Treaty on Access to Knowledge

James Love, CPTech

5 June 2006

CI Workshop on Copyright

Bangkok, Thailand

What next?

• First problem– Too much NGO?

• Other UN bodies?– UNESCO, UNCTAD

• Regional– ASEAN, APEC

2002, groups representing consumers, libraries, public health, development, civil liberties, human rights, free software, innovative businesses and other concerns became more active in certain WIPO committees. They were initially responding to aggressive moves in WIPO to expand intellectual property rights

Standing Committee on Copyright and Related Rights was proposing a new intellectual property treaty for broadcasting and webcasting organizations

Standing Committee on Patents pushed a new Substantive Patent Law Treaty

New Advisory Committee on Enforcement was created

WIPO Technical assistance promotes TRIPS+, US+ and EC+ IPR legislation and practice in developing countries

In July 2003, WIPO was asked to hold a meeting to study the importance and implications of new open collaborative projects to create public goods.

Human Genome Project

SNIPS Project

IETF

W3C

Free Software

Open Access Publishing

GPS

Microsoft and the US Government opposed the meeting, which then was cancelled

In short order, lobbyists from Microsoft-funded trade groups were pushing officials at the State Department and the U.S. Patent and Trademark Office to squelch the meeting. One lobbyist, Emery Simon with the Business Software Alliance, said his group objected to the suggestion in the proposal that overly broad or restrictive intellectual-property rights might in some cases stunt technological innovation and economic growth.

Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights. "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO," she said.

Jonathan Krim, Washington Post, "The Quiet War Over Open-Source," August 21, 2003

In the fall of 2003, TACD, a US/EU consumer advisory group, held a meeting in Lisbon to discuss the WIPO Work Program. The debate focused on the WIPO mission.

In the Spring of 2004, TACD held a follow-up meeting in NYC which focused on Access to Essential Learning Tools. This included textbooks, journals, data, distance education technologies and software.

In the two meeting, a consensus emerged to reform WIPO, and to explore mechanisms to promote “Access to Knowledge.”

In the Summer of 2004, the US, the EC and Japan proposed a fast tract adoption of certain provisions in a new treaty on substantive patent law

August 2004

A few weeks later, Argentina and Brazil introduced the WIPO Development Agenda Proposal

September 2004

Geneva Declaration on the Future of the World Intellectual Property

Organization

Humanity faces a global crisis in the governance of knowledge, technology and culture. The crisis is manifest in many ways.

• Without access to essential medicines, millions suffer and die;

• Morally repugnant inequality of access to education, knowledge and technology undermines development and social cohesion;

• Anticompetitive practices in the knowledge economy impose enormous costs on consumers and retard innovation;

• Authors, artists and inventors face mounting barriers to follow-on innovation;

• Concentrated ownership and control of knowledge, technology, biological resources and culture harm development, diversity and democratic institutions;

• Technological measures designed to enforce intellectual property rights in digital environments threaten core exceptions in copyright laws for disabled persons, libraries, educators, authors and consumers, and undermine privacy and freedom;

• Key mechanisms to compensate and support creative individuals and communities are unfair to both creative persons and consumers;

• Private interests misappropriate social and public goods, and lock up the public domain.

At the same time, there are astoundingly promising innovations in information, medical and other essential technologies, as well as in social movements and business models. We are witnessing highly successful campaigns for access to drugs for AIDS, scientific journals, genomic information and other databases, and hundreds of innovative collaborative efforts to create public goods, including the Internet, the World Wide Web, Wikipedia, the Creative Commons, GNU Linux and other free and open software projects, as well as distance education tools and medical research tools. . . .

Humanity stands at a crossroads – a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from the best of these new ideas and opportunities, or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies? Much will depend upon the future direction of the World Intellectual Property Organization (WIPO), a global body setting standards that regulate the production, distribution and use of knowledge.

A 1967 Convention sought to encourage creative activity by establishing WIPO to promote the protection of intellectual property. The mission was expanded in 1974, when WIPO became part of the United Nations, under an agreement that asked WIPO to take “appropriate action to promote creative intellectual activity,” and facilitate the transfer of technology to developing countries, “in order to accelerate economic, social and cultural development.”

As an intergovernmental organization, however, WIPO embraced a culture of creating and expanding monopoly privileges, often without regard to consequences. The continuous expansion of these privileges and their enforcement mechanisms has led to grave social and economic costs, and has hampered and threatened other important systems of creativity and innovation. WIPO needs to enable its members to understand the real economic and social consequences of excessive intellectual property protections, and the importance of striking a balance between the public domain and competition on the one hand, and the realm of property rights on the other. The mantras that "more is better" or "that less is never good" are disingenuous and dangerous -- and have greatly compromised the standing of WIPO, especially among experts in intellectual property policy. WIPO must change.

What is the development agenda?

• It is in part an attempt to change the WIPO mission to focus on innovation and creativity, consistent with the protection of human rights, consumer protection and the control of anticompetitive practices.

• It is also an effort to focus systematically on the relationship between intellectual property policies and development, and the appropriate role of harmonization when levels of development are so different

• It has lead to a new block in WIPO, the Friends of Development (FoD)

Debate over Treaty on Access to Knowledge (A2K)

• Proposal by John Barton in early 2004• Mention of A2K Treaty in August 2004 development

agenda• Meetings in February (Geneva) and May (London) to

discuss possible elements of such a treaty• Current proposal at http://www.cptech.org/a2k• Open listserve for discussion announcements regarding

future meetings to discuss proposals for A2K treaty• Request at WIPO IIM/2 for further elaboration of possible

elements of a Treaty on Access to Knowledge

May 9, 2005Draft A2K Treaty Proposal

Part 1 - Purposes, objectives, relationship to other treaties

Article 1-1 - Objectives

Article 1-2 - Nature and Scope of Obligations

Article 1-3 - Relationship to other agreements

Part 2 - Governance

Article 2-1 - Conference of the Parties

Article 2-2 - Executive Board

Article 2-3 - Secretariat

Part 3 - Provisions Regarding Limitations and Exceptions to Copyright and Related Rights

Article 3-1 - General Limitations and Exceptions to Copyrights

Article 3-2 - Provisions regarding Distance EducationArticle 3-3 - The rights of persons with disabilitiesArticle 3-4 - First Sale Doctrine for Library UseArticle 3-5 - Internet Service ProvidersArticle 3-6 - Digital Rights Management and Measures

Regarding Circumvention of Technological Protection Measures

Article 3-7 - Non-original or creative works

Part 3 - Provisions Regarding Limitations and Exceptions to Copyright and Related Rights

Article 3-8 - Orphan WorksArticle 3-9 - [Retroactive] Extensions of Term of

Protection for Copyright and Related RightsArticle 3-10 - Requirements When Term of Protection

for Works Protected by Copyright and Related Rights Have Been Previously Extended to Exceed TRIPS Requirements

Article 3-11 - Works For Which Author Has Alienated Economic Rights

Article 3-12 - Compulsory licensing of copyrighted works in developing countries

Part 4 - Patents

Article 4-1 - Patents

PART 5 - EXPANDING AND ENHANCING THE KNOWLEDGE COMMONS

Article 5-1 - Knowledge Commons Committee

Article 5-2 - Access to Public Funded Research

Article 5-3 - No Copyright of Government Works

Article 5-4 - Archives of Public Broadcasting

Article 5-5 - Access to Government Information

Article 5-6 - Knowledge Commons Databases

Part 6 - Promotion of Open Standards

• Article 6-1 - Committee on Open Standards• Article 6-2 - Disclosure obligations for patents relating

to standards development organizations.• Article 6-3 - Essential Interfaces for Knowledge

Goods• Article 6-4 - Compulsory Licensing of Essential

Interfaces for Knowledge Goods

PART 7 - Control of Anticompetitive Practices

Article 7-1 - Relationship between intellectual property rights and competition laws

Article 7-2 - Committee on Control of Anticompetitive Practices

Article 7-3 - Essential Software

PART 8 - Authors and Performers

Article 8-1 - Copyright and Related Rights Collection Societies

Article 8-2 - Unfair Contracts

PART 9 - Transfer Of Technology To Developing Countries

PART 10 - MISC ISSUES

Article 10-1 Free Movement of Researchers

Article 10-2 - Most Favored Access to Publicly Supported Research

Part 11 - Obligation to finance free and open knowledge goods

PART 12 - Enforcement of rights and obligations