[A2k] IP-Watch Inside Views: Global Copyright Reform: A View From The South In Response To Lessig

Ahmed Abdel Latif aabdellatif at ictsd.ch
Fri Nov 12 08:41:58 PST 2010

 Global Copyright Reform: A View From The South In Response To Lessig

By Ahmed Abdel Latif<http://www.ip-watch.org/weblog/2010/11/12/global-copyright-reform-a-view-from-the-south-in-response-to-lessig/?utm_source=post&utm_medium=email&utm_campaign=alerts#bio>

The copyright system is hopelessly unsuited to the twenty-first century and
needs major reform, says Lawrence Lessig. Speaking in Geneva in early
the American scholar called for the creation of a ‘blue sky’ commission, led
by the World Intellectual Property Organization (WIPO), to consider a new
international copyright architecture for the digital age. “If and only if
WIPO leads in this debate will we have a chance” at fixing the copyright
system, he told a WIPO conference on access to culture.

Professor Lessig is right. His call for global copyright reform is welcome
and timely. However, past WIPO led efforts in this area have rather been
unsuccessful. New reform initiatives should draw lessons from previous
attempts in order to increase their prospects for success.

Past changes to the international copyright system, as embodied in the Berne
Convention for the Protection of Literary and Artistic Works (1886), have
mostly resulted in the strengthening of copyright rules to the benefit of
rights holders. All attempts to reform it to the benefit of users of
copyrighted materials, such as consumers and developing countries, have
either failed or been of limited effectiveness such as in the case of the
Berne Appendix (1971) which contains special provisions for developing

Why this dismal record? The answer is quite simple: for more than a hundred
years, WIPO and its predecessors overseeing the Berne Convention were
strongholds of intellectual property rights holders, such as authors and
publishers, and their trade organisations. Even after becoming a United
Nations agency in 1974, WIPO continued to promote a paradigm of intellectual
property (IP) that tended to espouse the views of rights holders-based
organisations in the developed world; a perspective even generally
questioned by liberal economists all over and touted as perverse for
innovation by the business academic world.

In 2004, developing countries launched the WIPO Development Agenda, an
initiative aimed at promoting a public policy oriented and balanced view of
IP in accordance with WIPO’s UN status.

At the time, many prominent civil society figures and academics, including
Prof. Lessig, signed a ‘Declaration on the Future of WIPO’ supporting the
initiative. The Declaration invited WIPO to take “a more balanced and
realistic view of the social benefits and costs of intellectual property
rights as a tool, but not the only tool, for supporting creative
intellectual activity.” It emphasized that WIPO “must change.”

Did this ‘Change’ Occur?

In 2007, after three years of discussions, 45 recommendations were adopted
by WIPO’s membership, reflecting, to a certain extent, many of the demands
made by countries and civil society groups. Under a new director general,
elected in 2008, WIPO has shown an openness to address many issues which
were previously considered taboo. Indeed, Prof. Lessig’s presence at WIPO
bears testimony to this.

Naturally, this openness should be welcomed and encouraged.

However, it might be still too premature to consider if the ‘change’ that
was called for has effectively taken place. The implementation of the WIPO
Development Agenda is still very much an ongoing process. In many cases, it
remains to be translated into tangible and concrete changes in WIPO’s
activities and more importantly in the prevailing institutional culture of
the organisation. It should also be recalled that almost 90 percent of
WIPO’s income comes from fees paid by rights holders to use WIPO’s global
registration systems, particularly the Patent Cooperation Treaty (PCT).

Last April, leading developing countries at WIPO formed the WIPO Development
Agenda Group (DAG), which called for implementing the Development Agenda
recommendations in a way that “truly reflects their underlying vision and
spirit.” The group also appealed for “an enduring pro-development cultural
transformation within the WIPO Secretariat.”

An instructive example to consider, in this regard, relates to the
information on the institution’s website about the WIPO Internet Treaties
(1996), which were implemented in the United States through the Digital
Millennium Copyright Act (DMCA). A brochure on the ‘advantages’ of treaty
states that “adherence and implementation of the treaties offer a
number of benefits for countries *regardless of their stage of
development*(emphasis added).” This assertion seems at odds with both
the letter and
spirit of the WIPO Development Agenda, which fundamentally questions the
validity of a ‘one-size fits all’ approach to global IP norm setting

Another example comes from the “war on piracy,” which Prof. Lessig denounced
as a failure that is criminalizing an entire generation.

However, Prof. Lessig forgot to mention that WIPO is fully engaged in the
war against piracy. WIPO’s website advertises, on its home page, the Sixth
Congress against Piracy and Counterfeiting (2nd -3rd February 2011), which
WIPO is organizing along with Interpol, the World Customs Organization
(WCO), the Business Action to Stop Counterfeiting and Piracy (BASCAP) and
the International Trademarks Association (INTA). The first
session<http://www.ccapcongress.net/>has the chilling title of
‘Knowing the Enemy’. The question that is begged
to be asked is whether WIPO’s ‘leading’ role in the war against piracy can
be made fully compatible with its ‘lead’ role on in global copyright reform,
particularly through *ad hoc* arrangements like the suggested ‘blue sky’

Finally, global copyright reform should not be confined to the digital
environment. Developing countries’ grievances about global copyright rules
extend well beyond the digital environment. In the past two years,
developing countries have submitted to WIPO proposals for new treaties on
limitations and exceptions for the visually impaired and for the disabled,
educational and research institutions and libraries. Such proposals have
been met with opposition by some developed countries and rights holders
representatives who favour soft norms or technical solutions. More
generally, developing countries view copyright reform through the lens of
the broader ‘access to knowledge’ framework which is also an important
component of the Development Agenda.

Global copyright reform is badly needed. It is ultimately up to WIPO member
states to decide how to go about it. For the moment, hopes for ‘reform’ are
embodied by the above mentioned proposals made by developing countries and
they should be actively supported. Any future reform process of the global
copyright system needs careful thinking and broad discussion about its
objectives. Given that global copyright rules have acquired such a pervasive
impact in many facets of our lives, their reform needs to take place through
an open, inclusive and participatory consultation process where ‘all of us’
have a say.

*Ahmed Abdel Latif is Programme Manager for Intellectual Property and
Technology at the International Centre for Trade and Sustainable Development
(ICTSD). Previously, as an Egyptian diplomat, he took an active part in
global debates about IP and development particularly in the context of the
WIPO Development Agenda. The views expressed in this article do not
necessarily reflect the views of any institution with which he is


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