It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over [...]]]> Are we in the Age of Intellectual Property?

It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over time. (It controls for the fact that there are many more books being published today.)

If you haven’t already played around with this tool to explore your own topics of interest, you should. While you’re at it, take a stab at explaining why writing on the Supreme Court rose steadily until approximately 1935 and has dropped just as steadily ever since!

Back to our topic, though. What does this data reveal about the prominence of intellectual property in published discourse?

I generated two graphs, both charting the terms “intellectual property,” “copyright,” “patent,” and “trademark.” First, the longview:

Relative frequency of IP terms in American English since 1800

Since 1800, patents have been a far more popular topic of conversation and study than trademark and copyright law. Perhaps not surprisingly, given the persistent popular interest in science and invention.

References to patents peaked quite dramatically in 1890. (The exact date can be pinpointed if you remove smoothing from the graph, visit here to manipulate it yourself.) This pique/peak of interest coincides with the founding of General Electric (based on Thomas Edison’s lightbulb patents), the passage of the Sherman Antitrust Act, and the 100th anniversary of the first US patent statute.

For much of these two centuries, reference to “intellectual property” – the conceptual grouping of patents, trademarks, and copyrights taken so much for granted today – was virtually nonexistent. That really changes only in the past few decades. Here’s the view since 1960:

Relative frequency of IP terms in American English since 1960

A few changes stand out over these five decades. Patents finally lose their position of prominence as the American public takes increasing interest in copyright. Not surprisingly, this coincides with the emergence of the Internet.

Ayn Rand

The more dramatic shift, however, is the change in fortunes of the term “intellectual property.” What we’re seeing here is the invention of a new concept. People had long written about patents, copyrights, and trademarks. But the idea of “intellectual property” was a new one.

One of its earliest appearances is a 1967 Ayn Rand piece (Alan Greenspan is listed as an editor). Rand sought to dispel the traditional conception of patents and copyrights as privileges granted by the government, positioning them instead as quintessential examples of property.

The remarkable success of this idea – in culture and in the law – is self-evident today.

Compared to the last 200 years, the last fifty reveal the dramatically increasing importance of copyright and trademark in public conversation. (If the public is perhaps less interested in patents today than a century ago, interest in securing them certainly continues to rise.)

Even more important than the rising importance of these individual legal terms, a new concept has emerged that underlies their moral justification, empirical study, and legal regulation. That change is what defines the Age of IP.

This idea not only opens the conversation in Kapczynski and Krikorian’s book, but underlies the very concept of the project, as underscored by the title.

The editors and contributors refuse the historically naive view that would take the concept of “intellectual property” as a given. Instead, the contributions situate IP historically, as a contested concept that various social movements seek to destabilize.

One last graph. This one uses the rising use of “intellectual property” since 1960 as a baseline to plot increasing interest in the terminology of the A2K movement: words like “public domain,” “open access,” “fair use,” and of course, “access to knowledge.”

Relative frequency of A2K terms since 1960

One way to interpret this graph is as suggesting that the term “access to knowledge” (the royal blue line) is today where the term “intellectual property” (the sky blue line) was in 1975.

Unfortunately, Google’s ngram only makes available data up to 2008. Kapczynski and Krikorian’s Access to Knowledge in the Age of Intellectual Property doesn’t yet show up on this chart. You can download the full text for free, however, from Zone Books and MIT Press.

(Also missing from the chart is Access to Knowledge in Egypt, published in 2010, thanks to Bloomsbury Academic and my incredible coeditor Nagla Rizk. “Mabrouk!” Nagla, on rejoining the Internet today. I’ll keep following your updates on the Egyptian revolution via Twitter.)

First, this question asks whether A2K should be primarily concerned with freedom [...]]]> I’m excited to be a part of this symposium discussing Gaëlle Krikorian and Amy Kapczynski’s important new collection, Access to Knowledge in the Age of Intellectual Property. The collection provides us with a foundation for considering the past, present, and future of A2K—its accomplishments, tensions, and future directions. I was particularly struck by the way in which the book’s conceptual framing of A2K issues and its discussion of advocacy strategies informed one another. This synergy was most evident for me in one of the questions Kapczynski poses in the opening chapter: “What is the nature of the freedom that A2K demands?” This question resonates for me as a human rights advocate in two important ways.

First, this question asks whether A2K should be primarily concerned with freedom from intellectual property restrictions, or something more. As Dileepa Witharana and Harini Amarasuriya note in discussing A2K strategies the Sri Lankan context, intellectual property is only one of the many barriers that restrict access to knowledge, and in many places, it may not even be one of the most significant. Coming to this discussion from human rights activism, I’ve felt that the focus on intellectual property policy—while unequivocally an important and critical issue—has nonetheless seemed to limit the transformative potential of “access to knowledge” as a lens through which to view a variety of problems. Consultations with health practitioners around the world conducted by the organization Health Information for All by 2015, for example, indicate that one of the most important problems for their members practicing in low-resource settings is not copyright restrictions on articles in medical journals, but rather the absence of reliable and good quality health reference and learning materials. Original research articles typically discuss treatments and procedures not relevant to the problems that practitioners in low-resource settings encounter in their daily work. These treatments also often require high-technology settings for their application and are written in languages and styles that are often inaccessible.

Access to knowledge could be a tremendously powerful lens for addressing this problem, focusing us on the importance of health information in ensuring good health and challenging us to think about how to get appropriate, adequate, and reliable information both to health professionals and to the individual family members who most often provide first-line medical care. But where is the limit? Should A2K also be concerned about training paraprofessional health workers to provide health information to rural communities? With ensuring that health workers are paid well enough that they are able to remain in the communities where they are most needed? (See the work of the Global Health Workforce Alliance on efforts to address the global health worker crisis.) Without the organizing focus of intellectual property rules, is there enough content to give direction to the movement? Or does it run the risk of being stretched too thin?

This leads to the second issue Kapczynski’s question about freedom raises for me. Is the concept of “freedom” robust enough to provide the movement with direction in the areas beyond intellectual property policy? The idea of “freedom” needs content. What are the purposes that this freedom is to serve? Freedom from want? From fear? As Heeseob Nam asks in a roundtable on strategies, “Why do we need access to knowledge? For innovation or culture? For empowerment? Or for ensuring human rights?”

On the one hand, perhaps it is enough for A2K to be focused on freedom to access knowledge, bringing attention to the way in which knowledge affects a variety of different values without choosing between them. As Hervé Le Crosnier observes in his contribution to this symposium, one of the major contributions of the A2K movement has been “to show other social movements how important it is to maintain the free sharing of ‘intellectual’ information.” On the other hand, common commitments to the kinds of things that freedom should protect seems to facilitate activism. One of the reasons the medicines campaign was so successful in capturing the popular imagination seems to have been its ability to connect access to knowledge to the protection of human health and life. The absence of agreement on the values that freedom should protect, in turn, appears to have contributed to the “cracks and fissures” that Susan Sell has identified as impeding organizing efforts in the areas of agriculture and traditional knowledge.

In order to continue building coalitions and tackling some of the tradeoffs involved in conflicts between different values and priorities—to develop the “unity” that Sell calls for, or the “integrated common agenda” Krikorian discusses—those working on A2K issues will need to continue discussing the values that freedom should serve and the common minimum commitments that bind them together. Perhaps one of those commitments is the capacity to produce knowledge, as Kapczynski suggests, and perhaps there are more. The purpose of such a discussion would not necessarily be to reach agreement, but to continue engaging in a process of self-definition that will allow the extraordinary energy that drives the A2K movement to evolve to address new challenges and build new coalitions.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated [...]]]> As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”

In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.

CITP’s Harlan Yu explains:

RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.

In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.

There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.