[Commons-Law] Democracy and dissent at the WIPO

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Democracy and dissent at the World Intellectual Property Organisation 

Becky Hogge 

26 - 4 - 2005 


On World Intellectual Property Day, Becky Hogge speaks to Cory
Doctorow, who has been campaigning for reform at the World
Intellectual Property Organisation for two years, about the strains
put on the democratic process by the arrival of dissenting voices.

Today, 26 April 2005, is World Intellectual Property Day, a
celebration of the power of the copyright, patent and trademark
disciplines to foster creativity and innovation around the world. It
is a day sponsored by the United Nations' World Intellectual Property
Organisation (Wipo), a UN organisation unlike any other. In the flock
of the organisation with aspirations towards international democracy,
yet funded by the big business of worldwide trademark and patent
registration, Wipo's plush Geneva headquarters have traditionally
played host to lobbyists of corporate power, not champions of the
developing world.

  
Why this should be so boils down to a simple equation – that
copyright, patent and trademark law incentivise creators and therefore
stimulate development. Now, technologists and their allies with a
different vision of how Wipo should operate are challenging the logic
of that equation. And in the face of such dissent, the democratic
fabric of the institution is being stretched taut.

Cory Doctorow is one lobbyist who has been at the front line in Geneva
for some time. Since $14 million of venture capital fled from his
fledgling technology company the day after the money-men – and the
insurance companies that supported them – were named as parties to the
suit against Napster, Doctorow has worked for the Electronic Frontier
Foundation (EFF), an impact litigation house and advocacy organisation
that campaigns, among other things, for the rights of technologists to
operate in a free market. His speciality is legislation on copyright,
legislation that in his experience is often exploited in the drafting
stages by lobbyists from incumbents on the market seeking to create a
"permissions culture" for technologists and other innovators – in his
words, "profoundly anti-competitive stuff".

A different world

Two years ago, the EFF got a call from James Love, head of the
Consumer Project on Technology and celebrated hero of access to
medicine initiatives that saw big pharmaceutical players slope away
from lawsuits against the South African government over the purchase
of generic versions of patented retrovirals in the fight against
HIV/Aids. Love had spent years at Wipo, mainly agitating for patent
reform, and had noticed a vacuum of dissent against draft global
copyright treaties. Delegates without a strong handle on the potential
of new technologies, were, in the name of copyright, putting checks
and balances on these technologies that would make valuable
innovations illegal. The only lobbyists present were those
representing the incumbent rightsholder and broadcasting groups. Could
the EFF help?

"It's a very different world working at Wipo", says Doctorow, 

"so when [Love] approached us the initial reaction from the people on
staff was 'how can we possibly make a difference here? We're
outgunned, we don't know what's going on, it's diplomatic, we don't
know who to sue – all the stuff we're good at we don't know how to do
here.' But there were elements of history that resonated". At Wipo,
just as in the various midnight meetings on broadcasters' rights in
the digital age the EFF had gradually been gaining access to in the
United States, the democratic process was in danger of breaking down
for lack of people speaking up for the other side: "The most egregious
lies were being told about how the world worked and nobody was
sticking their hand up and saying that's not true."

Cory's first job at Geneva was to step into negotiations over the
Broadcast Treaty, a theatre of discourse aimed at updating a 1961
treaty in the light of the impending switch from analogue to digital.
What he found was an audience of national delegates already held
captive through five years of negotiation by lobbyists from
rightsholder groups and incumbent broadcasters. New technologies were
represented solely by webcasting businesses keen to sew up the market
against future competition.

The arrival of dissenting voices at Wipo, where Doctorow has forged
alliances with various intellectual property (IP) reform NGOs, has
tested the democratic process. Their lobbying on such diverse tickets
as international development, the safeguard of the public domain and
the rights of archivists, says Doctorow, is viewed as "arriviste" –
they are a "rabble" capable of swerving carefully planned negotiations
off course when there was policy to make.

Delegates whose tentative grasp of the meanings of new technologies
often came from close collaboration with incumbent lobbyists such as
the National Association of Broadcasters suddenly found they were
being asked to pick sides.

One of the more controversial activities of the IP-reform lobbyists
since their arrival at Wipo, Doctorow remarks, has been the
spontaneous publication on the web of impressionistic notes taken from
the various negotiations through at-table blogging.


"Normally the way that Wipo transcripts are produced is there's a
six-month delay during which the secretary's notes are sanitised by
circulation to all the members – 'here's what we're gonna say you
said, would you care to re-write it?'. And you end up with this kind
of linen-draped version of the negotiation months after it happened.
Whereas we go in and take collective notes which we publish twice a
day. We are told that there are delegates who get phone calls in the
afternoon about what we've posted about what they've said in the
morning."

Doctorow is puzzled at the reception of this practice: "They
characterise that as an abuse of their hospitality because we're
telling tales. But it's the UN, right? The idea that the UN proceeds
in secret is the stuff of paranoid fantasy."

Indeed. Last November, during the twelfth session of the standing
committee of copyright and related rights, Doctorow found himself
clinging on to the reins of reality after literature IP-reform NGOs
had produced for the session was continually moved from the handout
table to the wastepaper basket in the first-floor men's toilets.

"This wasn't flyers with skulls and crossbones on them saying you guys
can all burn. This was thoughtful, well-informed, substantive comment
on the process that we as observers have been invited to present. We
ended up posting Rufus (Pollock, from the Campaign for Digital
Rights). Rufus stood by the table for two days."

Doctorow claims that further attempts to exclude the reformist
argument from treaty discussions were made when Wipo "switched policy"
on attendance leading up to talks on the Development Agenda earlier in
April. The Development Agenda is the first piece of legislation to
pass through Wipo that questions the direct link between strong
intellectual-property protection and development, and had been
directly facilitated by Doctorow and his allies. Whereas previously
both ad hoc and permanent observers had been welcome at such talks,
Wipo announced that only permanent observers could attend this
meeting; thus excluding the majority of reformist NGOs, although not
the EFF.

Whose democracy? 

Doctorow and his partner NGOs' message is perhaps a little too much
for the delicate ears of Wipo, an organisation funded by the trademark
and patent-registering business that until recently would never have
given the appropriateness of that arrangement a second thought. The
three aims of this year's World Intellectual Property Day suggest
Wipo's continued belief that development comes from protection of
intellectual property and that if you want more development, you need
more protection. That core idea has now been challenged.

After a two-day conference in September 2004 a coalition of NGOs
produced the Geneva Declaration on the Future of WIPO. Signed by high
profile free software and copyleft advocates, access-to-medicine
campaigners, library associations, academics, Nobel prize-winning
scientists and development organisations such as Oxfam, the
declaration demands that Wipo re-examine its ideas about the logical
link between copyright, patent and trademark protection and the
ultimate goal of its UN mandate: development.

Noting the emergence of other intellectual-property disciplines within
which development has been shown to flourish, and condemning the
anti-competitive advantage Wipo had bestowed on its most vocal
lobbyists in the past, the Geneva Declaration has already provided a
springboard to Argentina and Brazil from which to launch the
Development Agenda.

These and other rebel delegates from the global south, who have
identified an opportunity to swing the global intellectual-property
agenda – so intricately linked to world trade – in their favour, have
a tough battle ahead. Doctorow reveals the tensions at one meeting:

"There was a proposal to cancel the June meeting in favour of a series
of regional meetings, which is widely understood to be a
divide-and-conquer tactic. Brazil, Chile, Argentina, India…spoke out
passionately against it and said 'we block it, this is a consensus
body, and without our consensus you can't go forward with this'. And
the chair put it to a vote, and they had a vote, and he said 'well
that's democracy'. Their response was 'what do you mean that's
democracy? We have a deliberative process, and the deliberative
process is consensus oriented, there's no consensus in this room'. The
chair's reply was that the consensus is on substance not on points of
procedure."

Cory Doctorow is confident that his and other NGOs' activities will
end up having a lasting, positive effect on Wipo's engagement with the
developing world. As with many geeks, there is idealism just
underneath the earnestness. At the end of our interview he quotes
Gandhi: "'First they ignore you, then they laugh at you, then they
fight you, then you win".


-- 
Prabhu Ram,
Max-Planck-Institut for Intellectual Property, Competition and Tax Law,
MarstallPlatz 1, 
80539 Munich
GERMANY

Tel: + 49 89 24246226
Mob: + 49 17629830521
Web: http://infoserve.blogspot.com