Karsten on Free Software

This summary is somewhat long. If you prefer pure entertainment to the fascinating, fast-moving UN processes, treat yourself to unhappybirthday.com. I already linked there a few months ago; but then, it really conveys in a nutshell one of the problems of the present copyright system.

Now for the serious part. The three days of the WIPO IIM/2 were mainly filled with procedural haggling. Nevertheless some people from the Friends of Development considered the meeting a success. In the Brazilian view, it is a big deal that they were able to bring some countries to taking an outright position. This was especially the case with the USA, who were finally prodded into publicly admitting that the refuse the core points of the proposed development agenda.

Before, they consciously kept things vague. Now, it is on the record that they refuse the establishment of a WIPO research and evaluation office (WERO); that they do not want, among others: transparency a wider participation of Civil Society that NGOs be allowed to input advice before norms for WIPO’s work are set benchmarks for evaluation of technical assistance a code of ethics for the people working in technical assistance

This being only the points that most offended the US, their position really amounted to a “Hell, NO!” to the idea of a development agenda as a whole. This is not only because these are the core points; also, the FOD proposal really represents an integral whole, more than just the sum of its parts. As a consequence, taking out these vital elements in effect sabotages the Development Agenda.

But while it might appear strange to you that something like transparency should be so objectionable, what is really fascinating are the grounds on which the USA rejected these ideas: They alleged that while the FOD proposal was basically sensible, the Friends of Development were really pursuing a secret agenda. This can be summed up to say something like “What you say is not bad, but we think that what you really think is something different, something evil.” Does this sound strange to you? Well, it is.

WIPO until now has basically served the interests of the northern countries and their industries. It is perhaps not surprising that its northern members are opposed to changing this. The strategy of the Friends of Development will most likely be to keep forcing these countries to pronounce their position more clearly. As they have the moral high ground, this looks like a winning move for now.

Facing this situation, the IP traditionalists seems to be in a state of shock, showing signs of disorientation. Some, especially among the BINGOs (just to reintroduce the acronym: Business Interest NGOs), react with outright aggression, while more serious participants, such as Canada, actually seem ready to negotiate. The EU is a bit of a special case, as they were not speaking with a single voice this time. While Britain kept insisting on making the issue disappear into the half-dead PCIPD, France opted for a more fuzzy statement more in line with the Canadians.

This can only work if the group of the Friends of Development holds firm. Contrary to my expectations, there were no countries that had been broken from the group by bilateral pressures or simply had sold out. Looks like things are progressing in the right direction, if only slowly.

As for the WIPO bureaucrats: Judging from the hearsay I’ve gathered, most of them are quite sceptical of this small revolution. But this may vary with their age and seniority: While the ones high up the ladder would like to keep things running as before, the layers just below them are recognising that WIPO needs to adapt itself if it is to survive, and that this process ist not necessarily a danger to them.

The process is gathering momentum, and whatever the result, WIPO will never again be quite like it was before. I just can’t bring myself to think that this is a bad thing.

We’ll be back for more in July, around the same dates (20th to 22nd). Can’t wait to place my rear end in those leather chairs again.

Now there’s a good overview of the WIPO IIM/2 on heise.de (in German).

With respect to another event, Markus Beckedahl of the excellent netzpolitik.org blog (also in German) is keeping you informed about what happens at the GNU/Linuxtag.

Despite a complete power failure in the Swiss railway network, which had us stranded in Basel for a while, Georg and I made it to Karlsruhe for that event yesterday night. FSFE is here with two booths and a lot of really interesting people. Most of them I have only known through mailing lists until now, and it’s good to meet them in real life. If it just wasn’t so bloody hot.

With the free world busy fighting the communists, it seems that the Cold War has survived its end in the real world by a decade and a half. If you ask the part of lobbying organisms that call themselves free-marketeers, the present tensions in WIPO are really a fight between “pro-IP” freedom fighters and “anti-IP”, well, communists.

This is the the result I was able to condense from conversations with several people over a few glasses of wine. The traditionalists, mainly integrated into the US neo-conservative movement, categorize everyone as either “pro-IP” or “anti-IP”. This is counterproductive to any sort of dialogue.

Moreover, it once again shows that the term “Intellectual Property” has so much potential for confusion that it reduces otherwise surely intelligent women and men to sectarian populists. Maybe a division along the lines of the aspects contained in it – patents, copyright, trademarks and so on – would be helpful. But then, dealing with three issues instead of one might be too complex for certain binary minds.

After submitting several pages of fudge on Monday, calling it a proposal, the distinguished representative of Bahrain had to take some criticism from other Arab countries, such as Egypt. The latter observed that the Bahrain proposal contradicted on several accounts the final statement of the Second South Summit in Doha, Quatar, on June 16th, which had been signed, among others, by the King of Bahrain.

Now, you would think that the representative might have been called to order by his government. No such thing has apparently happened. After Egypt pointed to this conflict, cutting itself short so as not to further embarass their “Arab brother”, the representative came up with something less fudgy, adding it to his proposal.

This addition has the merit of clarifying a few things. It asks WIPO “to undertake studies to demonstrate the economic, social and cultural impact of the use of intellectual property”. “Demonstrate”? This implies that the impact is well known already, and the infinite number of blessings a stricter IP regime (oh no, the term is leaking into me – I think there’s IP on my shirt) offers only needs to be documented.

Another paragraph demands that WIPO’s technical assistance should promote an “IP culture with an emphasis on introducing intellectual property at different academic levels”. Now, while this conjures up the image of truckloads of “Intellectual Property” being hauled into schools and universities, what it really means is less funny: Schoolkids should be convinced that it is immoral, if not illegal, to eg. share a book with their neighbours. I am not entirely convinced that this is what the King of Bahrain signed onto in Doha, together with about 130 developing countries.

But the real climax is provided by a happily frank paragraph, in which WIPO is asked to “establish a […] fund to promote the legal, commercial and economic exploitation of intellectual property rights in developing countries […]”. Not only is there no mention of *whose* rights should be exploited. The text also explicitely states that those rights should not be exploited *by* the countries, but rather *in* the countries.

I did not want to use this word in here, as it is too cheap an allegation even to my non-savoury taste; but this does smack of colonialism more than just a little.

Later on, the document loses its pleasant explicity and returns to the obfuscation strategy so familiar these days. Just say something that sounds good, and put a “maybe” before it. That way, you are sure not to incur any obligation.

But that may be too late for the distinguished representative of Bahrain to save his company car on his return back home. I hope his King takes due account of the way he is being represented.

Sorry for not posting earlier. Yesterday evening became a bit hectic when, to pretty much everyone’s surprise, the country delegations kept their comments so short that all of a sudden the NGOs were invited to make their statements. As many of us had estimated that it would be Tuesday afternoon before we got to say anything, this prompted energetic preparations. It went quite well, though.

Much like the morning, the afternoon was dedicated to discussions about how to discuss. The assembly has roughly split into two blocks, thereby clarifying the situation a bit: On the one side, there are the “Group B” countries, roughly equivalent to the EU. This group has been joined even by the United States, which by now seem to have realised that they will not be able to simply stifle any change in WIPO. (Remember their charming proposal to close the knowledge gap by setting up a website to coordinate “IP donors” with “IP recipients”.)

On the other side, there is the core group of the Friends of Development, led by Brazil and India. They have been joined by almost all developing countries. A few days ago at the 2nd South Summit in Doha, Quatar, some 130 developing countries (including China) had met and demanded a more inclusive international regime on patents, copyright and trademarks. They even included the NGO-born “Access to Knowledge” phrase in their final statement.

This statement was signed by, among others, the King of Bahrain. This made for quite an interesting moment yesterday afternoon, when the representative of Bahrain made a statement that contradicted the South Summit’s outcome on all accounts. This prompted the Egyptians to ask him if the King of Bahrain had maybe changed his mind about Access to Knowledge on the flight back?

The issue now at stake is the forum where a Development Agenda for WIPO will be worked out. The rich countries suggest strengthening the Permanent Committee on Cooperation for Development related to Intellectual Property (PCIPD). This is a mostly advisory body, whose decisions the General Assembly is free to ignore.

The developing countries prefer to set up a really independet office for evaluation of and research into the development impact of WIPO’s policies. This is the solution most likely to serve the cause, which is why it is so intensely fought by the rich countries. Well, it would probably cost a bit of money, and it might just be that the rightsholding industry would not be too forthcoming in their support of this particular body.

Now, the morning session is about to start. I’ve been advised that it will be mainly about procedural infighting. But at least the development agenda idea has gotten too far to simply be denied its importance. It’ll be an interesting morning.

The morning went much like informed people predicted. It is all about procedural issues, so that the room is filled with tactical maneuvering. Argentina, most likely for the Friends of Development, had yesterday refused the Chairman’s notion to move discussion to informal groups, where there would be no documentation. This would have the advantage that delegations could speak more freely; but it would disadvantage the developing countries.

Before the general fight about tactics started, a few more statements were invited, as they had been cut short yesterday evening. This way, I had the pleasure of reading a statement for the Union for the Public Domain, which I had written up yesterday afternoon as it became clear that NGO’s would have the chance to speak.

Over the course of the night, the Chairman drafted a structure for the debate. Unfortunately, this so much lumps different issues together under three vague headings, that especially the Friends of Development fear that the structure will only serve to draw out discussions and thus avoid actual results. As attending WIPO meetings implies high costs, which especially developing countries find hard to bear, this might lead to some of them retreating from the issue of the development agenda. Starving tactics.

In extremis, this would mean that there might be no Development Agenda for WIPO, but rather a bunch of flowery statements. That is why, after pointing to the structure suggested yesterday by the FOD, Brazil suggested to make a list of issues instead, which could then be discussed.

The tone has gotten rougher. The atmosphere is becoming more and more heated – and quite literally so, as the air conditioning does not seem to have kicked in as yet. Lots of delegates seem to be unable to turn off the sound on their computers and mobile phones. With lots of chatter especially in the back row, the room feels more and more like a classroom full of increasingly annoyed children.

Now, as the Brasilian structural proposal is being distributed, I’ll go outside, post this entry and then hang on for lunch break. It’s a hot day in more than one respect.

And I thought that after one and a half days of procedural discussions, the delegates would finally get on with discussing about the Development Agenda. They made an attempt at it, but delays continue.

After having discussed one point – that charming proposal by the USA to throw a website at the Knowledge Gap -, the discussion turned to technical assistance. I understand that this has been a sort of sore spot of WIPO’s work in the past, as WIPO was happy to assist developing countries in setting up bodies to monitor copyright, patent and trademark activities, in accordance with the TRIPS agreement; but reportedly WIPO frequently forgot to tell developing countries about the flexibilities of that agreement.

Other people’s writing about this meeting is now available online. The EFF is at it again, producing pretty exact transcripts of the meeting; I hope these will be online soon. For a concise summary, see IP-Watch.

In short, that means: Countries incurred obligations without being informed about their rights. This was one of the important causes of the movement behind the Development Agenda.

Now that the attempt to push the whole Development Agenda discussion into the comparatively minor PCIPD committee has failed, some countries – especially the UK, usually on behalf of the Europeans and the USA – are trying to take the debate there issue by issue. This has led to a round of renewed procedural haggling.

I’m starting to wonder if there is intention behind this, or if it is pure inertia. I am inclined to distrust the good will of some in the assembly; but then, after talking to more people, it starts to seem more and more like pure inertia. Someone to whom I mentioned my suspicion said, and this could be counted as a general statement on the negotiations: “Never underestimate the capacity for ignorance.”

Some business NGO is offering cocktails on the top floor. Could be an interesting evening. But then, I can’t wait to get off my suit and tie. It’s so nice down at the Lake right now…

For a long time, I haven’t been able to write anything. There was a lot of grunt work to do in preparation for the GNU/Linuxtag, which will start on Wednesday in Karlsruhe, Germany. Between now and then, however, still lies the second part of WIPO’s intersessional intergovernmental meeting (that’ll be IIM/2 for the rest of this blog). I’m curious to see what has become of the processes that started in April and receded behind closed doors after that meeting was over.

Last week brought some great news: Markus Beckedahl from Berlin was awarded the title “Best Blog, International” for netzpolitik.org by Reporters sans Frontieres. Markus: Congratulations. Please keep on with your important work.

As all the world-saving will start only tomorrow, that leaves me today’s sunday for strolling through Geneva. Maybe I’ll even go swimming in the lake. The weather is so fine as to not really make me look forward to spending three days of my (more and more relative) youth in a big room with 200 guys in suits.

Notwithstanding, I’ll do the same thing I did in April: Keeping track of what’s going on in the negotiations, and summing it up for you. Don’t worry, this is not a work of pure altruism. I’ve decided to write my master’s thesis on “Free Software and Access to Knowledge”, and following this meeting will be an important part of the preparation process.

But now I’ve had enough of sitting inside typing. I’ll take my swimming trunks and move towards the lake. Let’s see what I will find there.

As could be expected, the first item of the morning was about the procedures of the meeting. These were rather quickly agreed on, as there were only two new proposals by Bahrain and the UK. The main focus of the morning session is how to structure the debate. There is a power struggle about who gets to set the agenda: In diplomacy, the question of how something is discussed is almost as important as the question what is discussed.

After a merciful break at the beginning of the meeting, delegations taking the floor have started congratulating the chairman on his election again. I had hoped this was over after the first meeting. However, once one delegation started, it seems that the others could not stand back.

The representative of Switzerland made an impressive statement. Lamenting that not everyone recognised the benefits of a strong “IP culture” for development, he accused developing countries and Civil Society of themselves becoming obstacles to development. I find it interesting that Switzerland reckons that developing countries are too busy knocking stones together to start fires to recognise the possibilities offered to them by rich countries which just know so much better what is good for development.

Not only is this condescending and completely ignorant of the fact that it is probably the developing countries themselves who know what’s best for them. It also points to a mindset that is best expressed as follows: “We are WIPO. You will be developed. Resistance is futile.” I am proud to be part of a Civil Society that is an obstacle to this sort of development.

The weather outside, of course, is glorious. Nursing my sunburns from yesterday’s swim in Lake Geneva, I appreciate the curtains blocking the view to the blue sky. If you have to spend the day sweating together with 300 people in suits, ignorance is bliss.

A special treat: The Secretariat delivers a defense of its past work. They basically read out WIPO’s mission statement, saying that the Secretariat has never deviated from the path it was told to go by the member states. It sounded like an attempt to delegate responsibility for WIPO’s past work on the member states. Funny that the Secretariat should feel so guilty about its work. Or did I get something wrong there?

Coming from the right people, derision makes for a good compliment. An animated discussion Georg and I maintained with Thomas Giovanetti, a think tank from the Institute for Policy Innovation… no, sorry. The think tank is, of course, the institute, not the man. Well, anyway: Said discussion prompted Thomas (who has been amiably ignoring me all through the morning) to post an interesting blog entry about the Free Software commies.

Please take note that the blog you’re reading right now (mine, not his) is now that of an officially recognised communist. Adjust your world view accordingly and follow the religious teachings of the Institute for Policy Innovation.