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

Tue Apr 29 15:14:19 EDT 2014

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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.

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.

I think Jeremy's assessment of the civil society input process, and the
initial output statement is fair and correct.

But I think our inputs could have been handled better.

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.

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.

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.

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.

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.

Anriette

On 29/04/2014 13:20, Jeremy Malcolm wrote:
> On 29 Apr 2014, at 5:35 pm, Anriette Esterhuysen <anriette at apc.org <mailto: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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'{print $3}'
>
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- -- 
- ------------------------------------------------------
anriette esterhuysen anriette at apc.org
executive director, association for progressive communications
www.apc.org
po box 29755, melville 2109
south africa
tel/fax +27 11 726 1692
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