[governance] Inputs for synthesis paper

[Jeffrey A. Williams]

Parminder and all,

  I think such should read "Unfettered right to access to the
Internet".  Restricted rights to the Internet are not suficient.

Parminder wrote:

> 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 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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