The public's access to knowledge is increasingly hindered by imbalanced intellectual property regimes which are tilted to the advantage of IP holders vis-a-vis users and consumers, and there is a need to establish a treaty or at least principles to redress this imbalance as part of a "development agenda" in fora dealing with intellectual property protection.
This was a key message emerging at the start of an experts meeting on the WIPO Development Agenda and a treaty on access to knowledge being held here on 3-4 February. The meeting, attended by 60 academics, researchers, public interest groups and diplomats, is organized by the Consumer Project on Technology (CPTech), the International Federation of Library Associations and the Third World Network.
The meeting is reviewing how copyright and patent laws are restricting access to knowledge and discussing various proposals for offsetting this.
The discussions are also in the context of the proposals put forward by many developing countries for a "Development Agenda" in the World Intellectual Property Organisation. One of the Agenda's proposals is to establish a treaty on access to knowledge.
CP Tech director and the meeting's main organizer James Love said that the access to medicines campaign by some NGOs had raised awareness of the adverse effects that international IP agreements can have, and the need for reform. This was to some extent achieved by the adoption by the WTO of the Doha Declaration on TRIPS and health and its subsequent decision on paragraph 6 of that Declaration.
Similarly, he said, knowledge is an essential public good and access to it is vital, and thus it was vital to review IP treaties to see how they impact on access to knowledge, and to establish a new treaty or elements of a treaty, to promote such access. The meeting had brought together representatives from many organizations in different fields that are concerned about aspects of access to knowledge, and it aimed to brainstorm as to how to move ahead on the issue, he added.
Diplomats from some developing countries that had been active in the Development Agenda process at WIPO explained its origins and rationale. In recent years there had been a debate in various fora about the effects of IP regimes, for example in the WTO and WHO on the TRIPS and health issue, said a diplomat.
There has also been increasing debate in academic circles on whether the IP regime had gone too far in protecting IP holders at the expense of the public interest. However, until a few years ago, the discussions at WIPO had been "out of sync" with and even contrary to this questioning trend, and in fact there were initiatives at WIPO for a patent law treaty that was "TRIPS-plus" and would lead to upward harmonization of patent laws around the world. The effect of this would be detrimental as the developing countries were still grappling with how to implement their already heavy TRIPS obligations.
The aim of the Development Agenda proposal was to bring the discussions at WIPO in line with the discussions going on at other fora, and to start a pocess at WIPO to see if it could contribute to the developments in other fora, said the diplomats. A key part of the Agenda is institutional reform, to change the WIPO's way of thinking and to mainstream development and redress its overly pro-IP bias.
Besides the Development Agenda, said the diplomats, another initiative of developing countries in WIPO is a proposal to extend exceptions and limitations to copyright, aimed at bringing about more balance between the interests of copyright holders and users.
For the past many years, there had not been an exercise to provide more rights to consumers in copyright regimes. On the contrary, international norms had been established to expand the copyright holders' rights, without doing studies on the effects of these new norms on the public and consumers. The access of many consumers were cut off as they could not afford the high monopolistic prices made possible by the enhanced rights given to copyright holders.
To deal with this problem, the general proposal was put forward by developing countries on exceptions and limitations (including for librarians and people with disability), and specific proposals would now be needed, added the diplomats.
South Centre team leader on intellectual property, Sisule Musungu, speaking in his personal capacity, said the Development Agenda proposal gave a conceptual basis (and not just technical aspects) to the development dimension of IP as it frames the issues in light of developments outside WIPO.
The WIPO decision (at its Assembly in October) to take up the Development Agenda was a victory for the co-sponsoring countries and their supporters as one could not imagine WIPO agreeing to discuss such an agenda a few years ago, said Musungu. Nevertheless there was difficult work ahead, including in how to put in elements of the development philosophy in on-going WIPO negotiations on proposed treaties on the table, such as the substantive patent law treaty (SPLT) and the broadcasting treaty.
Musungu also warned that there could be more pressures put on developing countries. For example, at a recent meeting the developed countries had considered how to take forward the SPLT and the patents cooperation treaty either inside WIPO or outside of it (if they could not get their way in WIPO).
This gave a signal that they do not need WIPO to achieve their goals, and this message may be designed to get the developing countries to get in line (with the views of the developed countries) at WIPO.
Other diplomats and participants also expressed concern that TRIPS-plus and WIPO-plus provisions have been included in bilateral and regional trade agreements that developed countries have concluded or are negotiating with developing countries. Thus it is not sufficient to focus only on developments at international fora like WIPO and WTO.
Participants debated whether it was sufficient to think of access to knowledge only in terms of expanding exceptions and limitations to existing copyright and patent laws. Such an approach would implicitly recognize that IPRs are the main rights whilst some exceptions are then provided for consumer and public rights.
It was proposed by several participants that a treaty on access to knowledge should be based on the human rights model, in which access of knowledge is acknowledged as a human right, that this right is primary, and the rights to holders of copyrights or patents are seen as secondary or exceptions, and should thus be limited and in ways that would not threaten the primary human rights.
Participants said that on the other hand, to promote access to knowledge, it was also useful to expand exceptions and limitations in existing IP regimes, to reform these regimes in the meanwhile, and thus bring about more balance within them in favour of the public interest. Both approaches could be adopted simultaneously, many participants agreed.
In a session on exceptions and limitations to copyright, representatives of international and United States library associations, said that many librarians had been concerned about the effects of intellectual property protection on access to information and knowledge.
The librarians have also been actively engaged in attempts to expand the exceptions to copyright for libraries and educational institutions and the disabled.
An American Library Association representative introduced a list of "Library-related principles for the international development agenda of WIPO." The principles, developed in December 2004, had been endorsed by the International Federation of Library Associations, American Library Association, American Association of Law Libraries, Association of Research Libraries, Medical Library Association and Special Libaries Association.
The principles were prepared for use at discussions at WIPO concerning the impact of IP protection on economic development and the significance of copyright exceptions for libraries, educational institutions and the disabled.
The principles are listed under four goals. Goal 1 is a robust and growing public domain to provide new opportunities for creativity, research and scholarship. Principles under this include that all works created by government authorities should be in the public domain; published works resulting from government-funded research should be publicly available at no charge; and facts and other public domain materials and works lacking in creativity should not be subject to copyright protection. Also, consistent with the Berne Convention, the term of copyright should be the life of the author plus 50 years and the terms should not be extended retroactively.
Goal 2 is effective library programmes and services as a means of advancing knowledge. Principles include that a library may make copies of works in its collection for purposes of preservation or to migrate content to a new format; a work acquired by a library may be lent to others without further transaction fees to be paid by the library, and may be made available over a network in support of classroom teaching.
Also, a library or educational institution may make copies of a work for classroom teaching; a library may convert material from one format to another to make it accessible to persons with disabilities, and can make copies of works still in copyright but not currently the subject of commercial exploitation (to support preservation, education or research).
Goal 3 is high levels of creativity and technological progress resulting from individual research and study. Principles include that copyright laws should not inhibit technology development where the technology has substantial non-infringing uses; copying of individual items for or by individual users should be permitted for personal research and study; and it is permissible to circumvent a technological protection measure for the purpose of making a non-infringing use of a work.
Goal 4 is harmonisation of copyright. Principles include that the goals and policies in the document should not be over-ridden by other bilateral or multilateral agreements; and these goals and policies are important statements of national and international principle and should not be varied by contract. The meeting will discuss several more aspects of and proposals on exceptions to copyright and patents.
