>
>
>http://fromgeneva.blogspot.com/2006/07/public-domain-open-standards.html
>2 July 2006
>Thiru Balasubramaniam
>
>The recently concluded WIPO Provisional Committee on Proposals related
>to a Development Agenda (PCDA) meeting (26-30 June 2006) saw a rich
>discussion on the public domain, competition policy and open standards
>despite the failure of the PCDA to reach an agreement on recommendations
>to the WIPO General Assembly on how to tangibly integrate the
>development dimension into the core of all the Organization's
>activities.
>
>At the conclusion of the first session of the WIPO PCDA in February
>2006, the Chair (Ambassador Rigoberto Gauto Vielman of Paraguay)
>arranged the 111 proposals submitted thus far into six clusters (A)
>Technical Assistance and Capacity Building, (B) Norm-Setting,
>Flexibilities, Public Policy and Public Domain, (C) Technology Transfer,
>Information and Communication Technology (ICT) and Access to Knowledge,
>(D) Assessments, Evaluation and Impact Studies, (E) Institutional
>Matters including Mandate and Governance and (F) Other Issues. Although
>this approach appeared to give a coherent blueprint on how to structure
>the discussions, critics of this approach asserted that this thematic
>clustering removed the 111 discrete proposals from their respective
>contexts.
>
>With respect to discussions on "Cluster B" (Norm-Setting, Flexibilities,
>Public Policy and Public Domain", Mexico reprised its role as antagonist
>par excellence to the spirit and purpose of the Development Agenda. With
>regard to specific proposals in Cluster B relating to establishing a
>Treaty on Access to Knowledge and Technology, facilitating access to
>knowledge and technology for developing and least developed countries
>and developing an "international framework to deal with issues of
>substantive law relating to anti-competitive licensing practices",
>Mexico asserted these proposals would "invade UNESCO's and UNCTAD's
>mandates".
>
>In addition, Mexico argued that WIPO did not have the competence to deal
>with the TRIPS Agreement and therefore Mexico could not accept the
>language of a proposal which called upon WIPO to "protect and promote in
>all negotiations the development oriented principles and flexibilities
>contained in existing Agreements, such as the TRIPS Agreement". On the
>proposals related to examining "free software development and creative
>commons models" and WIPO's promotion of models based upon "open
>collaborative projects to develop public goods, as exemplified by the
>Human Genome Project and Open Source Software", Mexico's appeared
>inextricably wedded to defending the interests of proprietary software
>publishers as the Mexican delegation noted that it was "inappropriate to
>express government support for these vehicles. This should be a matter
>for the market to decide, not the government."
>
>In refreshing contrast to the positions advocated by Mexico, the Indian
>delegation called upon WIPO to study open standards, particularly in the
>area of telecommunications, as this was something the Indian delegate
>felt would support development. With respect to "open source software",
>the Indian delegate stated that "open source software uses the IP
>system. Open source software has already provided a good benefit for
>technology transfer, for keeping customer not locked to a proprietary
>system."
>
>With respect to the public domain, Chile gave an impassioned defence of
>why WIPO should engage in further examination of proposals to "consider
>the protection of the public domain within WIPO's normative processes"
>and to draw "up proposals and models for the protection and
>identification of, and access to, the contents of the public domain".
>Furthermore, Chile supported the proposal for WIPO to have an electronic
>forum devoted to the discussion creative commons, systems of free and
>open licenses, a Treaty on Access to Knowledge and a Treaty on Medical
>R&D. The Chilean delegate noted that in the context of upward
>harmonization of patent and copyright norms,
>
> often the line between what is protected and what is in the
> public domain has become more hazy, more diffuse, for instance
> because we have increased the rights holders' terms of
> protection, and introduced laws for technological protection
> measures to give more protection to rightholders. The objective
> of our proposal is to give more certainty to the users of IP
> works and society in general.
>
> Much has been done by WIPO to identify what is in the public
> domain. In particular, in relation to scientific knowledge, much
> has been done with SPLT on disclosure of patent info but now we
> think that there are things that governments can do-e.g. to
> indicate when materials falls into the public domain. We gave
> the example of Canada with respect for orphaned works. There are
> many studies that show the return on works is about 10 years.
>
> Regarding copyright, we know that the threshold of what is
> considered original and subject to protection is low. We gave
> examples of legislation that have extended terms of protection
> retroactively.
>
> Our proposal is that governments would have an obligation to
> notify -- via a world database - all those works and inventions
> that fall into the public domain.
>
> As far as patent goes, there is good argument for doing so. It
> would improve quality of patents by making access to scientific
> information in the public domain.
>
> The IP system is effectively a contract between users and
> rightsholders. We want to make that contract operational.
>
> On topic of exceptions and limitations, it was said that this
> was not within the competence of WIPO. This is not so. We have
> made a request in WIPO SCCR for a study of the topic of L&E for
> disabled, educational purposes, libraries and archives.
>
>
>The delegation of Australia showed considerable flexibility in
>supporting in principle proposals to examine non-exclusionary models for
>fostering innovation and transfer of technology (e.g. free software
>development and creative commons models) as well proposals which
>promoted "models based on open collaborative projects to develop public
>goods". This was perhaps the only OECD Member State that voiced support
>of proposals to look at open collaborative models.
>
>Despite the rich discussion of the public domain, open standards and
>open collaborative models during the PCDA, the impasse reached at the
>final stages of the WIPO PCDA threaten to derail the initial
>constructive spirit of this Committee. One hopes that the WIPO General
>Assembly will provide the political impetus to renew the Development
>Agenda mandate and specifically mainstream discussions of open
>standards, limitations and exceptions, the public domain and open
>collaborative models into the norm-setting committees of WIPO such as
>the Standing Committee on Copyright and Related Rights and the Standing
>Committee on the Law of Patents.
>
>
>[Inputs from: Gwen Hinze -Electronic Frontier Foundation, and Teresa
>Hackett-Electronic Information for Libraries]
>
>
>posted by Thiru Balasubramaniam @ 2:31 PM
>
>
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