A User's Guide to the IP Wars

In the 1990s, a variety of industries dependent on copyright, trademark and patent law decided that the Internet and new digital technologies were getting way too dangerous. Upstart competitors with innovative business models were starting to invade well-established markets.  Worse, ordinary people were starting to bypass the market system and challenge the supremacy of copyright and patent law (and to a lesser extent, trademark law).  People began to create their own freely shareable alternatives using free software, co-production of content and virtually free distribution.

And so it was that the corporate giants of information and culture staked out the high ground of “property rights.”  It would be the citadel from which they would defend their entrenched business models and fight the “dangers” of digital networks.  The result has been the IP Wars, a sprawling set of political, economic and cultural conflicts that continue to rage today. 

It is a far-ranging conflagration that affects dozens of creative and cultural enterprises -- film production and distribution, musical performance and recording, book publishing, photography and video production, pharmaceutical development, scientific research, scholarly publishing and databases, among many other arenas.

There has also been a strenuous backlash to IP industries.  People with HIV/AIDS have risen up to fight the broad patent claims of the pharmaceutical industry, which has made life-saving drugs unaffordable to millions of people in need.  Hackers have organized to resist the proprietary lock-down of software code, and insisted upon basic human freedom to copy and share their code.  Subsistence farmers have resisted patent laws that promote genetically modified crops and threaten their seed-sharing practices.

College students fed up with expensive music CDs have eagerly embraced file-sharing technologies, the iPod and any other alternatives that let them escape the manipulations of the control-obsessed music industry.  Academics who could not afford expensive research journals began to develop their own “open access journals” to bypass commercial publishers entirely, re-inventing the academic commons.

These are just a few of the fronts in the IP Wars, arguably one of the most important political and cultural confrontations of the past generation.  Yet the full implications of this story are not well understood because it is notoriously difficult for the layperson to get a grip on it.  The players are so diverse, the issues are so legally technical, and the unifying themes are not self-evident. 

For all these reasons, the publication of Access to Knowledge in the Age of Intellectual Property (Zone Books) is a welcome event indeed.  This anthology of thirty-two essays, edited by Gaëlle Krikorian and Amy Kapczynski, provides a lucid, intelligent introduction to what is often called the “access to knowledge” movement, or “A2K.”  A2K consists of an eclectic set of campaigns that seek to make knowledge and creativity more accessible to ordinary people by limiting the scope of intellectual property law and various technologies of control.

In two introductory essays, Krikorian and Kapczynski do a great job of explaining the “conceptual genealogy” of the movement – the legal regimes that govern the flows of knowledge and creativity -- and the inventive strategies and tactics that A2K advocates have developed over the past two decades.  This kind of synthesis and reflection on the political implications of A2K is much needed. 

The first major survey of this field was Understanding Knowledge as a Commons: From Theory to Practice, a 2007 volume edited by Charlotte Hess and Elinor Ostrom.  That volume helped explain how various bodies of knowledge were actually common pool resources being managed as commons – and how, therefore, we should re-frame our thinking about protecting this knowledge.

Now, four years later, with campaigns against “intellectual property” mutating at breakneck speed, Access to Knowledge in the Age of Intellectual Property diversifies the focus of the discussion with an impressive roster of contributors.  There are chapters by James Love on new “prize” systems to stimulate drug development instead of patents;  Lawrence Liang on the “pirate” as the person excluded from participation in the neoliberal economy; Carlos Correa on the special challenges of protecting indigenous and traditional knowledge; Roberto Verzola on the natural abundance of nature and creativity, which technology and law seek to make artificially scarce; and Philippe Aigrain on the rejection of software patents by the European Parliament.  

The are many other essays.  One explores the effect of the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) on public health, another on the ways in which IP law tends to work to the detriment of developing countries.  There is a piece on the need to bolster the “limitations and exceptions” to copyright law, and a fascinating look at the rapid, decentralized film production and distribution in Nigeria (“Nollywood”).  The chapter on the pernicious effect of seed patents on subsistence farmers around the world shows that IP is not just about knowledge, but about how we use knowledge to engage (sometimes negatively) with ecosystems. 

It is not easy synthesizing a topic as vast as A2K, and so I have great admiration for Krikorian and Kapczynski in having corralled so many authors to contribute so many insightful essays,and organizing them into a coherent whole.  At 646 pages, Access to Knowledgeis likely to be a bit intimidating for some readers.  Yet it is also an invaluable reference to the key IP battles of our times.

Since it’s impossible to summarize all of the books’ essays, let me just mention a couple of chapters that I found especially provocative. 

Roberto Verzola, a social activist in the Philippines, describes how agro-chemical industries are more devoted to creating artificial scarcity and dependencies upon products than cultivating the nature abundance of ecosystems.  “Agrochemcials appeared to offer more abundant harvests,” writes Verzola.  “In truth, their deployment would gradually weaken and take the life out of the farmers’ biological support systems, including natural sources of plant food and the enemies of pests.  As more agrochemicals were used, the diverse soil populations dwindled, the soil became less fertile, and farmers’ crops starved.  To keep the plants from starving, more synthetic fertilizers had to be added, which caused the living soil populations to dwindle even further.” 

This is a theme that echoes throughout the book:  how technology and law, separately and together, are intentionally used to undermine abundance and create artificial scarcity. 

The commons gets due consideration in the book as an alternative system of value-creation, most notably in Professor Yochai Benkler’s chapter.  Benkler speculates on why the information commons has become so vital a force in the economic today, moving from being “socially important, but economically peripheral, to being centrally effective in the economy as a modality of production.” 

His explanation for this shift has to do with distributed networks and their ability to host “large-scale systems of learning through initiative, trial, error, communication and adaptation.  They support – indeed, they require – a more cooperative view of human action, without also requiring a strong commitment to a view that privileges solidarity over individualism.”  Digital networks engage human creativity in profoundly new ways while allowing collaboration and distribution to occur inexpensively on a global scale.

One of the most provocative implications of the A2K movement may be its ideological non-alignment.  The movement embraces everyone from Silicon Valley libertarians to traditional liberals to communitarians.  “In peer production, we are seeing an avenue of resistance to the hierarchical exercise of economic power that does not flow through the state,” writes Benkler.  “More Kropotkin than Lenin, this source of power in the hands of people networked together is, I think the single most attractive feature of the information commons to the left.”

The “broad, tactical alliance” that has emerged in the A2K movement is based on a shared commitment to basic human freedoms and practical efficacy, as played out in concrete projects led by commoners (not the state or corporations).  This make the A2K movement unexpectedly robust and powerful.  Whether this alliance of strange bedfellows can cohere and advance – and through what means – are key questions going forward.

The movement, as Krikorian points out in her introductory essay, shuffles the deck of cultural politics and even economic critiques.  It re-introduces moral questions to politics by questioning the traditional prerogatives of property ownership through the idea of “access.”  But the movement is able to appeal to a diverse array of constituencies by relying on a term, "access," that has multiple, sometimes vague meanings.  A2K advocates are thereby able “to elude a number of pitfalls, whether these be representations they wish to evade (dominant ideologies, political labels) or political traditions they do not want to identify with or be identified with because they seem outdates and do not appear to offer successful avenues for change.”

As a result, A2K cannot be pigeonholed in the traditional left/right ideological spectrum.  Yet it also remains doggedly fragmented and networked, which means that its role in the firmament of mainstream politics is fitful.  A2K is a creature of the networked world, not the world of centralized, hierarchical institutions.  It is not necessarily an adversary of the neoliberal policy order, yet neither can it be counted as a supporter.  A2K occupies an interstitial space, drawing its strength from disaggregated commoners.  This is both its enduring strength and, for now, its limitation. 

It will be interesting to see how the A2K movement evolves in coming years, and if it will significantly transform politics.  Revamping the ecosystems of knowledge and culture would be an achievement unto itself.  Until such breakthroughs or a consolidation of the movement occur, Access to Knowledge offers one of the most thoughtful, in-depth overviews of this important activist vanguard.  Recommended reading.

Update:  For a "virtual book party" for this book, I contributed this blog post at the Concurring Opinions blog, about the challenges ahead for the A2K movement.