Yale ISP Executive Director Dr. Laura DeNardis is presenting this weekend at the Third International Workshop on Global Internet Governance at McGill University in Montreal (QC) Canada.  The workshop is being organized by the Global Internet Governance Academic Network (GigaNet), a scholarly community founded in spring of 2006 in conjunction with the United Nations Internet Governance Forum to:

*support the establishment of a global network of scholars specializing in Internet Governance issues;

*promote the development of Internet governance as a recognized, interdisciplinary field of study;

*advance theoretical and applied research on Internet governance, broadly defined, and;

*facilitate informed dialogue on policy issues and related matters between scholars and Internet governance stakeholders (governments, international organizations, the private sector, and civil society).

DeNardis, a member of GigaNet since its inception, will present on the opening panel about “What is Internet Governance research and what do different academic disciplines contribute to it?”  DeNardis will discuss the study of Internet governance from the methodological and theoretical perspectives of the field of Science and Technology Studies (STS).

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