Contemporary ‘denial of access’: Knowledge, IPR and the public good

‘What is a more important priority for our world as we begin a new century: outlawing circumvention devices for ebooks or allowing the tens of millions of illiterate peoples across the least developed world to read their first book?’1

One way of dealing with IP, is to explore accommodations within the pre-existing IPR system, which, by all accounts, is going to remain with us for the foreseeable future. One might also begin by posing a far more provocative set of questions: Is IP really necessary for growth and innovation? Has it outlived its usefulness in an age of networked technologies that are quintessentially, innately, oriented towards the sharing of knowledge? How else can one describe the less than creative stance on drug development – an outcome of the barriers to innovation given the many product and process patents legitimised under the TRIPS regime? And the inability to develop solutions-based software in the South because of various patents and copyright restrictions? Is it any wonder, then, that many countries are exploring open source solutions? Or opting for cheaper options such as pirated software?

The foregoing questions relate to that mother of all questions – who really benefits from IPR? There is no evidence to suggest, irrespective of the rosy predictions offered by the Business Software Alliance (a group that includes Adobe, Apple, HP, IBM, Microsoft, Symantec, along with many other software manufacturers) that least developed countries or for that matter the developing world have benefited – in terms of technology transfers, cheaper products, education, employment. In fact the reverse is true and there is evidence that suggests that the harmonisation of IP policy, IP enforcement and secure IP environments have bolstered the competitive advantage of multinational corporations (MNCs) at the expense of national industries in the South.

In other words, we are really talking of business as usual. Out of the 12,000 patent applications filed in India in 2003, the majority came from foreign owned companies.2 And most of the revenues collected by rights and royalties organisations in the South fill the coffers of the ‘copyright industries’ – music, publishing, software and Hollywood giants. This scenario needs to be viewed in perspective – the fact that the overall value of copyright industries to the GDP in the USA increased 360% between 1977-1999 – valued at $460 billion.3 The fact remains that the contemporary IPR regime is basically a neo-colonial enterprise, originally nurtured by a handful of MNCs, to maintain, protect and expand the competitive advantage of MNCs in the developed world – particularly the IT and life science industries.

To reiterate, the current lag between the technologies of knowledge sharing and the policies that encourage knowledge enclosures has nothing inevitable about it, but is simply the consequence of the pressures associated with the pursuit of profit and the maintenance of competitive advantage. Given this enormous divide and the pressure to invest all transactions – commercial and non-commercial – with monetary value, how on earth are we ever going to reach the UN’s Millennium development goals for all? What will be the consequence of this for education and health in countries in Sub-Saharan Africa? Is this rather sorry state of affairs all that we have to offer after many eons of human civilisation built on sharing, transfers of knowledge and the cross-fertilisation of ideas?

These very context-specific questions need to be seen in the light of widespread contestations over IPR spanning IKS to digital knowledge systems. What follows engages with some of the issues related to IPR, old as well as new, concluding on a hopeful note.

At the heart of the debate on IPR are contestations over knowledge. We are told that we live in ‘knowledge societies’, in a knowledge economy. While we can readily acknowledge the glut of information at certain levels in our societies, this cannot be equated with a glut of knowledge. In fact, the reverse is true. Knowledge is much more than useful information. It is primarily the result of the creative spirit in human beings – of intellectual curiosity, with some famous accidents, of course: the sum of inquiry, relationships, dialogue, creativity, community, history, tradition, contestation, reflected in society at any given moment in history. Like race, there is no pure knowledge – since all knowledge has been freely and generously contaminated.

Knowledge in the age of capital
The development of capitalism, particularly after the Industrial Revolution, was built on recognition of the relationships between innovation and growth. With colonial expansion, and competition for products and markets, innovation came to be recognised for its strategic value, and the ideas associated with innovation became jealously guarded assets of business and trade. Already, at this early stage of capitalist development, ideas that had proven or potential business promise and that led to product development or to useful inventions began to be given a value over and above the material product itself. This was the first step towards investing immaterial, intangible ‘ideas’ with monetary and property value.

However, even at this early stage of the development of IPR, the idea of a trade-off was maintained – copyright, for example, was conceived in terms of a trade-off between the economic benefits that accrued to a writer who was given rights to his/her product for a fixed period, and society. When the copyright period expired the work fell back into the public domain – the storehouse of freely accessible global knowledge that has been accumulated over centuries of human creativity and endeavour. The state negotiated this trade-off. As manufacturing and trade increased in complexity, other items were added to the IPR toolkit – trade marks, patents, geographical indicators, trade secrets, etc.

Until the 1970s, IP was a low-intensity affair. However the emergence of the service economy, and the informationalisation of all life-related processes, gave a massive boost to IP and to its elevation as a core resource of competitive advantage, fundamental to the pursuit of markets and profit. Transnational companies like IBM and Pfizer, that were at the cutting edge of computing and the new sciences in the 1970s, recognised the potential of intellectual property and were largely responsible for initiating the Trade Related Aspects of Intellectual Property Rights (TRIPS) treaty, at the tail end of the Uruguay Round of Trade negotiations. The TRIPS imperative remains critical to the globalisation of world trade – both at multilateral and at bi-lateral levels.

Today, the ownership of IP is a key platform for growth in the service economy, in manufacturing and the life sciences. In fact, there are hardly any areas today that can be considered IP-free. It is of strategic advantage to and a huge source of profits for national and transnational firms from Disney to Microsoft – who jealously guard IP in order to squeeze the very last cent from any given product. Simultaneously, firms earn royalties through licensing IP – as has been the case with IBM. The leader of the patents pack, IBM amassed 25,772 patents in the USA during 1993-2003, 3,415 patents in 2003 alone. IBM also has rights over an additional 40,000 patents that have been licensed worldwide.4

Knowledge enclosures
I am not for a moment suggesting that intellectual protection is a bad thing per se. But perhaps there is a case to review the concept and worth of intellectual property. Copyright, in its infancy, might have been a stimulus to invention and innovation and protected the interests of creative artists. But unlike two hundred ago, when inventors still had property rights to their inventions, the contemporary software programmer employed to write code for Microsoft does not have any proprietary rights over code. So with writers and musicians – whose copyrights are owned by companies. Meanwhile, the trade-off that ensured that products would revert back to the public domain has been rather ruthlessly diluted through the most ludicrous extensions given to copyright – leading to a situation characterised by copyright in perpetuity. In other words, the original meaning of IPR as a ‘Limited Intellectual Monopoly’ has been lost.
The eleven copyright extensions (1978-2001) given in the USA is the most notorious example of this tendency. Ronald Bettig, in an article in Media Development, has commented on the manner in which copyright was extended just at the moment when works were scheduled to return to the public domain:

‘In 1998, Congress offered a quick fix by passing the Sony Bono Copyright Extension Act, often referred to as the “Mickey Mouse Extension Act” because of heavy lobbying by the Walt Disney Company to protect the mouse whose term was set to expire in 2003. The act extended copyright for an additional 20 years for cultural works, protecting them for a total of 70 years after the death of an individual author or 95 years from publication in the case of works created by or for corporations.’5

Such extensions, one can argue, have led to the impoverishment of the public domain. There are a number of contemporary examples of attempts being made to extend property rights over knowledge. The informationalisation and digitalisation of all life processes has accentuated the pressure to create enclosures around all knowledge available in digitised form – from the content of an email to the source code of a software programme, to the digitised codes of a cell line and a micro-organism. Even the exact number of clicks used to buy products over the on-line service Amazon.com (one click buy) has been the subject of a patent. Girl Scouts have been sued for royalties because they sang songs around campfires for which they had not had prior permission, and the Finnish Composer’s Copyright Society has decided to levy royalties for music played in cabs and for recorded Christmas music played in church.

The list is endless and frankly rather absurd. Given the lack of regulation of enclosures around culture, every aspect of culture has become fair game for cultural entrepreneurs. If prior knowledge is not going to be freely available – the possibilities for creativity and innovation are bound to be severely impaired. When prior knowledge becomes digitised and people are denied access to the source code or to possibilities for reverse engineering – it becomes difficult to build on existing content, improve upon it, learn from its structure and design, make appropriate content and inter-operable products. The Digital Millennium Copyright Act (DMCA) echoing the WIPO Copyright Treaty explicitly prevents the circumvention of technological protection measures – thus outlawing reverse engineering.

What is of real concern is the manner in which the IP edifice is being built right under our noses, without our even noticing it, until recorded Christmas music played in church becomes an object for royalties. The fact remains that most people are unaware of the privatisation of knowledge – in the private as well as public spheres.

Information and the limitations of the old paradigm
This all leads to a much more profound question that has to do with whether the conditions for production today based on the manipulation of information require another framework for IPR, another philosophy, another toolkit. In the age of industry and manufacturing, production was based on the exploitation of finite resources. But the raw material for digital technologies is information, which is essentially a non-rivalrous resource – your consumption and mine of the same text does not deplete or degrade it in any way. In other words, digitised information and knowledge have the potential to be made available to everyone who has access to a terminal.

One must not forget the essentially cooperative basis for the development of version one of the Internet, inventors and programmers freely contributing their time to the development of its backbone. This history is precisely why we need to rethink IPR in a digital age, so that access to knowledge becomes a human right rather than a proprietorial privilege. After all, if we are serious about bridging the digital divide and ushering in the information society, we have to enable knowledge to be free so that the maximum number of people take advantage of the information revolution and contribute to its development – its architecture, governance, and policy through an approach based on participating, sharing and learning.

Just as people in an earlier era, freely perfected, through trial and error, an earlier technology to develop optimum agricultural practices – seed, cropping, appropriate technological interventions (also under threat), one can argue that in the age of information, there is similarly the need for people to craft software to their needs, to appropriate software culturally – since it is fast becoming the basis for all productive processes. In other words there is a need for open access to ‘code’, to the creation of open standards and for policies that will allow for the new literacy that is required – that’s if we are serious about moving from a system characterised by knowledge enclosures (the old paradigm) to a system based on open learning platforms (the new paradigm).

Knowledge contestations
Today, IP is being fiercely contested – by those who would like to profit from knowledge monopolies on the one hand, by the Empire characterised by Microsoft, IBM, the Motion Pictures Association of America (MPAA – consists of seven Hollywood majors – Walt Disney Co., Sony, Metro-Goldwyn Mayer, Paramount Pictures, Twentieth Century Fox, Universal Studios, Warner Bros), BSA, the EU, USA, Japan, and on the other hand by creative initiatives such as that exemplified by the Brazilian culture minister Gilberto Gil’s plan to re-release some of his old hits on a CD with an explicit invitation to users to make derivative works from his singles. Another example is that of the Creative Commons – an attempt to evolve flexible copyright licensing agreements that will enable artistes either to reserve or waive rights to their creation.

The on-going contestations over internet governance, between the G20, who would like it to be in the hands of an inter-governmental body, the USA that would like to hand control over ICANN to the private sector and to keep control over its root servers, and the civil society based ICT Global Governance Caucus that would like the governance of the internet to be based on transparency, participation and people’s involvement – is another instance of the turf battles being fought around the ownership of the conduits, production, purpose and content of on-line knowledge.

Another example is the decision taken by the US-based Public Library of Science and the UK-based Bio-Med Central to publish open access journals – with their enormous potential to contribute to building an era based on the free availability of knowledge. Such initiatives have already created a stir in the world of scientific publications. The Anglo-Dutch Reed Elsevier, one of the largest publishers of scientific journals (1800 titles, sales of £2.2 billion) that reported an annual profit of £1 billion in 2004, may well become a has been before the decade is through.6

In a well-argued book, Australian authors Peter Drahos and John Braithwaite conclude with the following observations:

‘Information feudalism is a regime of property rights that is not economically efficient, and does not get the balance right between rewarding innovation and diffusing it. Like feudalism, it rewards guilds instead of inventive, individual citizens. It makes democratic citizens trespassers on knowledge that should be the common heritage of humankind, their educational birthright. Ironically, information feudalism, by dismantling the publicness of knowledge, will eventually rob the knowledge economy of much of its productivity.’7

So where do we need to get to from here?
1) We do need to acknowledge that the biggest players in ‘the here’ include global industry – who are in no mood to entertain alternatives to IP or to dilute the privileges that accrue from enclosures. Nevertheless, some governments are taking a lead in the exploration of alternatives and adapting IPR to national requirements. Some of the larger countries in the developing world – Brazil, India, China and South Africa – have already achieved a few remarkable victories. The Doha round of multilateral trade talks under the WTO has led to the legitimisation of TRIPS provisions for the compulsory licensing of drugs manufacturing and the import of generic drugs in the context of health emergencies. A number of governments in the developing world have opted for non-proprietorial software platforms while simultaneously placing restrictions on the operational remits of multi-national corporations. The travails of Coca Cola in India and Microsoft in China are examples of contemporary pressures on multinational companies in the developing world.

Some governments have adopted a dual strategy – while they have opted to tango with the IP status quo, harmonising legislations in line with international requirements and creating domestic anti-piracy fronts, they are also involved in exploring alternatives and negotiating concessions. India and Brazil are good examples of countries that have adopted this dual strategy. The Brazilian government is encouraging all its central and state departments to adopt an open source platform thus saving on the US$30 million or so royalty fees given annually to Microsoft, an amount that is 10% of the annual royalty outlay of US$ 318 million paid to Microsoft in Brazil.8

While the Indian government has ratified and amended all its IP legislations in line with TRIPS requirements, it will soon have to begin to comply with IP enforcement, a potentially costly process with ramifications for the countries software-solutions export programme. So as part of a strategic move, the government has decided to promote Linux-based solutions as the platform of choice in governmental circles.9 The same is true of China and doubtless many other countries that can ill-afford the huge royalties paid out annually to Microsoft.

However the battle has only just begun and the dominant cultural industries, the US government and the EU in the context of TRIPS and audio-visual (AV) trade talks, are bound to push for greater IP protection – and use trade as a weapon to enforce IP globally. So there is bound to be greater pressure on the developing world to increase their commitment to IP enforcement. But large questions still remain – while the turn to open source is to be commended, it is still anyone’s guess as to whether governments will ensure that access to knowledge will be complemented by access to all the other rights and opportunities that result in a better quality of life – food, health, education, security and employment. The dangers associated with IT determinism – IT as the panacea is no different from earlier determinisms such as the finality of the class struggle or the trickle-down theory.

More initiatives
There are also other interesting initiatives afoot that do have the potential to contribute to a revised understanding of IP. For instance the ‘cultural exception’ clause supported by the French and Canadian governments in relation to AV trade,10 the EU’s Television Without Frontiers Directive,11 the UK Government Commission on IPR,12 the UNESCO’s Universal Declaration of Cultural Diversity (UDCD) (2 November 2001),13 along with projects such as the Creative Commons endeavour14 linked to expanding knowledge in the public domain. Article 8 from UNESCO’s UDCD – Cultural Goods and Services: Commodities of a Unique Kind15 – reads as follows:

‘In the face of present-day economic and technological change, opening up vast prospects for creation and innovation, particular attention must be paid to the diversity of the supply of creative work, to due recognition of the rights of authors and artists and to the specificity of cultural goods and services which, as vectors of identity, values and meaning, must not be treated as mere commodities or consumer goods.’

The UK Government Commission’s report16 goes one step further and in fact recommends countries in the South to not ratify the WIPO Copyright Treaty:

‘We believe developing countries would probably be unwise to endorse the WIPO Copyright Treaty, unless they have very specific reasons for doing so, and should retain their freedom to legislate on technological measures. It follows that developing countries, or indeed other developed countries, should not follow the example of the DMCA in forbidding all circumvention of technological protection. In particular, we take the view that legislation such as the DMCA shifts the balance too far in favour of producers of copyright material at the expense of the historic rights of users. Its replication globally could be very harmful to the interests of developing countries in accessing information and knowledge they require for their development. Similarly we have concluded that the EU Database Directive goes too far in providing protection for assemblages of material and will restrict unduly access to scientific databases required by developing countries.’

There are also a number of CS networks specifically involved in exploring IP alternatives – from Sarai in India, whose website is definitely worth looking into, to a number of groups around the world that are involved in exploring IKS, non-proprietorial platforms, anti-patents advocacy related to software and alternative IPR systems.

Creating IPR awareness
One major gap that remains is awareness of IPR in society. It is difficult to communicate ideas related to IPR because the ownership of ideas is a difficult concept to grasp. However, there are ways to deal with this obstacle – for example, by using the social philosopher Michael Walzer’s concept of ‘blocked exchanges’.17 His analysis starts from the premise that the market zone and the market domain are specific and distinct from other zones in society – for instance social zones such as education, the family, health and religion. He argues that the colonising influence of the market on these zones must be curtailed through social enforcement.

Walzer uses the concept of ‘Blocked Exchanges’ to refer to those spheres of life and conditions of humanity that cannot be purchased through money exchange or given monetary value – love and friendship, respect, health, knowledge, religion, etc. the building blocks that give life social meaning. These building blocks consist not only of social goods but also the social conditions of their creation – the frameworks within which these goods and values are generated, nurtured, maintained, circulated, sustained, developed. If knowledge that sustains communities, and community-sustaining cultural practices can be invested with the symbolism and meaning associated with a ‘blocked exchange’, it might make the task of educating people on IP that much easier.

In other words, some values – in this case values embedded in culture and communication and the products and processes linked to the production of conviviality, understanding, identity and fellowship – should not be given monetary value. It’s a simple but powerful message, a solution to the problems associated with IKS but also the basis for exploring profoundly redeeming alternatives to the current IPR regime.

Notes
1. Story, A. (2002) Study Paper 5, Study on Intellectual Property Rights, the Internet, and Copyright (pp.1-104), UK Commission on Intellectual Property Rights.
2. Patently, India lags behind! (2004), The Hindu Business Line: Internet Edition, Feb. 22, here
3. Story, A. (2002) Ibid. p.11.
4. www.ibm.com/ibm/licensing/
5. Bettig, R.V (2003) ‘Copyright and the Commodification of Culture’, Media Development, 1, pp. 3-9.
6. Wray, R. (2004) ‘Open access threat to Reed’s publishing empire’, The Guardian, 19 February, p. 19.
7. Drahos, P. & Braithwaite, J. (2002), Information Feudalism: Who Owns the Knowledge Economy, Earthscan Publications Ltd, London, p. 219.
8. Brazil gives nod to open source (2004), Wired News, pp. 1-3, http://www.wired.com/news/infostructure/o,1377,61257,00.html
9. Nagaraj, S. (2002) ‘Open IT: Govt to rewrite source code in Linux’, The EconomicTimes, 19 October, (pp. 1-3), here
10. UNESCO’s Florence Agreement (1950) and its Nairobi Protocol (1976) established the basis for Audio-Visual trade. This agreement did include some important exceptions. These exceptions, especially support for the development of national cultural industries and products, have become the basis for strong lobbying by the French and Canadian governments for a ‘cultural exception clause’ related to in AV products.
11. Directive 89/552/EEC (1989) ‘Television Without Frontiers’ by the EU, established among other things, support for cultural diversity in European television. A measure that to a large extent was a response to the perceived threat from US-based mass culture in an era of satellite broadcasting and cable TV.
12. Report of the UK Commission on IPR: Integrating Intellectual Property Rights and Development Policy (2002), http://www.iprcomission.com
13. Article by UNESCO
14. Http://creativecommons.org/
15. UNESCO, Ibid.
16. UK IPR Commission, Ibid. p.108
17. Walzer, M. (1984). Spheres of Justice: A Defence of Pluralism and Equality, Basic Books, NY.

Pradip N. Thomas (PhD) is Director of Studies and Publications for the World Association for Christian Communication. He has contributed many articles to journals such as Gazette, Communicatio Socialis, Media Culture & Society, One World and Media Development as well as chapters to several books, most recently Beyond Imperialism: Globalization, communication and the new international order, edited by Peter Golding and Phil Harris (Sage, 1997). He is co-editor with Michael Richards and Zaharom Nain of Communication and Development: The Freirian Connections (Cresskill, NJ: Hampton Press, 2004).