A2K Research Series

Access to Knowledge Research Series

The Information Society Project at Yale Law School
With support from the John D. and Catherine T. MacArthur Foundation
INDIA

Access to Medicines in India: A Review of Recent Concerns
By Chan Park & Arjun Jayadev

India has long been a central front in the struggle for access to affordable medicines. Because of its dynamic generic pharmaceutical industry, it has become what Médecins Sans Frontières has called the “Pharmacy of the Developing World” (MSF 2007). As a result, it has also been a key battleground on some of the most contentious issues relating to whether, and to what extent, countries retain flexibilities under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property (the TRIPS Agreement) to ensure that patent protection does not come at the cost of access to safe, effective and affordable essential medicines. This chapter reviews some of the key developments in India, four years on, since the entry into force of the Patents (Amendment) Act of 2005, which introduced product patent protection for pharmaceuticals for the first time since 1972. Although there have been some notable successes for the access to medicines movement, many challenges remain, and the future of India’s continuing status as the developing world’s pharmacy remains unclear. This paper examines some of the key challenges and opportunities that lie ahead for India.   
Regulating Access to Knowledge: Traditional Knowledge Policy in India
By Sudhir Krishnaswamy

A key proposition of the access to knowledge movement is to promote the dissemination of knowledge and culture without legal restrictions and liberated from the structural iniquities of knowledge markets. There are two types of arguments which lend support to this proposition: philosophical arguments about the requirements of distributive justice and property and aesthetic and epistemological arguments about the nature of creativity in knowledge and culture. Movements to protect and preserve traditional knowledge are often at odds with this central proposition of the A2K movement as they argue for restrictions on transfer and use of traditional knowledge and culture. Critics argue that the ‘public domain’ and ‘access to knowledge’ are categories that pay too little attention to the cultural and ethical settings in which traditional knowledge is created, preserved and regenerated as well as the political economy of knowledge transfers. These arguments may be described as the ‘culture’ and the ‘politics’ argument respectively. If these arguments are right, then A2K has no useful contribution to make in the domain of traditional knowledge policy in India. This paper argues that a critical review of the evolution and practice of traditional knowledge law and policy in India reveals that the the tension between Access to Knowledge and the protection of traditional knowledge is neither necessary nor empirically supported.

Public Libraries and Access to Knowledge (A2k): A History of Open Access (OA) and the Internet in India in the 19th and 20th Century
By Prashant Iyengar

This paper examines the role that public libraries in India have played in the expansion of access to knowledge. Beginning with an account of the development of the library movement in India over the past two centuries, the paper discusses new initiatives including Digital Libraries and electronic repositories of theses and dissterations (ETDs) are being experimented with in order to increase the range of materials available to the public. The paper also looks at the impact of changing readership patterns and the availability of cheap printed materials, including pirated materials and the impact the latter have on Access to Knowledge.

Piracy, Creativity and Infrastructure: Rethinking Access to Culture
By Lawrence Liang

This paper raises a series of questions on the relationship between piracy, infrastructure and access to culture. Piracy has always posed a representational problem within contemporary discourses on law, public good and creativity. Piracy seems to allegorize an impure transgression, tainted by commerce and an inability to produce a discourse on itself. Pirate production of commodities and media objects fits neither a narrative of resistance nor normative critique, nor does piracy seem to fit received models of creativity or innovation. Piracy produces a series of anxieties: from states, transnational capital, and media industries and even within some liberal proponents of the public domain. The paper reframes the problem of the pirate through an examination of the content/ infrastructure binary, and questions existing assumptions about creativity, subjectivity and transformation, commodification and social life.

CHINA

Genetic Resources and Traditional Knowledge Protection in China
By Guobin Cui

The study is divided into four parts. 1) An assessment of the significance of "biopiracy" cases involving genetic resources and traditional knowledge found in China. Since the source of genetic resources/traditional knowledge is usually not disclosed in patent applications, attempting to uncover unknown cases of "biopiracy" raises obvious difficulties. The focus here is on biopiracy cases available from public media. 2) An assessment of the significance of Chinese genetic resources/traditional knowledge in the research activities of pharmaceutical, cosmetic and biotechnology companies, both in China and abroad. 3) A brief review of China's patent and other laws as they relate to questions of prior informed consent and benefit sharing. 4) A discussion of the main knowledge gaps that exist in the areas outlined above and suggestions for research projections - including data collection exercises - that would help to close those gaps. The study concludes by outlining the main challenges that China has to face, and the author's views on the legislative models and negotiating strategies that China might choose.


The Influence of Intellectual Property Rights on Chinese Education
By Guo He

Intellectual property rights can serve as a mechanism to encourage intellectual production. The accompanying controls on reproduction rights, however, can also restrict the freedom to disseminate knowledge. This can be contrary to the mission of education, the essence of which is precisely the dissemination of knowledge. This essay explores the impacts, both positive and negative, of intellectual property protection on the availability of educational resources in China. Particular attention is paid to the role of exceptions and limitations to copyright, that may be able to alleviate the negative impact while preserving the positive. The use of Creative Commons licenses is also discussed.

The Myth of Collective Authorship in Folklore Works
By Guobin Cui

The question of copyright protection for folklore works is a contentious issue. Fueled by cultural nationalism and trade utilitarianism in international politics, China and other developing countries seek to exploit the economic value of these works. Traditional communities in developing countries are pushing for a sui generis protection system. The distinction between folklore works and works of individual artists, however, has no legal significance. This author proposes to abolish the concept of collective authorship, and treat folklore works as ordinary works created by individuals. While the general form of folklore may be in the public domain, its specific expressions should be credited to individual authors. A sui generis system, therefore, is unnecessary and unwise.