Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I wish to extend my warmest welcome to you at this Third International conference on Access to Knowledge, A2K3. This is the third time that we at Yale’s Information Society Project have been blessed with the opportunity of helping to organize a conference of a wide range of different actors in government, industry, and civil society.
The Access to Knowledge Movement arose in response to a previous mobilization by various industries in the developed countries that sought to lock in advantages for their business models at a moment when technology was rapidly changing. They did this in part by transforming international trade law—an institution designed to promote the free flow of ideas and commerce—into a vehicle for protecting and expanding intellectual property rights and then imposing this new system on the nations of the developing world. A2K arose in part to highlight and contest these developments, which occurred below the radar screen and without much public attention. The Access to Knowledge Movement began with far less influence and far fewer resources than the powerful interests who transformed international trade law. It has been more successful than anyone could have imagined in such a short time, but precisely because of its success, it is now at a crossroads. Merely in the past three years, since the Yale Information Society Project began hosting these conferences, many parts of the movement have found common cause, and the movement has become more energized and more powerful. Government agencies and international bodies are starting to pay attention. Our presence here in Geneva today is ample evidence of that.
Many people in international policy circles and international organizations, however, still have only a limited perspective on the movement. Some of them see it only as a movement about international intellectual property laws, and a few completely misunderstand it as an attempt to abolish or greatly weaken the protections of intellectual property. Neither of these is the case.
We can of course describe elements of the Access to Knowledge movement in terms of the movement for global intellectual property reform, but it is far more than that. Access to Knowledge is a claim about global justice in a world in which knowledge, information, knowledge creating tools, and knowledge embedded goods increasingly determine wealth and power in society. It is a claim of global justice between the nations of the world, and between groups and individuals within countries. It is a question of fair and humane policies for economic development. It is a question of human rights.
A few weeks back there was a very interesting development in the United States. Our Federal Communications Commission held that a broadband provider, Comcast, had illegally blocked a file sharing application, Bit Torrent. The FCC issued an order saying that blocking applications like Bit Torrent was not consistent with reasonable network management or the duties of a broadband provider. This decision, like many of the most important issues for Access to Knowledge, was highly technical. Moreover, it concerned the policies of a single nation state. It did not involve the construction of international human rights treaties, or indeed any international documents at all. That is important because many of the key issues of access to knowledge take place at the level of the nation state, or involve heavily technical questions of standards and architecture.
Nevertheless, that recent decision, no matter how technical or how parochial it may appear in this arena, is important because it is a first step on the way to a policy of network neutrality in one of the world’s largest economies. In the United States, as in many other countries, only a handful of firms control the broadband market; in fact, most people in the United States have only a choice between their local cable company or their local phone company. A network neutrality policy is important because it means that the people who control access to the Internet may not discriminate on the basis of the content or applications that flow through their channels.
This is a small first step, but it is a very important one. And I wanted to talk about what it means in the larger context of Access to Knowledge. I wanted to use this small but important victory to talk about the larger issues of A2K and the challenges it faces in its future.
You might think this a curious choice. It occurs in a very rich country, the United States. It does not concern essential medicines for the most desperate individuals in the Global South. It is not about the TRIPS agreement or the reform of patent law and the creation of alternative methods—like prizes. And yet, this story has important lessons for us.
First, this is an issue about innovation, and in particular, the decentralization of innovation. Without network neutrality, innovation on the Internet will be dominated by a handful of firms, who will be unlikely to welcome new techniques or applications that they or their business partners did not develop or hold the rights to. Opening up the Internet means decentralizing decisions about what kinds of new applications and new content to create. And decentralizing innovation means that more minds and more creativity are brought to bear on solving the world’s problems, and increasing wealth and the world’s resources. It’s worth mentioning as well that this dispute was not simply one between big companies and little individuals. It was also a dispute between different kinds of businesses. Many firms actively support network neutrality because they do not want innovation tightly controlled by a few key players, but want a fair playing field for competition and innovation. They too want a decentralized and vibrant business climate that allows new businesses with new ideas to innovate without being shut out or blocked by incumbents. As we think about the future of Access to Knowledge, we must understand that many of the most innovative businesses in the world already agree with us.
Second, this is also a debate about participation. The goal of access to knowledge is not simply to put knowledge and knowledge goods in people’s hands as if they were slices of pie and let them consume them so that nothing is left. Rather, the goal of access to knowledge is to let people all around the world participate in and contribute to the new knowledge economy on a more equal footing.
The goal of access to knowledge is premised on a few simple beliefs about human beings, taken as a whole. First, that the people of the world, taken as a whole, are enormously creative;
Second, that their creativity will emerge naturally when they are allowed to express it without suppression or hindrance, and empowered through access to knowledge and to information tools;
Third, that the world is better off when we allow ordinary people to be free to learn, to innovate, and make and build new things, and share their work and their knowledge with others.
There are several billion people on this planet. Each is unique, each has intelligence, each has creativity, each has ability. If we want to make these people happier, healthier, and freer, we could do far worse than to open up all of the opportunities for them to use their intelligence and their creativity, to bring their collective intelligence to bear.
Third, this is a debate about control. Will control of the information society—of its powers and channels and conduits, its facilities and institutions—be concentrated in the hands of a few, or will it be dispersed in the hands of many? What good is a global society based on knowledge if most of the world remains without access to knowledge? What good is an economy based on information if only a few control the flow of information? At the end of the day, what do people from very different backgrounds and different values want in a rapidly changing world? They want control over their own lives so that they can take care of their families and be part of their own communities. The question of the information age is one of the oldest questions of politics raised in a new context: Will people be the masters of themselves or will they be under the control of others?
Fourth, this is a debate about the commons. The premise—and the promise—behind network neutrality is that the Internet could be a general purpose network for transporting information, knowledge, and applications: a general purpose utility that serves the public, and that allows people to communicate however and whenever they want—to create and distribute ideas, build businesses, and to work together.
The Internet in this sense is a commons, not in the sense that the hardware is commonly owned by us all, but in the sense that we can all make use of it and build on it for our own purposes. Through playing this role as a commons, The Internet allows us, collectively, to create a better world. The Internet as a commons is not, I repeat, not, a story about property held in common or the end of property. The Internet as a commons is full of private property rights—the cables, the servers, the wireless transmitters, the individual computers. All of these are owned by individuals and firms.
The idea of an Internet commons is not the absence of property rights; it is the presence of freedom.
This insight offers an important lesson for us in thinking about the reform of intellectual property. Intellectual property is valuable precisely because it serves the causes of freedom and enlightenment. It is an engine of free expression and technological progress. But when it stifles expression, when it retards progress, it betrays the cause of human enlightenment and human dignity.
We do not dream of a world without property in ideas, without spurs to innovation, without incentives to create and contribute. We want people to build things and own things, and buy things and sell things and distribute them. A vibrant public domain helps us build. Open standards help us achieve. A balanced approach to intellectual property, sensitive to the needs of the global South, helps the countries of the world develop, share in, and contribute to the bounty of an information age.
We want more and better for everyone on this planet. But to achieve this, we need several different kinds of commons: a commons in an open Internet, a commons for innovation produced through open standards, and a commons for the advancement of knowledge through a public sphere that allows the free flow and spread of ideas. A commons is a space, a place, a phenomenon, in which each can live, each can plan, each can use. There is another name for such a phenomenon. It is freedom.
Fifth, this is a debate about the commons in a larger sense: not merely facilities like the Internet or institutions like the public domain. It is about the things we have in common and the beliefs and commitments we hold in common.
What is the great insight of the idea of Access to Knowledge? Is it the choice of the word "access"? No. There are many problems with this word, what it emphasizes, and what it leaves out. Is it the word "knowledge"? No. (Is it the word "to"? :-) No.) The great insight of this movement is that it has helped bring together a wide variety of people who did not imagine that they were working on similar goals—dispersed, as they are, in their focus on health, science, movies, music, culture, telecommunications policy, innovation, fair competition, freedom of the press and transparency in governance.
The Access to Knowledge Movement has helped us see that all of us in this fight do have something in common, deeply in common, as our world transitions from an age of industrial capital to an age where wealth increasingly flows to and from information and the products of the mind
—a world where power increasingly arises from control over knowledge, the conduits of knowledge, and the tools of knowledge
—a world where liberty and equality increasingly depend on access to knowledge, to knowledge goods, and to tools for making knowledge goods.
What I ask of you today, as we begin this third annual conference on Access to Knowledge, is to remember, that as we struggle and debate with one another, as we agree and disagree, that even so we still hold something in common, something precious in common.
We work not simply for a commons in information, or a commons in Internet architecture, or a commons in open technical standards, or a commons in a vibrant public domain. We are also working for a commons of purpose—a common purpose, a common enterprise— to make the information age, the age of the Internet, the age of the products of the mind, finally the age when human beings realized not only how to be free but how to let others be free, when they collectively decided to open the privileges and opportunities and bounties of a robust economy of information technology to everyone on this planet.