Welcoming Address
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Notes
Jack Balkin, Yale Law School
Two things: infrastructure and harmony.
A2K is not about free speech. Access to knowledge goes beyond national boundaries, and American free speech is too limited -- it's mainly negative liberty. Art. 19 of the International Declaration of Human Rights, to receive and impart knowledge, is better, but even that doesn't go far enough.
What is the connection b/t freedom of expression and A2K?
Freedom of expression depends on infrastructure. Government investment, telephones, internet, libraries, postal delivery, education, buildings. None of these are required by freedom of expression, but w/o this infrastructure we wouldn't have freedom of expression.
Infrastructure in physical objects, custom and tradition, and mental processes.
IPR can't provide all the infrastructure, and it may not be the most important method of supporting creativity in the digital age.
Knowledge and information policy has goals of ensuring widest possible spread and diffusion of knowledge information among the world's populations.
Where power is now power to control knowledge and knowledge embedded goods. Good policy would ensure fair distribution. Not just about GDP, equalizing incomes. It's about putting tools of understanding in peoples' hands and heads. Tools of how make meanings, knowledge.
Lower cost of telecom, preventing concentration of ownership, provide info production tools like software and books.
Promoting democratic culture(s). Not everyone gets to vote on it, but everyone gets to participate in the cultural forces that constitute them as individuals. Need not just info, but tools to make new culture.
A2K is the boss, IP just an employee. Nations of the world need to understand who's the boss.
How can we get IP to play its proper role?
A2K arose b/c of IP harmonization. Who could be opposed to harmonization? But that term doesn't tell you who is harmonizing, or for what.
Harmony is misleading, b/c they want IPR higher than TRIPS.
Harmonization is about producing harmony. When sing in harmony, don't all sing the same note. If everyone sings the same note, it's boring.
IP law does not encourage countries to innovate. Encourages them to waste time squeezing as much as can out of inventions instead of time on innovating.
If TRIPS is int'l treaty, we should apply same rules to TRIPS as to other treaties. Countries do not apply treaties the same way. Certainly true of human rights treaties. See U.S. and Geneva Convention.
US has been getting "margin of appreciation" on TRIPS for a long time. e.g., the US says we comply w/Berne's requirement of moral rights. But we don't have moral rights in our law. US reps say our law is roughly in compliance, good enough to protect authors' rights.
Not talking about exceptions and limitations. Talking about basic components of IP law. Southern countries don't have to use exactly the same factors, or define them in the same way (e.g., nonobviousness and utility; procedures for registering; remedies; justifications, excuses).
This is consistent w/TRIPS, especially if you think it's about international trade and not just way of exacting rents. India, e.g., might want to have higher standards of obviousness, is that it is very good at producing generic drugs. This is its comparative advantage. As long as roughly comparable to other countries, provides sufficient protection. If drug companies making minor improvements to protect their patents, could conclude this doesn't promote innovation or free trade, just protects rents.
Of course this proposal does not solve all problems faced by developing countries. Rather, developing countries need to start treating TRIPS the way other countries treat almost every other treaty they sign.
At ISP we're trying to understand what a "margin of appreciation" would mean in IPR law. We're trying to draft new model statutes.
People should not confuse "IP law" with "American IP law."
Yochai Benkler, Yale Law School
What do we know
How we produce, use, and disseminate information, knowledge, culture is critical to human welfare, development, freedom.
Our a decade of lobbying and trade negotiation has led to a global trade and exclusive rights regime that represents the itnerests of a certain class of incumbents centered in the US and EU.
The present arrangement represents the shape of the political forces at work, not considered judgment as to what arrangement will best serve innovation and human welfare everywhere, or development in emerging , developing, and less developed countries.
What (we?) think true
There is a global emering social/politicla movement that is pushing back on the politics of access to knowledge.
It can combine the interests of all those who suffer the negative consequences of poor knowledge policies everywhere into a powerful political force, including: individuals, organized civil society, commercial entities around the world (including particularly the IT sectors in rich countries and innovation sectors more generally in emerging economies), and developing nations.
Difference exists and persists everywhere: different sectors and countries, whose costs and methods of appropriation for information production differ, require diverse interventions and flexibilities in designing exclusive rights or communications policies.
The barriers to A2K will be different in different places and sectors, and will require attention to detail and diverse emphases. Sometimes core concerns will be in patents or copyright policy, or telecom; sometimes the core concerns will be human rights, freedom of thought, association, and speech; sometimes, it will be good governance.
Commons-based, open strategies for information, knowledge, and cultural production will play a central role in the future of justice, human development, and freedom in the coming years.
In order to be effective, the movement must be open to learning, discourse, and continual updating of beliefs about:
- What problems need solving?
- What means of intervention are most appropriate and likely effective?
- What are the loci of intervention: policy (national or globa), technology, or social-organizational practice?
- Who are allies, who enemies, why, and for how long?
Formation and revision of beleif is hard: we need to apply the principles of A2K to the movement.
New intellectual sources
Both command and control systems and market systems depend on a simplistic, dehumanized view of human action, motivation, and sociality.
Several disciplines have made observations that fly in the face of these dominant ways of looking at human interaction and which allow us to extract a very different set of design elements in our efforts to construct human systems for a few of human beings that admits of much greater coopereation.
- Experimental economics
- Organizational/economic sociology
- Fact of social software
Critical design characteristics
Experimental economics: hundreds of experiments that provide systematic testing of assusmptions and interventions of game theory; showing much more social cooperative communicative being than homo economicus.
Organizational/economic sociology: case studies of major success and failure stories. Major success stories, like Toyota, all depart from traditional organization theory in ways that parallel the emergence of cooperation online.
Online cooperation / social software.
Design levers
- Communication: innovation, knowledge, learning, action are fundamentally discursive practices, not coordinated outcomes of well-incentivized or monitored automatons.
- Humanization
- Trust construction
- Norm creation
- Transparency
- Fairness (outcomes, intentions, process)
- Monitoring, peer review, discipline
- Others...
A new design space
Demise of the Soviet Union and the rising fear of Eurosclerosis focused on the "New" Democrats/Labour away from state-based solutions toward "market-based" reform.
This binary view of the universe of potential options is outdated.
The global economic/social/political system has increased the number and rate of human interactions --> emerging complexity.
Rationalizing systems of the twentieth century, aimed to achieve efficiency by minimizing the human, are losing out to those systems that have begun to reorganize human affair around human beinga as they in fact are: complex, emerging...
Open human systems, constructed for learning, adaptation, and robustness/surviviability instead of efficiency, built on human communication and coolaboration, are the new design space for policy, business, and technology.
Reasserting the human--capabilities, needs, and moral claims--as the central organizing principle.
We have to understand that business is already there. See this in cutting edge sociology and what is happening in Web 2.0 and social software.
Policy and government not quite there yet. This is our new design space.
