February 11-13, 2010 at Yale Law School

This conference seeks to lay the groundwork – conceptual and strategic – to build bridges between the A2K and human rights communities pursuing common goals of promoting greater access to knowledge, culture, technology and tools for innovation worldwide.

Conference Organizing Partners include:

Thursday, February 11, 2010

Film Screening and Panel Discussion

Friday, February 12, 2010

Welcome and Opening Remarks

Panel I. Perspectives on Access to Knowledge and Human Rights

Panel II. Technologies of Dissent: Information and Expression in a Digital World

Panel III. The Right to Health: Promoting Innovation and Equity

Panel IV. The Right to Education: Realizing the Potential of Digital Tools

Saturday, February 13, 2010

Panel V. Freedom to Innovate: Knowledge, Technology, Culture

Panel VI. The Right to Science and Culture: Participation and Access

VII. Concurrent Workshops

Identifying Challenges & Opportunities for an African Information Ethics

The Right to Read: Copyright and Access for Persons with Disabilities

The Right to Development: Bridging the Gap between Human Rights & IP?

Panel VIII. Rights-Based Strategies for Advancing Access to Knowledge

Click any of  the links above for A2K4 panel descriptions, photos, summaries, video archives, and additional resources.

For more information about the conference, visit: A2K4: Access to Knowledge & Human Rights

Sponsored by the American Civil Liberties Union Women’s Rights Project, the American Civil Liberties Union of Connecticut, the Information Society Project at Yale Law School, and the YLS Law and Health Initiative.

www.inthefamilyfilm.com

At 31, filmmaker Joanna Rudnick faces an impossible decision: remove her breasts and ovaries or risk incredible odds of developing cancer.

Armed with a positive genetic test result that leaves her essentially ‘a ticking time bomb’, she balances dreams of having her own children with the unnerving reality that she is risking her life by holding on to her fertility. In The Family follows Joanna as she takes us on a journey through the unpredictable world of predictive genetic testing.

Turning the camera on herself, Joanna bares her conflicting emotions about preventative surgery and the potential consequences. Turning the camera on her new relationship, she and her partner capture a young couple falling in love in the shadow of the mutation. Turning the camera on the company that owns the patents to the BRCA genes, she questions their control over access to the test. Along the way, she looks to other women and families dealing with the same unbelievable information.

Intensely personal and timely, In The Family is a groundbreaking investigation that attempts to answer the question: How much do you sacrifice to survive?

EVENT DESCRIPTION

The screening will be followed by a panel discussion addressing the implications of gene patents for access to health care. Refreshments will be served. Panelists include:

Christopher Mason, Weill Cornell Medical College of Cornell University

Ellen Matloff, Genetic counselor and plaintiff in the breast cancer gene patent challenge

Sandra Park, ACLU Women’s Rights Project Attorney

Ady Barkan, Yale Law School

This event is a collaboration with P.O.V., PBS’ award-winning nonfiction film series; more information available at http://www.pbs.org/pov/.

COMMENTS ON FILM

Interlaced with the personal stories of women with the genetic predisposition for breast and ovarian cancer are interviews with the scientists who discovered the link between BRCA1 and BRCA2 and cancer.

At one point, filmmaker Joanna Rudnick interviews the founder Founder and Chief Scientific Officer of Myriad, Dr. Mark Skolnick. Myriad Genetics is the biopharmaceutical company that owns the patent to BRCA1 and BRCA2, two genes that help determine a patient’s risk of developing breast cancer and ovarian cancer.

One of Dr. Skolnick comments elicited a particularly strong reaction from the viewing audience here at Yale. In response to Joanna’s suggestion that the BRCA1 patent was Myriad’s most controversial, Dr. Skolnick  stated, “There is no controversial patent. It is all very easy to understand if you take the time.”

Later, after Joanna questioned her further about whether genes that exist in nature should be patented, Dr. Skolnick asserted, “I guarantee you [women] would not be being tested if it weren’t for Myriad … We’ve taken every problem that comes up and solved it because we have a commercial interest.” He did acknowledge, however, that the $3,000 dollars that costs to have the tests should perhaps be decreased.

A short video of just the scene with Dr. Skolnick can be found here: http://www.huffingtonpost.com/joanna-rudnick/aclu-files-case-challengi_b_203593.html

DISCUSSION WITH PANELISTS

Sandra Park, ACLU Women’s Rights Project Attorney, opened the discussion on gene patenting following the showing of the film. She is involved in the lawsuit against Myriad, Association For Molecular Pathology et al v. United States Patent and Trademark Office et al, filed in 2009 in the district court of the Southern District of New York.

This case, initiated by the ACLU, is the first case in the United States about whether genes should be patentable subject matter. Sandra Park described the various claims, including both statutory and Constitutional claims, featured in the lawsuit. She argued that these patents on human genes do not further the progress of science.

Ellen Matloff, genetic counselor and plaintiff in the breast cancer gene patent challenge, described how the cost of the test has increasingly gone up during the last decade despite the underlying genomic technologies becoming cheaper and cheaper. She also described the problems with interpreting genetic tests. For example, some women whose tests results were misinterpreted had their breasts removed despite not having the mutation. Other women ended up dying from breast cancer despite thinking that their tests had come up negative. Ellen Matloff refuted Dr. Skolnick’s claim in the film that tests are available because of Myriad. She claimed that many genetic counselors were administering the tests for BRCA1 and BRCA2 before Myriad began to enforce its patents.

Christopher Mason, from Cornell University, described his involvement in the gene patenting case. He also suggested that the ability of university researchers to study patented genes in the course of academic research is unclear. He suggested that in a few years it will be possible to sequence each person’s genome for a few hundred dollars. If the gene patenting issue is not solved, it is possible that we will get our sequences with large sections (those that include patented genes) redacted.

Ady Barkan, a 3L at Yale Law School, then described the relation of gene patenting to the issues that face a YLS student group, Universities Allied for Essential Medicines (UAEM), in which he is involved. He raised the issue of monopoly pricing for pharmaceutical companies. The goal of UAEM is to induce governments to sell drugs cheaply in the third world, while charging monopoly prices in the United States. This contrasts with the goals of the ACLU in the Myriad case, which is to eliminate patents for genes. Sandra Park responded to Ady’s comments, stating that studies show that the financial incentives associated with patents do not further the discover of genes or the availability of genetic testing. For pharmaceuticals, which are so expensive to produce and push through the government’s approval process, patents are more appropriate than for for human genes.

Sandra Park suggested that the 1980 case of Chakrabarty supports the opinion of the ACLU. There have been many cases that concern the purification of natural products. Some of these seem to support that ACLU, some do not. This issue, whether isolated DNA is patentable, will likely be the key to the Myriad case. The process of isolating DNA was well known at the time that Myriad isolated BRCA1 and BRCA2. The only thing new in Myriad’s patent claim is the sequence itself, which should perhaps be considered a natural product or law of nature, and therefore unpatentable.

The public awareness raised by the Myriad case could lead to legislation on gene patenting even if the lawsuit is unsuccessful. The issue of whether a correlation could be patented, that is, whether it is a law of nature, was granted certiorari and then dismissed as improvidently granted in a previous case. But Justices Breyer’s dissent from the dismissal suggests that at least some on the Supreme Court are resistant to the idea that correlations can be patented.

]]> http://yaleisp.org/2010/02/a2k4screening/feed/ 2 http://yaleisp.org/2010/02/a2k4opening/ http://yaleisp.org/2010/02/a2k4opening/#comments Wed, 10 Feb 2010 17:50:29 +0000 Lea Shaver http://yaleisp.org/?p=1001 Yale Law School’s fourth major conference on access to knowledge, A2K4: Access to Knowledge and Human Rights, was kicked off by professor Jack Balkin, founder of the Yale Information Society Project.

Blogging, video, and discussion of the conference may be followed at http://yaleisp.org. The best link for accessing these materials is: http://yaleisp.org/2010/02/a2k4main.

Twitter users are encouraged to submit questions and comments to panelists using the hash tag #a2k4. You can also follow this discussion even if you do not have a Twitter account.

Thanks are due to the Kauffman Foundation for their generous sponsorship of this conference.

We would also like to acknowledge the contributions of our A2K4 organizing partners:

3D: Trade, Human Rights, Equitable Economy; AAAS Science and Human Rights Program; Access to Knowledge for Development (A2K4D) Center, School of Business, American University in Cairo; A2K Research Program at the Fundação Getúlio Vargas School of Law in Sao Paulo; Association for Progressive Communications; Berkman Center for Internet and Society at Harvard University; Centre for Technology and Society at the Fundação Getúlio Vargas School of Law in Rio de Janeiro; Centro de Estúdios Interdisciplinários de Derecho Industrial and Económico; Consumers International; Electronic Frontier Foundation; Human Rights USA; Institute for Information Law and Policy at New York Law School; Intellectual Property Watch; IQSensato; Knowledge Ecology International; Orville H. Schell, Jr. Center for International Human Rights at Yale Law School; UCT Intellectual Property Law and Policy Research; University of Wisconsin-Milwaukee School of Information Studies.

Lea Shaver, director of the Yale ISP’s research program in Access to Knowledge, also contributed opening remarks…

Access to Knowledge has been a major focus of the Yale Information Society Project’s research for several years. A2K4 follows on the heels of three other major conferences: A2K, A2K2, and A2K3.

But for those who may be new to these events, a few words on what we mean by “access to knowledge” or “A2K.”

The unifying feature of the A2K community is a concern to preserve, protect, and advance knowledge as a public good, which all should enjoy access to.

“Knowledge” here refers not just to things like a Yale education, access to fine literature, or a high-speed Internet connection. The A2K movement is particularly concerned with the ways in which access to knowledge impacts the lives of the poor and vulnerable. For example: control over crop seeds, affordable medicines, and primary textbooks.

Historically, the access to knowledge movement emerged as a reaction to the 1994 TRIPs Agreement, which dramatically changed the way that intellectual property is regulated internationally.

The philosophy that TRIPs embodied may be described as “IP maximalism” — the belief that the more strongly intellectual property is protected, the better. The A2K movement emerged out of organizations that criticized that approach, pointing out a number of ways in which stronger IP protection was harmful to the public interest.

The best-known area of activism is around access to essential medicines, such as treatments for HIV, that was endangered by new patent rules. But the A2K movement is much broader; concerned also with the ways that IP rules limit access to educational materials, seeds, cultural works, and IT software and hardware.

The concerns of the A2K movement also extend beyond intellectual property. They encompass Internet governance, innovation and technology policy, and competition regulation.

As we’ll see over the next two days, access to knowledge impacts a number of human rights issues. This includes civil liberties such as freedom of expression and privacy. As well as issues of distributive justice such as access to education, health care, and science and culture.

So one goal for this conference is to advance A2K-related legal and policy issues that can improve the state of human rights around the world. A second goal is to explore how A2K advocates might take more conscious advantage of human rights approaches in their work.

One question on the table, however, is whether this is even a good idea. Just because A2K concerns can be articulated in terms of human rights does not compel the conclusion that they should. Indeed, there are very much two sides to this debate.

On the one hand, human rights offers an international normative and legal framework from which to critique the recent approach to IP. Because rights-based arguments have some qualities of a “trump” to them, they may open up new avenues for advocacy and legal challenge.

It is far from clear, however, that such efforts will be effective in shifting the dynamics of existing struggles over IP. Many in the A2K community are highly skeptical of human rights language, having heard many times the claim that intellectual property rights are human rights.

In the words of scholar Kal Raustiala, “It remains to be seen whether the marriage of human rights and IP will make international IP rights more socially just, or just more powerful.” Kal Raustiala, Commentary: Density and Conflict in International Intellectual Property Law, 40 U.C. Davis L. Rev. 1021, 1037 (2007).

The dual-edged nature of this dilemma, however, only reinforces the conclusion that the A2K community cannot afford to ignore the human rights debate, any more than the human rights community can afford to ignore access to knowledge concerns.

This weekend’s conference is an opportunity to explore in depth the issues encountered at the intersection of access to knowledge and human rights. Our esteemed panelists will be addressing three central questions:

In what ways do intellectual property, Internet governance, technological regulation and innovation systems impact human rights — both civil liberties as well as socioeconomic entitlements?

How can leveraging rights-based methodologies, arguments, and institutions advance A2K goals? What new risks might these strategies carry?

As we move toward greater collaboration between the human rights and A2K communities, wherein lie the greatest opportunities and challenges, and how can we rise to meet them?

For the full agenda of the conference, as well as links to blog posts, archived video, and additional resources for each panel, please visit http://yaleisp.org/2010/02/a2k4main.

To date, the intersection between intellectual property and human rights has been analyzed from several perspectives. Some claim that intellectual property is a human right; others object that IP protection conflicts with efforts to realize the rights to health, food, education, or free expression. A consensus perspective on how to view the intersection of IP and human rights is far from achieved.

Access to knowledge, however, is broader than IP alone. It is concerned with the myriad ways in which government and private action either enable knowledge to be shared widely and improved upon, or cause it to be tightly controlled and restricted, and the ultimate impacts of these decisions on human well-being and justice. Adopting this concept as the starting point of a human rights inquiry suggests new perspectives that may enliven the IP-human rights debate, but also poses new conceptual and strategic challenges.

The panelists included:

Ahmed Abdel Latif, International Centre for Trade and Sustainable Development

Laurence Helfer, Duke Law School

Molly Beutz Land, New York Law School

Natasha Primo, Association for Progressive Communications

Commentator: Jeremy Malcolm, Consumers International

Some of the questions to be pursued by this panel include:

What is the relevance of A2K and human rights to each other? Which substantive aspects of human rights – for example, health, education, food, freedom of expression, and cultural rights – are implicated by A2K issues and how? Which methodological and institutional approaches hold relevance?

Do the A2K and human rights approaches fit together easily or in tension? What unique insights can each offer the other? What would it mean to theorize A2K as a human right? Is access to knowledge better understood as a negative liberty or a positive entitlement?

Is the human rights framework – norms, institutions, and methodologies of advocacy – a useful one for advancing A2K goals? What are the risks, challenges, and opportunities involved in theorizing A2K as a human right? What venues, tools, allies and enemies might be acquired by this framing?

Natasha Primo opened the panel by speaking about the APC Internet Rights Charter.   APC is a 20 year old network of ISPs which in the early ’80s was organized as a vehicle for the progressive movement.  Now APC has grown beyond ISPs.  In 2002, APC drafted the Internet Rights Charter as a mechanism for building awareness about the Information Society and facilitating access to knowledge.    There are seven themes in the IRC — including Internet access for all, privacy, surveillance & encryption, and free and open source software and technology development.  The APC maintains an evolving definition of A2K which now includes right to A2K, right to freedom of information and the right to access publicly-funded information.

Primo raises many good open questions that continue to populate the A2K discourse — does A2K involve a negative liberty or a new positive entitlement? Or is it a right that underpins existing rights?  How does it measure up against Shaver’s A2K index?  Should A2K be understood within a rights framework or a human capabilities framework as is often discussed by Martha Nussbaum and Amartya Sen.   There have been 10 key capabilities that have been identified in the International Bill of Rights, including the right live a normal life expectancy, the right to bodily health and integrity.   The capabilities approach would suggest we view A2K as a vehicle by which we realize more fully the human capabilities articulated under the International Bill of Rights as opposed to an independent right in and of itself.

Next up we had Laurence Helfer who spoke of the relationship between intellectual property and human rights.  TRIPS was a wake-up call to the human rights community.   The human rights community has been active in ensuring the international IP dialogue considers and addresses the human rights concerns with the propertization of intellectual discoveries and developments.

Helfer also suggested that corporations can make the spurious claim that intellectual property rights are human rights because the dialogue about IP and HR is still largely unoccupied and uncontested space… and the A2K movement should try to fill that gap and contest that account. One suggestion Helfer offers is for A2K proponents to push the right to enjoy the benefits of scientific progress.

Finally, Helfer points out that while the goal of rolling back IP might unite human rights activists and A2K activists, human rights activists are only interested in this effort as a means to end whereas A2K activists might be interested in such an effort as an end unto itself. The HR framework is also committed to some core norm of protection for creators and inventors; the A2K movement will have to come to terms with that if they partner.

The third panelist was Molly Beutz Land.   Land suggests human rights activists might rely more strongly on the A2K theories.  Access to information is critical to addressing the more obvious human rights concerns such as health, food, and women’s rights.  However, the human rights community, Land argues, is not considering the relationship between access to information and their traditional goals and efforts.

Land also points out that while human rights activists should rely on A2K theories, A2K activists should rely more strongly on the tactics that concern human rights activists — e.g. constructing infrastructure to facilitate the proliferation of knowledge.   The access to medicines effort is a paradigmatic example of how A2K and human rights activists can move toward  a shared goal.  Specifically, theories on knowledge underpinned the access to medicines movement but the human rights tactic of pushing state accountability helped effectuate the goal both sets of interests shared.

Professor Land suggests the access to medicines campaign was successful because it united an A2K conceptualization of the problem, with the HR framework of state accountability, which pointed toward a solution.

Finally, the panel closed with a few words from Ahmed Abdel Latif.   Latif emphasizes the continued tension between development and proliferation of art and science and the role of intellectual property in some instances supporting and in other instances detracting from that effort.  Furthermore, Latif was critical of the way in which the exceptions to copyright are being broached in WIPO discussions — instead of focusing on the role of exceptions as a way to realize a human right, the conversation is still framed as if copyright is human right.

Latif points to the international discussions on the access to climate change technology as another way in which the human rights and A2K interests align and should be framed as an effort that achieves the goals of both concerns. He also pointed to the current efforts to move an instrument on exceptions and limitations to copyright for the visually impaired, as a concrete implementation of the Convention on the Rights of Persons with Disabilities. Yet these connections are typically not noted in WIPO debates.

Question & Answer:

Q:  Is A2K gaining more transaction as a consumer right or a consumer protection in the international sphere?  A:  Jeremy Malcolm — mostly as a consumer right but consumer protection frame is gaining more traction.   DRM is an example of an issue that can be framed as a consumer protection concern.

Q: What is the opinion of the panel on the developing right to internet access? Specifically, what should we make of the international movement on termination of internet access in cases of copyright infringement in the larger A2K, human rights conversation?  A: Primo — access to infrastructure has long been a part of APC’s IRC.  Thus, internet access is a natural connect into the lager A2K, human rights conversation.

Q:  There has  been a perversion of access to knowledge in efforts by big pharma with respect to direct to consumer advertising — i.e. pharma is now framing their d-to-c efforts as “right to know” or “information to patients” efforts on behalf of their patients.  What does the panel think of that?  A: Land — we should consider A2K as a movement committed to reliable and relevant information.  This might address and counter the misappropriation by industries like pharma.

Q: Because of a historic development, we discuss access to knowledge instead of active cultural participation.  Should we move to the latter? A: Land — agrees with the suggestion and offers the human rights frame as useful in the way it operationalizes the rights. The capabilities approach specifically helps get us to the issue of active participation.

Q: Why isn’t the “access to knowledge as a human right” language being used in multilateral discussions at WIPO, IGF, etc.?  A:  Primo — Diplomacy rules set the framework within which debate takes place.  There is often thus very little debate. Culture is one in which the more you repeat something, the more its heard.   Operating as civil society within those spaces leads to a lot of self-censorship — people didn’t want to use human rights framework at IGF because they sometimes feel that the development language is more effective among that audience.  Helfer — there is a fear/lack of understanding among IP folks with human rights language — so its, on some level, a language barrier. Plus you need to show how human rights discourse enables, not stifles, further discourse.  Latif — There is a path dependency in the conversation.  Furthermore, the conversations are particularized and siloed in a way that forces certain language to be discussed exclusively in certain fora — development language discussed at UNCTAD not at SCCR, etc.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Friday, February 12 at 14:15h to 16:00h.

Back to A2K4: Access to Knowledge and Human Rights main page

This panel explores A2K issues relevant to classic civil and political rights, particularly freedom of expression.

Political expression and dissent are increasingly exercised online, through technologies ranging from social networking tools, blogs, email, and cell phones to more concealed and complex technical approaches such as the use of distributed denial of service attacks to disrupt government servers. Some governments have responded to new forms of digital dissent with new forms of technological repression.

The same technologies that expand opportunities to engage in legitimate political protest have created unprecedented privacy concerns; of particular concern is the practice of deep packet inspection allowing scrutiny by governments, often through private industry, of the details of users’ text messages, web searches, and emails.

The panelists included:

Anupam Chander, UC Davis School of Law

Laura DeNardis, Yale Information Society Project

Theresa Harris, Human Rights USA

Eddan Katz, Electronic Frontier Foundation

Moderator: Nabiha Syed, Yale Information Society Project

Some of the questions to be pursued by this panel include:

What are examples of online technology and expression that may be empowered or made vulnerable? How are governments responding to these new forms of dissent? Is there anything truly new about these forms of protest versus more traditional forms?

What is the nature of the technical architecture that enables these new types of democratic expression and protest? In what ways can the same technologies be used to violate human rights? Is there a human right to any particular form of technology, or rights vis a vis technology?

What is the role of corporate social responsibility in relationship to Internet freedom? To what extent should we be concerned about private control over new forms of dissent and speech, as well as government control?

What is the role of government investment in telecommunications, universal access and closing the digital divide, and infrastructure design as human rights issues? Does freedom of expression require positive government efforts to extend technological access and what would these look like?

Laura DeNardis kicked off the panel by discussing her current research exploring the relationship between Internet technical architecture and political protest and expression.  The theoretical framework for her research emanates from her discipline of Science and Technology Studies (STS).  This is a field that studies how cultural and political values shape technological and scientific innovations and how these technologies in turn can transform society.  In her research, particular STS influences include: material-semiotic approaches such as Actor Network Theory; theories from feminist philosophers of science; and critical STS theories emanating from the work of Langdon Winner and Michel Foucault.  Within this framework, she is studying the dissolution of boundaries between virtual and material realities of political protest and is asking two overarching questions: (1) How does this phenomenon require a reconceptualization of our understanding of 21st Century social action?  (2) What is our responsibility for not only using technologies but for preserving and promoting certain forms of technological architecture and legal structures to create what Jack Balkin refers to as an infrastructure of free expression?

In her upcoming book, Technologies of Dissent, DeNardis uses case studies to analyze these issues.  One of her case studies involves distributed denial of service attacks for political protest.   These cyber attacks were famously used in Iran, Georgia, Estonia and for Google’s Initial Public Offering.  She also focuses on how citizen journalism impacts political debates and elections (see, for example, Virginia Senator George Allen’s racial slur captured on YouTube).

Another area of her research involves Internet mapping technology.  She brought up the example of Proposition 8 and the public disclosure of contributors to this ballot measure.   An anonymous web site developer (or developers) created “Prop 8 Maps” a web site identifying the names and geographical locations of individuals who had contributed to the campaign to end legalized same-sex marriage in California.  The web site was a mash-up of Google mapping software and publicly available information about Proposition 8 supporters published by the state of California.  The web site provides a graphical depiction of donors in three areas with high concentrations of donors who funded the campaign to overturn same-sex marriage: San Francisco, Salt Lake City Utah, and Orange County California.  It led to the public shaming of Prop 8 campaign contributors.

DeNardis concluded her remarks by drawing some observations from her research: First, technologies of dissent seem to be a particular locus of conflicting values; Second, technologies of dissent sometimes amplify and remix publicly available information in ways that are attracting heightened legal and social scrutiny; Third, the use of Google mapping technology, twitter, and different forms of social media and Internet architecture as part of political protests emphasizes a somewhat increasing role of private industry in communicative freedom and reflects the need to examine voluntary corporate social responsibility and a possible role of government in scrutinizing this area; Fourth, although this is not unique to new technologies of dissent, it’s important to note the caveat that the same technologies that enable new forms of protest and expression can be used by governments and others to restrict these freedoms; Finally,  it’s important to note that the use of technologies of dissent is always accompanied or even preceded by social change.

Next up was Anupam Chander.   He spoke about what he called “the Web’s possible futures”: public discourse vs. government surveillance.  He began by detailing the rich history of governments crushing “seabeds of political unrest.”  He expressed concern about governments suppressing free speech by controlling technologies of dissent.  However, he pointed to a number of examples where the Internet is leading to rich public discourse and undermining repressive governments.  He asked what the US can do to make the Internet a vehicle for public discourse rather than a tool of government surveillance.

The third panelist was Theresa Harris.  She discussed how private corporations can assist in fostering public discourse and preventing government repression.  Technology companies have largely been using an international trade approach to business, and have shirked their corporate social responsibility.  In the interest of making profits, they are using a “business as usual”/”we’re just following local laws” defense in refusing to confront human rights issues relating to the technologies they produce.  Where companies know that their tools are being used by governments to abuse human rights, they have a duty to be more responsible.  Companies need to adopt a human rights approach.  Implementing corporate social responsibility lies in, among other places, domestic legislation and international treaties.

The final panelist was Eddan Katz.  He brought up Hillary Clinton’s recent speech about Internet freedom.  This speech underscored the salience of this issue in international affairs.  Katz framed the issue of Internet freedom as “preventing disruption of networks.”  Katz noted that anonymity can be problematic but is important for political expression by dissidents and therefore should be defended in many circumstances (there are technologies, like the Tor network, that can defeat Internet surveillance).

An important message in Clinton’s speech was the need for corporate responsibility.  Katz listed numerous examples of US corporations selling surveillance technologies to repressive foreign regimes.  Katz brought up possible approaches to address this issue, including an instrumental approach and a capabilities approach.  Katz cited a good white paper on this subject called “Surveillance Self-Defense International.”

Questions and Answers:

Chander: Suppression in the US (filtering and monitoring, for instance) is not the same as suppression in countries with repressive governments.  The US allows for more open debate.  Katz: There are many similarities between the rhetoric on the war on piracy and the rhetoric on the war on terror.

Q: How can we use new media to push for human rights?  Chander: Search engines such as Google have significant power they can wield to pressure totalitarian regimes to be more liberal. Katz: Disclosing business practices and pushing socially responsible norms can help improve corporate behavior. DeNardis: China’s standards policies are frustrating interoperability.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Friday, February 12 at 16:00h to 17:30h

Back to A2K4: Access to Knowledge and Human Rights main page

Recent expansions of patent coverage have dramatically raised the cost of medicines in many parts of the world, and also introduced new questions of upstream innovation controls through gene patents. Technological innovations in eHealth hold great promise for improving access to healthcare and health information for the poor and underprivileged.  Unfortunately, obstacles to effective eHealth include lack of open and interoperable standards, closed digital repositories and inaccessible scholarship, and technical infrastructure barriers. How will these developments impact access to health care in the years to come?

Panelists include:

Christopher Mason, Weill Cornell Medical College of Cornell University

Thana Cristina de Campos, Fundação Getúlio Vargas Law School – Sao Paulo

Amy Kapczynski, UC Berkeley School of Law

Talha Syed, UC Berkeley School of Law

Moderator: Lisa Larrimore Ouellette, Yale Information Society Project

Some of the questions to be pursued by this panel include:

In light of the increasing trend toward personalized medicine, what are the implications of genetic patenting for the right to health care?

How has TRIPS implementation impacted access to medicines in developing countries? What implications does this have for constitutional treatment of the right to health in those countries affected?

What solutions are promising for easing the tradeoffs currently experienced between innovation systems and access to health care? How can the tensions be resolved between conceptions of health and knowledge as public goods, and efforts to create markets for the supply of health innovations?

What other ingredients of access to effective and equitable health care should an A2K framework be concerned with; for example, eHealth innovation, access to health information, technical infrastructures, training of personnel, etc.?

Thana Cristina de Campos begins by discussing the way in which transnational corporations must collaborate with states to further human rights.  Her goal here is to raise public awareness on a shared global responsibility for access to medicines.  Pharmaceutical companies are at the center of this issue.

-What is Access to Medicines?  Human right to health under Art. 25, of Universal Declaration of Human Rights (UDHR)

-What is Access to Knowledge? also a human right, right to enjoy the benefits of scientific progress and its applications: Art. 27, UDHR

These two are intrinsically linked.  She argues that a rights approach is important in addressing health policy.

Drugs are goods embedded with information and knowledge.  The most suitable policies for addressing neglected diseases is a public/private partnership.  This partnership should ensure meaningful participation, empowerment, etc.; it’s not just about the drugs themselves.  How should we define responsibilities of parties?

She argues corporate responsibility must extend beyond merely respecting human rights but should also protect and fulfill rights to access to medicines.  Access to medicines should be clearly stated as a priority in corporate policies.  This leaves me with some questions.  Should this be a state regulatory issue, or is it just a normative argument aimed at corporations?

Amy Kapczynski is up next.  She asks what do we mean by human rights in this context?  It might be an analytic structure, a philosophical conception.  Alternatively, she says, rights might be a political claim to justice.  Third, it could be a set of legal priorities.  What is the difference among these, and how are they related?   She asserts that the legalistic lens is all we should use.

Where do we need more conceptual work?  We need to get more rigorous about our arguments about what countries need to do to pursue the right to health.  The recent Grover report gets very concrete about the proper policy measures.  She argues that the Grover list is good, but we might want to extend it–e.g., limiting remedies in patent suits.

But, on the other hand, she says there are conceptual issues.  How can right to health require one patent framework?  There are other ways to pursue right to health outside of patent policy.  Why is it that developing countries need these patent policies rather than price controls, insurance reforms, etc?  Even though these things are important, she argues that the effectiveness of these alternative reforms often depends to some degree on patent policy as well.

Are flexibilities with TRIPS enough?  She thinks that forcing countries to go through TRIPS flexibilities might already be a violation of the right to health.  She thinks that sometimes it narrows our arguments too much to work only through this constrained legal framework.  She thinks it’s hard to talk about obligations of one state to the people of another, and it’s hard to talk about corporate obligations to the global population.  Question: Does she mean it’s difficult to make these arguments philosophically or pragmatically?

Talha Syed is up next.  He will consider three approaches and their implications.  We can do much more with economic analysis than is often done in this field, but he ultimately thinks economic analysis has positive and normative failings.

He thinks economic analysis supplemented by distributive justice is better than a  human rights approach.  He thinks the economic analysis of patent protection is often weak; pharma may be the exception, but only in a narrow case-by-case basis.  It also has normative failings, however.  Rights are often associated with absolutist claims of inviolability.  They often don’t tell us how to make trade-offs.

As a result, he finds distributive justice frameworks more helpful.  Each person has a legitimate claim to have his or her life go as well as possible.  He also holds that there is a priority principle: it’s more important to raise the welfare of those who are worse off.  He is open to hearing how rights could be helpful, but he wants to know how they can do any work beyond the justice framework?

He thinks the fundamental economic tradeoff is access for poorer people today and better off people tomorrow.  Even if you think that access does harm innovation incentives, which he doesn’t, under the priority principle we still should do it.  What do rights add to this?

Christopher Mason is the final panelist.  What are genomic rights?  Many people think we have rights to our genetic code in the same way we have rights to bodily integrity.  Within a year and a half to two years, it will be cheap and quick to trace or genomes to facilitate very personalized medicine. But it won’t be economical to give complete pictures if companies own exclusive rights to many of the genes. In fact, more than 20% of the human genome is already patented.

Presentation: Mason_Talk_A2K4.ppt

Questions and Answers:

To Professor Syed, isn’t his framing of the trade-off between helping someone worse off today and better off tomorrow too simplistic?  People down the line who get access to drugs after patents expire might be better off because more drugs have been produced under the current regime.  Amy Kapczynski wonders about whether the people who need drugs the most will ever get the drugs they need considering that incentives are skewed to produce drugs for diseases in wealthy countries but not so much in poorer countries.

Question 2: do you think there’s a right to healthcare? if so, what does it entail?   Talha Syed says that there isn’t much of a difference between saying there’s a right and saying societies should do certain things for people.  He doesn’t think rights add a lot.  Amy Kapczynski says there are lots of ways to think about rights.  There isn’t a problem if you think about a right as a bundle of certain policy tools.  Thana de Campos says it doesn’t matter whether we call it a right but rather whether it furthers human dignity.

Question 3: In biotechnology and gene patents, do you think the market will roll back patents without requiring state intervention? Christopher Mason says you don’t need patents with genes.  You can do genetic work better without patents; you only need it for selling things.

Question 4: Does a rights framework help us to encourage sharing knowledge and technology transfer from private actors when states might lack other tools for achieving this?  Amy Kapczynski says the language might be useful at the pragmatic level but not necessarily rights institutions.

Question 5: Other legal systems have different domestic normative tools for analyzing these problems; how do we navigate all these differences in the international sphere? They do have different tools, but often when these issues are actually treated the dispositive outcome factors end up being the same.

Question 6: In my view, rights actually do add something to this.  If we start with a distributive justice framework, many people are going to think about distributive justice through a resourcist paradigm, about what people have.  If you can move the discourse to focus on a broader paradigm of justice, such as the capabilities approach, you need to have an account of which capabilities are the relevant ones.  It seems to me that the most effective way to frame this debate is through the language of rights.  It is implausible to think of rights as absolute inviolabilities; instead we could think of them as “optimization requirements” (Robert Alexy) or “excluded reasons” (Richard Pildes, arguably Ronald Dworkin).  This, I think, is a more effective way to frame these health issues than merely a distributive justice paradigm, because it allows us to establish more concrete constraints on both the substantive limitations to health and also on the process through which these limitations are formulated.  Talha Syed says that rights can be useful in the abstract, but as they are employed often aren’t.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Friday, February 12 at 19:00h to 20:30h.

Back to A2K4: Access to Knowledge and Human Rights main page

New social media and processes of globalization have profoundly shaped the world of education in the last decade. Digital education involves more than moving existing educational practices into online spheres: it holds the potential to constitute a fundamentally new type of education. The role of this panel is to examine  the key issues around the construction process of this ‘new’ education.

Panelists included:

Neeru Paharia, Harvard Business School & Peer 2 Peer University

Shai Reshef, University of the People

Luis Villarroel, Corporación Innovarte

Esther Wojcicki, Creative Commons/Palo Alto High School

Moderator: Carolina Rossini, Berkman Center for Internet and Society (recent work: The State and Challenges of Open Educational Resources in Brazil)

Questions posed to the panelists:

Does the greater cost-effectiveness of online venues strengthen the argument to recognize a more universal human right to higher education? Alternatively, could the availability of free online resources become an undesirable substitute for public efforts to promote traditional education?

Is digital education more democratic than previous forms of education? How can we ensure that preexisting social inequities – of gender, race, class, and linguistic background – are not replicated or reinforced in ways that violate the right to equal educational opportunities?

What are roadblocks to digital education in areas such as telecommunication policies, broadband infrastructures and access, and accreditation. What are the new business models or institutional forms that can support the expansion of digital education? What is the necessary role of the state and of companies that may not self-consciously see themselves as providing digital education, although their tools and services may be essential to this end?

To what extent are copyright and market concentrations in software and Internet applications a barrier to the effective implementation of digital education? How significant are these barriers in comparison to other ones, such as minimum levels of technological access and literacy, linguistic barriers, cultural barriers, etc.?

Carolina Rossini opened the discussios about education…digital and open education as recognized by international human rights.

We are seeing a lot of countries enforcing human right framework to primary education.  But for higher education, it’s restricted to state capacity.  The issue, how can digital advances open capacity?

Carolina introduced the panelist, biographies available through the links above.

Esther Wojcicki began the talk, giving us the perceptive of the educator and a great overall view of the challenges of access to education tools (including OER).  Although the talk is US-centric, the overall vision applies international.

Although there are wonderful possibilities with OER, there are still many challenges that need to be overcome.  There is a huge lack of awareness of OER.  Students and educators need to be aware of it, before they are able to access it.  Accreditation is also a key issue.  Schools and regulators need to get past the common perception, to block the unknown.

Even private forces, such as eRate, add to the censorship.  So many states have no passed legislation to protect student’s freedom of speech.  Another problem is that people confuse the definition of “open” and “free.”  Commercial is not open.  Creative Commons are tackling a lot of these challenges.  Working on standardization and legal issues.

Ester Wojcicki Slides (ppt)

Luis Villarroel began by going over the mission of Innovarte, a foundation working mainly in Latin America.  Luis will give an overview of international exemptions to education copyrights, arguing that the fragmentation of different country laws are a roadblock to OER.  But there is hope, there are uniforming forces internationally.  Luis begins the discussion on Article 10 Berne.  The Article is fair open, highlighting fair practice and education.  But when looking at the divergences in scope of teaching exception in national laws in Latin America, we see a huge divergence of allowability (some countries allow for public performance, some mandate licenses, government discourse limitations, and even no exemptions at all).

The exception of “quotations” is expressly allowed in Berne, in fact, the only mandatory exception.  The standard is fair practice, and there is no limit on the type of work.  Luis argues this is a very broad exception.  But again, if you analyze each country individual, there are limitations to this broad exception (some allow only a very small part of a work, sometimes only a picture, dependent on the size of the work).  These limitations are imposed both by standards (e.g. as implanted by fair use) and laws.

TRIPs exacerbates the fragmentation of the copyright laws between the different nations.  Thus, even if a work is created lawfully in one country, when that work is transferred to another country with strong limitations, then it becomes illegal.

What is the opportunity?  Under WIPO, there is a proposal for mandatory exception to push the agenda forward.

Neeru Paharia begins the talk about P2PU, which she’s a founder of.  Starting off with the provocative question: What if everyone with an internet can get an university education?  Free and open.

The founders of P2PU have been steeped in the OER movement (creative common licenses, internet, getting content out there).  P2PU asked, is OER enough for an university?  And while there are OER resources out there, people need organization and objectives to frame their learning.  So what do universities give us?  And all these values, can volunteers using OER be enough to replicate?  P2PU founders think so.

P2PU has launched a pilot set of courses, beginning the iterative process of development.  Two hundred fifty people signed up.  The second set of class will begin soon with a even better sense of what the model will be.  P2PU is completely free and open, volunteer driven and governed, self-learners, hacker mentality (creativity and innovation).

Informal accreditation ideas (get employers to buy in, educational portfolios, certifications).  The goal of the project is to build a comprehensive curriculum equal to universities.

Neeru Paharia Slides (ppt)

Shai Reshef continued. Higher education is not what it should be.  One hundred million people will be qualified, but unable access higher education.  The need is deeply felt in poor and developing nations.  The barriers can be categorized into financial, capacity, geographic, and social restrictions.

University of the People (UoPeople) was created to be the first tuition-free university to address these problems.  The aims of University of the People are to raise social status, provide equal opportunity, improve their standard of living not just of individuals, but of communities and countries.

University of the People leverages open source, OER and technology platform, and the peer-to-peer learning model.  The two programs offered by University of the People are business administration and computer science, because these majors are in demand and socially neutral.

The message of University of the People is not just for universities, but governments.  That quality education can be provided en masse and at a sustainable cost.

Shai Reshef slides (ppt)

Question and Answer Session

Q: Funding?  And financial disclosure?

P2PU is operated many on volunteers.  UoPeople, in the future, will charge for $15-50 dollars classroom and $10-100 dollars exam fees depending on the country (economic index).  A critical mass of students can make these projects sustainable.  Both organizations are applying for 501(b)(3).

Q: Is there a concern about teaching quality?  And could it undermine the quality of teachers in the future?

Shai argues that not all teachers are great.  And your peers can teach you a lot…and would only need instructors periodically.  Shai believes that P2P learning model is the most efficient teaching model.  Carolina analogizes P2P learning to open source technology, arguing that there is the potential for such as much quality.  This discussion raises the valuable question which is how to break the common traditional idea that you need teachers for a quality education.

Q: What are the similarities and differences of p2p learning, OER, and p2p open source software?

Educators should be educated about creative commons licensing, to foster more OER resources.  The question is how to educate these teachers.  For p2p learning, there is the similar of community building.  In Paraguay, implementing One-Laptop-Per-Child, teachers are producing OER together without even using creative common licenses.

Q: How much higher education can we afford?  Could you also comment on the effect p2p learning can have on primary education?

Esther is working with Sesame Street on teaching students to read.  Also makes the observation that even in developing countries, poor people have cellphones.  Carolina says that there are primary education projects working with new digital media, such as OER in laptops to kids.  Also, this would involve the state more, and so what is the role of the state? There is an appendix (amendment?) to the Berne Convention that provides for reproduction and translation for culture, discuss.

The application of this to the digital and online context is unclear.  And again, applying the Berne Convention as uniformity is needed.

Q: The future seems like the future of education is modularity, where people create an education portfolio from multiple sources, and could be accredited by someone else.

Kaplan seems like it’s building a platform for aggregating e-learning resources.  Shai argues that the biggest barrier to this is accreditation.  And there’s a long way to go there.  For accreditation issues, why is this such a big issue?  Creative Commons is thinking about the accreditation issue as well.

Q: What about using the microfinance business model for education?  So not paying for education up front.

If UoPeople charges after graduation, that may create a lot of bureaucracy.

Q: Social norms and copyright issues.  The WIPO exemptions and framework is still created under the traditional, non-digital (collaborative, sharing learning environment).  Another way to put it, ask teachers about copyright structure instead of lawyers.

Esther: teachers think about fair use under the current copyright regime.  And they don’t quite understand the full implications of copyright laws.  OER came about under the assumption that there was a lot of open resources out there.  But perhaps this is a poor assumption.  The p2p learning model is actually creating OER as the course goes (class note, history).  Luis is arguing that we need to work under existing international framework/norms to meet the problems as quickly as possible (using WIPO and P2PU and UoPeople).

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Friday, February 12 at 21:00h to 21:30h.

Back to A2K4: Access to Knowledge and Human Rights main page

For these reasons, we can no longer protect civil liberties without paying attention to innovation policy and particularly to the individual freedoms to create, modify, distribute, and share advancements in information production and information technology. This freedom to innovate requires an open information infrastructure in which telecommunications policy, intellectual property laws, and technological architectures leave individuals free to build new things out of old, to remix, create, tinker, and repurpose.

Panelists included:

Edward Felten, Princeton University Center for Information Technology Policy

Ronaldo Lemos, Center for Technology & Society, FGV-Rio

Katherine Strandburg, New York University School of Law

Commentator: Nagla Rizk, Access to Knowledge for Development (A2K4D) Center at the American University in Cairo

Some of the questions to be pursued by this panel include:

What policy areas (e.g. spectrum policies, open access) are the critical topics of study to address the freedom to innovate? To what extent is a human rights framing for these issues helpful or desirable?

What are the technological and legal architectures that are necessary to give individuals the space and the opportunity to innovate? How do these structures rely on, enhance or inhibit the enjoyment of rights?  Whose rights are counted in this story?

Where will new content and information technologies come from and how we can empower as many different individuals as possible to maximize innovation? What is the role of civil and political liberties themselves in creating the conditions that facilitate innovation?

Introduction by Nagla Rizk: There is a blurring distinction between users and creators of knowledge. Meanwhile, there is a trend toward horizontally integrated, dynamic small firms, with an opposite trend toward large, vertically integrated players that rely on strong intellectual property protections.

Nagla points out that in developing countries, where market structures, competition law, and institutions are less well developed — and market dominance may be more of a problem — it could be important to make room for open source with supportive public policy.

Ed Felten: As a computer scientist, sees technology as an activity rather than as knowledge: A thing you do. Technologists engage with technology as humanists engage with texts. The freedom to tinker is important.

One key place where this has gone well is open source. Open source tools are a place where people can — as new technologists typically do — rip the lid off and play around with the technology. These settings also have sophisticated models of collaboration and governance.

Mobile phones provide a stark contrast. There’s a battle between open and closed models not only in the U.S. but around the world.

IP protection and innovation can be reconciled. It’s important to create a place where people can tinker, noncommercially, without running afoul of the legal tigers that stalk this space. Also, when we think about competition policy, it’s important to consider the often-invisible smallest parts of the system: small companies and even individuals who don’t think of themselves as companies. Making technology accessible will promote competition and let people in a broader range of cultural settings create things appropriate for the contexts they are in — things the usual suspects would not have created.

Next, Ronaldo Lemos, curator of the largest music festival in Brazil and a leading figure in Brazil’s free culture movement. He will discuss a law for the Internet. In Portugese, this is called a “marco civil” — a civil rights law for the Internet. The goal is to improve lawmaking in Brazil.

First effort was a simple wordpress interface to gather input about what the new marco civil should say. The Minister of Justice and members of Congress from the two leading political parties attended the launch for this project — reflecting support of both the federal government and the congress in Brazil.

The law will cover a long list of topics including:
1) Privacy
2) Freedom of Speech
3) Rights of Access
4) Safe Harbors
5)Net Neutrality
6) Open Government Data

In 2007, a new legal proposal in Brazil would have criminalized many aspects of Internet activity. That proposal was defeated, and the fight galvanized Brazilian civil society. There is now a live and ongoing discussion about what the new marco civil should contain. Associations (including the bar association, and representatives of broadcasters and newspapers) also participated, along with individuals.

To make the project manageable, the marco civil excludes three hot subjects: copyright, telecom policy, and personal data. These areas also already have a body of already-developed policy in Brazil.

Participation by Internet users could emerge as a new collective right or interest, recognized in law, in Brazil. Web link, in Portugese: http://culturadigital.br/marcocivil/.

Next, Katherine Strandburg. Over the last few years, she has focused on the patent law and asked how it should accommodate new ways of innovating, including peer production. She builds on the work of Eric von Hippel and others, who study the extent and importance of user innovation, which happen when individuals make or invent something because they themselves want to use it.

The copyright context has been further ahead on a lot of these issues, but changing manufacturing tools (that allow custom manufacturing) and other factors suggest that physical products and patent law may be catching up.

These paradigms of innovation may be particularly important in developing countries, where mass production will cater less well to local context.

Open source can help because it can offer local control of critical resources such as operating system software.

The ability to innovate promotes lots of values that we generally associate with human rights, such as self-realization.

When people innovative for their own use, the incentive story that justifies existing patent law is weakened. There is nothing like the copyright idea of “fair use,” in the patent system. Existing doctrine cannot recognize collective and incremental inventorship, making it difficult to deal with follow-on innovation. Innovation teams of users don’t want, can’t qualify for, or can’t afford a traditional patent.

Last, what to do about private ordering? Purchase of a patented good will exhaust the patent protection, but contracts of adhesion can impose continuing conditions on users, and effectively circumvent exhaustion doctrine.

Three key papers on these topics:

Users as Innovators: Implications for Patent Doctrine, 79 U. Colo. L. Rev. 467 (2008)

Evolving Innovation Paradigms and the Global Intellectual Property Regime, 41 Conn. L. Rev. 861 (2009)

Constructing Commons in the Cultural Environment, Cornell L. Rev. (forthcoming in special edition with commentary, 2010) (with Michael J. Madison, Brett M. Frischmann)

Discussion and Questions from the Audience:

Nagla asks Ed to expand on public policy of open source: should there be any difference between developing and developed countries? Ed says the agnosticism he suggested was endorsed for the developing world. There is a complex interplay between profit motives and open source. For example, many firms contribute resources to open source projects for strategic business reasons. Many of the most important open source projects are already international in scope. So the projects will not be threatened by national monopolist. As long as policy across the board does not obstruct the possibility of choosing open source, it will be natural for a lot of innovators to end up on the open source side of things, at least when they are getting started.

Katherine adds that it’s important to think also about what government agencies themselves will use. There, you may have a good reason to favor open source, which can give local control over public infrastructure.

Question: What about ownership of research? We need new innovation models and get away from the received view of counting patents as a measure of innovation.

Comment: But a great number of innovations are coming from clients to companies. It may turn out that a lot of the innovation we presently attribute to companies — and allow them to patent — are prior art because the client suggested the idea. We need “innovation traceability” that will allow us to know who actually added the value in the idea.

Katherine points out that tech transfer offices have on average not made money for thier universities, so some universities are starting to think about changing the posture they take toward their IP.

Ronaldo adds that in a developing country, you must change your perspective in order to see where the innovation is. Governments are enthusiastic about “innovation,” but are trying to follow the traditional model of Silicon Valley. Also, another key element in the innovation discussion is to improve the quality of patent descriptions. The patent descriptions for many drugs actually haven’t sufficed to allow a reader of the patent to reproduce the drug.

Nagla points out that innovation policy often comes from a maximalist, enforcement-oriented perspective in the West. Developing countries, on the other hand, need to focus on the innovation itself.

New question: When should you have to pay in order to innovate. Katherine answers by asking a questio of her own, which is, where can we expect innovation to happen without a need for incentives? Where do users already invent things in order to use the things themselves? On the other hand, we should also look at where there is market failure. Where are people not practicably able to pay for something of value, or where is there some other failure? These questions could inform a fair use right for patents. But in today’s culture, everyone assumes that any use of a patent will require licensing.

Ed interjects that the answer depends on which sector you are in. In some sectors, like web technologies, the best tools for building innovation are free. In other sectors the inputs are costly. Low prices for inputs to innovation will attract innovators. Generally, the cost of inputs to innovation have been declining, across the IP sector, in recent years.

Question: That works well for software, but what about biotechnology, where the resource needs are more intensive? How should policy respond to the differences among types of innovation?

Ronaldo says: Ethanol was one area where Brazil did not have patents, and now most people are glad it did not.

Ed adds that in biotechnology, the reality is closer to the textbook story, where heavy upfront investment is needed. In the infotech space, patents strike innovators as irrelevant or a nuisance. They don’t have clear extent that defines a landscape for the innovator to navigate.

Katherine adds that, while this is true, it may not suggest different satutory law for different industries. There are many historical cases in which information is shared among industry players, for mutual gain. This happened with steel mills, for example.

Final roundup questions: Rinaldo says his Center, in Brazil, has counseled those working on similar efforts in Mexico and other countries. In any case, Brazil’s success shows that there is an alternative to three strikes laws and other maximalist policies.

Katherine agrees with a question that it is key to distinguish among various kinds of commons and public domain arrangements. It’s an important area to study going forward.

Ed says it can be hard for people to see the benefits of openness, which can be less direct and harder to measure than the case for strong IP. The argument is more subtle than the argument for strong protection. This means it’s important to make the information available, particularly about the past successes of open approaches.

Katherine points out that the Universal Declaration of Human Rights enshrines rights for authors — rights that assume a traditional model of authorship. There may need to be a dialogue about updating some of those assumptions.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Saturday, February 13 at 14:30h to 16:00h.

Back to A2K4: Access to Knowledge and Human Rights main page

Article 27 of the Universal Declaration of Human Rights recognizes the right of everyone to take part in cultural life, and to share in the benefits of scientific progress. This “right to science and culture” has great relevance for access to knowledge issues, but is still in the early stages of development.

This panel will explore the multiple faces and possible dimensions of the right to science and culture, examine the challenges and tensions inherent in conceiving of these goals as human rights, and identify ways for human rights and A2K advocates to utilize international human rights norms and fora, as well as national rights frameworks, to support related goals.

Particular attention will be paid to the Committee on Economic, Social and Cultural  Rights’ recently elaborated General Comment on the right to take part in cultural  life, and the forthcoming process on the right to share in the benefits of scientific  and technological progress.

Questions posed for the panel:

What are the most important current developments surrounding the right to  science and culture? How do these relate to the discussions surrounding  human rights and intellectual property?

Should access to knowledge be understood as part of the right to science and  culture? What would be the opportunities and risks of defining the right in  this way? What conceptual problems would need to be solved?

What are the possible alternative futures for the right to science and culture, as interpreted and applied in international human rights law? What impact  could this evolving norm have on access to cultural and technological goods,  and control of indigenous knowledge?

Panelists included:

Yvonne Donders, Faculty of Law of the Universiteit van Amsterdam
Eve Gray & Andrew Rens, University of Cape Town
Lea Shaver, Information Society Project at Yale Law School
Jessica Wyndham, AAAS Science and Human Rights Program

Moderator: William New, Intellectual Property Watch

Yvonne Donders:

The rights to enjoy the benefits of scientific progress and to take part in cultural participation are included in the Article 27 of the Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), but they are still relatively unknown.  The human rights framework has a lot to offer enforcement of these rights.

The human rights framework can help define entitlements and obligations and provide accountability.  It is unclear what these rights mean.  What do “enjoy”, “participate”, and “cultural life” mean?  Who gets to decide what they mean?  What steps must states take to protect and enforce these rights?  These are socio-economic rights–less substantive than typical civil and political rights.  These rights are not to be evoked by individuals, but rather provide broad policy goals.  They are real human rights as important as political and civil rights.  They are needed to enjoy other rights.  All human rights are interdependent and interrelated.

The human rights framework provides for a system of limitations–restrictions to protect the rights of individuals and welfare to society. UNESCO played a significant role in the inclusion of the rights to enjoy the benefits of scientific progress and to take part in cultural participation in the Universal Declaration and ICESCR in order to make culture and science more available to the masses.

What do the rights to enjoy the benefits of scientific progress and to take part in cultural participation imply?  There is no clarity on normative content of these rights or the obligations states have.  States have not paid much attention to Article 15 of the ICESCR.  More work is needed beyond the composition of the Venice Statement–particularly outreach.  There is a need to develop indicators to measure human rights.

The human rights framework offers support for freedoms and participation but doesn’t offer solutions to practical problems.  There is a need to explore the content and scope of these rights and to bring what is learned to the local level, where human rights protection starts.  Lawyers and judges should be informed on how to apply these rights.  Not enough of them know what to do with them or have even heard of them.

Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications

Jessica Wyndham:

Connections: Concepts, Constituencies and Coherence [powerpoint]

The American Association for the Advancement of Science (AAAS) has implemented a project focused getting input from the scientific community in the illumination of the right to enjoy the benefits of scientific progress, as articulated in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  The AAAS Science and Human Rights Coalition recognizes the value for science and scientists in addressing human rights issues, and the scientific community is becoming better informed about human rights.

Choices and opportunities to advance the Article 15 right to science exist all along the research and development continuum.  It is important to pay attention to the starting point of the research and development continuum in thinking about affecting policy in this area.  Important questions with regards to the Article 15 right to science arise at the point of funding and initial research for which the fundamental principles of the Venice Statement provide answers.  These principles, including equal access on a non-discriminatory basis and a focus on marginalized and vulnerable groups, can address questions about priorities in funding and R&D.

The issues involved with the Article 15 right to science concern diverse and largely unengaged constituencies.  Cooperation across interest groups is needed to increase the impact of efforts to advance this right.

Lea Shaver:

Science is a means to an end, and that end is technology.  In thinking about rights to share in the benefits of scientific progress, we need to attend to the issue of access to technology.  Technological advance and diffusion are often thought of as inevitable historical process, but this is an inadequate account of how technological progress and diffusion actually occur.

For example, the electric lighting first became commercially viable in the 1870s and then became accessible to the rich and to businesses, but electricity was still inaccessible to the masses at the dawn of the Great Depression in the US.  Other countries had achieved diffusion by this time–(1) through the establishment of state-owned utilities producing electricity and providing it to the population at large, as well as (2) through private monopolies established and regulated by the government and paid for by the companies that held them.  Meanwhile, the US had a patchwork of incompatible standards and markets lacking price competition.  Diminished competition resulted in high costs and high prices for both electric service and light bulbs.

Edison filed a patent for the light bulb in 1879, and the patent was challenged.  Edison told the public that it would be at legal risk buying from his competitors and began to neutralize and absorb his competitors through litigation and buy-outs.  By the 1930s, a social movement demanding access to electricity picked up steam, leading to greater intervention and regulation by the government and the establishment of locally owned utilities operating under common standards.  Business interests were harmed in the short-run, but firms adjusted their business models and adapted as electric lighting become more diffuse.

State choices shape access to science and technology.  The state chooses how to assign rights among inventors, how to mediate competition, whether intellectual property can be used to achieve consolidation, the regulatory role played by government, and how government should invest in technology or participate as a provider.

More details in her paper: The Right to Science and Culture

Eve Gray and Andrew Rens:

We should be concerned about the power play that occurs around the question of what constitutes science and whose voices are heard in science.  We are trapped in a neocolonial view of knowledge.  Scientific research occurs and is published primarily in North America and Europe, with little access for and participation from Africa.

From a South African perspective, the role played by Bantu education as well as the World Bank and IMF’s view of education in South Africa has had much to do with this.  Black South Africans were not traditionally viewed as entitled to access to science and math.  Bantu education focused on teaching blacks to become laborers, while the World Bank and IMF took the view that only primary education would be needed for economic growth.  This situation illustrates how public agency can establish and reinforce the denial of important rights.  The IMF now takes the view that higher education is needed for economic growth.  Public policy to encourage higher education has focused on access and admission to institutions of higher learning without addressing factors that prevent students from succeeding.

Global competitiveness of science programs continues to be judged on outputs, which solely concern publication in journals and patents.  The academic publishing world’s focus on impact factors tends to obstruct the publication of African research.  The narrow window of what constitutes output has the effect of disadvantaging precisely those countries with the greatest interest in access to science as a public good.

Hierarchies of research that place a premium on basic theoretical research also work to disadvantage developing countries whose expertise lies in applied research for the public good.  Applied research is a great value that developing countries have to share.

South African rights jurisprudence reflects the view that the right to science is part of first generation rights included in the right to free expression.  Rights to academic freedom and freedom of scientific research include both imparting and receiving dimensions that are viewed as inherent to freedom of speech. The South African Constitution is viewed as a transformative document intended to drive social change.   The Certification of the Constitution of the Republic of South Africa case was a challenge to the certification of the Constitution over the question of whether intellectual property was a human right, and the Court found that IP is not a universal human right.  Because IP is by nature an infringement of the right to benefit from scientific progress, it must justify itself.

What will it take for A2K to engage in the enforcement of the right to science?  There is a need for theoretical depth and the investment of time to achieve it.  Until then, A2K will have no success in contested arenas, like the courts.

Audience Questions and Answers

Q:  Eve, can you identify and discuss examples of groups in Africa that have achieved scientific advances with low resources?  If not, what can be done to encourage such achievement?

Eve: Yes.  Mobile technology provides one example.  Africans can offer lessons in how to mobilize mobile technology for social networking and interlinking mobile technology with the Internet.  The innovation potential is there.  The University of Cape Town is also a leader in collaborative development.

Andrew: Others are trying to push forward, and we are trying to catch up.  There is also a level of exploitation by people who should be helping innovators in Africa, like parading success stories around as examples of progress that is being made.

Q:  What role can private actors play in positively affecting the relationship between scientific knowledge and human rights?

Lea:  My focus has been on the choices state make, because they can be the easiest to get at.

Yvonne:  States have obligations to protect and can be responsible for the behavior of private actors in protecting other private actors.  We must pay attention to power structures, particularly in developing countries.  A developing country may be so dependent on a multinational company that it would be hesitant to adopt law that may hurt that company.  There are some possibilities for holding companies accountable, but we must keep power structures in mind.

Jessica:  The AAAS Science and Human Rights Coalition is examining how human rights principles are reflected in codes of ethics.  Scientists should be obligated to comply with human rights principles.

Andrew:  What private actors can do is often dependent on the question of what the state can do.  Patients and research subjects could also insert power as a check on the behavior of private actors.

Q:  There is a need for an open society-science dialogue at the starting point of research.  Most scientific decisions are made for benefit of shareholders.  There is great need for public interest voices in policy making.  Science should be politicized.

Lea:  How socio-economic and cultural rights have been neglected presents both challenges and opportunities for A2K.

Jessica:  US has signed but has not ratified the ICESCR.  We need to identify barriers and positive exemplars of how the Article 15 right to science is being implemented in order to encourage public participation.

Eve:  The publishing system is controlled by corporate interests.  We need to grow role of public intellectual and generate interest in applied research.

Yvonne:  There is the mantra of socio-economic rights being vague and these rights should be made more clear, but the right to privacy is vague too.  You can make these vague rights to science judiciable by focusing on policy, which is not much different from what is often done with civil and political rights.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Saturday, February 13 at 16:30h to 18:00h.

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As our contemporary information society continues to take hold on the African continent, there is a pressing need to recognize and formalize an “African information ethics”, that is, understanding and applying principles of information ethics (access to knowledge, intellectual property, information literacy, intellectual freedom, privacy) within the unique context of the African information and knowledge society.

This breakout workshop will explore the challenges and opportunities for the establishment of an African information ethics, discussing issues ranging from the incorporation of African philosophy into Western ethical frameworks, the development of information ethics curricula in African universities, and strategies for focusing attention on how the dilemmas triggered by the growing information and knowledge society within Africa impact the continent’s economic, social, and political development.

Panelists included:

Johannes Britz, School of Information Studies, UW-Milwaukee
Rafael Capurro, International Center for Information Ethics
Dennis Ocholla, University of Zululand
Moderator: Michael Zimmer, School of Information Studies, UW-Milwaukee

Michael Zimmer starts off by introducing the panelists. He is a former ISP fellow and explains that his background is in ethics and technology, focusing on privacy and several other areas that intersect with a2k.

He explains that the goal of the workshop is exploring how to integrate a2k and information ethics within the African context. Information ethics is a broad term that encompasses information privacy, access to information, and many other principles, and there are specific issues and challenges involved with applying these principles to Africa.

Unfortunately, Steven Mutula was not able to join the panel because of funding and access issues — these issues are part of the challenges facing those who wish to examine information ethics in the African contexts.

Rafael Capurro explains that he is “on his way to becoming an African, but it takes time.” His introduction is based on explaining global information ethics in general. His current research is based on an article that will be published in Ethical Space. The work started with how to get these ethical principles into some type of declaration, based on UNESCO work that began about 10 years ago. Since 2006-7, after WSIS, UNESCO began to promote the idea of a universal ethics declaration for the information society. A variety of regional meetings have been organized, and Capurro’s organization planned the first African regional meeting in 2007, financed by the South African government. This meeting led to the Botswana Tshwane Declaration on Information Ethics in Africa.

This meeting followed a regional meeting in the Dominican Republic in 2006, which also led to a declaration of principles. A separate meeting in Hanoi, Vietnam, in 2008 also produced a declaration, as did a meeting in Strassburg, in Europe.

The goal, after these declarations have been produced, was to fuse them into a global declaration on information ethics. He points out that if you compare the separate declarations, there are similarities with principles enunciated in the Universal Declaration of Human Rights. However, a deeper analysis reveals different cultural assumptions and the importance of context.

One issue is the importance of privacy. Capurro points out that the Western concept of privacy is completely different than in many Eastern countries. Likewise, behind common technologies, there are often cultural or conceptual differences. For example, the idea of indigenous knowledge, access, multilingualism, etc., may be  much more important in South American countries than in, for example, Spain. Likewise, the value of human autonomy is more pronounced in the Strassburg Declaration, while the Hanoi Declaration mentions “deviant behavior,” a concept that was not developed in other declarations.

He separates the “declaration” from the legal discourse that surrounds it. The discourse is the continuous critique and criticism of the concepts — thus, “ethics” in this context is not a synonym for morality, because that would not allow us to differentiate between the object and the reflections on the object. To show an abstract declaration is not enough, because everyone will interpret it differently. What is needed is an in-depth analysis of the concepts, for deeper reflection and discussion. Currently, his organization is working on setting up a research network in Africa and in other regions for the purpose of creating a discourse on information ethics.

Britz began teaching information ethics in South Africa in 1990. He points out that the field of “information ethics” is very new — first used in 1983. Among his goals is to establish a research community on information ethics in Africa. Things are evolving rapidly in the field, and based on these experiences, he poses a number of problems and challenges:

1. The Palin Problem — she referred to Africa as a country. Africa is so diverse, and it is very difficult to speak of a “unified information ethics” that applies to the whole continent.

2. The Josiah Problem — It’s not who you are, it’s where you’re from. If you are African, and particularly black African, you are at a disadvantage. It is more difficult to travel, given immigration requirements in most non-African countries. It can be difficult for African academics to even get to other places to talk about this idea of information ethics.

3. Brain Drain and Brain Gain — Africans who get Ph.D.s abroad tend not to return. The diaspora is quite broad, and it is a challenge to effectively harness its power. Related to this diaspora is the second challenge: pay-as-you-go. Travel within Africa can be extremely expensive, even when the distances are not great. It is extremely expensive to arrange a conference or other gathering in many African countries. The economic dynamics make African research networks very dependent on sponsorships.

4. How to reflect on African information ethics, in general? Britz believes that religion will play a role. There is a wide variety of religious traditions and philosophical reflects. If you have a country with strong religious traditions, how do you reflect on information ethics problems that may challenge certain aspects of these traditions? It is important not to use purely European-based philosophers to reflect on these ethical issues.

5. The Writing Is on the Wall — There is not a lot published on this topic (African information ethics) — a few years ago, only 11 publications existed. Finding and disseminating these publications is a challenge.

6. Privacy, access, property rights, asymmetric information issues all exist, but it is a different context. In the US it is a problem of plenty; in Africa, it is a problem of poverty. This is reflected in the different understandings of similar problems, such as privacy. For example, in the indigenous world in Africa, there is very little discussion of intellectual property rights. Legislation may be transferred wholesale without adapting it to the unique problems in each country.

7. Electricity — part of the challenge inherent in these question is how to implement connectivity without electricity. But change is coming, and Britz asks an important question: “Do we move because we see the light, or do we move because we feel the heat — is the light the end of the tunnel, or an oncoming train?” It has to do with anticipating change. Africa will soon be swamped with new technology, but it is important to reflect properly on the ethical problems that may accompany these changes.

Dennis Ocholla begins with a story that emphasizes the speed with which things are changing in many places in Africa. He explains that his work has focused on unifying theories and work on information ethics in the African context. He conducted a study on the teaching of ethics in South African and certain other African universities. The study is available online and will soon be published in a form adapted to the US, in order to help the voices it represents reach a US audience.

Like Capurro, he highlights the difference between ethics and morals in this context. Approaches to issues including rights for women, civil rights, and general theories regarding rights and duties, vary greatly. He points out that the issues that are relevant to different groups may be distinct, based on their economic status or background. These issues all present challenges for the teaching of information ethics in Africa. His university study thus focused on case studies from universities with associated libraries in about 12 countries in Africa, to which he added his own knowledge gained through a number of years of direct teaching experience.

Some of the questions posed: Who is teaching information ethics? Why — what are the issues? When? Where is information ethics being taught? How is it being taught? To whom is information ethics being taught? It emerged that information ethics is often taught by people with little to no background in the subject — by people who wish to teach but alight on the subject by chance, without a deep knowledge of the topic.

What do they teach? There was a lot of overlap regarding what was taught in countries and universities across the continent. Other questions were the format of the course — semester, year, etc. Normally, the method used to teach is lectures, although the audience varied from first-year university to much more senior students.

From this initial work, the idea is to bring people back together to further explore the issue of teaching information ethics in African universities.

Discussion and Audience Questions and Answers:

Given that this work is aimed at developing not just a descriptive but a normative framework, what is the overall goal of the academic exercise of creating a normative framework? How does this work have an impact on policy and people’s lives?

Britz: Some aspects of this are descriptive — we do want to understand what is going on. Normatively, we also want to build this new field. However, there are practical effects as well. For example, the e-government and other workshops allowed these challenges to be specifically discussed an applied. One of the main topics of the upcoming Information Society summit in South Africa will be to discuss information ethics.

Capurro: Academic endeavor is often indirectly related to practice. Similarly, in Europe and many countries, there are well-established research groups on information ethics or related topics. They publish papers, and do research at both normative and descriptive level, but may not directly affect what happens in Parliament. Other organizations may be dealing with similar problems but in a political context rather than an academic one. In all cases, translating philosophical research into work that is relevant to a specific political context may be indirect, and while academics can advise, politicians may not have time to take all the advice into account. So some committees simply give policy advice, leading back to the necessity of educating leaders.

Similarly, context matters. The discussions of privacy in Germany and Japan are very different today, in large part because of the German experiences with privacy invasions during WWII. The approach to many topics across countries is similarly varied. It is for this reason that it is so important to have a framework that allows you to understand and approach similar problems in different social, economic, historical, and cultural contexts. There is no singular “ethics.”

However, he points out that even the word “ethics” is Greek, and that behind the word are 2500 years of Western thinking. It is a problem that hasn’t been solved.

If the focus is developing an African ethics based on African values, how do you allow for the existence of very different standards of ethics and standards among African countries? How do you build a common set of principles?

Britz: When they planned an African summit in South Africa, they recognized that they had to invite everyone in Africa. The highest cost of the conference was translators — this symbolizes the very different cultures, contexts, etc. in Africa. He refers back to the Palin Problem. The word Ubuntu in South Africa is not the same as the way it is used in other countries in Africa.

Ocholla: What exactly are the factors that make an African information ethics distinct? The distinction arises from culture, religion, language, colonization, and many other factors. Part of the work must be to demystify these differences.

Ubuntu is systems theory: part is a part of the whole, and the whole cannot function without the parts. This reflects differing values placed on individualism vs. communalism in different countries.

To a large extent, international norms dovetail with what worked in the US and Europe. Thus, political and civil rights are seen as more important — human dignity and autonomy are fundamental, while economic, social and cultural rights do not have the same clout. In what ways do you think that African information ethics can inform and support recognition and policy around economic, social, and cultural rights? Finally, could international consensus be a threat to the recognition of these differing policies?

Britz: The right of access to information is very strong in South Africa, but the evolving digital context also means that the nature of the right has changed. It has become an economic and social right, and needs to be incorporated into the right to participate in social and economic activities. Similarly, the right to indigenous knowledge is a collective right — it was blocked in Parliament because the communal, oral nature of the right was not compatible with individual nature of IP rights in other parts of the world.

Capurro: There is a relation between the ethical, legal, and scientific discourse. Ethicists are problematizing, clarifying, and suggesting possibilities — this is an important framework for the policy discussions, even where the moral responsibility for the decision rests with Parliament or the people. It is also important to consider the difference between “regional” and “national” frameworks and views in the African context.

What does information mean here? This is a departure from the understanding of African identities originally — there has been a disintegration of the post-colonial, nation-based conception of identity. How will this new focus on creating standards based on access to and interaction with information interact with the re-emergence of cultural and ethnic identities? Is the idea of creating common principles too homogenizing, and does it go too far toward suppressing differences not based on nationality?

Ocholla: The concept of place is important — your perception of ethics will be very different based on whether you come from a rural or urban context, as well as your language and many other factors. Islamic information ethics will be different from Christian information ethics. Part of what we need to demystify is what ties it all together.

Britz: There is a movement toward a political unity of Africa (e.g. changing the name of the African Union to United States of Africa). But is the African information ethics unique to African problems? We are exploring these notions because no one else has — what can African philosophers contribute to the debate?

Capurro: There is no such things as German physics, American physics. But ethics is different from the natural sciences — it is part of philosophy and connected to different cultural, historical, and social contexts; how does that make it different? How do we tackle these differences? When you cross from science to society, it is a different arena. How do we address globality without losing diversity?

Do you have any thoughts about how to incentivize more people to go into the field of information ethics in Africa, when economic and other pressures push them into other fields? Relatedly, how do we share the results of this research, when many places may lack the basic (electrical or other) capacity? Are there any non-electricity-based supports for access to this research?

Ocholla: The issue is to use appropriate technology for Africa. New technologies may arise, and there may be new ways to access information and other services. The issue on the ground is to popularize information ethics. We want to explore the effects of these technological, e-government, and other changes in Africa.

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Saturday, February 13 at 19:00h to 20:30h.

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