The second Global Congress on Intellectual Property and the Public Interest opened on December 15th in Rio de Janeiro, hosted by the Center for Technology and Society at Fundação Getulio Vargas.  The first day featured a series of plenary speakers.  The webcasts are available here.  This blog contains a very abbreviated account of the talks:

Tim Lee described the growing push for copyright reform from American conservatives.  His talk included mentions of conservative opposition to SOPA, the recent Republican Study Commission report arguing for copyright reform that was instantly retracted, and Jerry Brito’s new book “Copyright Unbalanced.”  He argues that there is something of a clash between younger and older conservatives, but that the ideas behind the conservative opposition to copyright are here to stay. 

Glyn Moody recounted the story of how opposition to ACTA became widespread and ultimately killed the agreement in the European Parliament.  The lessons learned from the fight over ACTA include – the interconnectedness of small pieces of opposition are important; technology makes people connect and become stronger; it helps to have official texts to oppose; and it is good to have opposition unaligned with any particular political party.

Niva Elkin-Koren spoke about recent developments on limitations and exceptions to copyright in education.  There were some positive developments in the courts (ie – Cambridge Press v. GSU ruling on small copies) and politics (ie – boycott against Elsevier). However, there were also new challenges for A2K such as licensing restrictions, enforcement by intermediaries, and even automated enforcement.  Moving forward, Elikin-Koren suggested that advocates for greater access to educational materials move away from advocating “limitations and exceptions to copyright” – a defensive posture; and towards advocating for “user rights.”  This sentiment was echoed by others throughout the Global Congress.

Nagla Rizk gave an account of advocacy in Egypt over the past two years.  She said a persisting and continuing paradigm of dictatorship that has only taken different forms. After the ouster of Mubarak, Egyptians were jubilant, but they have been very disappointed by Morsi, who governs according to a philosophy of exclusion and extreme polarization. Advocates had hoped to be pushing an agenda of openness by this time, but they find themselves having to argue about more basic things like women’s rights and development. Going forward, it will be important to build democratic institutions.

K. M. Gopakumar discussed the state of the positive agenda with a focus on access to medicines. Progressive developments in in the last year have included the LDC request for extension of the TRIPS waiver (this will be up for discussion at the next TRIPS Council); compulsory licenses in India and Indonesia; South Africa’s Fix the Patent Law campaign; and the judgment against Kenyan anti-counterfeiting legislation.  Forums for debate have included trade negotiations, the Africa IP summit, and WHO’s engagement with counterfeit medicines. Problems have included slow progress on the implementation of the WIPO development agenda, numerous IP enforcement initiatives, and terms in voluntary pharmaceutical licenses that cut out middle income countries.

Carolina Botero described Colombia’s experience with “Ley Lleras 2,” copyright legislation to bring the country into compliance with its FTA with the U.S. Previous legislation had been sunk by popular opposition, so Ley Lleras 2 was rushed through the legislature within 20 days to ensure there was no time for debate.  It included anti-circumvention provisions, tough criminal sanctions for infringement, and other controversial provisions. However, civil society did speak out against it, and the law faces a challenge in the courts.  In the next legislative session there will be two draft bills on limitations and exceptions. Colombian civil society wants to change the policies in Latin Am from an enforcement agenda to a positive agenda

Pedro Paranaguá described Brazil’s Internet Framework Bill, which was a joint initiative of FGV and the Ministry of Justice. The bill’s nickname is the “internet’s constitution” because it deals with the general rights and responsibilities of users. It covers freedom of expression; net neutrality; privacy, log retention, and ISP liability.  The bill was widely debated, and it evolved through a large public consultation process involving six public hearings.  There was an online consultation process through the Chamber of Deputies’ e-Democracy portal which had 45K visits, 140 proposals, and 2,215 comments. Due to this process, there is a lot of political support for the bill.

Ahmed Latif described the civil society mobilization against the Pan African Intellectual Property Organization (PAIPO) quietly negotiated from 2006 to 2012, when it was suddenly learned that the draft statute of PAIPO was ready for adoption in two months.  PAIPO aimed to unify and administer all IP in Africa, but it did not integrate any public interest concerns, did not integrate African positions at WIPO, and it had nothing on flexibilities.  Civil society quickly mobilized against it. Petitions gathered numerous signatures.  In November, actors decided to postpone PAIPO and create a consultative group to study it.  The decision to create PAIPO remains established, but what the statute should look like is open to consultation.

Lessons from the near-establishment of PAIPO include

  • Many of these processes that take place at the technocratic or bureaucratic level are difficult to engage in.
  • Regional level governance of IP matters and it is hard to intervene.
  • Governments represent diverse views and not all agencies are aligned
  • Institutions matter.

Joe Karaganis noted that the Global Congress is the latest platform for activists to network and strategize, but there have been others before, such as the Yale A2K conferences and the Bellagio Dialogues, which created networks that are still together and affected many of the Geneva NGOs (ICTSD, South Centre) which helped steer WIPO into a new direction.  Going forward, there will be a generational shift in attitudes about copyright – the young favor more flexibility.  However, there is currently a funding shortfall for public interest IP advocacy.

James Love reviewed different IPR campaigns over the past 22 years, including those to protect the public domain (such as the campaign for open access to government databases; fights over the scope of patentability), to protect consumers (pricing disputes; demands for voluntary licensing), and to produce community-owned knowledge (Creative Commons; the free software movement). He describes KEI’s current work to eliminate IP monopolies on drugs and bring the marginal cost of product to zero.  It involves delinking the cost of R&D from the cost of production.  This type of de-linkage is under debate in several WHO resolutions, a possible UNITAID evaluation for HIV drugs, a European debate over cancer drugs, and in various national and regional contexts in developing countries. However, there was a significant setback in November when it became apparent that the WHO secretariat is trying to kill a proposed treaty on R&D.

Vera Franz noted that advocacy against the IP Maximalist agenda has been growing – and recently enjoyed success in the U.S. – but opposition to the agenda has not yet become mainstream. She showed a graphic of the interlinked web traffic around ACTA, but warned that advocates have not defeated the ideas in the agreement.  Franz noted that language shapes and dictates how we think about things – and she argued that the term “User Rights” should be embraced as an alternative to limitations and exceptions to copyright. She warned that we have ignored the role of contracts, which increasingly override user rights.  A2K advocates should be warned that Amazon and other proprietary sites are beginning to replace public libraries, and should look beyond IP law towards other types of law, like consumer protection and access to information.

Germán Velásquez noted that the problem of access to medicines is as old as the pharmaceutical industry, but two major events changed the nature of the problem in the 1990s – the arrival of ARVs at the cost of $10,000 per person per year, and the creation of the WTO.  Problems of the current system include – medicines are treated as commodities instead of as public goods; research agendas are focused on possible markets instead of health problems; huge patent thickets on new medicines; reliance on the patent system as the sole incentive for the production of medicines.  As a result, only 20% of people in need of antiretrovirals receive them.  We need a sustainable long term innovative mechanisms to promote pharmaceutical R&D to address public health needs particularly in developing countries

Renata Reis discussed HIV/AIDS advocacy in Brazil, where a vibrant civil society has worked to expand access to treatment for 17 years. The anchor of the social movement is universal access – HIV/AIDS treatment is available to everyone – and local production of medicines.  After the patent law was approved, there were fights over compulsory licenses, a fight to incorporate TRIPS flexibilities. The HIV/AIDS movement had to get closer to other groups, such as those questioning FTAs.  The movement shifted to the left, dealing with people who deal with other IP topics (like agriculture).  Agendas were very diversified, dynamic.  Going forward, it is paramount that we find alternative solutions to the problems we face.

Paul Keller discussed access to culture.  Europe has various efforts to digitize old film which has been degrading. In addition to restoring works, the projects aim to make them available “for everybody” –  ut copyright barriers came up.  In Europe we think a lot about licenses and collecting agencies but if you talk to policymakers, they see the long arc as some sort of learning curve.  They say we should properly fix copyright – by focusing on limitations and exceptions.  This becomes contentious.  You see the cultural sector is stuck in the idea that nothing will ever change, and that we’ll be stuck in this licensing framework forever.  We are being outpaced by content creators.  There is a tremendous opportunity for us at the moment.  We should argue for a proper solution to the problem.

Peter Jaszi talked about the ongoing struggle to make limitations and exceptions more workable for consumers. He reminded people that he spoke last year about discourse – about the importance of the language we choose and the metaphors we use. He discussed how the framing of issues in the 1993 Bellagio Declaration influenced subsequent negotiations at WIPO, and how fair use has come to be accepted as a “right” enjoyed by users, where it used to be thought of as a sort of loophole.  Going forward, we should recast the debate over “limitations and exceptions” to copyright by placing it in the terms of “user’s rights.”

Renaldo Lemos described the Marco Civil, the bill of rights for the internet under debate in the Brazilian Congress.  It was the first collaboratively drafted law, created through an online public consultation via a platform made by the Ministry of Justice and FGV.  The Marco Civil deals with privacy, freedom of speech, net neutrality, access, intermediary liability, and open data.  Five ministries have approved the bill and sent it to Congress, but it is in trouble due to lobbying by the telecos. They don’t like the net neutrality provisions, and they want the right to monitor users.

Theresa Hackett discussed limitations and exception for libraries, which currently work under a patchwork of L&Es that differ from country to country. Libraries favor a global approach, and they have brought the issue to WIPO.  In November 2011, the WIPO SCCR held three day session on Libraries and Archives.  It agreed on eleven topics on libraries and archives for future discussion, and it has a timetable in place to continue “text based work” for a legal instrument by 2014. Major issues that need to be addressed include the absence of exceptions for core activities like preservation; the fact that exceptions are not updated to deal with realities in the digital age; and that license terms often override limitations and exceptions designed to support education.

Cláudia Chamas discussed the work of the WIPO Consultative Expert Working Group (CEWG) on Research and Development.  The problem they addressed was that market forces won’t lead to the development of sufficient affordable medicines for diseases and conditions affecting most of the world’s population.  CEWG’s mandate was to take forward work of prior working groups; and to examine submissions and proposals for R&D financing and coordination. The basic ideas that guided them were Free and open competition in production; Requiring delinking of R&D costs and prices of products; Upfront public financing of the R&D; and the reestablishment of R&D as a global public good.

Matthias Lamping discussed the “Patent Declaration” which the Max Planck Institute is currently working to draft. Patents are regulatory institutions which must be tailored to the domestic legal systems and national realities.  This requires flexibility, but it is complicated by multilateral and plurilateral trade agreements.  The goal of the Patent Declaration is not to change TRIPS, but to illustrate how it can be implemented in a balanced manner – is to promote the flexibilities in TRIPS and show the legal discretion countries have. It is similar to the Max Planck Institute’s Declaration on the Three Step Test.

Jeremy De Beer and Chidi Oguamanam discussed the work of the Open Air project. A fundamental flaw in IP system is that it doesn’t account for knowledge production process in marginalized cultures. Open Air seeks to map out a strategy for bringing an African voice to IP lawmaking and policy formulation, which has historically denied Africa its contribution to the world IP system.  They showed a tool that allows one to visualize connections between IPR advocates within a network – focusing on the metrics of centrality (number), betweenness (kind), and closeness (distance).  These connections helped Open Air to rapidly mobilize against PAIPO – which de Beer called “Africa’s ACTA” – and stop the process from moving forward.

Sunil Abraham showed the audience a number of low-cost innovative smartphones available today in India.  One phone is the “mobile classroom in a box” with a projector, decent speakers, pointer and more, which costs $110. The phones are manufactured in China, and they face many patent issues, but they involve roughly the same amount of patent infringement as Samsung, Apple, etc.  Meanwhile, royalties paid by India are far higher than those received by India (2,437 v. 59.5 (M$)), and outward royalty payments have been growing dramatically.  Royalty caps used to exist in India, but they have been lifted. Voluntary pooling of IPRs and voluntary licensing is not working – compulsory patent pools are needed for the devices.

Carolina Rossini gave a talk about the threats posed by TRIPS-Plus provisions in trade agreements. She warned that many people take freedoms for granted, without realizing that there were conscious choices made to keep the internet open.  However, today “complex rights issues are being negotiated in non-transparent, non-democratic fora, undermining WTO and WIPO and national efforts of policy and law making,” amounting to a system of policy laundering by IP Maximalists.  Furthermore, “Copyright holder rights are expanding and ISPs are being pressured, while exceptions and limitations and fair use are being threatened.” Everyone has different roles to play in combatting this move towards ever-higher IPR protection.