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

Mishi Choudhary mishi at softwarefreedom.org
Wed Apr 30 17:29:55 EDT 2014


I also want to understand the background of "Intermediary Liabilities "
language and the associated discourse if those involved can shed some
light on it. Thanks!




On 04/30/2014 03:25 AM, Achal Prabhala wrote:
> 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
> <mailto: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 <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
>>     host -t NAPTR 5.9.8.5.2.8.2.2.1.0.6.e164.org
>>     <http://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) 212-580-0898
>     www.softwarefreedom.org <http://www.softwarefreedom.org>
>
>
>     Executive Director 
>     SFLC.IN <http://SFLC.IN>
>     K-9, Second Floor
>     Jangpura Extn.
>     New Delhi-110014
>     (tel) +91-11-43587126 
>     (fax) +91-11-24323530
>     www.sflc.in <http://www.sflc.in>
>
>


-- 
Warm Regards
Mishi Choudhary, Esq.
Legal Director
Software Freedom Law Center
1995 Broadway Floor 17
New York, NY-10023
(tel) 212-461-1912
(fax) 212-580-0898
www.softwarefreedom.org


Executive Director 
SFLC.IN
K-9, Second Floor
Jangpura Extn.
New Delhi-110014
(tel) +91-11-43587126 
(fax) +91-11-24323530
www.sflc.in

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