Access-to-Error

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 establishmentwhose reputational rewards and institutional funding schemes
complement and sometimes substitute intellectual property incentivesoffers 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.