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

[Achal Prabhala]

Dear Jeremy

Thanks for this very useful context. The transcript of your intervention is
very helpful indeed.

But, to clarify: I'm not complaining that the netmundial outcome text says
what it does about protection of IP.

I  also not objecting to the civil society response to the outcome doc - I
know you had very little time to put that together.

What I am objecting to - and want to know more about - is why civil society
had no *grounds* to object to the IP language in the netmundial outcome
doc. The reason I am assuming it didn't is because the final civil society
submission as publicly relayed - and I'll assume this is a document that
was prepared with care - used exactly the same language for protection of
IP. I fully expect such language to be the outcome of a negotiation - as
the final language was - but I so not understand how it can be a civil
society *position* based on internal consultation.

I won't go on anymore except to say that it seems as though either civil
society thinks IP is a minor and sacrificable issue in internet governance,
or that civil society's job is to anticipate industry reactions when
formulating it's position on IP and internet governance, and I disagree
with both positions.

But I think you do too which makes this all the more puzzling.

Good wishes,
Achal



On Tuesday, 29 April 2014, Jeremy Malcolm <Jeremy at malcolm.id.au> wrohte:
> 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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