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The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 Yale L. J. Pocket Part 262 (2008)

Abstract

Once the domain of experts, intellectual property (IP) law today has become the object of popular mobilization. Activists across the globe are campaigning against strong IP laws and working together to develop new conceptual rubrics to counter the legitimacy of exclusive rights in information. This access to knowledge (A2K) mobilization is having some success, and should cause us to revisit our understanding of the tectonics of IP law. As my recent article explains, neither the recent expansion of IP law nor the new countermobilization can be adequately explained without an account of the role of interpretation in political action—and in particular, without an account of how acts of political framing both affect and are affected by law. Once we develop such accounts, we can see the special gravitational pull that law can exert on groups engaged in political contests. This pull has potentially important implications for how we understand the nature and effects of legality, especially internationally. IP law has grown significantly stronger over the past three decades, not only domestically but also internationally. The predominant account in IP scholarship of this expansion draws on public choice theory, which treats law as the product of market forces that are directed by the choices of rational, self-interested actors. On this theory, the “market” for IP law systematically favors rights holders over copiers and the public more generally, because rights holders can obtain rents, and have comparatively immediate and concentrated interests. The strongest articulations of the argument suggested that the barriers to public mobilization against stronger IP law were effectively insurmountable. Nonetheless, diverse groups have emerged recently to contest the trend of expanding IP law. Who would have thought, a decade or two ago, that college students would speak of the need to change copyright law with “something like the reverence that earlier generations displayed in talking about social or racial equality”? Or that advocates of “farmers’ rights” could mobilize hundreds of thousands of people to protest seed patents and an IP treaty? Or that AIDS activists would engage in civil disobedience to challenge patents on medicines? Or that programmers would descend upon the European Parliament to protest software patents? These groups have also begun to have a significant effect on IP law. For example, they have created open licensing schemes that now govern millions of works around the world, secured the first ever amendment to a core WTO agreement, and helped halt the progress of several new IP treaties. They have also collaborated to produce joint declarations and a draft Access to Knowledge Treaty. The political valence of the field has markedly changed; IP owners find themselves frequently on the defensive, and increasingly at odds with one another.

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2008

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