an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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. Posted
by JB [link]