Categories
Economy Internet Governance Open Internet Standards

Permissionless Innovation — Openness, not Anarchy

A sign of success of the Internet is the degree to which we take it for granted. Do you trawl Lifehacker and TechCrunch to find the next need-to-have social media tool or cloud service support for your professional or personal pastimes? You’re confident that there will be a next thing, even if you don’t quite know where it is going to come from. Perhaps it’s going to come from you – you are building the next great Internet-based service and are looking for Kickstarter funding to make it real. Who do you need to ask in order to set up the service and make it available over the Internet?

No one.

Of course, that assumes you have the technical wherewithal to build the system and the (financial) ability to put it on a server and network with adequate capacity to operate it. It implicitly suggests that you are building a technology and/or service that will operate within the bounds of existing norms – technical standards, operational practices, and local laws.

This is about fostering innovation, not prompting anarchy.

The phrase “permission-free innovation” is used to describe how the Internet differs from closed telecommunications networks, where only the local operators could build, deploy, and offer new services to their customer base, and that within a stringent regulatory (permission-requiring) regime.

To have some idea of the scope and impact that Internet characteristic has had, consider the 25th anniversary of the World Wide Web we just celebrated earlier this year. I observed in a previous post, “The Web is the poster child for the “permission-free innovation” that the Internet has enabled. Sir Tim Berners-Lee did not have to ask a central authority whether or not he could write a client-server hypertext system. He wrote it; others who found the possibilities interesting downloaded clients and servers and started using it.”

In outlining the power of the OpenStand modern paradigm for standards development, IETF Chair Jari Arkko observed in an IETF blog post that the permissionless innovation principle is so core to the Internet’s technology that it is reflected in the approach to standards development that focuses on the importance of creating building blocks.

It’s not just about technology, though. Business has benefitted greatly from this approach, too. Quite honestly – if Mark Zuckerberg had to convince a business board of the sound financial case behind Facebook, would it have been supported as a productized service? Unlikely! It defined a whole new genre of online services that exceeded the imagination of others at the time.

Again, “permissionless innovation” is not about fomenting disruption outside the bounds of appropriate behaviour; “permissionless” is a guideline for fostering innovation by removing barriers to entry.

This topic is particularly timely as the most comments on the outcome document of this week’s NETMundial meeting in Brazil have been focused on this paragraph:

Enabling environment for innovation and creativity

The ability to innovate and create has been at the heart of the remarkable growth of the Internet and it has brought great value to the global society. For the preservation of its dynamism, Internet governance must continue to allow permissionless innovation through an enabling Internet environment.

Comments suggest that readers are interpreting the phrase as an attack on recognition of rule of law and existing intellectual property rights. As outlined above, that’s certainly not the context in which the term was introduced, years ago. Indeed, any serious look at how to handle intellectual property in the Internet age needs to look closely at the advantages brought by the Internet as a platform for innovation. The Internet Society remarked, in its paper on Intellectual Property on the Internet:

Comparably, when we talk about innovation without permission, we should not consider innovation that does not obey to any rules. Clayton Christensen, for instance, has argued that innovation could largely raise the probabilities of success if it complies to four rules: 1) taking root in disruption, (2) the necessary scope to succeed, (3) leveraging the right capabilities and (4) disrupting competitors, not customers. So, when the supporters of the open Internet talk about innovation without permission they refer to the ability of those who want to market new technologies to do so without having to further justify them according to existing business or other related standards. For example, the US Supreme Court has taken a similar view in Sony v. Universal Studios, Inc., where it asserted that new technology innovators do not “carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established”. We can, therefore, surmise that it is primarily the open architecture of the Internet that encourages innovation – we can call it “open innovation”.

This is a loop we don’t want to close — having come so far from the closed telecommunications networks that defined the last century, let us not undermine the Internet as a platform for innovation – technology, business, content – by taking that permissionless nature for granted.

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Internet Governance

The Trans-Pacific Partnership Agreement (TPP) and the IPR Internet-related provisions

Introduction

Last week, Wikileaks released what appears to be the full text of the Intellectual Property Rights (IPR) chapter of the Trans-Pacific Partnership Agreement (TPP). Within hours of the leak, various news outlets, including the Guardian and the Washington Post, academic experts and NGOs, all chimed in to express their concerns over (some) aspects of this Free Trade Agreement (FTA).

The TPP IPR chapter is over 90 pages long and the text is dense, complex, covering a range of intellectual property rights, including trademarks, copyright, patents and geographical indications. The text seeks to find some common ground between the negotiating nations of the United States, Canada, Chile, Mexico, Peru, Singapore, Brunei, Japan, Malaysia Australia, Vietnam and New Zealand; it seeks to address some hard questions that will eventually affect creativity, innovation and cultural expression. Such impact is not only seen in the context of the TPP – all agreements that include IPR chapters seek to create a framework to address issues of creative expression and innovation. Let’s not forget that, historically, intellectual property rights are part of a philosophy that can drive economic growth, societal development and political change. Intellectual property is based on a balanced framework of protecting authors, creators, innovators and, ultimately, the public at large.

The big question is whether the TPP IPR chapter – in its current form – supports this philosophy. This is not easy to answer as the text is highly bracketed and still incomplete. The negotiating countries are in the process of trying to understand how this chapter will affect not only their trading relations and practices, but also regional and local sensitivities. In this sense, each negotiating party will view, approach and ultimately relate to the TPP in a completely different way.

It’s also important to understand that the TPP is not just about the Internet. Unlike the Anti-Counterfeiting Trade Agreement (ACTA), the TPP IRP chapter includes only some provisions that can impact the Internet ecosystem; overall, however, it covers issues that go beyond Internet and its technologies. This doesn’t make the TPP IPR chapter less important or relevant, it just makes it an agreement with a broader subject matter.

For the purposes of this blog and as we continue to absorb the details of this agreement, I will focus on two issues directly related to the Internet: copyright (in the context of intermediary liability) and trademarks (in relation to domain names).

Copyright and Intermediary Liability

The TPP negotiating partners appear particularly split with regards to intermediary liability and this split relates to the role and responsibility Internet intermediaries should acquire. Should Internet intermediaries be proactive in removing and filtering content or should they retain their original role of not ‘checking’ content? What should be the legal framework intermediaries should adhere to?

The issue of intermediary liability is not new and it has no easy answers and no easy solutions. ISOC has been consistent in suggesting that intermediaries should not be held liable for the traffic that runs through their channels; they should not become the ‘police’ of the Internet.

If the law requires Internet intermediaries to be proactive in removing or filtering content, then these same intermediaries will be in the position to make a determination of which type of content is legal and which is not. This is an intense exercise that requires the ability to produce recommendations that follow certain standards of due process. Private bodies do not possess the legitimacy nor the tools to make such determinations; expecting them, therefore, to do so on the basis of liability will inevitably create an environment of fear, as they seek ways to comply with this regime. Additionally, considering that intermediaries are essentially businesses with occasionally strong ties to content providers, we should also bear in mind how this direction might encourage an environment of anti-competitive and/or discriminatory practices.

Moreover, there is the issue of costs. Even if we were to legitimize the ability of Internet intermediaries to ‘review’ and determine what type of content should travel through their channels, this would require investment in identifying the best mechanisms and practices to do so. This investment will most probably be a combination of technical tools and human capital. Who will bear these costs? Will it be just intermediaries? Will it be users? Or, a combination of both?

Which brings us to the issue of symmetry. How will a strict liability regime fit within the existing copyright system? How does it fit within the Internet ecosystem as a whole? In the first case, there has been an extensive debate and effort to make sure that copyright does not subject intermediaries to a regime of fear where they need to perform certain tasks they were never meant to perform. In the second case, since its inception, the Internet has worked on an organized structure where each participating actor is assigned a specific role. In this instance, the role of intermediaries is to provide the platform for traffic to travel and not to ‘police’ that traffic or determine to whom it will be visible.[1]

Trademarks and domain names

In addressing the issue of trademarks in the Internet, some countries propose a mechanism modeled under the principles of the Uniform Domain Name Dispute Resolution Policy (UDRP) – an administrative process, created in 1998 by the Internet Corporation for Assigned Names and Numbers (ICANN), to resolve domain name and trademark conflicts.

It is interesting to see the TPP referring to the UDRP and suggesting it as a model. As mentioned, the UDRP was originally created to operate in the gTLD environment; as ccTLDs evolved, some of them adopted the UDRP or a UDRP-like dispute resolution. Over the years the UDRP has gained international recognition as the dispute resolution mechanism for domain names and trademark disputes, for many reasons including that it has managed to efficiently address the territorial and jurisdictional restrictions of trademark law; it has provided a cost-effective and quick way of resolving cybersquatting.

One of the things we need to understand is that the UDRP is far from a perfect system. It is the oldest ICANN policy and it has never been reviewed. It is driven by a set of rules that made sense when it was created, but they do not necessarily reflect current and existing domain name practices; it has been heavily criticized and has equally been praised. But, ultimately, what we need to remember is that it is a system that was created to address cybersquatting in the gTLD environment.

The TPP proposes implementation of the UDRP in the context of ccTLDs. This is not the first time we see this recommendation appearing in the context of FTAs.[2] The question, however, is whether the trend of using the UDRP or its principles as a point of reference should be replicated in the context of the TPP? Suggesting implementation of the UDRP for ccTLDs without a careful review of whether the UDRP can ultimately address the challenges ccTLD communities and registrants face risk being counterproductive. The gTLD environment is not the same as the ccTLD one. ccTLDs reflect cultural and religious sensitivities, they address highly local and, less often, regional challenges and, they are often bound by territorial restrictions. Transposing a policy that was designed to adapt to a generic top-level domain names environment into a diverse country code top level environment could create a regime that fails to take into account the heterogeneity and the territorial legal boundaries of the negotiating parties.

At the ICANN public meeting in Buenos Aires, the ccNSO – the council that discusses and addresses issues related to ccTLDs – discussed the TPP and tis recommendations. Some ccNSO members expressed concern over the UDRP’s reference, issues of privacy as well as remedies.

Concluding comments

Intellectual property discussions are never easy; when they relate to the Internet, they are even more complex. This is because the Internet demands a new set of considerations and values that actors should bear in mind. Cooperation is key in order to sustain an open Internet and comply with basic standards of due process and fairness.

Of course, given the fact that the Wikileaks text is not the final draft, this text is amenable to change. But, even if this text ends up changing, this discussion is not futile. What the current draft demonstrates is that there are forces that push and pull intellectual property to all sorts of directions. This is not productive for the advancement of the discussions and it does not help stabilize or sustain the current Internet environment.


[1] https://www.cdt.org/files/file/Intermediary-Liability-2p.pdf

[2] Chile-USA FTA (2004); CAFTA (2004); Australia-USA FTA (2005)

Categories
Economy Internet Governance

The Trans-Pacific Partnership Agreement risks harming the Internet

We felt compelled to issue a statement on the recently leaked Trans-Pacific Partnership Agreement (TPP) draft.  The Internet Society is concerned that Intellectual Property Rights (IPR) provisions currently under discussion by the negotiators risk harming the global Internet. We do not believe that these provisions are consistent with basic principles of transparency, due process, accountability, proportionality and the rule of law.

By issuing a statement, we deviate from our past practice of not commenting on leaked documents. Leaked texts normally provide only a snapshot of the issues while many other provisions omitted.

The document released by Wikileaks, however, contains the complete IPR chapter and the level of details provided leaves little doubt that this is the current version of the draft treaty under negotiation. It contains all the proposals and counterproposals by the negotiating parties. While it is a complex document that requires further careful analysis, we feel that based on what we have seen that we can safely state that it would have a negative impact on the Internet. In addition to other issues, these provisions could also have important consequences for online privacy, a critical dimension in light of heightened awareness worldwide about the importance of protecting the privacy and security of end-users.

We are aware that this is not the final treaty text and take advantage of this situation to call upon the TPP negotiators to abide by standards of transparency as they complete this critical international agreement that will impact Internet users worldwide. We also urge the negotiating parties to reconsider the TPP’s intellectual property provisions and to ensure they don’t have a negative impact on innovation, creativity, prosperity and market participation.

Categories
Economy Internet Governance

Building bridges to protect creativity

On my way to Bali for the 2013 Internet Governance Forum (IGF), I realize that there are a lot of expectations and hopes for this meeting. Lately, the Internet governance landscape has been changing in important and dynamic ways. Whether one thinks about surveillance and privacy or whether one’s concerns are about the demarcation of roles and responsibilities of the participating actors, the Internet governance framework is going through a phase where discussions are moving fast and in all directions. 

The theme of this year’s IGF could not be more timely – ”Building bridges: Enhancing Multistakeholder Cooperation for growth and sustainable development”; and, this theme truly captures current needs and the essence of the priorities we need to be setting regarding the processes of Internet governance. 

The IGF is the place where the Internet community discusses, deliberates, argues, concurs and generally shapes discussions that guide other discussions in other fora, which guide other discussions in other fora and so on and so forth. The majority of this year’s debtaes will undeniably focus on the Snowden revelations, the role of the state and its impact on the Internet; this is to be expected. However, for the purposes of this blog and given my engagement in the IGF, I have decided to focus on how legal frameworks — especially those of copyright and intellectual property – can better be shaped through collaborative efforts and, more generally, how they need to account for an open and interoperable Internet. 

Copyright and Intellectual Property

There is really no other area of Internet governance where building bridges is more essential than in the area of copyright and intellectual property. For many years now, the copyright debate has been characterized by how divorced the ideas are from each other and how difficult it is becoming for actors to come closer and find mutually accepted solutions on issues like the boundaries of copyright law and the role of the Internet in assisting and encouraging creativity and ideas. 

Law, including copyright law, is normally needed in order to provide answers to behaviors and to draw lines regarding the permissible framework of actions or inactions of individuals. Law seeks to protect the public at large and ensure a level of consistency regarding social welfare; to do this it has to apply and, subsequently, adhere to minimum standards of justice. In the context of the Internet, however, law needs to account for an additional value –how to protect the open architecture of the Internet and sustain the Internet’s generative nature. This is not an arbitrary need; it stands alongside and is as relevant as the need to protect the public at large. 

The idea that the Internet is currently an all-encompassing medium of political, social and economic empowerment and expression is not new. By now, we all have unwittingly accepted that the Internet is part of our everyday lives. However, many of us take the Internet and its resilience for granted. And, copyright is one of the policy areas that has taken — and, to an extent, it continues to do so — the Internet for granted.  Recent examples, including the Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Trade Agreement (TPP) or the industry driven initiatives — demonstrate how detached copyright policy is from the realities of the Internet, its standardization development processes and what the Internet is ultimately all about.

The Internet is all about innovation

Innovation is an ingrained notion within the technical community’s philosophy – a philosophy that has allowed the Internet to become a successful and empowering tool. One could claim that a similar philosophy can be identified in the case of copyright policy. This is a significant detail if one considers that copyright regimes originally were crafted on promoting creativity either in the form of progressing science or through artistic expression.

This creativity nexus, however, has been lost somewhere along the way. As we engaged in the debate, many lost sight of copyright’s goal to provide a fair balance of rights, to protect the free expression of ideas and, ultimately to be a conduit for creativity. And, in losing sight of copyright’s original purpose, we have harmed the Internet (and we continue to do so). We have messed with its architecture either by ordering massive domain name takedowns or by employing filtering mechanisms; we have resisted its generative nature by proposing policies that see content protected or ‘locked’ through Digital Rights Management  (DRM) rules; and, we have questioned the way it has re-organized the role of the participating actors by asking Internet Service Providers (ISPs) to monitor traffic and user behavior.

The IGF in Bali provides us with the unique opportunity to take a step back and start true collaborative efforts. The IGF is the perfect platform – one of the few last remaining – to build bridges, to reach out to different stakeholder groups and to put the preservation of the global Internet at the top of our agendas: the protection of the Internet as an open platform of innovation and creativity should become a key policy objective for all stakeholders – governments, civil society organizations and the private sector.

Let’s take advantage of the IGF to protect the Internet and creative expression.

Categories
Economy Public Policy

Introducing Internet Society’s Intellectual Property Issues Paper

What made an organization like the Internet Society draft an issues paper on Intellectual Property? What is the aim of this paper? How does the paper relate to overall Internet governance discussions? And, what – if any – impact does it aim to have on the discussions regarding Intellectual Property?

At a time when there is a desire to resolve policy considerations by employing technological measures, the Internet Society, through an issues paper, amongst other things, seeks to chart a path forward: for the Internet Society, it is vital that policy makers develop public policy approaches that are consistent with the principles that have demonstrably worked. For instance, intellectual property enforcement solutions should not be at odds with the underlying architecture of the Internet — technology can assist intellectual property rights in other ways (e.g. identification of the intent of the content creator), but enforcement is not one of them. The Internet is a unique tool for economic and social empowerment and we should ensure that it continues to perform this significant role. However, some policy initiatives over the last 18-24 months  (SOPA/PIPA and ACTA) resulted in a highly publicized and deep schism between policy, technology and the various stakeholders.

To this end, the Internet Society believes that it is important to articulate a set of minimum standards for all intellectual property discussions. Multistakeholder participation and inclusion, transparency, the rule of law, respect for the Internet’s architecture and upholding the open standards of the Internet, constitute the types of propositions that should be established in intellectual property governance.

Fundamentally, the underlying premise of this paper is neither novel nor new. It is written with the intention to communicate and compile existing ideas that could contribute to the ongoing broad discussions relating to: a) the effect the Internet has on intellectual property rights and, b) the place intellectual property rights should occupy within the Internet ecosystem.

Reflecting on the Intellectual Property discussions thus far, we appear to be lacking such minimum propositions that could help provide a framework for how intellectual property interactions are to be structured, shaped or fashioned. We lack a set of best practices that could provoke forward-looking approaches for how to address this highly contested issue more effectively.

One of the first things we observe is that the realm of intellectual property remains one of the few thematic Internet governance areas that still lacks inclusive structures for stakeholder engagement. This is not to say that multistakeholder discussions relating to intellectual property are not taking place; but such procedural formats are not yet the primary mechanism for discussing intellectual property matters and their potential impact on the Internet. So, although we acknowledge that there is a conscious effort from some stakeholders to end the policy schism and urge the reconciliation of intellectual property with technology, the lack of overall inclusiveness, precludes the emergence of a robust and sustainable way forward.

None of this, of course, is new and the Internet Society’s issues paper does not seek to reinvent the wheel. What it seeks to do, however, is to reflect on the many considerations as they have developed from years of policy making and Internet governance processes. It is through these considerations that the Internet community will much better serve the need to promote the open development and use of the Internet for the benefit of all people throughout the world.

So, the time is right to reflect and strategize on how to strengthen the dialogue through inclusiveness, transparent processes, adherence to the rule of law and respect of the Internet’s architectural design when talking about intellectual property on the Internet.

You can read the paper online (also available in French and Spanish) or download a PDF of the paper.

Categories
Economy Public Policy

The significance of footnote 10 of the World Copyright Treaty in the final text of the Treaty of the Visually Impaired Persons.

There is a ‘book famine’ – in the North, apparently, less than 5% of the books published are available in a form accessible by the blind community. In the South, this figure is no more than 1%. The WIPO Treaty to Facilitate Access to Published Works by Persons with Print Disabilities[1]will hopefully address this issue as Member States are negotiating a final text before the Diplomatic Conference in Marrakech in June 2013.

Before June, however, WIPO Member States still have to agree on the text of the Treaty, the most controversial aspects of which appear to relate to the definition of an ‘authorized entity’ and the ‘three step test’. Both issues do not come free of their own problems and controversy. Especially, the three-step test has the academic and policy world split.

Anyone who follows copyright discussions has heard of the three-step test. First introduced in the Berne Convention of 1886, it has been consistently applied in subsequent WIPO Copyright Treaties, the EU Copyright Directive and has even made it into the WTO TRIPS Agreement. The three-step test is a formula that was originally created to address the question of permissible limitations to the general right of reproduction. However, ever since its conception, the three-step test has proven vague and problematic and no attempt has been made to provide an internationally accepted approach. Actually, the only time the test was interpreted was in a WTO dispute, which has received extensive commentary and criticism.

The lack of active participation by Observers and NGOs during the substantive discussions of the last intersessional SCCR meeting in February, did not allow us to have a full picture on where the discussions focused. However, various Member States did confirm that mostly they deliberated on the three-step test and the way it would be written in the Treaty.

On the last day of the session some agreed language on the text appeared to have emerged. According to the latest version of the document, submitted during the closing Plenary, the Member States have conceded to the following:

“In adopting measure necessary to ensure the application of this Treaty, a Contracting party may exercise the rights and shall comply with the obligations that the Contracting Party has under the Berne Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property and/or the WIO Copyright Treaty, so that:

1.in accordance with Article 9.2 of the Berne Convention for the Protection of Literary and Artistic Works, a Contracting Party may permit the reproduction of works in certain special cases provided that such reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author;

2.in accordance with Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property, a Contracting Party shall confine limitation or exceptions to exclusive rights to certain special cases which do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author;

3.in accordance with Article 10.1 of the WIPO Copyright Treaty, a Contracting Party may provide for limitations of or exceptions to the rights granted to authors under the WCT in certain special cases, that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate rights of the author;

4. in accordance with Article 10.2 of the WIPO Copyright Treaty, a Contracting Party shall confine, when applying the Berne Convention, any limitations of or exceptions to rights to certain special cases that do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.”

Essentially, the Member States compromised by making reference to the various international law instruments where the test appears. This compromise might end up being the catalyst in concluding the Treaty in Marrakech.

Notwithstanding this positive development, there is one major concern with the text as it currently stands. In the original wording of Article 10 of the WTC there is a footnote, which is as significant as the text it refers to, yet it did not make it into the current version of the text. Whether this was an act of negligence or one of intention we cannot be sure; nevertheless, its incorporation is not only significant but also essential for making the Treaty relevant in the age of Internet and digital communication technologies.

Under footnote 10 of the Agreed statement concerning Article 10 of the World Copyright Treaty (WCT):

It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.

It is self-evident why this language must be included in the Treaty. It is this footnote that signals the desire to make room for the exploitation of copyright works in an environment where digitization is key and where persons with print (and other) disabilities are given more opportunities and means for accessing works that were inaccessible before; it is through this footnote that issues of accessibility are being addressed not just in the physical layer of the Internet but, more importantly, in the content layer; and, finally, it is this footnote that makes room for contracting parties to exercise their discretion by taking into account future technological developments.

Although one could arguably challenge the application of article 10 of WCT without its accompanying footnote, we believe that this argument misses one small, albeit important, detail: in the context of the Internet, policy is additionally conducted through an inclusive framework and, to this end, any form of policy should provide language with a much wider audience in mind. Such additional tools facilitate more informed decisions. So, the addition of the footnote is not superfluous– instead, it is informative and provides clarity concerning the scope, boundaries and application of limitations and exceptions.

This omission must be addressed in the next intersessional meeting in April. We need to remember that international law instruments, including this Treaty need to be, first and foremost, relevant and this means reflecting existing and future technological advancements. They also need to be simple, so they manage to address real issues, like the book famine the visually impaired community has been subjected to for a long time. And, finally, they need to be implementable, which requires a functioning text, so that they can organically creep into national legal frameworks.

Konstantinos Komaitis, Policy Advisor, Internet Society

Categories
Economy Internet Governance

Sharing and Intellectual Property Protection- An Incongruity?

The thorny relationship between the freedom to share and Intellectual Property (IPR) is hardly new. Traditional IPR regimes have existed with us for nearly 150 years and they have metamorphosed and refashioned with time or so it seems. What is at the heart of Workshop 146, a workshop co-organised by ISOC ambassadors and of which I was invited as a panelist is the question of whether classical IPR is compatible with the pervasive sharing and redistribution of content and intellectual goods over the Internet. 

Our panoply of speakers was bifurcated between those who support strong IPR enforcement to protect the works of authors, right holders and creators from piracy. While the other camp was arguing not for the abolition of IPR but alternatives that would balance the rights of creators and the end users who utilise and these cerebral creations. A notable presence in the panel were children representatives from ChildnNet who chipped in their views on the legality of file-sharing and peer to peer downloads. Their contribution was insightful as many confessed to downloading copyrighted works without express permission from the right holders aka copyright infringement.

As a panelist member, I listened keenly to fellow panelists plus the audience and what I gauged was that a vast majority were considerate to legitimate file sharing but were strongly opposed to draconian approaches to enforcing IPR. In light of the failed attempts by enforcement instruments like ACTA, I contributed by discussing the consequences that the adversarial nature these tools could have on developing countries. I stated that developing countries are usually hapless in resisting multi-national corporate interests that are vested in safeguarding their IPRs using such treaties vis-a-vis comparative national legislations. Even without being a signatory of ACTA , TPP or likewise multilateral agreements, developing countries which have a disproportionately unfavourable trade balance and over reliance on aid will eventually capitulate to and accede to such instruments.

The consequences of which could be the stifling of innovation, overbearing punishments for accessing copyrighted content and even a more insidious repercussion is social injustices such as placing unsurmountable burdens to the poor in accessing life saving drugs and generic medicines vital to the treatment of incurable diseases.

I anticipated that the concerted efforts to blackout websites over SOPA/PIPA and the vigorous protests and lobbying against ACTA witnessed in the EU displayed a strong message to lawmakers and the interests behind strong IPR regimes; Strident enforcement is deeply unpopular and that alternative business models should be sought after. There are several approaches being proffered to solve this problem such as Creative Commons and Open Source models but these models may not satisfy everyone. Nevertheless, this something to ponder about and indeed as the Internet becomes ever more disruptive in every facet of society IPRs should evolve with the times.

April Fools Day is coming. Prank your friends opening a never ending fake update screen on their computer. Sit back and watch their reaction.

Categories
Internet Governance

Observations from the Standing Committee on Copyright and Related Rights (SCCR/24) World Intellectual Property Organization (WIPO)

A recent meeting of the World Intellectual Property Organization (WIPO) on issues of copyright and related rights brought to the fore the underlying tensions between the Internet as a technology that transcends borders and the current intellectual property regime set up in the 19th Century. Discussions on limitations and exceptions and on the protection of broadcasting have been taking place for many years within WIPO and Member States have been seeking ways to address these issues, responding, at the same time, to the challenges presented by both national and international copyright regimes, digital technologies and the Internet.

On 16-25 July 2012, WIPO held its its 24th Standing Committee on Copyright and Related Rights (SCCR) meeting. Much of the 10-day discussions made references to the Internet and digital technologies, thus making questions of who and in what capacity should participate in such discussions relevant. A bit of background information first though.

The items that were on the SCCR’s agenda included:

1.     “Limitations and Exceptions for Libraries and Archives”;

2.     “Limitations and Exceptions for Educational, Research and Teaching Institutions”;

3.     “Limitations and Exceptions for the Visually Impaired Persons and Persons with Print Disabilities”; and,

4.     “Protection of Broadcasting Organizations”.

In their own right, all these areas constitute fundamental policy issues and raise significant policy questions. For example, the issue of “Limitations and Exceptions for Libraries and Archives” is an important topic especially given the increasing adoption of Information and Communication Technologies (ICTs) throughout the educational spectrum. In a similar vein, solutions on the accessibility for the visually impaired community are necessary as they could allow the delivery of any product or service over the Internet. To this end, barriers – be it legal or technological – need to be overcome so that persons with disabilities can gain benefit from and contribute value to the Internet. Finally, the issue concerning the protection of Broadcasting Organizations has been highly controversial regarding the need, justification and scope of this protection and its potential impact upon Internet communication platforms.

Having acquired an observer’s status within WIPO, the Internet Society joined other commercial and non-commercial non-governmental actors, including the Electronic Frontier Foundation (EFF), the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), Knowledge Ecology International (KEI), the Computer and Communications Industry Association (CCIA), the International Publishers Association (IPA) and the Motion Picture Association (MPA) – to name a few – in submitting oral statements..  We delivered two statements – one on the issue of the “Limitations and Exceptions for the Visually Impaired Persons and Persons with Print Disabilities” and the other on the “Protection of Broadcasting Organizations“. The Internet Society called for open, inclusive and transparent discussions on all issues (including those of WIPO) that pertain to the Internet and its technologies and requested that any legal instruments adopted that affect the Internet should not jeopardize its nature and its underlying platforms.

So, what did we learn from the SCCR/24 and what did we observe? After ten days (and many previous meetings) of deliberations and discussions, the WIPO Member States failed to reach concrete conclusions in any of the SCCR/24 thematic areas. But, this should not come as a surprise, especially for those discussions taking place within intergovernmental organizations. WIPO, just like all other intergovernmental organizations, adheres to a historical model of negotiations that features much of governments’ weaknesses relating to bureaucracy, lack of focus and time consuming procedural discussions. To this effect, the question clearly becomes whether, in today’s interconnected world, this model of negotiating is coming of age and whether its archaic nature impedes, rather than enriches, true discussions and solutions.

Two observations can be drawn from the recent WIPO SCCR/24 meeting: first it is almost impossible to talk about intellectual property without making reference to digital technologies and digital content; second, we need to accept that all discussions that mention, affect or interfere with the Internet and its platforms should be conducted under an inclusive and transparent manner. This is particularly significant considering that many of the SCCR’s/24 conclusions were by-products of ‘informal meetings’ – a standard WIPO process reserved only to the Member States.

Inevitably, this model will be questioned in the long run. The Berne Convention – an important document often quoted by the WIPO Member States – was drafted at a time when we all shared a common understanding on clearly demarcated, mutually agreed borders, beyond which a state did not (fundamentally) have any jurisdiction or rights of interference. This is no longer the case with the Internet, a medium that transcends national boundaries and requires additional knowledge skills not necessarily found within governmental actors. With this in mind, we need to start seeking ways to engage more stakeholders and seek their contributions to intellectual property discussions that relate to the Internet. Expertise and knowledge is required to address the technical issues that pertain to the Internet; and, input from the different sectors of the Internet ecosystem is necessary to achieve the required balance.

It would be a positive (and, certainly, timely) step for intergovernmental organizations, like WIPO, to identify ways to take discussions relating to the Internet to the next level by making them more inclusive and transparent. Proposals should start forming, focusing on how to engage different stakeholders in such institutional fora that follow the traditional intergovernmental path but they, similarly, address issues that the entire Internet community is affected by.

Konstantinos Komaitis