By Monika Ermert for Intellectual Property Watch

The issue of intellectual property did not make the headlines during the concluding session of the five-year-long UN World Summit on the Information Society (WSIS) in Tunis. And some critics are concerned it was intentional.

Discussing the future of the information society without talking about intellectual property seems odd and suggests an intentional omission, said Robin Gross, executive director of IP Justice. “We got,” said Gross, “three minutes at the Tunis plenary, and that’s it on the topic of intellectual property.”

Symptomatic of this, according to Gross, was what happened to cyberlaw expert and Creative Commons founder Lawrence Lessig. The Stanford University professor was told immediately before his talk at a “Roundtable of Visionaries” organized by the ITU during WSIS preparations in Geneva in 2002 to not talk about intellectual property issues, but instead focus on Internet governance.

Lessig revealed this to reporters immediately before the Tunis summit underlining his scepticism about the possible outcomes of the summit with regard to the IP rights issue, which he deemed important. Lessig had said that the issue would be negotiated off the table by those who want to keep control over IP policy.

The Internet governance debate was the focus of discussions in Tunis, with the creation of a global Internet governance forum and a compromise in the end of some enhancements in the net governance organisations to promote greater governmental participation.

All sides in the Internet governance debate have claimed victory and will likely continue struggling over the issues, but intellectual property will not be a topic of the new governance forum. In Tunis, there was a consensus that work elsewhere should not be touched by the WSIS process. A mantra was that IP issues had to be dealt with by WIPO.

While the final Tunis documents make ample references to access, they mainly refer to it in the context of access to infrastructure. Four points talk cautiously about the “numerous challenges” for “expanding the scope of useful accessible information content” (paragraph 15); about “improving access to the world’s health knowledge and telemedicine services” (paragraph 90.g) and to “agricultural knowledge”(90.i); and, finally, about “supporting educational, scientific, and cultural institutions, including libraries, archives and museums, in their role of developing, providing equitable, open and affordable access to, and preserving diverse and varied content, including in digital form, to support informal and formal education, research and innovation (90.k).

Growing Imbalance Toward Rights Holders Cited

But concerns like the one presented by Alex Byrne, president of the International Federation of Libraries Association (IFLA), that librarians all over the world see a “growing imbalance of IP laws in favour of rights holders and to the detriment of the users” and about a “shrinking of the public domain,” that in some respects increasingly was also barring access in developed countries, were a side issue in the plenary talks.

Burne, like the representatives of the free software community, spoke in side events organised by NGOs, namely a panel organized by IP Justice on the World Intellectual Property Organisation (WIPO) and a panel organised by the Free Software Foundation on free and open source software.

IFLA, the Free Software Foundation Europe (FSFE), IP Justice and the Consumer Project on Technology all support a proposal for a treaty on access to knowledge proposed by the 14 “Friends of Development” countries as part of the development agenda under discussion at WIPO.

“We shared,” Burne told the participants of the WIPO panel in Tunis with regard to the development agenda, “the frustration that after nine days of negotiation [in 2005] there was no result on either substance or procedure.” But copyright exemptions are crucial to assist developing and least developed countries to catch up with developing countries, said Burne, which in turn was one of the declared targets of the WSIS.

WIPO Vice Director General Philippe Petit said during IP Justice’s WIPO panel that the development agenda was one of the major work items for WIPO for 2006, but he did not touch on it during his official plenary speech. WIPO was already implementing the Geneva action plan by fostering IP protection in developing countries and the summit was encouraging WIPO to go further in this direction, he said. But intellectual property was not mentioned again in the Tunis documents and WIPO is not named in the list of UN organisations that shall address implementation.

Free and Open Source Software Systematically Sidelined?

“Some countries and some big companies from phase one of the summit tried to systematically turn down any discussion on intellectual property and free and open source software,” said Georg Greve, president of the Free Software Foundation. “They always acted as if the monopolizing of knowledge had nothing to do with its distribution.”

The only draft expert paper of the Working Group of Internet Governance that touched intellectual property, written by Italian software developer Vittorio Bertola in his capacity as a member of the group, was turned down as too controversial, according to several observers.

“During the whole summit process, and not only in the Geneva phase, the question to whom knowledge belongs in the knowledge society has been constantly neglected,” said Markus Beckedahl, founder of Netzwerk Neue Medien and founder and CEO of newthinking communications, an agency focused on free and open source software. Beckedahl also was an awardee of the Reporters without Borders Freedom Blog Awards for his blog netzpolitik.org. “If you consider the main target of the summit to create an inclusive information society with access for all, the summit has failed,” he said.

Greve spoke of mixed feelings: “If we imagine what could have been gained with the summit, it was a disappointment.” During the first phase in Geneva, open source software was recognized, though it was not declared preferential from a development point of view as proposed by governments like Brazil, India and the Holy See. Greve and the open source software advocates during the second phase saw much more involvement of companies like Microsoft.

Microsoft brought over 70 people to Tunis compared to a small group of half a dozen in Geneva during the first summit and as one of the official sponsors got its own speaking slot in which Microsoft International President Jean-Philippe Courtois asked for “strict protection of intellectual property.”

Microsoft also caused a stir by getting changed a document presented at the Tunis summit by the Austrian Organizers of a World Creativity Summit in Vienna, one of the many side events in the run-up to Tunis. Panel members including FSFE, representatives of Austrian musicians, WIPO and others had compromised on the final report – “not an easy compromise,” said Greve. But Microsoft, despite not being a panel member, requested and was granted changes then presented in Tunis as a final document without further consultation of the panelists.

The passage in question originally read: “Increasingly, revenue is generated not by selling content and digital works, as they can be freely distributed at almost no cost, but by offering services on top of them. The success of the free software model is one example, licences like ‘Creative Commons’ that only reserve some rights and permit wide use and distribution is another. Distributed collaborative production models like Wikipedia also show that there are other incentives than money to create quality content.”

The published text now looks like this: “Increasingly, revenue is generated by offering services on top of contents. Licences such as ‘Creative Commons’ reserve some rights and permit widespread use and distribution. Distributed collaborative production models like “Wikipedia” show that there are other incentives than money to create quality content. To ensure ongoing innovation, digital rights management (DRM) development and deployment must remain voluntary and market-driven.”

When Austrian media professor Peter Bruck pointed to a blog where the “revised” document had been posted for comment, Greve reacted by pointing out that with only four or five entries over two month time, the blog did not appear to be very public. Still, the NGOs might be satisfied with one point: after all there was someone paying close attention to the IP issue.