The Access to Knowledge Mobilization and the New Politics of Intellectual Property

By Kapczynski, Amy | The Yale Law Journal, March 2008 | Go to article overview

The Access to Knowledge Mobilization and the New Politics of Intellectual Property


Kapczynski, Amy, The Yale Law Journal


INTRODUCTION

I.   COLLECTIVE ACTION AND FRAME MOBILIZATION

II.  FROM INTELLECTUAL PROPERTY TO ACCESS TO KNOWLEDGE
     A. The Historical Evolution of Enclosure and A2K
     B. IP and A2K as Mobilizing Frames
        1. Frame Mobilization in IP Industries
        2. Frame Mobilization in A2K

III. THE GRAVITATIONAL PULL OF LAW ON FRAMING PROCESSES
     A. Illustrating the Gravitational Power of Law
        1. Architectural Effects
        2. Discursive Effects
        3. Strategic Effects
     B. The Implications of Law's Gravitational Pull

CONCLUSION

INTRODUCTION

Intellectual property law was, until recently, an arcane subject. Over the last decade or so, however, that has begun to change. College students in the United States have formed organizations to challenge the scope of copyright law. AIDS activists have provoked arrest to challenge laws about drug patents. Computer programmers have led street demonstrations and lobbying campaigns against software patents. Farmers in developing countries have protested in the hundreds of thousands against seed patents and the licensing practices of multinational seed companies. Whether their object is generic drugs or a free genome, free software or free culture, a disparate collection of groups is thematizing new conflicts between property in knowledge and human efforts to create, develop, communicate, and share knowledge in our increasingly informational society.

Very recently, some from these groups have begun to seek to affiliate and make common cause under the rubric of "access to knowledge" (A2K). This has occurred most notably through a recent campaign to press the World Intellectual Property Organization (WIPO) to adopt a "development agenda." Advocacy groups from North and South joined forces to support this call, demanding that the agency become more receptive to the needs of developing countries and more open to mechanisms of innovation that do not rely on exclusive rights. WIPO agreed to consider the shift, and advocates made use of the political opening to draft a model Access to Knowledge Treaty. (1) This treaty is less a completed proposal than a protean campaign platform. Its central aims are to embed a set of users' rights in information at the international level and to create international mechanisms to protect and sustain open models of innovation.

As they formulate these demands and work together, those involved are also seeking to develop a shared identity and a common critique of the existing intellectual property system. This "A2K mobilization" (2) has had some notable successes. Access-to-medicines campaigners secured the first ever amendment to a core World Trade Organization (WTO) agreement, in this case the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement. They also helped to bring down the prices of AIDS medicines in developing countries by more than ninety-five percent, embed significant procedural protections and substantive limits in the new Indian Patent Act (and thereby potentially affect the prices of medicines globally as well as in India), and persuade the World Health Organization (WHO) to consider proposals for new international mechanisms to better align medical research and development (R&D) with global health needs. Free-software programmers, supported by major corporations with investments in open-source software models, helped prevent the passage of a directive that would have codified the availability of a broad range of software patents in the European Union. The private ordering schemes introduced by proponents of free software and "copyleft" licenses have proliferated rapidly. Free software is well integrated into the IT industries, and Creative Commons copyright licenses govern more than sixty million works around the world today.

Significant changes are also underway at WIPO. The development agenda process has led to institutional changes within the agency, such as the creation of a new standing committee on IP and development, and has been credited with derailing the negotiation of a Substantive Patent Law Treaty--an effort that has been a high priority for the United States and European Union. …

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