[bestbits] What is civil society's position on copyright in Internet governance?

[Jeremy Malcolm]

On 29 Apr 2014, at 5:35 pm, Anriette Esterhuysen <anriette at apc.org> wrote:

> 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.

I lost my verbatim note of what I said due to a crash, but from Pranesh's log of the transcript (at https://prakash.im/text-netmundial-day1.html) here it is as delivered:

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. 
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. 
THAT DOES, HOWEVER, RAISE THE SECONDARY POINT OF WHETHER IP RIGHTS SHOULD BE ADDED TO THE LIST OF HUMAN RIGHTS, AS SOME HAVE CONTENDED. 
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. 
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. 
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. 
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. 
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 -- 
[TIMER SOUNDS ] 
-- THANK YOU.

> 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.
> 
> I am not in a position to respond to your other questions as I was not involved in finalising the civil society inputs. 

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.

-- 
Jeremy Malcolm PhD LLB (Hons) B Com
Internet lawyer, ICT policy advocate, geek
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