[A2k] Jack Balkin at Yale's A2K-2 - The Infrastructure of Free Expression and Margins of Appreciation

[James Packard Love]

http://balkin.blogspot.com/#8312274945303413198

Balkinization
an unanticipated consequence of
Jack M. Balkin

Monday, April 30, 2007

Two Ideas for Access to Knowledge=96 The Infrastructure of Free
Expression and Margins of Appreciation

JB

[Address delivered at the Second Access to Knowledge Conference
(A2K2), Yale University, April 27, 2007. My address at the first A2K
conference discussing the basic theory of Access to Knowledge can be
found here.]

I=92m delighted to welcome you to this second annual conference on
Access to Knowledge at Yale Law School. I can=92t think of a finer
group of people to be with us as the Information Society Project
celebrates its tenth birthday.

I have two things to talk about this evening. One is infrastructure.
The other is harmony. They may not seem related, but I hope to show
you by the end of this talk that in fact they are.

The chair I hold at Yale is devoted to the First Amendment. When I
mention that I work on Access to Knowledge issues, people say, =93You
mean, like the First Amendment?"

I always tell them no. I tell them that Access to Knowledge is not
primarily about the American First Amendment, and they are very
disappointed every time I tell them this.

I tell them two things. First, Access to Knowledge is global; it is
not limited to the confines of a single nation state. Second, the
American conception of freedom of speech is very limited. For the
most part, it is a negative conception of free speech; it focuses on
preventing government censorship and government burdens on free
expression. Thus, it represents only one segment of Access to
Knowledge. In fact, even the more general political value of freedom
of speech-- which many countries share and protect in their
constitutions-- is only a part of Access to Knowledge.

Article 19 of the Universal Declaration of Human Rights is a bit
better in this respect. It talks about the freedom =93to seek, receive
and impart information and ideas through any media and regardless of
frontiers.=94

But even that does not go far enough, I think.

So what is the connection between freedom of expression and Access to
Knowledge?

Freedom of speech=96 and Article 19's right to receive and impart
information and knowledge=96 depends on an infrastructure of free
expression.

What is in that infrastructure? It includes government policies that
promote the creation and delivery of information and knowledge. It
concerns government policies that promote transparency and sharing of
government created knowledge and data. It involves government and
private sector investments in information provision and technology,
including telephones, telegraphs, libraries, and Internet access. It
includes policies like subsidies for postal delivery, education, and
even the building of schools.

Intellectual property law is part of that infrastructure too.
Properly designed, it can be an engine of creativity, innovation and
expression; it can produce incentives to promote science and human
knowledge. But intellectual property cannot do this alone. In fact,
in some features of information production it is not even the most
important method for promoting creativity and innovation. Lots of
information and knowledge are produced in society using other
business models and other incentive structures than the exploitation
of exclusive rights in information.

Freedom of expression, you see, is part of something much larger:
Let=92s call it knowledge and information policy. The word "policy" may
be a misnomer, because people often oppose policy to rights and
rights discourse. We don=92t have to do that, though. We can talk about
knowledge and information policy in terms of human rights, like
Article 19, or in terms of economic development, or in terms of
distributive justice, or in terms of all three concepts.

What is knowledge and information policy? That would take another
lecture. For now, let=92s say that its goals include fostering
creativity, innovation and production of information, and ensuring
the widest possible spread and diffusion of knowledge and information
from diverse sources among the world's populations.

In a world economy that increasingly values knowledge, information,
and knowledge embedded goods, sound knowledge and information policy
must also ensure that the benefits of this economy are distributed
fairly among the world's populations.

This is not just about increasing GNP or even about equalizing
incomes. It is about putting the tools of understanding-- what I call
cultural software-- in people's hands and in people's heads. These
are the tools for making meanings, tools for making knowledge, tools
for growing knowledge and making new knowledge tools.

We do this by lowering the costs of telecommunications, and by making
information transmission widely available to everyone. We do this by
preventing concentration of ownership in content delivery systems. We
do this by promoting the development of cheap and widely available
information production tools, from software and computers to books
and educational materials.

The idea is to help produce and nourish what I call a democratic
culture. A global democratic culture. What is the idea of a
democratic culture? It is not simply democracy in the context of the
governance of the nation state. It is not simply the discussion of
public ideas. Rather it is about democratic access to and
participation in culture-- or rather cultures, for the world is fully
of many different cultures that are constantly growing, influencing
each other and being influenced in turn.

A democratic culture is democratic not because everyone gets to vote
on it=96 after all, it is a global culture that transcends the nation
state=96 but because everyone gets to participate in it. Everyone has
the right to participate in the cultural forces that constitute them
as individuals. That means they must not only have access to
information, but also to the tools that let them create culture, mix
old ideas and expressions with new ones, and produce new culture that
they can distribute out into the world to share with and influence
others.

This is a wider concern than the prevention of government censorship;
it also helps explain why freedom of speech and expression are so
important to human dignity and human equality. Freedom of speech and
expression are valuable because they let us have a say in the
cultural forces that constitute us and make us who we are. Freedom of
speech and expression are ways that we participate in culture.

Access to Knowledge demands that we structure telecommunications law,
intellectual property law, and government provisioning and
procurement policies to promote the goals of knowledge and
information policy and the achievement of a global democratic culture.

It is not surprising that intellectual property has become central to
the movement for A2K. Intellectual property is a tool of knowledge
and information policy. It is one method among many others for
promoting knowledge and information production and diffusion. But
intellectual property can promote or inhibit access to knowledge
depending on how it is designed and implemented.

Intellectual property should serve the functions of knowledge and
information policy-- information production and diffusion-- and
democratic culture. And not the other way around. A2K is the Boss. IP
is just one of the employees.

The nations of the world need to know who is the boss.

This brings me to my second point. How can we get intellectual
property to play its proper role as part of a global knowledge and
information policy? Here I will talk specifically about patents, and
my remarks will build on what Professor Jerome Reichman said at the
first plenary session.

The A2K movement arises in part because out of a reaction to a
previous movement of special interests toward IP harmonization.
Harmonization by itself sounds innocent enough. Who could be against
harmony? But the idea of harmonization doesn't tell you how or at
what level you are harmonizing.

The special interests that have created the current structure of
international intellectual property law seek harmonization at the
highest possible level of IP protection. And in fact, they are not
even really interested in harmonization, because they have sought IP
protections greater than the TRIPS agreement in bilateral agreements.
When you look at these bilateral agreements, it soon becomes clear
that calls for harmonization are really about calls for IP maximalism.

Let me tell you what I think about harmonization. In my view,
harmonization is about producing harmony. When you sing in harmony,
you don't all sing the same note. Some people sing high, others sing
low, and still others sing in the middle register. You sing different
notes that blend well together.

I=92ve got news for you. If everyone sings the same note, it's not
harmony. It's boring.

And for some people the notes are too high, and for others the notes
are too low, and so it's not only boring, it sounds awful.

And some people don't get to sing at all.

What is the point of this musical excursion? Well, we should remember
that one of the major international intellectual property
agreements-- the TRIPS agreement-- was designed to be part of a
larger project=96 free trade law. In fact that is what TRIPS stands
for: Trade Related Aspects of Intellectual Property Rights.

The purpose of free trade law is to encourage innovation and the
advantages of mutual trade between nations. The point of lowering
trade barriers was that each country would have incentives to engage
in its comparative advantage-- to make the products, goods and
services that it could manufacture best and most efficiently. And it
could be assured that other countries markets would be open to
receive these goods.

IP harmonization at the high levels we have today does not serve
these goals. Indeed, it is increasingly in conflict with them. It
does not in fact encourage countries to innovate in the ways that
they could best innovate. Rather, it encourages firms in the
developed countries to waste their time on squeezing every possible
IP right they can get out of their inventions and expressions rather
than spend more time creating and innovating. TRIPS has become out of
harmony with the goals it was originally designed to serve.

It is time to think of ways to harmonize TRIPS=96 and intellectual
property law generally-- with the goals of free trade policy.

TRIPS is an international treaty, so why not apply ideas that apply
to other treaties? The first thing to note is that countries sign
treaties all the time, but they do not apply them in exactly the same
way. That is certainly true of human rights treaties. Don't get me
started on the question of how the United States enforces the Geneva
Conventions or the Convention Against Torture. That would take up the
rest of the conference.

My point is that countries implement their treaty obligations
differently, especially human rights treaties. In European Human
Rights Law, the European Court of Human Rights says that countries
are entitled to a "margin of appreciation" in how they enforce
European human rights law.

I am critical of this idea as it has sometimes been applied by
courts. But I simply want to point out that what is sauce for the
goose is sauce for the gander.

If a country gets a margin of appreciation in its enforcement of
human rights conventions, why shouldn't it get a similar margin of
appreciation in enforcing its obligations under TRIPS?

Let me let you in on a little secret. The United States has for years
insisted that it complies with the Berne Convention, which, as you
know, recognizes moral rights. But in the United States, we do not
have moral rights doctrines. What do our trade representatives say?
We say we are in compliance with Berne because our copyright law is
good enough to protect moral rights under our international
obligations. What do you mean good enough? That is the margin of
appreciation. And this is not an isolated example of how the United
States interprets international trade and IP agreements to suit its
own domestic concerns.

Why shouldn=92t we apply the same logic, say, to India's TRIPS-
compliant patent law? India shouldn't have to write a patent law
identical to every other countries in order to be TRIPS compliant.

Note that I=92m not talking about exceptions and limitations that the
TRIPS treaty recognizes. I'm talking about the basic doctrines of
patent law in a country. Counties in the South don't have to define
the basic components of patent law in exactly the same way that the
United States or the European Union does. They don=92t have to have
exactly the same factors that U.S. patent law does. And to the extent
that the factors are the same, say non-obviousness and utility-- it
doesn't have to define them the same way. A country in the South
could say that it wants a somewhat greater showing of non-obviousness
or utility before it will recognize a patent. It can also offer
different burdens of proof. It can have different procedures for
registering and challenging patents. It can offer slightly different
remedies. It can have slightly different defenses, justifications and
excuses. In fact, with respect to every single area of substantive
definition, countries can have slightly different patent, trademark
and copyright laws. That is what I mean by the IP equivalent of a
margin of appreciation.

You might say, is this consistent with TRIPS? Yes it is, especially
if TRIPS really is about lowering barriers to international trade as
opposed to just being a method of extracting rents. One reason why
India might want to have higher standards for novelty and utility is
that it is very good at producing generic drugs or drug delivery
devices. That is its comparative advantage. As long as its patent law
is similar enough to patent laws in other countries, it serves the
purposes of TRIPS, which is to promote innovation by securing basic
IP protection around the world.

In fact, it might actually be a good idea if India's patent law had
somewhat tougher proof requirements for novelty and utility. If drug
companies in the U.S. are making comparatively minor improvements on
drugs simply to extend their patents and prevent competition from
generics one might well decide that this doesn't really further the
goals of promoting and protecting innovation. What it actually does
is promote and protect rents.

I do not mean to suggest that this approach solves all of the
problems faced by developing countries produced by the combination of
TRIPS and bilateral IP treaties. The developed countries have put
enormous pressure on developing countries to enter into maximalist
agreements that don=92t serve the interests of access to knowledge or
the welfare of lots of people around the world. I don=92t expect that
this pressure will abate. My point rather is that developing
countries need to start treating TRIPS the way that most countries--
including the United States-- treat almost every other treaty in the
world. They should recognize that quite apart from TRIPS' own
recognition of exceptions and limitations, countries have the right
to a "margin of appreciation" in how they define and structure their
own patent, trademark, and copyright laws.

We at the Information Society Project are working on some of these
issues right now. We are trying to understand what the idea of a
margin of appreciation would mean transferred from human rights law
over to intellectual property law. We are also trying to draft new
model provisions for TRIPS compliant intellectual property law that
counties around the world can adapt to their own uses. Ami Parekh and
Amy Kapczynski are working on ideas about treaty compliance for
India, and Hong Xue is working on a model statute for China that
could be used in other parts of the developing world.

I started by talking about how people confused access to knowledge
with the American first amendment. I ended by pointing out that
people also confused IP law with American IP law. Both of these are
confusions. The principles of access to knowledge, undergird our
commitments to free expression and innovation. They are part of the
larger goal of sound knowledge and information policies within a
global democratic culture.

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