[governance] WIPO moves into Internet policy, seeking mandate for opening internet intermediary liability protections, and enforcement

[Riaz K Tayob]

Forwarded from another list with permission.

Riaz


	

	
From: 	Nick Ashton-Hart <nashton at consensus.pro>

	



Dear All,

I thought I should acquaint you with a real problem we are having in 
Geneva - The Secretariat at WIPO is clearly looking to insert itself as 
a player in Internet governance by trying to create a broad agenda on 
intermediary liability in both trademark and copyright policy.

On June 8th, in an interview 
<http://www.copyrightsummit.com/2011/06/08/video-of-the-keynote-conversationglobal-perspectives-on-ip-and-copyright-%E2%80%93-the-role-of-international-organisations/>(24thminute) 
at the World Copyright Summit, the Director General said that the 
copyright agenda at WIPO:

?? tends to be a negative one. It tends to be looking at the exceptions, 
the limitations, and the other ways of not having intellectual property. 
I?m very keen to see us coming back with a positive agenda for 
intellectual property.?

The IFLA, WBU, eIFL and CCIA objected in writing 
<http://www.ip-watch.org/weblog/wp-content/uploads/2011/06/IFLA-EIFL-WBU-and-CCIA-Letter-to-WIPO-Director-General-Francis-Gurry-June-2011.pdf>and 
asked for clarification of the DG?s position on 13thJune. At a meeting 
with the DG he was defensive and dismissive of our concerns, noting that 
?making you [NGOs] happy is not my priority.?

In the same interview (about 7m20s), on the subject of Internet 
intermediary liability shields, he was asked if he believed reform of 
intermediary liability protection regimes in the Internet Treaties was 
necessary, he said ?

?Yes? I think it?s essential, it?s key, but I don?t think we?re in a 
position, anyone?s in a position to impose solutions in this area. We 
have to work out solutions, I think, by dialogue. It?s necessary for the 
intermediaries ? the telcos, the ISPs ? to come together with the 
content providers, we have to have that dialogue ??

When asked if WIPO would be willing to ?lead the way? in creating 
?meaningful dialogue? that might ?lead to some new frameworks?? He said 
that this was a part of

?? bringing WIPO into the 21stcentury ? it is a terribly important thing 
for us to do ? we are trying to stimulate that discussion, we are trying 
to move the member-states ? if we are able to stimulate a discussion 
about the profound consequences of the digital environment for the 
financing of culture in the 21stcentury ? it will become evident that 
the intermediaries are a key to the future solution.?

The DG likes what WIPO calls "stakeholder dialogues" - where key 
stakeholders on opposite sides of an issue meet under WIPO?s auspices, 
with WIPO playing an arbitration/convening role to discuss issues of 
disagreement in hopes of creating a breakthrough. These processes then 
report back to member-state diplomats (most of whom are general 
foreign-service people with no substantive expertise in the issues). 
WIPO's efforts in doing this have so far been failures which have come 
with a high price at times for the participants.
With respect to the visually impaired and their access to books, a 
stakeholder dialogue was convened at the request of the member-states in 
the copyright committee at WIPO, composed of the visually impaired and 
publishers the to try and get the parties to find practical solutions 
for moving books around (homepage here 
<http://www.visionip.org/portal/en/index.html>). This has now largely 
collapsed 
<http://www.worldblindunion.org/en/news-events/latest-news/Pages/default.aspx>, 
because the blind found that the publishers were using it to sabotage 
attempts to get a binding solution to a big problem - less than 5% of 
books are available in blind-accessible versions. The Stakeholder 
Dialogue was being used to justify no binding norms by publishers and 
publisher-friendly governments.
WIPO and Intermediary Liability in Copyright

The Secretariat are very active in this area, quite out of the blue. 
They undertaken a series of panel discussions and released two new 
reports. Because they have no member-state mandate, they are organising 
these meetings in combination with the Internet Society.

So far, they have or are:

  * Held a joint session
    <http://groups.itu.int/wsis-forum2011/Agenda.aspx?event=event_234>with
    ISOC at the WSIS Forum 2011 where the only speaker other than WIPO
    and ISOC was a person from the Korean Copyright office extolling the
    virtues of their three-strikes laws. Many present objected to such
    an unbalanced panel. WIPO promised their subsequent panels would be
    balanced.
  * Held a joint side event
    <http://www.wipo.int/meetings/en/details.jsp?meeting_id=23647>on
    Wednesday 21st June
    <http://www.wipo.int/edocs/mdocs/copyright/en/wipo_isoc_ge_11/wipo_isoc_ge_11_inf_1_prov.pdf>where
    there were no intermediaries on the panel once again - but the
    President of HADOPI and Ted Shapiro
    <http://www.wipo.int/edocs/mdocs/copyright/en/wipo_isoc_ge_11/wipo_isoc_ge_11_ref_02_shapiro.pdf>of
    the film industry both were, pushing a heavy copyright enforcement
    agenda and endorsing WIPO work in this area. This meeting was held
    during the Standing Committee on Copyright and Related Rights as it
    undertakes a two-year process of looking into limitations and
    exceptions for the visually impaired, education, and libraries.
    Given the agenda in L&Es, you would think WIPO would spend its time
    helping member-states understand those issues better, rather than
    trying to introduce new issues. There is a report of the meeting
    here
    <https://docs.google.com/document/pub?id=1RXLjTt_yB4dm9UETYuVqaD2EOQh0FebPNngQ3FmL2yw>by
    Matthias Langenegger - CCIA was invited at the last minute but
    declined to participate because the panel was so unbalanced; WIPO
    then went to EFF who declined for the same reason.
  * Attended a 20-country intergovernmental meeting in Thailand in May
    where WIPO admitted they had persuaded the organisers to put
    Internet intermediary liability on the agenda. I have asked for more
    information on this meeting from WIPO, but I haven?t received any
    details.
  * Published two reports on Intermediary liability, available here
    <http://www.wipo.int/copyright/en/internet_intermediaries/index.html>.
  * Organising a joint event at the Internet Governance Forum in Kenya -
    details here
    <http://www.intgovforum.org/cms/component/chronocontact/?chronoformname=WSProposals2011View&wspid=79>.



In trademarks, the Secretariat proposed <about:blank>(see paras 69-71, 
page 11) in March 2011 that the Standing Committee on Trademarks should 
??develop agreed standards for the determination of the presence or 
absence of secondary liability of Internet intermediaries ?? This 
proposal was defeated 
<http://www.ccianet.org/index.asp%3Fsid=5%26artid=213%26evtflg=False>, 
thanks in part at least to the work of CCIA 
<http://www.cccianet.org/>and its member companies interacting with 
member-states but the Director-General made clear that he will not give 
up ? as according to him a ?public policy solution? at the international 
level to the ?problems to be solved? is necessary.

Given these statements and activities, the interest in regulating the 
Internet for trademark owners and pushing the issue of Internet 
intermediaries in copyright cannot be anything other than an 
orchestrated and deliberate campaign to create a role in Internet policy 
for WIPO despite a the lack of member-state support for it ? or, 
frankly, much by way of expertise: a Director-level staff member 
recently asked a group of Internet intermediaries the question ?What is 
Web 2.0??

Bottom line: We need more NGOs attending WIPO's copyright and trademark 
meetings, from more countries. We need more exposure of what is going on 
publicly.

Can any of you help?
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