[A2k] EFF Statement at WIPO Development Agenda meeting - CDIP2

[Gwen Hinze]

FYI EFF presented the following statement at the Second Session of
the WIPO Committee on Development and IP on 7 July 2008:

EFF STATEMENT TO WIPO COMMITTEE ON DEVELOPMENT AND INTELLECTUAL
PROPERTY, SECOND SESSION
July 7-11, 2008

Mr. Chair, thank you for the opportunity to express the views of the
Electronic Frontier Foundation and its members worldwide. EFF
commends Member States for the progress that has been made over the
last three years. We hope that the same spirit of goodwill will guide
this week=92s discussions on creating a work plan to implement all the
45 Development Agenda recommendations. The Development Agenda has
captured the attention of many outside of Geneva because crafting
balanced IP rules that serve the needs of all the world=92s citizens is
a matter of global importance.

We wish to comment on four sets of recommendations and the proposed
implementation activities contained in the Secretariat=92s matrix.

First, we support the call for WIPO to initiate discussions on how to
facilitate access to knowledge and technology for developing
countries and LDCs to foster creativity and innovation, and to
facilitate IP-related aspects of ICT for growth and economic, social
and cultural development [Recommendations 19 and 27].   It is
essential that national and international copyright and patent laws
provide an environment that is conducive both to technology
innovation and human development. Copyright exceptions and
limitations are essential for access to knowledge by students,
universities and libraries. They are also needed to create innovative
new information and communication technologies that promote open
knowledge sharing such as robust content hosting platforms like
YouTube, Internet search engines, collaborative tools such as wikis
used to create the Wikipedia global encyclopedia, and mobile content
delivery technologies. These technologies offer new opportunities for
development and distance education. Creating the environment for
innovation requires exceptions and limitations to copyright rights, a
thorough understanding of the impact of overbroad technological
protection measure regimes on technology innovation, and tailored
limitations on liability for ICT developers and network intermediaries.

We welcome the proposed report for implementation of Recommendation
27. We suggest that WIPO convenes an Open Forum with representatives
from the technology industry, educational, and ICT for Development
communities to gather empirical evidence to inform that report on
current IP-related obstacles to technology innovation, infrastructure
growth, and use of ICTs consistent with the development goals of the
UN system.

In the context of recommendation 45, EFF is concerned by two
copyright enforcement proposals being promoted in various global
policy arenas: technological mandates on Internet Service Providers
and intermediaries to filter Internet communications for potential
copyright infringing material, and proposals requiring Internet
Service Providers to disconnect citizens=92 Internet access upon a
rightholder's repeat allegation of copyright infringement. These
proposals threaten both the development of the very technologies that
could facilitate education, and development under Recommendation 27,
as well as citizens=92 fundamental civil liberties and privacy rights.
Creating a class of citizens who are denied access to the Internet in
order to meet the needs of one group of private stakeholders, amounts
to exclusion from full participation in civic and cultural life.
These proposals are likely to slow technological innovation and lead
to social division, and could undermine the credibility of the global
intellectual property regime.

Second, on WIPO=92s norm-setting, we support the recommendations to
safeguard Member States=92 national sovereignty in the area of
exceptions and limitations appropriate for countries=92 level of
development and policy priorities, and to take into account potential
flexibilities in international IP agreements [Recommendations 17,
22].  We also support the promotion of norm-setting that is
protective of a robust public domain  [Recommendations16 and 20]. A
rich and accessible public domain is the essential foundation for
education, scientific knowledge and innovation.  In addition to
producing guides on identifying copyright-protected subject matter,
WIPO should advise Member States on how they can protect the public
domain and existing copyright exceptions and limitations against
encroachment by overbroad legal protection for rightsholders=92
technological measures, and provide information on the various
approaches being taken by Member States to facilitate use of orphaned
copyrighted works.

WIPO could also provide Member States with information about the
benefits for education and scientific research of Open Innovation and
User Driven Innovation models. Both these new theories of innovation
are being explored by WIPO stakeholders in the developed world and
have the potential to radically reshape collaboration and innovation
in the developing world. WIPO could undertake a study of the impact
of these new innovation methods to identify the impacts of
standardized, low-transaction cost licensing and a survey of the
various Open and Public Access policies being considered in the US,
Europe, Australia, Brazil and Canada, to assist Member States to
identify how the outputs of government funded research could be
managed to best promote innovation in science and education.

WIPO could also commission a study on the potential benefits of a
standard research exemption to patent rights. As recognized in a
recent OECD background paper, clear patent research exemptions can
serve many important public policies. Scientists need to have the
freedom to perform research without fear of lawsuits and the rights
regarding research and patents vary significantly from country to
country.

Third, on evaluation, we believe that the success of the Development
Agenda depends on objective and credible evaluation of WIPO=92s
development activities. Therefore we welcome the recommendations for
strengthening WIPO=92s capacity to perform objective assessments of the
impact of its activities. [Recommendation 33] and are heartened by
Member States=92 affirmations that all 45 recommendations are equally
important.  In this context, we remain concerned that there has been
little discussion of the criteria for evaluating the development
orientation of WIPO=92s existing work, particularly in relation to the
suite of 19 recommendations.

Finally, we support the adoption of concrete measures to ensure
transparency in WIPO=92s technical assistance and norm-setting
activities [Recommendation 5]. We note again our concern that one of
the main instruments of WIPO=92s technical assistance program, the
model copyright law, is no longer available for review on WIPO=92s
website. As part of the commitment to transparency in recommendation
5, we expect that the WIPO model copyright law, together with the
report that is being prepared, containing WIPO=92s interpretation of
the flexibilities that exist under TRIPs, referenced in paragraph
(10) of the Secretariat=92s matrix for Recommendation 1, will be made
available on the general access section of the proposed Technical
Assistance website. We hope that cost estimates are not used as a
basis for impeding the creation of a transparent database of
technical assistance materials. We firmly believe that access to non
country-specific technical assistance documents is necessary for
public evaluation of WIPO=92s commitment to neutral technical
assistance, and will strengthen WIPO=92s capacity to meet the needs of
citizens in all its Member States.

Thank you for your consideration.

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

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Gwen Hinze
International Policy Director
Electronic Frontier Foundation
email:gwen@eff.org
Tel.: + 1 415 436 9333 x110

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