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Amy Kapczynski: Access to Knowledge: A Conceptual Genealogy. In: Gaëlle Krikorian and Amy Kapczynski (eds.): Access to Knowledge in the Age of Intellectual Property. Zone Books 2010

The claim that knowledge is increasingly central to the global economy — or that the global economy is today “informational,” rather than industrial — thus must be understood as a more specific claim: that advances in the ability of humans to codify, organize, exchange, and test certain kinds of scientific and technical knowledge have created revolutionary changes in modes of economic productivity. These changes can be traced back many centuries, for example, to the advent of the printing press — a technology that made copying much more reliable and written texts much more widely available and that enabled feedback loops that allowed information to be collected and corrected over time. Newer information and communications technologies have intensified this process by increasing the speed of information transfer and processing, earlier through technologies such as the railroad and telegraph and more recently through the pervasive networking of digital technologies that we associate, for example, with the Internet. This increased capacity to codify, store, process, and exchange information has been a precondition for the development of information-intensive sectors from biotechnology to financial engineering. It is also a precondition of the shift toward more flexible, networked, information-intensive business systems such as just-in-time production. (S 20)


New systems of knowledge and information technologies also inaugurate shifts in the relationship between individuals and these processes of economic production, social control, and governance. The digital network revolution, for example, places the technologies of information production and exchange in the hands of (at least some) "average" citizens in a way that was not true in the era of the industrial assembly line and the printing press. As Yochai Benkler argues, the contemporary processing power of computers ubiquitously linked together creates a platform for new kinds of collaborative human action and production, exemplified by projects such as Wikipedia and free software. This shift creates the potential for "an increasing role for nonmarket production in the information and cultural production sector, organized in a radically more decentralized pattern than was true of this sector in the twentieth century." It also creates the possibility of new forms of political activism and new relationships between those who govern and those who are governed. One new arena where this activism has developed and where the relationship between those who govern and those who are governed has played out is the realm of intellectual property law, which has expanded globally to an unprecedented extent in the past few decades. (S. 21)


Because intellectual property law regulates strategies of information production and the appropriation of value from information in the marketplace, it has become a central battleground in the struggles over the structure and spoils of the contemporary economy. Because intellectual property law also regulates much more — from how we are able to learn, think, and create together to how and whether we have access to the medicines and food that we need to live — it has become a central site of political struggle, not just locally, but globally. Both trends have been accelerated by the explosive expansion of intellectual property rights that has occurred in recent years. In countries such as the United States, for example, intellectual property rights have become broader (covering more kinds of information), deeper (giving rights holders greater powers), and more punitive (imposing greater penalties on infringers). Supplemental measures have also been introduced to increase the technological control of rights holders and to counter the way that digital technologies facilitate copying. Anticircumvention laws have been introduced, for example, that prohibit the cracking of technological locks, such as forms of encryption that a copyright holder might place on a song or DVD to control how it is played. This shift has been called a "second enclosure movement," a metaphorical move that casts it as a modern-day analogue of the privatization of common lands that occurred in stages in England from the fifteenth through the nineteenth centuries. Metaphors of enclosure and its antipode, the commons, have been central to the attempt to mobilize against the encroachments of exclusive rights in the digital age. But they are also problematic. Drawing as it does on the post-feudal history of England, for example, the concept of enclosure domesticates what is better understood as a global phenomenon. The most dramatic expansions of intellectual property rights in recent years have occurred across, rather than within national borders. (S. 24)


The concept of the public domain is central to the new politics of A2K, although not, as we will later see, always uncontroversially so. It is drawn from judicial and legal discourse, where it has long been used to refer to informational works that are not covered by intellectual property law, for example, because the copyright or patent term has expired. In the 1980s and 1990s, scholars critical of the expansion of intellectual property rights seized upon the term to carve out a positive identity for the "outside" of intellectual property. As James Boyle put it, "The environmentalists helped us to see the world differently, to see that there was such a thing as 'the environment' rather than just my pond, your forest, his canal. We need to do the same thing in the information environment. We have to 'invent' the public domain before we can save it." Key here was early work of David Lange, who argued that no intellectual property right "should ever have affirmative recognition unless its conceptual opposite is also recognized. Each right ought to be marked off clearly against the public domain."

Lange’s early articulation of the term marks the abiding influence of intellectual property law on the concept of the public domain. The public domain here is defined as the "conceptual opposite" of the domain of exclusion rights protected by intellectual property. The same relationship is emphasized in James Boyle’s definition of the public domain as "material that is not covered by intellectual property rights" as well as "reserved spaces of freedom inside intellectual property." In the simplest sense, then, A2K advocates use the term positively, to bring into focus the negative space of intellectual property law and to articulate its importance for innovation and creativity. The public domain thus becomes not just the opposite of intellectual property, but also an essential — and endangered — component of our creative and informational ecology. Included herein are not just older works in the literary or technical arts, but also resources such as language and scientific theories that are free of intellectual property rights and to which we have a common right. Many of these resources were never protected as intellectual property at all, thus demonstrating that private rights are not necessary to the production of all informational goods. Such goods and the ability to use them freely are also clearly central to our ability to think and create. The emphasis on the public domain thus is used to counter "the romantic idea of creativity that needs no raw material from which to build" that characterizes the despotic dominion theory of intellectual property and to call attention to the need of every creator to have access to the scientific or cultural domain that precedes and surrounds her. Boyle, for example, contends that the “public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture.” (S. 30ff)


Sharing and openness are prominent memes in the A2K movement, deployed, to name just a few examples, for "share and share alike" copyright licenses, "open-source software," "open standards," and "open-access publishing." Sharing and openness are here posited against the ethic of exclusion embodied in the despotic dominion conception of intellectual property. A "share and share alike" license in the context of copyright, for example, uses the exclusive right permitted by copyright against itself, requiring those who modify or build upon the work to share their work with others. Copyleft licenses are premised on the same move. In open standards and open-access publishing, "openness" refers to different practices. The former insists that technical standards not be dominated by the rights of certain intellectual property owners and the latter that certain publications (for example, those that are the product of research funded by the government) be made available in databases that are available generally to the public without a fee. What work does an insistence on sharing and openness do when measured against the despotic dominion account of intellectual property? For one thing, it raises a challenge to the neoclassical model of the rational, self-interested actor upon which that account is based. As Yochai Benkler has noted, the very existence of free software, which is developed largely by unpaid volunteers who participate on the condition that their work will be shared freely with others, demonstrates that a model based on profit-driven self-interest is radically incomplete. (S. 35)