Internet Governance Forum: ACTA A Possible Show-Stopper For IP Progress

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By Monika Ermert for Intellectual Property Watch
The third annual United Nations-led Internet Governance Forum in Hyderabad, India this month addressed a range of topics related to intellectual property rights and the free flow of information, and provided a venue for doubts about a closed-door international anti-counterfeiting treaty negotiation being led by the United States and Japan.

The proposed Anti-Counterfeiting Trade Agreement (ACTA) intended to align governments in their fights against illicit trade, might have the effect of stopping more positive developments in intellectual property law that emerged over the last year, warned Eddan Katz, international affairs director at the Electronic Frontier Foundation.

Developments related to IP were presented in several workshops by the dynamic coalitions on access to knowledge and open standards. Once again IP issues did not make it to the main sessions of the Internet Governance Forum (IGF), and IP was not mentioned more than three or four times in the main sessions rather ephemerally, with the exception of ACTA.

Brazilian diplomat Everton Lucero in a main session warned against ACTA as a negative example of the contrary to what is seen as the major success model of the IGF: multi-stakeholder cooperation between governments, industry and civil society and also the so-called “enhanced cooperation.” “In fact [ACTA] is the worst example,” Lucero told Intellectual Property Watch.

Both concepts – enhanced cooperation” and “multi-stakeholderism” – are a result of the discussions of the 2003-2005 UN-led World Summit on the Information Society, and enhanced cooperation was introduced late in the debate by the European Union to reflect the demand for changes away from the single-handed oversight by the US government of the internet domain name system (DNS) to a more international mechanism.

“Enhanced cooperation” has been interpreted differently by signatories of the WSIS documents since. “Multi-stakeholderism” on the other hand has had a nice carrier finding its way into other fora like the OECD.

ACTA, on the other hand, indicates “a pattern of behaviour of some governments which openly defend multi-stakeholderism, democracy and inclusion, but prefer to follow restricted, behind-doors, exclusive arrangements to negotiate new legal instruments,” said Lucero. The restricted negotiations of ACTA will make later adoption in Brazil difficult, he warned. The same was true for the Council of Europe’s Cybercrime Convention, he said.

“In principle, we do not adhere easily to conventions that we have not participated in the negotiation process,” Lucero said in the IGF session on enhanced cooperation. “We should avoid coming up with a model restricted to a few, like ACTA,” said Lucero, “and, please, let’s also avoid models driven by one single government, like ICANN.”

Lucero told Intellectual Property Watch that his administration was informed that ACTA would not be finalised this year. The next meeting of ACTA negotiators was planned for 15 December in Paris. But Katz said, “According to our information there is still a plan to push this through.” ACTA will work against much of the recent progress in IP issues seen at the multilateral level, he said, adding, “So, stop ACTA.”

Recommendation on Standards Definition

One of the more concrete steps at the IGF was taken by the “Dynamic Coalition on Open Standards” in releasing an “Agreement on Procurement in Support of Interoperability and Open Standards.” The agreement can be adopted by governments, publicly funded and non-profit organisations that want to “promote interoperability and accessibility through the use of open standards.”

The coalition based the agreement on the “open standard” definition contained in the European Union’s draft European Interoperability Framework, which defines that open standards are adopted and maintained by non-profit organisations, are freely available or come at a nominal charge, can be used on a royalty free basis and can be re-used. [IDABC EIF v2 draft available here.]

Governments, publicly funded and non-profit institutions under the coalition agreement would “create a policy statement on interoperability and open standards, to be available to employees and the public” and implement procurement policies supportive of open standard products by 2010.

By 2010 all “public facing web sites” according to the agreement should conform to World Wide Web Consortium (W3C) standards (html-, xml-related standards) and data storage and archives should be in open data and document formats.

The adoption of the agreement by the coalition was a positive outcome from the IGF according to Aslam Raffee, chair of the South African government’s open-source software (OSS) working group. It was also one of the few formal recommendations adopted by a dynamic coalition or workshop in the IGF so far. There is ongoing discussion over whether recommendations should be adopted by the IGF despite the forum’s declared status as a non-decision making body.

Way Forward or Way Out for IGF?

Nitin Desai, special advisor to the UN secretary general on internet governance issues, asked in a session on IGF’s way forward: “Can we design something where, at least in a few limited, well-defined areas, a process has succeeded in narrowing differences?”

While the forum was seen in the first place as a “process of dialogue and discussion (that) helps in reaching decisions elsewhere,” and “second track diplomacy,” Desai acknowledged that there now is pressure “to move on” from talk and “do something.” The IGF also faces an evaluation that will inform the UN Secretary General and the UN Council in 2010 before their decision to extend the mandate of the IGF or discontinue it.

The last meeting planned for now will be held in Lithuania in November 2010. The 2009 meeting will be hosted by Egypt and take place in Sharm El Sheikh on 15-18 November.

Meanwhile, the open standards coalition co-organised two workshops in Hyderabad in which developments on the Open Document Format (ODF) standard were discussed. Aslam Raffee reported in a workshop on Knowledge as a Global Public Good that beginning in 2009 the use of the ODF will be the default option throughout government agencies. At an ODF workshop earlier this year the “Southern Coalition” (including Brazil, Cuba, Ecuador, Paraguay, South Africa and Venezuela) passed a joint statement that criticises the rejection of appeals of their countries with regard to the International Standards Organisation standardisation process on Microsoft’s OOXML, a standard overlapping with ODF, according to critics. The ISO acceptance of OOXML standardisation spurred a debate about possible reforms of the standardisation process.

WTO Agreement on Trade in Public Goods?

Movement with regard to a positive agenda on norm-setting in multilateral organisation such as the World Intellectual Property Organization (WIPO) and the World Health Organization was reported by Thiru Balasubramaniam of Knowledge Ecology International at the global public good session, pointing to the development agenda at WIPO and the steps taken by the WHO “Intergovernmental Working Group on Public Health, Innovation and Intellectual Property”. There was a rethinking of patents and standards in the WIPO Standing Committee on Patent Law that previously had focussed primarily on pushing for harmonisation in substantive patent law.

The next step on the road for collective action to address what he called the chronic under-supply of knowledge as a public good is to request the World Trade Organization to consider the creation of a new agreement on public goods, modelled after the WTO Agreement on Trade in Services. “We think that that this is the right place to deal with that issue of the global public good,” Balasubramaniam said.

A WIPO workshop focused on rights management technology to which WIPO is seeking to draw attention. While technical protection measures are somewhat “out,” rights management is necessary, for example to allow collecting societies to correctly channel remuneration to millions of authors and rights holders, said panel speakers. “This is about content and finding content, not about copyright,” said Carolyn Morgan of Copyright Agency Limited in Australia.

Even people who do not want to benefit from the copyright system or want to use Creative Commons licences need this kind of system, she said. “It also allows users access to public domain content,” said Richard Owen, director of the WIPO Copyright E-Commerce Technology and Management Division.

Alternatives to technical protection measures are being considered. Rights management systems allow metatagging copyright information to a file about allowed use and about billing information. Morgan and Nic Garnett, ex-manager of the Recording Industry Association of America and CEO of Interright, presented various technical systems for metatags and various methods for linking them to files. Metadata systems were for example the ISO International Standard Text Code (ISTC) or Online Information eXchange (ONIX), said Morgan.

Australian publishers for example, invested a lot of money in introducing ONIX. For identifying rights owners there are the Interested Party Identifier (IPI) and the International Standards Name Identifier (ISNI). To link data to the files, embedding or watermarking technologies are available, reported Morgan. But watermarking also would allow blocking unauthorised use like technical protection measures.

Another standard is the Automated Content Access Protocol (ACAP) that intends to give information to search engine providers about access preference by the rights owners. ACAP, a joint venture between World Association of Newspapers (WAN), the European Publishers Council (EPC), the International Publishers Association (IPA) and the European Newspapers Association (ENPA) so far has not been implemented by major search engine providers like Google or Yahoo.

Katz agreed on the goal of easy accessibility to content for users. But he pointed to the need for anonymous access and the respect for limitations on copyright.

“There are all sorts of uses where you do not have to pay or which are permissible and paid for in a collective way,” reminded Katz. And while there is a market failure creating a need for good public servants’ help in the creation of metadata systems, “we need a public voice and the users’ side to be represented.”

Intersessional Activities of Dynamic Coalitions

Three new dynamic coalitions have been started since Rio: online collaboration, internet and climate change, and accessibility and disability. The latter two were initiated by the UN International Telecommunication Union (ITU), which oversees the WSIS process.

The additional coalitions brought the number of IGF dynamic coalitions to 13 plus the Stop Spam Alliance, and two new dynamic coalitions were announced during the meeting in Hyderabad: on the “internet of things” and on national and regional IGFs. While the new coalitions were welcomed by many there were also reports that existing coalitions were not as “dynamic” between the sessions as initiators had planned them to be.

The Italian government, one of the strong backers of the Dynamic Coalition of the Internet Bill of Rights, invited all coalitions to an intersessional meeting in spring 2009 to prepare for the Egypt meeting where several of the coalitions would like to take on “rights and principles for the internet” as a major topic.

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

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