By Monika Ermert for Intellectual Property Watch
RIO DE JANEIRO – Intellectual property-related issues were a topic avoided by governments during the 2003-2005 World Summit on the Information Society, which gave way to the Internet Governance Forum (IGF). But at the second IGF in Rio de Janeiro last week there were several IP-related workshops.

Organisers of the dynamic coalitions on open standards, access to knowledge and the newly formed coalition on digital education said they were satisfied with the attention IP issues drew.

David Gross, the United States delegation lead, said he had been interested to see how much IP issues had come up. “IP issues of course are always an important issue,” said Gross, the US coordinator for international communications and information policy. “But there are many other places devoted to that topic, like WIPO [the World Intellectual Property Organization] or WTO [the World Trade Organization]. The fact that people think that the IGF is a place for these issues was interesting to me.” But Gross called it a misused opportunity that issues of the free flow of information had not come up more instead.

Members of a new coalition on digital education, which brings together teachers, academics, publishers, technologists and politicians, will organise a survey on the influence of IP protection in classrooms worldwide. They also intend to work on digital education publishing channels to create a system for educational publishing, members of the Information Society Project at Yale Law School told Intellectual Property Watch. “Although the digital age holds great promise for educators and learners, information policy and regulation has not sufficiently focused on the unique context of education,” the new coalition members wrote in their first declaration.

New Antitrust Investigation against Microsoft

The open standards coalition invited Clifford Chance lawyer Thomas Vinje to Rio to give insights into a new antitrust case of the European Union against Microsoft. Vinje represented the European Committee on Interoperable Systems (ECIS) in the first antitrust case against Microsoft. Vinje told a press conference that the EU Competition Commissioner’s office, with the first case decided by the EU Court of First Instance, now has started working intensively on the second case.

The new case involves three main aspects. First, Microsoft allegedly barred providers of other text document formats access to information that would them allow to make their products fully compatible with computers running on Microsoft’s operating systems. “You may have experienced that sometimes open office documents can be received by Microsoft users, sometimes not.”

Second, for email and collaboration software Microsoft also may have privileged their own products like Outlook with regard to interfacing with Microsoft’s Exchange servers. The third, and according to Vinje, most relevant to the Internet and work done at the IGF, was the problem of growing .NET-dependency for web applications. .NET is Microsoft’s platform for web applications software development. “It is a sort of an effort to ‘proprietise’ the Internet,” said Vinje.

He saw this as “the same kind of behaviour” that had been judged anti-competitive in the first case by creating barriers for competing operating systems. But there was a difference between the two cases in two regards, he said. “First of all, the Commission now has more expertise and much better resources compared to when they started investigating Microsoft in 1993,” he said. “Secondly, they have a precedent, a court decision that confirmed the principles.”

Other national authorities, he proposed, could join the investigation or start their own as the competition authorities in South Korea have done already. “Competition authorities like company,” he said. And while he did not expect the US competition authorities to join in before the end of this term, a new government might change the situation. Governments also could for the moment just send their statements of concern to the EU competition commissioner.

Vinje said a slight effect on the case could result from the decision of the ISO [International Standards Organisation] standardisation process for Microsoft’s OOXML software currently under discussion. The first vote was against making OOXML a standard, but Microsoft lost only by half a dozen votes, according to Georg Greve, president of the Free Software Foundation.

“Microsoft at the moment attempts to change as many nos to yes as possible and we do it the other way round, trying to change as many yeses to nos,” Greve said in Rio. The votes in the ISO standardisation process are cast mainly by representatives of national governments, but many governments are represented by industry associations or private organisations. The Microsoft case showed the weaknesses of the standardisation process, Greve said.

“The process normally deals with technical issues, and there is not procedure for a conflict like this,” he said, adding that it is a highly politicised process.

Standards as Shadow Governance

Awareness-raising about the effects of standards and standardisation processes is exactly what the IGF dynamic coalition on open standards was all about, said Susan Struble from Sun Microsystems, which is a member of the coalition.

“Standards are invisible, they are shadow policy making, shadow governance,” Struble said at the Rio meeting. It is necessary to learn about standardisation and understand that there were not only a few large standardisation bodies, but hundreds of industry consortia engaged in this. The purpose of the coalition is to educate governments that there is an issue and that IP and standards could influence development.

The coalition was happy to find the standards issue mentioned by Brazilian Minister of Science and Technology Sergio Rezende, and Anriette Esterhuysen, chair of the Association for Progressive Communication.

Esterhuysen said: “Increasingly, there are standards being made outside of public spaces that have social implications that limit what people can do with the Internet, and the IGF needs to address this. This touches on issues of intellectual property, and interoperability between different applications and devices. And these are things that impact on the cost.”

IP and Development

The introduction of a Development Agenda at the World Intellectual Property Organisation was applauded in Rio by both the open standards and the access to knowledge (A2K) coalitions.

Both groups now look forward to implementation of the various measures decided upon in the Development Agenda. “Open standards are in,” said Thiru Balasubramaniam of Knowledge Ecology International (KEI). [Clarification: this comment referred to the WIPO Standing Committee on Patents, but standards could appear in the Development Agenda] The activists also are satisfied with the planned report to be delivered by WIPO’s committee on patents about the cost of licensing next year.

Robin Gross, executive director of IP Justice, also pointed to implementation of the Development Agenda. “We now can talk on meat and potatoes,” she said. A proposed access to knowledge treaty mentioned in the new agenda might take a long time, she said, yet the attention on the issue is rising. The A2K coalition over the last year narrowed the gap between organisations and activists working on the issue from north and south. In Rio, the A2K coalition also presented parts of a larger study on bilateral and regional free trade agreements undertaken by a team under Professor Mary Wong at Franklin Pierce Law Center (US). Concern is that more stringent IP rules may be pushed bilaterally when they are not obtainable at the multilateral level.

Practical IP-related Results

Beside networking and some stocktaking, practical steps also were presented by coalition members during the sessions. For instance, IP Justice announced the first international cyberlaw clinic. Among issues to be addressed, “law students in the programme will tackle Internet policy issues such as protecting free expression in the introduction of the new top-level domains (including internationalised domain names)” at the Internet Corporation for Assigned Names and Numbers [ICANN], and in this effort assist ICANN’s non-commercial user constituency. Participating law faculties are the School of Law in Rio de Janeiro, the University of Hong Kong, the National University of Singapore, the University of Ottawa, and the University of South Africa.

Another practical project is the start of Certified Open, a certification service designed to evaluate technical and commercial lock-in in technology. Certified Open will allow providers of software or services to self-rate with regard to openness. Public authorities (and others) then could check whether products are open standard before buying in. While there could be abuse of the self-certification process, made inexpensive and free for non-commercials, FSFE President Greve said answers to the openness questions of the applicants will be published openly allowing disputes about the information given.

A Successful Outcome?

Measuring the success of the second IGF overall was difficult. Some pointed to the high attendance, though business again lagged behind NGO and government representatives. Others pointed to the large number of well-attended workshops, best practice forums and presentations of Internet governance-related organisations, like ICANN, the country code Top Level Domain managers, the root server zone operators, as well as the Council of Europe and the Organisation for Economic Cooperation and Development. Matthew Sheers, representing the Internet Society during the closing ceremony, pointed to the interest of some government representatives in installing root server instances and Internet exchange points in their countries.

The UN organisers, IGF Chair Nitin Desai and IGF Executive Coordinator Markus Kummer, adhered to the IGF’s non-decision-making protocol and said at the closing press conference that there were no recommendations or even central messages of the IGF. “There are many messages,” said Desai, “and they come from the different workshops.” Desai pointed to substantive discussions about child protection on the Internet that might help to bar jurisdiction shopping in the future.

There were appeals to not focus on issues related to ICANN, root server and domain name system oversight so as not to lose the opportunity to talk about an Internet bill of rights, a balanced approach in IP, privacy and possible technological solutions for identity management, digital education and child protection.

The IGF in some ways has taken on its own life distant from the original fights at WSIS over the DNS. Yet there are those who still seek resolution on the DNS issue, and they started to look outside of the IGF. In a last minute statement, the Russian Federation claimed that the UN secretary general should set up another working group specifically dealing with the DNS oversight problem and the privileges of the US government there. The secretary general’s office, for its part, has to decide on how to proceed with the IGF Advisory Group, the body that is preparing and caretaking the IGF meetings. What seems certain after Rio is that there rising hopes as to what can be reached at the next meeting in Delhi next year.

Monika Ermert may be reached at info@ip-watch.ch.