access to knowledge

in the age of intellectual property

edited by
Gaëlle Krikorian and Amy Kapczynski

Z O N E B O O K S • N E W Y O R K

2010
The publisher wishes to acknowledge the generous support
of the Open Society Institute.

© 2010 Amy Kapczynski, Gaëlle Krikorian, and Zone Books

zone books
1226 Prospect Avenue
Brooklyn, NY 11218

This work is published subject to a Creative Commons by-nc-nd

license, with the exception that the term “Adaptations” in
Paragraph 1(a) of such license shall be deemed not to include
translations from the English original into other languages.
Such translations may therefore be created and disseminated
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Copyright in each chapter of this book belongs to its respective

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Frontispiece: Graeme Arendse, Chimurenga Library

(photo Stacy Hardy).

Library of Congress Cataloging-in-Publication Data

Access to knowledge in the age of intellectual property /

edited by Gaëlle Krikorian and Amy Kapczynski.
p. cm.
Includes bibliographical references.
isbn 978-1-890951-96-2
1. Intellectual property. I. Krikorian, Gaëlle, 1972–
II. Kapczynski, Amy.

k1401.a929 2010
346.04’8—dc22
2009054048
Preface

In a hospital in South Korea, leukemia patients are expelled as untreatable because

a multinational drug company refuses to lower the price of a life-saving drug.
Thousands of miles away, a U.S. group called the Rational Response Squad is
forced by the threat of a copyright lawsuit to take down a YouTube video criticiz-
ing the paranormalist Uri Geller. Could we—should we—see these two events, so
seemingly remote from one another, as related? Yes—or such is the premise of a
new political formation on the global stage, one that goes under the name of the
“access to knowledge movement”—or more simply, A2K.
A2K is an emerging mobilization that includes software programmers who
took to the streets to defeat software patents in Europe, AIDS activists who forced
multinational pharmaceutical companies to permit copies of their medicines to
be sold in South Africa, and college students who have created a new “free cul-
ture” movement to “defend the digital commons”—to select just a few. A2K can
also be seen as an emerging set of theoretical commitments that both respond
to and reject the key justifications for “intellectual property” law and that seek
to develop an alternative account of the operation and importance of informa-
tion and knowledge, creativity and innovation in the contemporary world. (The
quotes reflect the fact that A2K calls the concept of “intellectual property” into
question, because of its tendency to reify the form of legal regulation that it rep-
resents. Some argue that the term itself should be banished; we nonetheless use
it here because most A2K advocates have found it indispensable, as a term that
designates the broad and diverse restrictions on the exchange of information and
knowledge against which they have emerged and mobilized.) Access to Knowledge
in the Age of Intellectual Property takes as its subject this new field of activism and
advocacy and the new political and conceptual conflicts occurring in the domain of
intellectual property.

9
 Why is intellectual property becoming the object of a new global politics today?
Can file sharers, software programmers, subsistence farmers, and HIV- positive
people find useful common cause in their joint opposition to existing regimes of
intellectual property? What concepts might unite the emerging A2K coalition, and
what issues might fracture it? What is at stake with the use of the term “access” as
a fulcrum of this mobilization? Is A2K more than an agenda for those opposed to
restrictions on intellectual property—and should it be?
This volume takes such questions as its object. It aims to make this new field of
political contention accessible to those unfamiliar with it and to provide a place for
those generating it to analyze its evolution, goals, tensions, and future. The contri-
butions come from a varied mix of activists and academics and from different parts
of the world. This makes for an eclectic and sometimes even uncomfortable mix, one
true to the emerging dynamics of the A2K movement itself. Their subjects are also
diverse, part of our own editorial attempt to avoid narrowly prescribing the con-
tours of A2K even as we inevitably, through these same selections, construct them.
The book itself is divided into four parts and an epilogue. The first section
offers two introductions to the field of A2K. It should serve to orient readers
entirely new to debates over intellectual property, but also to provide fodder for
debate among those who consider themselves peripheral or central actors in the
movement itself. The first introduction, by Amy Kapczynski, offers a conceptual
genealogy of the A2K movement—an account of the concepts and arguments that
its participants are generating in order to theorize their common condition and to
undermine the narrative about intellectual property that has justified the expan-
sion of this form of law and governance over the past few decades. The second
introduction, by Gaëlle Krikorian, examines A2K as a field of activism. It describes
how the mobilization has emerged and organized itself using the issue of “access,”
the technological and political context to which the movement corresponds, the
representations and practices it engages, and its political stakes both as a form of
social mobilization and as an alternative to intellectual property rights extremism.
The second section of the book provides a geography of the new field of activ-
ism and advocacy that constitutes A2K. With no pretense to being comprehen-
sive, it illuminates a series of historical moments that have decisively marked the
emergence of the politics of A2K. It thus identifies a series of fronts along which
intellectual property conflicts are crystallizing and sketches A2K mobilizations
across a spectrum of political space and time.
In this section, Ahmed Abdel Latif describes how A2K has been framed as a
concept and the genesis of the A2K name, thereby locating A2K as a field of forces
gathering together under a common banner. Thereafter, several historical moments
in A2K illustrate how, where, and when certain key issues surfaced and were

10 kapczynski and krikorian

rendered the subject of politics. Ellen ‘t Hoen describes how health activists work-
ing on pharmaceutical policy came to conceptualize intellectual property as central
to their struggles. Sangeeta Shashikant narrates the behind-the-scenes forces that
led to one of the most salient moments of success for A2K, the Doha Declaration
of the World Trade Organization, which declared that intellectual property rights
do not trump public health. Moving from medicines to the emerging politics of
hackers, Philippe Aigrain analyzes the successful mobilization against the codifica-
tion of software patents at the European Parliament. The last contribution in this
section comes from Viviana Muñoz Tellez and Sisule F. Musungu, who describe
two recent and dramatic defeats for intellectual property absolutism at the World
Intellectual Property Organization (WIPO). In the first, A2K activists working with
developing-country governments outflanked their opponents, proposing a new
“development agenda” that seeks to reorient the work of WIPO to respond to the
needs of those living in the Global South. In the second, A2K activists and their
allies mobilized to defeat a new WIPO Broadcasting Treaty that had been heav-
ily promoted by forces in the old media seeking to extend their control over the
domain of new media.
The third section of the book offers varying visions—perhaps complementary,
perhaps at odds with one another—of the conceptual terrain of the A2K move-
ment. It charts the evolution of ideas and the surfacing of arguments within the
movement and thereby explores how the issue of intellectual property has been
politicized and how our collective understandings of what is at stake in these
debates have been tentatively transformed by A2K activists.
The section begins with Peter Drahos’s account of the global mobilization of
intellectual property owners that preceded and helped to shape A2K. That mobi-
lization was exceptionally successful—in a matter of years, it secured a dramatic
reordering of the global governance of intellectual property, most importantly by
inserting intellectual property obligations into the new World Trade Organization.
These efforts were sustained by the ideological interventions that Drahos describes.
In response to these interventions, A2K advocates have attempted to reframe
public understandings regarding the just and efficient conditions for the use,
creation, and re-creation of knowledge. Many use the issue of access as a lens,
possibly theoretical and certainly strategic, to refocus traditional political con-
figurations around intellectual property and to set out their claims. Yochai
Benkler articulates the “information commons” as the central concept of A2K and
describes the historical and political forces that converged to create the conditions
for this striking new field of political coalition. Interventions by Carlos M. Correa,
Roberto Verzola, Gaëlle Krikorian, Jeffrey Atteberry, and Lawrence Liang explore
paradoxes and tensions in the emerging discourse of A2K along vectors ranging

preface 11
 from indigenous knowledge, in the essay by Carlos Correa, to the notion of the
commons, in Jeffrey Atteberry’s contribution, and the figure of the pirate, in one
of the essays by Lawrence Liang. Robert Verzola and Lawrence Liang, in another
essay, each offer us new paradigms for the relationship between knowledge and
the production and control of knowledge-embedded goods, thus offering us new
ways in which to think about the struggle between A2K and intellectual property.
Verzola theorizes the commonalities between technological measures used to dis-
rupt the reproducibility of information in the digital and agricultural realms and
challenges us to rethink the domain of information production as one of abun-
dance and fertility, rather than scarcity. Liang explores etymological links between
identity and property and considers the implications of thinking about intellectual
and cultural production through the dynamics of relationality, rather than posses-
sion. Gaëlle Krikorian, focusing on free-trade agreements, offers an analysis of the
political environment and the political rationales of the maximalization of intellec-
tual property protection and examines some of the perspectives and experiences
of the resistances to it.
The section closes with an opening, reproducing questions that we distributed
to a group of A2K actors who have different approaches to and involvements in
the movement—Onno Purbo, Jo Walsh, Anil Gupta, and Rick Falkvinge. The ques-
tions invited them to elaborate on the concepts and ideology central to A2K, and
their responses illustrate the diversity of views on these matters that exist within
the movement.
A2K activists have proven remarkably creative and successful in recent years,
not only in contesting the contours of intellectual property law, but also in identi-
fying weaknesses and failures in the regime of intellectual property, spaces where
new regimes for generating and managing knowledge and knowledge goods might
evolve. The third section of the book describes A2K by exploring its strategies and
tactics. It thereby seeks to illuminate how the mobilization has politicized this pre-
viously “technical” area of law and policy and at times has successfully combated
very well-resourced and politically powerful opponents.
By comparing different strands within A2K, Susan K. Sell articulates the vari-
ous grammars of claims-making of movements within the movement. A series of
detailed case studies of strategies deployed in specific contexts then permits us to
mark and critically assess the choices and stances being made in the name of A2K:
in India, the choice NGOs made to master and rework the discourse of patent law
in order to oppose drug patents (Chan Park and Leena Menghaney); in Thailand,
the efforts made to reduce medicine prices by pressing the government legally to
override patents (Jiraporn Limpananont and Kannikar Kijtiwatchakul); in South
Africa and elsewhere, the deployment of the rhetoric and law of competition

12 kapczynski and krikorian

to attack exclusive rights in information (Sean Flynn); in an NGO in the United
States, the creation of an open-access journal that sought to develop knowledge-
governance principles and practices consistent with the commitments of the move-
ment (Manon A. Ress); at technological standard-setting organizations, debates
over the nature and terms of open standards (Laura DeNardis); at WIPO, attempts
to introduce new multilateral agreements to defend the rights of the visually
impaired and rebalance the current copyright regime (Vera Franz); and finally, in
the domain of global health law, the promotion of alternative models for medical
research and development that would better combine the twin goals of access and
innovation (Spring Gombe and James Love).
This section next reproduces a series of questions and responses solicited from
advocates (Harini Amarasuyiya, Vera Franz, Heeseob Nam, Carolina Rossini, and
Dileepa Witharana) regarding contemporary strategic and tactical opportunities
and dilemmas in A2K. Participants were invited to reflect upon how the move-
ments and groups with which they are associated have articulated their principles
and campaigns, defined their goals and translated these into practice, and related
to law, the state, private interests, and others in the A2K coalition.
The section closes with two interviews that provide practical as well as theo-
retical dialogues on the transformations associated with A2K as they affect society
and the economy. Yann Moulier Boutang and Gaëlle Krikorian engage the implica-
tions of the emergence of “cognitive capitalism” for knowledge industries as well
as for governments and individuals. Charles Igwe and Achal Prabhala discuss the
knowledge-governance and dissemination strategies that characterize the Indian
and Nigerian film industries and how these might inform debates about A2K.
To end the volume in a mode that invites continuing reflection, an epilogue
offers a series of visions of the future by authors—Sarah Deutsch, Gaëlle Kriko-
rian, Eloan dos Santos Pinheiro, Hala Essalmawi, and Roberto Verzola—who were
asked to imagine best-case and worst-case scenarios of the regulation and pro-
duction of knowledge in their field of interest. Unconstrained by the imperative
to describe “likely” scenarios, they offer us alternative visions that illuminate the
stakes of the choices that we make today and how these choices could portend
radically different futures for access to knowledge.
As the diversity of the volume demonstrates, the conceptual and political
dynamics of the A2K movement reveal it as a mobilization that is very much still
in motion. Neither in the introductions that follow nor in this collection as a whole
do we purport to describe fully, account for, or locate the movement for access to
knowledge. The name itself is contestable and may not be the one that represents
this new politics over time. Nor is it clear what shape this new politics will take—
how much it will tend toward conceptions of information and how much toward

preface 13
 issues of knowledge, how much it will attend to or be driven by the concerns of the
Global South as opposed to those of the North, what modes of engagement with
law and with activism will characterize the mobilization over time, or who will con-
stitute the center and who the periphery when historians write the story of A2K.
But despite this still-provisional nature, the A2K movement has already begun
to reveal an important reality: Today, freedom and justice are increasingly medi-
ated by decisions that were until recently considered supremely technical—deci-
sions about the scope of patent law, about exceptions and limitations to copyright
for the blind, about the differential virtues of prizes and patents for stimulating
government investment in neglected diseases. By politicizing a discourse that was
once highly technocratic, the A2K movement is rendering visible once-obscure
vectors of the transmission of wealth and of power over life and death. It demands
that the concepts and terms central to intellectual property be introduced into
everyday discourse and become legible in their political implications around the
world. This volume, we hope, will assist in that project.

14 kapczynski and krikorian