[A2k] EFF Statement at WIPO Committee on Development and IP

[Gwen Hinze]

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EFF STATEMENT TO WIPO COMMITTEE ON DEVELOPMENT AND INTELLECTUAL
PROPERTY, FIRST SESSION

March 3-7, 2008

Mr. Chair, congratulations on your election.

I speak on behalf of the Electronic Frontier Foundation and its
12,000 individual members.

EFF commends Member States for their hard work over the last three
years and the spirit  of cooperation that has led us this far.  This
week's discussion of how to implement the 45 recommendations is being
closely followed by a diverse community outside Geneva because
crafting balanced IP rules that serve the needs of all the world's
citizens is a matter of global importance.

EFF has participated in all of the Development Agenda meetings. Today
we wish to comment on four sets of recommendations that impact WIPO's
activities. In the interests of time, we will address all sets of
proposals together.

First, we support the recommendations for WIPO to promote
norm-setting that is protective of a robust public domain, and which
deepens the analysis of the implications and benefits of a rich and
accessible public domain [Recommendation B16]. A rich and robust
public domain is both a source of creativity for future literary and
artistic endeavour, and the essential foundation for education,
scientific knowledge and innovation. We also support recommendations
for norm-setting to safeguard Member States' national sovereignty in
the area of exceptions and limitations appropriate for countries'
level of development and public policy priorities, and take into
account potential flexibilities in international IP agreements
[Recommendations B20, B17, B22].

WIPO can play a key role here by:
-	producing guides for Member States on how they can protect
the public domain and existing copyright exceptions and limitations
against encroachment by overbroad legal protection for rightsholders'
technological measures;
-	 providing information about mechanisms to make public domain
works readily identifiable,  and
-	 by conducting a survey of the different types of approaches
taken by Member States to facilitate access to, and effective use of
orphaned copyrighted works.

In addition, WIPO could provide Member States with information about
the benefits for innovation, education and scientific research of
promoting Open and Public Access policies, such as that adopted in
January 2008 by the U.S. National Institutes of Health which requires
publicly funded scientific research to be deposited in the online
PubMed Central public repository, to promote access to, and encourage
building upon existing research. WIPO could undertake a study of the
various Public Access policies being considered in the US, Europe,
Australia and Canada, to assist Member States to identify how they
can best use public investment in scientific research to promote
innovation.

Second, 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 B19 and B27]. Access to
knowledge requires access to new innovative ICTs that promote open
knowledge sharing such as robust content hosting platforms, Internet
search engines, collaborative tools such as wikis used to create the
online global encyclopedia Wikipedia and robust mobile content
delivery devices. It is essential that national and international
copyright laws provide an environment that is conducive to technology
innovation and human development. This requires mandatory exceptions
and limitations to copyright rights, analysis of the impact of
overbroad TPM regimes on technology innovation, and tailored
limitations on liability for ICT developers and network
intermediaries. This is crucial both for students, universities and
libraries, which must rely on the Internet and ICTs to make effective
use of national copyright law exceptions and for the creation of
innovative technologies that offer new opportunities for distance
education, capacity building and development.

We recommend that WIPO convenes an Open Forum with representatives
from the technology industry, educational, and ICT for Development
communities to analyze current IP-related obstacles to technology
innovation,  infrastructure growth and use of ICTs consistent with
the development goals of the UN system and bridging the development
divide [Recommendations B22 and C24].

Third, we welcome the recommendations for use of evidence-based
studies for norm-setting and policy development [Recommendation D35]
and strengthening WIPO's capacity to perform objective assessments of
the impact of its activities. [Recommendations D38, D33].  Given the
controversy surrounding legally-enforced TPMs for broadcasters in the
recent discussions in the SCCR, we believe that all parties would
benefit from an independent assessment of the economic and social
costs of implementing such new obligations.

Finally we support the adoption of concrete measures to ensure
transparency in WIPO's technical assistance and norm-setting
activities [A5].  We are aware that WIPO's technical assistance
program utilizes a model copyright law that currently has a number of
deficiencies, particularly in relation to technological protection
measures. The WIPO model copyright law is no longer available for
review on WIPO's website. As part of the commitment to transparency
embodied in recommendation A5, we expect that the WIPO model
copyright law, and working documents containing interpretations of
the flexibilities that exist under TRIPs , will be made available on
the general access section of the Technical Assistance website
described in the Secretariat's matrix. We firmly believe that
allowing public evaluation of non country-specific technical
assistance documents will strengthen WIPO's capacity to meet the
needs of all its Member States, and lead to creation of balanced
intellectual property laws that facilitate development for all the
world's citizens.

Thank you for your consideration.

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