[A2k] EFF Statement at PCDA

[Gwen Hinze]

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Following is the statement I had intended to deliver to the PCDA on
behalf of the Electronic Frontier Foundation on 23 February 2006.  I
was only able to deliver as far as "British Library" in the allotted
3 minutes, but I have submitted the written version to the WIPO
secretariat for inclusion in the record of proceedings.

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Mr Chair, Mr. Vice Chair, as this is the first time that our
organization has taken the floor, please let me congratulate you on
your appointment and thank the Member States for the opportunity to
present my organization's views to this meeting.

I speak on behalf of the Electronic Frontier Foundation, an
international civil society non-profit organization with over 10,000
members worldwide, dedicated to the protection of civil liberties,
freedom of expression and the public interest in the digital
environment. We have previously provided a briefing paper for Member
States with specific recommendations for WIPO's technical assistance
program in relation to implementation of Technological Protection
Measure obligations in the WCT and WPPT, which is available outside.

Today we wish to address two issues in the Group of Friends of
Development proposal, First, we wish to express our support for the
proposal in paragraph 5(b) of PCDA/1/5 for discussion of mechanisms
to maintain a robust public domain, and the complementary proposal of
Chile for a study addressing the importance of the public domain for
providing access to the knowledge that is necessary for social and
economic development of nations. For both developing and developed
countries, the public domain constitutes the most significant source
of information and collective knowledge for education, creativity and
scientific research, and provides the foundation upon which
technological innovation can proceed.

To provide practical guidance to Member States, we believe that any
such analysis must also consider recent global developments that have
encroached upon the public domain and limited Member States' ability
to maintain the access to it that is essential to deliver benefits to
their citizens. The increasing use of Technological Protection
Measures or digital rights management, backed by overbroad national
laws, will prevent access to works that are no longer under copyright
protection. This will be further exacerbated by laws banning the
tools that educators, students and scientific researchers would need
to remove these technological measures to access public domain works.
As these digital rights management technologies become obsolescent,
public domain material will become permanently inaccessible to future
generations. Libraries will be digitally locked out of providing
services to their users, and national archives will not be able to
make archival copies of important cultural material

These are real problems, the effects of which are already being felt
in developed countries. In the 2003 United States Copyright Office
rulemaking on exemptions to the ban in U.S. copyright law on
circumventing technological protection measures, the U.S. Copyright
Office was asked to grant an exemption to allow access to public
domain movies released on technologically-protected DVDs. The
Internet Archive also sought an exemption to allow it to bypass
obsolescent technological measures that prevented access to software
donated to the Archive. And in February 2006, at the UK All
Parliamentary Group Inquiry into Digital Rights Management, the
British Library expressed concerns about the impact of technological
protection measures on its ability to continue to make works
available to its users.

In addition, the creation of new sui generis rights in
non-copyrightable data, and bilateral trade agreements obligations to
extend copyright and patent terms beyond the current international
norm has had the effect of diminishing countries' ability to maintain
access to the public domain, while increasing the cost of educational
materials. EFF believes that an analysis of the impact of these
developments on WIPO's Member States' ability to set national
information policy would be of great assistance.

Second, we would like to comment on paragraph 3(a) of the Group of
Friends of Development proposal on WIPO's technical assistance. Since
overbroad legal sanctions for technological measures can override
national copyright law exceptions and limitations, EFF respectfully
recommends that in providing technical assistance on implementation
obligations to developing countries, WIPO should take account of
existing public interest flexibilities in international instruments
and advise countries on means to preserve their existing exceptions
and limitations.

Thank you for your consideration.

Gwen Hinze
International Affairs Director, Electronic Frontier Foundation
Email: gwen@eff.org