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

Sat May 3 22:56:55 EDT 2014

Sorry for the very delayed reply, I've been away and my access has been intermittent.  Thanks for your perspective.  It is interesting how divergently people have assessed our participation in the NETmundial process.  You are proposing that we play more of an "outside game", critiquing the process and being more oppositional (whereas Stephanie, amongst others, have said the opposite).  That is one possible approach, though most of the long-time civil society groups involved in Internet governance have played more of an inside game, working with governments and other stakeholders to try to reach consensus and nominating representatives to multi-stakeholder committees such as the MAG and CSTD working groups.

It is not impossible for civil society to play both an inside and an outside game simultaneously, because certainly there are things that you cannot accomplish with only only one approach, and if managed carefully, they can reinforce rather than undermining each other.  A good example is how success was eventually achieve against ACTA - there were those who took an oppositional approach by protesting in the streets, and there were those who privately lobbied MEPs, and success would not have resulted without both tactics.  On the other hand protesting at the IGF will get you ejected from the venue by the UN police - quite literally - and they won't let you back in.

So whereas you have compared the approach taken on IP issues within Internet governance processes to those that were used to defeat SOPA and PIPA, I don't agree that we would want to use the same approach.  You would probably agree that the SOPA and PIPA tactics would not have been appropriate to achieve what we did at WIPO on the Marrakesh treaty, either.  Similarly, in my past position when advocating for access to knowledge in the UN Guidelines for Consumer Protection, we played very much an inside game.  In each case, the danger of being too oppositional is that you exclude yourself from the process altogether, and thereby limit your capacity to effect even incremental change.

I believe that there is a lot of space for us to use both tactics, I just don't think that NETmundial, being such an innovative and potentially valuable door into multi-stakeholder policy development that could redound to our advantage in numerous different fora in the future, was the right place to be more oppositional than we were, either on IP or on any other issue.  That said, there are other times and places to be radical on IP, and I am completely in accord with that.  (Even then, some people will always criticise you for not being radical enough - because I'm not an abolitionist, I've been accused of this.  And although I wasn't representing EFF at NETmundial, someone came up to me during the meeting complaining about how "soft" EFF had supposedly become on IP in recent years!)

So I don't think that the approach that we took on the floor at NETmundial or that our representatives took in the drafting sessions was the wrong approach in this context, and to our credit we had been better prepared for this meeting (partly as a result of the pre-meeting) than we had been for previous engagements.  As the WSIS civil society coordinating structures disintegrated, there was a time when we were not coordinating at all.  WCIT last year was possibly a turning point, and the formation of Best Bits also helped.  But due to limitations of time, internal disagreements, and different people taking leadership and not consulting with each other, it remains a bit chaotic, and some mistakes were made.  We are definitely still learning how to coordinate well and effectively and there is a lot that we can do better next time.

On 30 Apr 2014, at 3:25 pm, Achal Prabhala <aprabhala at gmail.com> 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> 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
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> 
> 
> -- 
> Warm Regards
> Mishi Choudhary, Esq.
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-- 
Jeremy Malcolm PhD LLB (Hons) B Com
Internet lawyer, ICT policy advocate, geek
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