Balkinization  

Friday, April 21, 2006

What is Access to Knowledge?

JB

The Yale Information Society Project Access to Knowledge Conference kicked off today. (You can learn more about the conference panels here and here.) I gave a speech on the first panel about framing access to knowledge, using insights from a year-long seminar that Yochai Benkler and I have been teaching on the issues.

Here is the prepared text of my remarks:

On behalf of the Information Society Project I want to express how happy we are to have you all here, and our pleasure at being a part of this wonderful movement that you, in the audience, have helped create. For the last year Yochai Benker and I have been running a research seminar at Yale with some very talented students on the theory and practice of access to knowledge, trying to understand the larger theoretical commitments behind the access to knowledge movement. This conference is the culmination of a long process of thought, study and reflection, which is part of the larger access to knowledge project here at the ISP.

We hope that we can contribute in our own small way to what is already a rich and exciting conversation about the goals of access to knowledge. We are thrilled to be able to host what is truly an international event in an ongoing social movement that is unfolding before our very eyes.

Today I want to make three points about the theory of access to knowledge.

First, Access to Knowledge is a demand of justice.

Second, Access to Knowledge is both an issue of economic development and an issue of individual participation and human liberty.

Third, Access to Knowledge is about intellectual property, but it is also about far more than that.

Access to Knowledge is a demand of Justice

Access to Knowledge is a set of principles that emerge from a loose collection of different social movements. These social movements, in turn, are responding to changes in economy and society produced by new information technologies.

Information and knowledge are embedded in goods like drugs that have value, and in social structures like education and science that produce value. Moreover, information, like capital, is not just a thing in itself but it's also a set of relationships between persons and groups. Some control it, others don't and law helps enforce that division of power and control.

As the global economy develops, control over knowledge and information increasingly determines global wealth and power. Because not all countries participate in the global economy equally, not all of their citizens enjoy its benefits equally. Different societies prepare their members differently to participate in the information economy, and different countries have competitive advantages in producing information and controlling its distribution.

Access to knowledge can be a confusing term because it actually refers to four different things. Here I borrow Yochai Benkler's typology:

  • 1. Human knowledge-- education, know-how, and the creation of human capital through learning new skills.

  • 2. Information-- like news, medical information, data, and weather reports.

  • 3. Knowledge-embedded goods (KEG's)-- goods where the inputs to production involve significant amounts of scientific and technical knowledge, often but not exclusively protected by intellectual property rights. Some key examples are drugs, electronic hardware, and computer software, but in contemporary economic life, information and intellectual property provide an increasingly important share of almost all valuable goods.

  • 4. Tools for the production of KEG's-- examples include scientific and research tools, materials and compounds for experimentation, computer programs and computer hardware.

The goal of access to knowledge is to improve access to all four of these components of the knowledge economy:

  • 1. Access to human knowledge
  • 2. Access to information
  • 3. Access to KEG's
  • 4. Access to tools for producing KEG's


Access to knowledge is a question of distributional justice, both within a society, say rich and poor, men and women, and across different societies, say countries in the North and the South. Given the long term trend in the world economy toward increasing the share of wealth going to these four components of the knowledge economy, what does justice require?

I think we can make two claims:

First, if you can produce the same or greater amounts of these four components and distribute them more widely and equitably both within countries and across national borders, justice demands this.

Second, if you can spur additional innovation and information production in areas that existing market structures currently do not serve-- e.g., drugs for diseases in the third world, educational materials for persons in the poorest countries-- justice also demands this.

Let me put it another way: Access to knowledge means that the right policies for information and knowledge production can increase both the total production of information and knowledge goods, and can distribute them in a more equitable fashion. The goal is first, promoting economic efficiency and development, and second, widespread distribution of those knowledge and informational goods necessary to human flourishing in our particular historical moment– the global networked information economy.

I repeat: It's not just a trade off between equity and efficiency. We are not simply fighting about how to divide up a pie. Access to knowledge is about making a larger pie and distributing it more fairly. Or, at the risk of extending this pie metaphor well beyond its appropriate scope, access to knowledge means giving everyone the skills to make their own pies and share them widely with others.

This brings me to my next point.

Access to Knowledge is both an issue of economic development and an issue of individual participation and human liberty.

From the arguments I've offered so far, which, I should mention, owe a considerable debt to the work of my friend and colleague Yochai Benkler, it sounds as if Access to Knowledge is just about economics and development. It isn't. I put it this way because some of the strongest arguments against A2K have been economic arguments that the current system is better for economic development and efficiency, and we have to sacrifice equality to promote development.

What we've been trying to show in our seminar here at Yale is that this is just plain wrong. The best information policies, the best knowledge policies, the best development policies actually lower barriers to access to knowledge, they produce more information goods and they distribute them more widely. Our seminar has been trying to show how the best economic arguments are on our side. The crazy thing about the push toward global harmonization and IP maximalism is that it doesn't make economic sense. It benefits particular stakeholders, to be sure, and they often claim that making them wealthy makes everyone else better off. But it turns out it's not true. A more balanced set of IP policies actually produces greater wealth and distributes it more widely and fairly.

But access to knowledge is about more than increasing GDP or promoting rapid development. For example, we might promote human development through producing lots of information goods for people and distributing them widely. On the other hand, we might promote human development by promoting decentralized access to information tools and by encouraging participation in the production of information goods by large numbers of people.

Access to knowledge is about the second strategy– participation-- as much as the first. Or in economic terms, its about whether information production will be primarily centralized and proprietary or whether large parts of it should be decentralized and participatory. What we've been trying to show in our seminar here at Yale is that a vast range of information policies, ranging from free and open source software to universal service policies in telecom to networks of farmers sharing agricultural information aren't just about stuffing people's Christmas stockings with more information goods, but rather giving individual people tools to think with, build with, form communities with, and then watch these communities take off, enabling people to make their own knowledge and information goods either individually or through peer production models.

You see, there is always more than one way to promote human flourishing using knowledge and information, and therefore you should usually adopt more than one strategy. You can make drugs cheaper or you can give people information about their health. Why not do both? You can reduce the costs of information embedded goods, or you can free up access to knowledge tools, increase literacy rates, and let people build things together and share their efforts. Again, why not do both?

Is access to knowlege a human rights issue? Sure it is. Health, literacy, education, freedom of speech and participation in the knowledge economy all involve questions of human flourishing and all involve questions of human rights. So there is considerable overlap between the focus on development and the focus on human rights. But relying primarily on the rhetoric of human rights brings its own risks. I'll mention only two.

First, people have started to argue that intellectual property is a universal human right so that people who resist increasing IP protections and making them equally stringent around the world are actually violating universal human rights.

Second, much of good information policy requires governments to invest in information production-- scientific research, weather reports, agricultural information, health information, public libraries, educational materials-- and also to promote telecommunications infrastructures– cheap cell phones, universal access, telecenters and so on.

A lot of good information policy comes from freeing up or encouraging the private sector to innovate, for example through government procurement policies, tax breaks, and IP reforms. Some of these policies and reforms aren't easy to squeeze into the rhetoric of human rights discourse, although, believe me, people have tried. (Is there a human right demanding that government spend more money on scientific research or that it provide network neturality policies in telecommunications? Maybe so, but human rights discourse might not be the best way to express one's goals in these particular situations.) That is why we have committed ourselves to talking about access to knowledge in multiple ways, as an issue of development, an issue of justice and an issue of human freedom and participation. It's a big topic, and there is no one single rhetoric that captures all of it.

That brings me to my third and final point.

Access to Knowledge is about Intellectual Property, but about far more than that.

Much of the focus of access to knowledge, and much of what we are going to be talking about here, has been on intellectual property. There are good reasons for this. As you'll see in our discussions here, the international IP and trade regime has increasingly adopted policies that prevent the efficient and equitable flow of knowledge, information, and knowledge goods. However, if our goal is the promotion of human flourishing, economic development, and human freedom, Access to Knowledge must look beyond international trade and IP policy.

First, no matter how restrictive IP laws may be, they may not be the major cause of human suffering and lack of access to knowledge around the world. Providing basic telecom access and rudimentary health care may be far more important in some countries. Using IP to deny people cultural freedom is bad enough, but broader censorship policies may be even worse.

Second, we should always distinguish between law in the books and law in action. Sometimes the text of legal rules and treaties don't tell you how these laws are actually being enforced. Countries sign lots of treaties– like human rights treaties– that they don't actually enforce or only enforce selectively. Conversely, some treaties give countries opportunities to protect freedom– for example, exceptions and limitations provisions-- that they never use.

Third, in some cases IP enforcement isn't the major stumbling block to economic development and human flourishing. For example, suppose a country wants to promote a local pharmaceutical industry. Its IP policies are important, but more important is their interaction with other policies like the presence or absence of research and development subsidies and tax breaks. Research and Development subsidies may be much more important than IP; and price controls may do as much harm as bad IP policies. A functioning public sphere, a free press, and government transparency– all goals of access to knowledge, by the way-- may be necessary to reduce government corruption and keep government policies from being skewed toward the short term interests of powerful stakeholders.

Let me generalize this point: Universal telecom access and increased cell phone access, giving out free computers, providing public libraries and local telecenters, sharing agricultural information among farmers and educating women about their health and contraceptive options may be some of the most important things that a country can do to promote access to knowledge for a large proportion of its population. My point is that governments promote access to knowledge in many different ways besides IP laws-- through regulation and deregulation, through government procurement policies that encourage private actors to produce knowledge and information goods, and through the government's own provisioning of information, knowledge and education.

That's why this conference contains panels on a wide variety of topics that go beyond current fights over the international IP regime-- panels about telecommunications, educational policy, and health policy. All of these policies serve the larger goals of A2K– the goals of justice, of development, and of participation in the forms and practices of knowledge by everyone on the planet.

Wednesday, April 19, 2006

Rank(ing) thoughts

Mark Graber

As is the case with many academics, I have too morbid an interest in all the various rankings of departments, law schools, and universities that come out. Still, I wonder whether, given the deemphasis on teaching, whether various reputational indexes or citation counts may fool students. After all, should the presence of Professor Bigshot on the faculty be much of a reason to attend Hotshot U. if Professor Bigshot rarely, if ever teaches, and rarely, if ever advises. Moreover, as faculties, law school faculties in particular, begin to have more turnover than most teams in the NFL (or any team run by Isaiah Thomas!) is the presence of Professor Bigshot much an inducement when the odds are good that he/she will be visiting another university during your first year, have a course reduction in your second year, and accept an outside offer during your third year. Of course, the absence of Professor Bigshot may be compensated for by the presence of Professor Famous who visits during your first year and Professor Genius who accepts your university's outside offer during your third year. Still, I suspect free agency may have undesirable teaching influences (Bigshot may share your interests, Genius does not, and both may lack vital experience teaching in your school).

With this in mind, would an interesting means for ranking schools be first, the average citation count for the professors in each course taught at a school in a given year (note the reward for a well-known professor who teaches a full course load) or the average citation count for those professors who have taught at least close to a full course load for at least four of the past five years. Be curious to see whether the standard ratings would be substantially changed if rankings were computed on the basis of who actually teaches courses rather than whose names are on the masthead

Tuesday, April 18, 2006

Administrative Correctness?

Mark Graber

Lost in the debate over so-called "political correctness" is the new trend toward administrative correctness that is sweeping the university. Political correctness, in many forms, is actually intellectually interesting. While at the end of the day, I concluded that the standard restrictions on certain forms of invective would, particularly as applied, be likely to be inconsistent with the university's mission, I think their leading proponents fostered important debates on the meaning of free speech, equality, and intellectual life. The true threats to intellectual life on campus are a new generation of academic administrators, who seem to have little interest in the value of debate, some interest in pacifying constituents, and a great deal of interest in raising money. One example is the obsession with grant-funded research, even in disciplines (English) and fields (political theory) where grants are hard to come by. I stunned a prominent figure at the University of Maryland when I indicated that reputation in law did not correspond to dollars raised in funding. he literally could not conceive of any other objective grounds for merit.

Consider also the increasing use of adjuncts that, at many campuses, does not correspond to decreasing size of faculty (the main currency for rewarding faculty has increasingly become getting courses off). And too often, these adjuncts (for very good reasons) have little commitment to the institution. They do not advise undergraduates, they often cannot present the most recent scholarship because all they know is what their adviser has taught them or because, not being active participants in the scholarly universe, they are not fully aware of what is going on.

For those of you in college or law school being asked to help raise money, find out how much of that money will be put to having professors in your classes. For those of you making college or law school decisions in the near future, do not just look at who is on the faculty roster. Look who actually teaches the courses. Visit the school. See who is actually in their office. There are a great many first rate academics who enjoy teaching and advising students. There are also a great many who are largely names on doors.

Access to Knowledge

JB

The Information Society Project at Yale Law School will hold an international conference on Access to Knowledge from April 21st-23rd at Yale Law School.

This is a landmark A2K event that will bring together leading thinkers and activists on access to knowledge policy from North and South to talk about the theory and practice of the Access to Knowledge movement and to share their research and policy solutions. This is one of the first conferences to synthesize the many different facets of the theory of access to knowledge, drawing together issues involving access to medicines, intellectual property, cultural freedom, software innovation and telecommunications policy. The goal of the A2K Conference is to build a larger intellectual framework that will promote access to knowledge both as a human rights issue and as a method of sustainable development.


Monday, April 17, 2006

Beyond the Segregation/Integration Paradigm

Guest Blogger

Heather Gerken

At first glance, Saturday's New York Time article on Nebraska's decision to divide Omaha's public school into "three racially identifiable" districts looks like a familiar and ugly story. The city's school district absorbed a number of predominantly white schools into the system, with the aim to distribute public school funding more equitably among whites and racial minorities. The mostly white suburban districts "rebelled," says the New York Times, and the legislature "drew up a measure to blunt the district's expansion." The legislature ultimately decided to divide the school system into three racially identifiable districts – one predominantly white, one predominantly black, and one predominantly Latino. Thirty of the 31 lawmakers who voted the districting plan into place were "conservative lawmakers from affluent white suburbs and ranching counties with a visceral dislike of the Omaha school bureaucrats."

What made the story unusual is that the 31st lawmaker to support the plan – and its author – was Ernie Chambers, the only African-American in Nebraska's legislature and a man famous for his devotion to the traditional causes of the civil rights movement. He proposed the plan because he wanted to "allow black educators to control schools in black neighborhoods." The basic question behind the story is whether Senator Chambers knows what he's doing.

Rather than attempting to answer that question – an assessment that would require a good deal more knowledge than I possess about local Omaha politics and sound educational policies more generally — I want to underscore how impoverished a vocabulary we have for discussing it. Such discussions generally turn on the terms "segregation" and "integration. The Times headline, for instance, is "Law to Segregate Omaha Schools Divides Nebraska" – and who wants to be on the wrong side of that fight? And even Jack's typically thoughtful post on the subject could be enriched by moving beyond those terms.

Some critical distinctions get lost when we cast this issue as a debate about integration v. segregation. The first is that these districts may be different from the racial enclaves of Jim Crow. The text of the story suggests that they are predominantly white and black and Latino, but not entirely segregated. We tend to assume that integration ideally means a statistical mirror – if blacks are 25% of the population, they should be 25% of the district – and often term institutions "integrated" even when they contain only a token number of minorities. Yet when racial minorities constitute statistical majorities in a district, we often call those districts as "segregated" and condemn them as such (forget the Times' headline – just think about the Supreme Court's Shaw jurisprudence). Even – or perhaps especially – in a world where significant racial disparities persist, we ought to think carefully before we affix the dreaded label "segregation" to school districts where racial minorities enjoy enough votes to control their own destinies.

Jack's post says that our public education system should not be thought of as a system of "racial spoils." In doing so, he puts his finger on precisely what seems bothersome about Nebraska's plan. And yet one wonders what, precisely, makes this a "racial spoils" system. Jack is not worried that racial minorities rather than whites will exercise political control over two of the three districts (although anyone who has read the Supreme Court's decision in Croson, where it insinuated that an affirmative action plan enacted by a majority-black city council was little more than a system of racial spoils, knows that such a worry can animate similar language). Jack is plainly concerned about the fact that these districts were intentionally designed to give racial minorities control over some subpart of the school system, something that seems inconsistent with our broader normative commitment regarding the role race ought to play in public education.

And yet in at least one part of our democratic system – voting rights – we often deliberately draw districts to ensure that racial minorities have a chance to control outcomes in some part of the system. It may be that the black legislator who proposed the Omaha plan was elected in just such a district. Jack himself notes the parallel, but he reminds us that the Supreme Court has allowed the deliberate creation of majority-minority districts for the sole purpose of creating integrated legislatures. And Jack – like the majority of the commentators quoted in the Times article – sees no possibility of integration here.

Here again, I think terminology can get in the way. If we imagine members of Omaha's black and Latino communities as being represented by the decisions made in their districts – by the successes and failures of a school system where they played a decisive role in shaping its policies – we might see integration, albeit of an unusual sort. If we took a bird's eye view of the entire Nebraska school system, we would see a kaleidoscope, with majority-white and majority-black and majority-Latino communities being "represented" by the school systems they created rather than the legislators they elected. Arguably, representation by institutions of this sort could constitute a richer vision of representation than one where a community elects a single person to speak on its behalf.

The point of this post, then, is not to disagree with Jack's analysis. He has intelligently canvassed the costs associated with Nebraska's plan, and his worries about potential dangers (like funding inequities or the danger that truly homogenous racial enclaves will develop in the long run) are especially well taken. The point is simply that we do not have a sufficiently capacious language, constitutional or otherwise, to describe the benefits that might be associated with Nebraska's plan. We need a language that moves beyond the segregation/integration paradigm, one that recognizes that minority-dominated institutions might be importantly different from homogenous minority enclaves. Without such a vocabulary, any discussion of Nebraska's plan seems likely to be one-sided at best.


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