[Ecommerce] FromGeneva: Public Domain & Open Standards discussion at WIPO: What did Mexico, India, Chile and Australia say?

[Thiru Balasubramaniam]

http://fromgeneva.blogspot.com/2006/07/public-domain-open-standards.html


    Wednesday, July 12, 2006


      Public Domain & Open Standards discussion at WIPO: What did
      Mexico, India, Chile and Australia say?

12 July 2006
Thiru Balasubramaniam

The recently concluded WIPO Provisional Committee on Proposals related
to a Development Agenda (PCDA) meeting (26-30 June 2006) saw a rich
discussion on the public domain, competition policy and open standards
despite the failure of the PCDA to reach an agreement on recommendations
to the WIPO General Assembly on how to tangibly integrate the
development dimension into the core of all the Organization's activities.

At the conclusion of the first session of the WIPO PCDA in February
2006, the Chair (Ambassador Rigoberto Gauto Vielman of Paraguay)
arranged the 111 proposals submitted thus far into six clusters (A)
Technical Assistance and Capacity Building, (B) Norm-Setting,
Flexibilities, Public Policy and Public Domain, (C) Technology Transfer,
Information and Communication Technology (ICT) and Access to Knowledge,
(D) Assessments, Evaluation and Impact Studies, (E) Institutional
Matters including Mandate and Governance and (F) Other Issues. Although
this approach appeared to give a coherent blueprint on how to structure
the discussions, critics of this approach asserted that this thematic
clustering removed the 111 discrete proposals from their respective
contexts.

With respect to discussions on "Cluster B" (Norm-Setting, Flexibilities,
Public Policy and Public Domain", Mexico reprised its role as antagonist
par excellence to the spirit and purpose of the Development Agenda. With
regard to specific proposals in Cluster B relating to establishing a
Treaty on Access to Knowledge and Technology, facilitating access to
knowledge and technology for developing and least developed countries
and developing an "international framework to deal with issues of
substantive law relating to anti-competitive licensing practices",
Mexico asserted these proposals would "invade UNESCO's and UNCTAD's
mandates".

In addition, Mexico argued that WIPO did not have the competence to deal
with the TRIPS Agreement and therefore Mexico could not accept the
language of a proposal which called upon WIPO to "protect and promote in
all negotiations the development oriented principles and flexibilities
contained in existing Agreements, such as the TRIPS Agreement". On the
proposals related to examining "free software development and creative
commons models" and WIPO's promotion of models based upon "open
collaborative projects to develop public goods, as exemplified by the
Human Genome Project and Open Source Software", Mexico's appeared
inextricably wedded to defending the interests of proprietary software
publishers as the Mexican delegation noted that it was "inappropriate to
express government support for these vehicles. This should be a matter
for the market to decide, not the government."

In refreshing contrast to the positions advocated by Mexico, the Indian
delegation called upon WIPO to study open standards, particularly in the
area of telecommunications, as this was something the Indian delegate
felt would support development. With respect to "open source software",
the Indian delegate stated that "open source software uses the IP
system. Open source software has already provided a good benefit for
technology transfer, for keeping customer not locked to a proprietary
system."

With respect to the public domain, Chile gave an impassioned defence of
why WIPO should engage in further examination of proposals to "consider
the protection of the public domain within WIPO's normative processes"
and to draw "up proposals and models for the protection and
identification of, and access to, the contents of the public domain".
Furthermore, Chile supported the proposal for WIPO to have an electronic
forum devoted to the discussion creative commons, systems of free and
open licenses, a Treaty on Access to Knowledge and a Treaty on Medical
R&D. The Chilean delegate noted that in the context of upward
harmonization of patent and copyright norms,

    often the line between what is protected and what is in the public
    domain has become more hazy, more diffuse, for instance because we
    have increased the rights holders' terms of protection, and
    introduced laws for technological protection measures to give more
    protection to rightholders. The objective of our proposal is to give
    more certainty to the users of IP works and society in general.

    Much has been done by WIPO to identify what is in the public domain.
    In particular, in relation to scientific knowledge, much has been
    done with SPLT on disclosure of patent info but now we think that
    there are things that governments can do-e.g. to indicate when
    materials falls into the public domain. We gave the example of
    Canada with respect for orphaned works. There are many studies that
    show the return on works is about 10 years.

    Regarding copyright, we know that the threshold of what is
    considered original and subject to protection is low. We gave
    examples of legislation that have extended terms of protection
    retroactively.

    Our proposal is that governments would have an obligation to notify
    -- via a world database - all those works and inventions that fall
    into the public domain.

    As far as patent goes, there is good argument for doing so. It would
    improve quality of patents by making access to scientific
    information in the public domain.

    The IP system is effectively a contract between users and
    rightsholders. We want to make that contract operational.

    On topic of exceptions and limitations, it was said that this was
    not within the competence of WIPO. This is not so. We have made a
    request in WIPO SCCR for a study of the topic of L&E for disabled,
    educational purposes, libraries and archives.



The delegation of Australia showed considerable flexibility in
supporting in principle proposals to examine non-exclusionary models for
fostering innovation and transfer of technology (e.g. free software
development and creative commons models) as well proposals which
promoted "models based on open collaborative projects to develop public
goods". This was perhaps the only OECD Member State that voiced support
of proposals to look open collaborative models.

Despite the rich discussion of the public domain, open standards and
open collaborative models during the PCDA, the impasse reached at the
final stages of the WIPO PCDA threaten to derail the initial
constructive spirit of this Committee. One hopes that the WIPO General
Assembly will provide the political impetus to renew the Development
Agenda mandate and specifically mainstream discussions of open
standards, limitations and exceptions, the public domain and open
collaborative models into the norm-setting committees of WIPO such as
the Standing Committee on Copyright and Related Rights and the Standing
Committee on the Law of Patents.


[Inputs from: Gwen Hinze -Electronic Frontier Foundation, and Teresa
Hackett-Electronic Information for Libraries]

/posted by Thiru Balasubramaniam @ 2:31 PM
<http://fromgeneva.blogspot.com/2006/07/public-domain-open-standards.html>/