Outsight International recently supported the International Committee of the Red Cross (ICRC) in developing an intellectual property (IP) framework to help staff navigate the complex — and sometimes scary — world of IP. In this post we discuss the common concerns that those unfamiliar with the topic face when understanding their options and choosing an IP strategy.
Why is intellectual property an issue in humanitarian innovation?
Humanitarian innovation refers to the creation, adaptation, and application of new solutions to address challenges faced by individuals and communities affected by crises. These crises can include natural disasters, conflicts, epidemics, and other emergencies.
Over the last decade, humanitarian innovation has led to many new products and services being designed and implemented. These might be hardware, software creations or processes. Unlike the private sector where the end goal is to create profit from these products/services, the the primary goal of humanitarian innovation is to improve the effectiveness, efficiency, and impact of humanitarian efforts in providing assistance, protection, and support to those in need.
Although different in their goal, humanitarian innovators usually have to work with IP tools created for the private sector, which can lead to fear and a lack of clarity as to what’s the best approach to reach their goal.
This is for a number of reasons: firstly, IP is seen as an incomprehensible legal topic; second, the perceived risk of getting anything ‘wrong’ in the legal space is greatly feared; and thirdly, many practitioners in the humanitarian/development space see intellectual property rights as a negative thing, usually employed by the private sector to protect profits over people. We now breakdown these fears and try to allay them.
FEAR #1: IP is too complicated to grasp
To say that IP is not complicated would be unfair — there are indeed a lot of component parts to think about: types of IP protection, extent of IP rights, enforcement in multiple jurisdictions, contract wording, registration processes, etc. Among unacquainted innovators, the questions we often hear are:
‘How do we file a patent?’
‘Should the organisation own patents at all or should we aim to share the innovation as widely as possible for public good?’
‘How can we prevent others from appropriating or misusing an innovation?’
‘Is it worth it to spend resources enforcing patent protection in a fragile context?’
‘Are open source licences always the best alternative for our software?’
‘What is a licence?
‘Would all of this be the same if the innovation has been developed in partnerships with the private sector?’
‘What if the partner is a university?’
Despite all this confusion, IP can be simplified by thinking about options in straightforward language. At a base level, intellectual property can refer to anything created by the mind. This asset could be incorporated in a tangible creation (such as a newly invented device or a piece of art), but not necessarily (it could also be a process, a design, a trademark, or software). Intellectual Property rights comprise a range of rights over a creation, including economic and moral (being recognised as author).
In simple terms IP rights determine who is entitled to use that creation and under what circumstances. To protect these rights, a wide range of mechanisms are available, which can be roughly grouped into three categories: legal, contractual and informal.
First, legal mechanisms (often referred to as formal IP protection) offer the most sophisticated safeguard, but require technical knowledge and are harder to enforce, especially in fragile jurisdictions. Among these legal mechanisms, some require a complicated registration process (e.g., patents or utility models), while others are automatic (e.g., copyright) or easy to use (e.g., copyleft or FOSS licences).
Second, contractual mechanisms are agreed rules embedded in partnerships, employment or consulting contracts. Some examples include confidentiality or recruitment freeze clauses.
Last, informal mechanisms comprise all other protection mechanisms not emerging from laws or contracts, such as secrecy, protective publication, documentation, division of duties, and many others.
Fear #2: Getting IP ‘wrong’ is high risk
One of the main reasons humanitarians are so fearful of IP is because they believe there is a right and wrong way to deal with it. This is not the case. IP clauses written in contracts are — at their base level — just a fancy-worded version of a decision of ‘who has the right to use a creation and how?’.
In some instances, this decision will be influenced by existing IP rights — for example, when adapting something existing you will be bound by the IP rights of that existing thing, or an employee contract might dictate who owns creations invented during work activities. In instances of ‘true’ invention, there is a decision to be made based on a spectrum from closed to open, which also involves an assessment of risks and trade-off.
To determine what IP approach makes the most sense, innovators should consider not only what goals they are aiming for and what resources they have, but also what risks are involved. A systematic risk assessment must be conducted considering risk for the users of the innovation, risks for the organisation and its members, risk for third parties and risks for the innovation and its sustainability.
For example, disclosed IP may be used by third parties for unintended purposes, negatively affecting vulnerable groups. Organisations should consider the diverse profile of people in terms of gender, age, location, legal status or any other personal circumstances that might put them at harm due to IP disclosure to other parties.
FEAR #3: IP protection serves profit maximisation, not humanitarian goals
Historically, intellectual property rights were developed to protect economic and moral rights of creators, with an understanding that this would also facilitate innovation and fair knowledge sharing. Patents, the most IP protection tools, were designed to control who can access innovations, which is very well suited for the patent owner to exploit the innovation and make profits out of it. However, ethical concerns may arise if access to an essential innovation is limited by economic or legal barriers. In recent years, COVID-19 vaccines reignited this debate, with many government and international organisations advocating for a waiver on patent protection to facilitate vaccine accessibility.
Within this context, it is understandable that IP raises suspicions among many humanitarian staff as a tool tailored for profit maximisation, not humanitarian goals. However, since IP rights can be highly customised, humanitarian actors can use them for their own goals as well.
Overall, humanitarian organisations aim to maximise positive impact for people affected by armed conflict and violence. The most logical assumption is that people would usually be better off benefiting from an innovation, and therefore, in principle humanitarian organisations are likely to lean towards more open access IP approaches than the private sector. Open IP approaches allow collaboration, reuse and a more efficient resource allocation in the sector as a whole.
However, even open approaches involve some kind of IP strategy and management to meet the goals of the humanitarian sector. For example, software creators may want to share their code for reuse in the sector, but they still need to make a thoughtful decision among multiple free or open licences, each with its own characteristics, as well as understand the risks, resources and trade-off associated with it.
There are IP options available to innovators which require little ongoing management. Protective/defensive publication is one such tool. This involves publicly disclosing detailed information about an invention to prevent others from patenting the same idea. While the disclosure may not result in obtaining a patent, it acts as a defensive measure to ensure that others cannot claim exclusive rights to the invention.
Developing an IP framework
To address these concerns and develop a common IP understanding within an organisation, it is recommended that organisations working in the humanitarian innovation space develop a comprehensive IP framework, tailored to the organisational context.
In close contact with internal stakeholders and informed by sectoral best practices, the IP framework serves as a clear guidance for decision making, informed by humanitarian principles, risks, and resources available.
Outsight International can help organisations to this end: having already worked on hundreds of innovation projects aiming to serve the public good and helping organisations create these frameworks. If you’d like to learn more or you think we can help, please get in touch.
About the authors
Louis Potter
Louis has a wide range of experience covering development, health, innovation, technology and research. He has worked on over 100 humanitarian initiatives and helps humanitarian organisations, universities and companies to improve innovation processes and outcomes. Recently, he has been helping actors navigate paths to scale in the humanitarian sector and strategise business models.
Pablo Busto Caviedes
Pablo is a researcher with a legal background, who specialises in monitoring and evaluation (M&E), policy research, qualitative and quantitative data analysis. His experience includes a diverse range of social and economic development topics such as rural development, agriculture, or social inclusion.
