By Ahmed Abdel Latif

The copyright system is hopelessly unsuited to the twenty-first century and needs major reform, says Lawrence Lessig. Speaking in Geneva in early November, the American scholar called for the creation of a ‘blue sky’ commission, led by the World Intellectual Property Organization (WIPO), to consider a new international copyright architecture for the digital age. “If and only if WIPO leads in this debate will we have a chance” at fixing the copyright system, he told a WIPO conference on access to culture.

Professor Lessig is right. His call for global copyright reform is welcome and timely. However, past WIPO led efforts in this area have rather been unsuccessful. New reform initiatives should draw lessons from previous attempts in order to increase their prospects for success.

Past changes to the international copyright system, as embodied in the Berne Convention for the Protection of Literary and Artistic Works (1886), have mostly resulted in the strengthening of copyright rules to the benefit of rights holders. All attempts to reform it to the benefit of users of copyrighted materials, such as consumers and developing countries, have either failed or been of limited effectiveness such as in the case of the Berne Appendix (1971) which contains special provisions for developing countries.

Why this dismal record? The answer is quite simple: for more than a hundred years, WIPO and its predecessors overseeing the Berne Convention were strongholds of intellectual property rights holders, such as authors and publishers, and their trade organisations. Even after becoming a United Nations agency in 1974, WIPO continued to promote a paradigm of intellectual property (IP) that tended to espouse the views of rights holders-based organisations in the developed world; a perspective even generally questioned by liberal economists all over and touted as perverse for innovation by the business academic world.

In 2004, developing countries launched the WIPO Development Agenda, an initiative aimed at promoting a public policy oriented and balanced view of IP in accordance with WIPO’s UN status.

At the time, many prominent civil society figures and academics, including Prof. Lessig, signed a ‘Declaration on the Future of WIPO’ supporting the initiative. The Declaration invited WIPO to take “a more balanced and realistic view of the social benefits and costs of intellectual property rights as a tool, but not the only tool, for supporting creative intellectual activity.” It emphasized that WIPO “must change.”

Did this ‘Change’ Occur?

In 2007, after three years of discussions, 45 recommendations were adopted by WIPO’s membership, reflecting, to a certain extent, many of the demands made by countries and civil society groups. Under a new director general, elected in 2008, WIPO has shown an openness to address many issues which were previously considered taboo. Indeed, Prof. Lessig’s presence at WIPO bears testimony to this.

Naturally, this openness should be welcomed and encouraged.

However, it might be still too premature to consider if the ‘change’ that was called for has effectively taken place. The implementation of the WIPO Development Agenda is still very much an ongoing process. In many cases, it remains to be translated into tangible and concrete changes in WIPO’s activities and more importantly in the prevailing institutional culture of the organisation. It should also be recalled that almost 90 percent of WIPO’s income comes from fees paid by rights holders to use WIPO’s global registration systems, particularly the Patent Cooperation Treaty (PCT).

Last April, leading developing countries at WIPO formed the WIPO Development Agenda Group (DAG), which called for implementing the Development Agenda recommendations in a way that “truly reflects their underlying vision and spirit.” The group also appealed for “an enduring pro-development cultural transformation within the WIPO Secretariat.”

An instructive example to consider, in this regard, relates to the information on the institution’s website about the WIPO Internet Treaties (1996), which were implemented in the United States through the Digital Millennium Copyright Act (DMCA). A brochure on the ‘advantages’ of treaty adherence [pdf] states that “adherence and implementation of the treaties offer a number of benefits for countries regardless of their stage of development (emphasis added).” This assertion seems at odds with both the letter and spirit of the WIPO Development Agenda, which fundamentally questions the validity of a ‘one-size fits all’ approach to global IP norm setting activities.

Another example comes from the “war on piracy,” which Prof. Lessig denounced as a failure that is criminalizing an entire generation.

However, Prof. Lessig forgot to mention that WIPO is fully engaged in the war against piracy. WIPO’s website advertises, on its home page, the Sixth Congress against Piracy and Counterfeiting (2nd -3rd February 2011), which WIPO is organizing along with Interpol, the World Customs Organization (WCO), the Business Action to Stop Counterfeiting and Piracy (BASCAP) and the International Trademarks Association (INTA). The first session has the chilling title of ‘Knowing the Enemy’. The question that is begged to be asked is whether WIPO’s ‘leading’ role in the war against piracy can be made fully compatible with its ‘lead’ role on in global copyright reform, particularly through ad hoc arrangements like the suggested ‘blue sky’ commission.

Finally, global copyright reform should not be confined to the digital environment. Developing countries’ grievances about global copyright rules extend well beyond the digital environment. In the past two years, developing countries have submitted to WIPO proposals for new treaties on limitations and exceptions for the visually impaired and for the disabled, educational and research institutions and libraries. Such proposals have been met with opposition by some developed countries and rights holders representatives who favour soft norms or technical solutions. More generally, developing countries view copyright reform through the lens of the broader ‘access to knowledge’ framework which is also an important component of the Development Agenda.

Global copyright reform is badly needed. It is ultimately up to WIPO member states to decide how to go about it. For the moment, hopes for ‘reform’ are embodied by the above mentioned proposals made by developing countries and they should be actively supported. Any future reform process of the global copyright system needs careful thinking and broad discussion about its objectives. Given that global copyright rules have acquired such a pervasive impact in many facets of our lives, their reform needs to take place through an open, inclusive and participatory consultation process where ‘all of us’ have a say.

Ahmed Abdel Latif is Programme Manager for Intellectual Property and Technology at the International Centre for Trade and Sustainable Development (ICTSD). Previously, as an Egyptian diplomat, he took an active part in global debates about IP and development particularly in the context of the WIPO Development Agenda. The views expressed in this article do not necessarily reflect the views of any institution with which he is affiliated.