“Washington Declaration” Demands Return Of Public Interest In IP Rights

A new multi-stakeholder declaration demanding that the public interest be returned to intellectual property rights was issued this week and is open for signatures by anyone, already collecting hundreds of supporters. The declaration contains numerous principles and actions, such as restraint in enforcement, open access, and development priorities, that the drafters hope will help change the course of IP policymaking.

The Washington Declaration on Intellectual Property and the Public Interest, now available for signature, http://infojustice.org/washington-declaration, was negotiated in late August by non-governmental groups, academics and others. It details ways in which the global position of IP rights has shifted ceaselessly toward more protection through the push of developed countries, and seeks to temper it.

“The last 25 years have seen an unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders,” the declaration states. But despite the rise of civil society groups and developing country governments to “promote more balanced approaches to IP protection,” it says.

However, “neither the substantial risks of intellectual property maximalism, nor the benefits of more open approaches, are adequately understood by most policymakers or citizens,” it adds. “This must change if the notion of a public interest distinct from the dominant private interests is to be maintained.”

The declaration was drafted by some 180 experts from 85 countries – according to organisers – at the 25-27 August Global Congress on Intellectual Property and the Public Interest, held at the American University Washington College of Law in Washington, DC. It offers a range of recommended actions, aimed at issues such as limitations and exceptions to copyright, reining in IP enforcement, promotion of open access, and implementing development agendas.

The declaration augurs that the “next decade is likely to be determinative.” It says that the burden is on public interest advocates “to make a coordinated, evidence-based case for a critical re-examination of intellectual property maximalism at every level of government, and in every appropriate setting, as well as to pursue alternatives that may blunt the force of intellectual property expansionism.”

The declaration has two overarching points. First, that international IP policy affects a broad range of interests in society, not just rights holders, and therefore should be open and inclusive. This is the opposite of the sealed door secretive form of trade negotiating the US government has entered into in the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership, the latter of which is meeting this week in Chicago.

The second theme is that allocation of information goods cannot be guided by markets alone. The full range of human values may not be taken into account in IP systems in such cases.

The declaration has a number of sections, entitled: Putting intellectual property in its place, valuing openness and the public domain, strengthening limitations and exceptions, setting public interest priorities for patent reform, supporting cultural creativity, and requiring evidence-based policy making.

Among the many suggestions in it, several highlighted by the organisers include:

• the use of other legal doctrines, like human rights and consumer protection laws, to cabin intellectual property rights expansion,
• promotion of open access, open educational resources, open government and related open information policies;
• strengthening limitations and exceptions that are needed to promote creativity, innovation and other socially beneficial uses of information and its products
• setting public interest priorities in patent reform, including a more diverse structure of incentives for innovation;
• supporting cultural creativity through experimentation with new systems to reward and empower authors with, instead of in opposition to, new technologies for information diffusion;
• checking excesses in intellectual property enforcement with more safeguards, procedural fairness and proportionality in enforcement in our courts, at borders and on the internet;
• implementing development agendas, which take account of the economic, social and cultural development interests of all countries, throughout international intellectual property policy making; and
• requiring evidence, “rather than faith or ideology,” to be the core of all policy-making.

“The delegates to the Congress came together out of a conviction that the public interest is not being well served by the current period of intellectual property maximization that is dominating many international law making forums,” said Sean Flynn, associate director of the American University law school Program on Information Justice and Intellectual Property (PIJIP).

“Increasingly, the public is literally shut out of the forums where such laws are made,” Flynn told Intellectual Property Watch. “The resulting products are decidedly tilted toward the interests of intellectual property rights holders, through the means of constantly expanding and more rigorously enforced intellectual property laws.”

“These systems impose great costs on consumers and fundamental human rights – including rights to free expression, due process and fair trials, and access to social and economic entitlements like health and education,” he added. “We are here to begin the organisational work needed to chart a more positive agenda – one where the regulatory systems governing information and its products is informed by a fuller range of fundamental values and consideration of the public interest.”

The Global Congress was co-organized by American University Washington College of Law’s Program on Information Justice and Intellectual Property, Fundação Getulio Vargas Center for Technology and Society (Rio de Janeiro), the American Assembly at Columbia University (New York), and the International Centre for Trade and Sustainable Development (Geneva), with additional sponsorship from Google, the International Development Research Centre, Open Society Foundation, Institute for Global and International Studies at George Washington University, Seattle University School of Law, Institute for Information Law and the American University International Law Review.