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IP-Watch interns talk about their Geneva experience in summer 2013. 2:42.

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The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Criticism Of The 2012 ITRs Not Valid, Says Former Senior ITU Official

    Published on 11 June 2013 @ 3:14 pm

    By , Intellectual Property Watch

    The failure to reach agreement in Dubai in December 2012 at the International Telecommunication Union (ITU) World Conference on International Telecommunication (WCIT-12) resulted in a refusal to sign the treaty that was approved at the conference. Various reasons have been given to justify not signing the treaty (IPW, ITU/ICANN, 13 December 2012).

    A new article explaining the outcome was published today by a former senior ITU official, and made freely available by special arrangement for IP-Watch readers.

    Former senior ITU official Richard Hill, now an independent consultant, has published an article in the prestigious Oxford University International Journal of Law and Information Technology. Hill claims that criticism of the ITRs is not valid from a legal point of view, even if it may be valid for political or other reasons. Hill was formerly the secretary for the WCIT preparatory process and head of the WCIT secretariat team dealing with substantive issues.

    By special agreement with Oxford University Press, the full article is freely available online until 11 August.

    A summary of Hill’s article follows.

    The WCIT-12 was convened in December 2012 at the request of the ITU members in order to revise the International Telecommunication Regulations (ITRs), which had been agreed in 1988. It is seen as necessary to revise the ITRs in light of the significant changes structural and technological changes that have taken place since 1988, in particular privatisation, liberalisation, and the growth of mobile and IP-based networks.

    Unlike previous ITU conferences, the ITU membership failed to reach consensus, with the result that the treaty agreed at WCIT was not signed by all the states present and having the right to sign: 89 signed and 55 did not.

    Was WCIT-12 a failure or a success?

    According to Hill, the event was both a failure and a success.

    WCIT-12 was a failure in the sense that:

    • It did not achieve its desired goal, which was full consensus.
    • It resulted in a split amongst the membership, resulting in a vote, which is unusual in ITU.
    • Media coverage was partly inaccurate, influenced by a misinformation campaign.

    WCIT-12 was a success in the sense that:

    • There was active participation from all parts of the world.
    • There was broad agreement: 90% of the treaty is not controversial, 10% was agreed by 62% of Member States present and accredited to sign.
    • Key issues were identified and discussed.
    • It was agreed to continue discussions with a view to reaching consensus.

    Criticism of the 2012 ITRs

    It has been said that the WCIT outcomes establish a new international regulatory regime for the internet and give new powers to the ITU, Hill said. This new regime threatens the current multi-stakeholder model for internet governance which has been shown to be a worthwhile model, and it threatens economic growth and freedom of speech around the world.

    In particular: a provision in the Preamble of the ITRs creates new rights for states (which threaten established individual rights); new articles on security and spam invite governments to take content-based action which could result in regulation of speech on the internet; a new Resolution represents a direct extension of ITU’s role and scope into the internet and shifts the emphasis from community and consensus to centralization through government action.

    Analysis of the Criticism

    The criticism of the 2012 ITRs appears to be based on a superficial and out-of-context reading of the provisions in question, Hill argues. When analysed correctly from the legal point of view, he said, it can be seen that the new provision in the Preamble does not conflict with existing rights of individuals or of states; that the new provisions on security and spam cannot be understood to related to content; and that the new Resolution does not in any way expand ITU’s role and scope, while it does recognise the multi-stakeholder model agreed at WSIS.

    So, Hill said, it is incorrect to conclude that the WCIT outcomes establish a new international regulatory regime for the internet and give new powers to the ITU. Nor do they threaten the current multi-stakeholder model for internet governance or free speech.

    A refusal by some countries to implement the new ITRs could deprive their citizens of certain benefits (such as transparency of roaming prices, prevention of numbering misuse, transmission of calling party identification, improved accessibility for people with disabilities, and best practices regarding energy efficiency and e-waste), Hill said.

    Further, non-uniform implementation could create difficulties for companies operating worldwide, if different regulatory regimes emerge, he said.

    In the limit, refusal to implement the new ITRs might result in the development on non-harmonised national practices which might well lead to an undesired fragmentation of the internet, he said.

    Regarding criticism of specific provisions, Hill said:

    • The new provision in the Preamble does not create any additional rights or obligations, it merely recognises the rights and obligations that already existed under the Constitution.
    • New language in Article 1 regarding “authorised operating agencies” merely aligns the ITRs with the ITU Constitution (which has precedence over the ITRs) and thus does not extend the scope of the ITRs.
    • Article 5A on security and 5B on spam must be interpreted in light of Article 1, which defines the scope of the treaty and states that it does not address the content-related aspects of telecommunications. Since the ITRs do not address content, those cannot be seen to be addressing content. Thus, those articles are about measures that do not depend on content. There are many such security measures and many such measures to combat spam.
    • Articles 5A and 5B call for cooperation amongst ITU member states. Many countries have initiatives regarding security and spam. Presumably, it would be desirable for countries to cooperate to adopt “best practices” in these area, he said. That is, practices that clearly do not impinge on human rights and that respect due process. So it would appear that the call for cooperation is positive, because it should make it less likely that some country would (perhaps unwittingly) adopt inappropriate measures. The call for cooperation appears to make it more likely that security measures would follow the best-practices models that are generally agreed, he said.
    • Hill said the operative part of Resolution 3 invites ITU member states: to discuss internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums; and o engage with all their stakeholders in this regard. And it instructs the Secretary-General of ITU to continue to take the necessary steps for ITU to play an active and constructive role in the development of broadband and the multi-stakeholder model of the internet as expressed in § 35 of the Tunis Agenda; and to support the participation of member states and all other stakeholders, as appropriate, in the activities of ITU in this regard. The Resolution cannot (and does not) expand ITU’s role and scope, and it cannot (and does not) modify the WSIS outcomes. It does not shift the emphasis from the multi-stakeholder model towards top-down government action, on the contrary, it promotes multi-stakeholder consultations.

    Possible Ways Forward

    Hill summarises with some suggestions for ways forward. These include:

    • Most countries agree to be bound by the ITRs
    • Most countries do not agree to be bound by the ITRs
    • Most countries implement the ITRs in a non-controversial manner:
      • Recognise that Preamble does not prevent suspension of services or otherwise modify existing rights and obligations
      • Recognise that there is no extension of the covered entities or of the scope
      • Recognise that the security and spam provisions do not relate to content
      • Recognise that Resolution 3 does not change the mandate of the ITU

    Intellectual Property Watch may be reached at info@ip-watch.org.

     

    Comments

    1. Dr. Kishik PARK says:

      ITU TSAG Vice Chairman (1996-2004)
      ITU-T Study Group3 Chairman (2004-2012)
      ITU-T Review Committee Vice Chairman (2013- present)

    2. Plural » Governança da Internet na Era da Vigilância says:

      […] Richard Hill, ex-funcionário sênior da UIT, a conferência resultou em algumas conquistas: a participação […]

    3. Internet Governance in the Age of Surveillance | Berkeley Technology Law Journal says:

      […] of key issues, and a plan for continued discussions. According to a former ITU senior official Richard Hill, however, some provisions proved to be controversial, leading to a split in the membership and […]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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