Colombia, the Public Domain and the Development Agenda

FromGeneva
February 22, 2007
Thiru Balasubramaniam

After instense negotiations today, the WIPO PCDA appreared to come to a consensus on proposals related to Cluster B: Norm-setting, Flexibilities, Public Policy and Public Domain with the following language.

1. Norm-setting activites shall:
-be inclusive and member driven;
-take into account different levels of development;
-take into consideration a balance between costs and benefits;
-be a participatory process, which takes into consideration the interests and priorities of all WIPO Member States and other stakeholders, including civil society at large; and
-be in line with the principle of neutrality of the WIPO Secretariat

2. Consider the preservation of the public domain within WIPO's normative processes and deepen the analysis of the implication and benefits of a rich and accessible public domain.

Colombia, however, expressed its reservations on the four proposals contained in Annex A and Annex B related to the protection of public domain. Colombia noted that a consensus process should not compel a dissenting minority to accept the view of the majority. Despite the progress WIPO has made in discussing norm-setting, flexibilities, public policy and public domain, dark clouds remain over the incorporation of good public policy principles into WIPO's normative processes.

Tripartite alliance against the public domain: Colombia, El Salvador and Italy

FromGeneva
February 21, 2007
Thiru Balasubramaniam


Colombia, El Salvador and Italy are playing an obstructionist role in
the WIPO Development Agenda talks today repeatedly trying to torpedo
the idea that WIPO should "promote measures that will help countries
combat IP related anti-competitive practices" and the idea that WIPO
should consider the protection and enhancement of public domain.
Chile, Brazil, Argentina and the United States have a more nuanced
understanding of the implications of a robust public domain.

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 “Battleships” or “Bingo” with member countries often defining the contours of the debate on such important public policy issues as “technical assistance and capacity building”, “norm-setting” and the “public domain”. This game of Bingo manifested itself in countries’ indication support of proposals by number and letter, for example, “we support the general thrust of 1, 5, 12 and 16” of Cluster A” (Technical Assistance and Capacity Building) or “we support the principles behind 17 and 20” of Cluster B (Norm-setting, flexibilities, public policy and the public domain). To further compound matters, countries used Ambassador Enrique Manalo’s (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’s 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’s intervention.]

The Chilean delegate further intimated that a robust public domain would enrich and work within intellectual property architecture. From KEI’s 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 “consider the protection of the public domain within WIPO’s normative processes” went far beyond the remit of WIPO’s mandate further noting that creations in the public domain was not in WIPO’s 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 “protection of the public domain within WIPO’s normative processes.” 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 “protecting” 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.

New Chair of WIPO Committee dealing with Development Agenda

FromGeneva
February 19, 2007
Thiru Balasubramaniam

The WIPO committee (PCDA) overseeing the Development Agenda got off to slow start today commencing at 10:48 AM (48 minutes late) due to several concurrent regional coordination meetings. Brazil, on behalf of the Group of Latin American and Caribbean countries (GRULAC) nominated Ambassador Trevor Clarke of Barbados to be chair of the 3rd session of the WIPO. Ambassador Clarke just finished a one year post chair the World Trade Organization (WTO) Council for TRIPS. In his intervention, the Brazilian delegate noted that Ambassador Clarke would be an "excellent choice" and stated that "we trust him fully and he would be a good person to guide us to a positive outcome".

Italy, on behalf of Group B (industrialized nations plus the Holy See), seconded the nomination of Ambassador Clarke and proposed Ambassador Muktar Djumaliev of the Kyrgyz Republic as Vice Chair. Both these nominations were accepted by the WIPO PCDA. The choice of Vice Chair was a curious one considering that the Kyrgyz Republic's submission of 40 proposals ("early harvest") is currently the main agenda item for this week's discussion.

Ambassador Clarke set out a congenial start to the meeting with charming candor noting that

I will be working cautiously because this is a very serious assignment, and one of my friends said that this is because I like punishment. But I'm always to take a challenge, so thanks for the opportunity to do this. To date, I know very little about the PCDA, but I've been talking to as many members as I can to get a feel for what's going on. Let me assure, however, that any contribution I make can only be made with your support. My role is to facilitate dialogue. I come to the Committee with the belief that you want to make progress on the matter that has been under discussion for two and a half years.We need to consider how we proceed this week. One critical issue relates to President Manalo's (Ambassador of the Philippines and Chair of the WIPO General Assembly) initial working document. We should seek your cooperation to use this working document for our discussions this week. The document has been produced by the recommendation or instruction from the GA. It is intended to guide our work this week and then in June.

As Ambassador Clarke had another engagement at 11 AM, he suspended the meeting till 3PM. Before the morning session closed, the WIPO PCDA accepted the requests for ad hoc accreditation from Knowledge Ecology International (KEI) and the Yale Information Society Project.

For an overview of some of the issues at stake please check out my colleague Malini's blog post on a KEI brown bag lunch held recently in Washington, D.C.

Icy winds and open standards tempest descend upon Ivy League haven

FromGeneva
Thiru Balasubramaniam
February 6, 2007

On a cold winter's day (February 3, 2007) buffeted by hyperborean winds, around 70 participants including government officials (Belgium, China, South Africa and the United States), academics (Georgetown, Harvard, Hebrew University, MERIT, Santa Clara, University of Colorado and Yale) public interest groups (IP Justice, Knowledge Ecology International), corporate representatives (IBM, Microsoft and SUN), the World Bank and technologists met in the New England town of New Haven at the Open Standards (OSIS) convened by the Yale Information Society Project. The OSIS was divided into four panels: (1) technology, (2) economics, (3) politics and (4) law. From my own perspective, while most people focused their attention on standards' impact on US technology vendors, a small but high level group of participants were deeply engaged in the global debates about how standards and intellectual property can be barriers to trade. In one sense, the collegiate discussions over the central question of whether non-disclosure of patent assets in standards constituted a barrier to trade served as a "proxy debate" between China and United States in lieu of actual consideration of this subject at the World Trade Organization.

In the economics panel several speakers including Rishab Aiyer Ghosh (MERIT) and An Baisheng (Ministry of Commerce, People's Republic of China) stressed the "network effects of standards which they asserted could serve as entry barriers to new technologies. Rishab Ghosh provided the example of the QWERTY keyboard as an example where a standard lead to path dependence. Furthermore, he noted that where

a network effect exists, often a natural monopoly is the best way to capture its value. An alternative involves separating the technology from the producer, this provides competition among vendors. The existence of rights such as IPR over a standard allow control/rent-seeking over the standard. Standard bodies try to limit this behavior. From an economic perspective, an open standard involves the coexistence of competition for the standard with a natural monopoly for the technology itself.

An Baisheng reiterated the idea that standards have network effects and highlighted the fact that parties with relevant IP assets in a standard would have the propensity to maximize their royalties through rent-seeking behavior. An raised the issue of disclosure of IP assets-e.g. what is the real cost of disclosure. In this context, he referred to China's submissions to the WTO Technical Barriers to Trade (TBT) committee including a paper (G/TBT/W/251) entitled "Intellectual Property Right (IPR)Issues in Standardization tabled in May 2005 and a paper (G/TBT/W/251/Add.1) tabled in Nobember 2006 entitled "Background paper for Chinese Submission to WTO on Intellectual Property Right Issues in Standardization (G/TBT/W/251). These timely papers raised a firestorm of controversy at the WTO with many Members wary of the subtle argument raised by the Chinese submissions, namely, the question of whether IPRs embedded in standards could be considered a technical barriers to trade, anathema to certain WTO Members (guess who?).

In the politics panel, Mr. Huang Rengang, Minister Counsellor of the Permanent Mission to the WTO, People's Republic of China) did not beat around the bush when it came to the question of open standards unequivocally declaring "I am a big fan of open standards" and noting the efforts to silence the discussion of open standards in international fora in Geneva. Mr. Huang's presentation focused on three elements:

• "What role can international organizations like WTO play? When China tabled view on IPRs and standardization, there was divided opinion of this in the WTO. There needs to be more discussion of standards at the WTO".
• "How developing countries can play a role in the development of open standards? How can countries improve their effectiveness in developing standards? So far, developing countries have played a limited role. Developing countries need to do their homework. The current TBT Agreement poses limitations on these discussions".
• "How China has contributed to standards development, from a personal perspective. In ancient times. Chinese shared inventions such as paper and gunpowder. Our ancestors embraced the idea of sharing knowledge. Consider how different things would be if our ancesters guarded the secret to making paper and gunpowder".
  

During the intitial set of Q&A in the politics panel, your blogger asked Mr. Huang, "Do you see other fora as appropriate venues for discussion of open standards outside of the WTO TBT committee? How do you see its future within the TBT"? This question was grounded in KEI's previous calls for WIPO to

[a]ddress the problems faced by standards organizations, and in particular, those that involve essential interfaces for knowledge goods, such as software or Internet standards.

Mr. Huang Rengang responded by saying that when China submitted its standards papers to the WTO, questions were raised about its motivations including the "wanting to pay less royalties." Other Members decried that standards and IPR issues were not appropriate for agenda of the Triennial Review as it would imply that IPRs are barriers to trade and call for a revision of the TBT. Mr. Huang concluded by stating that the discussion of "open standards is unstoppable".

Victoria Espinel (Assistant USTR, Intellectual Property & Innovation, Office of the U.S. Trade Representative) informed the audience that the USTR recently included created a bureau on Intellectual Property and Innovation. She noted that standards were important to innovation policy and reminded us that the WTO has adopted guidelines for on how standards should be set and implemented. Ms. Espinel asserted that standards should be set in an open, transparent and inclusive manner. With respect to IP rights, she held the notion that they were sacrosanct and inviolable. According to her, one of the functions of the IPRs was they promote innovation. Usurping them when they are convenient she contended, was not the way to go. IPRs should be reassessed if they are not promoting innovation. She observed that the underlying question in this debate was the fear of competition with the looming threat of job loss. While advocating free trade Ms. Espinel acknowledged the challenge in balancing the benefits of competition with the interest of some segments of society who could lose out in the short term.

In collegiate exchange following her presentation Mr. An Baisheng of China questioned Ms. Victoria Espinel as to why China received so much pressure to drop their request to the WTO TBT committee. Ms. Espinel responded diplomatically by stating that she was not involved in the TBT negotiations referred to and that perhaps the WTO TBT negotiators were anxious in dealing with a topic (IP and standards) in which they lacked specialized expertise.

The superb quality of the Yale ISP Open Standards International Symposium in terms of content and the caliber of the panelists is testament to the efforts of the organizers, especially Laura DeNardis. Although the tenor of the open standards debates in this New England idyll remained cordial, they belied the greater stakes; one is reminded of James Carville's dictum "[t]he economy stupid". With antecedents in the WTO, WIPO and the Internet Governance Forum, this symposium underscored the point that open standards are indeed ready for prime time and are coming to an international forum near you and me.