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
Two Ideas for Access to Knowledge– The Infrastructure of Free Expression and Margins of Appreciation
[Address delivered at the Second Access to Knowledge Conference (A2K2), Yale University, April 27, 2007. My address at the first A2K conference discussing the basic theory of Access to Knowledge can be found here.]
I’m delighted to welcome you to this second annual conference on Access to Knowledge at Yale Law School. I can’t think of a finer group of people to be with us as the Information Society Project celebrates its tenth birthday.
I have two things to talk about this evening. One is infrastructure. The other is harmony. They may not seem related, but I hope to show you by the end of this talk that in fact they are.
The chair I hold at Yale is devoted to the First Amendment. When I mention that I work on Access to Knowledge issues, people say, “You mean, like the First Amendment?"
I always tell them no. I tell them that Access to Knowledge is not primarily about the American First Amendment, and they are very disappointed every time I tell them this.
I tell them two things. First, Access to Knowledge is global; it is not limited to the confines of a single nation state. Second, the American conception of freedom of speech is very limited. For the most part, it is a negative conception of free speech; it focuses on preventing government censorship and government burdens on free expression. Thus, it represents only one segment of Access to Knowledge. In fact, even the more general political value of freedom of speech-- which many countries share and protect in their constitutions-- is only a part of Access to Knowledge.
Article 19 of the Universal Declaration of Human Rights is a bit better in this respect. It talks about the freedom “to seek, receive and impart information and ideas through any media and regardless of frontiers.”
But even that does not go far enough, I think.
So what is the connection between freedom of expression and Access to Knowledge?
Freedom of speech– and Article 19's right to receive and impart information and knowledge– depends on an infrastructure of free expression.
What is in that infrastructure? It includes government policies that promote the creation and delivery of information and knowledge. It concerns government policies that promote transparency and sharing of government created knowledge and data. It involves government and private sector investments in information provision and technology, including telephones, telegraphs, libraries, and Internet access. It includes policies like subsidies for postal delivery, education, and even the building of schools.
Intellectual property law is part of that infrastructure too. Properly designed, it can be an engine of creativity, innovation and expression; it can produce incentives to promote science and human knowledge. But intellectual property cannot do this alone. In fact, in some features of information production it is not even the most important method for promoting creativity and innovation. Lots of information and knowledge are produced in society using other business models and other incentive structures than the exploitation of exclusive rights in information.
Freedom of expression, you see, is part of something much larger: Let’s call it knowledge and information policy. The word "policy" may be a misnomer, because people often oppose policy to rights and rights discourse. We don’t have to do that, though. We can talk about knowledge and information policy in terms of human rights, like Article 19, or in terms of economic development, or in terms of distributive justice, or in terms of all three concepts.
What is knowledge and information policy? That would take another lecture. For now, let’s say that its goals include fostering creativity, innovation and production of information, and ensuring the widest possible spread and diffusion of knowledge and information from diverse sources among the world's populations.
In a world economy that increasingly values knowledge, information, and knowledge embedded goods, sound knowledge and information policy must also ensure that the benefits of this economy are distributed fairly among the world's populations.
This is not just about increasing GNP or even about equalizing incomes. It is about putting the tools of understanding-- what I call cultural software-- in people's hands and in people's heads. These are the tools for making meanings, tools for making knowledge, tools for growing knowledge and making new knowledge tools.
We do this by lowering the costs of telecommunications, and by making information transmission widely available to everyone. We do this by preventing concentration of ownership in content delivery systems. We do this by promoting the development of cheap and widely available information production tools, from software and computers to books and educational materials.
The idea is to help produce and nourish what I call a democratic culture. A global democratic culture. What is the idea of a democratic culture? It is not simply democracy in the context of the governance of the nation state. It is not simply the discussion of public ideas. Rather it is about democratic access to and participation in culture-- or rather cultures, for the world is fully of many different cultures that are constantly growing, influencing each other and being influenced in turn.
A democratic culture is democratic not because everyone gets to vote on it– after all, it is a global culture that transcends the nation state– but because everyone gets to participate in it. Everyone has the right to participate in the cultural forces that constitute them as individuals. That means they must not only have access to information, but also to the tools that let them create culture, mix old ideas and expressions with new ones, and produce new culture that they can distribute out into the world to share with and influence others.
This is a wider concern than the prevention of government censorship; it also helps explain why freedom of speech and expression are so important to human dignity and human equality. Freedom of speech and expression are valuable because they let us have a say in the cultural forces that constitute us and make us who we are. Freedom of speech and expression are ways that we participate in culture.
Access to Knowledge demands that we structure telecommunications law, intellectual property law, and government provisioning and procurement policies to promote the goals of knowledge and information policy and the achievement of a global democratic culture.
It is not surprising that intellectual property has become central to the movement for A2K. Intellectual property is a tool of knowledge and information policy. It is one method among many others for promoting knowledge and information production and diffusion. But intellectual property can promote or inhibit access to knowledge depending on how it is designed and implemented.
Intellectual property should serve the functions of knowledge and information policy-- information production and diffusion-- and democratic culture. And not the other way around. A2K is the Boss. IP is just one of the employees.
The nations of the world need to know who is the boss.
This brings me to my second point. How can we get intellectual property to play its proper role as part of a global knowledge and information policy? Here I will talk specifically about patents, and my remarks will build on what Professor Jerome Reichman said at the first plenary session.
The A2K movement arises in part because out of a reaction to a previous movement of special interests toward IP harmonization. Harmonization by itself sounds innocent enough. Who could be against harmony? But the idea of harmonization doesn't tell you how or at what level you are harmonizing.
The special interests that have created the current structure of international intellectual property law seek harmonization at the highest possible level of IP protection. And in fact, they are not even really interested in harmonization, because they have sought IP protections greater than the TRIPS agreement in bilateral agreements. When you look at these bilateral agreements, it soon becomes clear that calls for harmonization are really about calls for IPmaximalism.
Let me tell you what I think about harmonization. In my view, harmonization is about producing harmony. When you sing in harmony, you don't all sing the same note. Some people sing high, others sing low, and still others sing in the middle register. You sing different notes that blend well together.
I’ve got news for you. If everyone sings the same note, it's not harmony. It's boring.
And for some people the notes are too high, and for others the notes are too low, and so it's not only boring, it sounds awful.
And some people don't get to sing at all.
What is the point of this musical excursion? Well, we should remember that one of the major international intellectual property agreements-- the TRIPS agreement-- was designed to be part of a larger project– free trade law. In fact that is what TRIPS stands for: Trade Related Aspects of Intellectual Property Rights.
The purpose of free trade law is to encourage innovation and the advantages of mutual trade between nations. The point of lowering trade barriers was that each country would have incentives to engage in its comparative advantage-- to make the products, goods and services that it could manufacture best and most efficiently. And it could be assured that other countries markets would be open to receive these goods.
IP harmonization at the high levels we have today does not serve these goals. Indeed, it is increasingly in conflict with them. It does not in fact encourage countries to innovate in the ways that they could best innovate. Rather, it encourages firms in the developed countries to waste their time on squeezing every possible IP right they can get out of their inventions and expressions rather than spend more time creating and innovating. TRIPS has become out of harmony with the goals it was originally designed to serve.
It is time to think of ways to harmonize TRIPS– and intellectual property law generally-- with the goals of free trade policy.
TRIPS is an international treaty, so why not apply ideas that apply to other treaties? The first thing to note is that countries sign treaties all the time, but they do not apply them in exactly the same way. That is certainly true of human rights treaties. Don't get me started on the question of how the United States enforces the Geneva Conventions or the Convention Against Torture. That would take up the rest of the conference.
My point is that countries implement their treaty obligations differently, especially human rights treaties. In European Human Rights Law, the European Court of Human Rights says that countries are entitled to a "margin of appreciation" in how they enforce European human rights law.
I am critical of this idea as it has sometimes been applied by courts. But I simply want to point out that what is sauce for the goose is sauce for the gander.
If a country gets a margin of appreciation in its enforcement of human rights conventions, why shouldn't it get a similar margin of appreciation in enforcing its obligations under TRIPS?
Let me let you in on a little secret. The United States has for years insisted that it complies with the Berne Convention, which, as you know, recognizes moral rights. But in the United States, we do not have moral rights doctrines. What do our trade representatives say? We say we are in compliance with Berne because our copyright law is good enough to protect moral rights under our international obligations. What do you mean good enough? That is the margin of appreciation. And this is not an isolated example of how the United States interprets international trade and IP agreements to suit its own domestic concerns.
Why shouldn’t we apply the same logic, say, to India's TRIPS-compliant patent law? India shouldn't have to write a patent law identical to every other countries in order to be TRIPS compliant.
Note that I’m not talking about exceptions and limitations that the TRIPS treaty recognizes. I'm talking about the basic doctrines of patent law in a country. Counties in the South don't have to define the basic components of patent law in exactly the same way that the United States or the European Union does. They don’t have to have exactly the same factors that U.S. patent law does. And to the extent that the factors are the same, say non-obviousness and utility-- it doesn't have to define them the same way. A country in the South could say that it wants a somewhat greater showing of non-obviousness or utility before it will recognize a patent. It can also offer different burdens of proof. It can have different procedures for registering and challenging patents. It can offer slightly different remedies. It can have slightly different defenses, justifications and excuses. In fact, with respect to every single area of substantive definition, countries can have slightly different patent, trademark and copyright laws. That is what I mean by the IP equivalent of a margin of appreciation.
You might say, is this consistent with TRIPS? Yes it is, especially if TRIPS really is about lowering barriers to international trade as opposed to just being a method of extracting rents. One reason why India might want to have higher standards for novelty and utility is that it is very good at producing generic drugs or drug delivery devices. That is its comparative advantage. As long as its patent law is similar enough to patent laws in other countries, it serves the purposes of TRIPS, which is to promote innovation by securing basic IP protection around the world.
In fact, it might actually be a good idea if India's patent law had somewhat tougher proof requirements for novelty and utility. If drug companies in the U.S. are making comparatively minor improvements on drugs simply to extend their patents and prevent competition from generics one might well decide that this doesn't really further the goals of promoting and protecting innovation. What it actually does is promote and protect rents.
I do not mean to suggest that this approach solves all of the problems faced by developing countries produced by the combination of TRIPS and bilateral IP treaties. The developed countries have put enormous pressure on developing countries to enter into maximalist agreements that don’t serve the interests of access to knowledge or the welfare of lots of people around the world. I don’t expect that this pressure will abate. My point rather is that developing countries need to start treating TRIPS the way that most countries-- including the United States-- treat almost every other treaty in the world. They should recognize that quite apart from TRIPS' own recognition of exceptions and limitations, countries have the right to a "margin of appreciation" in how they define and structure their own patent, trademark, and copyright laws.
We at the Information Society Project are working on some of these issues right now. We are trying to understand what the idea of a margin of appreciation would mean transferred from human rights law over to intellectual property law. We are also trying to draft new model provisions for TRIPS compliant intellectual property law that counties around the world can adapt to their own uses. Ami Parekh and Amy Kapczynski are working on ideas about treaty compliance for India, and HongXue is working on a model statute for China that could be used in other parts of the developing world.
I started by talking about how people confused access to knowledge with the American first amendment. I ended by pointing out that people also confused IP law with American IP law. Both of these are confusions. The principles of access to knowledge, undergird our commitments to free expression and innovation. They are part of the larger goal of sound knowledge and information policies within a global democratic culture. Posted
by JB [link]