[A2k] EFF Statement to WIPO CDIP 4

[Gwen Hinze]

As some may know, WIPO's Committee on Development and IP is meeting in
Geneva this week, 16-20 November 2009, to work on the establishment of
a work plan to implement the WIPO Development Agenda. Following is
EFF's statement delivered to CDIP 4 this afternoon.

STATEMENT OF ELECTRONIC FRONTIER FOUNDATION TO
WIPO COMMITTEE ON DEVELOPMENT AND IP 4th SESSION
16-20 November 2009

Mr. Chair, we congratulate you on your election. Thank you for the
opportunity to express the views of the Electronic Frontier Foundation
and its members worldwide. We commend Member States and the
Secretariat for the progress they have made on developing a concrete
work plan to implement the Development Agenda recommendations.  We
wish to comment briefly on several of the proposed thematic projects
in agenda item 5.

On the thematic project on IP and the Public Domain (CDIP/4/3), we
support updating the 2005 report on voluntary registration systems to
include a survey of national legislative and private party approaches
to identifying and facilitating use of orphan works. Uncertainty about
ownership of orphaned copyright works is one of the most pressing
problems facing countries across the world. In relation to the
stocktaking of existing initiatives and legal and technical tools to
identify material in the public domain, to provide Member States=92
policymakers with appropriate guidance in considering these complex
issue we believe it would be important for the study to provide wider
context on the legislative and technical framework in which rights
management information systems operate, and the public policy
implications of the various initiatives currently underway. While we
strongly support voluntary identification regimes such as that created
by the Creative Commons organization, we note that the ACAP automated
rights management information system created by several major
publishers that featured in the 2007 WIPO seminar could create the
technical infrastructure and incentives for Internet intermediaries to
filter Internet communications of citizens, and for search engines to
censor search results.

On the thematic project on information and communications
technologies, access to knowledge and the digital divide (CDIP 4/5),
we strongly support the proposed study on using copyright to promote
access to knowledge. In addition to providing case studies on the use
of flexible licensing approaches such as Creative Commons and free and
open source software licences, the study could provide Member States
with information about the benefits for education and scientific
research of Open Innovation and User Driven Innovation models. These
new approaches to 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 on
development 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
publicly funded research could be managed to best promote innovation
in science and education. The study could also include empirical data
on copyright related obstacles to access to knowledge and technology
and recommendations for addressing them, focusing on the economic and
social importance of exceptions and limitations, and the impact of
copyright term extension and different legal protection regimes for
rightsholders=92 technological protection measures. This could build on
the empirical research being done by the African Copyright & Access to
Knowledge project, the research institutions in the A2K Global Academy
and the Consumers International IP Watch network.

On the thematic project on IP and Technology Transfer (CDIP/4/7), we
note that the project does not seem to contemplate informal technology
transfer via reverse engineering of software and hardware, which is an
important part of access to technology in many countries. We
respectfully recommend that the high level expert forum consider the
role of reverse engineering, and other informal non-licensing
mechanisms for access to technology.

We support the second of the studies proposed as input for the High
Level Expert Forum. In identifying existing IPR policies and
initiatives to promote technology transfer to developing countries,
the study could include data on the availability of national copyright
exceptions and limitations permitting reverse engineering.  We note
that the Secretariat has produced a draft questionnaire for the SCCR=92s
work to better understand Member States=92 national copyright exceptions
and limitations, Part VI of which includes questions about reverse
engineering. The results of that work could provide useful data for
providing recommendations to Member States on crafting Three Step Test
compliant exceptions that would facilitate innovation. It would also
be useful for the study to identify IP-related barriers to access to
technology, and provide policy and legislative recommendations for
addressing them. For instance, it would be valuable to understand how
overbroad legal protection for copyright owners=92 technological
protection measures can interfere with reverse engineering to create
interoperable products and local customization of software and
hardware technology. We assume that any recommendations made by the
high level expert forum on the basis of this study would need to
comply with the requirements of recommendation 22.

Finally while we appreciate the need to eliminate duplication and
streamline discussions, we note that mainstreaming the development
dimension involves more than completion of this set of projects.
WIPO=92s implementation of the Development Agenda is being closely
watched by academics and civil society around the world. They
understand that it is intended to reorient the Secretariat=92s norm
setting and technical assistance work and create lasting institutional
reform in the areas of accountability and transparency. In this
regard, we join with others in expressing concern that many of the
proposed activities in the thematic projects (including, in
particular, the  projects implementing recommendation 10), appear to
be a continuation of existing Secretariat activities repackaged as
Development Agenda activities.  We do not believe that merely
recharacterizing the status quo as being =93development-oriented=94 will
deliver the results sought and expected by stakeholders.

We encourage the development of criteria for evaluating both the end
goals and activities being undertaken for the 19 immediately
implementable recommendations described in documents CDIP/ 3/5 and
CDIP/3/INF/2, to ensure that they deliver development oriented
results. We support the development of a comprehensive results-based
management approach and independent evaluation of WIPO=92s current work
as described in CDIP/4/8, but suggest that this should be reported to
CDIP. In relation to agenda item 6, we believe that the creation of
effective coordination, assessment, and external reporting mechanisms
is essential to make progress on the Development Agenda implementation
and strengthen the institutional capacity and relevance of WIPO to
meet the needs of all its Members.

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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