By Martin Khor (Third World Network), Geneva, 6 Feb 2005.
A meeting on intellectual property and access to knowledge held here on 3-4 February has reviewed several proposals for restricting the scope of copyright and patents in favour of consumers and the public interest, and for promoting greater public access to information and knowledge.
Among the issues discussed were a "blanket clause" in favour of the "commons" (or public domain), general limitations and exceptions to copyright protection, promotion of open access research literature, limitation to extension of copyright term, copyright on the internet, limits to patents on public-good databases and the impact of patents on development of standards.
The meeting on "The WIPO Development Agenda and a treaty on access to knowledge" was attended by 60 academics, researchers, public interest groups and diplomats. It was organized by the Consumer Project on Technology (CPTech ), the International Federation of Library Associations and the Third World Network.
The meeting's objective was to review the effect of intellectual property (IP) regimes on the public's access to knowledge, and to discuss proposals to deal with this, including through a possible treaty on access to knowledge. It also aimed to provide inputs to the discussions on a "Development Ag enda" in WIPO which several developing countries had proposed last October, and on which a WIPO intergovernmental meeting will be held in April.
At last week's meeting, some participants suggested that a useful way of dealing with the adverse effects of IP on access to knowledge would be through establishing a principle in favour of the "commons", or the public domain.
The Society for Public Information Spaces (Sopinspace), based in France, put forward a proposal for a "pro-commons blanket clause" that could be included in a possible treaty on access to knowledge.
Introducing the proposal, Philippe Aigrain (chief executive officer of Sopinspace) said the proposed pro-commons blanket clause was to ensure that the focus on limited exceptions does not override more global actions for commons-based cooperative creation and innovation.
The aim of the blanket clause is to recall that IP mechanisms are only a limited part of what can contribute to the superior aims they were set to serve. These aims include for instance innovation, creation, access to information and knowledge for all, or learning through reuse and further elaboration of information and knowledge. The blanket clause is a way to ensure that working within the present limits of WIPO's mission definition will not lead to forgetting the superior values and aims that matter to humanity.
The proposed blanket clause has a preamble part and an operational part. The preamble states that the freedom of all to access and reuse information, knowledge, creative works or scientific data is key to the advancement of humanity. "Thanks to information and communication technology, never has the possibility to mobilise the full breadth and diversity of human intelligence and creativeness been so high than today. "All could benefit from existing knowledge, learn in the process of reusing and extending it, contribute to each culture and a global civilisation, adapt technology to their needs and contribute to its progress, participate in science and raise new questions for its enquiry. "Commons-based cooperative innovation and creation have demonstrated its specific value in the field of information, knowledge, technology and art that can be represented by information. Free / open source software, open scientific publishing, free encyclopedia, freely accessible digital libraries, publicly shared and produced scientific data, new forms of creation and media are testimony to the value of these schemes."
The preamble adds that over the past few centuries, schemes such as copyright, author rights and patents have been designed not against access to knowledge, but to serve it. Limited exclusive rights of various types have been granted, first to serve the advancement of knowledge and the arts in a local or National environment.
"They have then been progressively globalised in their scope, initially between developed countries, and more recently worldwide. In this process, the exclusive rights granted for various types of creations and innovative artifacts have become so valuable assets for some types of players, and their management or extension is becoming so important to specific interests that the higher goals of serving the progress of humanity are not properly taken in account."
The proposal said that it was time to recall these goals. "There is urgency in ensuring than general consumer and public interests are given more weight in matters concerning patents, copyrights and other intellectual property rights. In some parts of the world and some segments of our societies, this is a matter of survival, and everywhere it is a matter of not losing the extraordinary opportunities that are set before us."
The operational part of the proposal contains an article on "scope and relationship with other instruments" to be included in the proposed treaty. The article would include the following elements:
1. The treaty confirms or makes explicit a minimal set of exceptions that are necessary for the basic channels of access to knowledge to exist in the global information society and for limiting the number of those who are deprived from its benefits;
2. No provision in the treaty can limit the rights of the public to access and use information or knowledge that are defined in other treaties or nati onal legislation; and
3 The treaty does not limit the ability of its sig natories to further act to ensure that all can benefit from commons-based c ooperative creation and innovation.
Another proposal, formulated by Professor Peter Jaszi and introduced at the meeting by two of his colleagues, was for clauses on copyright limitations and exceptions. This contains four parts (i.e. Parts A to D).
Part A says that the exclusive economic rights of copyright owners (including but not limited to reproduction, distribution, display, performance, adaptation and communication to the public), shall not apply to seven areas.
These include the use of relevant excerpts, selections, and quotations for purposes of explanation and illustration in connection with not-for-profit teaching and scholarship; the use of relevant excerpts, selections and quotations for purposes of criticism and comment, including but not limited to parody; the use of works, by educational institutions, as secondary readings by enrolled students; and the use of works, by educations institutions, as primary instructional materials (if those materials are not made readily available by right holders at a reasonable price and provided that in case of such use the right holder shall be entitled to equitable remuneration.
Other areas where the copyright shall not apply are: the use of works for purposes of library or archival preservation; the use of works in connection with legitimate reverse engineering; and the use of works specifically to promote access by persons of with impaired sight or hearing, learning disa bilities, or other special needs.
Part B says that it shall be presumed that these uses constitute special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
Part C states that in determining whether applying any limitation or exception to exclusive rights to a particular use of a work would conflict with its normal exploitation or unreasonably prejudices the legitimate interests of the right holder, the extent to which the use benefits the larger public interest shall be taken into account.
Part D states that in addition to implementing specific exceptions for the cases listed in subpargraph (A), parties to this treaty also shall implement a general exception to copyright law, applicable in special cases where the social, cultural, educational or other developmental benefit of a use outweigh the costs imposed by it on private parties. An optional line (for further discussion) provides for equitable remuneration to the copyright owner in appropriate circumstances.
Another proposal discussed at the meeting involved the promotion of open access to scientific and scholarly research literature. The proposal had been formulated by Peter Suber, who is Director of the Open Access Project and Research Professor of Philosophy at Earlham College.
According to the proposal, an access to knowledge treaty should have provisions on such open access. The proposal puts forward four provisions.
The first provision is that signatory nations should put an open-access condition on publicly-funded research grants. By accepting a grant, the grantee agrees to provide open access (OA) to any publications that result from the funded research.
Elaborating on this provision, the proposal says that the funding agency should give the grantee a choice of methods for providing OA to the resulting publications. Grantees should be able to choose between OA journals and OA archives or repositories. The OA archives should meet certain conditions of accessibility, interoperability, and long-term preservation. The intero perability condition could be satisfied by complying with the metadata harvesting protocol of the Open Archives Initiative. Qualifying archives need not be hosted by the government; they could, for example, be hosted and maintained by universities.
If the grantee chooses to publish in an OA journal that charges an upfront processing fee on accepted articles, then the funding agency will agree to pay the fee.
The OA condition on research grants could make reasonable exceptions, for example, for classified military research, for patentable discoveries, and for works that generate revenue for the author such as books.
A second proposed provision is that signatory nations should provide funds and technical assistance for all universities and research centers in the country to set up and maintain their own OA repositories. One condition of government assistance should be that the institution adopt a policy to encourage or require its researchers to deposit their research output in the repository. Again, the policy could recognize reasonable exceptions.
A third proposed provision is that signatory nations should provide funds and technical assistance for digitizing and providing open access to the nation's cultural heritage.
The fourth proposed provision is that signatory nations should sign the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities. The document also points to the exemplary July 2004 report of the UK House of Commons Science and Technology Committee and suggests that all nations that adopt the treaty should consider the 82 recommendations in this report.
By contrast, these nations should not follow the much-weakened policy of the US National Institutes of Health.
Linked to the above proposal is another proposal to establish mechanisms to limit patents associated with certain open databases that involve "public goods." The proposal is for WIPO to adopt procedures whereby persons or o rganizations that seek to establish certain qualifying open public goods databases (QOPGD) can apply for a limited period during which no patent application can be submitted that rely upon the data from the QOPGD.
This proposal was developed in a meeting at Cambridge University in 2004 on licensing of patents for public goods. It is based on the terms and conditions imposed by the developers of the HapMap database to those who wanted access to and use of the Genotype Database. As a condition for using the database, the developers of the database asked that the users not file any patent applications that are based on data obtained from the database. The aim of this was to protect the public good against misappropriation by private patents for a limited period, and exceptions for patents in such cases will enable broader dissemination of the results of research.
Another proposal discussed at the meeting involved establishing limitations and exceptions to copyright with respect to the internet. The proposal had been compiled by David Tannenbaum.
The proposal is for the inclusion of a clause in the proposed treaty, stating that the exclusive economic rights of copyright owners (including but not limited to reproduction, distribution, display, performance, adaptation and communication to the public), shall not apply to six stated situations involving materials on the internet.
The first case where copyright shall not apply is in relation to an internet service provider's (ISP) transmitting, routing or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if:
i The transmission of the material was initiated by or at the direction of a person other than the service provider;
ii The transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
iii The service provider does not select the recipients of the material except as an automatic response to the request of another person;
iv no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
v the material is transmitted through the system or network without modification of its content.
The second case of non-application is an ISP's intermediate and temporary storage of material for the purposes of caching material, as long as they do not modify the material or provide it in a manner inconsistent with access conditions set by the copyright holder;
The third case is an ISP's storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider;
The fourth case is the referring or linking to an online location containing infringing material or infringing activity; in cases in which the service provider has the right and ability to control such activity, this exemption applies only if the ISP does not receive a financial benefit directly att ributable to the infringing activity.
The fifth case is the caching of electronic documents for the purposes of enhancing functionality of internet search engines, as long as the original webpage address is clearly indicated on the cached page, and it is clear that the cached page may not be the most up-to-date version.
The sixth case is the transmitting of a universal resource locator or other electronic pointer, that has the effect of instructing a user's browser to load electronic documents from a third-party server.
The meeting also discussed how the existence and non disclosure of patents affect the development and use of standards. A participant who is dealing with developing standards in relation to the internet explains that in the use of the internet, standards are needed to enable people to work together.
Patents are having an effect on the development of standards because the use of a standard may require permission from the owners of patents on inventions the use of which are needed to meet certain standards.
It was explained that patents have a chilling effect in discouraging standards from being established, as well as a chilling effect in the use of stan dards when they have been established.
The standards development organizations (which are responsible for negotiating and establishing standards) concerned have to address two problems in relation to patents: it has to determine which patents (if any) are relevant to the standard, and if patents are involved it has to determine if there are acceptable licensing terms for the patented inventions.
Part of the problem is that holders of patents on inventions the use of which are needed in the use of standards and protocols often do not disclose the existence of such patents when the standards are being developed. When companies or individuals attempt to comply with or use the standards, the patent holder may then disclose it owns the patent, and that the users of the standards have to pay for use of the patent or face being sued.
This discourages people from participating in developing or making use of the standards, which in turn reduces the quality of standards.
Some participants then proposed that that a protocol be developed within WIPO to set up mechanisms to manage the disclosure of patents relevant to standards. Members that sign on to the protocol would be obliged to support the disclosure process, and to prevent any patent owner who failed to provide disclosure from enforcing a patent against the implementation of the standard.
The meeting also discussed several other proposals, including on restricting the extension of copyright term, isues related to the control of anti-com petitive practices in contractual licenses, exceptions and limitations to patents as they relate to access to knowledge, and on addressing the effect of IP on the disabled, on libraries and educational institutions.
In the meeting's final session, participants agreed that the proposals, principles and elements discussed at the meeting would be taken forward in various fora, such as WIPO, WTO, regional trade agreements, and the UN agencies.
A two track approach to following up could be undertaken. Firstly, there should continue to be discussion and development of a new framework and paradigm, including through a treaty, that incorporates and expresses the vision of realizing access to knowledge as a human right, and to put IPs in their proper context as limited privileges granted to IP holders, within the public-interest and human rights framework.
Secondly, working within existing IP related fora, work could be done to expand the public-interest exceptions and limitations to IP instruments such as patents and copyright, so as to expand the public-interest aspect and redress the present imbalances caused by bias in favour of IP holders and against consumer and public interests, and to prevent the worsening of these imbalances.
