Yochai Benkler, April 21st Transcript

From A2K Wiki

YALE LAW SCHOOL
ISP Conference
April 21-23, 2006

Yochai Benkler – Opening Remarks

When Joel was talking about useful knowledge, I thought to myself, I thought you were supposed to avoid useful knowledge as best as possible at the Yale Law School, if we could. But beyond that reference, I think one of the things one begins to see in looking at this panel and looking at this room is a recognition of how much useful knowledge there is in many places from many sources of insight and wisdom. And how grateful we are that all of you have come to participate and given generously of your time to come and participate in a conversation across disciplines, across sources of knowledge, and hopefully be able to come up with something more than a tentative draft of what the idea of access to knowledge will be like. And simply to say that as Eddan was much too kind to Jack and to me when he talked about intellectual leadership as opposed to actually identifying that this is all the work of the student fellows under Eddan’s leadership in really trying to capture where all of you bring insight into this question.

But let me nonetheless offer a draft, since that is what I do. Three questions: Why now? Why care? What is to be done?

Why now? I suggest there are four long-term trends that combine as undergirding this moment of access to knowledge. The first is the long-term move from decolonization through self-determination and self-sufficiency, the moment of the ‘60s and the ‘70stowards gradual acceptance globally of an integration into a global trade system as a basic necessity, if not desirable trend. A much longer trend, currently at different stages in different countries, is the move from rapid industrialization to rising capital intensity and financing being central to an information knowledge economy. The third is very different. It is the move from mass media and monopoly in telecoms towards more competitive media in telecoms areas and to the rise of the network information economy in the very recent past. And the fourth is the move from a moment at which communism and statism in all of their forms were considered widely to be acceptable alternatives to a moment at which there’s gradual ascendance of human rights; the idea of human dignity and participatory politics as an accepted platform for conversation anywhere; and more recently, the extension of the idea of development as freedom. How do these four trends connect to each other and what do they have to do with access to knowledge?

The first two, the increasing integration into a global trade system and information knowledge economy, underlie the emergence of the global trade and IP system as a combined system. In particular, international trade and IP regime from the late Nineteenth Century through the Twentieth Century was a system of mutual recognition, like Berne and Paris among the major IP players. It was distinct from the trade system and it was not enforced as part of the trade system. In the 1970’s we saw an effort to draft the development agenda on IP. Nationally we saw countries like India and Brazil withdrawing patents on pharmaceuticals. Internationally, WIPO for a while became a platform for development issues. But in response, we saw a shift in the early ‘80s andthrough the mid-‘90s to incorporate IP into the international trade regime. This was central part of the GATT Uruguay round and the creation of the WIPO, and TRIPS was a major component. We saw as the information economy increased, it moved centrally into trade and we saw in 1995 the passage of TRIPS and the move to harmonize IP globally. WIPO to some extent responds by offering competing maximalist services to the IP exporters – not to be shoved aside. And what we’ve seen since ’96 is a trend towards a playable international system, TRIPS, WIPO on the multi-lateral level, national and regional harmonization, like data base protection also happening, and finally, the emergence of bilateral FDA’s to ratchet up above TRIPS.

The critical thing to recognize in terms of where the movement, this movement, is today is that all of this is relatively new. These are not hundreds of years worth of settlement. This is a product of a particular set of political moves from the last 20 years and it is subject to challenge as such. The major intellectual moves or the major strategic moves are the inclusion of IP in trade, the weaving of unilateral, bilateral, and multi-lateral mechanism, and at the idea level, a generalization or abstraction, from Pharma, Hollywood, Semi-conductors as being distinct industries to the idea of IP industries, from issues as being discrete policy concerns to the core issue being one of industrial policy in a global information economy for the major information exporters, and from the idea of the U.S. and Japan as primarily in competition with each other on this domain, information exporters as a block setting up a global trade and IP system.

The emerging counter movement of Access to Knowledge comes out of three of these four trends. The rise of the information knowledge economy and the greater importance it assigns to justice and freedom, the rise of network information economy or digitalization, and the rise of the idea of development as freedom. In the 1990s we saw the rise of the access to medicine movements supercharged by AIDS activism, ultimately succeeding in Doha for a certain moment and continuing the battle, and we have people from that movement here. The movements for information commons on the net and the internet freedom movement (encryption, privacy and speech), which came together in the late ‘90s and through the mid-‘00’s. Free and open source software emerges from a social practice to a political self-understanding. From the human genome project and the questions of patenting life forms and of university patenting, and from open access publishing, we began to see scientists understanding themselves as part of something like this movement. Digital inclusion and ICT’s for development, spectrum commons, digitalization of libraries, altogether movements that ultimately feed into this broad concept of Access to Knowledge.

In the last two or three years, we’ve seen growing social practices of engagement, like Wikpedia, engaging more people in the actual practice of producing information. Movements like the creative commons that provided a focal point for international joining. Free and open software has radicalized politically around things like software patents and DRM regulations. We also saw things that Cecelia was talking about – the Brazil/Argentina initiative at the WIPO development agenda integrating development at the national level with all of these civil society movements. We begun to see commercial companies that understand themselves as being able to make money around these social practices, beginning to understand that they’re not part of the IP industries, but they are perhaps part of the Access to Knowledge movement. The TACD conferences, the consumer organization conferences in the last couple of years, which have allowed the emergence of this concept and played an enormous role.

The major moves here are these: First, human development and justice are at the core. The various regulatory mechanisms, be they patent, copyright, trademark, or other exclusive rights, are at the periphery. Growth oriented policies are part of the story, but only part of the story. Second, diverse conditions require diverse responses. There is no single right harmonized answer worldwide. And third, we see the move from a coalition of diverse movements, like access to medicines or free software on a particular issue, to an understanding of the need to move to a global access to knowledge movement.

Why care? Justice and freedom. The combination of information knowledge economy, rise of network information society, and development of freedom identify access to knowledge as central to human development, both as freedom and as justice. Justice: theemergence of a global information economy means that more of what makes for human welfare and development depends on information, knowledge and culture. If we just look at the Human Development Index, at life expectancy, at literacy and at GDP per capita, we’ll see that every single one of them is critically dependent on information inputs, for food security and medicines, for research and journals, for outcomes data, for books and teaching materials, for communications, libraries, academic centers. And we have known, as Joel discussed, for a long time, that growth is centrally connected to innovation and information anywhere. This is so particularly for latecomers who have to adopt best practices rather than paying for the price of being able to produceand innovate tomorrow.

As to freedom, we have seen the technological threshold conditions enable greater practical human agency, individual action, both commercial and noncommercial, and social sharing and exchange are emerging as major modalities of economy production, which,in turn, allow us to exercise greater individual autonomy and participate in an appreciably more participatory public sphere and in newly emerging practices of more participatory and critically self-reflective culture.

What then is to be done? Let me offer a tentative list.

Regulation of information production and exchange, like patents and copyrights is a central potential barrier to Access to Knowledge for all of these. Telecommunications, ICT policy, broadband, open spectrum, are necessary moves in assuring access the ability to participate in these practices. The battle over open standards in technology and regulation policy, which are under pressure from regulatory requirements to implement trusted systems or patents in standards, become a place where in technology the values of openness are being challenged. We have Helen here, who’s done more in her work in the philosophy of the relationship between values and design than most anyone else. Educational materials and libraries. But no less important than that we focus on the legal mechanisms, we must focus on the possibilities for action within civil society, both in organized forms and in decentralized distributed practices using the very mechanisms that allow for the emergence of peer production as themselves ways of overcoming the barriers to Access to Knowledge.

We stand at the moment of opportunity. We have an opportunity to forge a practical, cultural and intellectual coalition at a moment of transformation. The stakes are high, the question is how should we be as free, equal, productive human beings in a global network information economy. And I hope that in the next three days we can spend our time learning from each other and teaching each other and becoming better friends as part of this kind of a social movement. Thank you.