Blogging WIPO: Understanding the Public Domain
In the afternoon of Day 2 of the WIPO Provisional Committee on Proposals Related to a Development Agenda we finally got down to business: discussing Chile's thoughtful proposal on the Public Domain. Chile had actually put forward three suggestions, but it was the proposal for WIPO to undertake a study of the value of "a rich and accessible public domain" that drew comments from a slew of Member States, the Committee Chair and public interest non-governmental organizations. And rightly so. As Chile's proposal notes, the public domain is essential for ensuring access to knowledge, and provides the foundation for technological innovation.
Intellectual property rights are supposed to promote the same goals, but you'd never know it from the comments of some participants who seemed to fundamentally misunderstand the essential relationship between IP and the public domain. Apparently under the mistaken impression that the public domain is the opposite of intellectual property, these participants claimed that the proposal was outside WIPO's mandate.
The copyright and patent regimes have historically recognized that the creation of intellectual property requires a robust public domain. Material from the public domain forms the building blocks on which new creations are built. As the Chilean delegate eloquently put it: "Our starting premise is that nothing is created out of nothing. The greater the works in the public domain, the greater the creation." The public policy underlying the grant of time-limited exclusive copyright and patent rights is that the public domain will be continually enriched, to the benefit of all society.
Precisely because of the public domain's importance, recent encroachments upon it - such as Technological Protection Measures, new sui generis database rights for non-copyrightable data, exclusive rights for test data in the patent arena, and extensions of copyright and patent terms - deserve careful scrutiny.
Chile also proposed that WIPO analyze complementary systems to intellectual property that incentivize creative activity, innovation and technology transfer, including free and open source software and creative commons licences, and a study or set of case studies assessing the appropriate level of intellectual property protection based on different countries' development status.
The NGO coalition's notes of day two's proceedings are after the jump. There are also great summaries of the debate at the blogs of IP-Watch, Georg Greve, and Karsten Gerloff of Free Software Foundation Europe, FGV Brazil, and Thiru Balasubramaniam of Consumer Project on Technology.
First Meeting of WIPO Provisional Committee for Proposals Related to a Development Agenda
Day 2, February 21, 2006
Notes taken by:
Gwen Hinze, gwen at eff.org, Electronic Frontier Foundation [GH]
Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on Technology [TB]
Teresa Hackett, Electronic Information for Libraries [TH]
[NOTE: This is not an official transcript. Any errors and omissions are regretted.]
Copyright-Only Dedication (based on United States law)
The person or persons who have associated their work with this document
(the "Dedicator") hereby dedicate the entire copyright in the work of
authorship identified below (the "Work") to the public domain.
Dedicator makes this dedication for the benefit of the public at large
and to the detriment of Dedicator's heirs and successors. Dedicator
intends this dedication to be an overt act of relinquishment in
perpetuity of all present and future rights under copyright law, whether
vested or contingent, in the Work. Dedicator understands that such
relinquishment of all rights includes the relinquishment of all rights
to enforce (by lawsuit or otherwise) those copyrights in the Work.
Dedicator recognizes that, once placed in the public domain, the Work
may be freely reproduced, distributed, transmitted, used, modified,
built upon, or otherwise exploited by anyone for any purpose, commercial
or non-commercial, and in any way, including by methods that have not
yet been invented or conceived.
Meeting started 10:30 am
Chair: I have four speakers on my list, then I'd like to move on to the African Group
Would like to make similar statement to that of Pakistan, and that of African Group spokesperson. The key elements we'd like to see included in these discussions:
- technical assistance - should be included in a national framework;
- technology transfer - it has an important role to play in strengthening economic base of developing countries. So far has been subject of political statements, but not so much concrete action.
-human resource strengthening and putting an end to brain drain which is linked to the issue of transfer of technology. Need to take responsibility and recognize that brain drain is a terrible loss to developing countries. WTO needs to help strengthen developing countries' human resources sector to help stop and reverse brain drain. Development of human resources needs to be strengthened through international instruments so that developing countries can use IP as tool for development.
The development dimension's importance has been recognized by a number of bodies. The WTO, despite its trade focus, has recognized the importance of the development dimension. Other trade organizations have also recognized this. It is incumbent on WIPO to mainstream the development dimension in the work of WIPO. Virtually all delegations have mentioned this, which is a sign for optimism about the outcome of this meeting.
Although every proposal should be given consideration, we should focus our work to find practical solutions to mainstream the development dimension. The African Group proposal and the GFoD proposal contain concrete elements that could help focus our work.
In view of the Tunis WSIS plan of action and recognizing that the technical assistance provided by WIPO to our countries can enable us to identify the political space of individual countries to allow them to respond to their individual needs.
We hope that IP should play a more important role in fostering innovation and creativity in our counties. We need a whole range of tangible proposals many of which are contained in the African Group proposal such as strengthening technical assistance, encouraging R & D in innovative sectors, strengthening links with SMES, need to take into account the informal sector in providing protection for literary and artistic works in Africa and using ICTs more effectively. Hope that we can come forward with concrete proposals for WIPO General Assembly.
Bangladesh: We would like to align ourselves with statements of Pakistan (on behalf of G-77 and China), Thailand (Asian Group) and Benin (on behalf of the Least Developed Countries).
We must ask the question whether WIPO can afford do without the development dimension. Overarching principle of all UN organizations - including WIPO - is fostering wellbeing of all humanity.
IPR is not just about private property rights, is of benefit to all.
The UK Commission on Intellectual Property Rights found that intellectual property has direct effects on developing countries.
IPR is best regarded as one of many ways to foster development.
"Intellectual property systems may, if we are not careful, introduce distortions that are detrimental to the interests of developing countries. Developed countries should pay more attention to reconciling their commercial self-interest with the need to reduce poverty in developing countries, which is in everyone?s interest. Higher IP standards should not be pressed on developing countries without a serious and objective assessment of their impact on development and poor people."
PCIPD is too narrow in focus to undertake this work.
All this rhetoric on achieving MDGs has become like an elusive dream.
How can WIPO support environment for sustainable development? The key question is technology transfer. We have the Brussels agreement on technology transfer.
As co-sponsor of GFoD proposal, we support statement of Argentina yesterday. Share idea that need to identify common denominators in various proposals submitted. Would be a good way for this committee to fulfill its mandate to come up with concrete proposals. Would be helpful to draw up a table of proposals and points of convergence.
Proposals we think are important:
- drafting standards that balance private rights with public rights, namely
access to knowledge
- Standards need to contain the possibility for states to apply them in accordance with their legislation.
- Another important element is effective access to the public domain
- With respect to impact studies, we support the proposal and have done it often in this body. Impact studies should be carried out, the protagonists should be developing countries.
Decision of General Assembly to set up this provisional committee shows the importance that Member States accord to the development dimension.
This decision did not aim only at continuing important discussions on Development Agenda but also required us to speed up our work.
Nothing to add to great and comprehensive statement and proposal of African Group.
As we have stressed at the 3rd IIM, we find a clear continuity between the GFoD proposal and the African group proposal.
All proposals should have an equal time and opportunity for discussion, which hasn't happened with African Group proposal yet.
The delegation of Egypt supports the proposal on behalf of the GFoD because the ideas are practical and objective and in line with desired objectives to include the development agenda in multilateral activities.
Thanks delegation of Chile for proposal.
The three basic elements of the Chilean proposal are important and are of vital importance to developing countries.
We agree that there should be an effective mechanism to protect and support public domain because it is the arsenal for innovation, creation and development.
There should be complementary systems to intellectual property protection. Worthy of discussion and study. Their proposal added to existing suggestions on studies for economic value of intellectual property rights.
We also support the proposal of Colombia as it deals with some of the problems faced by developing country patent examiners.
Thanks to the US for their proposal. Due to constraints of time, we have not had time to study it.
I would like to propose that the WIPO Secretariat set out all the proposals in the form of clusters so that we can find the common ground and reach collective agreement as soon as possible
We support the position of the African Group while highlighting our own ideas. We stress that an effective intellectual property system should contain a targeted system for allowing countries to promote development, economic growth, create jobs and exports.
This should answer the needs of developing countries and Laces. In our country the advantages to businesses from an effective IP system have not been exploited in an optimum way. WIPO should give more help to states to train staff and draw up guides, and provide support to small businesses.
The management of IP should be the concern of businesses in all countries, both in the business and cultural areas, both of which are expanding.
Intangible assets contribute to regional economies because they add value.
WIPO should help developing countries to introduce policies and strategies to develop intellectual property.
We propose that WIPO should set up a training program on IP for countries that do not currently provide this for economic and social development. There should be special courses for policy makers. WIPO should prepare an information guide for parliamentarians. We want an international instrument for combating piracy of traditional knowledge, which is ravaging developing countries.
Associates itself with statements on behalf of G-77 and China and African Group.
Africa is a continent where poverty both in absolute and relative terms is on the increase. On the other hand, IP is well documented in its ability to create wealth.
Africa as in many other fields of endeavor is isolated from benefit of intellectual property system.
We are of the firm view that the modest submission of the African Group to this august gathering should be given a favourable hearing.
We thank WIPO for its assistance in helping us to develop an intellectual property system.
We support the proposals of the delegation of Colombia, as it would greatly facilitate the work of our patent office. El Salvador is building a trademark system based on horizontal trademark links. We have signed technical assistance and cooperation agreements with Spain and we are grateful to the EPO.Therefore we support proposal of Chile to study benefits of intellectual property
Argentina (Ambassador Dumont):
On behalf of the GFOD, I will give a general reaction to the Africa proposal. This is an important contribution to the debate. Development should be translated into a global programme within WIPO.
While recognizing that intellectual property is increasingly important to developing countries' economies, we also recognize impact on a number of public policies.
Common to both proposals is the view that developing countries need to integrate the development of IP to ensure that it is not a barrier to the social, economic policies of these countries. We are happy to note that the African Group proposal especially acknowledges the proposal of the GFOD and is pleased at the degree of convergence of both proposals which are complementary and mutually supportive. Since the whole idea of the Development Agenda is to find solutions to the needs of developing countries, it is important that the proposals specific to Africa are given due consideration.
We concur with many of the important proposals on technology transfer and patent disclosure. Let me express the conviction of the GFOD that we will present concrete proposals to the next GA.
Break - 11:20 a.m.
Restarted 12:09 am
Chair: the African Group is not in the room, but has told me that they are not ready yet. They are reanalyzing their proposals and will be able to present them this afternoon.
So I had planned to give the floor to the African Group, but I will now ask the Chilean delegate to present their proposal.
Austria: i have a co-ordination announcement - Group B will meet at 1.
Chile: Our document contains three independent proposals.
The first is on the public domain. It's not about putting a money value on the public domain but to understand its value to all.
The benefits of a rich public domain are obvious, to education, businesses that can use rich databases, for governments, patent offices to see what prior art is available throughout the world, and to libraries and archives.
Our starting premise is that nothing is created out of nothing. The greater the works in the public domain (PD), the greater the creation. We don't want to put fences around the public domain.
We've picked out various examples of where the public domain may be affected. Patents and copyright laws may have a negative effect on the public domain. About 100 years ago, various limits were put on the PD through these laws. While they may be justified one by one, taken as a whole, they have reduced the public domain.
Copyright was originally designed to protect author's rights, artists and performers. We are now discussing new right holders that can have claims to the same work. The number of rights conferred on right holders has increased.
And we have increased the terms of protection of both copyright and patent. For instance, in treaties administered by WIPO, in Article 18 of the Berne Convention [GH: applied by Art. 13 of WIPO Copyright Treaty] there is retrospective protection; there's a presumption about ownership of works; there's the so-called orphan works problem. The legislation of some developed countries deals with this. For instance, the US is considering legislation to address this problem. So these two items could be addressed.
It would be useful to include PD works in a library e.g. like the Library of Alexandria. Who has ownership rights to a particular work, or which publishing houses to ask permission from in order to use a work?
There are other things that could be done to identify works that are in the public domain. For instance, I mentioned yesterday our proposal for a public domain database. Chile has such a list. WIPO has a role to play here - for instance with its WCT global database. There are also issues of obsolescence. There are also creative commons licenses.
In Chile, we're trying to digitalize all copyright works so they'll be available when they move into the PD.
On our second proposal, we should discuss systems that are currently being implemented by countries such as creative commons, and free and open source software.
It is important to discuss incentives for intellectual creation. Systems to analyze the novelty of something are not hard to do.
We'd like to set up a new forum within WIPO to address these issues. There are difficulties in setting up permanent fora at WIPO so here are some examples of how this can be implemented e.g. an electronic discussion forum limited in time.
An alternative would be a permanent committee within WIPO with this as a standing agenda item. And we could talk about a utility model in the Standing Committee on Patents.
Proposal three is to study the impact on development. We realize that a country-by-country analysis is ambitious. More realistic are studies on specific issues e.g. patents and copyright, L&E, alternative systems. These should be limited to a representative selection of developed and developing countries and would be voluntary. It should include both developed and developing countries, so we can make a comparison between countries and rates of development. Chile would be prepared to participate.
Chair: Congratulations on quality of proposal. I've read your proposal with interest. When I was director of the national patent office (Paraguay) we realized that the vast majority of patents fall into the public domain within a lifetime because in most cases a fee must be paid to keep the patent in force. Many developing countries don't know this - so when we want to use a patent for the benefit of our country, we don't know that is in the public domain.
The experts from the EPO told us that the average lifetime of a patent was 7 years (this was in the 1980s and 1990s).
The Chile proposal is tackling an issue that could be of great interest to developing countries.
Mexico: Commenting on Chilean proposal.
We have studied the Chile proposal carefully especially the proposal on free software and open source. This was one of the most discussed issues at WSIS Tunis. The issue of free software or free code, will be key issue to be discussed after Tunis Plan of Action, so we think that tackling free and open source software in this forum would therefore be premature.
Chile should raise its document again at UNDP/ITU/UNCTD meeting on 24 February.
We note that the Chilean delegate did not mention this in his intervention and in any case, I would want to make sure that this issue is associated with follow-up to the Tunis WSIS plan of action.
[GH: FSF Europe notes that Mexico argued the opposing position at WSIS - namely that free and open source software issues should be discussed within WIPO, the UN's specialist IP body.]
We are pleased that the work programme departs from the traditional means of working. We have examined all the proposals which are all useful. Many are complementary and all have an impact on our collective work, so we support them all.
We support Uruguay's call for a comparative table of proposals. Many similarities that complement one another.
On the Chile proposal, I would like to comment on each point.
1. Appraisal of the public domain: We find this section interesting. The public should be informed that PD material can be used so there is greater scientific knowledge leading to job creation. There should be easy access to the public domain, as stressed by Chile.
2. Importance of complementary systems to and with IP - interesting and stimulating.
Human beings by their very nature are attracted by various initiatives.
In my country, we have enacted initiatives to universities not to register IP to
make greater use of IP for scientific research, which has lower levels of patentability.
This is already applied to countries where there are SMEs.
We are having creativity competitions which have generated a lot of interest and they are registering their collective rights.
For instance, authenticity stamps for goods made in indigenous sectors.
Met with great success nationally.
I agree with Chile on the need to find complementary systems to and in IP.
3. Study to assess appropriate levels of IP. We support this, as each member state needs to know its strengths and weaknesses in order to develop a national strategy. We also support WIPO to publish guides to study IP system in each country. With regard to specific studies, we support the suggestion on the strategic use of IP.
On Chilean proposal:
1. Appraisal of public domain: If the shorter period for patents means these are transferred to the public domain, this is good.
We agree with Chile that WIPO should study the benefits of a rich and accessible public domain.
On Chile's proposal for models to protect the public domain, we have some pre-existing models e.g. in the domain of Traditional Knowledge, from the African Union. We can have a library of proposals.
There should be more interaction between the CBD and WIPO. Very important for developing countries.
We have this question of complementary systems in IP. The Chilean proposal says there should be a permanent fora for this; GFOD mentions establishing a new Standing Committee on Technology Transfer.
We have listened with interest on open software licenses. We believe that developing countries should have free software in addition to licensed. WIPO should advise countries on how to develop systems of anti-trust laws because it's better for all if multiple sources available.
The impact assessment proposal is good. Perhaps we can draw upon existing sources e.g. from UNCTAD on level and capacity of different countries. We should not wait as we do not know the timeframe for these studies.
The LDCs have a peculiar situation because of their vulnerability to certain constraints.
Argentina: The Chile proposals are very complementary to the GFOD proposals.
Basically, in quite general terms we see a great deal of similarity between the two proposals because they are both based on the same philosophy or spirit if you like.
We agree with proposal for complementary systems - we put forward a similar proposal in 2004.
Finally the issue of impact assessment studies is something we have already stressed. We need to have rules and instruments that are member-led.
Many proposals, but many points of convergence. We align ourselves with the statement made by Argentina.
The Chilean proposal complements many of the proposals we have presented. The Chilean proposal reflects a common understanding that the Development Agenda should not be focused on technical assistance alone. Should also incorporate concerns about norm setting activities, research and studies to assess impacts of IP systems in all countries, with view to highlighting differences on development in various countries
We also support putting in place measures to safeguard the public domain. The idea to elaborate a databank to register the contents of the public domain should be further elaborated perhaps in conjunction with UNESCO.
WIPO must incorporate the progress enjoyed in the WSIS process on free and open sources software. We reiterate that the Chilean proposal convergences with the FOD document with a view to moving forward to results.
Austria (EU plus Bulgaria and Romania): The Chilean proposal touches upon several important horizontal issues. We fully recognize the importance of disseminating knowledge in the public domain.
On second proposal, we acknowledge that IP systems are essential tool for encouraging development, but systems such as public procurement also play a role as well.
On the third proposal, the EU also believes that sound impact assessments can deepen understanding of the flexibilities provided in the IP systems themselves.
Would want further analysis of proposal as to who conducts this study, cost implications if conducted by WIPO.
However, as a first step before initiating studies, a compilation of studies that have already been conducted could be useful.
Islamic Republic of Iran:
Public domain is a pillar of APRs.
Working on study with view to promoting and making available more information in IP areas is useful.
IP is not only policy for encouraging innovation and creativity. Notes that UK IPR Commission report also supports this.
Our work involves identifying concrete flexibilities that currently exist.
We see a number of points of concurrence, including with proposal put forward by Bahrain et al.
In order to achieve concrete results, we should list all proposals
without trying to categorize, so that we can move forward.
We agree that the public domain is a resource that can foster innovation and creativity.
We also agree that creativity and innovation are not from nothing, but are incremental.
During term of protection, the public domain is enriched by limited exceptions.
And after term, is also enriched by new material.
We believe that WIPO in helping to establish well-functioning IP systems is working to protect the PD.
When WIPO established WIPOnet, WIPO enhanced access to a vast array of public domain. WIPO should deepen analysis of the benefits of rich and vibrant public domain both in norm-setting activity and in its technical assistance.
Some doubts whether it would be a wise use of WIPO resources to consider proposal two, because wide-ranging factors involved in incentivization, including procurement etc. But WIPO should focus its efforts on IP matters, not on IP matters. Agree with African Group that utility model for patent system is important and would support further analysis.
Regarding proposal two, we have doubts that this would be a valuable use of WIPO's resources.
With respect to proposal three, we do support studies of appropriate levels of IP protection but this must be must be addressed by each government, not WIPO
WIPO plays an important role in international environment. Believe that conducting study proposed by Chile would consumer enormous resources even to settle terms of reference and not something that WIPO could easily do because turns on political questions by countries in different positions, whether they are DCs or LDCs, and whether they decide to comply with TRIPs obligations. For instance, the WTO General Council in October decided to extend transitional period for LDCs to 2013. WTO decided upon appropriate levels of IP in the TRIPS agreement with respect to minimum enforcement and transition periods.
Therefore we do not support WIPO embarking on these studies.
Japan: We recognize that public domain is important, however, our understanding is that public domain exists as complementary to IP system. So if pd is studied, must also analyze meaning of IPR, the other side of the coin. Also, this type of study done elsewhere so we should avoid duplication in our work.
Chair: closed list of speakers for this morning's meeting. We'll come back at 3pm.
Will give floor to organizations to make announcements.
2:15 GFod meeting
International Film Producers Association holding showing of Nigerian film in HDTV this evening - Wiyet Dey
Colombia: We support the view of other delegations that the public domain is vital and important to WIPO's work. We support Chilean proposal.
Support proposal one.
We are still discussing proposal two.
Regarding proposal three, my government supports this proposal.
Panama has indicated that it would be useful to have a list or table of all the proposals submitted thus far.
Nigeria (African Group): Chile is an important country within the developing world and its proposal should be taken seriously.
1) Our group views that the privatization and commodification of knowledge should be resisted (especially when it is enclosed). Thus, we welcome Chile's proposal.
3) Support call for study on appropriate levels of IP based on level on development.
Peru: In general terms the Chilean proposal seems a positive proposal.
1) Deepen analysis of public domain in keeping it accessible. Preservation of public domain or safeguarding protection of the public domain. We support safeguarding.
2) We would like an indication from Chile as suggestions as to what type of fora we could consider these complementary systems. ITU/WSIS is not only forum. These are cross-cutting issues.
3) We should tie competition with and...??
Studies should be done by countries.
2) Implementing complementary systems should be done at national levels. Is this within the remit of WIPO?
3) We would not object to carrying out such a study.
1) WIPO should deepen analysis of the benefits of a rich public domain. WIPO should consider the protection of the PD under WIPO's normative process.
2) Support importance of complementary systems to and in IP system.
We find it strange that some have said that Chile?s public domain proposal is outside WIPO?s mandate. The public domain is part of the system. If WIPO?s mandate involves international treaty making, in the end it does define the size of the public domain.
Perhaps the use of the word ?protection? in relation to the public domain may have raised doubts. We do not understand Chile?s proposal to be about owning a piece of the public domain. The public domain is a realm of rights that mankind is free to venture into. It works to the benefit of all humanity.
On technology transfer, this is part of the IP system. Many delegations have repeatedly said that IP protection will lead to technology transfer. Technology transfer is an anti free- market activity. Monopolies may be acceptable to the extent that societies get something back in return. There needs to be a balance. If rights are pushed too far, we lose the balance. WIPO should be asking what is going on in the IP realm. Why is it that the developing countries perceive that the system may not be responding to their national needs?
Civil Society Coalition (CSC): Civil Society Coalition Statement to the Provisional Committee on Proposals related to a WIPO Development Agenda
Comments on Chilean proposal
February 21, 2006
Thank you Ambassador. As this is the first time the Civil Society Coalition is taking the floor, please let me congratulate you on your election to the chair.
The Civil Society Coalition welcomes the Chilean proposal to the PCDA which articulates three main points: (1) recognizing the value of the public domain, (2) the ?importance of complementary systems to and in intellectual property? and (3) conducting a ?study for assessing what are the appropriate levels of intellectual property, considering the particular situation in each country, specifically its degree of development and institutional capacity?. WIPO is at the forefront of normative processes involving such negotiations as the Substantive Patent Law Treaty (SPLT) and the broadcasting/webcasting treaty which could potentially lock-in countries into greater privatizations of knowledge, and a shrinking of the public domain. Much of this work appears to have been motivated by an uncritical belief that the enclosure of knowledge is the best way to promote creativity, invention and development. But the CSC believes this older way of looking at things is wrong, and outdated. The great success of the Internet, which is based upon public domain technologies, the free software and open access publishing movements, and projects like the Human Genome Project illustrate how useful it is share knowledge goods widely. We believe that the Chilean proposal, which says the ?public domain is fundamental for ensuring access to knowledge? is an explicit effort to have greater balance at WIPO.
CSC adds however, that it may be useful to modify the Chilean proposal by expanding the phrase, ?the public domain? to the more inclusive, ?the public domain and other elements of the knowledge commons.?
We are learning not only the value and importance of the pure public domain, where knowledge it is not owned by anyone, but also, the value of the other elements of the knowledge commons, where the private owners of knowledge goods make them freely available to everyone -- like the Wikipedia, much of the free software licensed under the GNU General Public License for free software, or the creative commons, to mention just a few examples.
In this context, we also encourage WIPO to look at the issue of open standards, which are aspect of the public domain and the knowledge commons which are very important, for innovation and for development. Open standards will provide more opportunities for new businesses and other knowledge good organizations to participate in the creation and design of the new knowledge ecology.
Also, with regard to the importance of complementary systems to and in intellectual property, we highlight recent events at the World Health Organization?s Executive Board which recently submitted to the World Health Assembly, the highest decision-making body of the WHO, a draft resolution on a ?Global Framework on Essential Health Research and Development?. The resolution provides a process to consider a new global regime that is consistent with human rights and public health priorities. The proposed resolution recognizes the importance and relevance of public sector and open source methods of supporting and doing R&D, and the need to have appropriate balance between the public domain and intellectual property rights.
Thank you Mr. Chairman.
International Federation of Library Associations (IFLA): Mr Chairman, the International Federation of Library Associations represents the world?s major libraries and library associations through 1700 member organisations in 150 countries. We support the intervention made at this meeting by eIFL: Electronic Information for Libraries, one of our member organisations.
We welcome the proposal by Chile (PCDA/1/2) that WIPO undertakes an appraisal of the public domain. In our view this must include the issue of the impact of intellectual property laws, licensing and technological protection measures on access to public domain information and works in electronic form. As Chile has stated, the public domain provides a fertile source of content on which creators can build new works but it needs to be nurtured and protected from erosion in the digital environment.
The digitisation of public domain works affects libraries? role as the world?s custodians of human memory. While there are indeed major public sector digitisation projects, many public sector libraries such as national, academic and public libraries give commercial publishers access to public domain content for digitisation projects because they can not afford to digitise everything themselves. The publisher in turn uses the content to provide databases of compilations which receive their own copyright protection and which provide much more enriched content than can be provided by merely digitising the original works ?as is?. It is only right that the publisher should have rights in the compilation and have prospect of receiving a viable financial return from such investment for a specified period.
Public domain content within commercial electronic materials is subject to a licensing regime which is often non-negotiable and in most countries licences and contracts are allowed to override copyright exceptions and limitations. Moreover, if the digital content is not otherwise available in an open access repository, it risks being locked up in perpetuity by TPMs and the DRMS that enforce the licence terms. Libraries already have experience of how TPMs in e-books, e-journals, databases and multimedia products such as film, broadcasts and sound recordings, remove users? rights to avail themselves of statutory exceptions and limitations to copyright, including the rights of visually impaired people to have accessible copies made or to deploy read-aloud software.
The world?s great research libraries need to keep digital works in perpetuity and be able to transfer them to other formats and platforms in order to preserve them for the public domain, so they can make the content fully accessible and usable once all the rights have expired. A number of legal deposit libraries now have legislative mandates to collect and preserve digital materials. Yet the average life of a TPM or DRMS is around 3 to 5 years. If the product is no longer made, there will be no new TPM compatible with new operating systems and no key available to allow libraries to migrate content to new platforms. Nor does the TPM cease upon expiry of copyright, so the content will remain locked even when no rights subsist. By then the ownership of the rights may be impossible to trace, rendering the product orphaned and without a key. Obsolescent TPMs render digital content inaccessible to future generations of researchers. For libraries, charged with creating and maintaining a patrimony of public domain works in the digital environment, this is serious.
A low cost solution to these problems is that publishers who digitise public domain works also be required to furnish the library which provided the material, with clean digital copies so that the library may not only preserve the digitised works for posterity and migrate them to new platforms, but also make those public domain works freely available forthwith on an ?as is? basis to the public on library servers. This would immensely benefit access to public domain works by developing countries, especially if WIPO created a database or portal to these works as Chile proposes. Publishers should also be required to entrust major legal deposit and research libraries stipulated by national legislation with clean copies of their electronic products for the purposes of conservation and preservation so that the content is not lost when the rights in the product expire. It would be helpful if the proposed appraisal were to address these points.
The library community believes that it is proper for WIPO to assume guardianship of the public domain, promoting its value and protecting it from encroachment. Chile?s suggestion that WIPO establishes a permanent unit, which would work on public domain issues, would be of great benefit to Member States and the IP community. IP is not just about generating economic benefit for nations and enterprise, an area of activity that WIPO already advises on, but is also about growing knowledge, innovation and creativity, and delivering education - the bedrock of economic prosperity.
We support Chile?s proposal for a without-prejudice impact study to assess the appropriate levels of IP with regard to individual countries and we endorse the suggested criteria. We would expect the study to reveal the hidden costs met by libraries resulting from copyright protection ? such as the fees they pay for licensing and document supply, book and journal prices, reprographics and levies and the expensive and frustrating process of copyright clearance ? especially when tracing the vanished right owners of orphan works. This study risks being flawed unless library associations and institutions in those countries are specifically invited by their governments to play a full part. We urge WIPO to request Member States to do this. IFLA would be pleased to assist in this regard.
Finally, we urge the present meeting to adopt the practical proposals made by the Group of Friends of Development (PCDA/1/5). They seem to present an eminently sensible way forward.