Yesterday's WIPO General Assembly was the "worst ever," with rich and poor countries deadlocked over balanced copyright, fair use, and half a dozen other issues.
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Yesterday's WIPO General Assembly was the "worst ever," with rich and poor countries deadlocked over balanced copyright, fair use, and half a dozen other issues.
Read the rest
Read the rest
You may recall that the UN's World Intellectual Property Organization (WIPO) has been haunted by scandal: first there was the matter of illegally funding computer purchases for North Korea and Iran, then a whistleblower came forward to claim that WIPO Director General Francis Gurry illegally harvested DNA samples from staffers to find out who had sent anonymous letters alleging his sexual misconduct.
But it gets worse.
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In this International Labour Office complaint, Miranda Brown, a former employee of the World Intellectual Property Agency, alleges that WIPO Director General Francis Gurry illegally collected DNA samples from WIPO staffers in order to out a whistleblower. The complaint stems from Gurry's campaign to secure the Director General's job, during which an anonymous staffer posted letters alleging that Gurry engaged in sexual harassment and financial improprieties. Brown, who was forced to resign, says that Gurry secretly directed UN security officers to covertly collect lipstick, dental floss, and other personal items from WIPO staffers in order to attain DNA samples that could be used to identify the letters' author. Gurry is also implicated in a multi-million dollar construction scandal over the building of the new WIPO HQ, which took place when he was legal counsel to the agency.
The entire affair is incredibly sordid, with multiple cover-ups. The complaint paints a picture of a reign of absolute terror, with staffers fearful of reprisals from Gurry over any questioning or reporting of a pattern of bullying, impropriety, harassment and defamation. Having served as a delegate to WIPO, I find it all rather easy to believe. I have never encountered a body more openly corrupt in my life.
(Image: HL Dialogue No 3, ICT Innovations and Standards, a CC-BY image from itupictures)
The World Intellectual Property Organization's Treaty to Faciiitate Access to Published Works by Visually Impaired. Persons and Persons with Print Disabilities (the "Treaty for the Blind") has finally passed, after many years of hard work by copyright activists and activists for the rights of people with disabilities.
They were fought, tooth and nail, by the big copyright groups, who were shameless in their willingness to use people with disabilities as pawns in their ideological war on the idea that anyone should be able to do anything with a copyrighted work without explicit permission. The Motion Picture Association was especially terrible here -- a new low for an industry that has made a lobbying career out of plumbing the depths of depravity.
My congratulations to all the copyfighters who made this unprecedented treaty come to pass: the World Blind Union and Dan Pescod (especially!), Knowledge Ecology International, the Electronic Frontier Foundation -- all of you. As a former WIPO delegate, I can say that this is an unbelievable shift in the way that the UN makes copyright policy.
What's more, it was a (mostly) open process, in sharp contrast to the sinister closed-door process that the Obama administration has insisted upon for the Trans Pacific Partnership and other copyright treaties. Bravo to all of you for setting an example of how copyright policy can be crafted to uphold human rights.
To the shameless lobbyists at the MPA, remember: if you live long enough, the odds are good that you, yourself, will become print disabled. We are all only temporarily sighted. The treaty you tried to wreck was aimed at some of the most vulnerable, information-impoverished people in the world -- and someday, you will join them. For shame. When you see your old parents next, think of them, and what you tried to do to them, and the people of their generation, for the sake of a few extra pennies and some macho gamesmanship.
Jim Fruchterman, founder of the NGO Benetech, writes in frustration from the World Intellectual Property Organization in Geneva, where the US Trade Representative is scuttling a treaty that will help blind people and people with other disabilities access copyrighted works, largely by making the (actually rather good) US laws the standard around the world.
Rather than promoting the US approach -- which allows for the creation of works in accessible formats without permission -- the US Trade Rep and his friends from the MPAA are advocating for a treaty that is far more restrictive than US law, ensuring that the US itself could never sign it.
In the process, they're killing a badly needed project to help people with disabilities around the world help each other to access creative works in formats that are adapted for their use.
To give you an idea of the poison pills being advocated for by the MPAA, publishers, and now the U.S. trade delegation, I've outlined the most notable ones below:
1. Commercial Availability Requirements. This poison pill says that if a book is commercially available in an accessible format, it can't be provided by a library to a person with a disability. This is equivalent to walking into a public library and finding padlocks on all the books with a note that says: "If you want to read it, buy it." With a commercial availability requirement, libraries like Bookshare, with hundreds of thousands of accessible books available to people with print disabilities, would have to go through such complex bureaucracy that we couldn't afford to serve people outside the U.S. under a Treaty. The World Blind Union's lead negotiator pointed out how these provisions would, in practice, stop Bookshare from serving blind people in India.
2. The "Three-Step Test" Chokehold. The three-step test is part of international copyright law meant to allow countries to reflect their own values in their copyright exceptions. The United States' copyright exception for the blind is a shining example of something that complies with the three-step test. So what are the negotiators trying to do? They are working to alter the very meaning of the three-step test, changing the language of the test to the point of which it will put a chokehold on a country's ability to make broader exceptions to copyrights. Which leads to #3.
3. Conflicts with American Law. Simply put--the US won't sign it. Our trade delegation is now advocating for a Treaty that would require, if ratified, the U.S. Congress to gut our model copyright exception. Essentially, the Treaty would be too poisonous for the U.S. to swallow. It's clear to everyone that if we couldn't even get the Convention on the Rights of People with Disabilities, which was pretty much identical to our own Americans with Disabilities Act, ratified by the Senate, a poisoned Treaty for the Blind has no chance of ratification.
Some of America's worst copyright laws were passed through a profoundly undemocratic process called "policy laundering." This is what happens when an administration can't get Congress to pass a bad copyright law, so the US Trade Representative instead signs the US up to international treaties requiring America to pass the unpopular law. The 1998 Digital Millennium Copyright Act is one of the policy-laundered laws that has done enormous harm to the country.
Now the USTR is busy again, signing America up to treaties that undermine attempts by Congress to make phone unlocking and jailbreaking legal. America's official representative is going to other countries and telling them, "If you want to do business with America, you must ban jailbreaking and phone unlocking, and in return, we promise to keep those activities on the banned list, too."
In other words, America's trade reps are cramming a massively unpopular, harmful policy down the throats of its trading partners, while simultaneously locking America into the same policy, undermining Congress at the same time.
The Electronic Frontier Foundation wants you to take action on this. Maira Sutton and Parker Higgins have written a good article explaining policy laundering in depth.
U.S. wireless carriers claim that unlocking your phone to change carriers is illegal under Section 1201 of the DMCA, which prohibits the removal of digital rights management (DRM) technology. Section 1201 of the DMCA also set up a triennial rulemaking procedure, whereby the public can ask for exceptions to the rule that you cannot remove DRM from your devices. Phone unlocking was not approved in the last round of DMCA rulemaking, raising the specter of lawsuits against phone owners.
In light of public outrage over this, several members of Congress have introduced legislation to legalize phone unlocking. Already, opponents are saying that an effective narrow fix—a permanent phone-unlocking exemption from Section 1201—may violate the Korea-US trade agreement. Regardless of whether such a claim is true, such chatter can be enough to slow down the pace of change, and make any political reformers of the DMCA more cautious than they might otherwise be.
Big Content interest groups like the Motion Picture Association of America, Recording Industry Association of America, and International Federation of the Phonographic Industry—just to name a few—continue to have a strong influence on US trade negotiators. They are lobbying hard for our government to promote international policies to strengthen their control over how and when the public can interact and experience their creative products.
Earlier today, Ron Paul filed an international UDRP complaint against RonPaul.com and RonPaul.org with WIPO, a global governing body that is an agency of the United Nations. The complaint calls on the agency to expropriate the two domain names from his supporters without compensation and hand them over to Ron Paul.
On May 1st, 2008 we launched a grassroots website at RonPaul.com that became one of the most popular resources dedicated exclusively to Ron Paul and his ideas. Like thousands of fellow Ron Paul supporters, we put our lives on hold and invested 5 years of hard work into Ron Paul, RonPaul.com and Ron Paul 2012. Looking back, we are very happy with what we were able to achieve with unlimited enthusiasm and limited financial resources...
...At the same time we offered him RonPaul.org as a free gift so we could keep using RonPaul.com and he wouldn’t have to use something like RonPaulsHomePage.com.
Incredibly, Ron Paul’s lawyers are trying to use our FREE offer of RonPaul.org against us in an attempt to demonstrate “bad faith” on our part!
Of course, they also offered to sell him the .com domain and their mailing list for $250k.
The Electronic Frontier Foundation's Carolina Rossini is at the World Intellectual Property Organization in Geneva, where American-led copyright industry trade groups are prepared, once again, to sabotage a treaty guaranteeing access to blind people and people with other disabilities. At the forefront of stopping blind people from having access to reading is the Association of American Publishers. What a ghastly grotesquery.
Let’s Close the Deal on a Treaty for the Blind and Print Disabled
The blind should not be treated like second-tier citizens and considered as an afterthought. The protection of liberties online includes making sure that all people, regardless of ability, can participate in the digital world. As technology advances and more books move from hard-copy print to electronic formats, people with print disabilities deserve the opportunity to enjoy access to books on an equal basis with others. For this reason, EFF has supported a binding international instrument, a treaty, on this matter since the beginning of such discussions at WIPO.
In one of the corridor conversations at WIPO, the publishers’ lobbyists have said they do not want to give a “trophy” treaty for those that fight for access to knowledge. The concept that a treaty that would significantly help the blind participate in the literary world would be considered a “trophy” is offensive on the merits. The entertainment and publishing industry has already gotten many such trophy-treaties themselves: They got the WIPO Internet treaties, they got the Performers Treaty, and a couple of decades ago they got TRIPS. It’s time for them to stop kidding themselves and for us to square the deal and get some balance in copyright.
International non-governmental organizations with an interest in copyright and related issues have always been admitted to the United Nations's World Intellectual Property Organization (WIPO) as observers (I was once such an accredited observer, working on behalf of the Electronic Frontier Foundation). Historically, the NGO "observers" at WIPO were industry groups, such as the motion picture lobbyists from the MPA, the record industry lobbyists from IFPI, and so on. But starting in the middle of the last decade, public interest groups like Creative Commons and EFF started to attend these meetings, adding balance and an emphasis on human rights to the treaty-making debates.
Pirate Party International satisfies every one of the criteria used to evaluate NGOs for WIPO observer status. Nevertheless, WIPO's general assembly has postponed approval of PPI's application for status. According to a report by Knowledge Ecology International founder James Love, the assembly rejected the Pirates after pressure from Switzerland, the USA, France and other EU nations:
US, Switzerland [and] France raised objections in the informal consultations, and [...] some other European countries wanted to raise objections, but found it awkward given the recent success of domestic Pirate Parties in national elections. The USA said it asked for a hold on the decision until WIPO could decide if it wanted to accept political parties as WIPO observers. One delegate said European countries were concerned that the Pirate Parties would take “political action” back home when they disagreed with positions taken by the official delegates at the WIPO meetings”
The UN's World Intellectual Property Organization's Broadcasting Treaty is back. This is the treaty that EFF and its colleagues killed five years ago, but Big Content won't let it die. Under the treaty, broadcasters would have rights over the material they transmitted, separate from copyright, meaning that if you recorded something from TV, the Internet, cable or satellite, you'd need to get permission from the creator and the broadcaster to re-use it. And unlike copyright, the "broadcast right" doesn't expire, so even video that is in the public domain can't be used without permission from the broadcaster who contributed the immense creativity inherent in, you know, pressing the "play" button. Likewise, broadcast rights will have different fair use/fair dealing rules from copyright -- nations get to choose whether their broadcast rights will have any fair dealing at all. That means that even if you want to reuse video in a way that's protected by fair use (such as parody, quotation, commentary or education), the broadcast right version of fair use might prohibit it.
Worst of all: There's no evidence that this is needed. No serious scholarship of any kind has established that creating another layer of property-like rights will add one cent to any country's GDP. Indeed, given that this would make sites like Vimeo and YouTube legally impossible, it would certainly subtract a great deal from nations' GDP -- as well as stifling untold amounts of speech and creativity, by turning broadcasters into rent-seeking gatekeepers who get to charge tax on videos they didn't create and whose copyright they don't hold.
And since the broadcast right is separate from copyright, permissive copyright licenses like Creative Commons would not apply. That means that if you made a CC-licensed video -- as tens of millions of creators have -- that the web-host, the cablecaster, the satellite company or the broadcaster that made it available to the public could essentially strip off the license you provided and go back to an all-rights-reserved model, with them in the driver's seat.
Thanks, WIPO, for showing us once again what a corrupt, anti-creator, anti-free-speech, economically backwards waste of time and space you are.
During the last hours of the meeting, the WIPO Committee pursued discussions that led to the adoption of a single text titled “Working document for a treaty on the protection of broadcasting organizations” (which has not been published as of today)3. This working document will constitute the basis of further discussions to be undertaken in November in Geneva, which WIPO hopes will conclude with a consensus document to be signed as a treaty early 2013. If WIPO convenes this conference it is because members have reached a decision and a new treaty may be born.
This procedural detail is a really important one — despite there being no international consensus, WIPO is pushing for a treaty to be signed quickly. This is actually a cruel trend in other WIPO negotiations. In the past, it has seemed like the WIPO bureaucracy has pushed for a conclusion of treaties just because they have been in negotiation for a long period of time. For example, another long-running negotiation led to the adoption of a treaty about performance rights that was opposed by many.
We urge country Members to say no to the WIPO Broadcasting treaty—as they have said in the past. We continue to believe the preferable model for addressing these issues is the narrower signal-based approach in the Brussels Satellite Convention.
The World Intellectual Property Organization has been working on a treaty to protect the rights of disabled people with regard to copyright since 1985. Most of the world's rich countries and developing nations support this work. However, two key entities are stonewalling and holding up the treaty: the European Commission (despite strong support from the European Parliament); and the USA, whose trade negotiators are listening to big business lobby groups like the Association of American Publishers, who oppose any treaty that creates rights for information users instead of corporations.
The idea of the treaty is to harmonize the rights of disabled people in different countries. For example, in the USA, it's legal to make assistive editions of books -- audiobooks, ebooks, Braille and large type books -- without permission from the copyright holder. The same right exists in Canada. But Canadian groups like the Canadian National Institute for the Blind can't just import those assistive editions and offer them to their members -- they have to incur the substantial expense all over again. Some countries include people who have other disabilities (such as the inability to turn pages due to paralysis or arm injuries or other disabilities) in their disabled access laws. Some don't. Some don't have any such laws at all. It's a mess, and the cash-strapped, volunteer-run organizations that serve some of the most vulnerable people on Earth are unable to cooperate across borders to assist one another.
The USA's stonewalling has put the treaty into a kind of limbo. Most of us, if we live long enough, will be visually disabled to some extent. That means that most of us would someday benefit from a treaty that provides access to disabled people. And that means that we are all being held hostage by the US Trade Representative's sucking up to a few special interest lobbies.
What's up with the White House? To understand the position of the United States, listen to last week's interview with Alan Adler of the Association of American Publishers (here). What Adler is saying is that his membership opposes a treaty, not because of what the treaty would do in the context of persons with disabilities, but because it would set a precedent that a copyright treaty could focus on the rights of users rather than copyright owners, and that precedent can spread to other areas, where publishers have a real economic interest, such as the education and library markets. This is basically the Obama position for the past three years -- to push disabilities groups to accept some lesser non-binding recommendation, rather than a treaty.
Right now the United States delegate will only say that the issue is being reviewed within the government. The three major decision makers on this issue are Maria Pallante of the United States Copyright Office, Ambassador Ron Kirk who serves as head of USTR in the White House, and David Kappos at USPTO. Most people believe USTR has been a problem, and we are told that Pallante (who earlier supported PIPA/SOPA) has yet to support a treaty. David Kappos is the lead agency on this, and if he wanted a treaty, we would have an agreement at WIPO by Wednesday to recommend a diplomatic conference for to take place 2013.
In the United States Congress, there have been no hearings and little interest in the issue. Senator Harkin, who Chairs the Senate HELP Committee and has jurisdiction over disabilities issue wrote a strong letter in support of the treaty approach: http://keionline.org/node/1397. Senator Leahy chairs the Judiciary committee, which has jurisdiction over copyright law. Like Pallante, he supported PIPA/SOPA. When we meet with Senator Leahy's office, we were told he was opposed to a treaty -- because it would require the United States to amend its law, to permit the export of accessible copies of copyright works to blind people in other countries -- something now illegal under US law.
A trusted insider source writes, "A real blockbuster of bizarre at WIPO [ed: The World Intellectual Trade Organization, the UN body responsible for copyright and patent treaties]. It seems that [WIPO director general] Francis Gurry has personally approved payment for new computer equipment to go to North Korea to modernise their patent office, and that WIPO have tried to do it by going around the UN office in South Korea designed to ensure that UN sanctions are not broken. The only thing that stopped this transaction taking place was that the Bank of America was prevented from transferring WIPO's money to China. The bizarre bit is that WIPO is trying to argue that what they were doing is inherently legal because it is development assistance. Development assistance, in this case, designed to help a rogue state violate patent protection, is what it looks like. The US and a few other countries are objecting to this, for obvious reasons, but it seems to me this is an example of WIPO doing the opposite of what is in the interest of patent holders and really everyone else as well."
In that letter, also obtained by Fox News, Kateb declared that so far as WIPO staffers could tell, WIPO’s member states “had not been consulted and have no knowledge of this project. Thus, they were not given an opportunity to review or object to it.” The project, Kateb said, “was allegedly approved directly by the director general.”
Gurry denied at the meeting with diplomats that WIPO’s technology transfer violated any international sanctions efforts. He subsequently circulated to the attending ambassadors a WIPO legal memorandum -- written by the office of WIPO legal counsel Edward Kwakwa -- which claimed that the computer exports were “part of WIPO’s technical assistance program,” which “does not violate any U.N. Security Council sanctions.”
The memo acknowledged that payment for the computers had been blocked by U.S. sanctions laws “enacted in part to implement” the binding U.N. sanctions. But it also declared that “WIPO, as an international organization, is not bound by the U.S. national law in this matter” and was still looking for ways to pay for the shipment.
Over 100 NGOs have asked the UN's World Intellectual Property Organization to postpone a summit in South Africa on the grounds that notice of the meeting was not published, the agenda has been set without any transparency, and the speakers all favor a single, narrow view on copyright and patents.
In a letter to the WIPO director general Francis Gurry, more than 100 international NGOs expressed their concern over co-organising the summit in partnership with US, France and Japan which are known for advocating TRIPS plus agendas in developing countries in the interests of their own industries and priorities. For instance these countries are proponents of the Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral treaty that is widely criticized for its secret negotiating process and the detrimental impact on public interest issues such as access to medicines, freedom of expression over the internet and access to knowledge.
To make matters worse the Summit is being sponsored by the private sector in particular the International Chamber of Commerce (ICC), Business Action to Stop Counterfeiting and Piracy (BASCAP), Pfizer, Eli Lilly and Company etc., that clearly have a strong stake in a pro-IP protection and enforcement agenda. The involvement of the private sector also raises issues of conflict of interests.
Besides, the NGOs said, the summit lacks a development and public interest dimension. The summit concept paper suggests a programme that undermines the spirit of Development Agenda. It is premised on the notion that heightened IP protection and enforcement will deliver development and protect public interest. This distorted approach has no historical or empirical basis and has been clearly rejected by the Development Agenda process. Important development issues such as the different levels of development, the importance of flexibilities (e.g. LDC transition periods, exceptions and limitations e.g. parallel importation, compulsory licensing,) in meeting developmental objectives, examining and addressing the impact of IP on critical public interests issues such as access to affordable medicines, and access to knowledge, appear to be disregarded.