TWN Info Service on WTO and Trade Issues (Feb06/20)

26 Feb 2006

Day 2 of WIPO Development Agenda meeting

Most delegations and NGOs support "public domain" proposal

The second day of the WIPO Development Agenda meeting (Tuesday 21 Feb) took up the issue of "public domain". The importance of the "public domain" in knowledge and the need to protect it from the incursion of private rights was a strong theme that had been initiated by one of the three proposals put forward by Chile.

The concept that the integrity of the public domain should be safeguarded, as a rich public domain facilitates further creativity and innovation, received support from almost all delegations including the developed countries and public interest NGOs.

Below is a report of the second day's highlights.

With best wishes
Martin Khor


WIPO: Most delegations and NGOs support "public domain" proposal

By Sangeeta Shashikant (TWN)< Geneva, 22 Feb 2006

The importance of the "public domain" in knowledge and the need to protect it from the incursion of private rights was a strong theme on the second day of the WIPO meeting on the Development Agenda initiative taking place here this week.

The meeting of the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA) focused on the treatment of the public domain when discussing on Tuesday (21 February) a proposal on the subject by Chile.

The concept that the integrity of the public domain should be safeguarded, as a rich public domain facilitates further creativity and innovation, received support from almost all delegations including the developed countries and public interest NGOs.

This first proposal on "Appraisal of the public domain" in the Chilean paper was discussed at length. The paper's second proposal is on the importance of complementary systems to and in intellectual property and the third proposal is on a study to assess appropriate levels of intellectual property in each country.

Argentina said that there is a lot of similarity between the Chilean proposal and the proposal by the Group of Friends of Development as both are based on the same philosophy and spirit. Brazil said the Chilean proposal reflects a common understanding that the Development Agenda should not be focused on technical assistance alone, but also incorporate other concerns about norm setting activities, research and studies to assess impacts of IP systems in all countries. The Africa Group was also supportive of the Chilean proposals.

Delegations also gave ideas on how to move the Development Agenda process forward. Jordan proposed that all the proposals be presented in the form of clusters so that Members can achieve common ground. Uruguay asked that points of convergence be identified to help come up with tangible recommendations. The US suggested that the proposals should be listed and those on which consensus can be achieved should be selected to make recommendations to the General Assembly.

Chile's first proposal is for WIPO to (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.

While there was strong support from many countries and NGOs for this proposal including creating a global public domain database accessible to all, some delegations questioned the definition of "public domain" and some said this type of proposal did not fall within the mandate of WIPO.

The Chilean paper also proposed that WIPO set up a permanent area for analysis and discussion of incentives and models promoting creative activity, innovation and technology transfer in addition to and within the intellectual property system.

In its oral presentation, Chile put forward options such as an electronic forum for discussion and that discussion on this be taken up in different WIPO committees including the Standing Committees on Patents and on Copyright.

However, the US was of the view that looking at alternative systems does not come under the scope of WIPO's work as its mandate is protecting IPRs. Other countries disagreed, saying this was an important area for WIPO and supported Chile.

Chile's third proposal was for a study by an independent body to consider (i) the relationship between IP policies and competition policies; (ii) exceptions and limitations to the IP system, which facilitate innovation, promotion and creation policies, based on the comparison of national models; and (iii) the economic and social effects of changes on protection levels.

Most delegations were supportive of having such a study, stressing that it was important to know not only the benefits but also the costs of implementing an IP system. Several said that as a first step, there should be a compilation of existing studies on this issue. The US did not support having such a study.

In presenting its paper, Chile said the proposal on the public domain was based on understanding its value to all, as that "nothing is created out of nothing". The benefits of a rich public domain are obvious, to education, businesses that can use rich databases, for governments, patent offices to see what prior art is available throughout the world, to libraries and archives etc.

Chile then gave examples of how the public domain may be adversely affected, for example, by patents and copyright laws. Copyright was originally designed to protect the rights of authors, artists and performers. However, the discussion is now on how new right holders can have claims to the same work, while the number of rights conferred on right-holders have also increased.

Various limits were put on the public domain through these laws and while they may be justified one by one, taken as a whole, they have reduced the public domain.

Chile said there are other ways to identify works that are in the public domain such as a worldwide public domain database. In Chile, a process to digitalize all copyright works is going on so that they will be available when they move into the public domain.

On its second proposal, Chile said there should be discussion on complementary systems that are currently being implemented by countries such as creative commons, and free and open source software that also provide incentives for intellectual creation.

On its third proposal, Chile said that doing a country-by-country analysis is ambitious. It is more realistic to do studies on specific issues such as on patents and copyright, limitation and exception, alternative systems, in a limited representative number of developed and developing countries, the participation of which would be voluntary.

Argentina and Brazil supported the Chilean proposals. On the proposal for a databank on the contents of the public domain, Brazil suggested that this could be done with UNESCO. It added that WIPO must incorporate the progress made in the WSIS process on free and open source software.

Bangladesh supported the Chilean proposals, stressing that the concerns of LDCs should be taken into account. It said that too much IP protection stifles creativity, thus there was a need for balance. WIPO should advise countries on how to develop anti-trust laws because it's better for all if there are multiple systems in place to promote development. Regarding impact assessment proposal, members should draw on existing studies such as those in UNCTAD.

Nigeria on behalf of the African Group said that the Chilean proposal is important. The Group approved of protecting the public domain, and the privatization and commoditization of knowledge especially by quarantining useful knowledge should be resisted.

It agreed with Chile on the need for studies to know which systems can be applied to which sectors. The informal sector, important to Africa, would require a certain type of IPR as they are different from the western type of economic structures, so they should be treated differently in terms of IPR enforcement.

Austria on behalf of the EU said it recognized the importance of disseminating knowledge in the public domain. It acknowledged that other policy instruments besides the IP system could play an effective role as well.

The EU also believed that sound impact assessments can deepen understanding of the flexibilities provided in the IP systems and asked for further analysis of the Chilean proposal, such as who conducts the study and the implications if such a study is conducted by WIPO. However, as a first step, a compilation of existing studies could be done.

Mexico said that free and open source software was one of the issues that was most discussed at WSIS and would be a follow-up issue, so it was premature to discuss it in WIPO.

The US agreed that the public domain is a resource that can foster innovation and creativity but said that IP is aimed at enriching the public domain and does not diminish it. WIPO is helping to establish a well-functioning IP system, as it is working to protect the public domain. The US added that when WIPO established the WIPOnet, it enhanced access to a vast array of public domain materials.

On the complementary system, it said that it had doubts as WIPO's core mission was IP protection so it should focus on IP matters rather than on alternatives.

On the proposal on the study, the US supported finding of appropriate levels of IP protection for each country, but said this was something for each government to address individually. The WTO has agreed on minimum standards for IP protection and countries already have available different transition periods. Therefore, it said that it did not support WIPO embarking on these studies.

Japan recognized the importance of the public domain. It added that if the public domain is studied, IP protection should also be studied. This type of a study has already been done so duplication should be avoided.

Responding to the comments on the Chilean proposal, Brazil said the idea that the public domain proposal is outside WIPO's mandate is strange as it is part of the system. If WIPO's mandate involves international treaty making, in the end the organization does define the size of the public domain.

It commented that using the word "protection" of the public domain may have raised doubts. It is not about owning a piece of the public domain. It is a realm of rights that mankind is free to venture into, and it works to the benefit of mankind.

On technology transfer, it said that it is part of the IP system. In fact many delegations have repeatedly said that IP protection will lead to technology transfer. Monopolies are acceptable to the extent that societies get something back in return, and if IP rights are pushed to far, there isn't the right balance. It said that WIPO should be asking what is going on in the IP realm when developing countries feel that the system may not be responding to their national needs.

Chile said that Members could use more information on what is or is not in the public domain as the public domain is affected by issues such as technological protection measures.

It was concerned that some countries were questioning the definition of public domain. It was not asking for anything complicated, but only for a study on the quid pro quo of IP. After 20 years of protection, the materials fall into the public domain and everyone can use them.

Responding to Mexico, it said that free software works within the IP system, thus it should be within the purview of WIPO.

The Chile proposal either in part or in whole was also supported by Panama, Kenya, Colombia and Honduras.

Several NGOs also spoke. Consumers International referred to its own recent study on 'Copyright and Access to Knowledge' and concluded that international instruments have progressively ratcheted upwards the scope and duration of copyright protection.

It also found that the 11 developing countries it had surveyed had not used flexibilities in the international treaties they signed. In fact, the countries provided the copyright owners far more rights than they needed to under the treaties they signed and the laws were more restrictive of public access to knowledge.

It added that the draft laws used by WIPO to provide technical assistance are failing the interests of developing countries and that WIPO's actions are "a disservice to developing countries".

It asked the PCDA to implement the Chilean proposal and to commission a study to examine to what extent the IP laws of developing countries provide for access to knowledge in the public domain.

The Civil Society Coalition (CSC) said WIPO was at the forefront of normative processes such as negotiations for the Substantive Patent Law Treaty (SPLT) and the broadcasting/web-casting treaty which could potentially lock-in countries into greater privatization of knowledge and a shrinking of the public domain.

This appears motivated by an uncritical belief that the enclosure of knowledge is the best way to promote creativity, invention and development. It said that this was an outdated and erroneous way of looking at things. It gave examples of successes, such as the Internet, which is based upon public domain technologies, the free software and open access publishing movements, and projects like the Human Genome Project which illustrate how useful it is to share knowledge goods widely.

It proposed to modify the Chilean proposal by expanding the phrase, "the public domain" to the more inclusive, "the public domain and other elements of the knowledge commons", as there is also value when the private owners of knowledge goods make them freely available to everyone - like the Wikipedia and much of the free software.

It also encouraged WIPO to look at the issue of open standards, which are an aspect of the public domain and the knowledge commons. On the complementary issue, it highlighted the draft resolution on a "Global Framework on Essential Health Research and Development", to be discussed at the World Health Assembly this year, which provides a process complementary with the IP system, to consider a new global regime on R&D that is consistent with public health priorities.

The International Federation of Library Associations, which represents 1,700 member organisations in 150 countries, welcomed the proposal on appraising the public domain and said that this must include the issue of the impact of intellectual property laws, licensing and technological protection measures on access to public domain information and works in electronic form.

Public domain content within commercial electronic materials is often subject to a licensing regime which is often non-negotiable and in most countries, licenses and contracts are allowed to override copyright exceptions and limitations. Moreover, digital content faces the risks of being locked up in perpetuity by technological protection measures that enforce the license terms.

A low-cost solution to these problems is that publishers who digitise public domain works also be required to furnish the library which provided the material, with clean digital copies so that the library may not only preserve the digitised works for posterity and migrate them to new platforms, but also make those public domain works freely available forthwith on an 'as is' basis to the public on library servers.

This would immensely benefit access to public domain works by developing countries, especially if WIPO created a database or portal to these works as Chile proposes. Publishers should also be required to entrust major legal deposit and research libraries stipulated by national legislation with clean copies of their electronic products for the purposes of conservation and preservation so that the content is not lost when the rights in the product expire. It would be helpful if the proposed appraisal were to address these points.

It supported Chile's third proposal, stating that it expected the study to reveal the hidden costs met by libraries resulting from copyright protection - such as the fees they pay for licensing and document supply, book and journal prices, reprographics and levies and the expensive and frustrating process of copyright clearance - especially when tracing the vanished right owners of orphan works.

The Third World Network also supported the Chilean proposals. It said that IP obligations that are being pushed to developing countries by the developed countries in bilateral free trade agreements are extending the rights of the IP holders and monopolies.

It gave examples of "ever-greening" patents in which patents are allowed to be granted on "new uses" of known substances although these "new use" patents can in no way be considered to be rewards for new invention, as nothing new has been invented. But by granting patents on new uses of known substances, it allows patent protection to be greatly extended allowing the patent holder yet another 20 year monopoly.

TWN said that the extension of the rights of the IP holder reduces the public domain, as material that should have fallen into the public domain continues to be protected. These developments signal the need for urgent action to safeguard the public domain and limit the extension of rights of the IP holder. The protection or safeguarding of the contents of the public domain should also be a guiding principle in all norm setting exercises taken in future in WIPO.

IP Justice, an international civil liberties organization, said that Chile's proposals would greatly aid in bringing knowledge and innovation to the developing world. The creators themselves are particularly dependent on access to a robust public domain for education and inspiration. It added that the works of Mozart and Shakespeare are prime examples of public domain works that have enriched humanity for generations, something only possible if a work is in the public domain.

WIPO should not insist on Member Countries relying upon only proprietary rights to achieve economic development particularly since alternative systems have created enormous value, such as Free and Open Source Software and the Creative Commons licensing schemes. WIPO, it added, has an obligation to remain neutral among the various tools for incentivising creativity and human development.

The US has only recently begun a maximal approach to IPR. In the past, the US permitted open exchange of information which has allowed creativity and innovation to flourish in the US. Developing countries should be permitted the same path to economic growth that the US has benefited from.

3D, a Geneva-based NGO, said human rights can support a number of reforms put forward in the proposals for a WIPO Development Agenda. For example, it added, the reporting and assessment dimensions of human rights law support the idea of independent evaluation of WIPO activities and impact assessments of intellectual property policies.

Human rights law also encourages a more transparent, non-discriminatory and human rights-consistent approach to WIPO norm-setting activities; public consultation and participation in decision-making, and supports proposals for reforming WIPO's technical assistance in a manner that is non-discriminatory and responsive to the needs of the most vulnerable and marginalized individuals and groups.