Andrew Rens - Open Lawyering for Change

by Chris McGivern, 10 January 2023

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Created by Jason Hudson (CC BY 2.0)

Andrew was appointed as Intellectual Property Fellow between 2007 and 2010, amongst the first cohort of individuals welcomed into our new Fellowship model.

He still works closely with the Foundation today as a close friend and ally, acts as our legal counsel, and his work with us over the years has laid the legal foundations underpinning all of our Fellows’ achievements.

Throughout this period, Andrew has witnessed the many incremental changes within the Foundation as we have refined the programme and explored new fields, and his journey is intrinsically linked with our own. This is Andrew’s story and outlines his drive to ensure that knowledge is open when technology changes the law.

“The contrast between my previous experiences with philanthropic funders and the Shuttleworth Foundation - the speed at which they moved and the freedom that they gave me - was unbelievable.”

  • Andrew Rens

Andrew Rens: The Background

Andrew Rens cut his legal teeth as a young, politically progressive human rights lawyer at Wits Law School’s Clinic in South Africa during the early 1990s, at a time when the country was bringing an end to apartheid, embracing democracy, and opening itself up to the world.

But while South Africa focussed on creating democratic institutions and dealing with the lingering effects of a traumatic past, new challenges were already at hand. HIV was rapidly reaching epidemic proportions. Many young, black lives with massive potential to create a difference in their contemporary society were lost.

Simultaneously, the WTO was introducing the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a set of trade rules on copyrights and patents demanded by the music and pharmaceutical industries, designed to secure intellectual property privileges above all else. It was pushed heavily by lobbyists, who seized on the opportunity for intellectual property intermediaries to lock up knowledge rather than offer access to the people and nations that needed it most.

The combination of these two realities sat uncomfortably for Andrew.

“I was practising public interest law at the time, but interested in law and technology,” he recalls. “In discussions of law and technology at the time, no one was talking about what this meant for most Africans. Then, the Internet arrives and throws everything we knew about law in the air.

“At first, I was told that these two areas - technology law and public interest - did not connect. But as I became involved in policy discussions around how South Africa should regulate the Internet, the connections began to emerge. There were technologists, business people, and government officials in the room. Often, I was the only person asking how these changes would affect the deprived and disadvantaged. In South Africa, that is the majority of people.”

Creative Commons, Sweat Equity & the Night Shift

Anticipating the potential impact of the Internet on law and seeing the damage caused by the rigidities of the global intellectual property regime at first hand, Andrew completed a Master’s, his research focussed on Intellectual Property Issues on the Internet. He stayed at Wits Law School, working there for several years. During that time he pioneered a slew of new IT courses and taught graduate students until 2003, when he had a chance to experience the digital revolution at its epicentre; the Bay Area.

Once there, he took up an offer to establish a South African version of the CC license - a perfect fit for his background, experience and education - which he started researching as a Fellow at the Stanford Center for Internet and Society. In 2005, he ported the Creative Commons suite of licences to South African law.

On returning to South Africa, Andrew continued to push access to knowledge, open licensing, and freedom to innovate. He was heavily engaged in advocating for copyright exceptions and against software patents, training people to use Creative Commons licences and researching how to increase access to knowledge. But his work for two nonprofits he co-founded - the African Commons Project and Freedom to Innovate South Africa - was entirely voluntary.

Andrew worked as an attorney by day and did advocacy, research, and updating Creative Commons licences whenever he could; typically at night and on weekends. “I built an infrastructure for Access to Knowledge, working with the Creative Commons license that anyone can use without concern over government action. I was fortunate that I worked for a law firm where the founding partner, Andrew Garratt, was very supportive,” he recalls. “He’d try to make time for me to work on these burning issues, but the other partners were unhappy. As far as they were concerned, I should be making them money.”

He also sought funding for socially beneficial work. “You have to do a lot of unpaid labour creating a funding proposal,” he says. “I was fortunate enough to be able to do that while working a day job, but many would-be change-makers in Africa do not have that as an option. They never get a chance to try their ideas because they can’t miss a month’s salary; too many people depend on them.”

New Beginnings at the Shuttleworth Foundation

Andrew became a Shuttleworth Foundation Fellow in 2007, in recognition of his expertise, commitment to open knowledge and licences, and exceptional work towards creating a better, more equitable world. The offer came at a good time for both Andrew and the Foundation, which was undergoing a change of funding model at the time.

“I was on the verge of getting a job at the incumbent telecommunications company,” he explains. “But then I got the Fellowship. The contrast between my previous experiences with philanthropic funders and the Shuttleworth Foundation - the speed at which they moved and the freedom that they gave me - was unbelievable.

“The Foundation was determined to be different. Its starting place was that philanthropy is broken, and it could find a better way. Another important contrast was the team really wanted to know what I wanted to do.

“The Foundation was already committed to using open source thinking to address new challenges, beyond software. But we needed to work out what that meant in practice, establish it as the DNA, and raise the Fellowship’s reputation.

“I knew that we would be figuring this out together.”

The Fellowship Years

Between 2007 and 2010, Andrew produced an impressive volume of essential and necessary work. In a twist, one of the first places for his work to change things was the Foundation itself. Many of the legal definitions, contracts and aspects of the Foundation programme today seem humdrum; they’re almost part of the furniture for our current Fellows. But in 2008, all of those pieces needed putting in place.

“The Foundation was a pioneer in making what it funds open, preceding other funders by many years. Eventually, the idea of requiring open has caught on,” says Andrew. “Now philanthropists like the Gates Foundation routinely require that research which they fund must be open-licensed at least in terms of copyright.”

“The Foundation took the lead in thinking about the benefits and strategy of open in very practical, detailed language in contracts and other documents. This needed expertise from someone - that person was me. I’ve spent hours rewriting documents to make them precise, but also clear and workable.”

Society has also benefited from Andrew’s determined, rigorous and strategic legal mind. In 2007, he helped the Foundation, with some support from the Open Society Foundation, intervene and block a proposed merger of Pearson PLC and Harcourt Education International operations in South Africa, which would have led to fewer textbooks on the desks of the poor in South African classrooms.

He also worked with a coalition of South African techies to oppose Microsoft’s attempt to make its semi-proprietary OOXML format an ISO standard. While document standards may seem technical and boring, the document standards a government chooses has enormous impacts: it affects how it works with citizens and whether it has continual legal access to its own documents. And he managed to sneak some legal clarity into a jointly drafted document produced through the differing - and sometimes heated - arguments of a broad-ranging group of activists in the Shuttleworth-hosted Cape Town Open Education Declaration.

But some of the fruit of the Fellowship came from simple conversations. “I had an opportunity to educate many people on open and how openness would be realised in their area of operations,” says Andrew. “I spent time talking to Philipp Schmidt about open in education - he later became a Fellow. I worked with Kabir Bavikatte on open licences to help indigenous knowledge communities, and he later became a Fellow. I remember sitting down with Arthur Attwell over a glass of wine on a stormy Cape night to talk about what open would mean for publishing in South Africa - he later became a fellow.”

It has also taken time for some of his early work to come to fruition - a necessary evil of being 10-15 years ahead of the rest - particularly in the realm of advocacy and changing the thinking of government officials and regulators.

“Advocacy is challenging everywhere, but especially so in South Africa,” Andrew explains. “You demonstrate how and why the law should change, but you cannot control the policy calendar. You can’t make the issues come to the boil in your own timing, certainly not with the resources that nonprofits can muster.

“In the Foundation we talk about how many of the fellows are ahead of their time” he continues. “For some, that is an advantage. They have time to experiment with something and figure out how to get it right. But for others, it means results take a long time.

“The work one does may seem to die, but it can be a seed of change that bears fruit later on. By then, plenty of others will have done their part to bring about change, so it’s no longer just one person’s efforts. That itself is a success; when the demand for change has achieved a momentum of its own.”

Making Open Real

Following his Fellowship, Andrew established a consultancy to assist policymakers, social entrepreneurs, and governments dealing with law and tech challenges.

He has been an advisor and technical expert on openness and the law for the Association for Progressive Communications and to a White House-initiated project, and led an African network of researchers applying human rights to intellectual property, funded by Open Society Foundations. He was awarded a doctorate by Duke Law School, where he was mentored by James Boyle, for his thesis on the legal machinery of open educational resources, and has been resolute in pursuing policy change on the issues that drove his fellowship years. At the Internet Governance Lab in Washington DC, he worked on governance of the Internet of Things.

At present, Andrew works on AI policy issues at Research ICT Africa in Cape Town while consulting on technology and law issues.

Importantly for the Foundation, Andrew is still an integral part of the Shuttleworth community. After his Fellowship, he was invited to continue contributing his skill and knowledge to the world of emerging open projects as its legal counsel.

Over the years, Andrew has experienced the Fellowship’s gradual iterations as the vision developed and the model improved. He has been integral as the Foundation has explored new challenges in applying open to different areas such as open data, hardware, science and biotechnology.

“But this is not just my story,” he continues. “The Foundation team spent serious time on the minutiae of open licensing. It required steady long-term commitment from the leadership; to pay me to do the work, to work through these documents with me, and to make them their own. It needed patience from non-lawyers for legal intricacies, and a commitment to making open real.”

The past decade has brought massive change over the world and with that change comes new challenges; food security, equity in knowledge production, and much more. The Shuttleworth Foundation has supported open solutions for many of these issues.

“There are always new challenges,” says Andrew. “How can knowledge be made open while protecting privacy? How can marginalised communities share their knowledge but keep control of it? How can conservation tech make knowledge open without making animals vulnerable to poachers?

“Working with the Foundation, we have tried to make open real in new contexts. When the Foundation invests in social enterprises, it knows that the pay off is long-term. So the commitment to open has to be long term. We needed to go beyond licences and contracts. So I took a look at the strategies used to keep publicly held corporations on-mission and came up with the Open Lock.

“This is a provision in the founding documents of a company which requires that knowledge resources must be distributed under open licences. It can’t be changed without the agreement of key stakeholders. The idea is spreading, and a number of social enterprises have included open locks in their corporate documents.

“One way in which this commitment to open has benefited the Foundation is that when people want money they are often willing to say anything to funders, including that they believe in open source,” he continues. “But when they have to sign a contract to make their work open, they shy off. The detail of open is a good litmus test of whether someone is committed to changing the world.”

Tandem Strategies for Change

Andrew continues to champion marginalised people at the intersection of law and new technologies. A slew of new technologies - Artificial Intelligence, the Internet of Things and biotech - are combining into a Fourth Industrial Revolution that promises to be as transformative and disruptive as the Internet. Andrew is determined that the changes brought by these technologies will not be to the detriment of human rights.

“There are two approaches to dealing with new legal issues raised by new technologies,” Andrew explains. “One set of strategies is about creating the law at national and international; the other uses legal tools including open licences, standards, and contracts in innovative ways.

“What I call ‘open lawyering’ involves devising legal strategies, and working them out in contracts, licences and negotiations usually gets results much quicker. Then there is my work in policy research. It isn’t always obvious when particular ideas one has written about directly influence change, but it always benefits my other areas of work. Ideas matter. I am a better legal advisor because of my policy research and a better policy advisor because of my legal work.”

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