The access to knowledge mobilization and the new politics of intellectual property.

• Author: Kapczynski, Amy

INTRODUCTION I. COLLECTIVE ACTION AND FRAME MOBILIZATION II. FROM INTELLECTUAL PROPERTY TO ACCESS TO KNOWLEDGE A. The Historical Evolution of Enclosure and A2K B. IP and A2K as Mobilizing Frames 1. Frame Mobilization in IP Industries 2. Frame Mobilization in A2K III. THE GRAVITATIONAL PULL OF LAW ON FRAMING PROCESSES A. Illustrating the Gravitational Power of Law 1. Architectural Effects 2. Discursive Effects 3. Strategic Effects B. The Implications of Law's Gravitational Pull CONCLUSION INTRODUCTION

Intellectual property law was, until recently, an arcane subject. Over the last decade or so, however, that has begun to change. College students in the United States have formed organizations to challenge the scope of copyright law. AIDS activists have provoked arrest to challenge laws about drug patents. Computer programmers have led street demonstrations and lobbying campaigns against software patents. Farmers in developing countries have protested in the hundreds of thousands against seed patents and the licensing practices of multinational seed companies. Whether their object is generic drugs or a free genome, free software or free culture, a disparate collection of groups is thematizing new conflicts between property in knowledge and human efforts to create, develop, communicate, and share knowledge in our increasingly informational society.

Very recently, some from these groups have begun to seek to affiliate and make common cause under the rubric of "access to knowledge" (A2K). This has occurred most notably through a recent campaign to press the World Intellectual Property Organization (WIPO) to adopt a "development agenda." Advocacy groups from North and South joined forces to support this call, demanding that the agency become more receptive to the needs of developing countries and more open to mechanisms of innovation that do not rely on exclusive rights. WIPO agreed to consider the shift, and advocates made use of the political opening to draft a model Access to Knowledge Treaty. (1) This treaty is less a completed proposal than a protean campaign platform. Its central aims are to embed a set of users' rights in information at the international level and to create international mechanisms to protect and sustain open models of innovation.

As they formulate these demands and work together, those involved are also seeking to develop a shared identity and a common critique of the existing intellectual property system. This "A2K mobilization" (2) has had some notable successes. Access-to-medicines campaigners secured the first ever amendment to a core World Trade Organization (WTO) agreement, in this case the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement. They also helped to bring down the prices of AIDS medicines in developing countries by more than ninety-five percent, embed significant procedural protections and substantive limits in the new Indian Patent Act (and thereby potentially affect the prices of medicines globally as well as in India), and persuade the World Health Organization (WHO) to consider proposals for new international mechanisms to better align medical research and development (R&D) with global health needs. Free-software programmers, supported by major corporations with investments in open-source software models, helped prevent the passage of a directive that would have codified the availability of a broad range of software patents in the European Union. The private ordering schemes introduced by proponents of free software and "copyleft" licenses have proliferated rapidly. Free software is well integrated into the IT industries, and Creative Commons copyright licenses govern more than sixty million works around the world today.

Significant changes are also underway at WIPO. The development agenda process has led to institutional changes within the agency, such as the creation of a new standing committee on IP and development, and has been credited with derailing the negotiation of a Substantive Patent Law Treaty--an effort that has been a high priority for the United States and European Union. In the United States, the Supreme Court has recently and repeatedly intervened to diminish the strength of patent rights, though just how substantially is not yet clear. The U.S. Congress is seriously considering patent reform that would have the same effect. These signs suggest that the tide of expansion in IP law that has characterized the past thirty years may be slowing, and in some areas, even ebbing.

All of this ought to be somewhat surprising. The public choice accounts developed in IP scholarship to explain the strengthening of IP law over the last thirty years suggest that such a countermobilization is highly unlikely, or even impossible. (3) How, then, can we account for the new A2K mobilization and its apparent successes?

This Article addresses this question, and in doing so contributes to two fields that are rarely if ever discussed together: IP scholarship and law-and-social-movements scholarship. The Article has several aims. First, it offers an account of the A2K mobilization and shows why this new mobilization should lead us to supplement existing theories of the political economy of IP law with theories that can elucidate the mediating role of interpretation in political mobilization. Second, it demonstrates the importance of what sociologists call "framing processes" to the dynamics that are shaping this area of law and the sometimes perverse effects that these processes have on both A2K activists and those who oppose them. Third, it uses the A2K case study to illustrate the "gravitational" pull that law can exert on framing processes and to hypothesize some of the kinds of effects that this force can exert on those engaged in mobilization.

To fully describe, understand, and ultimately intervene in IP law today, we must, I contend, turn to the literature on "frame mobilization" that has developed in the discipline of sociology. This literature investigates how social actors engage the field of ideas to theorize their interests, build alliances, mobilize support, and discredit their opponents. Using framing theory, we can see that recent flux in IP law has been filtered and organized by conceptual flames in ways that are nontrivial. Frames affect what the players understand to be their interests, whom they believe to be their allies, and how they justify the change they seek. These frames direct as well as reflect material circumstances, and as a result, the domain of the political cannot be mathematically reduced to the domain of the material.

Many of those who offer public choice explanations of the state of IP law in fact acknowledge this. My contribution is not to introduce the notion that acts of interpretation matter to the field of IP, but to offer a theoretical paradigm that permits us to systematize and extend this insight, and to relate it formally to existing public choice accounts of the politics of IP. Framing theory helps us see how groups engage in socially mediated acts of interpretation to theorize their interests and the ways these interests can be realized.

Importantly, the imperative of interpretation applies not only to those engaged in social movements, but also to actors in more rationalized institutional contexts, including in the domain of business. This Article thus applies framing theory not only to the A2K mobilization, but also to the mobilization of industry that preceded it. It is unusual to use the tools of flaming theory to understand collective action in the corporate domain, perhaps because businesses are often excluded by definition from the social movement literature. But corporate actors also need accounts of their interests and theories of how to advance them, as the flame-analytic perspective helps to show.

Framing theory also illuminates the paradoxical effects that interpretive processes can have on groups engaged in framing contests. By examining the evolution of the A2K mobilization, we can see concretely how engagement with law can bring actors locked in a struggle over law into alignment with one another. This illustrates the "gravitational" pull that law can exert over framing processes. Law can exert this power because it is a key location for normative and symbolic meaning making, and because it links norms and language to force in a manner that is somewhat--but not fully--permeable to the claims of social actors. Law thus holds out the possibility that those who speak in its terms can translate their ideas and interpretations into concrete change. But it also has a historical and institutional weight, one that exerts a pull on those who operate within its field. Using the A2K mobilization as a case study, we can begin to identify different kinds of effects that law can have on framing processes, including what I call "architectural," "discursive," and "strategic" effects. Building on these examples, the Article explicates some of the possible implications of law's gravitational pull. Engagement with law can, I contend, have an integrative effect on social actors, creating areas of overlapping agreement and--as importantly--a language of common disagreement between opposing groups. "Disagreement" here means something very specific: the circumstance where "interlocutors both understand and do not understand the same thing by the same words." (4)

The Article closes by theorizing some of the implications of this point. The integrative effect that engagement with law can have will be of interest to those who design legal institutions because it suggests that social actors struggling over the terms of law can end up strengthening and legitimating law in the process. It should also be of interest to those who engage in social mobilization because it suggests that engagement with law can change the language and aims of a movement, bringing it into outward alignment with its opponents. This may be...