The Yale Law Journal


The Access to Knowledge Mobilization and the New Politics of Intellectual Property

01 Jun 2008

Once the domain of experts, intellectual property (IP) law today has become the object of popular mobilization. Activists across the globe are campaigning against strong IP laws and working together to develop new conceptual rubrics to counter the legitimacy of exclusive rights in information. This access to knowledge (A2K) mobilization is having some success, and should cause us to revisit our understanding of the tectonics of IP law. As my recent article explains, neither the recent expansion of IP law nor the new countermobilization can be adequately explained without an account of the role of interpretation in political action—and in particular, without an account of how acts of political framing both affect and are affected by law. Once we develop such accounts, we can see the special gravitational pull that law can exert on groups engaged in political contests. This pull has potentially important implications for how we understand the nature and effects of legality, especially internationally.

IP law has grown significantly stronger over the past three decades, not only domestically but also internationally. The predominant account in IP scholarship of this expansion draws on public choice theory, which treats law as the product of market forces that are directed by the choices of rational, self-interested actors. On this theory, the “market” for IP law systematically favors rights holders over copiers and the public more generally, because rights holders can obtain rents, and have comparatively immediate and concentrated interests. The strongest articulations of the argument suggested that the barriers to public mobilization against stronger IP law were effectively insurmountable.

Nonetheless, diverse groups have emerged recently to contest the trend of expanding IP law. Who would have thought, a decade or two ago, that college students would speak of the need to change copyright law with “something like the reverence that earlier generations displayed in talking about social or racial equality”? Or that advocates of “farmers’ rights” could mobilize hundreds of thousands of people to protest seed patents and an IP treaty? Or that AIDS activists would engage in civil disobedience to challenge patents on medicines? Or that programmers would descend upon the European Parliament to protest software patents? These groups have also begun to have a significant effect on IP law. For example, they have created open licensing schemes that now govern millions of works around the world, secured the first ever amendment to a core WTO agreement, and helped halt the progress of several new IP treaties. They have also collaborated to produce joint declarations and a draft Access to Knowledge Treaty. The political valence of the field has markedly changed; IP owners find themselves frequently on the defensive, and increasingly at odds with one another.

In short, constituencies and popular claims that once seemed impossible now are emerging, as advocates generate new theories of their shared interests (in, say, the “information commons” and “access to knowledge”) and new challenges to the legitimacy of exclusive rights in information. This development highlights the limitations of stylized theories of collective action that assume that social actors have fixed (and only material) interests, and that fail to address the role of interpretation in political action.

To better understand the new politics of IP, we can draw upon the sociological literature of “frame mobilization.” This literature begins with the recognition that groups mobilizing for change must engage in acts of meaning making in order to generate a sense of shared problems and possible solutions and to legitimate the changes that they seek. They do so by mobilizing “frames,” or “schemata of interpretation,” that allow people to “locate, perceive, identify, and label” experiences and events. Framing is a creative and contingent process that draws on existing social meanings, and that opens up as well as shuts down certain opportunities and alliances. Framing is also necessarily “dialogic,” evolving within and between groups and in relation to contextual factors that vary across space and time.

The frame analytic perspective can help us understand not only the A2K mobilization, but also the industry mobilization that preceded it. Consider, in this regard, a question posed by William Landes and Richard Posner about the public choice theory that they employ. If IP laws invariably create rent-seeking pressures, why did these pressures manifest themselves so acutely beginning in the late 1970s? Citing influences such as the “[f]ree-market ideology” that came to prominence then, Landes and Posner come to a perhaps surprising conclusion: “political forces and ideological currents . . . abetted by interest-group pressures that favor originators of intellectual property over copiers, may explain the increases” in copyright protection that we have seen.

We can make sense of this with frame mobilization theory. Here, “ideological currents” are framing resources that both shape and are shaped by groups seeking to gain advantages in law. The much-discussed recent proliferation of the term “intellectual property” might be understood as the product of framing dynamics as well. The term may have become popular and at the same time facilitated the claims of rights holders because it helped industry groups to characterize and promote their interests as related (“intellectual property”), and to take advantage of available legal frames to legitimate their aims (“intellectual property”).

A2K advocates are also actively creating new concepts in order to build coalitions and gain support. As one prominent A2K actor succinctly put it, “Like the environment, the public domain must be ‘invented’ before it is saved.” The point is not that material and political resources don't matter to mobilization, but that meaning itself is a kind of resource—one that structures how people value and use other resources and that conditions how people understand their common interests and how they motivate and legitimate action. (There are, of course, limits to the scope and power of acts of reinterpretation. The nature of these limits is an important subject, but not one that the article seeks to address.)

But why this coalition and why these claims? Both at times pose dilemmas for those involved. Access to generic medicines may seem to have little to do with the freedom to remix Hollywood movies, and some argue that conflating these issues has significant costs. The importance of the concept of the “public domain” to the discourse of A2K creates tension with affiliates who seek protection for traditional knowledge. Moreover, as the article shows, although many of the strands of this mobilization emerged in relationship to claims about fundamental human rights or distributive justice, key A2K documents are notable for how much they rely on frames of information economics, innovation, and competitive markets.

How, then, should we understand the interpretive choices being made by A2K actors? We might begin by recalling that groups frequently “create oppositional discourses by borrowing from the discourses of those they oppose.” Evidenced here, though, is not merely a contest over common terms, but a contest over common terms mediated by law. As described in more detail in the article, the links that A2K actors have drawn to one another mirror the categorization of IP law itself. The discourses of incentives and information economics that these actorsare adopting and reworking are of course those most commonly used to justify IP law. And the strategic choices that A2K groups are making are also influenced by the affordances of law.

The frame mobilization literature has only recently begun to address the role of law in framing processes. But as some scholars have recognized, law can exert a particularly powerful influence on the meaning-making efforts of movement actors. That is because it represents a “dual resource,” offering groups both instrumental power and conceptual resources to legitimate their aims. Legal frames are attractive to collective actors because (or where) they are “semantically permeable.” But because legal frames are also tethered to doctrine, history, and institutions, they are also semantically constrained.

The point of all of this is to show that law can exert what we might call a “gravitational pull” on movement actors. This pull corresponds not to law’s force as command, but to law’s attraction as a medium where competing groups come to make claims and disagree. This force is of interest for many reasons, as the article describes. For example, it can lead opposed groups into zones of overlapping consensus in which law can appear legitimate despite sharp contestation. This may happen, for example, when groups seek to redeem a constitutional provision before a court, or when they create open licensing regimes whose only persistent principle is that of copyright law itself, that creators should dictate the terms under which others may use their works.

To posit that law has a gravitational force is to suggest that it can join competing groups not only in agreement, but also in disagreement, or struggle over the meaning of common terms. One critical question in contemporary debates about globalization regards the degree to which publics can be built beyond national boundaries. One implication of the co-evolution of the A2K and rights-holder mobilizations is that international law and legal institutions, even those associated with prototypically “private” law, may have a key role to play in building such publics.

To posit this is to open up a new field of questions, for example, about the nature of the commonalities and disagreements that can be built across borders through engagement with transnational law. To this we might add more general questions of when, whether, and how much law will matter to the framing processes of particular groups. The article seeks to pose rather than answer these questions—and to persuade those concerned with international law and the new politics of IP that they are very much worth asking.

Amy Kapczynski is an Assistant Professor of Law at the University of California, Berkeley, School of Law. Her current research occupies the intersections of international law, intellectual property law, and health.

Preferred Citation: Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 Yale L.J. Pocket Part 262 (2008),