Book of the Week: Access to Knowledge in the Age of Intellectual Property (1)

* Book: Access to Knowledge in the Age of Intellectual Property. by Gaelle Krikorian and Amy Kapczynski (eds.). Zone Books, 2010

This book takes as its subject this new field of activism and advocacy and the new political and conceptual conflicts occurring in the domain of intellectual property.

Our first excerpt is below, after the description and the table of contents

From the introduction:

“Why is intellectual property becoming the object of a new global politics today?

Can file sharers, software programmers, subsistence farmers, and HIV-?­ positive people find useful common cause in their joint opposition to existing regimes of intellectual property? What concepts might unite the emerging A2K coalition, and what issues might fracture it? What is at stake with the use of the term “access” as a fulcrum of this mobilization? Is A2K more than an agenda for those opposed to restrictions on intellectual property—and should it be?

This volume takes such questions as its object. It aims to make this new field of political contention accessible to those unfamiliar with it and to provide a place for those generating it to analyze its evolution, goals, tensions, and future. The contributions come from a varied mix of activists and academics and from different parts of the world. This makes for an eclectic and sometimes even uncomfortable mix, one true to the emerging dynamics of the A2K movement itself. Their subjects are also diverse, part of our own editorial attempt to avoid narrowly prescribing the con- tours of A2K even as we inevitably, through these same selections, construct them.

The book itself is divided into four parts and an epilogue.

The first section offers two introductions to the field of A2K. It should serve to orient readers entirely new to debates over intellectual property, but also to provide fodder for debate among those who consider themselves peripheral or central actors in the movement itself. The first introduction, by Amy Kapczynski, offers a conceptual genealogy of the A2K movement—an account of the concepts and arguments that its participants are generating in order to theorize their common condition and to undermine the narrative about intellectual property that has justified the expansion of this form of law and governance over the past few decades.

The second introduction, by Gaëlle Krikorian, examines A2K as a field of activism. It describes how the mobilization has emerged and organized itself using the issue of “access,” the technological and political context to which the movement corresponds, the representations and practices it engages, and its political stakes both as a form of social mobilization and as an alternative to intellectual property rights extremism.

The second section of the book provides a geography of the new field of activism and advocacy that constitutes A2K. With no pretense to being comprehensive, it illuminates a series of historical moments that have decisively marked the emergence of the politics of A2K. It thus identifies a series of fronts along which intellectual property conflicts are crystallizing and sketches A2K mobilizations across a spectrum of political space and time.

In this section, Ahmed Abdel Latif describes how A2K has been framed as a concept and the genesis of the A2K name, thereby locating A2K as a field of forces gathering together under a common banner. Thereafter, several historical moments in A2K illustrate how, where, and when certain key issues surfaced and were rendered the subject of politics. Ellen ‘t Hoen describes how health activists working on pharmaceutical policy came to conceptualize intellectual property as central to their struggles. Sangeeta Shashikant narrates the behind-the-scenes forces that led to one of the most salient moments of success for A2K, the Doha Declaration of the World Trade Organization, which declared that intellectual property rights do not trump public health. Moving from medicines to the emerging politics of hackers, Philippe Aigrain analyzes the successful mobilization against the codification of software patents at the European Parliament. The last contribution in this section comes from Viviana Muñoz Tellez and Sisule F. Musungu, who describe two recent and dramatic defeats for intellectual property absolutism at the World Intellectual Property Organization (WIPO). In the first, A2K activists working with developing-country governments outflanked their opponents, proposing a new “development agenda” that seeks to reorient the work of WIPO to respond to the needs of those living in the Global South. In the second, A2K activists and their allies mobilized to defeat a new WIPO Broadcasting Treaty that had been heavily promoted by forces in the old media seeking to extend their control over the domain of new media.

The third section of the book offers varying visions—perhaps complementary, perhaps at odds with one another—of the conceptual terrain of the A2K movement. It charts the evolution of ideas and the surfacing of arguments within the movement and thereby explores how the issue of intellectual property has been politicized and how our collective understandings of what is at stake in these debates have been tentatively transformed by A2K activists.

The section begins with Peter Drahos’s account of the global mobilization of intellectual property owners that preceded and helped to shape A2K. That mobilization was exceptionally successful—in a matter of years, it secured a dramatic reordering of the global governance of intellectual property, most importantly by inserting intellectual property obligations into the new World Trade Organization.

These efforts were sustained by the ideological interventions that Drahos describes.

In response to these interventions, A2K advocates have attempted to reframe public understandings regarding the just and efficient conditions for the use, creation, and re-creation of knowledge. Many use the issue of access as a lens, possibly theoretical and certainly strategic, to refocus traditional political configurations around intellectual property and to set out their claims. Yochai Benkler articulates the “information commons” as the central concept of A2K and describes the historical and political forces that converged to create the conditions for this striking new field of political coalition. Interventions by Carlos M. Correa,

Roberto Verzola, Gaëlle Krikorian, Jeffrey Atteberry, and Lawrence Liang explore paradoxes and tensions in the emerging discourse of A2K along vectors ranging from indigenous knowledge, in the essay by Carlos Correa, to the notion of the commons, in Jeffrey Atteberry’s contribution, and the figure of the pirate, in one of the essays by Lawrence Liang. Robert Verzola and Lawrence Liang, in another essay, each offer us new paradigms for the relationship between knowledge and the production and control of knowledge-embedded goods, thus offering us new ways in which to think about the struggle between A2K and intellectual property.

Verzola theorizes the commonalities between technological measures used to disrupt the reproducibility of information in the digital and agricultural realms and challenges us to rethink the domain of information production as one of abundance and fertility, rather than scarcity. Liang explores etymological links between identity and property and considers the implications of thinking about intellectual and cultural production through the dynamics of relationality, rather than possession. Gaëlle Krikorian, focusing on free-trade agreements, offers an analysis of the political environment and the political rationales of the maximalization of intellectual property protection and examines some of the perspectives and experiences of the resistances to it.

The section closes with an opening, reproducing questions that we distributed to a group of A2K actors who have different approaches to and involvements in the movement—Onno Purbo, Jo Walsh, Anil Gupta, and Rick Falkvinge. The questions invited them to elaborate on the concepts and ideology central to A2K, and their responses illustrate the diversity of views on these matters that exist within the movement.

A2K activists have proven remarkably creative and successful in recent years, not only in contesting the contours of intellectual property law, but also in identifying weaknesses and failures in the regime of intellectual property, spaces where new regimes for generating and managing knowledge and knowledge goods might evolve. The third section of the book describes A2K by exploring its strategies and tactics. It thereby seeks to illuminate how the mobilization has politicized this previously “technical” area of law and policy and at times has successfully combated very well-resourced and politically powerful opponents.

By comparing different strands within A2K, Susan K. Sell articulates the various grammars of claims-making of movements within the movement. A series of detailed case studies of strategies deployed in specific contexts then permits us to mark and critically assess the choices and stances being made in the name of A2K:

in India, the choice NGOs made to master and rework the discourse of patent law in order to oppose drug patents (Chan Park and Leena Menghaney); in Thailand, the efforts made to reduce medicine prices by pressing the government legally to override patents (Jiraporn Limpananont and Kannikar Kijtiwatchakul); in South Africa and elsewhere, the deployment of the rhetoric and law of competition to attack exclusive rights in information (Sean Flynn); in an NGO in the United States, the creation of an open-access journal that sought to develop knowledge- governance principles and practices consistent with the commitments of the movement (Manon A. Ress); at technological standard-setting organizations, debates over the nature and terms of open standards (Laura DeNardis); at WIPO, attempts to introduce new multilateral agreements to defend the rights of the visually impaired and rebalance the current copyright regime (Vera Franz); and finally, in the domain of global health law, the promotion of alternative models for medical research and development that would better combine the twin goals of access and innovation (Spring Gombe and James Love).

This section next reproduces a series of questions and responses solicited from advocates (Harini Amarasuyiya, Vera Franz, Heeseob Nam, Carolina Rossini, and Dileepa Witharana) regarding contemporary strategic and tactical opportunities and dilemmas in A2K. Participants were invited to reflect upon how the movements and groups with which they are associated have articulated their principles and campaigns, defined their goals and translated these into practice, and related to law, the state, private interests, and others in the A2K coalition.

The section closes with two interviews that provide practical as well as theoretical dialogues on the transformations associated with A2K as they affect society and the economy. Yann Moulier Boutang and Gaëlle Krikorian engage the implications of the emergence of “cognitive capitalism” for knowledge industries as well as for governments and individuals. Charles Igwe and Achal Prabhala discuss the knowledge-governance and dissemination strategies that characterize the Indian and Nigerian film industries and how these might inform debates about A2K.

To end the volume in a mode that invites continuing reflection, an epilogue offers a series of visions of the future by authors—Sarah Deutsch, Gaëlle Krikorian, Eloan dos Santos Pinheiro, Hala Essalmawi, and Roberto Verzola—who were asked to imagine best-case and worst-case scenarios of the regulation and production of knowledge in their field of interest. Unconstrained by the imperative to describe “likely” scenarios, they offer us alternative visions that illuminate the stakes of the choices that we make today and how these choices could portend radically different futures for access to knowledge.

As the diversity of the volume demonstrates, the conceptual and political dynamics of the A2K movement reveal it as a mobilization that is very much still in motion. Neither in the introductions that follow nor in this collection as a whole do we purport to describe fully, account for, or locate the movement for access to knowledge. The name itself is contestable and may not be the one that represents this new politics over time. Nor is it clear what shape this new politics will take — how much it will tend toward conceptions of information and how much toward issues of knowledge, how much it will attend to or be driven by the concerns of the Global South as opposed to those of the North, what modes of engagement with law and with activism will characterize the mobilization over time, or who will constitute the center and who the periphery when historians write the story of A2K.

But despite this still-provisional nature, the A2K movement has already begun to reveal an important reality: Today, freedom and justice are increasingly mediated by decisions that were until recently considered supremely technical—decisions about the scope of patent law, about exceptions and limitations to copyright for the blind, about the differential virtues of prizes and patents for stimulating government investment in neglected diseases. By politicizing a discourse that was once highly technocratic, the A2K movement is rendering visible once-obscure vectors of the transmission of wealth and of power over life and death. It demands that the concepts and terms central to intellectual property be introduced into everyday discourse and become legible in their political implications around the world. This volume, we hope, will assist in that project.”

Contents

part one: introduction

* Access to Knowledge: A Conceptual Genealogy, Amy Kapczynski

* Access to Knowledge as a Field of Activism, Gaëlle Krikorian

part two: the emergence of the politics of a2k

* Emergence of the A2K Movement: The Reminiscences and Reflections of a Developing-Country Delegate, Ahmed Abdel Latif

* Revised Drug Strategy: Access to Essential Medicines, The Intellectual Property, and the World Health Organization, Ellen ‘t Hoen

* Doha Declaration on TRIPS and Public Health: The An Impetus for Access to Medicines, Sangeeta Shashikant

* Uncertain Victory: The 2005 Rejection of Software Patents. An by the European Parliament, Philippe Aigrain

* A2K at WIPO: The Development Agenda and the Debate on the Proposed Broadcasting Treaty, Viviana Muñoz Tellez and Sisule F. Musungu

part three: the conceptual terrain of a2k

* “IP World”—Made by TNC Inc., Peter Drahos

* The Idea of Access to Knowledge and the Information Commons: Long-Term Trends and Basic Elements, Yochai Benkler

* Access to Knowledge: The Case of Indigenous and Traditional Knowledge, Carlos M. Correa

* Undermining Abundance: Counterproductive Uses of Technology and Law in Nature, Agriculture, and the Information Sector, Roberto Verzola

* Man Who Mistook His Wife for a Book. Lawrence Liang

* The Free-Trade Agreements and Neoliberalism: How to Derail the Political Rationales that Impose Strong Intellectual Property Protection, Gaëlle Krikorian

* A2K Theory and the Postcolonial Commons, Jeffrey Atteberry

* Beyond Representation: The Figure of the Pirate, Lawrence Liang

* Virtual Roundtable on A2K Politics, Amy Kapczynski and Gaëlle Krikorian, with Onno Purbo, Jo Walsh, Anil Gupta, and Rick Falkvinge

part four: strategies and tactics of a2k

* A Comparison of A2K Movements: From Medicines to Farmers, Susan K. Sell

* TRIPS Flexibilities: The Scope of Patentability and Oppositions to Patents in India, Chan Park and Leena Menghaney

* TRIPS Flexibilities in Thailand: Between Law and Politics, Jiraporn Limpananont and Kannikar Kijtiwatchakul

* Using Competition Law to Promote Access to Knowledge, Sean M. Flynn

* Open-Access Publishing: From Principles to Practice, Manon A. Ress

* The Global Politics of Interoperability, Laura DeNardis

* Back to Balance: Limitations and Exceptions to Copyright, Vera Franz

* New Medicines and Vaccines: Access, Incentives to Investment, and Freedom to Innovate, Spring Gombe and James Love

* Virtual Roundtable on A2K Strategies: Interventions and Dilemmas, Amy Kapczynski and Gaëlle Krikorian, with Harini Amarasuriya, Vera Franz, Heeseob Nam, Carolina Rossini, and Dileepa Witharana

* Interview with Yann Moulier Boutang, Gaëlle Krikorian

* Nollywood: How It Works— A Conversation with Charles Igwe, Achal Prabhala

Excerpt 1: Legitimating intellectual property in the information age

By Amy Kapczynski:

“The legitimation narrative of intellectual property today is not a coherent theory,

but a thaumatrope—two different images on a card or disk, recto and verso, that

when spun on an axis give the appearance of a single, unified image. One image is

derived from the field of information economics, but omits the skepticism about

intellectual property present in that field. The other screen is derived from the

theories of the Chicago School of economics about the superiority of private-prop-

erty rights in material resources, but suppresses the many significant differences

between the economics of land and the economics of information.

We can call the result the “despotic dominion” account of intellectual property

law—the notion that the right to intellectual property is, or should be, as William

Blackstone described the right to material property, “that sole and despotic domin-

ion which one man claims and exercises over the external things of the world, in

total exclusion of the right of any other individual in the universe.” 41 Property

here is defined as the right of a single individual to be the gatekeeper with respect

to a resource and to act autocratically with respect to decisions about its use. This

vision of property is sustained by the notion that only the individual owner, and

not the state, community, or nonowners, may make decisions about the price or

terms of transactions around that property.

This account should not be confused with actual existing intellectual prop-

erty law (or actually existing property law, for that matter).42 Rather, the despotic

dominion account is a narrative that has been used to justify the aggressive expan-

sion of intellectual property rights in recent years, and it is thus this narrative that

A2K confronts as it seeks to change the politics of intellectual property law today.

The first image in the despotic dominion account draws selectively on the field

of information economics, arguing that intellectual property is needed to promote

investment in informational goods. Information, we are told, is typically expensive

to produce, but cheap to reproduce. For example, it is relatively expensive to synthe-

size and test a new pharmaceutical compound or to produce a major motion picture.

Under today’s technological conditions, it is also relatively cheap to reverse engineer

a drug or to copy a DVD. In an unregulated market, second-comers could reproduce

the drug or movie, paying only the cost of copying and without paying the full costs

of the producing of the drug or movie in the first place. These “free riders” would be

able to drive the innovator from the marketplace, because they would be able to sell

the drug or movie more cheaply. The result: Rational actors will not develop drugs or

make major motion pictures, because they will be unable to turn a profit, and indeed

may suffer a loss, being unable to recoup their original investment.

Enter the deus ex machina of intellectual property rights. Patents and copy-

rights give individuals (or more likely, firms) the right to prevent others from

copying their creations for a period of time. This lets them recoup their invest-

ments and make a profit. Exclusion rights thus generate markets in information,

solving the free-rider problem and aligning individual incentives with social good.

Consider the suppositions of this first image: Creative and scientific works

are best generated by rational, self-interested market actors who are motivated

by profit. Intellectual property law provides the control needed to “incentivize”

this creativity, because it permits individuals to profit through the sale of infor-

mational goods. Individual legal entitlements such as these are necessary because

rational creators will not create if they cannot profit and/or if others can ride free.

When they can profit, creators will create in accordance with social welfare, as

expressed by demand for commodities in the marketplace. In this model, if we

want creativity and the benefits associated with it, we must pay for it. The best,

most efficient way to pay is with a system of private, individual rights.

This account is not to be confused with theories of intellectual property as

articulated in the field of information economics. That field tends to be much more

ambivalent about the effects of intellectual property rights because of the ineffi-

ciencies that accompany them. ”

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