Access to Knowledge Research Series

SOUTH AFRICA

Access to Knowledge in South Africa: Part of the A2K Research Series
Edited by Andrew Rens & Rebecca Kahn
Access to knowledge (A2K) is a self-identifying movement, encompassing a host of initiatives that share the broad goal of resisting legal and policy developments which potentially inhibit the growth of knowledge and equitable access to knowledge resources. The A2K movement arose in the aftermath of the World Trade Organization’s Agreement on Trade-Related aspects of Intellectual Propert Rights (TRIPS). In South Africa there have been a wide variety of A2K initiatives, emerging not only as a result of these international events, but also from deep roots in South Africa’s past. This volume of research focuses on the dimension of copyright and publishing, highlighting topics including: access to research and textbooks, open source software and technological standards, and case studies of successful responses in areas such as open educational resources.

ETHIOPIA

Exceptions and Limitations under the Ethiopian Copyright Regime: An Assessment of the Impact on Expansion of Education
By Mandefro Eshete & Mola Mengistu

The discussion in the article consists of three parts. The first part deals with the historical development of copyright regime and the fundamental features of copyright protections provided under the past copyright system of Ethiopia. The second part, which is devoted for the assessment of the current copyright regime, mainly deals with exceptions and limitations as enshrined under the provisions of the Ethiopian copyright law in light of its adequacy to strike the correct balance in protecting the rights of the copyright owner and providing access to knowledge to develop higher education. The third part deals with the conclusion of the article setting out important findings including the gaps and weaknesses in the law, and the present status of universities in terms of access to materials, and the recommendations for improvement to benefit universities from exceptions and limitations.

Information and Communications Technology in Ethiopia: Challenges and Prospects from an A2K Perspective
By Aman Assefa
The objective of the present study is to assess the policy and legal frameworks in Ethiopia pertaining to ICTs from the perspective of how much they are suited to assure a fair and equitable dissemination of knowledge. Specifically, this paper aims at examining the major players in the government structure which undertake tasks related to ICTs as well as the policies that guide their actions. The specific questions that will be asked in this regard are: what government agencies are entrusted with this task? What legal instruments are place that established them? What powers have they been given that helps them in realizing their tasks and what have they done so far and also what do they have in the pipeline? But, to do so, it will be imperative to dwell upon some background issues that will hopefully shed light to the area that this paper deals with. First of all, it will be important to give a brief account of what the access to knowledge perspective is all about, which is what is treated in the subsequent section. Some hard facts about the status of ICT penetration in Africa in general and in Ethiopia in particular are also in order. In relation to the latter, some data relating to average teledensity, internet subscription rates, and the rate of internet use is provided. Attempt will also be made, in particular when we come to the section dealing with Ethiopia, as to the level of private businesses’ involvement in ICT related activities and also the level of ICT related human resource capacity of the nation.
Ethiopia’s Experience in Access to Genetic Resources and Benefit Sharing: The Hope for Economic Benefits and the Risks for Research and Innovation
By Fikremarkos Merso and Imeru Tamrat
The basic objective of this study is to examine whether or not the current ABS law of Ethiopia would facilitate more open access to genetic resources for research and innovation and realize the intended benefits, both monetary and non-monetary, in order to alleviate the dire poverty of its vast population engaged in subsistence farming and for the overall economic development and benefit of the country. Within the ambit of this general objective, the study seeks to address the following specific questions: How are decisions made on access requests? What are the roles of the communities and the state in the ABS business? How to use access to GRs for poverty alleviation and economic development in the country? What are the likely benefits and costs of the regulatory regime? What lessons are to be learned from the ABS experience of the country?

ARGENTINA

Access to Medicines in Argentina: Implementing and Defending TRIPS Flexibilities
By Carlos Correa

The Argentine case provides a good illustration of the hurdles faced by a developing country in the area of public health, under the new legal context created by the TRIPS Agreement. Preserving the remaining policy space is crucial to ensure access to drugs, especially after the substantial increase in poverty levels that took place in Argentina after the economic crisis of 2001. This chapter examines, first, the process of adoption of Argentine legislation on patents and test data protection and the influence of the foreign pharmaceutical industry in shaping it. Second, it presents the main features of the new legal regime put in place and its impact on patenting trends. Third, the chapter discusses the attempts of the foreign pharmaceutical industry to enhance intellectual property protection for pharmaceuticals through judicial litigation. Finally, the main TRIPS flexibilities of relevance to access to drugs  incorporated by the Argentine legislation are analyzed in some detail.

Free and Open Source Software in Argentina
By Pablo Wegbrait

In order to address the topic of this paper, I will first make a general introduction about FOSS (in particular, the difference between “free” and “open source” software). Next, I will analyze provisions included in the Argentine Constitution and in human rights instruments ratified by Argentina, which may be helpful for the furtherance of FOSS. I will then turn to the Argentine legal regime applicable to software in general (which mainly addresses proprietary software, but does not pose any explicit obstacles on FOSS), and I will also mention FOSS legislation in Argentina indicating that, even though the national Congress has not adopted specific FOSS legislation so far, some Argentine provinces have adopted laws and administrative resolutions, which may serve as a background for future federal legislation. I shall also refer to civil law provisions that may, despite the absence of FOSS-specific legislation, enable the enforcement of FOSS viral licenses (an element without which the growth of the FOSS movement would be seriously hampered). Finally, I will refer to what I call a “buoyant third sector” – the civil society groups which are behind much of the use of FOSS in Argentina today. In my conclusions, I reflect on the obstacles that FOSS legislation may encounter, particularly if the Argentine Federal Government adopts an official FOSS procurement policy.

Industria Farmaceutica y Biotecnologia y Acceso al Conocimiento: Un Desafio para Argentina
By Alberto Diaz & Dario Codner

Nuestro análisis apunta a orientar el desarrollo de un sector dinámico de biotecnología, como el de salud humana, a través de la creación de nuevas empresas innovadoras que pasen a formar parte de un tejido industrial moderno y que nuestra sociedad pueda gozar de los beneficios de la innovación. Así en la primera parte se revisa el contexto histórico y político de Argentina en el sector de científico y tecnológico, especialmente en biomedicina e industria farmacéutica. En la segunda parte hacemos un análisis de diferentes casos de generación y uso de conocimiento por instituciones públicas y privadas, para finalmente en las conclusiones debatir los temas que venimos exponiendo dentro de una mirada de facilitar el acceso al conocimiento para generar empresas biotecnológicas nacionales creativas relacionadas a su medio y sociedad.

INDIA

Access to Medicines in India: A Review of Recent Concerns
By Chan Park & Arjun Jayadev
India has long been a central front in the struggle for access to affordable medicines. Because of its dynamic generic pharmaceutical industry, it has become what Médecins Sans Frontières has called the “Pharmacy of the Developing World” (MSF 2007). As a result, it has also been a key battleground on some of the most contentious issues relating to whether, and to what extent, countries retain flexibilities under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property (the TRIPS Agreement) to ensure that patent protection does not come at the cost of access to safe, effective and affordable essential medicines. This chapter reviews some of the key developments in India, four years on, since the entry into force of the Patents (Amendment) Act of 2005, which introduced product patent protection for pharmaceuticals for the first time since 1972. Although there have been some notable successes for the access to medicines movement, many challenges remain, and the future of India’s continuing status as the developing world’s pharmacy remains unclear. This paper examines some of the key challenges and opportunities that lie ahead for India.
Regulating Access to Knowledge: Traditional Knowledge Policy in India
By Sudhir Krishnaswamy
A key proposition of the access to knowledge movement is to promote the dissemination of knowledge and culture without legal restrictions and liberated from the structural iniquities of knowledge markets. There are two types of arguments which lend support to this proposition: philosophical arguments about the requirements of distributive justice and property and aesthetic and epistemological arguments about the nature of creativity in knowledge and culture. Movements to protect and preserve traditional knowledge are often at odds with this central proposition of the A2K movement as they argue for restrictions on transfer and use of traditional knowledge and culture. Critics argue that the ‘public domain’ and ‘access to knowledge’ are categories that pay too little attention to the cultural and ethical settings in which traditional knowledge is created, preserved and regenerated as well as the political economy of knowledge transfers. These arguments may be described as the ‘culture’ and the ‘politics’ argument respectively. If these arguments are right, then A2K has no useful contribution to make in the domain of traditional knowledge policy in India. This paper argues that a critical review of the evolution and practice of traditional knowledge law and policy in India reveals that the tension between Access to Knowledge and the protection of traditional knowledge is neither necessary nor empirically supported.
Public Libraries and Access to Knowledge (A2k): A History of Open Access (OA) and the Internet in India in the 19th and 20th Century
By Prashant Iyengar
This paper examines the role that public libraries in India have played in the expansion of access to knowledge. Beginning with an account of the development of the library movement in India over the past two centuries, the paper discusses new initiatives including Digital Libraries and electronic repositories of theses and dissertations (ETDs) are being experimented with in order to increase the range of materials available to the public. The paper also looks at the impact of changing readership patterns and the availability of cheap printed materials, including pirated materials and the impact the latter have on access to knowledge.
Piracy, Creativity and Infrastructure: Rethinking Access to Culture
By Lawrence Liang
This paper raises a series of questions on the relationship between piracy, infrastructure and access to culture. Piracy has always posed a representational problem within contemporary discourses on law, public good and creativity. Piracy seems to allegorize an impure transgression, tainted by commerce and an inability to produce a discourse on itself. Pirate production of commodities and media objects fits neither a narrative of resistance nor normative critique, nor does piracy seem to fit received models of creativity or innovation. Piracy produces a series of anxieties: from states, transnational capital, and media industries and even within some liberal proponents of the public domain. The paper reframes the problem of the pirate through an examination of the content/ infrastructure binary, and questions existing assumptions about creativity, subjectivity and transformation, commodification and social life.
CHINA

Genetic Resources and Traditional Knowledge Protection in China
By Guobin Cui
The study is divided into four parts. 1) An assessment of the significance of “biopiracy” cases involving genetic resources and traditional knowledge found in China. Since the source of genetic resources/traditional knowledge is usually not disclosed in patent applications, attempting to uncover unknown cases of “biopiracy” raises obvious difficulties. The focus here is on biopiracy cases available from public media. 2) An assessment of the significance of Chinese genetic resources/traditional knowledge in the research activities of pharmaceutical, cosmetic and biotechnology companies, both in China and abroad. 3) A brief review of China’s patent and other laws as they relate to questions of prior informed consent and benefit sharing. 4) A discussion of the main knowledge gaps that exist in the areas outlined above and suggestions for research projections – including data collection exercises – that would help to close those gaps. The study concludes by outlining the main challenges that China has to face, and the author’s views on the legislative models and negotiating strategies that China might choose.
The Influence of Intellectual Property Rights on Chinese Education
By Guo He
Intellectual property rights can serve as a mechanism to encourage intellectual production. The accompanying controls on reproduction rights, however, can also restrict the freedom to disseminate knowledge. This can be contrary to the mission of education, the essence of which is precisely the dissemination of knowledge. This essay explores the impacts, both positive and negative, of intellectual property protection on the availability of educational resources in China. Particular attention is paid to the role of exceptions and limitations to copyright, that may be able to alleviate the negative impact while preserving the positive. The use of Creative Commons licenses is also discussed.
The Myth of Collective Authorship in Folklore Works
By Guobin Cui
The question of copyright protection for folklore works is a contentious issue. Fueled by cultural nationalism and trade utilitarianism in international politics, China and other developing countries seek to exploit the economic value of these works. Traditional communities in developing countries are pushing for a sui generis protection system. The distinction between folklore works and works of individual artists, however, has no legal significance. This author proposes to abolish the concept of collective authorship, and treat folklore works as ordinary works created by individuals. While the general form of folklore may be in the public domain, its specific expressions should be credited to individual authors. A sui generis system, therefore, is unnecessary and unwise.
EGYPT

Access to Knowledge in Egypt: New Research on Intellectual Property, Innovation and Development
Edited by Nagla Rizk and Lea Shaver
Forthcoming from Bloomsbury Academic, 2009

The conventional wisdom in Egypt examines the issue of intellectual property solely as a question of policing and enforcement. The high levels of protection indicated by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights are unquestioningly assumed to be desirable. Policy debates—and all too often academic ones as well—focus only on the questions of how to more efficiently tighten IP protection and crack down on “piracy.” Yet a more critical examination is urgently needed, whereby IP law, policy, and practice are viewed from a development perspective, rather than from an enforcement perspective.

This volume takes on this endeavour. It offers the first examination of IP issues in Egypt adopting a multidisciplinary bottom-up approach that aims at maximizing access and contribution to knowledge, and in turn, promoting development. Bringing rigorous empirical research to bear on unquestioned ideologies, the collaborating authors question the conventional wisdom that more IP protection is necessarily better for innovation and development.

Contributors: Ahmed Abdel Latif, Hossam Bahgat, Jack Balkin, Sherif El-Kassas, Sherif Kamel, Nagla Rizk, Lea Shaver and Rebecca Wright.

BRAZIL

Access to Knowledge in Brazil: New Research on Intellectual Property, Innovation and Development
Edited by Lea Shaver
Forthcoming from Bloomsbury Academic, 2009

Access to knowledge is a demand for democratic participation, for global inclusion and for economic justice. It is a reaction to the excessively restrictive international IP regime put in place over the last two decades, which seeks to reassert the public interest in a more balanced information policy. With sponsorship from the Ford Foundation, the Information Society Project has embarked on a new series of access to knowledge research, in partnership with colleagues in Brazil, China, Egypt, Ethiopia, India, Russia and South Africa.

The first book in this series, Access to Knowledge in Brazil, focuses on current issues in intellectual property, innovation and development policy from a Brazilian perspective. Each chapter is authored by scholars from the Fundação Getulio Vargas law schools in São Paolo and Rio de Janeiro and examines a policy area that significantly impacts access to knowledge in the country. These include: exceptions and limitations to copyright, free software and open business models, patent reform and access to medicines, and open innovation in the biotechnology sector.

Contributors: Jack Balkin, Lea Shaver, Pedro Nicoletti Mizukami, Ronaldo Lemos, Brunos Magrani, Carlos Affonso Pereira de Souza, Alessandro Octaviani, Monica Steffen Guise Rosina, Daniel Wang, Gabriela Costa Chaves, José Antonio Batista de Moura Ziebarth, Karina Grou, Renata Reis, Thana Campos.