[A2k] Jack Balkin: What is Access to Knowledge?

[James Love]

http://balkin.blogspot.com/

Balkinization
an unanticipated consequence of
Jack M. Balkin

Friday, April 21, 2006
What is Access to Knowledge?

JB

The Yale Information Society Project Access to Knowledge Conference
kicked off today. (You can learn more about the conference panels
here and here.) I gave a speech on the first panel about framing
access to knowledge, using insights from a year-long seminar that
Yochai Benkler and I have been teaching on the issues.

Here is the prepared text of my remarks:

On behalf of the Information Society Project I want to express how
happy we are to have you all here, and our pleasure at being a part
of this wonderful movement that you, in the audience, have helped
create. For the last year Yochai Benker and I have been running a
research seminar at Yale with some very talented students on the
theory and practice of access to knowledge, trying to understand the
larger theoretical commitments behind the access to knowledge
movement. This conference is the culmination of a long process of
thought, study and reflection, which is part of the larger access to
knowledge project here at the ISP.

We hope that we can contribute in our own small way to what is
already a rich and exciting conversation about the goals of access to
knowledge. We are thrilled to be able to host what is truly an
international event in an ongoing social movement that is unfolding
before our very eyes.

Today I want to make three points about the theory of access to
knowledge.

First, Access to Knowledge is a demand of justice.

Second, Access to Knowledge is both an issue of economic development
and an issue of individual participation and human liberty.

Third, Access to Knowledge is about intellectual property, but it is
also about far more than that.

Access to Knowledge is a demand of Justice

Access to Knowledge is a set of principles that emerge from a loose
collection of different social movements. These social movements, in
turn, are responding to changes in economy and society produced by
new information technologies.

Information and knowledge are embedded in goods like drugs that have
value, and in social structures like education and science that
produce value. Moreover, information, like capital, is not just a
thing in itself but it's also a set of relationships between persons
and groups. Some control it, others don't and law helps enforce that
division of power and control.

As the global economy develops, control over knowledge and
information increasingly determines global wealth and power. Because
not all countries participate in the global economy equally, not all
of their citizens enjoy its benefits equally. Different societies
prepare their members differently to participate in the information
economy, and different countries have competitive advantages in
producing information and controlling its distribution.

Access to knowledge can be a confusing term because it actually
refers to four different things. Here I borrow Yochai Benkler's
typology:


1. Human knowledge-- education, know-how, and the creation of human
capital through learning new skills.

2. Information-- like news, medical information, data, and weather
reports.

3. Knowledge-embedded goods-- goods where the inputs to production
involve significant amounts of scientific and technical knowledge,
often but not exclusively protected by intellectual property rights.
Some key examples are drugs, electronic hardware, and computer
software, but in contemporary economic life, information and
intellectual property provide an increasingly important share of
almost all valuable goods.

4. Tools for the production of KEG's-- examples include scientific
and research tools, materials and compounds for experimentation,
computer programs and computer hardware.

The goal of access to knowledge is to improve access to all four of
these components of the knowledge economy:

1. Access to human knowledge
2. Access to information
3. Access to KEG's
4. Access to tools for producing KEG's


Access to knowledge is a question of distributional justice, both
within a society, say rich and poor, men and women, and across
different societies, say countries in the North and the South. Given
the long term trend in the world economy toward increasing the share
of wealth going to these four components of the knowledge economy,
what does justice require?

I think we can make two claims:

First, if you can produce the same or greater amounts of these four
components and distribute them more widely and equitably both within
countries and across national borders, justice demands this.

Second, if you can spur additional innovation and information
production in areas that existing market structures currently do not
serve-- e.g., drugs for diseases in the third world, educational
materials for persons in the poorest countries-- justice also demands
this.

Let me put it another way: Access to knowledge means that the right
policies for information and knowledge production can increase both
the total production of information and knowledge goods, and can
distribute them in a more equitable fashion. The goal is first,
promoting economic efficiency and development, and second, widespread
distribution of those knowledge and informational goods necessary to
human flourishing in our particular historical moment=96 the global
networked information economy.

I repeat: It's not just a trade off between equity and efficiency. We
are not simply fighting about how to divide up a pie. Access to
knowledge is about making a larger pie and distributing it more
fairly. Or, at the risk of extending this pie metaphor well beyond
its appropriate scope, access to knowledge means giving everyone the
skills to make their own pies and share them widely with others.

(And now all this talk of pies is starting to make me hungry.)

This brings me to my third point.

Access to Knowledge is both an issue of economic development and an
issue of individual participation and human liberty.

 From the arguments I've offered so far, which, I should mention, owe
a considerable debt to the work of my friend and colleague Yochai
Benkler, it sounds as if Access to Knowledge is just about economics
and development. It isn't. I put it this way because some of the
strongest arguments against A2K have been economic arguments that the
current system is better for economic development and efficiency, and
we have to sacrifice equality to promote development.

What we've been trying to show in our seminar here at Yale is that
this is just plain wrong. The best information policies, the best
knowledge policies, the best development policies actually lower
barriers to access to knowledge, they produce more information goods
and they distribute them more widely. Our seminar has been trying to
show how the best economic arguments are on our side. The crazy thing
about the push toward global harmonization and IP maximalism is that
it doesn't make economic sense. It benefits particular stakeholders,
to be sure, and they often claim that making them wealthy makes
everyone else better off. But it turns out it's not true. A more
balanced set of IP policies actually produces greater wealth and
distributes it more widely and fairly.

But access to knowledge is about more than increasing GDP or
promoting rapid development. For example, we might promote human
development through producing lots of information goods for people
and distributing them widely. On the other hand, we might promote
human development by promoting decentralized access to information
tools and by encouraging participation in the production of
information goods by large numbers of people.

Access to knowledge is about the second strategy=96 participation-- as
much as the first. Or in economic terms, its about whether
information production will be primarily centralized and proprietary
or whether large parts of it should be decentralized and
participatory. What we've been trying to show in our seminar here at
Yale is that a vast range of information policies, ranging from free
and open source software to universal service policies in telecom to
networks of farmers sharing agricultural information aren't just
about stuffing people's Christmas stockings with more information
goods, but rather giving individual people tools to think with, build
with, form communities with, and then watch these communities take
off, enabling people to make their own knowledge and information
goods either individually or through peer production models.

You see, there is always more than one way to promote human
flourishing using knowledge and information, and therefore you should
usually adopt more than one strategy. You can make drugs cheaper or
you can give people information about their health. Why not do both?
You can reduce the costs of information embedded goods, or you can
free up access to knowledge tools, increase literacy rates, and let
people build things together and share their efforts. Again, why not
do both?

Is access to knowlege a human rights issue? Sure it is. Health,
literacy, education, freedom of speech and participation in the
knowledge economy all involve questions of human flourishing and all
involve questions of human rights. So there is considerable overlap
between the focus on development and the focus on human rights. But
relying primarily on the rhetoric of human rights brings its own
risks. I'll mention only two.

First, people have started to argue that intellectual property is a
universal human right so that people who resist increasing IP
protections and making them equally stringent around the world are
actually violating universal human rights.

Second, much of good information policy requires governments to
invest in information production-- scientific research, weather
reports, agricultural information, health information, public
libraries, educational materials-- and also to promote
telecommunications infrastructures=96 cheap cell phones, universal
access, telecenters and so on.

A lot of good information policy comes from freeing up or encouraging
the private sector to innovate, for example through government
procurement policies, tax breaks, and IP reforms. Some of these
policies and reforms aren't easy to squeeze into the rhetoric of
human rights discourse, although, believe me, people have tried. (Is
there a human right demanding that government spend more money on
scientific research or that it provide network neturality policies in
telecommunications? Maybe so, but human rights discourse might not be
the best way to express one's goals in these particular situations.)
That is why we have committed ourselves to talking about access to
knowledge in multiple ways, as an issue of development, an issue of
justice and an issue of human freedom and participation. It's a big
topic, and there is no one single rhetoric that captures all of it.

That brings me to my third point.

Access to Knowledge is about Intellectual Property, but about far
more than that.

Much of the focus of access to knowledge, and much of what we are
going to be talking about here, has been on intellectual property.
There are good reasons for this. As you'll see in our discussions
here, the international IP and trade regime has increasingly adopted
policies that prevent the efficient and equitable flow of knowledge,
information, and knowledge goods. However, if our goal is the
promotion of human flourishing, economic development, and human
freedom, Access to Knowledge must look beyond international trade and
IP policy.

First, no matter how restrictive IP laws may be, they may not be the
major cause of human suffering and lack of access to knowledge around
the world. Providing basic telecom access and rudimentary health care
may be far more important in some countries. Using IP to deny people
cultural freedom is bad enough, but broader censorship policies may
be even worse.

Second, we should always distinguish between law in the books and law
in action. Sometimes the text of legal rules and treaties don't tell
you how these laws are actually being enforced. Countries sign lots
of treaties=96 like human rights treaties=96 that they don't actually
enforce or only enforce selectively. Conversely, some treaties give
countries opportunities to protect freedom=96 for example, exceptions
and limitations provisions-- that they never use.

Third, in some cases IP enforcement isn't the major stumbling block
to economic development and human flourishing. For example, suppose a
country wants to promote a local pharmaceutical industry. Its IP
policies are important, but more important is their interaction with
other policies like the presence or absence of research and
development subsidies and tax breaks. Research and Development
subsidies may be much more important than IP; and price controls may
do as much harm as bad IP policies. A functioning public sphere, a
free press, and government transparency=96 all goals of access to
knowledge, by the way-- may be necessary to reduce government
corruption and keep government policies from being skewed toward the
short term interests of powerful stakeholders.

Let me generalize this point: Universal telecom access and increased
cell phone access, giving out free computers, providing public
libraries and local telecenters, sharing agricultural information
among farmers and educating women about their health and
contraceptive options may be some of the most important things that a
country can do to promote access to knowledge for a large proportion
of its population. My point is that governments promote access to
knowledge in many different ways besides IP laws-- through regulation
and deregulation, through government procurement policies that
encourage private actors to produce knowledge and information goods,
and through the government's own provisioning of information,
knowledge and education.

That's why this conference contains panels on a wide variety of
topics that go beyond current fights over the international IP
regime-- panels about telecommunications, educational policy, and
health policy. All of these policies serve the larger goals of A2K=96
the goals of justice, of development, and of participation in the
forms and practices of knowledge by everyone on the planet.