By Lorena Sander, Legal Innovation Advisor, UNDP
Intellectual property and innovation: what can UNDP learn from the music world? (Part 1)
May 3, 2023
“Rings on her fingers and bells on her toes, She shall have music wherever she goes.” -- Ride a cock horse to Banbury Cross, English nursery rhyme
From lullabies to jingles to mixtapes and playlists, music has been a constant in the way I learn. Tunes are my favorite mnemonic device to remember where the stress marks go on works to the multiplication tables. I delight in finding and sharing songs – there are few better icebreakers than “Have you heard this song?” Oral traditions embed dire warnings and traditional knowledge into folk songs and nursery rhymes and, even as I write this, I have a soundscape to help me concentrate and engage in my favorite activity – solving problems. A problem I’ve recently been processing is intellectual property. The UNDP Accelerator Labs want to unleash learning for the world’s most pressing sustainable development challenges. What surfaces over and over again is the question: how to handle intellectual property? It is a pain point for innovation in UNDP - with no clear solution.
Cultural infrastructure for social, economic and environmental development: emerging needs meet legal frameworks
In June 2020, I was invited to be part of a panel on Cultural Sustainability and Social impact in the online Therme Theater and Architecture Forum. I first met the moderator, Tateo Nakajima as we locked horns during intense contract negotiations in 2018 when I supported UNDP Serbia for the Preliminary Design of the Concert Hall of Belgrade, aimed at supporting the establishment of an international and regional hub for culture and art.
The issue was the “work for hire” clause in UNDP contracts for goods and services: this clause deems everything produced under a commercial contract “work for hire.” In this case, the project started with the creation of a preliminary design by a company called Arup which needed to be turned over to the government and us at UNDP to organize an architecture competition to bring Arup’s vision to life. Would this require Arup to license its preliminary design to UNDP? What would happen when source materials, in this case the algorithms such as designs, blue prints, lines of code, would need to be adjusted along the way? To what extent would it impact the intellectual property of Arup’s original work?
What followed was a lively exchange on how to distinguish work products — what was made on the ground, in this case, from tools, and could theoretically be sold — from the ideas and processes used to create the products that cannot be monetized, with assurances that UNDP was abiding by the obligations of its Standard Basic Assistance Agreement with Serbia and not out to poach intellectual property from its preliminary designers. These discussions, as energizing as they can be frustrating, are one of the many ways I learned about the challenges the UN system faces in engaging with the wider world, and the private sector in particular, on ownership of intellectual property.
As the invitation to the panel can attest to, we sorted out the contract and the new concert hall of the Belgrade Philharmonic is on its way to becoming a reality after a winner was selected in the design competition in 2021. During the kick-off meeting, I was inspired by all the disciplines around the table – engineers, procurement practitioners, architects, public administrators, lawyers, theater directors, conductors and development professionals, united by a common purpose: giving the Philharmonic a home that is beautiful and sustainable, with amazing acoustics and that could anchor cultural life in “New Belgrade.”
Learning from the musical edge
Back to 2020. During the panel, we had the opportunity to delve into how culture and the arts make for more sustainable cities and communities, why the arts matter to the Sustainable Development Goals and how music – whether live, streamed or played over speakers in balconies, was an essential coping mechanism for the COVID-19 lockdowns. Music is a collective experience, something we share, as audiences, while it can also be highly individual and enjoyed in our carefully curated playlists.
Shain Shapiro, who was on the panel as the Founder of the economic consultancy Sound Diplomacy, spoke on music not just as cultural expression, but as a business: a musical right can be disseminated and monetized in a variety of ways, from streaming to advertisements, karaoke to ringtones, background music to video games. By investing in systems built on transparent registration, reporting and remuneration, and encouraging local engagement in creating and supporting music IP, it can become a substantive and widely available economic and social development tool, regardless of where one lives, what music is created or where it is consumed.
In 2022, the music industry grew by nine percent globally, according to the International Federation of Phonographic Industries (IFPI). This growth not only includes songwriters and record labels, but the vast supply chain that services them, from marketing professionals to live music technicians, educators and managers. This growth includes open-source content, for example, music created and disseminated at no cost as part of a music library such as Epidemic Sound, should the creator wish, and licensed work for specific purposes, such as music being aired on the radio or in a shopping mall. The sector as a whole - be it royalty free music or owned material, continues to grow with access and demand. The more music in our lives - actively and passively - the more opportunities for people to create and earn for themselves and their families.
Going beyond the gatekeeping of patent rights
Shain Shapiro was launching a new nonprofit called the Center for Music Ecosystems and was keen to have a follow-up discussion. As part of the UNDP Accelerator Labs Network’s Global Team, I was tasked with developing policies, instruments, guidelines and approaches that enabled UNDP to work with new partners in the public and private sectors. I came to realize that some of the key defining features of the Labs such as surfacing grassroots innovation, partnering with unusual actors to learn from the edge, and working out loud, required rethinking the way UNDP approaches intellectual property rights.
UNDP’s “license to operate” (aka Standard Basic Assistance Agreement), requires patent rights resulting from development work to belong to UNDP. It quickly became a bottleneck for the Accelerator Labs working with innovators who do not want to cede their IP to UNDP. Could IP rights be returned to the local grassroots innovators afterwards, given that they agree to some level of openness so it can be out in and for the world?
In speaking with Shain, an idea crystalized. Music reaches its full potential when it is shared, repeated and iterated, just like innovation for the Global Goals. This life it has beyond its original composer and interpreter interfaces with a complex web of regulations to make sure this iteration is framed, protected and monetized. Could the music world offer alternative models to avoid unforeseen or unintended consequences from the full ownership resulting from development assistance? In launching a collaboration between the UNDP Accelerator Labs and the Center for Music Ecosystems, I was determined to explore new flexible modalities which could facilitate UNDP’s ability to partner with unusual actors from private sector, informal sector groups and entrepreneurs.
Deep into our collab, I had the opportunity to interview Bertis Downs, lawyer and manager for rock band R.E.M. “Music business infrastructure is designed by Kafka and built by Goldberg,” he said. I chuckled with recognition – my mind raced with the scale and scope of our similar problems, tethered to possibilities and rules, compounded by the Lab’s mandate to explore.
Stay tuned for part 2 of this blog where, together with Shain, we explain how the partnership between the UNDP Accelerator Labs and the Center for Music Ecosystems has put us in good stead to solve this wicked problem. Our shared goal is so UNDP can continue to improve how it empowers local actors by embracing “creative commons” approaches towards sharing intellectual property.