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Chile's Sensible Proposal on Intellectual Property made at the World Intellectual Property Organization meeting in Geneva

WipologoThe Electronic Frontier Foundation has an interesting write-up of the proceedings at the meeting of WIPO, the World Intellectual Property Organization, in Geneva. Apparently, Chile has a particularly sensible proposal on the table that consists of three specific suggestions:

  1. Appraisal of the public domain
  2. Emphasize importance of complementary systems to and in intellectual property
  3. A study for assessing what are the appropriate levels of intellectual property, considering the particular situation in each country, specifically its degree of development and institutional capacity

The full text of the proposal is below the cut. The EFF remarks:

In the afternoon of Day 2 of the WIPO Provisional Committee on Proposals Related to a Development Agenda we finally got down to business: discussing Chile's thoughtful proposal on the Public Domain. Chile had actually put forward three suggestions, but it was the proposal for WIPO to undertake a study of the value of "a rich and accessible public domain" that drew comments from a slew of Member States, the Committee Chair and public interest non-governmental organizations. And rightly so. As Chile's proposal notes, the public domain is essential for ensuring access to knowledge,  and provides the foundation for technological innovation.

Intellectual property rights are supposed to promote the same goals, but you'd never know it from the comments of some participants who seemed to fundamentally misunderstand the essential relationship between IPA and the public domain.  Apparently under the mistaken impression that the public domain is the opposite of intellectual property, these participants claimed that the proposal was outside Wop's mandate.

The copyright and patent regimes have historically recognized that the creation of intellectual property requires a robust public domain. Material from the public domain forms the building blocks on which new creations are built. As the Chilean delegate eloquently put it:  "Our starting premise is that nothing is created out of nothing. The greater the works in the public domain, the greater the creation." The public policy underlying the grant of time-limited exclusive copyright and patent rights is that the public domain will be continually enriched, to the benefit of all society.

Precisely because of the public domain's importance,  recent encroachments upon it - such as Technological Protection Measures, new sui generis database rights for non-copyrightable data,  exclusive rights for test data in the patent arena, and extensions of copyright and patent terms - deserve careful scrutiny.

Chile also proposed that WIPO analyze complementary systems to intellectual property that incentives creative activity, innovation and technology transfer, including free and open source software and creative commons licenses, and a study or set of case studies assessing the appropriate level of intellectual property protection based on different countries development status.

The NO coalition's notes of day two's proceedings are after the jump. There are also great summaries of the debate at the blogs of IPA-Watch, Georg Greve, and Kirsten Karloff of Free Software Foundation Europe, GAV Brazil, and Thieu Balasubramaniam of Consumer Project on Technology.

Cory Doctorow remarks, in his post How the US is boning the developing world at WIPO:

EFF and other public interest groups are back at the United Nations this week, at the World Intellectual Property Organization's meeting of the "Provisional Committee on Proposals Related to a Development Agenda." This is the meeting where the nuts-and-bolts of how WIPO will turn itself into an actual humanitarian agency, instead of what it has done traditionally: help rich countries and their multinationals screw the developing world.

The public interest groups continue to subversively write down what's going on and publish it, something that  WIPO's Secretariat once described as "abusing WIPO's hospitality" -- normally, the Secretariat would release a report six months after the fact, once everyone quoted in it had the chance to revise the report of what they'd said. EFF and others publish their account of the WIPO deliberations daily -- twice a day, when it's going hot and heavy -- and it gets slash dotted, read by delegate's bosses in their capitols, and distributed. It has a genuinely disruptive effect on the orderly dividing-and-conquering of the world that's underway there.

Technologically, it's dead simple: the public interest groups make an ad-hock WiFi network, open up the group-editing program SubEthaEdit, and collectively write down as much of what's being said as they can keep up with, along with explanatory text.

Keep on transcribing! Good work, people.

FromGeneva has a colorful bit from yesterdays's proceedings that I find quite delightful, because indeed the whole debate centers on desire, that term so popular in literary criticism when I was in grad school:

Nearly one hour was devoted to whether to structure this list "horizontally" or "vertically". The Ambassador of Argentina proposed that this list be structured in horizontal clusters in a table or matrix format. This he suggested would be a better way to visually see the common threads binding the proposals. Different delegations could then identify which cluster or column they felt their proposals belonged to. This initiative was supported by Brazil, Pakistan, and Venezuela. Many other members including the United States noted that this process was time consuming and was not the most efficient way to proceed.

The delegate from Pakistan had an inimitable quote on these discussions,

We can't resist the temptation to recite this line while we are looking at your proposal; a dance is a vertical expression of a horizontal desire. It is somehow relevant to the discussion we are having here. The desire is horizontal because we want to have a common ground. We have received from you a vertical expression.



First Session
Geneva, February 20 to 24, 2006
Document prepared by the Secretariat

In a communication dated January 9, 2006, the International Bureau received a proposal from Chile for consideration by Member States at the Provisional Committee on Proposals Related to a WIPO Development Agenda, to be held in Geneva from February 20 to 24, 2006.
The said proposal is annexed to this document.
The PCDA is invited to note the contents of the attached proposal from Chile.
[Annex follows]

Translation of a Note Verbale dated January 9, 2006 ( 08/06)
From: The Chilean Mission to the World Trade Organization, Geneva

To: The World Intellectual Property Organization
The Permanent Mission of Chile to the World Trade Organization presents its compliments to the International Bureau of the World Intellectual Property Organization (WIPO) and, in relation to the First Meeting of the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA), has the honor to enclose the following three proposals:
· appraisal of the public domain;
· the importance of complementary systems to and in intellectual property;
· study for assessing what are the appropriate levels of intellectual property, considering the particular situation in each country, specifically its degree of development and institutional capacity.
The Permanent Mission of Chile to the World Trade Organization hereby requests the International Bureau to distribute the attached paper as an official document of the First Meeting of the PCDA, under item 4 (proposals submitted by Member States) of the Draft Agenda (PCDA/1/1Prov.).
The Permanent Mission of Chile to the World Trade Organization takes this opportunity to reiterate to the World Intellectual Property Organization the assurances of its highest consideration.
(signed and stamped)

Provisional Committee on Proposals Related to a
WIPO Development Agenda (PCDA)
Proposal by Chile

Proposal 1: Appraisal of the public domain
The public domain can be seen as a resource freely available to all members of society without the need for authorization or payment of a license, in contrast to the property subject to intellectual property rights, regulated by one or more holders of those rights.
The public domain is of crucial importance for researchers, academics, teachers, artists, authors and enterprises, which require a rich base of content for their new creations, as well as for those institutions, the function of which is to preserve or disseminate knowledge, such as universities, research centers, libraries, information services, archives and museums.
Thus, teachers may prepare materials for their classes, educational institutions may publish texts which are richer in content, researchers may build on existing works, journalists have access to information to enrich knowledge and public discourse, and training industries adapt and recreate works for new audiences.
The capacity of the public domain to increase the availability and dissemination of knowledge has been recognized by the international community, through different declarations and recommendations, especially within the sphere of the United Nations which recognizes the importance of the public domain, especially in the light of digital technologies and the Internet which facilitate the dissemination and distribution of knowledge for all.
The following should be mentioned:
(a) Resolution 29 C/28 of the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1997, which calls for what needs to be done in order to “facilitate access to information in the public domain with the ultimate aim of building up a general electronic repository of all the information of a public nature relevant to UNESCO’s fields of competence”;
(b) The UNESCO Universal Declaration on Cultural Diversity, adopted by the
thirty-first session of the UNESCO General Conference, on November 2, 2001, which in its main lines asserts that States agree with the aim of “encouraging universal access through the global network to all information in the public domain”.
(c) The “Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace”, adopted by the UNESCO General Conference in November 2003;
(d) The Declaration of Principles of the First World Summit on the Information Society, Article 26 of which States: “a rich public domain is an essential element for the growth of the Information Society, creating multiple benefits such as an educated public, new jobs, innovation, business opportunities, and the advancement of sciences. Information in the public domain should be easily accessible to support the Information Society, and protected from misappropriation […]”, and;
(e) the Action Plan of the 2003 World Summit on the Information Society (WSIS), which states the need to “develop policy guidelines for the development and promotion of public domain information as an important international instrument promoting public access to information”. 1
In this context, and recognizing that the public domain is fundamental for ensuring access to knowledge and promoting the creative processes of innovation, we consider that WIPO should (i) deepen the analysis of the implications and benefits of a rich and accessible public domain, (ii) draw up proposals and models for the protection and identification of, and access to, the contents of the public domain, and (iii) consider the protection of the public domain within WIPO’s normative processes.
Proposal 2: Importance of complementary systems to and in intellectual property
Creative activity is the result of human effort in the context of a multiple structure of economic, personal and social incentives. In relation to economic incentives, intellectual property rights are undoubtedly of the greatest relevance. However, it should be stated that other policy instruments also exist, which are available to member countries for this purpose. These economic policy instruments have proven to be of great use in the success and enrichment of creative and inventive activity, as well as for the dissemination and transfer of technology. They include competitions, tax benefits, direct contributions, work commissions and public procurement.
In addition, it should be considered that the specific intellectual property system enables creators and innovators, and also rightsholders in general, to implement various models for the dissemination or exploitation of creations or innovations, such as open licensing systems. Within such creations or innovations, the expansion of free software and other open licenses such as Creative Commons suggests the need to identify, study and disseminate the licensing options which co-exist within the intellectual property system.
Consequently, we propose that WIPO should set up a permanent area for analysis and discussion of incentives promoting creative activity, innovation and technology transfer in addition to the intellectual property system and, within this system, emerging exploitation models.
Proposal 3: Study for assessing what are the appropriate levels of intellectual property, considering the particular situation in each country, specifically its degree of development and institutional capacity
Most of the proposals relating to the implementation of studies submitted to the Third Inter-Sessional Intergovernmental Meeting on a Development Agenda for WIPO have referred to particular and specific aspects of intellectual property 2 . Although those proposals are valuable, we believe that any study conducted in relation to the development dimension should be such that its ultimate aim is not only to demonstrate the benefits and impact of intellectual property systems. It should also identify what the costs are and, in turn, the most recommendable or appropriate levels of protection of intellectual property rights, taking into account the degree of development and particular social and cultural situation in a country, based on the minimum standard established by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).
The study should consider (1) the relationship between intellectual property policies and competition policies; (2) exceptions and limitations to the intellectual property system, which facilitate the implementation of innovation promotion and creation policies, based on the comparison of national models; and (3) the economic and social effects of changes on protection levels.
Furthermore, we are aware that conducting a study of this scope would not be without its difficulty, especially as relates to the terms of reference, for which reason Chile considers that for the study to be effective and achieve its aims it should have the following characteristics:
(a) the terms of reference should be discussed by the Member States of WIPO as part of a process that must be open, transparent, based on participation and informed.
(b) It should be entrusted to an independent body, selected by means of an international public bidding process that is open and transparent.
(c) The study should consider the contribution of multilateral bodies such as the World Health Organization, UNESCO, the United Nations Food and Agriculture Organization, the World Bank, etc.
(d) The study should be open so as to take account of comments from civil society.
(e) The results of the study should be made known to the WIPO General Assembly.
Thus, we propose the preparation of a study to assess what the appropriate levels of intellectual property are, taking into account the particular situation in each country, specifically its degree of development and institutional capacity. We believe that the value of this proposal lies in the fact that it considers the open participation of each of the Member States for its definition and that it guarantees the impartiality of the study since it is entrusted to an independent body.
[End of Annex and of document]