IP Justice Submission to the United Nations Internet Governance Forum (IGF) continued..

Encourage Free and Open Source Software (FOSS) Development
The Internet is largely run on free and open source software. A number of governments and businesses are switching the operating systems used to run computers from proprietary to non-proprietary systems (such as GNU Linux). The proliferation of Free and Open Source Software (FOSS) applications have revolutionized the Internet. FOSS has also empowered individuals by giving them the ability to write software that is customizable to their own individual needs.

Governments also switch to free software in order to reduce their own dependency on large software companies. Encouraging a diversity of computer platforms, so that innovation does not depend upon a single vendor, benefits everyone in the Internet community. Like any environment, the Internet flourishes best when there is a diversity of providers of core infrastructure. But existing intellectual property rules are often designed around one specific business model, such as copyright's "pay per copy" model that disadvantage FOSS models.

Because FOSS applications are open, they are transparent and can be read by all. This increases the security of those systems because there cannot be any "hidden code" to compromise personal privacy or computer security. "Spyware" is a growing problem for Internet users and FOSS tools can help to prevent against such attacks due to their transparency. Any discussion regarding network security would not be complete without mentioning the enhanced security features FOSS applications provide.

Paragraphs 49 and 53 of the WSIS Tunis Agenda support the development of software from a variety of sources including open source, free, and proprietary providers. And Paragraph 29 of the WSIS Tunis Commitment recognized the need to encourage and foster collaborative development, interoperable platforms and free and open source software development. Paragraph 27 of the WSIS Geneva Declaration noted that "access to knowledge can be promoted by different software models, including proprietary, open source and free software in order to increase competition, access by users, diversity of choice, and enable all users to develop solutions which best meet their needs."

Flexible license schemes such as Creative Commons (CC) use the Internet and copyright law to encourage access to knowledge and the free flow of information. For example, many artists release their music under Creative Commons licenses that allow for the non-commercial sharing of their music via the Internet. IGF could showcase a number of FOSS or CC projects that have benefited local communities by enabling access to information on the Internet for little cost. To promote a healthy global information society, IGF should help ensure that alternative business models and non-proprietary systems of development remain lawful.

2. Grow the Online Information Commons: Recognize Internet as Valuable Tool for Access to Knowledge

For the Internet to reach its full potential as a tool for universal education and access to knowledge, core impressions regarding the value of the public domain should be re-evaluated. An IGF meeting focused on creating "an Internet for Development" provides an ideal forum for the examination of the Internet as a tool for growing the information commons.

Paragraph 90(k) of the WSIS Tunis Agenda noted the need for universal access to information, culture and knowledge for all people, and Paragraph 42 maintains a firm "commitment to the dissemination of knowledge" via the Internet. Paragraphs 9-10 of the WSIS Tunis Commitment further recognizes that access to information and sharing and the creation of knowledge contributes significantly to strengthening economic, social and cultural development by removing barriers to universal, ubiquitous, and equitable access to information. It also calls for improving access to information and communication and knowledge.

Protect and Value Public Domain
One of the most exciting things about the Internet is its ability to catalogue and provide access to a vast amount of shared human knowledge, most notably - the public domain.

Creative works are given the initial incentive of an exclusive monopoly right on the condition that the works pass into the public domain at the end of the term of the copyright or patent. The Internet is place where all such public domain information can reside and be freely usable by anyone without fees or restrictions. The public domain is a valuable resource that all share together, and from which education heavily draws. Proper recognition for the value of the public domain in enriching society would be an important step in an information age.

Paragraphs 25-26 of the Geneva Declaration re-affirms that a rich public domain is essential for the healthy growth of an information society, and Paragraph 42 recognizes the need for balance between creating intellectual property rights as an incentive and the benefits of wide dissemination, diffusion, and sharing of knowledge.

The increase in scope and duration of information "protected" by intellectual property rights presents another grave threat to freedom of expression and the hope of building an online global information commons. Copyright terms are mindlessly extended in national laws and international treaties without any attempt to evaluate the social or economic costs of those extended monopolies. Countless historical movies, books, plays, poetry, sound recordings, and other information may not be lawfully accessible on the Internet because of copyright term extensions.

The increased use of technological restrictions to control the use of digital information also threatens the public domain and the Internet as a tool for universal education. Copyright holders who encode music or video in Digital Rights Management (DRM) technology, provide no mechanism to unlock those works so they may pass into the public domain when the term of exclusive ownership expires. The music or video remains locked up forever because it is illegal to bypass those digital locks -- even when the work belongs in the public domain.

Paragraph 93 of the WSIS Tunis Agenda states:

"We seek to digitize our historical data and cultural heritage for the benefit of future generations. We encourage effective information management policies in the public and private sectors, including the use of standards-based digital archiving and innovative solutions to overcome technological obsolescence, as a means to ensure the long-term preservation of, and continued access to, information."

The Internet revives the hope of the ancient Library of Alexandria - if managed properly it will create a global public resource for universal education. But if managed for the benefit of politically connected industries or out-dated business models, we will lose this opportunity to build a strong and robust public domain of shared knowledge.

Forward-thinking companies such as the British Broadcasting Corporation (BBC) have begun to make recordings and other valuable information available for free to citizens via the Internet. Technology-savvy librarians at the Internet Archive have been posting public domain books, recordings, and images on the Internet for public download for years. Project Guttenberg makes public domain films and other video available for free over the Internet as part of its cultural archiving mission.

Without a shared recognition that the public domain enriches everyone and creates value for society, information policy cannot evolve to address the opportunities cyberspace presents. The Internet Governance Forum should address the status of the public domain as it explores how the Internet can be maximized as tool for access to knowledge and an "Internet for Development".

Database Rights Restrict Free Flow of Information on Internet
Another threat to the development of the Internet as a tool for growing the information commons is the creation of new "database rights". Database rights give companies the right to the exclusive control and ownership of facts, scientific data, and other information that they collect or compile. Database rights are separate from and in addition to traditional copyrights.

Although the US Supreme Court has rejected database rights as unconstitutional, the European Union Database Directive of 1996 created an entirely new set of database rights that control the flow of information on the Internet and impede access to knowledge. Weather data, sports scores, comparative prices, news, and scientific information can now be restricted in its online distribution with the creation of the new database rights.

If database rights continue to grow, they will bring the free flow of ideas to a screeching halt on the information superhighway. If facts can be owned simply by compiling them, online educational resources will be severely restricted. A discussion at the IGF on the significant barriers to accessing knowledge should include further dialogue on the impact of database rights on the Internet.

Provide Online Access to Publicly Funded Research
Governments and other multi-stakeholders should work together to enable online public access to scientific information that is acquired at public expense. Unfortunately, the trend is for the public to pay for the research directly the first time via taxes, and then to pay again to access the data after the information has been commercialized. Much scientific research is conducted at public expense and then auctioned off for commercialization of the research results. The Internet provides a powerful tool to give the public immediate and direct access to the fruits of scientific research results. Providing online access to publicly funded research data also increases its overall value for society (i.e. tax payers) by allowing as much re-use of data as possible.

A growing consumer response has emerged from the increasing privatization of research conducted with public resources. In May 2006, a bill was introduced in the US Senate that would require US government agencies that fund over $100 million in annual external research to make electronic manuscripts of peer-reviewed journal articles that stem from that research publicly available on the Internet. The Federal Research Public Access Act of 2006 has already been endorsed by thousands of individuals and institutions as an important step towards creating a global information commons3.

Recognize Social Value of Peer-to-Peer (P2P) Software
Peer-to-Peer (P2P) software (or file-sharing software) allows Internet users to connect directly together without any intermediary to moderate or restrict the data exchange. File-sharing on the Internet remains one of the Internet's most popular activities as music fans discover new artists or experience rare recordings and never heard before performances of their favorite bands. A new community of musicians use P2P file-sharing software to advertise themselves to the general public by authorizing the non-commercial sharing of their music over the Internet.

UK indie band the Arctic Monkeys attributes its success to making Internet recordings freely available via its website and permitting P2P file-sharing of its music. The first album released by the Artic Monkeys made rock history by becoming the fastest selling debut album in UK chart history in early 2006. The 1970's singer-songwriter Janis Ian publicly stated the value of making her recordings available for download via the Internet since she could not get traditional radio play. Rock legend the Grateful Dead also continues its tradition of permitting the free and open sharing of the band's music over the Internet.

But music swapping is only one possible legitimate use for file-sharing. Public domain information and other data for which it is lawful to share are also regularly traded on file-sharing systems. Law makers often fail to take this into account when setting policy regarding P2P file-sharing. Often times, infringement is presumed and software makers or providers can be held strictly liable for the infringing activity of others who use the software. There is also growing pressure to criminalize the use of P2P software in international and bi-lateral trade agreements. The increased criminalization of the software has dried up investment funding in an otherwise very important tool for the direct exchange of information. Without investment and funding, P2P software developers must find work in other areas and innovation in information sharing tools is stymied. Because of its direct, person-to-person connection, P2P enables a true free flow of information, and its value should be recognized and promoted as such.

Technologies like P2P software breathe life into the often repeated words of Thomas Jefferson, author of the US Declaration of Independence: "He who receives ideas from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me." The unique ability for individuals to connect directly together and share information without oversight is a key attribute of the old Internet architecture that must be preserved for future freedom and innovation. The IGF should discuss the benefits of P2P file-sharing and its role in providing access to knowledge and promoting free expression.

3. Build Respect for Civil Liberties into IPR Laws and Procedures Addressing Online Behavior

Laws and policies that deal with infringement of intellectual property on the Internet must respect other traditional civil liberties, such as privacy rights and due process rights. The connection between freedom of expression, the right to be anonymous online, rights over personal data, and legal due process in dealing with Internet activity cannot be over looked. For freedom and openness to be encoded into the future Internet, both the laws and the technical structures of the Internet must be embedded with civil liberties values.

ICANN's Whois Policy Must Conform with Privacy Law
Paragraph 46 of the Tunis Agenda states in part:

"We call upon all stakeholders to ensure respect for privacy and the protection of personal information and data, whether via adoption of legislation, the implementation of collaborative frameworks, best practices and self-regulatory and technological measures by business and users."

One of the great tragedy's of Internet governance policy-making has been the inability of ICANN to enact a policy for dealing with domain name registrant's personal information that does not violate national and international privacy laws. ICANN's "whois" policy currently requires the open publication of Internet users' personal information including home address and telephone number in an online database.

ICANN's whois policy has been widely criticized for violating a number of national and international privacy laws that deal with the handling of personal data on the Internet. EU Privacy Commissioners and other privacy advocates have repeatedly spoken out against the whois policy for violating EU data protection laws. Privacy experts have explained that whois also violates the privacy guarantees found in Article 12 of the Universal Declaration of Human Rights. The whois policy also conflicts with Canadian and Australian privacy law protections. The US Federal Trade Commission has reported that data theft is the number one crime in the US and online databases (such as the whois database) significantly contribute to the theft and abuse of personal information on the Internet. In addition to Paragraph 46 of the Tunis Agenda, Paragraph 58 of the WSIS Geneva Declaration also recognized the need to protect privacy and personal data on the Internet.

Institutions that set Internet governance policies should consider and comply with the international and national privacy laws that deal with the online publication of personal data. ICANN's whois policy must be reformed for ICANN to have credibility as a responsible care-taker of the Internet in its technical and policy making duties.

ICANN's over-reaching whois policy is largely a result of the pressure of intellectual property rights lobbyists to encode into ICANN policy a means of instantly obtaining personal information about any domain name registrant. The whois policy also points to a direct failure in existing Internet governance structures to promote a global public interest. Since its inception, ICANN has been criticized for favoring the rights of IP holders over the freedom of expression or privacy rights of Internet users. By promoting certain narrow interests against the general public good, ICANN has encouraged a backlash by the greater Internet community.

IGF can begin to implement Paragraph 46 of the Tunis Agenda and its support for privacy and personal data by providing a forum in Athens for a long over-due discussion on reforming ICANN's whois privacy policy.

US DMCA "Notice and Take-Down" Provisions Should Comply with Due Process
Web sites can and have been censored in a variety of ways. For Web sites hosted in the United States, one of the easiest methods is for someone to send a "take-down notice" to the website's Internet Service Provider (ISP), as provided in Section 512(h) of the Digital Millennium Copyright Act (DMCA). This provision provides a safe-harbor from copyright liability for ISPs that "expeditiously" comply with notices complaining of copyright infringement. Once notice is given to the ISP, the ISP is required to expeditiously remove the material, and is not required to notify the user who made the information available until after the material has been removed.

These DMCA take-down notices have become notorious tools of abuse for IP rights holders to prevent freedom of expression on the Internet. One study of 876 website take-down notices found that at least a third of the notices contained at least one major flaw which posed significant questions about the claim's enforceability in a court of law and/or invited serious concerns about the fairness of the process4. Another study found that almost half of the take-down notices received in 2004 either threatened to chill expression that probably did not violate IP laws or targeted material that was possibly fair use or First Amendment protected5. The research revealed that 65% of online information was totally or partially removed in the face of weak copyright or trademark claims, and 41% of the material in the "strong fair use" category was removed.

Conclusion: IGF Should Address Relationship Between Intellectual Property Rights, Free Expression, and Access to Knowledge

Undoubtedly the laws and technologies addressing intellectual property rights can become imbalanced in some cases harm the growth and development of Internet. An examination of the proper balance for intellectual property rights in cyberspace is necessary at IGF, particularly since excessive IPRs create a significant barrier to accessing knowledge and the free flow of information on the Internet.

Internet law and policy makers can no longer turn a blind eye to the social costs of increasing IPRs in cyberspace. Rules intended to serve as an "engine of free expression" and increase access to knowledge in an industrial world can inhibit the dissemination of knowledge and squelch freedom of expression in an information age. Zealotry to crack down on online IPR infringements often sweeps individual privacy and due process other traditional civil liberties under the rug.

IGF can help to provide a forum that celebrates the value of the public domain and examines how best to use it to provide universal access to education. IGF can recognize the need to encode civil liberties values into the network architecture, laws and policies dealing with the Internet. IGF can facilitate a dialogue among all stake-holders about the need to achieve a proper balance between intellectual property rights and freedom of expression rights in cyberspace.

* IP Justice is an international civil liberties organization that promotes balanced intellectual property law in a digital world. IP Justice is a non-profit public charity based in San Francisco and maintains a website at http://www.ipjustice.org.

1 WSIS CS HR Caucus Priority Issues for IGF Discussions:
3. Access to Education, Culture and Knowledge and Technical Standards Definition In a similar way as access to infrastructure, access to education, culture and knowledge, which is a universally recognized fundamental right, translates into many requirements in terms of public policy in various sectors, at the national and international levels. Though far from being the exclusive mean of access to education, culture and knowledge, the Internet is a major chance for its realization.

However, this opportunity may be squandered if artificial, avoidable barriers are added to education efforts and to the legitimate circulation of culture and knowledge. Such a risk may arise from an extensive copyright regime, especially when its implementation through technical standards makes it the de facto exclusive regime, making it difficult even for international agreements, like the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, to fully apply. It is thus a mandatory issue of Internet governance to ensure that technical standards for Internet infrastructure, hardware and software are developed and implemented in a way that does not prevent access to education, culture and knowledge, as well as the effective implementation of international binding instruments providing for their full realization through public policies.

Issues to be discussed by the IGF in this framework relate to how current copyright legislation, market dominance and digital rights management (DRM) technologies prevent rights to education, culture and knowledge. In particular, the IGF should discuss and assess whether technical standards for Internet infrastructure, hardware and software, allow for the legitimate exercise of fair use for non commercial purposes, the contribution to and enjoyment of an extended public domain of knowledge, and the promotion and sustainability of the production and use of free and open source software and content.

The Geneva Plan of Action has devoted a whole section to access to information and knowledge. This has been reaffirmed in paragraphs 10, 11 and 29 of the Tunis Commitment and in paragraph 90(k) of the Tunis Agenda. Finally, as technical standards are part of Internet critical resources, paragraph 72(j) of the Tunis Agenda makes this issue part of the IGF mandate.

Internet Governance Forum Substantive Agenda Setting from WSIS Civil Society Human Rights Caucus Contribution - March 31, 2006

2 See Open Document Format Alliance at http://www.odfalliance.org/

3 See Alliance for Tax Payer Access at http://www.taxpayeraccess.org.

4 Jennifer M. Urban & Laura Quilter, Symposium Review: Efficient Process Or "Chilling Effects"? Takedown Notices Under Section 512 Of The Digital Millennium Copyright Act, 22 Santa Clara Computer & High Tech. L.J. 621, 666 (May 2006).

5 Marjorie Heins & Tricia Beckles, Brennan Center for Justice, Will Fair Use Survive? (2005), available at http://fepproject.org/policyreports/WillFairUseSurvive.pdf p. 32.