[A2k] EFF's Statement to WIPO IIM 2

[Gwen Hinze]

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[ Picked text/plain from multipart/alternative ]
This is the statement that was delivered today by EFF's Policy
Coordinator, Americas, Ren Bucholz.

The pdf version will be posted shortly on EFF's webpage at:
<http://www.eff.org/IP/WIPO/dev_agenda/>


STATEMENT OF THE ELECTRONIC FRONTIER FOUNDATION ON THE PROPOSAL FOR
WIPO TO ESTABLISH A DEVELOPMENT AGENDA
Second Inter-Sessional Intergovernmental Meeting, June 20-22, 2005

Mr. Chairman and WIPO Member States, thank you for the opportunity to
present my organization's views to this important meeting.

The Electronic Frontier Foundation is an international civil society
non-profit organization, with offices in the United States of
America, the United Kingdom and Canada, dedicated to protecting civil
liberties, freedom of expression and the public interest in the
digital environment.

EFF welcomes the broad-ranging discussion of the role of WIPO that
has taken place over the past three days. EFF supports the thoughtful
proposal of the Group of Friends of Development and, in particular,
the proposals for an independent, evidence-based Development Impact
Assessment for new WIPO norm-setting activities, and the adoption of
guidelines for provision of impartial and balanced technical
assistance.

EFF would like to address how overbroad legal protection for Digital
Rights Management and Technological Protection Measures restricts
access to knowledge. EFF has previously provided our analysis of
these issues to the WIPO Secretariat in a detailed paper at the April
meeting, and would be pleased to provide copies of that paper to
interested Member States.

Today, we wish to highlight how overbroad legal protection for
technological measures illustrates the need for independent,
evidence-based impact assessments for all new WIPO norm-setting
activity. We also wish to emphasize the importance of adopting
guidelines for provision of technical assistance to WIPO Member
States.

Technological protection measure regimes have now been legally
enforced in developed countries for several years. To date, they have
not been effective at keeping copyrighted works from being circulated
online without permission. However, they have caused substantial
collateral harm to the public interest, to scientific research, to
freedom of expression, to competition and to technological innovation.

Overbroad technological protection measure laws pose even greater
dangers for developing countries that do not have established legal
institutions, regulatory processes, or competition policy rules to
reign-in their over-reaching effects. In developing countries they
are likely to:

(1) override national copyright exceptions and limitations;
(2) impair access to knowledge, increase the cost of accessing
information, and diminish the public domain, thereby expanding the
knowledge gap between developed and developing countries; and
(3) stifle technological innovation and restrict legitimate competition.

Member countries are being asked to implement new technological
protection measures laws in several contexts: first, as signatories
to the WIPO Copyright Treaty and Performances and Phonograms Treaty;
second, to protect broadcasters', cablecasters' and possibly even
webcasters' transmissions in the proposed Broadcasting Treaty in the
Standing Committee on Copyright and Related Rights, and third, as
part of bilateral and regional trade negotiations.

Before Member Countries are asked to adopt these new obligations, EFF
believes that all parties need greater understanding of the economic
and public interest costs of doing so. This would best be done
through an impact assessment undertaken by an independent body such
as the proposed WERO outlined in the Friends of Development Proposal
IIM/1/4.

To be effective, the assessment should be both forward- and
backward-looking. It should describe the impact on various sectors of
the economy in countries that have adopted such legal regimes, and
highlight the differential impact of counter-balancing measures (such
as those contemplated by Article 6(4) of the E.U. Directive on
Copyright Harmonization). The impact assessment should also consider
the likely future impact for technology transfer and Member
Countries' national laws of new areas of WIPO norm-setting, such as
adoption of technological measures on broadcasters' and webcasters'
transmissions in the proposed Broadcasting Treaty.

Second, EFF supports the Friends of Development proposal for the
adoption of guidelines for the  provision of impartial, balanced and
individualized technical assistance to Member States. EFF
respectfully recommends that in providing technical assistance to
developing countries WIPO should take account of existing public
interest flexibilities in international instruments, and preserve
policy space for countries' existing national copyright law
exceptions and limitations, and creation of new exceptions
appropriate to specific national development needs. This should go
beyond provision of model laws based on other countries'
technological protection measures policies. Since overbroad legal
protection for technological measures may well override existing
national copyright law exceptions and limitations, WIPO should take
special care to advise countries on means to preserve their existing
exceptions and limitations when providing technical assistance on
implementation obligations.  EFF also supports the proposal for
independent evaluation of the usefulness of WIPO technical assistance
at meeting Member States' particular social and economic needs and
public policy objectives.

Finally, EFF welcomes the support shown by Member States for an
ongoing discussion of the development dimension of WIPO's work. We
support continuing discussion of the cross-cutting Friends of
Development proposals in further sessions of the
appropriately-convened inter-sessional meetings of the General
Assembly.

We believe that these proposals will improve the work of WIPO and
strengthen its institutional capacity to meet the needs of its
developing country members.

Thank you for your consideration.

Ren Bucholz
Policy Coordinator, Americas
ren@eff.org