A recent meeting of the World Intellectual Property Organization (WIPO) on issues of copyright and related rights brought to the fore the underlying tensions between the Internet as a technology that transcends borders and the current intellectual property regime set up in the 19th Century. Discussions on limitations and exceptions and on the protection of broadcasting have been taking place for many years within WIPO and Member States have been seeking ways to address these issues, responding, at the same time, to the challenges presented by both national and international copyright regimes, digital technologies and the Internet.
On 16-25 July 2012, WIPO held its its 24th Standing Committee on Copyright and Related Rights (SCCR) meeting. Much of the 10-day discussions made references to the Internet and digital technologies, thus making questions of who and in what capacity should participate in such discussions relevant. A bit of background information first though.
The items that were on the SCCR’s agenda included:
1. “Limitations and Exceptions for Libraries and Archives”;
2. “Limitations and Exceptions for Educational, Research and Teaching Institutions”;
3. “Limitations and Exceptions for the Visually Impaired Persons and Persons with Print Disabilities”; and,
4. “Protection of Broadcasting Organizations”.
In their own right, all these areas constitute fundamental policy issues and raise significant policy questions. For example, the issue of “Limitations and Exceptions for Libraries and Archives” is an important topic especially given the increasing adoption of Information and Communication Technologies (ICTs) throughout the educational spectrum. In a similar vein, solutions on the accessibility for the visually impaired community are necessary as they could allow the delivery of any product or service over the Internet. To this end, barriers – be it legal or technological – need to be overcome so that persons with disabilities can gain benefit from and contribute value to the Internet. Finally, the issue concerning the protection of Broadcasting Organizations has been highly controversial regarding the need, justification and scope of this protection and its potential impact upon Internet communication platforms.
Having acquired an observer’s status within WIPO, the Internet Society joined other commercial and non-commercial non-governmental actors, including the Electronic Frontier Foundation (EFF), the International Federation of Library Associations (IFLA), the Library Copyright Alliance (LCA), Knowledge Ecology International (KEI), the Computer and Communications Industry Association (CCIA), the International Publishers Association (IPA) and the Motion Picture Association (MPA) – to name a few – in submitting oral statements.. We delivered two statements – one on the issue of the “Limitations and Exceptions for the Visually Impaired Persons and Persons with Print Disabilities” and the other on the “Protection of Broadcasting Organizations“. The Internet Society called for open, inclusive and transparent discussions on all issues (including those of WIPO) that pertain to the Internet and its technologies and requested that any legal instruments adopted that affect the Internet should not jeopardize its nature and its underlying platforms.
So, what did we learn from the SCCR/24 and what did we observe? After ten days (and many previous meetings) of deliberations and discussions, the WIPO Member States failed to reach concrete conclusions in any of the SCCR/24 thematic areas. But, this should not come as a surprise, especially for those discussions taking place within intergovernmental organizations. WIPO, just like all other intergovernmental organizations, adheres to a historical model of negotiations that features much of governments’ weaknesses relating to bureaucracy, lack of focus and time consuming procedural discussions. To this effect, the question clearly becomes whether, in today’s interconnected world, this model of negotiating is coming of age and whether its archaic nature impedes, rather than enriches, true discussions and solutions.
Two observations can be drawn from the recent WIPO SCCR/24 meeting: first it is almost impossible to talk about intellectual property without making reference to digital technologies and digital content; second, we need to accept that all discussions that mention, affect or interfere with the Internet and its platforms should be conducted under an inclusive and transparent manner. This is particularly significant considering that many of the SCCR’s/24 conclusions were by-products of ‘informal meetings’ – a standard WIPO process reserved only to the Member States.
Inevitably, this model will be questioned in the long run. The Berne Convention – an important document often quoted by the WIPO Member States – was drafted at a time when we all shared a common understanding on clearly demarcated, mutually agreed borders, beyond which a state did not (fundamentally) have any jurisdiction or rights of interference. This is no longer the case with the Internet, a medium that transcends national boundaries and requires additional knowledge skills not necessarily found within governmental actors. With this in mind, we need to start seeking ways to engage more stakeholders and seek their contributions to intellectual property discussions that relate to the Internet. Expertise and knowledge is required to address the technical issues that pertain to the Internet; and, input from the different sectors of the Internet ecosystem is necessary to achieve the required balance.
It would be a positive (and, certainly, timely) step for intergovernmental organizations, like WIPO, to identify ways to take discussions relating to the Internet to the next level by making them more inclusive and transparent. Proposals should start forming, focusing on how to engage different stakeholders in such institutional fora that follow the traditional intergovernmental path but they, similarly, address issues that the entire Internet community is affected by.