[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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