To date, the intersection between intellectual property and human rights has been analyzed from several perspectives. Some claim that intellectual property is a human right; others object that IP protection conflicts with efforts to realize the rights to health, food, education, or free expression. A consensus perspective on how to view the intersection of IP and human rights is far from achieved.
Access to knowledge, however, is broader than IP alone. It is concerned with the myriad ways in which government and private action either enable knowledge to be shared widely and improved upon, or cause it to be tightly controlled and restricted, and the ultimate impacts of these decisions on human well-being and justice. Adopting this concept as the starting point of a human rights inquiry suggests new perspectives that may enliven the IP-human rights debate, but also poses new conceptual and strategic challenges.
The panelists included:
Ahmed Abdel Latif, International Centre for Trade and Sustainable Development
Laurence Helfer, Duke Law School
Molly Beutz Land, New York Law School
Natasha Primo, Association for Progressive Communications
Commentator: Jeremy Malcolm, Consumers International
Some of the questions to be pursued by this panel include:
What is the relevance of A2K and human rights to each other? Which substantive aspects of human rights – for example, health, education, food, freedom of expression, and cultural rights – are implicated by A2K issues and how? Which methodological and institutional approaches hold relevance?
Do the A2K and human rights approaches fit together easily or in tension? What unique insights can each offer the other? What would it mean to theorize A2K as a human right? Is access to knowledge better understood as a negative liberty or a positive entitlement?
Is the human rights framework – norms, institutions, and methodologies of advocacy – a useful one for advancing A2K goals? What are the risks, challenges, and opportunities involved in theorizing A2K as a human right? What venues, tools, allies and enemies might be acquired by this framing?
Natasha Primo opened the panel by speaking about the APC Internet Rights Charter. APC is a 20 year old network of ISPs which in the early '80s was organized as a vehicle for the progressive movement. Now APC has grown beyond ISPs. In 2002, APC drafted the Internet Rights Charter as a mechanism for building awareness about the Information Society and facilitating access to knowledge. There are seven themes in the IRC -- including Internet access for all, privacy, surveillance & encryption, and free and open source software and technology development. The APC maintains an evolving definition of A2K which now includes right to A2K, right to freedom of information and the right to access publicly-funded information.
Primo raises many good open questions that continue to populate the A2K discourse -- does A2K involve a negative liberty or a new positive entitlement? Or is it a right that underpins existing rights? How does it measure up against Shaver's A2K index? Should A2K be understood within a rights framework or a human capabilities framework as is often discussed by Martha Nussbaum and Amartya Sen. There have been 10 key capabilities that have been identified in the International Bill of Rights, including the right live a normal life expectancy, the right to bodily health and integrity. The capabilities approach would suggest we view A2K as a vehicle by which we realize more fully the human capabilities articulated under the International Bill of Rights as opposed to an independent right in and of itself.
Next up we had Laurence Helfer who spoke of the relationship between intellectual property and human rights. TRIPS was a wake-up call to the human rights community. The human rights community has been active in ensuring the international IP dialogue considers and addresses the human rights concerns with the propertization of intellectual discoveries and developments.
Helfer also suggested that corporations can make the spurious claim that intellectual property rights are human rights because the dialogue about IP and HR is still largely unoccupied and uncontested space... and the A2K movement should try to fill that gap and contest that account. One suggestion Helfer offers is for A2K proponents to push the right to enjoy the benefits of scientific progress.
Finally, Helfer points out that while the goal of rolling back IP might unite human rights activists and A2K activists, human rights activists are only interested in this effort as a means to end whereas A2K activists might be interested in such an effort as an end unto itself. The HR framework is also committed to some core norm of protection for creators and inventors; the A2K movement will have to come to terms with that if they partner.
The third panelist was Molly Beutz Land. Land suggests human rights activists might rely more strongly on the A2K theories. Access to information is critical to addressing the more obvious human rights concerns such as health, food, and women's rights. However, the human rights community, Land argues, is not considering the relationship between access to information and their traditional goals and efforts.
Land also points out that while human rights activists should rely on A2K theories, A2K activists should rely more strongly on the tactics that concern human rights activists -- e.g. constructing infrastructure to facilitate the proliferation of knowledge. The access to medicines effort is a paradigmatic example of how A2K and human rights activists can move toward a shared goal. Specifically, theories on knowledge underpinned the access to medicines movement but the human rights tactic of pushing state accountability helped effectuate the goal both sets of interests shared.
Professor Land suggests the access to medicines campaign was successful because it united an A2K conceptualization of the problem, with the HR framework of state accountability, which pointed toward a solution.
Finally, the panel closed with a few words from Ahmed Abdel Latif. Latif emphasizes the continued tension between development and proliferation of art and science and the role of intellectual property in some instances supporting and in other instances detracting from that effort. Furthermore, Latif was critical of the way in which the exceptions to copyright are being broached in WIPO discussions -- instead of focusing on the role of exceptions as a way to realize a human right, the conversation is still framed as if copyright is human right.
Latif points to the international discussions on the access to climate change technology as another way in which the human rights and A2K interests align and should be framed as an effort that achieves the goals of both concerns. He also pointed to the current efforts to move an instrument on exceptions and limitations to copyright for the visually impaired, as a concrete implementation of the Convention on the Rights of Persons with Disabilities. Yet these connections are typically not noted in WIPO debates.
Question & Answer:
Q: Is A2K gaining more transaction as a consumer right or a consumer protection in the international sphere? A: Jeremy Malcolm -- mostly as a consumer right but consumer protection frame is gaining more traction. DRM is an example of an issue that can be framed as a consumer protection concern.
Q: What is the opinion of the panel on the developing right to internet access? Specifically, what should we make of the international movement on termination of internet access in cases of copyright infringement in the larger A2K, human rights conversation? A: Primo -- access to infrastructure has long been a part of APC's IRC. Thus, internet access is a natural connect into the lager A2K, human rights conversation.
Q: There has been a perversion of access to knowledge in efforts by big pharma with respect to direct to consumer advertising -- i.e. pharma is now framing their d-to-c efforts as "right to know" or "information to patients" efforts on behalf of their patients. What does the panel think of that? A: Land -- we should consider A2K as a movement committed to reliable and relevant information. This might address and counter the misappropriation by industries like pharma.
Q: Because of a historic development, we discuss access to knowledge instead of active cultural participation. Should we move to the latter? A: Land -- agrees with the suggestion and offers the human rights frame as useful in the way it operationalizes the rights. The capabilities approach specifically helps get us to the issue of active participation.
Q: Why isn't the "access to knowledge as a human right" language being used in multilateral discussions at WIPO, IGF, etc.? A: Primo -- Diplomacy rules set the framework within which debate takes place. There is often thus very little debate. Culture is one in which the more you repeat something, the more its heard. Operating as civil society within those spaces leads to a lot of self-censorship -- people didn't want to use human rights framework at IGF because they sometimes feel that the development language is more effective among that audience. Helfer -- there is a fear/lack of understanding among IP folks with human rights language -- so its, on some level, a language barrier. Plus you need to show how human rights discourse enables, not stifles, further discourse. Latif -- There is a path dependency in the conversation. Furthermore, the conversations are particularized and siloed in a way that forces certain language to be discussed exclusively in certain fora -- development language discussed at UNCTAD not at SCCR, etc.
For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Friday, February 12 at 14:15h to 16:00h.
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