At IGF, Glimpses Of Future IP Governance Overshadowed By Mass Surveillance

Away from traditional free trade agreement negotiations with secret chapters on stricter intellectual property protection, perceptions are slowly evolving about the need to make IP systems work better. One of 100+ sessions at the 8^th United Nations Internet Governance Forum (IGF) in Bali, Indonesia last week featured “intellectual property exchanges” as marketplaces for knowledge. But IP policy did not take centre stage and neither did other access topics in Bali, which instead was overshadowed by the recent revelations of mass surveillance by US intelligence services.

A the IGF, the 10-person US delegation faced stern warnings about lost trust. Brazil’s announcement to hold a summit on a new internet governance model in the end was cautiously welcomed by many.

The chief economist of the UK Intellectual Property Office, Tony Clayton, underlined the need for changes in the IP system, and said legislative reform is being prepared for 2014.

“The key principles of the UK reform are to use basic principles of copyright, but to make markets work in terms of creation and leaving room in the IP system for innovation and investment,” he said.

Unlocking Content

There are a number of problems acknowledged, he said, such as the lock-up of available works and difficulty of access to academic work. “There’s a big chunk of assets covered by copyright in ways that people don’t really understand,” Clayton acknowledged, also pointing to the problems of locking up knowledge from the academic sector.

“If you write an economic model, you have to sign over your copyright to the publisher who will get it for nothing and sells it back to you at a 40 percent mark-up on cost,” Clayton said. Universities also must pay for additional licences for electronic copying. “We think that is unreasonable that you should be able to text and data mine company content that you’ve bought in order to create new knowledge.”

The UK reform is also looking into copying exceptions, allowing for re-licensing, and “specific exceptions to copyright” that would provide fair-use type models to re-use content.

“The idea is to create our own principle in the EU framework, to create space within the European system for innovation, particularly by SMEs [small and medium enterprises] among new enterprises,” he said.

IP Exchanges

A growing trend that will enable better access to new ideas and push innovation is the establishment of IP exchanges. The UK recently opened an exchange for design rights, as Chicago opened a market for patent licences. “These markets are coming,” Clayton said.

Peter Leung said there are already four intellectual property exchanges in Hong Kong. The next step is to create international standards. Capital and ideas could be brought together, with intermediaries vetting the offers for trade secrets, copyright works, photos, sound tracks and designs.

One necessary brick seen for the future international IP trading system are innovations in the payment systems. The World Wide Web Consortium Payment Group is working on standards for virtual money systems. “There is a standard to send email. There is no standard to send money on the Web,” Manu Sporny from the W3C working group said. Credit cards and bank transfers are 1970s technology and do not scale on the Web, he said. Moreover, there is a problem with equality, as 2.5 billion adults do not have bank accounts.

Smart ideas built into the new Web payment, Sporny described, include automatic tax revenue collection. “Go to the website, click the ‘buy’ button, money flows and tax is automatically collected,” he said.

Persistence of International IP System

With such new ideas for innovating the copyright system welcomed by many at the IGF, politicians seem to have still a long way to go. So while the UKIPO chief economist explained the need for changes in copyright, UK Minister for Culture, Communication and Creative Industries Ed Vaizey picked “protection of copyright” as the top issue governments have to address in internet governance.

Vaizey did not mention copyright reform, nor address the reiterated warnings of the library community that they are unable to do their jobs properly – and give access to knowledge to the public and preserve national heritage – due to the lack reform. Stuart Hamilton, from the International Federation of Library Associations and Institutions (IFLA), said that outside of the World Intellectual Property Organization, talks  on limitations for libraries and education are currently “not in the  foreground.” [clarified]

Both in the US and the EU processes to consider change are underway, said Nick Ashton-Hart, Geneva representative for the Computer & Communications Industry Association.

“So changing that system at the international level will be impossible because those countries who are in the change process will be unwilling to change their international obligations until they’ve settled on something,” he observed.

Discussions about intellectual property in the context of the World Trade Organization Agreement on Trade-Related Intellectual Property Rights (TRIPS) are “really stuck,” and while there was a recent agenda item on innovation and IP cosponsored by the US and Brazil, harsh arguments are ongoing on access to medicine.

Export of Old Copyright Continues

While there seems to be at least some rethinking at the national level, export of the old regimes continues – via the free trade agreements. During the first main IGF session dealing solely with human rights, Claudio Ruiz, director at Derechos Digitales, warned that free trade agreements in Latin American countries have driven the internal agenda of copyright issues with a push coming from the US to stricter protection of IPRs.

Chile, Mexico and Peru are parties in the negotiations of the Trans-Pacific Partnership, a treaty being negotiated behind closed doors for which NGOs have to rely on leaked information about the specifics, Ruiz said. There is a disconnect between the internet freedom and the copyright agenda, he said. A country like Brazil, which has taken a lead role in the discussion on internet governance reform, is, according to Ruiz, “in the hall of shame” when it comes to its deficiencies in providing copyright limitations for libraries.

Another huge concern of NGOs is the baking of DRM into the next html standard which is currently under discussion at the W3C and the Internet Engineering Task Force (IETF).

Is there a remedy for the slow pace in copyright law innovation? Ashton-Hart recommended asking governments for priorities and value. New services like commercial streaming first could be offered in Scandinavian countries, he suggested, because of the more liberal rights for re-use based on an opt-out system with regard to rights holders. Policymakers must be pointed toward the respective developments, and real value in IP should be considered much more, he said.

While blocking on the internet in countries like India or the UK arises mainly from copyright reasons and not national security, the creative sector in fact is economically small.

“The whole revenue of record labels is less than the amount made in one quarter by many single internet companies,” Ashton-Hart said.

US Officials Forced to Address Surveillance, Lost Trust, and Hypocrisy

The revelations of Edward Snowden on mass surveillance of internet communications by US intelligence services came up in countless sessions, and were the real main topic of the 8^th IGF.

During one main session dedicated to mass surveillance, US officials had to take on a long list of critical questions just after new revelations about the spying on the phones of heads of states – including allies as close as France and Germany – hit the press elsewhere.

“The whole thing is an earthquake in our relations,” Jimmy Schulz, former member of the German Parliament for the Liberal Party, told US officials during the session. He requested full disclosure and a stop to mass surveillance programs.

Johan Hallenborg from the Swedish Foreign Ministry rejected the rationale for surveillance as a balancing between state security and human rights.

“It is important to remember,” Hallenborg said, “that there is no tradeoff between human rights and security. It is not about balancing. It is about securing the respect for human rights, but doing it in a way that is secure.” The Swedish diplomat welcomed the “necessary and proportionate” declaration by non-commercial organisations.

Joana Varon from the Brazil’s Fundação Getulio Vargas, one of the 280 signatories of the declaration, welcomed the announcements by the US to reform their intelligence practices and requested the US should address the concerns expressed in the declaration. Varon called it “a bit hypocritical as all this surveillance was performed by countries that used to pose themselves as defenders for an open and free internet.”

Many participants called on the US to come clean on the allegations and allow for much more transparency in order to regain lost trust. Ashton-Hart said: “Without trust, people simply will use services less. They will say less. They will fear more.” Without legal obligations for countries that ban spying on others, users could be a target of an almost unlimited amount of surveillance by all countries, except their home countries.

Some do not want to wait for governments to allow for the exercise of the fundamental rights to privacy and proposed more encryption and additional technical securing of communication.

“We need to get serious about looking at the technical side of metadata encryption,” said Norbert Bollow, of the Swiss Internet User Group. Metadata encryption is more difficult, Bollow said, as it requires rethinking the architecture. He recommended a new IGF dynamic coalition on metadata privacy protection.

Brainstorming on how to address pervasive surveillance is ongoing at the Internet Engineering Task Force (IETF) which will have their own panels on the issue this week in Vancouver and discuss how to “take back the internet,” as some engineers have described the effort.

Review of Surveillance Programmes

Confronted with the requests, US representatives during the IGF continued to underline that the United States will take all concerns “very seriously.” Scott Busby, acting deputy assistant secretary, Bureau of Democracy, Human Rights and Labor, US Department of State, answered questions about the potential undermining of democratic oversight by the intelligence services. He said that the NSA programs “are subject to judicial review, they are subject to legislative review and the NSA finally is subject to the command and control of our Commander in Chief, namely, the President of the United States.”

The US, Busby said, is not interested in spying on ordinary people and that intelligence gathering, done by all states, is above all for the protection of the people in the US and allied states. Busby at the same time warned that some of the US status as internet governance super power should be saved, as some governments seek to take advantage of the debate to turn attention away from their human rights violations.

“The acts of these governments include, for example, arresting opponents for what they say or intimidating them into silence and stealing intellectual property for the benefit of their economies,” he said.

Next Stop Brazil

Where to go from the IGF in Bali? An obvious one is to meet in Brazil next spring, a US official a little reluctantly acknowledged, referring to the Internet Governance Summit announced by the Brazilian government and supported by the Internet Corporation for Assigned Names and Numbers (ICANN).

Brazilian Ambassador Benedicto Fonseca Filho objected to the suggestion that his government might be “diverting the discussion.” Brazil also is not ignoring the possibility that this discussion could serve purposes that are not Brazil’s, yet considers that the situation cannot just be ignored, he said.

Fonseca tried to calm concerns over the label “summit,” which had resulted in civil society preparing a letter reiterating the call that all stakeholders should be included. A clear agenda for the summit still is to be developed and civil society has worries about what some described as a “power grab” by the more closely knit and relatively well-funded technical community including ICANN and the regional internet registries.

ICANN President Fadi Chehade said the Brazil conference will address the age-old question of how to globally address internet governance in the broader sense to avoid potential intergovernmental answers that might be proposed by some countries at another venue, for example, at next year’s UN International Telecommunication Union (ITU) Plenipotentiary Conference.

Asked during a domain conference in Munich today if the IGF could become the internet governance body, Chehade said, the forum has to improve and get stable funding. “It cannot stay as it is and take more responsibility,” he said.

ICANN has rushed to agree with Brazil and India on the preference of multi-stakeholder over multilateral, and has also reached out to the designated chair of the ITU Plenipotentiary in Korea.

While ICANN is looking for legitimacy, Anriette Esterhuysen, executive director of the Association for Progressive Communication, said Brazil and ICANN are still speaking different languages.

The roles of governments vìs a vìs the other stakeholders is an unresolved topic, despite the newly married ideas of “multistakeholderism” and “enhanced cooperation” to “enhanced multistakeholder cooperation.”

Given the failure of governments, not only the US, with regard to mass surveillance and the clarification of the facts brought to light by Edward Snowden, other stakeholders might have a point in pushing for “equal footing.” Yet stakeholders so far appear to have no consensus, even among themselves.

One wonders, will Snowden be around for the next IGF in Istanbul next year? One might wish he would to keep the discussion moving further and not allow “stakeholders” to go back to business as usual.