Category Archives: law

a2k wrap-up

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.
Jack Balkin, from opening plenary

I’m back from the A2K conference. The conference focused on intellectual property regimes and international development issues associated with access to medical, health, science, and technology information. Many of the plenary panels dealt specifically with the international IP regime, currently enshrined in several treaties: WIPO, TRIPS, Berne Convention, (and a few more. More from Ray on those). But many others, instead of relying on the language in the treaties, focused developing new language for advocacy, based on human rights: access to knowledge as an issue of justice and human dignity, not just an issue of intellectual property or infrastructure. The Institute is an advocate of open access, transparency, and sharing, so we have the same mentality as most of the participants, even if we choose to assail the status quo from a grassroots level, rather than the high halls of policy. Most of the discussions and presentations about international IP law were generally outside of the scope of our work, but many of the smaller panels dealt with issues that, for me, illuminated our work in a new light.
In the Peer Production and Education panel, two organizations caught my attention: Taking IT Global and the International Institute for Communication and Development (IICD). Taking IT Global is an international youth community site, notable for its success with cross-cultural projects, and for the fact that it has been translated into seven languages—by volunteers. The IICD trains trainers in Africa. These trainers then go on to help others learn the technological skills necessary to obtain basic information and to empower them to participate in creating information to share.

“What I’m talking about is the fact that ‘global peripheries’ are using technologies to produce their own cultural products and become completely independent from ‘cultural industries.'”
—Ronaldo Lemos

The ideology of empowerment ran thick in the plenary panels. Ronaldo Lemos, in the Political Economy of A2K, dropped a few figures that showed just how powerful communities outside the scope and target of traditional development can be. He talked about communities at the edge, peripheries, that are using technology to transform cultural production. He dropped a few figures that staggered the crowd: last year Hollywood produced 611 films. But Nigeria, a country with only ONE movie theater (in the whole nation!) released 1200 films. To answer the question of how? No copyright law, inexpensive technology, and low budgets (to say the least). He also mentioned the music industry in Brazil, where cultural production through mainstream corporations is about 52 CDs of Brazilian artists in all genres. In the favelas they are releasing about 400 albums a year. It’s cheaper, and it’s what they want to hear (mostly baile funk).
We also heard the empowerment theme and A2K as “a demand of justice” from Jack Balkin, Yochai Benkler, Nagla Rizk, from Egypt, and from John Howkins, who framed the A2K movement as primarily an issue of freedom to be creative.
The panel on Wireless ICT’s (and the accompanying wiki page) made it abundantly obvious that access isn’t only abut IP law and treaties: it’s also about physical access, computing capacity, and training. This was a continuation of the Network Neutrality panel, and carried through later with a rousing presentation by Onno W. Purbo, on how he has been teaching people to “steal” the last mile infrastructure from the frequencies in the air.
Finally, I went to the Role of Libraries in A2K panel. The panelists spoke on several different topics which were familiar territory for us at the Institute: the role of commercialized information intermediaries (Google, Amazon), fair use exemptions for digital media (including video and audio), the need for Open Access (we only have 15% of peer-reviewed journals available openly), ways to advocate for increased access, better archiving, and enabling A2K in developing countries through libraries.

Human rights call on us to ensure that everyone can create, access, use and share information and knowledge, enabling individuals, communities and societies to achieve their full potential.
The Adelphi Charter

The name of the movement, Access to Knowledge, was chosen because, at the highest levels of international politics, it was the one phrase that everyone supported and no one opposed. It is an undeniable umbrella movement, under which different channels of activism, across multiple disciplines, can marshal their strength. The panelists raised important issues about development and capacity, but with a focus on human rights, justice, and dignity through participation. It was challenging, but reinvigorating, to hear some of our own rhetoric at the Institute repeated in the context of this much larger movement. We at the Institute are concerned with the uses of technology whether that is in the US or internationally, and we’ll continue, in our own way, to embrace development with the goal of creating a future where technology serves to enable human dignity, creativity, and participation.

fair use and the networked book

I just finished reading the Brennan Center for Justice’s report on fair use. This public policy report was funded in part by the Free Expression Policy Project and describes, in frightening detail, the state of public knowledge regarding fair use today. The problem is that the legal definition of fair use is hard to pin down. Here are the four factors that the courts use to determine fair use:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
From Dysfunctional Family Circus, a parody of the Family Circus cartoons. Find more details at

Unfortunately, these criteria are open to interpretation at every turn, and have provided little with which to predict any judicial ruling on fair use. In a lawsuit, no one is sure of the outcome of their claim. This causes confusion and fear for individuals and publishers, academics and their institutions. In many cases where there is a clear fair use argument, the target of copyright infringement action (cease and desist, lawsuit) does not challenge the decision, usually for financial reasons. It’s just as clear that copyright owners pursue the protection of copyright incorrectly, with plenty of misapprehension about what qualifies for fair use. The current copyright law, as it has been written and upheld, is fraught with opportunities for mistakes by both parties, which has led to an underutilization of cultural assets for critical, educational, or artistic purposes.
This restrictive atmosphere is even more prevalent in the film and music industries. The RIAA lawsuits are a well-known example of the industry protecting its assets via heavy-handed lawsuits. The culture of shared use in the movie industry is even more stifling. This combination of aggressive control by the studio and equally aggressive piracy is causing a legislative backlash that favors copyright holders at the expense of consumer value. The Brennan report points to several examples where the erosion of fair use has limited the ability of scholars and critics to comment on these audio/visual materials, even though they are part of the landscape of our culture.
That’s why This entry was posted in brennan_center, copyright, Copyright and Copyleft, creative_commons, fair_use, law, open_content and tagged on by .

chicago law faculty starts blogging

Law professors at the University of Chicago have launched an experimental faculty blog to connect with students, the legal community, and the world at large. They’ve chosen a good moment to jump into the public sphere, when the Supreme Court is in flux. I wouldn’t be surprised if this spurred similar developments at other universities.

The University of Chicago School of Law has always been a place about ideas. We love talking about them, writing about them, and refining them through open, often lively conversation. This blog is just a natural extension of that tradition. Our hope is to use the blog as a forum in which to exchange nascent ideas with each other and also a wider audience, and to hear feedback about which ideas are compelling and which could use some re-tooling.

Though a growing number of scholars have embraced blogging, the academy as a whole has been loathe to take treat it as anything more than a dalliance. But a few more high profile moves like the one in Chicago and university boards may start clamoring to jump in. Perhaps then there can begin a serious discussion about legitimizing blogging as a form of scholarly production, and even as a kind of peer review. It’s not that all academics should be expected (or should want) to become high-profile public intellectuals. Fundamentally, academic blogging should be considered as an extension of “office hours,” a way to extend the dialogue with students and other faculty.
But there’s a definite benefit for the public when authoritative voices start blogging about what they know best. It’s refreshing to read sober, deeply informed reflections on the Miers nomination and surrounding questions of judicial philosophy written by people who know what they’re talking about. It helps us to parse the news and to tune out some of the more worthless punditry that goes on, both in mainstream media and in the blogosphere. Less noise, more signal.
Of course, experts can get noisy too. I was thrilled when Paul Krugman began writing his column for the NY Times — here was someone with a deep grasp of economics and a talent for explaining it in a political context. But as Krugman’s audience has grown, so has his propensity to blow off partisan steam. To me at least, his value as a public intellect has waned.

copyright lawyers remain richest professionals

Or so is the case in Korea, where the custodians of intellectual property law ranked first (apparently for the sixth straight year) in a recent personal income survey. An interesting nugget blown down the pipeline from Korean newspaper Chosun Ilbo, in an article barely longer than its headline. Though I am only able to explore the English-language edition, it seems to be a newspaper with no end of information, but little in the way of analysis. One has the feeling of reading oil, a lubricant for the economic wheels that have delivered a war-torn and psychologically divided nation into material prosperity. Korea is now a major regional power of the so-called global information economy.
The Chosun trifle nicely animates the highly abstract, but fascinating “A Hacker Manifesto” by McKenzie Wark, which I recently began reading. The manifesto is a Marxist tract for the information age, redefining the eternal class struggle in terms of intellectual property – the post-capital form of property – which is controlled by a new ruling class, the “vectoralists.” The vectoralists – Bill Gates, Rupert Murdoch, or the big pharmaceutical companies would be the most obvious examples – control the vectors, or channels, of communication, and seek to subjugate the “hackers,” who Wark defines as a newly coherent class of idea makers – programmers, inventors, artists and philosophers. It’s an important book, and convincingly argues why the intellectual property debate is central in the struggle for liberty.

That the vectoralist class has replaced capital as the dominant exploiting class can be seen in the form that the leading corporations take. These firms divest themselves of their productive capacity, as this is no longer a source of power. They rely on a competing mass of capitalist contractors for the manufacture of their products. Their power lies in monopolizing intellectual property — patents, copyrights and trademarks — and the means of reproducing their value — the vectors of communication. The privatization of information becomes the dominant, rather than a subsidiary, aspect of commodified life.

He goes on to quote from Naomi Klein:

“There is a certain logic to this progression: first, a select group of manufacturers transcend their connection to earthbound products, then, with marketing elevated as the pinnacle of their business, they attempt to alter marketing’s social status as a commercial interruption and replace it with seamless integration.”