Intellectual property, enterprise and public good
A discussion paper by Ben Bennetts FRSA, Managing Director, LaMIS, written between October 2005 and September 2007. This paper represents my personal views and not those of my employers, past or present.
LaMIS ceased trading in November 2007, but I have been asked to reproduce this paper as a contribution to ongoing debate in a number of areas. A separate post, of current date, explores some of these ideas further.
This paper was originally written as a response to the launch of the RSA Adelphi Charter in October 2005, in the context of the issues faced by the Land Management Information Service (LaMIS). It also covers some wider issues beyond those which directly affect the business – and some which have been raised at other recent RSA events which go beyond the intellectual property debate. The paper is a work in progress and I will be using it to take several different discussions forward in various arenas.
LaMIS provides a unique service – an integrated map-based software package and information service incorporating a wide range of data held by public bodies about land. Our customers include farmers, rural land managers, parish councils and others. We are a not-for-profit company: our customers pay an annual subscription for the software; we have contracts with (some enlightened) public bodies to provide the public information base on public interest/public benefit grounds, provided we do not make a commercial profit from this activity.
Our business creates substantial public benefit by adding value to the public information base (improving its quality, making it more easily accessible to those who need it, creating links between disparate information sources, etc.). We support a customer base which provide public benefits quite disproportionate to their size and turnover, for example, through their management of rural land and their role in local communities. Neither the public sector through its current activities, nor the free market, is currently providing the service that we offer. We are uniquely equipped to do so; and as long as the public benefit we provide is created, it shouldn’t matter who pays for it, nor if anyone profits from it.
Attitudes in the UK public sector
I have argued for some time about the need for a fundamental culture shift in the UK public sector’s attitudes towards data ownership and data sharing. The attitudes I am currently encountering, particularly among local authority data holders, can be typified as follows:
Attitudes to data ownership…
- Data owners believe they have a monopoly on understanding how people [should] access and use their data.
- “It’s our data [or worse – it’s my data] and we’ll decide who gets access to it and how.”
- The web is the answer to everything. “Having put our GIS data on the web [usually in a generic one-size-fits-all format] – or having planned to do so in the next few years – we’ve discharged our e-government obligations.” This in fact discriminates against end users who do not have reliable internet access, and is contrary to the principles of e-government which should foster the widest possible variety of means of accessing information and services.
Attitudes to data protection…
- Data protection is often cited as a reason not to release or disseminate data, or to restrict access to it, even when the data in question is not ‘personal data’ as defined in law.
Attitudes to data interpretation…
- “How can you be sure that a farmer would make the same decision, based on all this tremendously complex data, as a properly qualified environmental professional?” (This from a local authority policy officer. No further comment needed, I hope.)
Attitudes to different uses of data…
- There is a strong suspicion about how public-sector information is going to be used, and a strong desire to control this. Freedom of information legislation is being treated by the UK public sector in many respects as a matter of public sector efficiency, rather than as a matter of principle about freedom of access fostering innovation and enterprise. The public sector needs to encourage business to do everything it can to add value; it is doing the opposite in many cases.
Attitudes to charging…
- Issues arise when our customers need access to information on public interest grounds rather than commercial grounds, but the information in question is prohibitively expensive.
- Access to data on soils, geology and flood risk would enable our farmer customers and parish councils to deliver significant public benefits, but they cannot afford (and have no business incentive to pay) the vast royalties levied by the CEH, BGS and other research institutes which have generated the data.
- There is a growing tendency among public sector data owners to regard their data as an asset in which they have invested ‘their’ money and on which they need to recover this investment. This argument does not stack up in many cases – it is like saying that parents should pay for school places so that the local authority can recoup its investment in providing an education service. The Guardian’s “Free Our Data” campaign and the RSA debate in July 2006 have stimulated considerable and long overdue discussion of this issue.
- The Re-use of Public Sector Information Regulations stipulate that data holders should apply similar conditions and charges for similar uses of their data. However, some data holders do not seem to recognise the difference between supplying, say, rights of way or archaeological information to farmers (who have responsibilities for safeguarding and managing these features and who derive no commercial benefit from the data), and supplying the same data to other users for commercial or leisure use.
Attitudes to investment…
- Public investment in both data and systems, over the last 5-10 years at least and probably much longer, has been overwhelmingly about the public sector’s own business needs rather than the needs of the public domain. For the most part, though, the public sector believes that the wider public’s information needs can be met as a by-product of their own systems and do not warrant specific investment in their own right.
- “We can’t/won’t pay you anything to deliver our data through LaMIS as it’s not our core business or a corporate priority … but we don’t want you bringing in private investment, because we don’t want anyone to be seen to profit from the public information base.” Profit is a dirty word; profit and public benefit are incompatible.
- The National Soil Resources Institute (NSRI) has proposed a national digital soil map at 50-metre resolution – invaluable to Defra and the insurance industry, but also my customer base – yet nobody in government or elsewhere is prepared to fund the £5m to develop the dataset in the public interest.
In short, too many public sector data holders are acting more like private intellectual property owners, rather than guardians or champions of the public interest. (This attitude is reinforced by the widespread use of the loaded and dangerous term ‘data owner’ for those who manage and maintain public sector data.)
Creativity, enterprise and risk
The Adelphi Charter has some striking implications for Sir Paul Judge’s inaugural lecture on risk and enterprise (26 September 2005). Sir John Sulston argued passionately at the Adelphi Charter launch against the “enclosure of our intellectual commons” through existing attitudes to IP; he spoke out against the kind of business plan which revolves around selling a database (in the pharmaceutical industry).
In my experience, though, business plans are not about enclosing common rights but about securing investment – and it’s not the managing directors who want to sew up IPR, it’s the investors. The question is how we can generate investment in social enterprise initiatives such as LaMIS, which will use intellectual property to generate public good rather than commercial profit.
The answer to this is emphatically not public funding through current models. A new model for public investment is needed, coupled with a new attitude to private investment in social enterprise.
In respect of the former, Sir Paul’s lecture made two further important points. Firstly, it highlighted the UK public sector’s strong aversion to risk, which is damaging innovation, enterprise and competitiveness. In my view this is closely linked to an attitude which has evolved in the UK public sector since 1997, that it has the right to control or influence every aspect of community life – an attitude fostered by, for example, the Local Government Act 2000 and its provision for community strategies. In its most extreme form, this attitude states that public good can only legitimately be delivered by the public sector or through its control. (Some time ago I approached one local authority about incorporating their data within LaMIS; their response made no mention of either the value or the practicality of so doing, but included a diatribe about the fact that our business model did not give local authorities enough influence over the business or the service. Sadly this attitude is fairly common.)
This attitude of command-and-control is obsessed with targets and monitoring, with structure and process, rather than with outcomes. It leads to ‘death by consultation’. The unrestrained (and unsustainable) growth of the public sector and its influence in recent years, means that the public sector’s aversion to risk is being extended into more and more facets of the economy and society. (And it creates an equally unsustainable expectation that the public sector will, and should, control and manage every facet of society.)
Certainly, society’s agendas are much bigger and more diverse than the public sector can deliver themselves. And certainly, the public sector needs to encourage and enable the private and voluntary sectors to do the things that government cannot; they need to respect and harness our dynamism and professionalism, our effectiveness and efficiency, our flexibility and responsiveness, our credibility.
The trouble is that public-sector support and public-sector funding come with strings attached – strings of so-called accountability, of bureaucracy and political correctness, which strangle ingenuity, creativity and risk-taking. Sir Christopher Frayling’s RSA lecture in February 2005 made this point persuasively in relation to the arts (stating also that recipients of public funding are perceived by government not as legitimately independent enterprises, but as themselves being arms of government); others echoed it during the subsequent Q&A in respect of education and other areas of public service. A project announced by the RSA in 2005/06 on alternative models for public service delivery needs to tackle these issues head-on. (This project seems to have disappeared from the RSA website. If it goes ahead – and I trust it will – it also needs to challenge the UK government’s interpretation of state aid rules, which differ from the interpretations in other member states by not offering a block exemption to social enterprise ventures.)
Secondly, during Q&A following Sir Paul Judge’s lecture, Karan Bilimoria raised the point that entrepreneurs who have encountered failure should be encouraged to try again. Sir Paul referred to the differing attitude to risk in the USA compared to Europe, and the fact that US venture capitalists, unlike their UK counterparts, will respect the entrepreneur who has tried and failed and may well back him/her a second time. In exploring alternative models for delivering public services, how can we foster this respect for failure in the risk-averse UK public sector, and encourage the public sector to support enterprise and innovation in the delivery of public good?
Private enterprise and the public domain in the British countryside
Moving rapidly away from the IP debate, but remaining with the question of public/private interests, LaMIS sits at the interface – not always a particularly comfortable or peaceful one – between public bodies, local communities and the private interests and needs of landowners and occupiers. The RSA’s land use lecture series in the 2001/02 session raised a great many points which deserved fuller, more mature and reasoned debate, but which then seemed to disappear from the agenda. Some of this debate has continued (e.g. the recent article and correspondence about Tesco in the RSA Journal); it is to be hoped that the “Whose countryside is it?” project, still listed amongst the RSA’s active work, will be re-invigorated and will tackle some of these issues properly.
The Adelphi Charter is a tremendously important and long overdue piece of work. I felt a strong sense of occasion at its launch and I hope that the momentum will be maintained and that the Charter achieves its potential in transforming the landscape of IP law. Others may have the contacts and the clout to take the Charter forward in the long-term global arena; I am keen to do whatever I can through LaMIS to promote its principles and to demonstrate that they can offer practical, realistic and workable solutions ‘on the ground’. In particular, I would welcome further discussion, suggestions and support on the following:
- How to foster the culture change needed in public bodies in respect of data ownership and data supply
- Business models and funding models for social enterprise ventures, particularly those which encourage a mix of public and private funding
LaMIS illustrates a different dimension of the IP debate – the need to open up access to public sector information and IP, so it is genuinely in the public domain; the need to encourage the active circulation of the information in the public domain, to support both private enterprise and public benefit. This will entail a fundamental shift from the current model of an increasingly dominant public sector, to a model of a public service which exists to serve the needs of the citizen, business and society. Without this shift, the UK public sector cannot be said to have adopted the Adelphi Charter’s principles.
- The RSA Adelphi Charter: http://www.thersa.org/projects/past-projects/adelphi-charter
- Risk and Enterprise. Chairman’s Inaugural Lecture by Sir Paul Judge, 26 September 2005. https://bjfb.files.wordpress.com/2011/06/risk-commission-spj-inaugral-lecture.pdf
- “The only trustworthy book…” – Arts and Public Value. Lecture by Professor Sir Christopher Frayling, 16 February 2005. http://acestage.preloading.co.uk/media/uploads/documents/publications/Trustworthybook_phpv5Rbih.pdf
- Battle of the Supermarkets. Article by Judi Bevan in RSA Journal, May 2005. www.thersa.org/journal/article.asp?articleID=541
- Letters to the RSA Journal. Paul Devereux, 12 June 2005; Nicholas Falk, 1 June 2005; Professor David Flower, 1 June 2005. www.thersa.org/journal/letter.asp
- Interview with Ben Bennetts in Technology Guardian, 24 August 2006. http://technology.guardian.co.uk/weekly/story/0,,1856445,00.html