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

[Norbert Bollow]

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
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> > (tel) +91-11-43587126
> > (fax) +91-11-24323530www.sflc.in
> >
> >