The plan emboldens groups who might have conflict with each other – law brings opponents to rally under a common cause

Amy Kapczynski, 2008, [Amy Kapczynski is a Professor of Law at Yale Law School, Faculty Co-Director of the Law and Political Economy Project, cofounder of the Law and Political Economy blog, and Faculty Co-Director of the Global Health Justice Partnership, “The Access to Knowledge Mobilization and the New Politics of Intellectual Property” The Yale Law Journal, Volume 117, Issue 5, Retrieved from the University of Michigan Database, Accessed 7/27/24, S.A.M.]

The existence and success of the A2K mobilization likewise requires us to understand not just material interests, but how people collectively construct their sense of interests and opportunities, and how acts of framing can help groups to build support, recruit allies, and exert political leverage. Many of those involved in the A2K mobilization have acute material stakes in calling for changes in IP laws. Arcane aspects of patent law can be understood to affect the lives of people with AIDS in South Africa in a profoundly immediate way, for example. But even this fact, the frame-analytic perspective tells us, requires an act of interpretation before it can be the basis of political mobilization. In South Africa, for example, high government officials responded to the AIDS crisis and the high price of patented medicines not in an anti-IP frame, but in an “AIDS denialist” frame. 221 Other interpretations are possible, including the one offered by drug companies: that AIDS drugs are sophisticated and that their high cost represents their “true” price, when the massive expenditures and risk required for their development are considered. Why then did so many AIDS patients and access-to-medicines campaigners focus on IP as a problem and on international trade rules and companies as the proper register in which to respond? Posing this question helps to elucidate a broader point: the recent politicization of IP was not inevitable, even for those most directly and materially affected by strong IP laws. Rather, it is the result of movement-building dynamics that have their roots in intersections between expanding IP law and emergent frameworks of antiglobalization, human rights, environmentalism, and cyberutopianism. The access-to-medicines campaign, for example, both understood and built claims against strong patent laws through frameworks of international human rights discourse and corporate malfeasance.222 Farmers’ rights advocates tapped into environmental frameworks and the antiglobalization movement.223 The open-source and Creative Commons movements have drawn upon conceptions of the freedom of cyberspace and the abundance of the digital age. 224 All of these frameworks both helped orient these groups toward an understanding of IP as a problem and build bridges to others who might support their cause. Access-to-medicines campaigners could use the human rights frame to create connections with human rights organizations and institutions in Geneva and New York.225 Farmers’ rights campaigners’ arguments about sustainable development linked them to environmental groups. 226 Claims for protection of traditional knowledge were framed in a way that drew connections to indigenous rights claims. Thus, each of these groups mobilized frames that made certain alliances and political arguments possible. But these acts of framing also made other alliances more difficult— including some of the alliances that are beginning to emerge under the rubric of A2K. AIDS activists, for example, have drawn on humanitarian and human rights frames to argue that medicines are “essential” and categorically more important than cultural goods like “Barbie dolls or CDs.”227 Farmers’ rights groups often take strong stances against genetically modified organisms, in conflict with those who argue for open-source biotechnology on the grounds that it will allow scientists to engineer new products for poor farmers. 228 To the extent that groups concerned with farmers’ rights and traditional knowledge draw upon antitechnological discourses, this creates obvious possibilities for conflict with those advocates of free and open-source software who see in new digital technologies a revolution in the making. How and why, then, did groups working with such different frames build bridges to one another? As the next Part argues, these groups are being brought together through an encounter with IP law itself, operating here both as a form of constraint and as a field of meaning. Law has provided these groups with a frame—that of “intellectual property”—that encourages them to understand themselves as having similar problems and interests, and that facilitates joint countermobilization against the “IP industries.” This is, of course, somewhat ironic, given the purported power of the concept of IP to promote the agenda of rights holders. The paradoxical implication here is that the consolidation of the concept of intellectual property also created a scaffold for the creation of a broad countermovement. This comports with one of the central insights of dialogic framing theory, that groups borrow discourses from their opponents. It also suggests that successful acts of framing can help to consolidate ground for opposition as well as advance the framer’s cause.

IP is the broad frame that is bringing these groups together. But these groups are also making use of narrower frames to create common arguments criticizing the existing IP system and to create a sense of themselves as related. At a recent conference, for example, a key actor in the A2K mobilization, James Love (of the NGO Knowledge Ecology International), offered the following list of terms that align the groups in question and that distinguish them from the IP industries:

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As these tables suggest, A2K groups are actively and self-consciously creating new concepts in order to construct their interests as related. Frames of the “information commons” and the “public domain,” for example, are at the heart of the A2K mobilization. The most common definition of the public domain is the realm of “‘IP-free resources,’” unprotected either because they were ineligible for protection in the first place or because they have been “freed” by invalidation or expiry of the relevant IP right. The first scholarly call to recognize something called the public domain came in 1981, but the term did not come into broader academic usage until much more recently. It has since become a central frame for the A2K mobilization (although not always uncontroversially). James Boyle explained why: “We need a change in the way that these [IP] issues are understood, a change that transforms even our perceptions of self-interest, making possible coalitions where none existed before.” This could be done, he suggested, through the development of “affirmative arguments for the public domain” and the “use of the language of the commons to defend the possibility of distributed methods of non-proprietary production.” “Like the environment,” Boyle contended, “the public domain must be ‘invented’ before it is saved.”