[A2k] Most WIPO Members and NGOs support "public domain" proposal

[Sangeeta]

SUNS #5972 Thursday 23 February 2006

WIPO: Most delegations and NGOs support "public domain" proposal

Geneva, 22 Feb (Sangeeta Shashikant) -- The importance of the "public
domain" in knowledge and the need to protect it from the incursion of
private rights was a strong theme on the second day of the WIPO meeting on
the Development Agenda initiative taking place here this week.

The meeting of the Provisional Committee on Proposals Related to a WIPO
Development Agenda (PCDA) focused on the treatment of the public domain when
discussing on Tuesday (21 February) a proposal on the subject by Chile.

The concept that the integrity of the public domain should be safeguarded,
as a rich public domain facilitates further creativity and innovation,
received support from almost all delegations including the developed
countries and public interest NGOs.

This first proposal on "Appraisal of the public domain" in the Chilean paper
was discussed at length. The paper's second proposal is on the importance of
complementary systems to and in intellectual property and the third proposal
is on a study to assess appropriate levels of intellectual property in each
country.

Argentina said that there is a lot of similarity between the Chilean
proposal and the proposal by the Group of Friends of Development as both are
based on the same philosophy and spirit. Brazil said the Chilean proposal
reflects a common understanding that the Development Agenda should not be
focused on technical assistance alone, but also incorporate other concerns
about norm setting activities, research and studies to assess impacts of IP
systems in all countries. The Africa Group was also supportive of the
Chilean proposals.

Delegations also gave ideas on how to move the Development Agenda process
forward. Jordan proposed that all the proposals be presented in the form of
clusters so that Members can achieve common ground. Uruguay asked that
points of convergence be identified to help come up with tangible
recommendations. The US suggested that the proposals should be listed and
those on which consensus can be achieved should be selected to make
recommendations to the General Assembly.

Chile's first proposal is for WIPO to (i) deepen the analysis of the
implications and benefits of a rich and accessible public domain; (ii) draw
up proposals and models for the protection and identification of, and access
to, the contents of the public domain; and (iii) consider the protection of
the public domain within WIPO's normative processes.

While there was strong support from many countries and NGOs for this
proposal including creating a global public domain database accessible to
all, some delegations questioned the definition of "public domain" and some
said this type of proposal did not fall within the mandate of WIPO.

The Chilean paper also proposed that WIPO set up a permanent area for
analysis and discussion of incentives and models promoting creative
activity, innovation and technology transfer in addition to and within the
intellectual property system.

In its oral presentation, Chile put forward options such as an electronic
forum for discussion and that discussion on this be taken up in different
WIPO committees including the Standing Committees on Patents and on
Copyright.

However, the US was of the view that looking at alternative systems does not
come under the scope of WIPO's work as its mandate is protecting IPRs. Other
countries disagreed, saying this was an important area for WIPO and
supported Chile.

Chile's third proposal was for a study by an independent body to consider
(i) the relationship between IP policies and competition policies; (ii)
exceptions and limitations to the IP system, which facilitate innovation,
promotion and creation policies, based on the comparison of national models;
and (iii) the economic and social effects of changes on protection levels.

Most delegations were supportive of having such a study, stressing that it
was important to know not only the benefits but also the costs of
implementing an IP system. Several said that as a first step, there should
be a compilation of existing studies on this issue. The US did not support
having such a study.

In presenting its paper, Chile said the proposal on the public domain was
based on understanding its value to all, as that "nothing is created out of
nothing". The benefits of a rich public domain are obvious, to education,
businesses that can use rich databases, for governments, patent offices to
see what prior art is available throughout the world, to libraries and
archives etc.

Chile then gave examples of how the public domain may be adversely affected,
for example, by patents and copyright laws. Copyright was originally
designed to protect the rights of authors, artists and performers. However,
the discussion is now on how new right holders can have claims to the same
work, while the number of rights conferred on right-holders have also
increased.

Various limits were put on the public domain through these laws and while
they may be justified one by one, taken as a whole, they have reduced the
public domain.

Chile said there are other ways to identify works that are in the public
domain such as a worldwide public domain database. In Chile, a process to
digitalize all copyright works is going on so that they will be available
when they move into the public domain.

On its second proposal, Chile said there should be discussion on
complementary systems that are currently being implemented by countries such
as creative commons, and free and open source software that also provide
incentives for intellectual creation.

On its third proposal, Chile said that doing a country-by-country analysis
is ambitious. It is more realistic to do studies on specific issues such as
on patents and copyright, limitation and exception, alternative systems, in
a limited representative number of developed and developing countries, the
participation of which would be voluntary.

Argentina and Brazil supported the Chilean proposals. On the proposal for a
databank on the contents of the public domain, Brazil suggested that this
could be done with UNESCO. It added that WIPO must incorporate the progress
made in the WSIS process on free and open source software.

Bangladesh supported the Chilean proposals, stressing that the concerns of
LDCs should be taken into account. It said that too much IP protection
stifles creativity, thus there was a need for balance. WIPO should advise
countries on how to develop anti-trust laws because it's better for all if
there are multiple systems in place to promote development. Regarding impact
assessment proposal, members should draw on existing studies such as those
in UNCTAD.

Nigeria on behalf of the African Group said that the Chilean proposal is
important. The Group approved of protecting the public domain, and the
privatization and commoditization of knowledge especially by quarantining
useful knowledge should be resisted.

It agreed with Chile on the need for studies to know which systems can be
applied to which sectors. The informal sector, important to Africa, would
require a certain type of IPR as they are different from the western type of
economic structures, so they should be treated differently in terms of IPR
enforcement.

Austria on behalf of the EU said it recognized the importance of
disseminating knowledge in the public domain. It acknowledged that other
policy instruments besides the IP system could play an effective role as
well.

The EU also believed that sound impact assessments can deepen understanding
of the flexibilities provided in the IP systems and asked for further
analysis of the Chilean proposal, such as who conducts the study and the
implications if such a study is conducted by WIPO. However, as a first step,
a compilation of existing studies could be done.

Mexico said that free and open source software was one of the issues that
was most discussed at WSIS and would be a follow-up issue, so it was
premature to discuss it in WIPO.

The US agreed that the public domain is a resource that can foster
innovation and creativity but said that IP is aimed at enriching the public
domain and does not diminish it. WIPO is helping to establish a
well-functioning IP system, as it is working to protect the public domain.
The US added that when WIPO established the WIPOnet, it enhanced access to a
vast array of public domain materials.

On the complementary system, it said that it had doubts as WIPO's core
mission was IP protection so it should focus on IP matters rather than on
alternatives.

On the proposal on the study, the US supported finding of appropriate levels
of IP protection for each country, but said this was something for each
government to address individually. The WTO has agreed on minimum standards
for IP protection and countries already have available different transition
periods. Therefore, it said that it did not support WIPO embarking on these
studies.

Japan recognized the importance of the public domain. It added that if the
public domain is studied, IP protection should also be studied. This type of
a study has already been done so duplication should be avoided.

Responding to the comments on the Chilean proposal, Brazil said the idea
that the public domain proposal is outside WIPO's mandate is strange as it
is part of the system. If WIPO's mandate involves international treaty
making, in the end the organization does define the size of the public
domain.

It commented that using the word "protection" of the public domain may have
raised doubts. It is not about owning a piece of the public domain. It is a
realm of rights that mankind is free to venture into, and it works to the
benefit of mankind.

On technology transfer, it said that it is part of the IP system. In fact
many delegations have repeatedly said that IP protection will lead to
technology transfer. Monopolies are acceptable to the extent that societies
get something back in return, and if IP rights are pushed to far, there
isn't the right balance. It said that WIPO should be asking what is going on
in the IP realm when developing countries feel that the system may not be
responding to their national needs.

Chile said that Members could use more information on what is or is not in
the public domain as the public domain is affected by issues such as
technological protection measures.

It was concerned that some countries were questioning the definition of
public domain. It was not asking for anything complicated, but only for a
study on the quid pro quo of IP. After 20 years of protection, the materials
fall into the public domain and everyone can use them.

Responding to Mexico, it said that free software works within the IP system,
thus it should be within the purview of WIPO.

The Chile proposal either in part or in whole was also supported by Panama,
Kenya, Colombia and Honduras.

Several NGOs also spoke. Consumers International referred to its own recent
study on 'Copyright and Access to Knowledge' and concluded that
international instruments have progressively ratcheted upwards the scope and
duration of copyright protection.

It also found that the 11 developing countries it had surveyed had not used
flexibilities in the international treaties they signed. In fact, the
countries provided the copyright owners far more rights than they needed to
under the treaties they signed and the laws were more restrictive of public
access to knowledge.

It added that the draft laws used by WIPO to provide technical assistance
are failing the interests of developing countries and that WIPO's actions
are "a disservice to developing countries".

It asked the PCDA to implement the Chilean proposal and to commission a
study to examine to what extent the IP laws of developing countries provide
for access to knowledge in the public domain.

The Civil Society Coalition (CSC) said WIPO was at the forefront of
normative processes such as negotiations for the Substantive Patent Law
Treaty (SPLT) and the broadcasting/web-casting treaty which could
potentially lock-in countries into greater privatization of knowledge and a
shrinking of the public domain.

This appears motivated by an uncritical belief that the enclosure of
knowledge is the best way to promote creativity, invention and development.
It said that this was an outdated and erroneous way of looking at things. It
gave examples of successes, such as the Internet, which is based upon public
domain technologies, the free software and open access publishing movements,
and projects like the Human Genome Project which illustrate how useful it is
to share knowledge goods widely.

It proposed to modify the Chilean proposal by expanding the phrase, "the
public domain" to the more inclusive, "the public domain and other elements
of the knowledge commons", as there is also value when the private owners of
knowledge goods make them freely available to everyone - like the Wikipedia
and much of the free software.

It also encouraged WIPO to look at the issue of open standards, which are an
aspect of the public domain and the knowledge commons. On the complementary
issue, it highlighted the draft resolution on a "Global Framework on
Essential Health Research and Development", to be discussed at the World
Health Assembly this year, which provides a process complementary with the
IP system, to consider a new global regime on R&D that is consistent with
public health priorities.

The International Federation of Library Associations, which represents 1,700
member organisations in 150 countries, welcomed the proposal on appraising
the public domain and said that this must include the issue of the impact of
intellectual property laws, licensing and technological protection measures
on access to public domain information and works in electronic form.

Public domain content within commercial electronic materials is often
subject to a licensing regime which is often non-negotiable and in most
countries, licenses and contracts are allowed to override copyright
exceptions and limitations. Moreover, digital content faces the risks of
being locked up in perpetuity by technological protection measures that
enforce the license terms.

A low-cost solution to these problems is that publishers who digitise public
domain works also be required to furnish the library which provided the
material, with clean digital copies so that the library may not only
preserve the digitised works for posterity and migrate them to new
platforms, but also make those public domain works freely available
forthwith on an 'as is' basis to the public on library servers.

This would immensely benefit access to public domain works by developing
countries, especially if WIPO created a database or portal to these works as
Chile proposes. Publishers should also be required to entrust major legal
deposit and research libraries stipulated by national legislation with clean
copies of their electronic products for the purposes of conservation and
preservation so that the content is not lost when the rights in the product
expire. It would be helpful if the proposed appraisal were to address these
points.

It supported Chile's third proposal, stating that it expected the study to
reveal the hidden costs met by libraries resulting from copyright
protection - such as the fees they pay for licensing and document supply,
book and journal prices, reprographics and levies and the expensive and
frustrating process of copyright clearance - especially when tracing the
vanished right owners of orphan works.

The Third World Network also supported the Chilean proposals. It said that
IP obligations that are being pushed to developing countries by the
developed countries in bilateral free trade agreements are extending the
rights of the IP holders and monopolies.

It gave examples of "ever-greening" patents in which patents are allowed to
be granted on "new uses" of known substances although these "new use"
patents can in no way be considered to be rewards for new invention, as
nothing new has been invented. But by granting patents on new uses of known
substances, it allows patent protection to be greatly extended allowing the
patent holder yet another 20 year monopoly.

TWN said that the extension of the rights of the IP holder reduces the
public domain, as material that should have fallen into the public domain
continues to be protected. These developments signal the need for urgent
action to safeguard the public domain and limit the extension of rights of
the IP holder. The protection or safeguarding of the contents of the public
domain should also be a guiding principle in all norm setting exercises
taken in future in WIPO.

IP Justice, an international civil liberties organization, said that Chile's
proposals would greatly aid in bringing knowledge and innovation to the
developing world. The creators themselves are particularly dependent on
access to a robust public domain for education and inspiration. It added
that the works of Mozart and Shakespeare are prime examples of public domain
works that have enriched humanity for generations, something only possible
if a work is in the public domain.

WIPO should not insist on Member Countries relying upon only proprietary
rights to achieve economic development particularly since alternative
systems have created enormous value, such as Free and Open Source Software
and the Creative Commons licensing schemes. WIPO, it added, has an
obligation to remain neutral among the various tools for incentivising
creativity and human development.

The US has only recently begun a maximal approach to IPR. In the past, the
US permitted open exchange of information which has allowed creativity and
innovation to flourish in the US. Developing countries should be permitted
the same path to economic growth that the US has benefited from.

3D, a Geneva-based NGO, said human rights can support a number of reforms
put forward in the proposals for a WIPO Development Agenda. For example, it
added, the reporting and assessment dimensions of human rights law support
the idea of independent evaluation of WIPO activities and impact assessments
of intellectual property policies.

Human rights law also encourages a more transparent, non-discriminatory and
human rights-consistent approach to WIPO norm-setting activities; public
consultation and participation in decision-making, and supports proposals
for reforming WIPO's technical assistance in a manner that is
non-discriminatory and responsive to the needs of the most vulnerable and
marginalized individuals and groups. +