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

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translations from the English original into other languages.
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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
Options and Alternatives to
Current Copyright Regimes and Practices

Hala Essalmawi

Under the existing regime of intellectual property rights, we already have options
in international and national legal instruments, such as exceptions to copyright
and limitations on it, to help improve access to knowledge. Are we exploiting these
options to their full potential? And what are the alternatives to the current regime—
what new initiatives, tools, and methods to disseminate knowledge are available?
This essay explores possible futures by investigating two extreme scenarios in order
to pose and answer these important questions: What can we expect in the next ten
years in the field of copyright, particularly in developing countries? And how will the
inevitable changes affect access to information and in turn education and libraries,
especially research and academic libraries, and consequently access to knowledge?

worst-case scenario, 2018: a stronger, more strict

intellectual property rights system
In 2018, terms for the duration of copyright, even in the poorest countries, now
frequently last for as long as 100 or even 150 years after a work has been pub-
lished or released to the public. Some developing countries now have increased the
term of copyright protection after signing free-trade agreements with the United
States or the European Union. Regional harmonization processes then exported
these higher standards to neighboring countries. For example, some Arab countries
signed free-trade agreements with the United States during the previous decade.
In 2015, Arab intellectual property laws were harmonized. This led to the increase
of the term of protection in countries that had a term of life of the author plus 50
years to life of the author plus 100 years in all these countries. This has delayed
indefinitely the transfer of creative works into the public domain, resulting in the
weakest public domain in human history.

627
 By 2018, the consequences of this policy have become evident in the slow-
ing rate of innovation and the centralization of creativity in the hands of a few
transnational corporations. This can be seen clearly in the fields of pharmaceuti-
cals, information and communications technologies, and education. The price of
medicine has doubled, negatively affecting public health everywhere, with poor
countries being the worst affected. Education now has become a luxury, even
at the elementary, compulsory level, not to mention at the university level. The
high price of subscriptions to e-resources and printed materials has contributed to
higher illiteracy rates in the Global South.
Even unoriginal databases are now fully protected by copyright.1 Software that
was once subject only to copyright protection now can be protected internation-
ally by patent law. The public domain is shrinking, instead of growing and flour-
ishing, despite the usual claims that the intellectual property system stimulates,
rather than constricts the public domain.
Researchers and students in developing countries now have even less access to
journals, books, articles, and new, Internet-based archives than ever before. For
example, access to fifty-year-old Arabic scholarly articles in sociology is currently
restricted to on-line journal subscribers. Moreover, the cost of e-journal subscrip-
tions has soared, despite the lower costs of maintenance and distribution of on-line
journals compared with those in traditional print media. A very small proportion of
the population can afford the subscriptions, and most universities, with their lim-
ited budgets, now can provide access to very few internationally well-known jour-
nals. The astronomical costs associated with these subscriptions prohibit access for
more than 90 percent of Arabic speakers. Furthermore, local and more specialized
publications have either perished or become even more expensive.
By 2028, these trends have contributed to the decline of higher education in
the Arab countries and in the Global South in general. This situation has forced
more and more students and researchers to leave their home countries so that they
can access the information they need to learn and work in richer countries in the
Global North.
Although some groups of stakeholders have raised concerns about copyright
issues, no real attention has ever been paid to building the infrastructure neces-
sary for access. Means such as financial resources, tools, computer equipment, and
Internet connections are scarce, compounding the overprotection characteristic of
the current system of copyright restrictions.
Due to the increasing complexities of the existing system, in 2018, academics,
researchers, librarians, content creators, and library patrons have very limited
knowledge of copyright issues and of the options the system provides, including
exceptions and limitations.2 Because of the political or economic pressures that

628 essalmawi
Poster for The Oil of the Twentieth-Century conference (http://oil21.org/?conference); poster for New Tools
for the Dissemination of Knowledge conference, Alexandria and Cairo, September 2006.

developed countries exercise to prohibit the use of these flexibilities in developing

countries, these options have become as useless as if they had never existed. Some
vestiges still appear in the texts of laws, but nobody is aware of their existence,
and nobody knows how to make use of them.
In 2018, content creators, users, and intermediary institutions are not aware of
the new tools available to disseminate knowledge and as alternatives to facilitate
access to knowledge. They are not familiar with the digital equipment needed to
access the huge amount of information that has now been made available in digital
form in order to promote and sustain development.
In such a world, where individuals are banned from accessing and enjoying
the fruits of knowledge that have been accumulated through decades of human
history, what are the options and alternatives? Either to suffer from illiteracy and
poverty in a backward, unhealthy society or to seek ways to flee to a richer coun-
try. However, even with the regulations and policies current in the first decade
of the twenty-first century, a citizen from a poor country could wait more than a
year to be granted a visa to access a European or U.S. territory. By 2018, all these

options and alternatives to current copyright regimes and practices 629

 regulations have worsened the problems of illegal immigration, terrorism, and
security, fostering increasingly fanatic ideologies. In 2018, the world is still not safe
or fair. All suffer.

best-case scenario, 2018: copyright in an open-access world

By 2018, the unjustifiably long term of protection of copyright has led to question-
ing of whether the circumstances within which the Berne Convention, which was
signed more than 120 years ago, are still valid today. A general consensus emerged
that at the levels that prevailed at the turn of the twenty-first century, protection
was in effect perpetual, if we consider the duration of protection and the aver-
age lifetime of a person. Most people would never have seen the majority of the
works produced during their lifetime transferred to the public domain. Therefore,
the copyright term was reexamined in the World Intellectual Property Organization
(WIPO), which influenced World Trade Organization (WTO) negotiations later, and
thanks to the intensive work of NGOs, experts, and academics, both developed and
developing countries agreed to reach a win-win solution using determinants to these
terms other than author’s life.
Some countries chose to protect the work for twenty years from the date of
making the work available to the public, while others chose a more sophisticated
system that now allows monitoring the yearly revenues of the work. So when
those revenues are below a certain amount for two years, the work falls into
the public domain. Many countries also now have more than one determinant,
depending on the nature of the protected work. The new terms give a real incen-
tive to the author and give a chance for those who invest in the copyrighted mate-
rials to generate reasonable profits within a reasonable period from the time of
making the work available to the public.
Moreover, by 2018, several initiatives have been launched to compile, docu-
ment, and classify materials in the public domain in order to make them more
accessible to as many people as possible. Systems have been developed to follow
up on copyright terms and to produce freely accessible lists of works that fall into
the public domain. Some of these systems also take into consideration that some
works that may still be under protection in a country with a longer term of pro-
tection may already be in the public domain in a country with a shorter term of
protection. In other words, proposals for the global harmonization of intellectual
property laws that assume that one size fits all have failed.
By 2018, positive steps have been taken to use and activate the options already
available in all the international instruments and national laws as exceptions and
limitations to copyright, in order to facilitate the acquisition and utilization of

630 essalmawi
protected materials. The real breakthrough was in finalizing the international
treaty for exceptions and limitations that had been negotiated and discussed for
over a decade. By 2018, several other alternative tools and methods to disseminate
knowledge, such as free and open-source software, the GNU Free Documentation
License, and Creative Commons licenses, have attained considerable success as tech-
nical and legal parallel substitutes for classically copyrighted materials and older
copyright acts.
By 2018, higher awareness among stakeholders of users, creators, academics,
researchers, officials, public-policy makers, and intermediary institutions working
to make information available has altered the structure of copyright regimes and
the approaches taken by these groups to balance the benefits that go to creative
authors and those that society can claim. After long discussions and many strug-
gles, free and open access to publicly funded research results has been guaranteed
shortly after their publication. This milestone has been praised by the coalition of
researchers, users, and libraries that has long called for such a step.
By 2018, governments have understood that they will boost innovation and
get a better return on their investments in publicly funded research if they made
research findings more widely available. Consequently, many countries, including
developing ones, have adopted policies to promote and support the archiving of
publications in open-access repositories after five years of publication. National
and academic libraries now implement and manage these repositories. Evidence
indicates that open access to research findings brings economic advantages across
the world. It increases the potential benefits resulting from research and promotes
scholarship in Global North and South.
The momentum is real, and figures show that in 2018, 40 percent of scholarly
journals are now released under an open-access license, while free and open-
source software now constitutes around 50 percent of all software in operation.
It is worth mentioning that these radical changes have not completely dimin-
ished earlier intellectual property rights systems. The intention of these devel-
opments was to modify previous systems to recognize and activate all possible
solutions in favor of education, access to knowledge, and freedom of opinion and
expression as essential human rights under the Universal Declaration of Human
Rights, Articles 19, 26, and 27 of 1948.3 From what can be seen today, in 2018, this
goal has been largely achieved. This has also been done with ample space and tol-
erance for possible parallel alternatives to develop and flourish as complementary
to, not superseding the previous systems.
These are two imaginary scenarios. They represent a personal vision. However,
if all stakeholders do not move now to change the current situation of the intel-
lectual property rights regime and practices by activating available options and

options and alternatives to current copyright regimes and practices 631

 developing new alternatives, we will be living the worst-case scenario—or in a
reality that is even worse.

notes
1 Originality is a prerequisite for copyright. The criterion of originality is satisfied if the work
in question is the work of the author and not a copy of another’s work. The level of skill
and labor required to satisfy the requirement of originality is generally satisfied provided
that the creation of the work is not a purely mechanical exercise. The classic example of an
unoriginal database is a telephone directory that is organized in alphabetical order.
2 Exceptions and limitations to copyright involve certain situations in which the exclusive
rights granted to copyright holder by law do not apply.
3 The Universal Declaration of Human Rights (1948) is available on-line at http://www.un.org/
en/documents/udhr (last accessed January 11, 2010).

632 essalmawi