[governance] Inputs for synthesis paper

Fri Sep 5 08:12:34 EDT 2008

Milton

Some more stuff on your amendments. This has to do with your changes to the
part on IPR.

In discussing 'right to access the Internet', you mention the following. 

"There can also be uncertainty about the proper application of a rights
claim to a factual situation. The change in the technical methods of
communication often undermines pre-existing understandings of how to apply
legal categories. "

I will like to use this formulation in my arguments regarding IPR. I did ask
you in an earlier email about how you consider property rights as real
rights in the sense of being negative rights, in the complicated property
systems that we have today (email enclosed). I enquired further how
especially IPR, and even more so IPR in digital space, could be considered a
negative right. In fact right to access knowledge (positioned against IPR in
WIPO discussions) looks more of a negative right, and IPR a positive right.
When I use an idea I can no way interfere with any other person's right to
use it - though I may interfere with his state-aided scheme to make money
out of it, which may be a socio-economic device to promote innovation etc,
but I cant see it as a right, as rights go, especially in your restrictive
definition.

So, apart from the fact that you never answered whether you do not consider
right to education as a real right, I would also like to know how you
consider IPR as a real negative right. I especially ask because first McTim
removed the text on - are IPR real rights? Which was only an exploratory
question, given that a lot of civil society really doesn't consider IPR as a
real right. And now in your present set of amendments you have tried to make
sure that there is no implication that IPR as a category of rights itself
may be contested, changing the earlier text 

"While the 'right to property' has conventionally been considered of
considerable importance, its applicability and mutations in the the digital
environment, particularly in the form of Intellectual Property rights, is
current being widely contested."

to

"While property rights are of considerable importance, their applicability
and mutations in the the digital environment have led to widespread
political contention over the proper scope of copyrights, trademarks and
patents."

Your sensitivity to any implications that IPR themselves may be problematic
as rights, when in fact it is difficult to think of them as negative rights,
while putting in statement of doubts whether positive and collective rights
are even legitimate categories is interesting, and does show that our views
comes more from respective political economy thinking rather than
essentialist notions of what may be rights and what not. 

In the original text there was another question - Are corporate entities
entitled to rights as we understand the term? I think McTim removed it. What
do you think of it? For someone so adamant that rights can cohere only in
individuals, such rights belonging not just to collectives  - who still are
individuals, even if a bunch of them - but to an abstract limited liability
entity should be anathema. Why would you not oppose IPRs, especially
Corporate IPRs from the same essentialist position that you oppose positive
and collective rights? 

I think there is a lack of mutual understanding and appreciation of what we
respectively mean by rights, and that over some deliberations it is possible
for us to agree to a good extent. 

Parminder 

  _____  

From: Milton L Mueller [mailto:mueller at syr.edu] 
Sent: Friday, September 05, 2008 12:22 AM
To: governance at lists.cpsr.org; Parminder
Subject: RE: [governance] Inputs for synthesis paper

OK, I just made some extensive edits to the rights statement. A lot of the
small stuff was editorial, there was redundancy and awkwardness in many
sentences, perhaps reflecting the fragmentary approach of a shared doc. I
hope people agree on the stylistic improvements. 

Substantively, I tried to do two things: 

First, make it clearer that the definition and application of rights talk is
contested and complicated -- and use that to bolster the argument that that
makes it a good focus for IGF Egypt. In line with this, I added a quotation
from the Tunis Agenda at the beginning. 

Second, group and expand certain discussions to run in a more coherent and
structured manner. For example, there were scattered references to privacy
which I tried to consolidate in a single para. and expand a bit. 

For those not on the Google docs list I append the statement below

Milton Mueller
Professor, Syracuse University School of Information Studies
XS4All Professor, Delft University of Technology
------------------------------
Internet Governance Project:
http://internetgovernance.org

IGC's input -1 to the synthesis paper for IGF, Hyderabad.

'Rights and the Internet' as the over-arching theme for IGF-4 in Egypt 

The Tunis Agenda (para. 42) invoked human rights when it reaffirmed a global
"commitment to the freedom to seek, receive, impart and use information" and
affirmed that "measures undertaken to ensure Internet stability and
security, to fight cybercrime and to counter spam, must protect and respect
the provisions for privacy and freedom of expression as contained in the
relevant parts of the Universal Declaration of Human Rights and the Geneva
Declaration of Principles." However, little follow up work has been done to
enact these commitments to basic human rights in Internet governance. 

The Internet Governance Caucus strongly recommends that 'Rights and the
Internet' be made the overarching theme for IGF-4 in Egypt, and that the
IGF-4's program be framed by the goal of developing a rights-based discourse
in the area of Internet Governance. The Caucus has already expressed support
for the letter on this subject which was sent to the MAG by the Dynamic
Coalition on an Internet Bill of Rights. The IGC offers the IGF assistance
in helping to shape such a discourse at the IGF meetings, and specifically
to help make 'Rights and the Internet' an overarching theme for IGF-4 in
Egypt. 

A complex new emerging ecology of rights and the internet

One important purpose of a discourse on rights should be to clarify and
reach greater consensus on how Internet rights are defined, how they relate
to pre-existing definitions of human rights, and which ones need to be
internationally recognized and strengthened. There are currently basic
philosophical differences, even among civil society actors, over what
constitutes a right and whether human rights inhere only in individuals or
can also be assigned to collectivities. 

The openness and diversity of the internet are underpinned by widely
recognized (but still imperfectly enforced) basic human rights: the
individual right to freedom of expression and to privacy. To some,
conceptions of rights and the internet may also extend to the area of
positive and collective rights - for instance a right to Internet access, or
a right of cultural expression - including the right to have an Internet in
ones own language, which can inform the important IGF thematic area of
cultural diversity. Others contest these positive and collective claims,
viewing them as worthy policy goals but not as rights.

Many important internet policy areas, like network neutrality, are being
framed in terms of rights, such as a right to access and share information,
or as an extension of freedom of expression itself. The right of the public
to access government-produced information presents itself in a wholly new
manner in a digital environment, where information is often publicly
sharable at little or no extra cost. Positive acts of withholding digital
public information from citizens in fact can be looked upon as a form of
censorship. All of these rights-based conceptions may be included in the IGF
openness theme area. Other rights such as the right of association and the
right to political participation may have important new implications in the
internet age, including the right to participate in the shaping of globally
applicable internet policies. 

While the internet opens unprecedented economic, social and political
opportunities in many areas, many fear that it may at the same time be
further widening economic, social and political divides. It is for this
reason that development has been a central theme for the IGF meetings to
date. In this new, more global and digital context it might be useful to
explore what the term "right to development" means. 

With respect to privacy rights, corporations and governments are
increasingly able to extend digital tentacles into people's homes and
personal devices, in manners invisible to consumers and citizens.Consumers
of digital products thus face new challenges including the right
<http://docs.google.com/RawDocContents?docID=dcskr5r9_7n2dnxhs&justBody=fals
e&revision=_latest&timestamp=1220550114112&editMode=true&strip=true#sdfootno
te3sym> to know and completely 'own' the products and services they pay for.
Technological measures to monitor and control user behavior on the internet
is becoming increasingly sophisticated, and often outrun public policies and
traditional concepts of what rights users have.

While property rights are of considerable importance, their applicability
and mutations in the the digital environment have led to widespread
political contention over the proper scope of copyrights, trademarks and
patents. In fact, intellectual property is emerging as a primary area of
socio-economic conflict in the information society.  The IGF can explore
issues surrounding the public interest principles which underpin IPR
alongside the concept of a right to access knowledge in the digital space.
It can also explore how individuals' property right to own, build, test, and
use consumer electronics, computers and other forms of equipment can be
reconciled with the regulation of technical circumvention to protect
copyrights.  

We recognize that while it is relatively easy to articulate and claim
"rights" it is much more difficult to implement and enforce them. We also
recognize that rights claims can sometimes conflict or compete with each
other. For example, a claim that there is a "right to Internet access" may
imply an obligation on states to fund and provide such access, but it is
likely that if states are responsible for supplying internet access that
there will also be strong pressures on them to exert controls over what
content users can access using public funds and facilities.  There can also
be uncertainty about the proper application of a rights claim to a factual
situation. The change in the technical methods of communication often
undermines pre-existing understandings of how to apply legal categories. 

These complexities, however, only strengthen the case for using the IGF to
explicitly discuss and debate these problems. There is no other global forum
where such issues can be raised and explored in a non-binding context. 

Internet governance has up to this time largely been founded in technical
principles and, increasingly, on the internet's functionality as a giant
global marketplace. With the internet becoming  increasingly central to many
social and political institutions, an alternative foundation and conceptual
framework for IG can be explored. It is the view of the IG Caucus that a
right-based framework will be may be appropriate for this purpose. 

It is the Caucus' view that the IGF is the forum best suited to take up this
task. This process should start at the IGF Hyderabad, where workshops on
rights issues are being planned.  These issues will also hopefully figure
prominently in the main sessions. The IGC fully expects that these
discussions will help the IGF work towards developing 'Rights and the
Internet' as the over-arching theme of the IGF-4 in Egypt. 

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