[Ip-health] No Conflict of Creeds: WIPO Delegates discuss the public domain

Wed Feb 21 03:13:01 2007

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Please click on this link
(=A0http://www.cptech.org/ip/wipo/manalo-text.doc) for the Manalo text.

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http://fromgeneva.blogspot.com/2007/02/no-conflict-of-creeds-wipo-
delegates.html

  No Conflict of Creeds: WIPO Delegates discuss the public domain

FromGeneva
February 20, 2007
Thiru Balasubramaniam

(Thanks to Malini Aisola, Ren Bucholz, Teresa Hackett and Miriam Nisbet
for their notes)

The landscape of the WIPO Development Agenda discussions this week have
resembled a game of =93Battleships=94 or =93Bingo=94 with member countries
often defining the contours of the debate on such important public
policy issues as =93technical assistance and capacity building=94,
=93norm-setting=94 and the =93public domain=94. This game of Bingo manifest=
ed
itself in countries=92 indication support of proposals by number and
letter, for example, =93we support the general thrust of 1, 5, 12 and 16=94
of Cluster A=94 (Technical Assistance and Capacity Building) or =93we
support the principles behind 17 and 20=94 of Cluster B (Norm-setting,
flexibilities, public policy and the public domain). To further
compound matters, countries used Ambassador Enrique Manalo=92s (Chair,
WIPO General Assembly) matrix of 111 proposals submitted to the WIPO
Development Agenda process, yet this document has not been distributed
to the WIPO PCDA this week. Trying to follow the debate without a
physical copy of the Manalo matrix provided by the International Bureau
was an exacting task given the rapid pace of negotiations especially
with the impetus to streamline the 40 proposals contained in Annex A
into something more concise.

Despite the Bingo/Battleship nature of the negotiations, Tuesday
afternoon bore witness to a lively and interesting debate on the role
of the public domain within WIPO=92s programme of work. Tom Giovanetti of
the Institute for Policy Innovation kicked things off in the morning in
his general statement by asserting that,

     Consider, for instance, the proposal that WIPO should consider the
protection of the public domain within its normative processes. Now,
everyone recognizes the importance of a rich public domain, and WIPO
already gives the public domain due consideration. But there is no
evidence that the public domain is in any danger that requires an
addition to WIPO's mandate. Rather, this is simply a bit of rhetoric
that is being used by opponents of Big IP to raise fear, uncertainty
and doubt about the virtues of intellectual property.

The delegate from Chile countered by stating the proposals on
safeguarding and preserving the public domain received great support
during the development agenda process by governments and NGOs including
the Library Copyright Alliance.

The Chilean representative stressed that the

     public domain is important for access to knowledge. An accessible
public domain benefits inventors, universities and research centres. It
is not incommensurate with protecting intellectual property as was
suggested today.

[My understanding is that Chile was referring to Tom Giovanetti=92s
intervention.]

The Chilean delegate further intimated that a robust public domain
would enrich and work within intellectual property architecture. From
KEI=92s perspective, an enhanced public domain contributes to a fecund
knowledge ecosystem that fosters creativity and innovation in new
paradigms.

The delegate from Colombia argued that proposal 17 which calls for WIPO
to =93consider the protection of the public domain within WIPO=92s
normative processes=94 went far beyond the remit of WIPO=92s mandate
further noting that creations in the public domain was not in WIPO=92s
purview.

In contrast, Uruguay stated that,

     we have often said before that there is a relationship between
intellectual property and human rights and that access to knowledge is
enshrined in international human rights conventions and the rights of
the child. We must guarantee access to knowledge, education and culture
because WIPO is a specialized agency of the UN and it should act in
line with these goals. The PCDA should not lay outside the MDGs which
must serve as the guide for devising the norms within the agenda.

     This is a platform to devise a more balanced system in the public
interest, and this is why we want provision to strengthen the public
domain to stand independently.

The United States supported the general principles behind provision 17
tabled by Chile on the public domain while Brazil noted that,

     Proposal 17 is perfectly viable and relevant for the organization.
When we speak of the protection of the public domain, we do not read
this as legal protection of the public domain. We look at it as general
protection for the public domain against ever-encroaching IP rights

created by the upward harmonization of patent, trademark, copyright and
related rights.

Switzerland and Italy expressed their reservation on proposal 17
(Cluster B) which called for the =93protection of the public domain
within WIPO=92s normative processes.=94 Italy in particular asserted that

     The public domain cannot, by definition, be protected. Therefore we
need to be clear about what can and cannot be protected because it has
already fallen into the public domain.

The delegate from Chile responded saying,

     I would like to dispel one or two doubts about the use of
terminology. The proposal does not refer to =93protecting=94 the public
domain, as Russia has said, so we could use another word e.g.
"preserve" or "safeguard," perhaps?

     When we create rights, these can have undesirable effects. There
are directives in the EU which have review mechanisms so that they can
have a corrective mechanism later. For example, TPMs can have effects
that outlive the copyright term on the underlying work.

It is clear from the rich discussion of the public domain at the WIPO
Development Agenda that some stakeholders have a long way to go in
understanding of the public domain. Hopefully, WIPO can facilitate
capacity building to augment understanding of the role of a robust
public domain within the IP system. Rather than branding the public
domain as "mission creep", it is incumbent upon the International
Bureau and WIPO Member States to start thinking of how to "consider the
protection of and enhance the public domain within WIPO's normative
processes" as a critical part of WIPO's mission.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org
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