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 at 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]