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Thanks for posting this Jeremy. And I should clarify that the text
that made it into the draft, was not your text, but was added in the
context of people in the drafting group referring to Jeremy's
inputs.<br>
<br>
And in this sense Jeremy's inputs worked well, as he made a
convincing argument that we did not need to insert a special heading
for IP rights. What we have is better than what we would have had if
an IP clause was added.<br>
<br>
I think Jeremy's assessment of the civil society input process, and
the initial output statement is fair and correct.<br>
<br>
But I think our inputs could have been handled better.<br>
<br>
The problem is not so much that we did not have full consensus on
everything. We could have done that bit better, but I think the real
problem was that the drafting process did not allow for sufficient
integration of our input. Other stakeholders groups will probably
feel the same.<br>
<br>
We should have had someone on the drafting group - other than myself
who was a chair and Adam who was playing a secretariat role - who
could systematically point our attention to text from CS on a
particular issue.<br>
<br>
We all did try to refer to all the inputs, but there were so much,
and, we did not have the transcript for much of the second round of
text editing.<br>
<br>
And one other point, it would have helped if the text on the Pad was
annotated more fully and presented in a way that included - for
each section of the document - key messages and draft text.<br>
<br>
In spite of all this hindsight, I think our preparatory meeting
worked well overall, and aside from some important issues, we
managed to substantially influence the outcome documents.<br>
<br>
Anriette<br>
<br>
<br>
On 29/04/2014 13:20, Jeremy Malcolm wrote:<br>
<span style="white-space: pre;">> On 29 Apr 2014, at 5:35 pm,
Anriette Esterhuysen <<a class="moz-txt-link-abbreviated" href="mailto:anriette@apc.org">anriette@apc.org</a>
<a class="moz-txt-link-rfc2396E" href="mailto:anriette@apc.org"><mailto:anriette@apc.org></a>> wrote:<br>
><br>
>> The deadlock was broken by us using text that was
suggested, or proposed by Jeremy Malcolm on the second day. I
can't remember exactly what Jeremy had said, but is input implied
that some protection for authors would be acceptable.<br>
><br>
> I lost my verbatim note of what I said due to a crash, but
from Pranesh's log of the transcript (at
<a class="moz-txt-link-freetext" href="https://prakash.im/text-netmundial-day1.html">https://prakash.im/text-netmundial-day1.html</a>) here it is as
delivered:<br>
><br>
> THANK YOU, MADAM CHAIR. MY NAME IS JEREMY---- ON AN ENABLING
ENVIRONMENT FOR INNOVATION AND CREATIVITY, WHICH AS YOUR CO-CHAIR
NOTED GENERATED THE MOST COMMENTS OF ANY PARAGRAPH. DUE TO THE
MISCONCEPTION THAT REFERENCE TO PERMISSIONLESS INNOVATION WAS
ABOUT THE USE OF CREATIVE CONTENT WITHOUT PERMISSION. <br>
> NOW VORRING'S WHEN WE THINK OF INNOVATION, APART FROM
SCIENTISTS, WE THINK OF ARTISTS AND PERMISSIONLESS INNOVATION IS
SOMETHING THAT SHOULD BE A FAMILIAR CONCEPT TO ARTISTS BECAUSE
THERE IS NO PERMISSION REQUIRED TO WRITE A SONG OR A PLAY OR A
NOVEL. YOU JUST DO IT. AND INNOVATION ON THE INTERNET SHOULD WORK
THE SAME WAY. NOW INNOVATION IS ALWAYS SUBJECT TO THE RULE OF LAW.
THAT GOES WITHOUT SAYING. I DON'T, THEREFORE, THINK IT'S NECESSARY
TO SPELL OUT ALL THE LEGAL LIMITS TO INNOVATION THAT MAY EXIST, OF
WHICH INTELLECTUAL PROPERTY RIGHTS ARE JUST ONE. THOUGH IF WE WERE
TO ADD THE WORDS "CONSISTENT WITH THE OTHER PRINCIPLES IN THIS
DOCUMENT," I DON'T SEE WHAT HARM THAT COULD DO. <br>
> THAT DOES, HOWEVER, RAISE THE SECONDARY POINT OF WHETHER IP
RIGHTS SHOULD BE ADDED TO THE LIST OF HUMAN RIGHTS, AS SOME HAVE
CONTENDED. <br>
> AGAIN, I DON'T SEE HOW THAT IS NECESSARY BECAUSE THE LIST OF
RIGHTS IS ALREADY EXPLICITLY NONEXCLUSIVE, AND NOTHING THAT WE
AGREE AT NETmundial CAN DETRACT FROM WHAT'S ALREADY IN THE UDHR. <br>
> SO I WOULD OPPOSE ADDING A POINT ON IP, BUT IF ONE WAS ADDED
NEVERTHELESS IT WOULD, AT THE VERY LEAST, BE NECESSARY TO QUALIFY
IT TO REFLECT THE NEED TO BALANCE PRIVATE IP RIGHTS WITH THE
BROADER PUBLIC INTEREST. <br>
> INDEED, PARAGRAPH 27 OF THE UDHR ITSELF BALANCES IP RIGHTS
WITH THE RIGHT TO PARTICIPATE IN THE CULTURAL LIFE OF THE
COMMUNITY, SO WE SHOULD MENTION THAT, ALONG WITH THE RIGHTS TO
EDUCATION, FREEDOM OF EXPRESSION AND INFORMATION, AND THE RIGHT TO
PRIVACY. <br>
> I CAN SEND SOME PARTICULAR TEXT SUGGESTIONS, BUT WE -- WE DO
-- AS A -- AS A STARTING POINT, WE OPPOSE THE ADDITION OF A RIGHT
TO IP. <br>
> SO IN CONCLUSION, WE DO SUPPORT THE RETENTION OF
PERMISSIONLESS INNOVATION, AND WE BELIEVE THAT MINIMAL, IF ANY,
CHANGES ARE NECESSARY TO CLARIFY THAT THIS IS NOT INTENDED TO
OVERRIDE INTELLECTUAL PROPERTY RIGHTS -- <br>
> [TIMER SOUNDS ] <br>
> -- THANK YOU.<br>
><br>
>> So, in the end, this text was not too bad. And we managed
to keep 'permissionless innovation' in another part of the
document. The BAD news is that the text on internet intermediary
liability which was only finalised after the high level committee
meeting is the same OECD text which civil society opposed in 2011.
France and the US were insisted it be included. It is text that
links intermediary liability to economic growth and that opens the
doors to intermediaries being made responsible for enforcing
copyright. For me that was a huge, huge blow.<br>
>><br>
>> I am not in a position to respond to your other questions
as I was not involved in finalising the civil society inputs.<br>
><br>
> There was no plan to produce a text, consensus or otherwise,
out of the pre-meeting. This was something that happened
spontaneously because some of the organisers decided to do it.
They did a good job, but one of the things that was lost was
context - such as degrees of consensus around particular text
(there was not a consensus on everything) and whether some text is
a "last resort" position, etc. Part of the context that was lost
for the IP text was that it was a "last resort" for how we could
balance out the IP language if it was included by industry. So it
is correct of you (Achal) to say that this proposing protection of
IP rights is not a civil society position. I considered the text
from the pre-meeting as more of a rough roadmap or guide for our
interventions, rather than as an agreed text. Similarly the
closing statement, which also happened spontaneously, cannot be
considered as representing a civil society consensus.<br>
><br>
> -- <br>
> Jeremy Malcolm PhD LLB (Hons) B Com<br>
> Internet lawyer, ICT policy advocate, geek<br>
> host -t NAPTR 5.9.8.5.2.8.2.2.1.0.6.e164.org
<a class="moz-txt-link-rfc2396E" href="http://e164.org"><http://e164.org></a>|awk -F! '{print $3}'<br>
><br>
> WARNING: This email has not been encrypted. You are strongly
recommended to enable encryption at your end. For instructions,
see <a class="moz-txt-link-freetext" href="http://jere.my/l/pgp">http://jere.my/l/pgp</a>.<br>
></span><br>
<br>
- -- <br>
- ------------------------------------------------------<br>
anriette esterhuysen <a class="moz-txt-link-abbreviated" href="mailto:anriette@apc.org">anriette@apc.org</a><br>
executive director, association for progressive communications<br>
<a class="moz-txt-link-abbreviated" href="http://www.apc.org">www.apc.org</a><br>
po box 29755, melville 2109<br>
south africa<br>
tel/fax +27 11 726 1692<br>
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