Tagged: commons

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Property rights and Brett Frischmann’s social value of infrastructure

Brett’s book is a very valuable addition to the literature on the governance of infrastructures. Just the collection and summary of a huge variety of references would be valuable by itself, as a guide to literature. And then there are Brett’s own contributions in this volume, only some of which have been published before.

I was only able to skim through Brett’s book, so cannot provide a careful evaluation of it. But one point that might be worth making explicitly is that at a basic level, his argument for a commons approach to infrastructure regulation is the same as that of the currently dominant private property rights movement.

Why are clear and secure property rights important? Because they provide assurance to entrepreneurs and investors that the fruits of their money and efforts will not be misappropriated by some Robber Barons. But lack of restrictions on infrastructure providers means that they can act as Robber Barons with regard to other businesses, appropriating the fruits of their investments. Lack of regulation of monopolies is similar to a lack of law.

That this is an issue can be seen in numerous instances, such as the article about U.S. railroads in the Sept. 26, 2011 issue of Fortune by Mina Kimes, “Railroads: Cartel or free market success story?”  A chemicals company covered there decides to expand in Texas and not in West Virginia because in Texas their site “has access to three railroads,” whereas in West Virginia it is captive to a monopoly that can charge far above its costs.

Thus the issue is really about protecting property rights of either the infrastructure providers or the economy at large. Where should the balance lie? It should be said that this is not a rhetorical question, as historically, it has often been the case that infrastructure providers were often given more leeway to engage discriminatory pricing when the costs of the infrastructure were high.

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Public Choice: More than a Mere Footnote in Infrastructure Policy Discussions

[My thanks to Deven Desai, Frank Pasquale, and all the folks here at Concurring Opinions for inviting me to contribute to this symposium on infrastructure policy and Brett's important new book on the topic. -- AT]

As a textbook, there’s a lot to like about Brett Frischmann’s new book, Infrastructure: The Social Value of Shared Resources. He offers a comprehensive and highly accessible survey of the key issues and concepts, and outlines much of the relevant literature in the field. The student of infrastructure policy will benefit from Frischmann’s excellent treatment of public goods and social goods; spillovers and externalities; proprietary versus commons systems management; common carriage policies and open access regulation; congestion pricing strategies; and the debate over price discrimination for infrastructural resources. Frischmann’s book deserves a spot on your shelf whether you are just beginning your investigation of these issues or if you have covered them your entire life.

As a polemic that hopes to persuade the reader that “society is better off sharing infrastructure openly,” however, Frischmann’s book is less convincing. It certainly isn’t because I can’t find examples of some resources that might need to be managed as a commons or a collective resource. But there’s a question of balance and I believe Frischmann too often strikes it in favor of commons-based management based on the rationale that “citizens must learn to appreciate the social value of shared infrastructure” (p. xi), without fully appreciating the costs and complexities of making that the paramount value in this debate. Read More

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The Age of Intellectual Property?

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:
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A2K Challenges Ahead

Reflecting on the book and thinking about the future, I am struck by two major challenges for the A2K movement:  the building of new synapses of communication and collaboration among the many fractal parts of the movement, and reducing the gap between A2K expert-practitioners and the general public and key user-constituencies.  The latter are often clueless about the practical political and policy issues at stake, yet their support is critical to moving an A2K agenda forward.  And the limited interconnection of so many A2K initiatives represents an “under-leveraging” of opportunities.

These two challenges — building synergies and consolidating the movement — are related, I believe, and should be discussed in tandem.

Simply by assembling so many essays about A2K, Access to Knowledge in the Age of Intellectual Property helps show the rich breadth of A2K initiatives and thinking.  This is helpful for both expert-practitioners and the lay public.  We are all parochial in many respects.  The book provides a valuable common body of knowledge so that each of us can begin to take stock of the whole.

But the overview that the book provides also highlights, paradoxically, the many gaps between A2K communities and each one’s relative isolation.  How much are the access to medicine people involved with open access publishing gambits and those, in turn, with free software and commons-based knowledge and innovation communities?  Some, but clearly not enough.

People can debate whether this is good or bad thing, or simply a fact of life in the networked world.  I think that further progress in advancing A2K principles requires that we find new ways to stimulate “inter-tribal” communications and active collaboration on a broader agenda.  The example of the Free Culture Forum in Barcelona is one admirable attempt to address this issue.   Surely there are other ways in which federated cooperation could be intensified, with overall benefits to all A2K factions.  The foundation world could play a useful role in this regard.

As for bridging the gap between A2K practitioners and the general public and key constituencies, this book represents an important step.  However, we need to dream up new ways to engage oblivious mainstream institutions.  This includes not just the “usual suspects” — the press, politicians, universities, etc. — but also many progressive advocacy groups who remain mired in the pre-digital paradigm of centralized institutions, credentialed expertise, proprietary control of knowledge, etc.  As Herve Le Crosnier points out in his post, overcoming cultural prejudices is a long and difficult proposition.  While many elements within higher education, mainstream journalism, government agencies, scientific researchers, cultural nonprofits, and creative sectors understand one or another aspect of the A2K movement, I think we need to cultivate deeper levels of understanding and commitment.

I’m not sure if the challenge is about developing a common language (I have been focused on the commons as a lingua franca, but there may be others) or about developing the working personal relationships.  Or a larger, common agenda.  Or maybe certain game-changing developments in the political culture need to occur (e.g., WikiLeaks, Arab revolts fueled by Internet-based media) before the potency of the A2K and related worldviews can “go mainstream.”  These are some of the questions that I think are worth pondering.

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The shift to IPR resistance in social movements

It takes a lot of time for social movements to understand the political role of Intellectual Property Regimes. For a long time, especially in France, where I leave, and where Droit d’Auteur is considered as a national treasure, the shift for diverses approach to « protect » authorship, inventorship, and others neighbouring rights in the cultural industry, to a one-size-fit-all « intellectual property » was unknown to social movements, and even to political parties. Just as a reminder, in 1998 the database law, which is clearly in opposition with the very nature of copyright, was passed with unanimity. No political fracture, not even discussion on this subject. It takes until 2005 for the french parliament to have a real debate on IPR… and to discover the very political nature of what was formely seen as « neutral protection for art, culture and innovation ».

We have to thanks the Access 2 Knowledge worldwide movement to be the very first actor for this change, and praise the diverses contributors, and the coordinators Gaelle Krikorian and Amy for the publication of Access to Knowledge in the age of intellectual property book, which document all the aspects of the new emerging opposition in this field.

As far as we follow international negociations, we can discover the very project that such different sectors as Hollywood, the Big Pharma and the Silicon industry wrote in the international agenda during the eighties : to grant a new commercial vision of their activities not only to extend their market, but also to be sure that sharing, which was the heart of culture, of medicine, and of the nascent software community, will be stopped.

IPR is not only a regime of « property », but is also a way to control the user. It’s a long time control of usage of what was once a « property ». And a longer one each time the public domain is eroded. The new networks, the methods of analysis such as in the biochemical industries, and other tools of « the control society » have the capacity to extends surveillance to the user. With the new technics and the new legal background, the ideological stance to see the world through the « intellectual property » scheme, as begin to enter the head of dominants all over the world, creating new battleground for the big players…

For a long time, the debate was in official salons, with soft speak and self-recognition… until the peasant movements (notably The Via Campesina) and the movement of ill-people, mostly people living with AIDS, enter the dance. They join the long time opposition of the Free Software movement, and met the democratic option of librarians all over the world. So they show the very complexity of the subject… and the new need for coordination to confront the ideological, commercial and practical domination and control of « rights owners » and their State’s servants.

That’s the very central role of the A2K movement : to show other social movements how important it is to maintain the free sharing of « intellectual » information, from user to user, from North to South, from voluntary sharing people (the « commoners » as David Bollier name them),… The copernician change in the way to think about IPR that it was to concentrate on « users rights », was the signal that most social movement understood. At the present time, the message of « the Commons » is the proud child of the A2K movement, and it is gaining importance, as the World Social Forum that is to be held in Dakar next week is showing.

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Information commons and global democratic capabilities

Most chapters in the Access to Knowledge in the age of intellectual property book have been initially drafted several years ago.  As we are holding from today a 3-days on-line symposium to celebrate the publication of the book, the ideas covered in the book prove to be not just resilient, but at the heart of a difficult but exciting democratic renaissance.

As many, I joined the Access to Knowledge (A2K) movement from a specific perspective. For me, it was advocacy for commons-based innovation and culture, and struggles against legal and policy mechanisms that threaten their potential. Underlying this involvement was a wider perspective: the idea that information and communication technology (ICT) are at the root of new human capabilities, and that the a proper legal, policy and cultural environment will decide how well we seize this opportunity. As I write these lines, the link between ICT, freedom of expression, democratic empowerment and human development is hot news. And with these news come new questions and challenges.

When my book Cause commune: l’information entre bien commun et propriété was published, I did not invest much energy to get it translated in English, as the aim of the book was to reformulate American knowledge commons-thinking for European, emerging and developing country readers. But one day, I received an email from a Tunisian translator, Abdelouadoud El Omrani, who offered to produce a voluntary translation of the book in Arabic. It ended being published as a paper book by the Qatari National Centre for Culture, Heritage and the Arts, disseminated on the Internet under a Creative Commons license. Let’s be frank, I am not sure that many people read this book in Tunisia (where many likely readers read also French) or in Egypt. That’s partly because the distribution of books (and even ideas) is still very segmented in the Arabic world, and partly because potential readers had more urgent things to do. However, the publication brought me to visit a few Arabic-speaking countries, and to meet Internet users, knowledge sharing advocates, lawyers and writers from the Arab world. I witnessed their courage, their inventive use of poetry and fiction (when they explained it to me, as I don’t understand any Arabic), whether in face of authoritarian regimes for instance in Tunisia or Egypt or in face of the totalitarian imposition of religious prescriptions on individuals, for instance in Saudi Arabia1.

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