivers these socio-economic benefits. It fundamentally commits to a market approach, not just to the physical economy but to the knowledge economy. If we’re going to reset the debate, we need to be able to stipulate to certain things, and these are those things. After that, you can have a debate different views on specific policy choices related to any number of challenging issues.

I liken the knowledge economy to the shale oil revolution. With shale oil, we always knew it was there, we just couldn’t get it out of the ground. But when the economic and technological conditions became conducive, all of a sudden, the U.S. became the world’s biggest energy producer. The same is true of innovation and creativity, which is latent in our human nature, a shared potential that all humans enjoy. But in many places the environment hasn’t been conducive to innovation and creative expression. In the United States, it has been, and these principles are a reminder of what we’ve done well and the benefits that we’ve gained from doing that; we shouldn’t forget.

 

 

 

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One comment so far.

  • [Avatar for Geoff White]
    Geoff White
    October 15, 2023 01:24 pm

    Interesting interview/article.

    I agree with Gene’s comment about being in favor of an innovation economy requiring being willing to say patents are good. I thought it was interesting that the response broadened to IP generally, as I am not sold on trade secret law supporting the innovation economy. (especially based upon some academic research J recently heard about from economic policy data).

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