A2K4 Panel VIII: Rights-Based Strategies for Advancing Access to Knowledge

 "Health Care is a Human Right" The final panel of the conference focuses on Rights-Based Strategies for Advancing Access to Knowledge.  Much of the conference has focused on synergies between access to knowledge and human rights goals in specific subject areas. The concluding panel will discuss more generally the broader challenges and opportunities implicated by attempts to promote A2K goals through a human rights framework.

The panelists included:

Shyam Balganesh, Penn Law School

Audrey Chapman, University of Connecticut Medical School

James Love, Knowledge Ecology International

Alice Miller, UC Berkeley School of Law

Moderator: Violette Ruppanner, 3D -> Trade, Human Rights, Equitable Economy

Some of the questions to be pursued by this panel include:

What are the different forms that human rights advocacy takes today, and what are the different fora to which public interest advocates should be attentive? How influential are these strategies and tactics, or is human rights law ineffectual in comparison to trade and other international legal frameworks?

Where are there gains, gaps, contradictions or retrenchment in rights? What are the fault lines in human rights frameworks and how would or should A2K ‘take sides’ in rights fights?

Is an increasing judicial role in the design of intellectual property regulation appropriate or desirable? How would this likely differ from the current system, which is dominated by legislative regulation and, especially in the increasing realm of treaty negotiations, executive leadership?

How does the less well developed and more controversial nature of economic, social and cultural rights claims impact the prospects for advancing access to knowledge as a human right? To what extent can these goals be achieved through a more traditional, liberties-centered approach, or do they necessarily rely on being able to advance positive rights claims?

Violette Ruppanner, 3D -> Trade, Human Rights, Equitable Economy

Violette Ruppanner of 3D -> Trade, Human Rights, Equitable Economy began the final panel of the conference.  The idea is to conclude the conference with a discussion of human rights and what different strands of the A2K movement have in common, including implication for the lives of the poor.  Is a human rights framework a “silver bullet” and a solid base for A2K advocacy?

To set the stage, Violette Ruppanner highlighted the work of Donella Meadows, Thinking in Systems.  What are the leverage points to intervene in a system?  What are the goals (purpose or function) and who can promote change?  What is the ability of self-organisation within systems?  What are the rules (the kinds of incentives out there, including punishments and constraints).

Audrey Chapman, University of Connecticut Medical School

My experience is that the Committee is very responsive to cogent input from groups. Let's think through what this right of access to knowledge might mean, what it's content might be, folding into it some of the very important contributions of this conference. And work to get the Committee to adopt this.

Human rights are very dynamic on at least three levels. 1) interpretation of existing rights, for example with the right to health... understanding really shifted after General Comment No. 14. 2) recognition of new rights, either because they are implicit in exisitng ones, or because people newly realize it's essential. 3) ways in which society mobilizes around rights to raise claims.

Are we at a point in time where we're ready to promote a new right of access to knowledge? I see it as both political and social. Necessary to realize a number of other rights. It would be very difficult for individuals and society in the 21st century to live a life of human dignity without access to knowledge.

An example here is General Comment 13 on the right to education. Although academic freedom was not a component of the right as originally drafted, the Committee said it was essential to the larger right.

Another example is General Comment 14 on the right to health. Original text was very limited in its view of the right to health. But the Committee chose to interpret it more broadly; not an exhaustive list. Considerably expanding understanding of what the right to health consists of.

A new right which has been recognized is the right to water. This was an entirely new right. The Committee decided it was impossible to enjoy right to an adequate standard of living and the right to health, unless a right to water was also enjoyed.

Using these models, we can argue for a right of access to knowledge as included/implicit in or essential to other recognized rights... including right to food, right to health, right to education, right to science and culture.

This committee has been careful to distinguish that IP rights as recognized in law today are very different from the human right to protection of moral and material interests in artistic and scientific productions. When the General Comment was developed, not as strong as the Statement on IP and Human Rights. But talks about balancing public and private interests, and ensuring that IP is not a barrier to enjoyment of other rights.

Shyam Balganesh, Penn Law School

Shyam Balganesh explored the idea of engaging with domestic courts on A2K movement issues.  We could learn a lot by engaging with courts, looking to the nuances that courts actually employ.

Why Courts?  The simple answer is that courts are where the legal effects are felt.  Courts are where you fight the battle.  Courts are the domain where the realities of the movement are felt.  The more nuanced answer is the rulemaking that courts employ, that access to knowledge can employ as well.

Incrementalism refers to rulemaking of courts, one case at a time, extrapolating rules and principles from what is before them.  This amounts to an inter-temporal process over time.  There are times to roll back a rule over time.  This is beneficial when we know that social and economic circumstances are likely to change.

Take cyber- law issues.  An incremental case by case approach was appropriate because we simply did not know what the costs and benefits of a rule would be.

Incrementalism is about emerging a rule or principle to new circumstances.

What does this all mean for A2K and access to knowledge?

Until the middle of the 20th century, intellectual property rulemaking was about courts adopting an incremental process working along with Congress, until Congress decided to take these processes over.  Fair use doctrine originated in courts, for example.  In states, courts continue to develop IP regimes, and this incremental approach is developing.

So, what does access to knowledge have to benefit from an incremental approach?  As new technologies develop, the nature of interests that we seek to promote will change.  Freezing a one-sized fits all approach means we will later have to revamp these approaches.  But if we focus on an incremental approach, access to knowledge could benefit….

At a more pragmatic level, property and ownership rhetoric to frame the debate emerged over centuries and became entrenched.  If A2K movement wants to argue that there is not a one sized fits all approach, then change needs to happen incrementally.

If you look at property law literature emerging at common law, right to exclude is key, and is balanced with the right to reasonable access.  The argument here is not that the right to reasonable access is not going to give us all of the answers, but looking to right of reasonable access is an interesting rallying point, because it counter the right to exclude.

Think strategically when looking to courts.  Courts are making the law, although they are hesitant to acknowledge that.  When we are engaging with courts, we could be benefited by couching are arguments in property law.  Injecting the idea of “reasonableness” before access is something that courts would likely latch on to.  Reasonableness is nothing and everything.

Incrementalism would result in a continuous dialogue with courts over time.  Recognizing courts as an important institution in this dialogue and recognizing that engaging with them would be useful is something that it would be beneficial for the A2K movement to realize.

Alice Miller, UC Berkeley School of Law

In my career, I was often told at the beginning that my issues were not human rights. But that changed over time. Human rights is a process of politics, bootstrapping, and endless contingent change. Many organizations with "human rights" in the title are conflicted. And your allies will be people who understand you and people who have no clue. So I want to make some suggestions about how to strategically place your optimism.

We've mostly been talking about primary rules; requiring parties to engage in or refrain from different actions. But I also want to talk about secondary rules, which are the processes by which parties can try to change the primary rules. The politics of rights is about building a legitimate and compelling legal doctrine. So it is the politics of advocacy and campaigning in multiple arenas.

Many people turn to human rights because of its language of universalism. But it is also deeply contingent and heavily politicized, and always has been. That's why you are going there: it is a politics of justice as well as a politics of power. Doctrine is built by practice, and evolving unevenly around information and related rights.

As movement activists, you are reforming and revising the practice of human rights organizations as you work with them. But don't assume immediately that they will be competent in the issues you are asking them to address. Look at who these organizations hire for their staff: are they community organizers or lawyers?

International organizations tend to highlight stories of individual victims, with less attention to systems that give rise to harm. May have certain ideas about a split between public and private. This is an intense time of shifting in institutions and rules. For example, the Human Rights Council has changed its rules dramatically in the last three years.

An aspect of good news: notion that distributive justice is an important aspect of human rights is gaining ground.

Content of speech issues -- who is saying what to whom -- may not seem important to A2K movement. But it is greatly important to human rights bodies. For example, on pornography, which impacts debates on Internet freedom transnationally. You want to be aware and attentive to such fault lines.

As you build your rights strategy, who are the human rights allies that can work with you to build the content of the right to knowledge, and to shift the rules of the fora in ways that help you?

James Love, Knowledge Ecology International

Jamie Love, not a lawyer, so always reluctant to focus on human rights per se, but becoming a convert.  Initially had discussions with human rights folks, wanting to get involved, but question is what is the benefit to us of working with the human rights folks?

One time, working on proposal about how to finance new drugs- designing alternative reward systems.  So, Jamie Love said to someone in human rights field- if we have two identical, cost-effective and feasible ways of financing drugs.  One involves exclusion of poor for 20 years and other doesn’t.  Does human rights doctrine require you to evaluate the idea of access in this example?  And the answer was no. (So, law students and professors, try to make the human rights framework give the right answer to this question).

Disability issues and the Treaty for the Blind- this is incredibly contentious for something that should not be contentious at all.  Completely well known that publishers don’t provide accessible material, completely understood that the countries with small economies- like Uruguay- can’t share with Argentina next door.  That is a flawed, ridiculously stupid system.  The idea is to create international norms.  Not force a blind Ugandan to file a claim there, but to come with a big global treaty and say let’s go along with the norm.

Forces at work with this disability treaty issue- opposition to this treaty are journalist associations, recording industry of America, the motion picture’s association.  Why are all of these groups piling on against blind people?  Because it is perceived to set a precedent-that is basically what this is about.  You have a perfectly workable solution- you have 130 million blind and visually impaired people.  There should be a human rights rule that you don’t hold a community hostage- there should be a no precedents rule- let these people have their treaty! They shouldn’t be cannon-fodder for a fight that doesn’t concern them.  And they are a very vulnerable population, and it just isn’t right to hold them hostage.

What does it take to have sustainable resolutions to the issues of access?

The resolution of sustainable access has to involve solutions of livelihood issue-it has to solve issue of where money comes from for people who engage in creative efforts.  There is a need for discussion between creative communities and consumers to find common ground.  It requires the consumers to step up to the plate and discuss where the money is going to come from.  You can’t just eliminate the IP protection. If they are not going to get money from high prices, they have to get it from somewhere…

In medicines, one idea is that you use cash rewards-using same data you use to calculate reimbursements to reward people who develop new drugs to help people.  Some fraction of the reward system would be going to university professors and others who share materials, and use open source materials.  This would create an incentive, business model, and universities would start winning in this contest.

Question and Answer Session:

Q1: Going back to a point from yesterday, using human rights norms and using human rights institutions and venues.  In talking about access to knowledge as a human right, in light of all of the ways of talking about rights, I’ve been thinking about whether that is the best strategy.  Is it a better strategy to latch on to an existing right that needs further development and fuse it together with access to knowledge rather than create a new right? Also, a comment to Jamie: your work is fully consistent with a right to health, and there is benefit to joining the two movements.

A response from Alice Miller: there are going to be strategies that are different across the sub-topics.  Specifying the interests, specifying the stories is actually a break-out session rather than a comments session.

Q2: Question about incrementalism to Shyam Balganesh and some dialogue on the incrementalism issues raised in Shyam Balganesh’s presentation.

David Hammerstein questioning panelistsQ3: When we are talking about privacy and net neutrality rights we are talking about fundamental rights.  When we are talking about movements we are talking about organizations and social constructs which are something else.

Alice Miller urged the commenter to think about the tactics and strategies for accomplishing particular goals.

Q4: On right to access to knowledge, we need a lot of reflection whether to invest in a construction of a right or to invest in the operationlization of an existing right.  It’s very interesting but whether or not to go in that direction takes a lot of thought.  There is a lot to learn, for example, from international environmental issues.

Q5: Does it make sense from a human rights point of view to go side by side with those fighting for disability rights?

Alice Miller commented that there are many many organizations working on human rights issues.  It is a question of movement building and incentives.  Amnesty International, for example, is basically eating itself up with a vast array of issues; the organization can no long explain itself.  What would be more interesting would be to do a structural mapping of organizations that have worked on education and disability.  We are talking about a context of limited capacity.  Although language of human rights sounds like all is possible, there are constraints.

Audrey Chapman reminded us that there are organizations that specialize in disability rights and that is a place to start.

Q6: The Treaty on the Blind is an issue that needs visibility, no pun intended or perhaps pun intended.  My comment is on the role of courts.  WTO is a steel cage in which we have pushed certain norms like IP; it has made very small leaps into other areas, but not much.  We need national courts to help get rid of the illusion that IP is conceptually balanced.  If courts are able to articulate more forcefully the right of access that would be very helpful.  Courts have the ability to interface various rights domains.

Jamie Love commented on recent developments in the U.S. government on the Treaty of the Blind.  People should condemn the USTR and Ambassador Kirk for pushing things in the wrong direction lately.  Things looked great from President Obama and the White House in December but it seems like there has been retrenchment from copyright industry.

This was a lively final discussion for the conference and there is much more room for discussion and dialogue on these issues.  We look forward to the next A2K conference!

For twitter commentary on this panel from the audience, check out http://twapperkeeper.com/a2k4/ entries for Saturday, February 13 at 21:00h to 22:30h.

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