[A2k] On Indicare: a2k report

[Manon Ress]

http://www.indicare.org/tiki-read_article.php?articleId=3D102

A2K: Access to Knowledge =96 Make it happen
By: Natali Helberger, IViR, Amsterdam, The Netherlands on: 30/05/05
[12:53 UTC] (27 reads)

Abstract: A2K stands for =93Access to Knowledge=94 and is the acronym for a
global initiative that took its start in 2004 and that is progressing
quickly. The goal of the A2K initiative is to restore the instable
balance between the interests of holders of exclusive rights in creative
content and users of such content. One element of the initiative is the
drafting of a proposal for a treaty to protect and promote access to
knowledge.

Keywords: conference report =96 Access to knowledge (A2K), developing
countries, disabled, exclusive rights, intermediaries, WIPO
(17524 bytes) =09Print Translation
Introduction
Access to knowledge =96 who would not agree that this is a subject matter
that is of great social and democratic importance, a matter that can
rightly be described as a human need, in developed as well as developing
countries. Not only is access to knowledge globally acknowledged as a
desirable value, worthy of being promoted and protected; there is also a
widely shared feeling that in the so-called =93information economy=94 the
ongoing expansion of intellectual property law, as well as the way
exclusive rights in contents are exercised, actually threatens access to
knowledge in many ways. Thus it is surprising to realize that access to
knowledge is an issue that has been rather neglected when drafting
recent pieces of intellectual property (IP) legislation, such as the
World Intellectual Property Organization (WIPO) Copyright and Performers
and Phonograms Treaty, the Digital Millennium Copyright Act, the
European Copyright Directive, to name but some.

The call for access to knowledge gains an additional dimension from the
perspective of developing countries. As Peter Drahos from the Australian
National University explains: "For developing countries the coming
century of knowledge-based growth raises two basic development
priorities. The first is that these countries must give more urgent
attention to encouraging investment in human capital and this
essentially translates into investment in health and education. The
second basic priority is to think creatively about models of governance
for the production of knowledge that maximize the participation of
developing countries in the processes of innovation, that maximizes the
spillover benefits of knowledge and that minimize the social cost of
accumulating knowledge". In other words, the Information Society is not
a phenomenon that ends at the borders of developed countries. Access to
knowledge is a matter of great interest for developing countries as
well, and a means to protect and defend their interests in the global
economy.

Drafting a treaty on access to knowledge
In May 2005, experts from the US, Serbia, South Africa, UK, the
Netherlands, Spain, Greece, Italy, Germany, Malaysia, France, India,
Canada, Korea, Brasil, Chile, among others, met in London for a second
round of drafting a proposal for a Treaty on Access to Knowledge (A2K
2005). In a two-day marathon a consolidated version of the draft Treaty
was presented for discussion to representatives from non-governmental
organizations and consumer organizations, academics, governments,
international organizations, academics, foundations, standardization
bodies and industry players.

The first meeting took place in Geneva earlier this year, when a smaller
group of experts brainstormed and submitted first proposals on what the
content of such a Treaty could be. The original idea for a Treaty on
Access to Knowledge has its origin in a proposal for a development
agenda that was made by Argentina and Brazil at a WIPO General Assembly
in 2004 (WIPO 2004). Civil society representatives, among them the
Transatlantic Consumer Dialogue (TACD; cf.sources) and the Consumer
Project on Technology (CPTech; cf sources) recognized the potential and
rightfulness of such a proposal and engaged in developing it further by
starting a global initiative =96 the A2K initiative.

Scope and content
The version of a draft Treaty that was presented in London begins with a
Preamble that describes the motives and guiding principles for this
initiative. The Preamble expresses concerns about an arbitrary expansion
of IP rights and the effect this can have for individual participation
in creation, technological and economic progress, innovation,
development, research and education. The goal of the Treaty is to create
opportunities for the accumulation, distribution and sharing of
knowledge, as well as benefiting from knowledge on a global level. The
initiative is aimed at both developing and the developed countries; it
is aware of possible disparities and different needs of both, developing
and developed countries.

The actual draft provisions consist of a bundle of ideas on how to
promote and protect access. Most of the suggestions made have already
been subject to extensive research, and are the result of practical
experience or are inspired by already existing national or international
legal solutions. They cover a comprehensive agenda of 12 different
subject matters, all of which have in common that they address ways of
how to make knowledge accessible and how to realize the economic,
academic and social benefits of access to knowledge. The draft includes
provisions on the nature and scope of obligations in this draft treaty,
its relationship to other international and regional agreements,
provisions on governance and enforcement. It has provisions regarding
limitations and exceptions to copyright and related rights, on
collecting societies and access to publicly funded research. Other
sections deal with patents, the promotion of open standards and the
relationship between intellectual property and competition law. A
selection of the suggested provisions that are most relevant for the
INDICARE project will be discussed more closely in the following. These
are the proposed provisions concerning the exceptions and limitations to
copyright law and DRMs. In a last section, an overview of the next steps
of the initiative is given.

Exceptions and limitations to copyright law
One major section of the draft Treaty suggests provisions regarding
limitations and exceptions to copyrights and related rights, and here
more specifically exceptions and limitations to exclusive economic
exploitation rights (not: moral rights). The principal idea behind this
section is the need to preserve and promote a number of uses of creative
works that should not be inhibited by exclusive intellectual property
rights. This can be the use of works for education, science or
preservation. This can be the use by groups with special needs and
interests, such as persons with disabilities, but also distant education
institutions, the media or developing countries. This can be the use of
works by intermediaries for the purpose of making the works accessible
to third parties; examples are search engines and Internet Service
Providers (ISPs).

One issue that generated a good deal of critical discussion in this
context was the relationship of the suggested exceptions and limitations
in the draft treaty and provisions in other, existing treaties. This is
most certainly a point that will deserve further attention during future
meetings. Some of the proposed exceptions already exist in this or a
similar form in other legal texts, such as in the TRIPs agreement or the
European Copyright Directive. Others are new, such as an exception on
search engines, which will be discussed more in depth in the following.

Exceptions for knowledge-intermediaries
In a vast and difficult-to-overview information environment, seekers of
access to knowledge rely increasingly on the services of intermediaries
that select, bundle, guide and offer access to contents. Such
knowledge-intermediaries can be search engines, portals, libraries,
archives or schools, to name but some. Their activity =96 providing access
to knowledge =96 must be reconciled with the interests of holders of
intellectual property rights to control the distribution of such
content. Occasionally, the interests conflict. One example are search
engines, and the search-engine exception in the draft Treaty is a
response to an ongoing discussion whether search engines, such as
google.com or yahoo.com, conflict with copyright law by deeplinking
and/or caching. If this was the case, holders of intellectual property
rights could possibly abuse such rights to impede the function of search
engines (cf. BGH 2003). The search-engine exception in the draft A2K
Treaty seeks to avoid the use of intellectual property rights to impede
the work of search engines. In the version from May 2005, it reads: "The
use of works in connection with Internet search engines, so long as the
owners of works do not make reasonably effective measures to prevent
access by Internet search engines, and the Internet search engine
service provides convenient and effective means to remove works from
databases upon request of the right owner" (A2K 2005, article 3-1 (ix)).
Additional exceptions are designed to benefit institutions that make
knowledge accessible, such as education and research institutions,
distant education universities, archives and libraries.

The exceptions in favour of knowledge-intermediaries such as search
engines, libraries, archives and academic institution acknowledge that
one important precondition for access to knowledge is the existence of
institutions that make knowledge accessible. Consequently, one way to
stimulate access to knowledge is to support the work of institutions
that generate, aggregate and disseminate knowledge. The experts at the
London meeting remarked rightly that the work of such institutions
should not stop at national borders. It was demonstrated that there can
be valid, also economic, arguments to open for examples archives in one
country for citizens in other countries. Share-as-share-likewise models
can be the basis for sustainable and attractive business models and, at
the same time, ensure that citizens from different countries have access
to knowledge hosted in other countries.

In a similar direction =96 making knowledge accessible =96 are provisions i=
n
the draft Treaty that seek to expand and enhance the knowledge commons.
Proposals made include the compulsory licensing of copyrighted works in
developing countries, the making available publicly of works resulting
from government-funded research, access to archives of public
broadcasters and government information as well as the idea of so-called
"Knowledge Commons Databases". The proposed Article on Knowledge Commons
Databases stipulates that persons, organizations or communities that
seek to establish open databases that address an important public
interest and are freely available to all should be exempted for a
limited period of time from the application of exclusive rights.

Exceptions for people with special needs
Accessibility is also at the heart of a set of exceptions in favour of
visually impaired or hearing impaired persons or persons with other
disabilities. A representative of the World Blind Union explained the
special situation of these groups. Two major issues in this context are
accessibility and equity. People with visual, hearing or other
impediments should be able to read same material as everybody else at
the same time. This means in most cases that the content has to be
adapted beforehand. Where the exercise of economic rights in contents
inhibits the making larger of, reformatting and offering of contents in
a format that is compatible with special player devices, this goes
clearly at the expense of people with disabilities. To improve this
situation, exceptions are needed that allow the formatting of works and
also the importing and exporting of works that have been already
formatted in another country. The international availability of
accessible content created in one country should not be restricted
because different exceptions apply in different countries. This is even
more so because the amount of adequately formatted material is limited.
Important was also the observation that there is no homogenous group of
disabled people and that each group would need its own specific set of
exceptions in order to be able to benefit from access to knowledge. The
representative of the World Blind Union emphasized that the different
groups of disabled people have a strong interest in stimulating large
commercial production of readable copies and are therefore interested in
active cooperation with publishers and in finding ways to reconcile the
interests of all parties.

Access to knowledge and digital rights management
Article 3-6 of the draft Treaty is specifically directed at Digital
Rights Management (DRM) and Technological Protection Measures (TPM) that
are designed to restrict electronic access to knowledge. In its first
part, the proposed article points towards the risks of DRMs and/or TPMs
for the application of exceptions and limitations to exclusive rights,
access to knowledge for the visually impaired or other people with
disabilities, consumers, competitors and archives. The provision warns
that unfair contract terms, the so-called business rules that are
enforced through DRMs and the inadequate disclosure of limitations of
uses of works can harm consumers. It, furthermore, calls attention to
the danger of anti-competitive practices as a consequence of the use of
DRMs or TPMs. Market segmentation and anti-competitive tying practices
may result in higher prices and reduced innovation. The present wording
of the draft provision acknowledges that DRMs are part of a larger
problem that reaches into the realms of competition law and consumer
protection. Having said that, several experts criticized that the
provisions on consumer protection were still too narrow and required
more elaboration, possibly in a separate article.

The goal of the second part of Article 3-6 is to ensure that the users
of DRMs or TPMs respect prevailing public interest reasons in making
knowledge accessible. The present concept of the second part of Article
3-6 of the Treaty to realize this objective is to say that legal
prohibitions against anti-circumvention of DRM and TPM measures shall be
restricted or not enforced in certain cases. Examples are a situation in
which DRMs or TPMs preclude the implementation of Free and Open
Software, in which the operators of such measures fail to inform
consumers about their restriction modes and the terms under which they
can be invoked or where DRM and TMPs are used to restrict access to
public domain material. Insofar, national regulations should not
prohibit the making available of technologies or services that
facilitate circumvention for legitimate or authorized uses. One of the
criticisms that were expressed regarding this proposal is that only few
consumers will have sufficient confidence in their technical abilities
to actually circumvent DRMs and TPMS. Another problem is communicating
clearly and understandably to consumers when they would be entitled to
do so.

Bottom line
As one participant worded it: "Our strength is diversity, our weakness
is too much diversity". No doubt =96 the Access to Knowledge Treaty is an
ambitious initiative that seeks to cover a whole range of areas. The
resulting danger is to loose sight of the ultimate goal and to get
caught in a multitude of different topics each of which might deserve to
be subject of an initiative of its own. But this is just one reason more
to remember the strength of the A2K initiative: this is the ability of
its initiators to mobilize a group of international experts from
different disciplines and backgrounds that all share a common motive:
being convinced that it is high time for some action to restore the
often deplored imbalance between consumers and producers of electronic
content. The composition of the round of experts that came together in
London enabled the scrutinization of this first proposal from many
different perspectives and its exposure to constructive criticism from
different disciplines and areas of expertise.

The present content page of the draft reads like the wish list of
someone who has missed out the last three year's Christmas. It gives a
good impression of the range of issues that have been, on the one hand,
caused and, on the other hand, ignored by recent legal, economic and
technological developments in the IP field. It is now for the drafting
committee(s) to extract from this pool of ideas the most relevant ones
and to expose them to further discussion. For the time being, the
participants in the second A2K meeting left London exhausted but with
the distinct feeling of having taken yet another step in the right
direction.

Sources

     * A2K (2005): Draft Text of the Access to Knowledge Treaty,
available on: http://www.cptech.org/a2k/consolidatedtext-may9.pdf
     * Agenda of the A2K meeting in London, available on
http://www.tacd.org/docs/?id=3D269
     * BHG (2003): German Federal High Court of Justice
(Bundesgerichtshof - BGH), decision of 17 July 2003, No. I ZR 259/00
(Paperboy), in: GRUR 2003, p. 958
     * Consumer Project on Technology (CPTech): http://www.cptech.org
     * Transatlantic Consumer Dialogue (TACD): http://www.tacd.org
     * WIPO (2004): Proposal by Argentina and Brazil for the
Establishment of a development agenda for WIPO, WIPO General Assembly,
Thirty-First (15th Extraordinary) Session, Geneva, September 27 to
October 4, 2004, available on
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=3D31737


About the author: Natali Helberger is senior project researcher at the
Institute for Information Law, University of Amsterdam. She specialises
in the regulation of converging media- and communications markets,
electronic control of access to information and the interface between
technique, media and intellectual property law. Contact: + 31 20 525
3646, helberge@jur.uva.nl

Status: first posted 30/05/05; licensed under Creative Commons
URL: http://www.indicare.org/tiki-read_article.php?articleId=3D102












--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
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