[WSIS CS-Plenary] IP Justice Comment to IGF on Top Policy Issues for Athens

[Robin Gross]

Apologies for the cross-posting.
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IP Justice Recommendations to the
United Nations Internet Governance Forum

RE: Substantive Agenda Setting Issues to Consider

By Robin Gross, IP Justice Executive Director
www.ipjustice.org
31 March 2006


Introduction

IP Justice is grateful for this opportunity to make substantive 
recommendations as the UN Internet Governance Forum undertakes the 
important task of examining substantive policy issues to discuss at its 
inaugural meeting in Athens from 30 October – 2 November 2006.

IP Justice is an international civil liberties organization that 
promotes balanced intellectual property rules and protects civil 
liberties in a digital environment (www.ipjustice.org). IP Justice 
actively participated in both phases of the World Summit on the 
Information Society, contributed to the UN Working Group on Internet 
Governance discussions, and participates at ICANN Board meetings as a 
representative for the Non-Commercial Constituency (NCUC) on ICANN’s 
GNSO Policy Council.

IP Justice Top Three Recommendations

In response to the request to suggest the top 3 public policy issues to 
be discussed at the inaugural Internet Governance Forum, IP Justice 
submits the following recommendations:

1. Protection for Freedom of Expression, Privacy, and Human Rights;
2. Attention to the Growing Threat of Excessive Intellectual Property 
Rights to Hamper Access to Knowledge;
3. Promotion of Open Standards and Non-Proprietary Development Models.

The Internet is one of most powerful tools ever invented for human 
development, education, and encouraging a participatory democracy. The 
special promise of the Internet must be allowed to freely develop for 
the benefit of all of society without excessive regulatory mediation. 
Opportunities for the free expression of diverse and minority viewpoints 
made possible through the Internet makes the protection of this medium 
particularly important.

In a number of national legislatures (particularly the US and the EU) as 
well international legal regimes (such as the World Intellectual 
Property Organization (WIPO) and the WTO’s Trade Related Aspects of 
Intellectual Property (TRIPS)), laws designed to protect intellectual 
property rights have become unbalanced in recent years to the detriment 
of the public interest. In recent years, we have witnessed a dramatic 
increase in both the scope and the length of the term of intellectual 
property rights, while at the same time greater restrictions on the 
exceptions and limitations to these rights. These increasing monopoly 
rights are often created in response to the fears of digital technology, 
particularly the Internet.

Our concerns about this growing imbalance are particularly relevant in 
the digital domain, where rights holders often undertake “self-help” 
mechanisms, such as wrapping copyrighted works in technological “locks” 
that disable consumers’ ability to exercise their lawful rights, such as 
private copying rights and achieve interoperability. It is the 
combination of laws and technologies working together that effectively 
eliminate private copying rights and the public domain, and chill 
freedom of expression. The tools, including software and information 
that enable the exercise of these lawful consumer rights must remain 
lawful and accessible if the public’s rights are to have any meaning in 
a digital world.

IP Justice encourages the Internet Governance Forum to bear the 
following core principles in mind as it begins its work:

Promote Access to Knowledge Through Flexible Rules

Laws regulating information technologies should aim to promote access to 
knowledge and culture. In response to a perceived threat of the Internet 
and digital technology, rightsholders have lobbied to pass new laws that 
actually create excessive barriers to education and widen the gap in the 
digital divide between rich and poor countries. While incentivising 
creativity is important, providing too many exclusive rights has the 
harmful effect of stifling future creativity and eliminating existing 
consumer rights. Poorer nations must be permitted to compete on a level 
playing field with wealthier countries who were able to become strong in 
large part due to a history of flexible legal rules that permitted a 
free flow of information and innovation. Requiring developing countries 
to adopt restrictive legal regimes for regulating information 
technologies denies them the same path of development that rich 
countries have historically enjoyed.

Protect Freedom of Expression on the Internet

The freedom of expression rights guaranteed in the United Nations 
Universal Declaration of Human Rights, although adopted by the UN 
General Assembly in 1948, speaks directly to the Internet age: Article 
19 guarantees that “Everyone has the right to freedom of opinion and 
expression; this right includes freedom to hold opinions without 
interference and to seek, receive, and impart information and ideas 
through any media and regardless of frontiers.” This universal guarantee 
to freedom of expression is not limited to only analogue technology, but 
rather, explicitly, “… in any media and regardless of frontiers.”


Protect Privacy Rights of Internet Users

IGF should work to help protect the privacy rights of Internet users and 
website owners against over-zealous intellectual property rights holders 
who demand personal information about consumers. IGF should help ensure 
that traditional privacy and due process protections are not curtailed 
in the online environment. Core Internet tools, such as ICANN’s “who-is” 
database must be reformed to meet legal standards of due process, such 
as a requirement for a finding by a judge of the likelihood of 
infringement before an Internet user’s personal information may be divulged.

Promote Free and Open Source Development Models

The success of Free and Open Source development models in recent years 
has inspired a revolution. The free or low cost prices combined with the 
enhanced flexibilities of non-proprietary software development models 
makes these alternative systems attractive to developed and developing 
countries alike. IGF should encourage the development of new and 
innovative information distribution models, such as Free and Open Source 
Software, and the Creative Commons licenses, which are particularly 
suited for a digital environment.

Enhance the Public Domain

Digital technologies provide for enormous opportunities to build 
historical archives of many types of creative achievements – books, 
music, film, software, and more. Public domain materials are given new 
life in a digital environment where the cost of dissemination is near 
zero. Innovative projects such as Project Guttenberg and the Internet 
Archive provide an important public service for by cataloguing and 
maintaining a vast store of human knowledge. IGF should encourage the 
creation and support for such innovative projects that harness the 
properties of digital technology to bring culture and education to the 
public.

Recognize Social Value of P2P Technologies

The development of technologies such as Peer-to-Peer (P2P) file-sharing 
provide an unprecedented opportunity to distribute knowledge and 
information to those who would never before had access to such 
information, and at virtually zero cost. Laws and technologies 
regulating the Internet should encourage the free exchange of scientific 
and cultural information without the need for third-party mediation. We 
are particularly concerned about recent efforts to criminalize the use, 
creation, and distribution of P2P technologies that enable substantial 
non-infringing uses.


Encourage “Development Agenda” Goals

Developing countries have taken note of the need to reform unbalanced 
laws and proposed a “Development Agenda,” which was adopted by the 
General Assembly of the World Intellectual Property Organization (WIPO) 
at its annual meeting in 2004. The “Development Agenda” calls upon WIPO 
to explore alternative mechanisms for encouraging innovation and 
creativity that do not depend upon increasing monopoly rights and 
relying on proprietary models of development. Also at the forefront of 
the “Development Agenda” is fostering technology transfer from wealthy 
countries to developing countries and we encourage the IGF to ensure 
technological advances benefit of all the world’s citizens.

Open and Free Standards

Internet information technologies must remain format neutral and free 
from encumbrances such as patents for the health and growth of the 
Internet to flourish. The Internet has been able to thrive in the past 
precisely because of its open architecture and patent-free protocols. We 
encourage the IGF to continue to embrace free and open standards for 
Internet technologies.