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Order Without Intellectual Property Law : Open Science in Influenza Amy Kapczynski Yale Law School

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Order Without Intellectual Property Law : Open Science in Influenza Amy Kapczynski Yale Law School Cornell Law Review Volume 102 Article 3 Issue 6 September 2017 Order without Intellectual Property Law : Open Science in Influenza Amy Kapczynski Yale Law School Follow this and additional works at: https://scholarship.law.cornell.edu/clr Part of the Intellectual Property Law Commons Recommended Citation Amy Kapczynski, Order without Intellectual Property Law : Open Science in Influenza, 102 Cornell L. Rev. 1539 (2017) Available at: https://scholarship.law.cornell.edu/clr/vol102/iss6/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized editor of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. \\jciprod01\productn\C\CRN\102-6\CRN601.txt unknown Seq: 1 29-SEP-17 12:59 ORDER WITHOUT INTELLECTUAL PROPERTY LAW: OPEN SCIENCE IN INFLUENZA Amy Kapczynski† Today, intellectual property (IP) scholars accept that IP as an approach to information production has serious limits. But what lies beyond IP? A new literature on “intellectual produc- tion without IP” (or “IP without IP”) has emerged to explore this question, but its examples and explanations have yet to con- vince skeptics. This Article reorients this new literature via a study of a hard case: a global influenza virus-sharing network that has for decades produced critically important information goods, at significant expense, and in a loose-knit group—all without recourse to IP. I analyze the Network as an example of “open science,” a mode of information production that dif- fers strikingly from conventional IP, and yet that successfully produces important scientific goods in response to social need. The theory and example developed here refute the most pow- erful criticisms of the emerging “IP without IP” literature, and provide a stronger foundation for this important new field. Even where capital costs are high, creation without IP can be reasonably effective in social terms, if it can link sources of funding to reputational and evaluative feedback loops like those that characterize open science. It can also be sustained over time, even by loose-knit groups and where the stakes are high, because organizations and other forms of law can help to stabilize cooperation. I also show that contract law is well suited to modes of information production that rely upon a “supply side” rather than “demand side” model. In its most important instances, “order without IP” is not order without governance, nor order without law. Recognizing this can help † Professor of Law, Yale Law School. For their helpful input, I thank Bruce Ackerman, Ian Ayres, Jack Balkin, Nancy Cox, Robert Ellickson, Heather Gerken, David Grewal, Henry Hansmann, Oona Hathaway, Dan Kahan, Issa Kohler-Haus- mann, Daniel Markovits, Tracey Meares, Lisa Larrimore Ouellette, Robert Post, Carol Rose, Scott Shapiro, Reva Siegel, Talha Syed, John Witt, and commentators at the Dalhousie Health Law Workshop, the Columbia Law School Legal Theory Workshop, the Buffalo Law School faculty workshop, the University of Toronto Innovation Law and Policy Workshop, and the Tri-State IP Scholars Workshop. All errors, of course, are my own. I also thank Jimmy Zhuang and Patrick Lauppe for their invaluable research assistance. Finally, my deep appreciation goes to the many individuals associated with the Flu Network who generously shared their time and insights with me, and whose work contributes so importantly to our understanding and well-being. 1539 \\jciprod01\productn\C\CRN\102-6\CRN601.txt unknown Seq: 2 29-SEP-17 12:59 1540 CORNELL LAW REVIEW [Vol. 102:1539 us better ground this new field, and better study and support forms of knowledge production that deserve our attention, and that sometimes sustain our very lives. INTRODUCTION .......................................... 1540 R I. INFLUENZA, IP, AND OPEN SCIENCE ................. 1551 R A. Influenza: A Primer .......................... 1551 R B. The Economics of Information Production in Influenza .................................... 1556 R II. FLU TRACKERS ................................... 1562 R A. History and Structure ....................... 1562 R B. Motivation in the Network ................... 1564 R 1. Government Funding and Motivation ...... 1566 R 2. Scientific Motivation in the Network ....... 1571 R C. Crisis ....................................... 1578 R D. Reconstruction and Rules ................... 1584 R III. THE MODEL OF OPEN SCIENCE ..................... 1590 R A. The Basic Model of Open Science ............ 1591 R B. Open Science in Practice: Allocation ......... 1595 R C. Open Science in Practice: Collaboration ...... 1599 R IV. REORIENTING THE IP WITHOUT IP LITERATURE ........ 1607 R CONCLUSION ........................................... 1612 R INTRODUCTION In August 1997, a three-year-old boy was admitted to a hospital in Hong Kong, critically ill. Tests showed that he had influenza, a virus that has circulated in humans for thousands of years.1 Far more striking was the type of flu that he had contracted—an avian type, H5N1, that had never before been seen in humans.2 While Ebola and Zika have more recently captured the headlines, there is no existing virus more dangerous than in- fluenza.3 In 1918-1920, a flu pandemic killed an estimated 50 to 100 million people around the world, most of them young adults.4 A similar pandemic today could take the lives of hun- 1 Christopher W. Potter, Chronicle of Influenza Pandemics, in TEXTBOOK OF INFLUENZA 3, 3 (Karl G. Nicholson et al. eds., 1998). 2 J.C. de Jong et al., A Pandemic Warning?, 389 NATURE 554, 554 (1997). 3 Michael T. Osterholm, Preparing for the Next Pandemic, 84 FOREIGN AFF. 24, 26 (2005) (“[O]f the more than 1,500 microbes known to cause disease in humans, influenza continues to be the king in terms of overall mortality.”). See also Sonia Shah, Is Bird Flu Back?, N.Y. TIMES, Feb. 7, 2016, at 6 (noting that the H5N1 pandemic of 2009 killed an estimated 200,000 people). 4 See, e.g., K. David Patterson & Gerald F. Pyle, The Geography and Mortality of the 1918 Influenza Pandemic, 65 BULL. HIST. MED. 4, 19 (1991). \\jciprod01\productn\C\CRN\102-6\CRN601.txt unknown Seq: 3 29-SEP-17 12:59 2017] OPEN SCIENCE IN INFLUENZA 1541 dreds of thousands and perhaps millions of people in the United States alone.5 Influenza pandemics occur when radically new strains that evade our immunities emerge and become transmissible be- tween humans.6 The new avian strain, therefore, was of major concern to influenza scientists.7 The one institution most criti- cal to our ability to respond to it is a little-known network called the World Health Organization’s “Global Influenza Sur- veillance and Response Network,” or “GISRS”8 (here, simply “the Flu Network” or the “Network”). The flurry of activity that followed the emergence of H5N1 shows the work of the Network at its most dramatic. Immedi- ately after the boy was hospitalized, scientists from two Net- work Collaborating Centers were sent as a rapid response team to Hong Kong.9 Working with local authorities and a WHO Task Force, the team traced the virus to poultry in northern Hong Kong, and traced the boy’s contacts to determine whether he had recently had contact with sick chickens.10 More cases soon emerged, and new evidence suggested that the virus pro- voked a catastrophic immune response in humans, frequently causing organ failure and death.11 Investigators worked ex- haustively, putting in eighteen-hour days, knocking on doors, tracing contacts, and gathering blood, sputum, and chicken 5 U.S. DEP’TOF HEALTH & HUMAN SERVS, HHS PANDEMIC INFLUENZA PLAN 18 (Nov. 2005). 6 See infra Part I. 7 Michael Rosenwald, The Flu Hunter, SMITHSONIAN, Jan. 2006, at 183, 184–85. 8 Typically pronounced “gis–ris.” 9 See Gretchen Reynolds, The Flu Hunters, N.Y. TIMES, Nov. 7, 2004, at 41–42. See also Ren´e Snacken et al., The Next Influenza Pandemic: Lessons from Hong Kong, 1997, 5 EMERGING INFECTIOUS DISEASES 195, 197 (1999) (“Investigation of the circumstances surrounding each case was undertaken by the local authori- ties with assistance from the World Health Organization Collaborating Centers in the United States and Japan.”); id. (noting that a WHO Task Force initiated a “technical investigation and evaluation of the Hong Kong situation,” and that a small staff from Japan and the US “join[ed] local authorities in collecting informa- tion needed for risk assessment”); see also infra p. 126 (describing the role of Collaborating Centers in the Network). 10 See Reynolds, supra note 9, at 42 (describing the investigation); Snacken et R al., supra note 9, at 197 (describing the Task Force). Contact tracing helps deter- R mine whether the virus has become transmissible between people, which can inaugurate a new pandemic. See Reynolds, supra note 9, at 39. R 11 K. Y. Yuen et al., Clinical Features and Rapid Viral Diagnosis of Human Disease Associated with Avian Influenza A H5N1 Virus, 351 LANCET 467, 469–70 (1998). \\jciprod01\productn\C\CRN\102-6\CRN601.txt unknown Seq: 4 29-SEP-17 12:59 1542 CORNELL LAW REVIEW [Vol. 102:1539 droppings.12 They shipped virus samples on dry ice to the Network’s labs in Atlanta, Melbourne, London, and Tokyo for analysis. The scientists at those labs too worked late into the night, analyzing the thousands of samples shipped to them and beginning the work needed to develop a vaccine.13 The virus was not yet transmissible between humans, but given how deadly it was, it was critical to slow the process by which it could reproduce and mutate. The scientific team rec- ommended that every chicken in Hong Kong be slaughtered, and the government agreed.14 In four days, 1.5 million chick- ens were killed, effectively ending the epidemic in poultry, and H5N1 in humans, in the city.15 The moment was a dramatic success for the Flu Network.16 Though it is almost unknown, the WHO’s Flu Network is critically important to global health.
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