Intellectual property experts from a wide range of backgrounds are finding common ground in informal proposals to ensure the right of individuals to access knowledge, including possibly through a negotiated treaty at the U.N. The issue has come of age in the digital era, as intellectual property owners have sought to protect their rights in an era when the Internet has opened new pathways to knowledge.

The access issue is a subtext in a broader discussion on development at the U.N. World Intellectual Property Organization (WIPO). But a WIPO official noted this week that there is no proposal at WIPO specifically to negotiate an access to knowledge treaty at the organization.

The informal proposals were the subject of a Feb. 3-4 meeting in Geneva entitled, “The WIPO Development Agenda and a Treaty on Access to Knowledge.” At the meeting, 60 academics, researchers, public interest groups and diplomats presented and discussed more than two dozen proposals on aspects of such a treaty, organizers said. The off-the-record meeting was organized by the Consumer Project on Technology (CPTech), the International Federation of Library Associations and the Third World Network.

According to a meeting summary posted by sponsor Martin Khor of the Third World Network, the aim of the meeting was “to discuss the effect of intellectual property regimes on the public’s access to knowledge and to discuss proposals to deal with this, including through a possible treaty on access to knowledge.” It also aimed to provide inputs to the discussions on a Development Agenda under consideration at WIPO, he said.

CP Tech director James Love said afterward that there appears to be non-governmental support for elements of an access to knowledge treaty.

Support gelled around limitations and exceptions to patents, copyrights and other intellectual property laws; mechanisms to address abuses of rights, such as the control of anti-competitive practices; and opportunities to support new modes of production of knowledge goods, such as free and open source software, open access research archives, or public domain scientific databases, he said.

“Some proposals were new, such as the patent and procurement mechanisms to protect open standards,” Love said. “Others, like those concerning open access archives for publicly funded research, are already part of the policy landscape in some countries, including the US, but are not part of any multilateral instrument to promote access to knowledge.” He added, “This was a very good start, but there is much work ahead.”

Several participants framed the outcome as consensus for a “big picture” approach to the issue, meaning to seek a full treaty, not just amendments to existing texts. “People want to move forward,” said CP Tech’s Manon Ress.

Another broad view from the meeting was that access to knowledge is a basic human right, and that restrictions on access ought to be the exception, not the other way around. The view is a reaction to efforts to obtain exceptions to intellectual property rights for certain uses of knowledge.

The issue of access to knowledge grew out of a proposal for a Development Agenda currently under consideration at WIPO. The proposal, put forward by Argentina and Brazil last fall, broadly suggests a treaty on access to knowledge and technology but leaves the details for debate. That debate is engendering a number of ideas from a wide range of experts, including libraries (which are playing a leadership role), Internet service providers (including Verizon and BellSouth), Internet engineers, technology companies (such as IBM), academics and non-governmental organizations.

The issue will be discussed at a meeting of the intellectual property working group of the Trans-Atlantic Consumer Dialogue in London on May 12-13. That meeting will follow three planned WIPO meetings on the Development Agenda, all in Geneva: the intersessional intergovernmental meeting on April 11-13; the permanent committee on cooperation for Development Related to Intellectual Property on April 14-15; and, according to CP Tech, the international seminar on intellectual property and development on May 2-3.

A question was raised at press time by some non-profit groups as to whether limits might be set on their participation in some of the WIPO meetings, but a reply from WIPO could not be obtained in time.

Origins Of An “A2K” Treaty Proposal
The Argentina/Brazil proposal calls for a new subsidiary body within WIPO to look at ways to ensure effective technology transfer to developing countries, along the lines of what has been done at the World Trade Organization and the U.N. Conference for Trade and Development (UNCTAD). It highlights the prospect of an “international regime” to promote developing countries’ access to publicly funded research in developed countries. The regime could be the access to knowledge treaty, it says.

The proposal also refers to the importance of “access to information and knowledge sharing … as essential elements in fostering innovation and creativity in the information economy,” and says additional layers of intellectual property protection in the digital environment “would obstruct the free flow of information and scuttle efforts to set up new arrangements for promoting innovation and creativity.”

The issue also was supported in the Geneva Declaration on the Future of the World Intellectual Property Organization, signed by dozens of academics, researchers, non-profit and business representatives and others prior to the WIPO General Assembly last fall. The declaration called on WIPO committees to solicit the views of member countries and the public.

Members at the General Assembly said meetings would be convened in conjunction with the Permanent Committee on Cooperation for Development Related to Intellectual Property. A report will be prepared by the WIPO secretariat by July 30 for consideration at the next General Assembly.

A Need For Change At WIPO?
At the outset of the Geneva meeting, participants described the need for change at WIPO and goals for the meeting. Goals for the meeting were described as reaching agreement on “what we would like our negotiators to do in the area of IP,” or beginning “the process of becoming more cohesive in what we and other people want” in the negotiations.

“We are now confronted by copyright, patent laws that may disadvantage developing countries,” one participant from a developing country non-profit said at the meeting’s outset.

“The system has failed miserably in providing things such as affordable drugs in developed and developing countries,” another developing country participant said.

“I think the IP system and WIPO in particular need to cater to developing countries if it wants to maintain its credibility,” the official said. But, he acknowledged, “Storming the WIPO fortress is certainly something that will not prove easy to do, and I don’t think we should be naïve about that.”

Institutional reform is fundamental to the development agenda, the official added. “We’re trying to change WIPO’s way of thinking” away from its perceived bias toward intellectual property rights holders, he said.

Another developing country participant said that over the past 50 years while there has been a continuous strengthening of various rights, there have been no efforts related to the needs of consumers. There must be a balance between the two sides, he said.

Several participants took the position that a fight between rights-holders and consumers does not divide along “north-south” lines (i.e., rich nations and poor nations), since rich nation consumers also pay higher prices if intellectual property is over-protected.

Philippe Aigrain, adviser for strategy and development at Transversales Sciences Culture, afterward emphasized exceptions and limitations. “We have a challenge in front of us: we must define a minimum set of exceptions and limitations to the abusive extension of intellectual property, so that we can cope with some burning issues in development,” he said. “We must however position these exceptions in a more general framework, stressing the need for a new model promoting open cooperation and free usage of knowledge.”

Cory Doctorow of the Electronic Frontier Foundation during the meeting made the point that free and open source software (FOSS), which is developed communally and may be accessed and altered by anyone, is incompatible with digital rights management. That is because for FOSS to work, every user must have the right to examine the software programs, but that DRM requires that users be locked out of their software and devices so they cannot view or modify them. So far, he said, no DRM technology has ever been licensed for use in a FOSS implementation. Meanwhile, he said, FOSS systems “have found enormous utility in development efforts, as in Brazil’s “infocenter” shops.

George Willingmyre of the U.S.-based GTW Associates and others discussed problems relating to standards. He said on the CP Tech Website that there are problems of flawed disclosure of patents essential to practice a standard and problems with the assurance of reasonable licensing terms for such patents. In addition, there is “a lack of clarity of and diversity between the patent policies of numerous standards developers,” he said.

Whatever the view, proponents of an access to knowledge treaty are likely in for an uphill climb. One meeting participant warned that commercial interests “are already lobbying their government representatives to oppose any access to knowledge treaty.”