[governance] Inputs for synthesis paper

[Milton L Mueller]

________________________________

	Milton

	 

	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. 

	 

	I am quite sympathetic to this line of thinking. In fact, I
thought my amendments were designed to strengthen precisely that point.
I tried to emphasize that people have natural property rights in the
things (literally, physical objects such as computers) that they buy or
build, and that these property rights can come into conflict sometimes
with state-supported efforts to protect copyrights. (e.g., DMCA
anti-circumvention)

	 

	But we can also recognize a public interest in some kind of
copyright and trademark and patent protection, so I modified the
statement to read, "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." 

	 

	Believe me, ANY contestation of IPR, no matter how subtle, is
going to provoke fanatical opposition in the IGF context, so you had
better make damn sure we are unified on this one. 

	 

	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  

	 

	Completely wrong, as I said the modifications clarified and
strengthened the language on contesting and exploring the scope of IPR. 

	 

	"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 

	 

	Wrong again. First, I am claiming the territory of property
rights as "our" space, and not conceding it to the
copyright/trademark/patent interests. Second I am following Richard
Stallman's important point that "intellectual property" as an umbrella
term, somewhat dodgy, we need to be more specific about what kind of
rights we are talking about, and that means Copyrights, Patents and
Trademarks.

	 

	In the original text there was another question - Are corporate
entities entitled to rights as we understand the term?  

	 

	Now this is interesting. Another word for "corporate" might be
"collective." For you to advance rights of ill-defined collectivities
such as "cultures" and at the same time question any legal rights
assigned to corporations is completely inconsistent. It is not
inconsistent for an individualist however to view a formal corporate
structure as a legal contracting party to which individuals assign or
delegate specific rights, and which can act on their behalf.

	 

	

	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. 

	 

	Yes, but this will only work if you are willing to accept a
statement and viewpoints that are different from your own.

	 

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