Realizing the Internet's Promise of Universal Access to Knowledge and Development

IP Justice Submission to UN Internet Governance Forum (IGF)

A Case for Balance in Intellectual Property Rights Policies that Address Online Behavior:  Principles to Preserve an Open and Free Internet

By Robin D. Gross, IP Justice Executive Director
August 2006

SUMMARY

Internet's open and free nature are key to accessing knowledge and development

Internet Governance Policies and Intellectual Property Rights

Recommendations for an Internet Governance Forum Discussion to Promote the Internet as a Tool for Access to Knowledge and Development:

1. Preserve Openness of Internet and Free Flow of Information:
Build Freedom of Expression Values into Laws & Architectures

* Critical Online Speech Censored by Copyright and Trademark
* "Digital Locks" Control Flow of Information and Threaten Interoperability
* Preserve Interoperability with Open and Free Technical Standards
* Governments Adopt Open Document Formats
* Encourage Free and Open Source Software (FOSS) Development

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

* Protect and Value Public Domain
* Database Rights Restrict Free Flow of Information on Internet
* Provide Online Access to Publicly Funded Research
* Recognize Social Value of Peer-to-Peer (P2P) Software

3. Build Respect for Civil Liberties into IPR Laws and Procedures Addressing Online Behavior
* ICANN's Whois Policy Must Conform with Privacy Laws
* US DMCA "Notice and Take-Down" Provisions Should Comply with Due Process

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



"Realizing the Internet's Promise of Universal Access to Knowledge and Development"

By IP Justice Executive Director Robin D. Gross*

A Case for Balance in IPR Policies that Address Online Behavior:
Principles to Preserve an Open and Free Internet

It is undeniable that Internet is among the most important tools ever created for facilitating mass access to knowledge and encouraging development among the world's poor.  The dream of low cost universal education can begin to become a reality thanks to this revolutionary invention that sends and receives tiny bits of data and thereby transforms human life.

Freedom of expression and the free flow of information have flourished in recent years, in large part due to the Internet and its ability to connect people and ideas in an instant.  Because more people enter cyberspace everyday to share their vision with the world, knowledge is growing at a faster rate than ever before.  The Internet is transforming into a great catalogue in cyberspace for accessing and storing shared human knowledge.  By connecting people with new ideas, the Internet ushers in the Information Age, where knowledge is power and connections are key.  By denying access to knowledge, one essentially blocks access to power and self-determination.

The Internet was originally designed primarily for communication and educational purposes.  Because of its early uses, certain values were built into the architecture, or computer code that runs the networks that have over time become crucial to the success of the infrastructure.  The ability to communicate without intermediaries and to self-educate without oversight are two qualities about the Internet that were early design choices which have contributed to its importance as a global resource for knowledge and communication.

We can bridge the gap in the digital divide by continuing to design the Internet with this end in mind, and make technical code and public policy choices that encourage the development of the Internet as a tool of free expression and access to knowledge.  If we choose anything other than an "Internet for Development", we build a Net that serves to widen the gap between those with a wealth of information at their fingertips and those starved for knowledge.

Internet's open and free nature are key to accessing knowledge and development

It is precisely the free and open nature of the Internet that has led to a robust free flow of information and the enormous increase in shared global knowledge in recent years.

Internet pioneer Mitch Kapor first explained that "architecture is policy" meaning technology design choices inevitably make and enforce policy decisions.  For example, when Digital Rights Management (DRM) technology providers build DRM technologies that disable lawful private copying rights, an architectural design choice has been made to limit individual freedom.

Certain core Internet values, such as the Net's distributed power nature, whereby control is placed at the ends, or in the hands of users, rather than at a centralized point, is a key architectural feature of the Internet that has ensured that freedom of expression and the free flow of information have flourished in cyberspace.  As John Gilmore, an early architect of the Internet succinctly put it in 1993, "the Net treats censorship as damage and routes around it."

Because the Internet was designed for efficiency and not control, it has enabled millions of people all over the world to educate themselves, express their views, and participate in democracy to an extent never before possible.  It is important to recognize which core values and design choices have ensured this positive development and work to retain those values as we architect our future cyberspace.

Just as the Net's early design as an open system was not accidental, Internet policy makers and coders should continue to embrace the design choices of openness and freedom in the laws, policies, and architectural systems of the Internet of the future.

As the Internet becomes more central to our lives, the rules (both technical and legal) that govern the flow of information over the Internet determine our ability to exercise our rights and access online knowledge.

As shown in more detail below, the architecture of cyberspace is being increasingly re-designed away from openness and toward closed systems.  Without attention from the Internet governance community, the very qualities that make the Internet so special for freedom and development could be lost forever.

Internet Governance Policies and Intellectual Property Rights

One of the most important rule sets for governing online behavior are laws dealing with intellectual property rights in cyberspace.  Because of the unique digital nature of the Internet - copies of data are necessarily made to engage in just about any online activity.  Since copies are made to read an online news article, send an email attachment, or play music on a computer, intellectual property rules (IPR) are automatically triggered by virtually any online activity.

Rules written for one era do not always work well in a different era.  Industrial Age IPR rules operated under the premise that in order to disseminate information, it had to be affixed to a tangible object, like paper or a Compact Disc.  But cyberspace freed information from fixed objects and now music can pass like the wind.  Legal rules should be re-formulated to reflect the new reality of the Information Age in which information can spread at near-zero cost.  The Internet Governance Forum is ideally suited for a discussion about what those Information Age rules could look like.

Fear of the spread of information on the Internet has led publishing industries to push for more restrictive IPR laws that create new and increased rights and fewer limitations and exceptions to those rights.  Laws dealing with intellectual property rights on the Internet have become increasingly unbalanced and act against the public interest in favor of narrow private interests.  Freedom of expression, access to knowledge, and innovation are all stifled by unbalanced IPR laws designed to control online activity, but that fail to take other social values into account.

Consumers and developing countries have come together in recent years to voice their alarm and disapproval over the growing imbalances in power resulting from ever- increasing intellectual property rights.  In 2004, the World Intellectual Property Organization (WIPO) General Assembly adopted a "Development Agenda" for WIPO to reform laws and practices dealing with IPRs to better reflect the global public interest.  A Treaty on Access to Knowledge (A2K) has also been proposed at WIPO and a growing coalition of consumer, library, and civil liberties groups support the Access to Knowledge Treaty proposal.

Unfortunately, the global institutions that have historically dealt with IPR are slow to respond and remain tightly under the reigns of the intellectual property industries of yesterday.  Global IPR legal institutions treat the Internet as a threat to traditional publishing and end up discouraging new business models that are designed to reward creativity and innovation in new ways.  Without a forum to discuss the failure of the global IPR legal regimes to promote the Internet as a tool of development and access to knowledge, change in IPR-specific forums will be even slower in coming, and development further retarded.

It is important for the positive development of the Internet that the institutions that govern online activity view the Internet something more than a "tool of infringement" to fight against, but rather, as primarily a tool of development to be embraced.  Harnessing the awesome power of the Internet to provide access to knowledge and education cannot be achieved without fundamentally rethinking the application of traditional intellectual property rights in cyberspace.

Without a re-evaluation of the proper balances, society is left with IPR rules written for the Dark Ages which hold back the Renaissance that cyberspace could deliver through universal access to education.  All the world's citizens are guaranteed the right to an education under Article 26 of the Universal Declaration of Human Rights.  Internet governance policies should be evaluated in light of the fact that the Internet is a powerful tool that can help to realize the dream of universal education.

The World Summit on the Information Society (WSIS) Civil Society Human Rights Caucus identified the barriers to access to knowledge created by intellectual property rights as one its top three priorities for discussion at the 2006 Internet Governance Forum1.  In its submission, the WSIS Human Rights Caucus calls upon IGF to address "Access to Education, Culture and Knowledge and Technical Standards Definition" in Athens.

In 2003, Paragraph 42 of the WSIS Geneva Declaration recognized the need for balance between creating intellectual property rights as an incentive and the benefits of wide dissemination, diffusion, and sharing of knowledge.  Because of the tendency for this balance to become unhinged in cyberspace, IP Justice recommends three key principles for setting Internet governance policies.

IP Justice Recommendations for an Internet Governance Forum Discussion to Promote the Internet as a tool for Access to Knowledge and Development:

1. Preserve Openness of Internet and Free Flow of Information: Build Freedom of Expression Values into Laws & Architectures

The Universal Declaration of Human Rights (Article 19), unambiguously states:

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Although agreed to by all United Nations Member States over 50 years ago, these words speak directly to today's challenges for freedom of expression in cyberspace.  Article 19 makes clear that individuals do not give up liberty because their activity takes place on the Internet.  Freedom of expression is expressly guaranteed "through any media and regardless of frontiers" by this UN covenant.

Just as freedom of expression guarantees are embedded within legal regimes, these values must also be embedded within the architecture of the Internet for communication rights to have any meaning.  All the legal guarantees in the world are useless if the technology is designed to prevent the free flow of information.  The open protocols of cyberspace that let data pass without a censor to approve of the message must remain open for the Internet to continue to develop as a tool of free expression.  Technologies that aim to protect copyright on the Internet often disregard freedom of expression rights and prevent a large amount of otherwise lawful speech.

Paragraph 42 of the WSIS Tunis Agenda addresses the special online challenges for freedom of expression and other civil liberties on the Internet:

"We reaffirm our commitment to the freedom to seek, receive, impart and use information, in particular, for the creation, accumulation and dissemination of knowledge.  We affirm that measures undertaken to ensure Internet stability and security, to fight cybercrime and to counter spam, must protect and respect the provisions for privacy and freedom of expression as contained in the relevant parts of the Universal Declaration of Human Rights and the Geneva Declaration of Principles."

Paragraph 4 of the WSIS Tunis Commitment further recognized that "freedom of expression and the free flow of information, ideas, and knowledge, are essential for the Information Society and beneficial to development."  And Paragraph 90(o) of the Tunis Agenda reaffirms the commitment to freedom of information on the Internet.

Critical Online Speech Censored by Copyright and Trademark
Copyright and trademark law provide powerful ammunition to a company who wishes to censor critical speech on the Internet -- and the use of these legal theories for this purpose is on the rise.  For example copyright infringement lawsuits are routinely filed by the Church of Scientology to prevent discussion on the Internet about controversial church doctrines. Electronic voting machine distributor Diebold filed an infringement claim to prevent online discussion about the technical flaws in their e-voting machines.  Websites that are critical of companies, such as "gapsucks.com" are forced to finance expensive lawsuits in order to defend their right to criticize a company.  When not balanced against freedom of expression guarantees, copyrights and trademarks become powerful tools of censorship on the Internet.  Legal doctrines such as "copyright misuse", which punish rightsholders for using copyright to prevent lawful speech should be more fully developed to act as a check on the abuse of bogus copyright claims in cyberspace.

"Digital Locks" Control Flow of Information and Threaten Interoperability
Copyright holders have begun to use "digital locks" to control the use of music, movies, and other digital information.  Besides controlling a person's ability to use her own digital media collection, these locks are restrict the flow of information on the Internet.  They include no mechanism for releasing a work into the public domain when appropriate, but remain locked-up indefinitely.  Besides preventing lawful uses of information and entertainment, these digital locks can also be mis-used in ways that have nothing to do with protecting copyright, and everything to do with monopolizing adjacent markets.  For example, "digital locks" and the laws forbidding their circumvention (such as the US Digital Millennium Copyright Act (DMCA)) have been invoked to stop a competing garage door manufacturer from selling compatible replacement garage door openers and to stop a competing supplier of printer toner cartridges from selling compatible toner cartridges.

The combination of these "digital locks" and anti-circumvention laws make the creation of competing interoperable technology illegal, stifling innovation and technological development.  Because anyone who wants to build a compatible technology will need to "circumvent" the locks, these measures present a tremendous threat to interoperability and an open Internet.  Reverse-engineering, a corner-stone of innovation and competition, has become illegal in jurisdictions with anti-circumvention laws.

Online freedom of expression is also directly under threat from anti-circumvention laws.  These laws have also been used to prevent an online journalist from hyper-linking to information that revealed technical flaws of a company's product.  And the DMCA has been systematically invoked to prevent scientists from publishing scientific papers that dispute the claims of its provider.  Top computer scientists have consistently warned about the danger to computer security from these provisions since they make it illegal to study certain technologies that are crucial to both personal and national security.

The various national anti-circumvention laws that forbid bypassing these "digital locks" are a product of the 1996 WIPO "Internet Treaties".  Unfortunately, the US DMCA, which was among the first implementations of the WIPO "Internet Treaties", prohibited much more conduct and speech than is required by the "Internet Treaties".  Rather than learn from its mistakes and repeal the excessive provisions of the DMCA, the US has pressured other countries to enact similar (or even more restrictive) DMCA-like anti-circumvention laws in bi-lateral so-called "Free Trade Agreements" with countries including Chile, Jordon, Singapore, and others.  The European Union's Copyright Directive of 2001 contained similar anti-circumvention laws that go beyond what the WIPO "Internet Treaties" mandated and have been used to prevent competition and innovation in Europe as well.

The proposed WIPO Broadcasting Treaty contains similar anti-circumvention laws that would give broadcasting companies the right to lock-up public domain programming and make it illegal for anyone to bypass those locks.  The proposal would also make it illegal to distribute that public domain programming over the Internet.  Despite the fact that the vast majority of WIPO Member States have publicly stated their opposition to creating new anti-circumvention rights for broadcasting companies, WIPO's Copyright Committee Chairman has refused to remove the unpopular provisions from the draft Broadcasting Treaty.  The inability of existing international legal institutions such as WIPO to adequately respond to the desires of Member States in steering Internet policy makes the issue prime for discussion at the Internet Governance Forum in Athens.

Building technological restrictions into the architecture of the Net or enacting laws that forbid bypassing technological restrictions threatens the open nature of the Internet and the free flow of information.  The Internet Governance Forum should discuss how to maintain an open Internet in the face of "digital locks" and aggressive anti-circumvention laws.

Preserve Interoperability with Open and Free Technical Standards
There is another aspect to IPR and access to knowledge that broader discussions on Internet governance and digital content often overlook: the potentially damaging effect of intellectual property rights in technical standards, particularly technical standards required for effective participation on the Internet.  While this has not yet posed a hobbling problem, the increasing proliferation of software patents, competitive business strategies, and the failure of so-called "reasonable and non-discriminatory" (RAND) licensing are likely to stymie future network access and participation.  The adoption of open and free technical standards for the Internet is necessary to preserve interoperability and innovation.

Support for open and interoperable standards can be found throughout the WSIS process.  Paragraph 44 of the WSIS Geneva Declaration encourages open, interoperable and non-discriminatory international standards so consumers can access the Internet regardless of the underlying technology used.  And Paragraphs 28-29 of the WSIS Tunis Commitment affirm the need to promote open or interoperable standards that are affordable and accessible to all and that can used on any device.

A technical standard is considered "open" if its specifications are publicly available so anyone can use the standard.  Open standards promote competition in the marketplace by creating a level playing field among competitors.  As stated by EU Commissioner Erkki Liikansen, "open standards are important to help create interoperable and affordable solutions for everybody.  They also promote competition by setting up a technical playing field that is level to all market players.  This means lower costs for enterprises and, ultimately, the consumer."

Technical standards are the cooperation agreements that make communication and collaboration across a network possible.  They enable participation by anyone who adheres to them (or, more accurately, who uses an application that adheres to them).  Technical standards can be created and managed by both formal, de jure standards organization such as ISO, IEC and the ITU or by consortia, such as the Internet Engineering Task Force (IETF).  Organizations that deal with intellectual property rights, such as WIPO, have also taken an interest in policy regarding technical standards.

Technical standards form the backbone of the Internet and the World Wide Web, as these both continue to converge with other industries and applications such as healthcare, transportation, media, safety, and telecommunications, technical standards will become increasingly important -- and valuable.  The early use of open protocols is a key factor explaining why the Internet has become such a powerful tool for communication and human development.

There has been a steady rise of embedded intellectual property rights in technical standards over the past few years.  For standards that might be particular to a specific industry or local application, this might not pose much of a threat to the general public.  However, embedding IPR in technical standards that are required for effective participation on the network -- say for audio and video feeds or document formats -- is likely to have a chilling effect on access and participation.  Costs will rise, and competition and choice are likely to be thinned; both of these ultimately affect access and participation.  Software patents, in particular, are discouraging innovation and investment in Internet technologies.

Technical standards organizations have responded to the rise of software patents and other IPR by creating IP policies that state its members must promise to license any essential IPR under "reasonable and non-discriminatory" terms.  However, these IP policies are false security.  Who gets to define what these terms are?  Who policies their implementation?  Do they change over time?  How is "fair" determined?  Are these terms explicitly and publicly known before adoption of the technical standard?  Do the terms preclude open source implementations?  There is a thick cloud of uncertainty over issues dealing with IPR in technical standards, threatening the continued health and growth of the Internet and limiting access and participation by all.

A discussion at IGF on the use of technical standards that can promote interoperability and innovation would help to ensure the Internet's continued open nature.  And a better understanding of the impact from intellectual property rights in technical standards is necessarily part of any discussion on the barriers to accessing knowledge and the free flow of information on the Internet.

Governments Adopt Open Document Formats
A growing number of national governments are switching to Open Document Formats for the use and archiving of government records2.  Public records saved in an open non-proprietary format can be read by anyone and do not require the purchase of particular software in order to access or the documents.  Besides the enormous cost savings for governments from no longer having to purchase expensive Microsoft licenses for each government employee, the Open Document Formats provide a more stable and non-discriminatory tool for preserving digital information.

Open Document Formats are also better equipped than proprietary formats for preserving information over long period of time since people often switch computer systems and no longer have access to the (obsolete) proprietary software needed to access certain data.

Paragraph 46 of the WSIS Tunis Agenda reaffirms the right of individuals to access information.  Paragraph 27 of the WSIS Tunis Commitment recognizes the need for long-term preservation of the digital information that is being created.  Open Document Formats can help to achieve that long-term preservation and universal accessibility.

Government officials in Belgium were worried about becoming dependent upon a particular software provider and passed legislation to mandate that official government data be saved and exchanged in an Open Document Format.  Spain, Malaysia, and Denmark have embarked on similar paths as countries see the savings and other advantages to switching to Open Document Formats.

With Open Document Formats, people are not "locked-in" and forced to use a single software vendor, reducing user-dependency.  Open document formats encourage competition and innovation among software vendors, and provide choice and stability to consumers.  IGF is an ideal forum for a discussion among all stake-holders on how to best use technology to preserve critical government information and other data.