Tuesday, February 20, 2007

No Conflict of Creeds: WIPO Delegates discuss the public domain

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.