Access-to-Error

Journal article

44 pages

0736-7694

Access to knowledge is a crucial part of the innovation paradigm, and its significance for development and progress is well recognized. Conversely, the role of errors, failures, and additional types of negative information in the dynamics of innovation is insufficiently explored in law and policy scholarship. This Article focuses on errors as drivers of innovation, and explores new ways for facilitating access to error. Drawing on multidisciplinary research—ranging from philosophical accounts of progress through studies of complex systems to accumulating reflections from diverse scientific communities—this Article demonstrates that, counterintuitively, errors and innovation are inextricably linked. Yet, the principal legal, institutional, and social structures that regularly incentivize the diffusion of knowledge discourage rather than encourage the diffusion of errors. Intellectual property law, the primary mechanism for stimulating the dissemination of knowledge goods, is inherently limited in its ability to promote the dissemination of negative knowledge. The scientific establishment—whose reputational rewards and institutional funding schemes complement and sometimes substitute intellectual property incentives—offers no equal rewards when it comes to negative findings or falsifications. The result is insufficient access to negative knowledge with acute and proven harms for innovation and progress. Against this analysis, this Article frames “access-to-error” as a pressing goal for innovation law and policy. It proposes a preliminary typology of negative information, and explores concrete policy measures to support an access-to-error paradigm concentrating on three possible mechanisms: adjustments to the intellectual property regime, top-down regulation, and a state-supported commons-based approach.

Published in : Cardozo Arts & Entertainment Law, vol. 34, no. 2

[New York City, New York] : Yeshiva University Benjamin N. Cardozo School of Law, 2016.

English