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

Norbert Bollow nb at bollow.ch
Wed Apr 30 05:40:54 EDT 2014


Thank you so much Achal for doing this analysis, and making the
lessens clear that need to be learned from this!!!

Greetings,
Norbert
(who participated in NetMundial only as a remote participant, thus
lacking any firt-hand impressions on the concerned civil society
processes) 

Am Wed, 30 Apr 2014 12:55:05 +0530
schrieb Achal Prabhala <aprabhala at gmail.com>:

> >From my understanding (through Anriette, Jeremy, Mishi and others)
> >this is
> what seems to have happened within civil society re: copyright/IP
> these last few weeks:
> 
> 1) Civil society went into this hoping to keep copyright and IP "out"
> of the language, both civil society language + NETmundial outcome doc
> language, as a strategy to avoid the inclusion of "protection"
> clauses.
> 
> 2) However well-intentioned, I think this was an unwise strategy,
> since there had already been so much discussion on the
> copyright-IP-connected text in the draft NETmundial outcome doc,
> overwhelmingly dominated by rights-holders or their advocates, all in
> favour of explicitly protectionist language - which is to say it
> seemed inevitable that this would be lobbied strongly. A wiser
> strategy, given the run-up to NETmundial, would have been for civil
> society to have had a clear pro-sharing, anti- unilateral imposition
> of arbitrarily restrictive copyright position to stick to.
> 
> 3) Some text to this effect was suggested by me and others at the
> April 22 meeting but was later discarded or lost. The text that was
> eventually used to articulate the civil society position discounted
> the importance of a stand against restrictive copyright/IP
> application, and seemed to have been written with a view to
> pre-empting what some saw as the eventual negotiated outcome of
> NETmundial.
> 
> 4) Somehow (I say this because I don't understand it, and the few who
> participated in the process can't either; I won't assume bad faith,
> but I will assume an inadequate understanding of the issues at stake
> by some of the civil society people involved in drafting) the civil
> society *position*
> - uninfluenced by negotiation, in effect a statement of principles,
> released on April 23, 2014 (one full day before the NETmundial
> official outcome doc was negotiated and released) - contained
> inexcusable language around copyright, essentially endorsing a
> protectionist position on IP, in effect giving *in* to a negotiation
> with rights-holders and/or NETmundial *before a negotiation was even
> had*. ( http://bestbits.net/netmundial-proposals/)
> 
> 5) Since there are several of us in civil society who have worked
> within FOSS, on copyright, IP and access to knowledge, since there
> are more of us who lived through the SOPA/PIPA discussions and
> participated in actions against them and have a strong understanding
> of the catastrophic effects of restrictively wielded IP rules, *and*
> since the IP-connected sections of the draft NETmundial outcome
> document were by far the most-commented sections in that text, *and*
> given that many of us in civil society feel that the IP issue in
> Internet governance ranks up there with surveillance and net
> neutrality as an overarching, immediate threat to online freedom
> across the world, the civil society position on this issue was
> shockingly inadequate, harmful and just plain bad.
> 
> 6) You *must* therefore find a better process to represent constituent
> positions in any joint submission or statement in the future. I came
> to NETmundial fully expecting to be disappointed by the official
> NETmundial outcome document (as I was), because that's the way things
> are. But I did not expect to be even more disappointed by the
> pre-negotiation, pre-outcome, civil society position statement - and
> I was. Deeply.
> 
> 7) I am unmoved by congratulatory statements that this meeting was
> "not so bad" and a "good start" or whatever: there were far too few
> of us who participated in protest actions at the meeting, and civil
> society was more anodyne than called for. (On a related note: the
> surveillance protests with Snowden masks were on the cover of every
> single Brazilian newspaper the next day). I'm relatively new to
> Internet governance, but not to activism around issues connected to
> the Internet. As an activist, I understand my role as having to be
> better prepared, more informed, more forceful, more sharp, more
> clever and more ingenious than anything  governments and business can
> come up with, given that I command none of the vast resources of
> money and power they have. I'd urge this group to seriously consider
> complementing its more thoughtful interventions with dramatic,
> unreasonable action if it wants to not only get a seat at the table
> but actually be *heard*.
> 
> All those distinguished master's degrees we've painstakingly
> accumulated won't be diminished by being a little cheeky :)
> 
> Good wishes,
> Achal
> 
> 
> 
> On 30 April 2014 00:50, Mishi Choudhary <mishi at softwarefreedom.org>
> wrote:
> 
> >  Thanks Jeremy,
> >
> > I had missed out on this traffic to understand how this all worked
> > but I would still like thorough discussions on this issue for
> > future if others agree.
> >
> >
> > On 04/29/2014 07:20 AM, Jeremy Malcolm wrote:
> >
> > 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
> > host -t NAPTR 5.9.8.5.2.8.2.2.1.0.6.e164.org|awk -F! '{print $3}'
> >
> >  WARNING: This email has not been encrypted. You are strongly
> > recommended to enable encryption at your end. For instructions, see
> > http://jere.my/l/pgp.
> >
> >
> >
> > --
> > Warm Regards
> > Mishi Choudhary, Esq.
> > Legal Director
> > Software Freedom Law Center
> > 1995 Broadway Floor 17
> > New York, NY-10023
> > (tel) 212-461-1912
> > (fax) 212-580-0898www.softwarefreedom.org
> >
> >
> > Executive Director SFLC.IN
> > K-9, Second Floor
> > Jangpura Extn.
> > New Delhi-110014
> > (tel) +91-11-43587126
> > (fax) +91-11-24323530www.sflc.in
> >
> >



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