Online Forum on Intellectual Property in the Information Society  
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 Theme Three: The public domain and open access models of information creation: at odds with the intellectual property system or enabled by it?

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    1. Wikipedia defines “public domain” as the “body of knowledge and innovation (especially creative works such as writing, art, music and inventions) in relation to which no person or other legal entity can establish or maintain proprietary interests. This body of information and creativity is considered to be part of the common cultural and intellectual heritage of humanity, which in general anyone may use or exploit.”1 The public domain includes works and objects of related rights that can be used and exploited by everyone without authorization, and without obligation to pay the copyright owners concerned – generally because the term of protection for the works in question has expired or because there is no provision of copyright law requiring protection of the works in the country where the works are sought to be used.2

    Some complexity arises from the fact that the duration and conditions for copyright protection vary from country to country, and works enter the public domain in different jurisdictions at different times3, creating challenges for persons wishing to use material accessed from a global medium such as the Internet without potentially infringing copyright. In recent years, and especially in the context of the Information Society, there has been exploration of authors’ ability to exercise their rights by dedicating their work to the public domain.4 From a legal perspective, it is notable that various national copyright laws may establish limits to the rights that an author may waive or transfer.

    Subject to the discussion above, copyright holders can exercise their choice to dedicate their work to the public domain, assign copyright to an open source project, grant a non-exclusive or exclusive license to users for payment or free of charge, or reserve all rights. There are growing concerns that lack of knowledge among creators about the choices available to them leads to a de facto position of “all rights reserved”, creating economic scarcity that drives up the cost of copyright goods. The effect, it is argued, is to reduce the public domain of information and knowledge, particularly knowledge that is necessary for continuing creative activity – Professor Lawrence Lessig has described this as the effect of a “permission culture” as opposed to a “free culture”.5

    Of course, all rights reserved is a legitimate choice for authors to make, and many do – but equally, others may choose to release their works under more flexible conditions, free of charge or free of restriction. The copyright system itself is not a business model, but a tool that can provide the basis for many business models. The estimated more than 50 million blogs in existence at April 20056 are largely written for free access and free of charge (although the authors generally assert copyright in their work), and some bloggers are exploring business models that enable payment for their efforts, such as through banner advertising or voluntary contributions. For example, Matt Drudge’s blog, the Drudge Report,7 which scores some 150 million pageviews per month, has been reported to earn its creator more than US$1 million annual income from banner advertising. The blog published by the US political commentator, Andrew Sullivan, invites readers to make a donation through an American Express credit card.8

    2. The WSIS Plan of Action calls for the development of “policy guidelines for the development and promotion of public domain information as an important international instrument promoting public access to information.”9 The Creative Commons initiative, a non-profit corporation in Massachusetts (based in Stanford University, and founded by Lessig) aims to make it easier for creators to make ‘free’ copyright choices. According to Lessig: “It does this by making it easy for people to build upon other people’s work, by making it simple for creators to express the freedom for others to take and build upon their work. Simple tags, tied to human-readable descriptions, tied to bullet-proof licenses, make this possible.”10 The CC licenses themselves, however, have yet to be tested in the legal system, and concerns have been expressed at how they may interact with traditional forms of licensing of economic rights, protection of moral rights, and other legal obligations.11

    CreativeCommons.org offers licenses that enable authors to attach “some rights reserved” conditions when making their work available to the public, although creators opting for CC licenses cannot be compensated for use of their works (they may, however, decide to allow licensees to use CC-licensed content for commercial purposes). Originally created to license copyright works such as video, educational materials, music and photographs, Creative Commons is now developing licenses for patents and scientific publishing, and is internationalizing its licenses for various jurisdictions. Yahoo! recently announced a beta version of a search tool that enables users to search for some of the more than 10 million “CC” licensed works online, depending on whether the intended use is for commercial purposes or permits modification of the work.12 One added benefit of this system is that it may help to raise awareness that, unless otherwise stated, materials posted online may be subject to copyright protection and authorization should be sought for their use. A common complaint among persons wishing to use creative works accessed from the Internet, is that it is unclear what copyrights attach to each work and where to request permission. The attachment of metadata (information about the work and the author) to content in digital form, and rules that prevent such metadata being removed, may partly address this concern. One such initiative is the Digital Object Identifier (DOI),13 which allows for persistent (unchanging) identification of content, including copyright works, in the digital environment.

    3. Creative Commons licenses are but one example of the variety of different licensing options available to IP rightsholders. In the software field, for example, licensing choices range from proprietary to open source development and licensing models. Copyright law ensures that software developed under open source licenses is distributed in accordance with the principles of the movement. Software licensed under the Gnu General Public License (GPL),14 for example, originally developed by Richard Stallman for the Free Software Foundation, can only be modified and distributed provided the source code is made publicly available.

    Most open source software is licensed (more than 53 different open source licenses exist)15, and most licenses share two common elements: the right to payment of license fees is waived, and there is a condition that the underlying source code be made available. These licenses rely upon contract to build upon the protections and rights inherent in copyright law, and are enforceable in court on that basis.16 The licenses grant rights and permissions subject to conditions that restrict how the software can be changed or distributed – and these conditions are based on IP.17 In addition, the use of source code from OS developers is often permitted on condition of appropriate attribution to the author of the original source code.

    The benefits that open source software may offer include access to source code, community-based development, local skills and capacity building, freedom from vendor lock-in, reduced costs, broad rights, and the ability to customize to local conditions. However, while open source software licensing is increasingly well accepted, these licenses have not yet been fully tested in the courts of various legal jurisdictions.18 Moreover, they do not contain the warranties, representations and indemnities in favor of the licensee that are standard elements in other licenses. This has given rise to concerns that licensees may be exposed to liability for IP infringement, if infringing code is included in derivative software products.

    Software innovation is a powerful tool for economic development. IP plays a critical role in promoting research and development in this field and in protecting and rewarding creative software development, whether based on open source or proprietary models. The choice between open source and proprietary models of software is therefore not a decision antagonistic to IP, but rather a business decision, based on strategic and policy choices, to be made according to the circumstances of each case.

    4. Open source software may be the best-known model of collaborative creativity and innovation, but there are others. Organizations like the Public Library of Science have openly published scientific journals online and, in The Netherlands, scientists from Dutch universities have launched a site (DAREnet) on which all their scientific research is openly accessible in digital form.19 The Biological Innovation for Open Society and Science Commons seeks to develop open source community platforms for scientific and technical research.20 Britain’s Wellcome Trust invested some £210 million in the Human Genome Project at the Sanger Institute21, a collaborative project to sequence human genes, in order to ensure that genetic data would be available in the public domain.22 Open collaborative programs have also resulted in new technological developments, such as medical technologies for physically handicapped skiers.23 A Californian newspaper, the Northwest Voice, launched a news site based on participatory or citizen journalism in which the content is freely available and almost exclusively contributed by the community (provided each piece meets the conditions of being original, non-libelous, accurate and suitable for family publication).24 Wikipedia, the online free-content encyclopedia has some 1.5 million articles contributed by members of the community, and parts of it are available in 195 languages. Most of these open platforms achieve quality control by way of peer review. A leading online technology magazine, Slashdot,25 employs a small staff to post short articles on which readers are invited to comment and elaborate. These examples share a form of production was described by Yochai Benkler as “commons-based peer production” and described “sharing as a modality of economic production”26

    5. The patent system has long had the role of delivering technological knowledge into the public domain - immediately delivering it into the domain of knowledge available for research, learning and experimentation, and later ensuring that is in the public domain of usable knowledge. Private rights (patents) are granted so as to promote the development of innovative goods for our society, while at the same time putting information on those developments at the public’s disposal. A patent is an exclusive right granted for the protection of an invention, exclusive in the sense that it enables its owner to exclude others from commercially exploiting the patented invention for a limited period of time. In return, applicants have to fully disclose their invention in the patent application. The basic conditions of patentability have also been designed to safeguard the public interest: “novelty” ensures that matter already in the public domain cannot be patented; “inventive step” ensures that patents are not granted for trivial innovations; and “industrial applicability” (utility) guarantees that only inventions which are useful for society may be protected by patenting.

    This role for the patent system was, for many, more a theoretical one than a practical one in the past, given the cost and difficulty of accessing patent information. That situation has completely transformed in recent years. Large quantities of searchable patent information, including patents after grant and, in many countries, also patent applications (generally after 18 months), are now available worldwide free of charge. These online sources include, for example, the databases of the European Patent Office27 the United States Patent and Trademark Office28, the Japan Patent Office29 or WIPO for published PCT applications30. Initiatives such as Biological Innovation for Open Society (www.bios.net) have taken important steps towards promoting fully searchable patent information as part of attaining broader goals, such as democratized innovation, collaborative forms of innovation, charting “freedom to operate” innovation pathways, and leveraging patented technology to ensure open access to derivative innovations.

    6. The patent system effectively makes more than 40 million patent documents in all fields of technology (increasing by more than one million each year) accessible to the public, that might otherwise remain undisclosed. A substantial part of the most recent technical knowledge cannot be found elsewhere. Patent information can be used in different ways:

      (a) Searching patent information may help avoid unnecessary expense in researching what is already known, identifying business partners, including licensing partners, and monitoring activities of competitors (in order to become aware of current technical trends) and finding technology which is already in the public domain. It can also be used to avoid infringing others’ patents and to oppose the grant of patents where they conflict with one’s own patents or business.

      (b) Where patents are being filed in sensitive policy areas, patent information allows the monitoring of developments in those areas, and ensuring that patents are granted in conformity with applicable legal principles. Such information is becoming more and more readily accessible, through online access, thus serving the public interest as well as the interests of patent owners.

    7. In addition to the release of sizeable quantities of technical information, there are ifferent mechanisms to ensure that inventions protected by patents translate into concrete uses and benefits for society. Some of those are summarized below.

      (a) Maintenance fees are generally required to keep patents in force. A number of patent systems provide for an increasing fee towards the end of the 20-year patent term, thus reflecting a balance between the patentee’s commercial interests and the interest of the public in having the technology released into the public domain. And indeed, existing statistics in a number of countries show that, on average, about half of the patents are abandoned after 10 to 11 years from the filing date, that is, after the half of the maximum possible patent term.

      (b) While patents grant exclusive rights to owners, it is clearly in their interests to place the invention on the market at a price that the market will absorb. Patentees have a range of options as to how to exploit their invention, including licensing or assignment of their patents. Public-private partnerships are also increasingly popular ways to employ patents in useful products. Another strategic choice may be to release patents into the public domain, as was done some months ago by IBM, with a view to enhance the development of new products, in particular, in the software area by giving free access to certain technologies to other developers of the technology in question.31

      (c) The patent system itself also provides additional means to ensure that the system fulfills its objective of serving the public interest, i.e., that patents do not unduly block the development of new technologies or prevent access to urgently needed patented products. Such means include the possibility contained in many patent laws to use a patented invention for research purposes or the possibility for countries to grant compulsory licenses to ensure the required supply of needed goods, for example, in the health sector.

      Questions to consider

      • What is the “public domain”, how is it created and constituted, and what is its relevance to the Information Society?
      • Is there a need to preserve, or promote, the public domain? Should the public domain be protected from, or by, the IP system?
      • Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?
      • In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?
      • Are there classes of information for which open access models should be mandatory, and others where they should be excluded?
      • Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?
      • Is the IP system incompatible with, or in support of, open source software principles?
      • Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?

     

    ________________________

    1 Wikipedia “Public Domain”.

    2 WIPO Guide to the Copyright and Related Rights Treaties Administered by WIPO, prepared by Mihàly Ficsor (WIPO Document No.89, 2003), at p.305.

    3 For a description of various national copyright terms, see The Online Books Page Frequently Asked Questions.

    4 See, for example, the (See Creative Commons Public Domain Dedication

    5 Lawrence Lessig, “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity” (The Penguin Press, New York, 2004), at p.30.

    6 Source - Duncan Riley, The Blog Herald .

    7 The Drudge Report. See also Rick E. Bruner, “Blogging is Blooming”, iMedia Connection, April 5, 2004.

    8 AndrewSullivan.com.

    9 WSIS Plan of Action – C3. (Access to information and knowledge) Para.10(a).

    10 Lawrence Lessig, “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity” (The Penguin Press, New York, 2004), at p. 282. See also http://www.creativecommons.org.

    11 The Media, Entertainment and Arts Alliance in Australia, for example, stopped production in early 2005 of a “re-mixable” short film called “Sanctuary”, because it was planned to release the film under an Australian version of the CC license. It was proposed that audiences would be able to copy and edit the film without restriction except that uses must be non-commercial. The difficulty was concern at the risk that footage of actors’ performances could be edited in a way that was prejudicial to the actors’ interests and legal rights and obligations. See Seamus Byrne, “Actors’ union shouts ‘cut’ on digital film”, Sydney Morning Herald (April 12, 2005).

    12 Yahoo! Creative Commons Search – beta version.

    13 “The Digital Object Identifier (DOI) is a system for identifying content objects in the digital environment. DOIs are names assigned to any entity for use on digital networks. They are used to provide current information, including where they (or information about them) can be found on the Internet. Information about a digital object may change over time, including where to find it, but its DOI will not change.” The International Digital Object Identifier (DOI) Foundation.

    14 Wikipedia, “Gnu General Public License”.

    15 For example, the Open Source Initiative (OSI) maintains a list of OSI-approved open source licenses.

    16 For example, see Stephen Shankland, “Open-source programmer alleges Linux misuse” CNET News.com (March 16, 2005).

    17 For example, the Netfilter decision (District Court of Munich, Judgement of May 19, 2004) was an action founded on copyright, that was greeted with enthusiasm by the open source community because it gives recognition to the GPL: “The Court shares the opinion that one cannot regard the General Public Licence as containing a waiver of copyright and similar rights. To the contrary, the developers make use of copyright law to secure and bring to fruition their ideas for the development and distribution of the software.” Unofficial translation, Oxford Internet Institute.

    18 Refer to links to resources on the legality of the General Public License (GPL).

    19 Jan Libbenga, “Dutch academics declare research free-for-all” The Register (May 11, 2005).

    20 David Cohn, “Open Source Biology Evolves” Wired News (January 17, 2005).

    21 Human Genome Project at the Sanger Institute.

    22 Refer to the Human Genome Project.

    23 Michael Myser, “Open Source for the Slopes” Wired News (December 11, 2003).

    24 Daniel Terdiman, “Open Arms for Open-Source News” Wired News (July 22, 2004).

    25 See http://slashdot.org/.

    26 Yochai Benkler “Sharing Nicely: On shareable goods and the emergence of sharing as a modality of economic production”. See also http://www.smartmobs.com/archive/2005/03/07/yochai_benkler_.html. See also Azeem Azhar, “Beware the penguin” Prospect Magazine (January 30, 2004).

    27 European Patent Office.

    28 United States Patent and Trademark Office.

    29 Japan Patent Office.

    30 (See http://www.wipo.int/pct/en/gazette/)

    31 See Steve Lohr, “IBM to Give Free Access to 500 Patents” New York Times (January 11, 2005).



    Comments [74]

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Comments:

> Are there classes of information for which open
> access models should be mandatory,

Of course. Law is a typical example. Because everyone must know it, it has to be available freely and openly.

Less obvious, I believe that the various forms of standards must be also available openly, for the same reason (you need to know them).

> and others where they should be excluded?

I don't see why.

Posted by Stephane Bortzmeyer on June 01, 2005 at 05:10 PM CEST #

> Do open access licenses, such as the Creative
> Commons License, offer a viable economic model for
> creators and authors to distribute their works?

I believe it is off-topic for that forum. Wether or not there is "a viable economic model" is not WIPO's business. Not everybody is searching financial returns when publishing.

WIPO should only ensure that IP does not prevent "open access licenses", not asserting wether or not these licences are good or bad or financially rewarding.

Posted by Stephane Bortzmeyer on June 01, 2005 at 05:13 PM CEST #

> Should the public domain be protected from, or by,
> the IP system?
> Is the IP system incompatible with, or in support
> of, open source software principles?

At the present time, it is clear that the IP system is actively used by large companies as a weapon against free software and against the public domain.

So, yes, the first question is a good one. We need new rules to protect the public domain from the many attacks by the IP system.

Posted by Stephane Bortzmeyer on June 01, 2005 at 05:18 PM CEST #

Lengths of copyrights have clearly gotten way out of hand. 100 years from now, most works published today will still be under copyright in most parts of the world. However, how much of that material will still have value to the rights owner? Is it really worth robbing the public of so much, so that a few individuals can have a little more?

Of course creators have the right to be compensated for their work. The question is for how long? Unto the third and fourth generation is a little excessive in my view.

Posted by Aaron (193.5.93.35) on June 01, 2005 at 09:20 PM CEST #

<p>Open access (OA) is compatible with copyright and does not require the public domain. Most OA literature is under copyright and is distributed in OA form with the copyright-holder's consent. Creative Commons licenses are one good way to do this but only one way.

<p>Here are a few links for those who would like to learn more about open access to scientific and scholarly research literature.

<p>Open Access Overview<br><a href="">http://www.earlham.edu/~peters/fos/overview.htm</a><br>(my introduction to OA for those who are new to the concept)

<p>Open Access News blog<br><a href="http://www.earlham.edu/~peters/fos/fosblog.html">http://www.earlham.edu/~peters/fos/fosblog.html</a><br>(my blog, updated daily)

<p>Timeline of the open access movement<br><a href="http://www.earlham.edu/~peters/fos/timeline.htm">http://www.earlham.edu/~peters/fos/timeline.htm</a><br>(my chronology of the landmark events)

<p>What you can do to help the cause of open access<br><a href="http://www.earlham.edu/~peters/fos/do.htm">http://www.earlham.edu/~peters/fos/do.htm</a><br>(my list of what different kinds of institutions can do)

Posted by Peter Suber on June 01, 2005 at 11:01 PM CEST
Website: http://www.earlham.edu/~peters/ #

Another source of information is the <a href="http://www.arl.org/pubscat/pubs/openaccess/"><i>Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals</i></a>, which provides an overview of open access and over 1,300 references to works about it.

Posted by Charles W. Bailey, Jr. on June 01, 2005 at 11:38 PM CEST
Website: http://www.escholarlypub.com/ #

Public libraries, whose roles are being increasingly diminished by big-box bookstores and massive full-text on-line archives should begin demanding more unfettered access from publishers. Libraries still play a huge role in the marketing of intellectual property by providing, ususally for free, access to published materials. This access generates sales for those publishers. Those who stand to profit from such free access might reevaluate the importance of libraries if these libraries chose to only focus solely on publishers who maintain friendly open source, public domain and fair use policies. Those whose profit motives outweigh such policies might find themselves frozen out, and will have to pay for their own marketing and distribution.

Posted by Anthony Troncale on June 03, 2005 at 04:12 PM CEST
Website: http://www.jjt.com #

Please see my post on Theme 1, as I believe it is also relevant here. Thank you.

Posted by Meredith A. Lane on June 03, 2005 at 08:41 PM CEST #

As Aaron points out, current copyright periods seem to be extremely excessive, lasting long after the copyright owner is likely to be deriving any economic benefit. Then, too, copyright applies even where the creator is not necessary even interested in economic benefit, as with academic research articles or persons other than professional writers writing to express their views.

There is a need to promote the public domain, in my opinion. The public domain should become the de facto standard, in terms of sharing, rather than "all rights reserved", at least with regards to distribution and use. The author's moral rights are a different matter, so should be the standard.

The public domain also needs to be protected from IP. As an author who contributes primarily to the public domain, it concerns me that my work could be placed behind an anti-circumvention device without my knowledge or approval.

Come to think of it, perhaps that should be the standard too: maybe work should automatically be considered public domain, except for moral rights, unless stated otherwise, and anyone who wishes to make a restricted-access version available would need the approval of the rights holder.

Posted by Heather Morrison on June 05, 2005 at 07:00 AM CEST #

"Is there a real problem in access to information?"

Yes, for some. People who have problems reading, because of complexity of material, because of multi-input web pages with color and blink and flash, and people with visual impairments are three categories where access is limited by closely held property rights which prevent redrafting into plain text, downloading in non-Acrobat formats, journals which require fees to "read" an article, ...

I think there needs to be an exception to property rights so that the contents are accessible to most.

Posted by Sylvia Caras on June 05, 2005 at 08:01 PM CEST
Website: http://www.peoplewho.org #

My main concern on this is that as more and more property becomes "protected" it will be more and more difficult for anyone that does not alreay have a large amount of protected property of their own to use as leverage have the ability to produce anything that is not in violation. At a time when technology is available that could enable every one of us to become a producer of "content" these intellectual property laws and the tight control of existing works will make all that tech worthless to all but the existing providers. And this I see as no less than a tragedy.

Posted by John Lewis on June 06, 2005 at 12:49 AM CEST #

IP laws have one reported purpose - to encourage innovation. To expand one person's rights over another beyond this scope violates the principle of the law. Business tends to be a driving force in the creation and changing of laws, and business is in turn driven by the owners and interests seeking proffit. Because of this, the laws they lobby are not those that seek to protect the law within the scope it was meant to cover, but instead they tend to seek to expand the scope of the law to provide themselves aditional rights which are unnecessary to the original scope of the law, for the purpose of increasing their ability to proffit in their business.

Most IP laws, when first created, were capped with a time limit, as well as providing a very well-defined area in which IP was protected. Specific exceptions were worked into these laws, commonly known as "fair use", and enabled consumers to use others' IP for their own personal use. Because the owner of the IP was essentially being granted a monopoly on the use of the IP, certain limitations on IP protection needed to be imposed to achieve a balance.

The modern trend of IP law seems to be more driven by business interests than by the need for encouraging innovation. We have seen major groups lobby for laws that expand the scope of IP law and also the introduction of new legislation such as the USA's "DMCA", which when taken together, still technically "allow" fair use of IP, but at the same time they make ALL methods of impementing this fair use to be unlawful. Essentially, an author is permitted to use technological means to "protect" their content in such a way that it cannot be duplicated without defeating this protection. However, laws such as DMCA make it unlawful to defeat this protection, even if it is the only way to exercise their guaranteed right to fair use.

That's like telling me I'm allowed to buy groceries at the local store, but I'm not allowed to cross the street. Technically they haven't made grocery shopping illegal, but in practice, everyone is legally barred from shopping. This is the legal game they seek to play with words.

The wrong approach is being used to protect IP. Currently, the trend is to make it illegal to reproduce IP, ignoring the public's right to fair use. While this does make it illegal to steal IP, it also severely impacts (or eliminates) the public's right to fair use. We already have IP law that clearly states what is and what is not permitted. There is no need for additional legislation that grants authors additional rights or powers, because innovation is already being protected more than necessary. There is no industry that has made any arguable claim that their industry's innovation is being impacted by IP violations. Proffits, yes. Things like pirated movies coming out of China definitely impact sales, but we see only record proffits for movie studios and an ever-increasing number of high quality movies being produced. Innovation is not even being scratched.

If anything is neeeded more, it would be enforcement of IP law. If anyone believes that the current laws are not being enforced sufficiently, they need to understand that making more laws will not change how the laws are enforced - that only increases the unnecessary restrictions placed on law-abiding citizens, while the criminals go about business as usual.

Don't bury us in the mud of additional IP laws. Innovation isn't what's being stifled... the consumer is.

Posted by Nathan on June 06, 2005 at 01:13 AM CEST
Website: http://www.vftp.net/ #

o What is the public domain, how is it created and constituted, and what is its relevance to the Information Society?

Public domain is data that is not protected or expired by copyright. Of course this area plays a vital role and many businesses are build upon.

o Is there a need to preserve, or promote, the public domain? Should the public domain be protected from, or by, the IP system?

The IP system is build upon the public domain. Every IP right restricts the public domain. An uncontrolled expansion makes it necessary that the PD is protected from an uncontrolled legal drift that took place. We need institutional safeguards.

o Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?

the purpose of these licenses is to give power to the author to define how his works are to be used. It is intresting from a European perspective which tradionally favours the authors rights perspective, as does the Berne convention. the aim seems to be a more flexible usage of copyright.

o In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?

Yes, esp as standards and DRM are concerned. It is a huge problem known from "forensic research". there are huge amounts of data that cannot be read anymore because access devices do not exist anymore or data formats are unknown. Forensic specialist have huge problems to access 10 year old data.

o Are there classes of information for which open access models should be mandatory, and others where they should be excluded?

a) government data, laws and information sources
b) governmental sponsored knowledge
c) scientific research

Exclude:
d) privacy rights: personal data

o Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?

No, an interoperability enforcement is needed to enable free conversation of data and take into account the needs of forensic research.

o Is the IP system incompatible with, or in support of, open source software principles?

OSS is based on the IP system and tries to create an alternative where the existing IP system creates
Patent rights are of no benefit for software development.

o Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?

Both are similarly affected by the costs of the legal system. OSS does not benefit from patent law. proprietary software is endangered too but we can observe a comparative shift.

Posted by Andre (193.5.93.35) on June 06, 2005 at 01:43 AM CEST #

these go hand in hand when done properly. there should be a SHORT LIMITED protection time (like 7yrs) to wich is NOT renewable, esp for NONindividuals... possible 14yrs for an indiviual and 7 for non.... , then becomes public domain with credit to the author(s).

Posted by myself on June 06, 2005 at 01:55 AM CEST
Website: http://poem.kausi.com #

Imagine a world without copyright. While many would say this would release them from stifiling restrictions, it would have other, less often cited effect.<p>A world without copyright would be owned by those with the biggest distribution pipeline. Period. 10 minutes after a band recorded a song, it would be available in stores. Not from the band - they wouldn't have the ability to distribute it that quickly. It would be from Sony or WalMart directly. The ideal of open Internet distribution assumes that all distributors are created equal, but we know that not to be the case. Without copyright the largest distributors would receive all of the revenue from creative works. The artist, author or performer would receive nothing.<p>While a "no copyright" system would appear to remove restrictions, it would simply change the landscape to be even more in favor of large distributors.

Posted by Paul Crowley on June 06, 2005 at 04:00 AM CEST #

Corporate control of our democracies, which in some cases borders on fascism, is the primary obstruction to progress for humanity.

Software patents are inappropriate and a form of colonization of our democracies by those who have too much power already.

Posted by Zix (193.5.93.35) on June 06, 2005 at 04:18 AM CEST
Website: http://malfeasance.50megs.com #

Three improvements within the purview of the WTO.
<UL>
<B>TRIPS as both floor and ceiling on length of copyright</b><BR>The <a href="http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm">TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement</a> establishes 50 years as the minimum duration of copyright for WTO countries. 50 years should also be the maximum, and the TRIPS agreement should be amended accordingly. Countries, such as the US, which go beyond 50 years should be brought into compliance with international norms. This is a proper WTO issue, since the TRIPS Agreement is an annex to the agreement establishing the WTO. This change encourages the creation of new works.
<LI>
<B>
A stronger definition of "obviousness" for patents.</b><BR>
It's possible to get very narrow patents without much trouble. This is usually pointless, but if the patent covers a de-facto standard way of doing something, it's a way of creating a monopoly. The "obviousness" criterion should be broadened so that if there is demonstrably a technically equivalent but incompatible way to do something, the patent is invalid for obviousness. This change reduces trade friction by enhancing interoperability.
<LI>
<B>
International standards override patents.
</b><BR>
When a standard is submitted for international standarization via the ISO process, patentholders should be given an opportunity to object to the standard during an opposition period. Once that period has expired, no patent infringement claim can thereafter be made for the subject matter of the standard. This change also reduces trade friction by enhancing interoperability.
</ul>

Posted by John Nagle on June 06, 2005 at 05:12 AM CEST
Website: http://www.downside.com #

<cite>o Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?</cite>
Yes. Share digital information is cheap, so that artificial ways to get "scarcity" of non-rivalrous wealths is too bad.

Creative-Commons Licenses and other free licensing terms (GPL, FDL...) permits to one take make (economic, social, cultural) benefits on the licensed works without need of impose restrictions on the public.

<cite>o In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?</cite>
Yes. Especially in poor countries, where just a small fraction of the people have access to information -- even radio, tv, newspapers, journals. What to say, then, about digital information, computers and internet access?
The problem, of course, exists for rich countries too.

Another problem is the control on information access by big enterprises and governments (by using DRM, closed standards, physical control on telecomunication medium, unbalanced authentication rules and ways and so on). This can make very difficult to the society take benefits from the new IT resources.

<cite>o Are there classes of information for which open access models should be mandatory, and others where they should be excluded?</cite>

Government public documents should be stored, transmitted and edited using open protocols, open file formats and free/open source tools.

Public supported educational and research articles/reports stuff should be released under free/open terms.

<cite>o Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?</cite>
No. Software algorithms/methods and comunication protocols must be open and free of proprietary restrictions. Semiologic/informational processes should be free (just like natural language).

<cite>o Is the IP system incompatible with, or in support of, open source software principles?</cite>
"IP" has not a precise meaning. Open source needs copyright to control the interactions between the actors (to avoid abuses like privatization of a cooperation-made work). Open source is threaten by algorithm patenting: patents <b>are not</b> compatible with Open Source. Trade marks can be useful sometimes.

<cite>o Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?</cite>
Yes, of course. The privileges to "IP" holders give them <b>power</b> over the recipients. This power can be very dangerous to governments, entities, individuals, i.e. to the general public.

Posted by Hudson (193.5.93.35) on June 06, 2005 at 05:13 AM CEST
Website: http://geocities.yahoo.com.br/hfmlacerda/ #

Wow, that was real mature. I'd bet those script kiddies know nothing of the real world, so it's pretty safe to ignore their comments.

The truth is simple: software, music, written word, photography -- anything that can be represented in a digital form, which is inherently nonrival in consumption, <em>cannot be held "private" and secure</em>. It's physically impossible, and we know that even the most comprehensive "rights management" schemes have one problem in common: they call the customer dishonest. Any company whose actions show that underlying assumption is going to have their customers revolt against it, and that's the problem with large businesses selling digitizable products these days. They can't deal with the fact that their product is now a non-rival freely-distributed good, and they can't control their market directly. The market is controlled indirectly by the customer's sense of honesty, which no one in corporate America will ever trust. Therein lies the problem.

Now, to be on topic, this "private property" model conflicts with the open access model because people who make their goods available for free, expecting money to flow from other sources or not at all, are actually gaining the good will and honest money of a good following of customers. It's amazing that once you place trust in someone you don't know, you get some positive feedback. People like being trusted, and they despise being untrusted. This is why music piracy took off, in my opinion -- the music giants attacked their customers, and the customers didn't just stop buying from them, but they attacked back. I'm convinced that if people who are trying so hard to protect IP were just honest and said, "Look, people, we know you can get this stuff for free without paying for it, but the truth is, it's dishonest. We're not going to stop you, but we ask you to give us some compensation for our work. Thank you for being good customers."

People (especially large mobs of people) respond remarkably positively to positive reinforcement, and extremely negatively to negative reinforcement. I guess no one ever taught that in business school.

Posted by Anonymous Coward on June 06, 2005 at 06:58 AM CEST
Website: http://www.slashdot.org #

Yay, it worked. Now, whatever you do, don't turn CSS styles off!!!

ADMINS: for the love of god, disable HTML...

Posted by Anonymous Coward on June 06, 2005 at 07:11 AM CEST
Website: http://www.slashdot.org/ #

WIPO exists to bankrupt local government and ussurp specialists. Sincerily mastering common-law patents through the postal process is the only way to keep knowledge expressed in the public domain from being pilfered into that Public Domain fraud that the WIPO is trustee.<br>

pat-ent -- latin: to touch; send with the hands.<br>

A patent is obsolete when it is proved that the subjective matter encased by the patent has already been in existance. Compare the King James 1611, Authorized Version: Holy Bible with a Zondervan Press HOLY BIBLE. King James dedicated the KJVAV 1611 Holy Bible for unhindered use in the public domain; not dedicating any condition to respecting and limiting scope to authority that transcribed the text. Zondervan Press takes free script, modifies it just enough to put their schizm in the wind, and claims copyright as to limit how the text is used and needing explicit authority from Zondervan Press.<br>

That was the oldest example I could show: comparing two cases, one is a competing court (KJVAV1611) and one is an incompetent court existing only at the end of idolatrous men (corporate whores).<br>

Look for the true-name and dba it against the perpresture written in ALL CAPS!

Posted by Gregory on June 06, 2005 at 07:33 AM CEST
Website: http://nradude.250free.com #

I think it is interesting that it starts with "Wikipedia defines “public domain” as the “body of knowledge and innovation... ".

Wikipedia only exists because the many thousands of authors agreed to give away most of thier copyrights. And because of that it can be freely used here and add to this. Everyone benifits.

IP is not property. Nobody thinks that turns of phrases should be able to copyrighted; nobody thinks that mathematical formula should be able to be copyrighted; so why should other knids of information be copyrightable? Is it somehow easier to come up with a new mathematical of philosophic concept, than it is to write a book or a song? Does it somehow require less intelligence, or creativity? No of course not. Yet despite no IP protections, new mathematical and philosopical concepts keep appearing. Why should other information be treated differently?

If Shakespeare had had copyright over his works the English language would be far less rich than it is today.

Posted by Robin Shannon (193.5.93.35) on June 06, 2005 at 07:42 AM CEST
Website: http://robin.shannon.id.au #

"Is there a need to preserve, or promote, the public domain? Should the public domain be protected from, or by, the IP system?"


The original intent of copyright was to enable authors/creators to enjoy the fruits of their labour, but also to quickly return the works to the public domain, so that society at large may benefit from creative works. The copyright term has been increased absurdly. What is the meaning of having copyrights for 50-60 years after death??
If the person needs to benefit let it be for his/her lifetime only, after which the works need to make it to the public domain. Copyrights should also be held only by individuals. Why are big publishing houses hogging the copyrights and depriving millions the access to materials in the PD?
This especially makes sense for developing countries which need access to materials so that they may have a chance at competing fairly in the information era. If texts written today are to be available only after 100 years or so, forget about the weaker economies catching up ever!!

Also as James Boyle, CSPD Duke, USA, has pointed out, it is necessary to think about the public domain as we do about the environment. Just like the concept of 'environment as being endangered' had to be created in order to save it, the public domain also needs to be saved in order for it to thrive. see http://www.law.duke.edu/cspd/index.html

Thanks for listening.

Posted by Shyamala on June 06, 2005 at 08:30 AM CEST #

The culture and knowledge is not a property, it is a shared ressource.

Copyrights were created as a deal in society, so that creator can make a living and I approve this kind of deal.

But the spirit of the original draft of the copyright never meant to have an industry to put a lock and control on the culture. DRMs in any form is an pure expression of evil, just think 1 second of what would have happened to Scratch (music created by DJs) if the old 33 1/3 LPs of another era had some kind of DRMs on it.

Now think of how many form of arts that didn't prevail because of DRMs in our era.

As soon as the technology which permitted easy copying and distribution of art (like mp3 with music) the ones that complained first are not the artists but the big industry between the artists and the public. It's simple, the technology now makes that big industry useless.

To slow down their agony they are using all legal weapons to bring these new technologies to a stall. They know that at the end they'll lose, the artists will have direct access to their public without intermediaries (pardon my english for any glitches).

Instead of trying to sell music to people (like providing large bandwith servers, easy search capabilities, easy modes of payments, you know.. providing your customers with value) they instaurate DRMs, prevent people to make copies, for legitimate use or not, sue old granny because she used a little software that helped her find music, or sue teenagers for the same reason)

I got a message to the people who work in the music industry (and are not artists themselves): Go get a real job instead of pissing off the little people.

Laws need to be revised for sure, but not for the reasons most people think, they should be revised in such a way that it would ban any form of DRM.

Ban the DRMs! That's a good start.

Posted by Denis-Carl Robidoux on June 06, 2005 at 08:32 AM CEST
Website: http://www.deniscarl.com #

Software patents are insane.

Posted by Software patents are insane (193.5.93.35) on June 06, 2005 at 09:32 AM CEST #

It is clear that IP law needs revising. When an entire industry is can take any one of it's potential customers, numbering in the millions, the customers are not doing anything wrong - the law is wrong.

IP law has stood us in good stead for the last century, but it appears that the xxAA cannot keep within the spirit of the law and are finding loopholes which they can exploit with their heavy economic weight behind them, to the extent that they are using revenue gained from lawsuits and deals with small governments (such as the blank media tax which goes straight to the record industry in the Netherlands) as a new bussiness model to prop up a dying industry.

I urge the WIPO to overrule the portions of the US DMCA dealing with digital IP which is a travesty of the original intent of copyright law - to protect artists' creations and their claim to their creative content rather than maximise revenue to a cartel by restricting distribution.

Posted by Jon Stone on June 06, 2005 at 09:45 AM CEST #

As a mechanical engineer (BE) and network administrator (CCNA) of long standing I found this an excellent discussion from a technical standpoint. While I have not yet completed my legal studies, it seems at least one legal point has been misinterpreted, however. Around footnote 16 the text of day six of discussions says the following in regard to open source licences:

"These licenses rely upon contract to build upon the protections and rights inherent in copyright law, and are enforceable in court on that basis."

As far as I know this is not actually true. Of the open source licences one in particular - the GPL, arguably the most important - does not rely on contract provisions at all. The licence does indeed rely on intellectual property law, specifically copyright, but NOT contract. A landowner may give you a licence to walk on his land, with no consideration payable.

The GPL licence is of a similar nature. No consideration is payable of any kind for the use of such software: and it is trite law that where no consideration exists, there is no contract.

Instead, the GPL demands that if (and only if) the software is distributed to a third party, the source code must be made available to them on identical (GPL) terms. Should you fail to do this you are in violation of the licence, but not of contract, for there is no contract. Since the licence has been violated there is a copyright violation, with all that implies.

Furthermore, it won't matter if courts were to declare the terms of the GPL invalid, for in that event there is not only no contract, there is also no licence, and the parties are back to asking the copyright holder in each individual case for permission.

This last is a widely misunderstood point, and accounts for the relaxed attitude of developers to occasional (misinformed) declarations that the GPL has not been tested in court.

Regards, TC

Posted by Terry Cole on June 06, 2005 at 10:00 AM CEST
Website: http://www.physics.otago.ac.nz #

> Patentees have a range of options as to how to
> exploit their invention, including licensing or
> assignment of their patents.

Many people in developing countries have little respect for copyright and patent law. It is also wishful thinking to think that local governments will enforce these laws when it is not in their economic interest.

For things of a technical nature, i.e. methodologies, algorithms, designs I feel that patent and copyright law can only hold developed nations back whilst allowing developing ones to advance. Whether or not this is a good thing is not for me to say though.

Posted by Greg Reynolds (193.5.93.35) on June 06, 2005 at 10:33 AM CEST #

WIPO, why are you doing this? We all know this is a sham, and that eventually you'll just follow your own agenda (read: the agenda of those who have money, if not due to outright bribes, then due to "lobbying"). The system is corrupted and self-perpetuating, and isn't going to be changed just because a few people write in against the ever-extending IP regime.

So why are you doing this? You've proved time and again you don't give a damn about the consumer, because they don't have the voice or the money of the corporations. If experience is anything to go by, this discussion will be culled to removed any criticising viewpoints, then regurgitated to support whatever policy the **AA next tell you to implement.

Posted by Peter Aldred on June 06, 2005 at 10:50 AM CEST
Website: http://www.law.cam.ac.uk #

Now, I don't mean just to flame, but I know many people who think and believe what I said above. If this is the image WIPO is presenting to the world, isn't it time to change?

Posted by Peter Aldred (193.5.93.35) on June 06, 2005 at 11:10 AM CEST
Website: http://www.law.cam.ac.uk #

To Terry Cole,

You do not have the correct understanding of the mechanism
of GPL. It is a kind of contract due to the extra elements
that are found in GPL but are not preempted by the U.S.
copyright law. The myth that GPL is not a contact continues
because lay people are not familar with the concept of
preemption and extra elements. For long explanation on this,
see my comment at http://www.lessig.org/blog/archives/002780.shtml#058244.


Joseph Pietro Riolo
<josephpietrojeungriolo-AT-gmail-DOT-com>

Public domain notice: I put all of my expressions in this
comment in the public domain.

Posted by Joseph Pietro Riolo on June 06, 2005 at 11:14 AM CEST #

As we can see in the US copyright laws have been shaped by the so-called "content" industry for many years. Yet you want us to believe that law created by corporations serves some other purpose than profit ??? Gimme a break ...

Expanding copyright in a way that it`s being done recently (DMCA, DRM, software patents to only name a few) proves that it`s always been about money for the recording business. Not the artists, not the audience (hate the word "consumers"). Copyright lasting for 100 years ? What is this ? A monopoly on culture ?


The real question is "Do we, the audience, care what happens to record companies ?". They have proven to be unable to adapt, tried to enforce DRM on the public against its will (think the Broadtcast Flag), they don`t trust their customers anymore, they treat artists like shit (and still most revenue goes to them), they sue 13-year olds for decrypting a DVD (deCSS) to play it on his favourite Linux. Heh, I wonder why is still anyone standing behind them ...

You seem all that smart but fail to see one basic issue: Information ALWAYS can be copied. I take your super-duper DRMed CD/DVD whatever and play it on my super DRM-supporting player (nur fur Windows of course :-). Now I take two ADCs (you`re so brainy to develop sophisticated DRM and pass new laws, you should know what an ADC is ...) make a special sound-chamber-like case with one speaker and one ADC. Now I connect those ADCs to my evil Linux box, press record, press play and voila ! I made a copy. Of course with a small quality loss (unnoticable if I have good ADCs), BUT, what I can do now. Now I can encode this into mp3/ogg/flac whatever and copy it to my mp3 player. Don`t you see ? EVERY DRM SYSTEM CAN BE DEFEATED IN THIS WAY ! And its perfectly legal (unless you ban ADCs :-). You just CAN`T prevent copying information, ability to copy is one of its most basic properties.



"Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?"

Let me rephrase that:
"Did open access licenses, such as the Creative Commons License, offered a viable economic model for Mozart and Shakespeare?"
or
"Did open access licenses, such as the Creative Commons License, offered a viable economic model for Einstein?"
Likewise, think about it before asking a dumb question like this ...



"Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?"

Patents were created to "encourage innovation" and software patents certainly don`t. They don`t provide interoperability. They provide food for armies of lawyers to rage against another company when it`s becomming competitive to us. They are a means for exploiters to draw money from enterprises (think Eolas). Ever heard of an "innovation" called a shopping cart ? Guess what, it`s patented. The thing is in software anyone can make up a concept of a "A method of implementing a preview window in an object oriented programming system" (EP0537100) and what is it ? Its a preview window, ladies and gentelmen. see http://webshop.ffii.org/index.en.html before even suggesting that software patents are beneficial to any activity in the Information Society ...

Posted by Maciej Grela on June 06, 2005 at 11:47 AM CEST #

Imagine there's no (C)-mark,
It's easy if you try,
No unsigned EULA's,
Above us only sky,
Imagine all the people
creating for today...

Imagine art for art's sake,
It isnt hard to do,
Nothing to sue or fear for,
No scum lawyers too,
Imagine all the people
giving things in peace...

Imagine no IP law,
I wonder if you can,
No need for greed or secrets,
A brotherhood of man,
Imagine all the people
Sharing all they make...

You may say Im a dreamer,
but Im not the only one,
I hope some day you'll join us,
And the world will share as one.

Posted by David Bond on June 06, 2005 at 12:00 PM CEST
Website: http://davidbond.net/ #

@Joseph Pietro Riolo

With the GPL you either abide by the terms of the license or redistribution constitutes copyright infringement. The provision to make source code availiable could be viewed as a contractual obligation, however Eben Moglen says that the GPL itself is not a contract and you may expect that he would know.

@everyone

Please remember that the term "intellectual property" is a barbed term promoted to influence thinking over exclusive rights. We are not discussing "property" and the word has no place in any serious discussion on the matter or any serious organization set up to promote exclusive rights.

Posted by WIPO MUST DIE (193.5.93.35) on June 06, 2005 at 12:02 PM CEST
Website: http://slashdot.org/ #

The WIPO needs to recognize the needs of the people and not the needs of greedy corporations. The WIPO needs to recognized Open Source as protecting IP and serving the needs of the public and not some greedy corporatiions.

YOU NEED TO INVITE THE OPEN SOURCE/FREE SOFTWARE TO ALL YOUR MEETINGS!!!

Until you do you will not have any credibility with me but rather just a front to enforce greedy corporations so called IP down our throats.

Posted by James M. Susanka on June 06, 2005 at 02:04 PM CEST #

My positions on issues related to this discussion topic:

The US DMCA's criminalization of what should be a civil matter (copyright) should be reversed within the US, and certainly should not be picked up and emulated globally. Whatever else may be said about the effect of copyright law on sharing, it is plain that the spectre of jail time can have a chilling effect on people's willingness to attempt many important kinds of sharing.

In cases where software is created that is so controlling as to inhibit even traditional "fair use", it would be useful (by analogy to Real Property), to formally create in law the notion of an Intellectual Property "easement". That is, to allow a person with a legitimate "fair use" need to sue the maker of a tool that is overly restrictive for some form of relief from the overly restrictive nature. Presumably the form of relief would be some piece of software that enables the fair use.

The Public Domain is a very important concept. The ability to place other works into the Public Domain is critically important. Works that are in the Public Domain are the only TRUE "free software" because anyone can use them freely. The term "free software" should never be applied to vehicles like GPL, which inhibit certain uses.

The GPL is a commercially complex issue, far less of a panacea than its advocates suggest. Although there are places where the GPL has had a positive effect in the marketplace, in many situations, it behaves more like "dumping", driving the price of products so artificially low that no commercial entity can continue in the market. Extreme care should be used by governmental organizations when considering proposals by some to offer GPL-like mechanisms any kind of special or preferred status in law.

Open Source software (in which I include any software whose source is accessible to the end-user Public Domain software, GPL'd software and similar vehicles, and even commercial software whose source is made available under stricter copyright restrictions) may be essential to government-provided missions, since the processes of government should be inspectable. It is possible to construct open-source software that nevertheless protects its data; for example, tools for electronic voting, if such are created, must be inspectable at the code level and tightly protected at the data level. These goals are not incompatible.

Notwithstanding my disagreement with a number of people about the unconditional virtue of the GPL in the copyright domain, I join those who say that the Software Patent is deadening to the software business. At minimum: its term should be shortened to probably 3 and no more than 5 years, and "independent reinvention" should be seen as evidence of "obviousness" not "infringement". However, my more radical proposal is that since software patents are almost never appropriate (RSA is the only example I have ever seen cited that most people seem to agree even deserved a software patent), a system more like the Nobel Prizes should be created as an alternate form of incentive, granting a very tiny number (fewer than ten) patents per year as an award incentive for real innovation recognized by peer judges world-wide. That would create an incentive to do REAL and RESPECTED innovation, would keep the space of patents small enough that they could be known to everyone, and the prestige would be adequate incentive to real innovation. A more detailed version of this software patents proposal can be found at my web site at the following URL: http://www.nhplace.com/kent/PFAQ/software-parents.html

(This information was accidentally posted to Theme Ten by mistake. Sorry about that. This is where it belonged.)

Posted by Kent M Pitman on June 06, 2005 at 03:41 PM CEST
Website: http://www.nhplace.com/kent/ #

Is the IP system incompatible with, or in support of, open source software principles?

There is no reason why the IP system need be incompatible with the open source model.

Consider Project Gutenberg. (http://www.gutenberg.org/) They do all the work entering classic works of literature into electronic form. Then we have companies (which need not be named), who package the exact same texts in proprietary file formats and sell these for money. So the literature is in the public domain, the textfile is open access, yet companies are still making money selling "e-books". If the companies creating the e-books entered the same texts independantly from Project Gutenberg, everything works out fine. Gutenberg does the work in order to make texts freely available. The companies respect this and make their own versions which include added benifits like formatting, pagination, compatibility with book readers etc. so that they may make a profit.

Programmers of open source software are in a similar position. They toil away writing the best sooftware they can make and do not seek financial compensation. They wish to make the product available to everyone for free. If some company comes along and makes CD-ROMs and user guides for the software and then goes on to open a support hotline etc. that is fine. However, the company cannot claim universal rights to the software itself. Like a publisher will print classic literature today and expect to be payed for thhe book (i.e. the medium on which said literature is stored), the software distribution company may expect payment for the CD-ROM. What should NOT be possible is the sale of software LICENSES on that product or any product directly derived from it. That would be like claiming royalties for the works of Shakespeare.

Unfortunately, the current trend for software seems to be strong lobbying by software companies towards a situation where IP laws make open source software unfeasible. Often this is through some hidden trick attempting to make the open source model legal but technically impossible. It is important to understand information technology in order to be able to create meaningful policy about it. Who else but a programmer can tell you to what extent it makes sense to copyright source code? If you ask only computer scientists and programmers from major software companies, it is clear that the answer you receive will be biased. It is therefore important to give a voice to the open source community when policy is made. The open source software community doesn't want laws prohibiting corporations from making money. They just want to be able to continue to exist and distribute their software freely without somebody picking it up, repackaging it and selling licenses for it for money.

What about communication protocols and standards?

Imagine http/html were patented and everyone who uses them had to pay? The world wide web would be nowhere near as big and accessible as it is today. One technical trick to get rid of open source is to impose new "de facto" standards and the world of the internet and insure that those "standards" are proprietary.

Posted by Bernhard (193.5.93.35) on June 06, 2005 at 03:48 PM CEST #

In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?

There is a real problem. It may not exactly be in "access" to information, but in the ability to "use" information. For an information based society to advance, we must not only have knowledge, but be able to use it is useful ways. A perfect example is the proteccion of "test data" for the registration of drugs and agrochemicals. Much of this information can be found on the web, but cannot be used to register generic products. This limits competition by creating a new mechanism to exclude competition besides patents, which are already available to drug and agrochemical companies.

Other times there is a real problem with the access itself. Just look at what has happened to many high profile drugs that have shown significant side effects once on the market, because the generators of the clinical trial data did not make this information available for review by the cientific community.

Posted by Roman Macaya (193.5.93.35) on June 06, 2005 at 06:30 PM CEST #

In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?

There is a real problem. It may not exactly be in "access" to information, but in the ability to "use" information. For an information-based society to advance, we must not only have knowledge, but be able to use it is useful ways. A perfect example is the proteccion of "test data" for the registration of drugs and agrochemicals. Much of this information can be found on the web, but cannot be used to register generic products due to test date protection periods. This limits competition by creating a new mechanism to exclude competition besides patents, which are already available to drug and agrochemical companies.

Other times there is a real problem with the access to the information itself. Just look at what has happened to many high profile drugs that have shown significant side effects once on the market, because the generators of the clinical trial data did not make this information available for review by the cientific community.

Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?

The problem with patents is that the whole system is being abused. The conditions for patentability: novel, non-obviousness and useful, are being applied too liberally. There are too many poor quality patents that grant arbitrary monopolies to key inputs in today's society, such as drugs, chemicals, software, etc. In addition, patent extensions and patent stacking are creating monopolies that are excessively long, and that hurt society. The patent system should impose penalties on those who abuse the system in order to discourage this behaviour. The concentration of wealth created by the current intellectual property system is a typical example of the "codification of violence into laws", as Alvin Toefler would state. What used to require armies to conquer is now possible with patents and lawyers.

Posted by Roman Macaya on June 06, 2005 at 06:42 PM CEST #

I think one of the massively overlooked problems in our IP "system" is that it recognizes the individual's (or businesses') advances, but it seems to pretend that these advances were made in a vacuum.

We're all standing on the shoulders of giants, and so it seems to me that while encouraging innvoation and protecting economic advancement on the hard work of innovating, we should also avoid the reductionist thinking which pretends that public education and infrastructure hasn't played a major role in any IP advancements that people come up with. Amazon's "one-click" couldn't exist without clicking in the first place, after all.

It is wholly inappropriate to deed the "ice-cream sunday" achievements of civilization to someone who simply put a "cherry" on top.

Posted by Robert Nelson on June 06, 2005 at 07:12 PM CEST #

I could live with patents on software provided the protection period is not more than 3 years.

Posted by Mathias Struelens on June 06, 2005 at 08:32 PM CEST #

Assuming the following two presuppositions are true:

a) The Public Domain is usefull or even necessary for the creation and duration of culture

b) Commercial entities (such as corporations) are designed to maximize profit

It follows what we see happening currently: The abuse of the "intellectual property" systems (copyright, trademarks, patents) as a profit-maximizing agent, under disregard or even open hostility to its other aspects - the contribution to society and culture at large. It also follows that point a) will be seen as profit opportunities to exploit (see Disney and their re-interpretations of common folk tales) whereas no profit is gained in contributing back to culture.

What we need to protect a) is strong safeguards against the profit-limited mindset of b). WIPO can provide these, though I fear it is very much on the road of becoming yet another tool of b) already.

If commercial entities had to pay royalities to the public domain for every "intellectual property" item they appropriate from there, very few of them would be able to operate profitably.

Posted by Tom Vogt (193.5.93.35) on June 06, 2005 at 10:18 PM CEST #

First a dissagreement: Inventions are NOT dependent on patents. Many inventions predates the patent system. A way it affects research is that it prevents researchers from building upon what other have done. This in turn blocks free competition. In the best case, a competitor can license a patent. In the worst case, it will block all competition. So instead of a race betwen competitors to add more inventions to their products to sell their products, we get a monopoly. (In my opinion a bad thing)

* Is there a need to preserve, or promote, the public domain? Should the public domain be protected from, or by, the IP system?
The public domain is important to preserve our culture. If IP-rights goes on for ever, it becomes illigal (unless the owners gives up their rights, hard to do when they often don't know they owns it) to copy old works to preserve them.

* Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?
Yes. Instead of wasting money on adwertising, let people spread it themself. Then earn money on performances (like musicans do today), cusumisations and support (software), classes (books on teachable subjects) etc. There are many ways to earn money on open content.

* In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?
Yes. When the goverment says someone own the information you want, or the ideas (sw patents) in the information you have, and you dont want to break the law.

* Are there classes of information for which open access models should be mandatory, and others where they should be excluded?
Personally I beleve that no copyright should last longer than 50 years from the day of its publication. Noone should own general ideas like softwarepatents opens for. We should avoid non-free software, since it is a securety risk to not know what software is doing, and we can not fix it or enhance it ourself (for more, see fsf.org). Other closed information should be considered on a case to case basis. Personal information on the other hand, should be hidden from public.

* Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?
Yes. It makes it impossible for program A to read/write B's files/communicate with B because B have patented its files/protocol etc.

* Is the IP system incompatible with, or in support of, open source software principles?
Open source licensing is based on copyright, but could also have existed without, helped by reverse enginering of closed stuff. However, copyright is in my opinion preferable.

* Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?
Yes. Patents can destroy free software. Non-free software can leave you in a horrible situation were you cant fix the software or gain access to your information. (You buy "ClosedProgram 1.0" from company A. Your software has a bug/is unsecure. You can't fix it (legaly). Company A wont fix it. You want to upgrade your platform, but ClosedProgram don't work on that. You cant make it run on the new platform. Company A still wont help ypu. You want to read your data into a new program. Company A sues you for breaking their patents wile reading *your* data)

Posted by Sveinung (193.5.93.35) on June 07, 2005 at 12:42 AM CEST #

To the person whose alias name is "WIPO MUST DIE":

Your assumption that redistribution constitutes copyright
infringement is simply wrong. Not every redistribution,
or even just distribution, is an act of copyright
infringement. This is same as not every copy is an act
of copyright infringement. You seem to assume that there
is no way to redistribute source code without violating
copyright but this is not so. It is possible to copy
and distribute any portion of source code without
infringing someone's copyright if the test of Fair
Use Doctrine can be met or the Merger Doctrine allows
such action.

It is your choice to believe everything what Eben Moglen
says but I know that he is heavily biased toward Free
Software Foundation and will not do anything that will
weaken the myth that GPL is not a contract.


Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Posted by Joseph Pietro Riolo on June 07, 2005 at 01:29 AM CEST #

Answering point by point...

(1) The statement that the 'copyright system is not a business model' is strange in the context of this discussion, as copyright law is supposedly supposed to protect the rights of creators, and give them initiative to *continue* creating. Therefore when it comes to works which fall under Copyright, it is sensible that Copyright is inherent in a business model.

Recent changes in copyright law, such as extension of copyright up to 95 years, contradicts the statement that 'copyright is not a business model' as well. If it is not a business model, why are the larger lobbying groups businesses?

The truth is that the combination of Copyright and Public Domain are the baseline for business models. To disavow that is not only strange, it is wildly inaccurate.

While discussing specific licenses, such as the Creative Commons licenses, it is important to note that these are licenses for copyright - they are NOT copyright itself. If I produce works that are non-commercial creative commons licenses, no company can use my work without my permission even after my death (70 years) by present U.S. Law. While I doubt that businesses will be fighting for the right to use *my* work, it serves as an example as to why the copyright system itself is flawed - and is an integral part of business models.

Please reference SCO's business model, as well as Microsoft's and the RIAA's. When they speak of piracy, they are using projections based on what they *might* have sold in licensing copyrighted material. Are you saying that WIPO believes that these companies are wrong to do so, and if not, why?

(2) Creative Commons Licenses are not the equivalent of the Public Domain.

(3) "The benefits that open source software may offer include access to source code, community-based development, local skills and capacity building, freedom from vendor lock-in, reduced costs, broad rights, and the ability to customize to local conditions. However, while open source software licensing is increasingly well accepted, these licenses have not yet been fully tested in the courts of various legal jurisdictions. Moreover, they do not contain the warranties, representations and indemnities in favor of the licensee that are standard elements in other licenses. This has given rise to concerns that licensees may be exposed to liability for IP infringement, if infringing code is included in derivative software products."

The perspective presented here condemns a lack of warrant, representation and indemnity. And yet, if you read a proprietary End User License Agreement or equivalent, you will find the same issue.

Therefore, this is not an issue of Open Source software. It is an issue of software licensing, and though proprietary software and Open Source software are both copyrighted works, this seems to fall under Contract or Business Law instead of Copyright Law. The License is a contract. The Copyright is a separate issue.

(4) And?

(5) The Patent System is flawed in that it has become a business model for corporations. Microsoft, as an example, accidentally patented an apple (fruit) last year because of the amount of the paperwork they have been sending to the USPO.

Also, software patents are vague, and the wording that makes them possible is malleable for the purposes of corporations with money to spend. It does not protect the human innovators, it protects innovation manufacturers who indenture innovators. 'We pay you for what is in your head, and it belongs to us'. This goes to employment contracts, and since Copyright Licenses are so discussed, perhaps WIPO would care to discuss the role of Employment contracts in the context of Copyrights and Patents?

---------------------------------------

The Patent System described does not take into account copyrightable works, such as source code, process, pharmaceuticals and biological engineering. Do we really need Copyrights AND Patents for this? One would think Copyright would suffice.

In the latter, it would be certainly difficult for Nature to be sued by a Copyright Holder, and there is always a chance that Nature can recreate what we make in biogenetic engineering. Conversely, Nature could not prove pre-existing 'art' in the context of a plant to a Court of Law.

And in a world where Monsanto is jailing farmers for saving seeds, why doesn't Monsanto simply engineer their plants so that they cannot produce useful seed?

Patents and Copyrights have become an integral part of business models because the laws are flawed, and while they protect corporations, they do not allow individuals or smaller businesses to innovate. The cost of entry is too high.

Posted by Taran on June 07, 2005 at 05:58 PM CEST
Website: http://www.knowprose.com #

Hi,
Maybe it would be good to go back to basics?

Why are we doing this?
======================
To reward innovation by giving the first innovator time to benefit from the idea, while at the same time still allowing humanity to progress as rapidly as possible.

The software world is a good example of how rapid innovation can move humanity forward rapidly. Thankfully software patents haven't hindered us too much so far, though if you read some of the crazy US ones it does make you worry.

How about a license that works like this (this is just a collection of ideas at the moment):

1. You contribute your innovation to a pool of ideas. You are registered as is your idea\art\music whatever.

2. Anyone can take the idea from the pool and license it to make money or distribute it.

3. You are rewarded by a 'tax' on the proceeds from the ones that benfit from taking ideas from the pool. This would be tricky to audit but so long as people don't get greedy it should work.

4. You can register your idea - but restrict it's useage (just like patents now).

5. It *must* be easy to access to add new ideas so that individuals can do it.

6. A way must be found to categorise 'things' that are the same, music etc.

7. There needs to be a way to filter out the 'noise' - but then that's what Google is trying to improve...search.

8. "Obvious" innovations should be excluded...this idea is defined in a number of patent systems, but is rarely managed in a consistent way.

The problem with this system is

enforement

dispute resolution

tax collection

- but that's a problem with the patent system (particularly with software patents) as well so we're no better\worse off.


However - the internet is a fantastic public forum that is unlikely to be corrupted. It's also a massive resource that may be leveraged to make this practical. Remember the tax revenue could be used to help encourage 'judges' to review applications and disputes, and a peer review system (like eBay) used to monitor the system. Maybe a 'jury service' type system where people are called up to help?

To sum up:

IP and Patents restrict the exploitation of innovation. Especially when the patent holder is unable to put sufficient resources behind it or contact the right people.

An Open Source model helps the community but the community doesn't reward the contributors and so discourages participation for many. Lack of personal resources can also limit contributions (usually time) from those that are best able to contribute. Lack of funding also means that the boring stuff (documentation and project management) is limited in all but the most successful innovations.

The community that is the Internet should be somehow leveraged to help administer these systems...


Best regards
S.

Posted by Steve LH on June 07, 2005 at 07:26 PM CEST #

o What is the “public domain”, how is it created and constituted, and what is its relevance to the Information Society?
-- The Public Domain is what is freely accessible by the Public with no cost or fear of legal issues.


o Is there a need to preserve, or promote, the public domain? Should the public domain be protected from, or by, the IP system?
-- The Public Domain needs the full protection from the IP and Pattent system. If something is in the Public Domain, any derivitave or change to remains part of the Public Domain. No individiual or corporation should be allowed to modify a Public Domain work and then copyright it as original work. Look at the previous example of the bible.


o Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?
-- Absolutly. In fact some organization are already becoming afraid of the usage of Creative Commons and starting to bar members from their organizations from working on projects based on Creative Commons. Some authors have started to make a better living via Creative Commons than the past model of artists (all fields) and manager.


o In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?
-- Yea, there are to many fears of litigation from lawyers over this access. What was considered a "Fair Usage" policy is now being changed in the courts and governments, this organization is one of the driving forces to this.

o Are there classes of information for which open access models should be mandatory, and others where they should be excluded?
-- All works where the author has died or the work is over 25 years old should be fully available. If the author (or stock holders) cannot make enough revenue in that time, the work isn't worth it's value to be protected.

o Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?
-- Patent rights prevent interoperability in the IS of today. Look at Windows Media Player issues in the EU. The inclusion of WMP has stifled competition of various media formats. Linux users must move to questionable means to play future media. EULA prevent users from accessing legally purchased material as they seem fit. Look at the issues of Terminator 2 HD that requires WMP 10 and another outside software package. If my licence says I can only play it in the US, if I move I lose access to this legally purchased movie. Also, the software may only allow me to play it X number of times without renewing my licence. This is totally wrong when someone has purchased a product. Case in point. I purchased a CD to support a local artist. I could not play it in my computer without installing software. The software is Windows Only and I run Linux. I returned the CD to the store and downloaded the de-DRM'd music to listen to it.

o Is the IP system incompatible with, or in support of, open source software principles?
-- IP is incompatible in it's present form. IP is very restrictive as it is very easy for commercial interests to create Fear, Uncertainy and Doubt (FUD) in an effort to force many people considering Open Source to stay clear. Look at RedHat that does not distribute and codec or software that may lead to any possible legal challenge in an effort to keep themselves out of court. This causes great problems for the users that look at using their version of Linux. In many cases, enough to keep people paying for Microsoft Windows.

o Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?
-- Absolutly. The FUD raised by SCO and Microsoft has been enough to steer many organizations away from Open Source. IP and Patent issues has made it almost impossible to provide Open Source software for many file types and applications. Look at the fight Open Office has had to create a product that can open Microsoft Office files. Even today, Microsoft is patenting XML formats in an effort to build legal cases against future competitors.

IP and Patent protection of software is just wrong. Patent or IP protection that last longer than a generation is even worse. Electronic Computers are less than 100 years old. Many of the ideas that created the computer are part of the public domain. If one or two corporations had control of these ideas via patents, we would still be working in the days of the Apple II, not pushing the limits of Moores Law every year.

The innovation of todays computing stem from the competition that has been allowed by short time framed IP and Patent protection and restrictive patent approval of the past. Todays legislated extensions are only there to stifle competition and in the end hamper or even stop progress.

Posted by Robin Laing on June 08, 2005 at 08:53 AM CEST #

Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?

Ignoring the fact that Creative Commons licenses are not necessarily intended to provide a viable economic model, I believe they do. The only difference is the economic models are not the same as the one traditionally used by copyright owners. The traditional model is to get an income from selling (or licensing, I guess) one particular piece of artistic work to one person.

The Creative Commons licenses allows for different -- but still viable -- economic models. One of the classic examples of this (predating the Creative Commons) is the "Killer Penguin" video, which was a funny and cool video of a penguin being kept awake by a party, resulting in a shootout (I may have the name wrong). The point is that the video was distributed free, and anyone could redistribute it, and the creator made money by selling physical merchandise (t-shirts and coffee mugs and stuff) as well as an instructional video in how to make that sort of animation.

There are plenty of other viable business models using the Creative Commons licenses, which allow more flexibility to creators as to what they can do with their work and how they obtain an income from it.

I think Creative Commons will be strengthened by including metadata of the licenses.

Posted by James Quintana Pearce on June 09, 2005 at 04:34 AM CEST
Website: http://www.themindtrap.com #

Public Domain is anything that is not under the duration of Copyright grant. It includes almost everything Laws of Physics, Equations of Mathematics, Language and Culture, Religion and Doctrines, etc. It is very wide. Copywrite is a very small but very recent body of knowledge. Everything before the 1920s is Public Domain. But everything created that can be attributed to an identifiable originated is copywrited.

It is in a way the antonym of Copywrite and as such is at odds with Copywrite. The Copywrite is a necessary evil in the sense that without it nobody will want to let other people know about their ideas if they are profitable. And people will be able to attribute somebody else's works as their own.

IP Laws should be designed to maximise the Public Domain. And Copywrite should be used as a tool for this purpose.

There are so many bad patents now that searching for good patents is like searching for a needle in a haystack.

There are several problems with the current patent system.
1) It does not require the inclusion of a working model in the patent application. This allows people to make wild guesses about the future and file patents. Then hope that someday they can make money of somebody else's efforts.
2) It does not require that the patent application be as specific as possible. This allows applicants to patent a very wide field with a single application. Even if prior-art or obviousness is proven for some part only that part is striken off.
3) There is no compulsory licensing.
4) The patent term is too long for the internet age.

To force Patent Applicants to make the application specific, it is required that the law should totally invalidate the patent if even a small part of the patent is proven to have prior-art or is proven to be obvious.

The patent owner should have to pay whatever licensing money they have recieved on that patent to the person contesting a patent if it is found that the patent was bad. There should be an additional penalty if it is found that the patent applicant had already known about the prior-art at the time of applying or if it is proven to be absurdly obvious to anyone in the field. This will provide an incentive for removing bad patents from the pool. And will be a deterrent for people trying to only make money over patents. With less bad Patents searching for useful Patents will be possible.

There should also be a compulsory licensing costs to be fixed by the patent authorities for each patent. This cost should be determined based on the cost of doing the research and coming up with the idea. Actually this will be the only job of the Patent authorities as the Applicants will self regulate because of the deterrent.

Posted by anand srivastava on June 09, 2005 at 02:43 PM CEST #

> Is there a need to preserve, or promote, the
> public domain? Should the public domain be
> protected from, or by, the IP system?

The IP system should be neutral, providing ways for authors to choose from close or open alternatives. The key here is 'choice'. The system should treat the various alternatives equally, leaving the choices to authors.

> In a society that now enjoys unprecedented
> access to unprecedented amounts of information,
> is there a real problem in access to
> information?

Which society are we talking about? Two third of the world population lives in "developing" and "least developed" countries. In those countries, there IS real problem to access information. One must pay attention not to generalize the situation of developed countries to the whole planet.

The problems of access to information in developing countries may be beyond the scope of IP, but given that all parts of the world do not have equal means to access information, shouldn't we have a system that makes for this uneven distribution and availability of information?

The idea is to think about less stringent rules for developing countries to promote technology transfer and sharing, and to allow them to fill in the gap. While this idea can be useful in software, it is even more urgent for drugs, allowing those countries to use expensive patented medication freely, for example to fight AIDS.

> Are there classes of information for which
> open access models should be mandatory,

Yes, for critical drugs susceptible to save lives. But this implies proper public funding for research.

> and others where they should be excluded?

of course : information regarding destructive technologies

Posted by Stéphane Bruno on June 09, 2005 at 07:36 PM CEST #

The public domain is comprised of all cultural resources which we hold in common. All commercial enterprises build upon some aspect of the public domain.

Vibrant societies depend upon thriving public domains. The current IP approach in our digital era privileges commerce to an unncessary extent. Open access publishing and Creative Commons licenses represent important correctives to this diturbing trend.

Posted by Marcus Banks on June 09, 2005 at 08:12 PM CEST #

Thank you for this opportunity to be heard. I hope that WIPO will listen to those who make intelligent comments about IP law and the direction it is going. Here are my comments, based on the questions posed above:

* What is the “public domain”, how is it created and constituted, and what is its relevance to the Information Society?

The public domain is the sum of all of the knowledge and culture that humanity has created over the ages. Anything from the invention of the wheel to Shakespeare to the Theory of Relativity is part of the public domain. Public domain IS the Information Society – nothing is produced in a vacuum, even “Star Wars” owes its existence to the Public Domain.

* Is there a need to preserve, or promote, the public domain? Should the public domain be protected from, or by, the IP system?

If we lose the public domain, then everyone loses. The first to lose is the public, since knowledge that should be freely available isn’t. In the end, even the big Corporations lose. Disney built their movie empire on stories that were available in the public domain. If today’s IP law were in existence back when these classics were created, then many of those movies would have never been made. No “Peter Pan”, no “Winnie the Pooh”, no “Little Mermaid”, no “Beauty and the Beast.” The IP system needs to be an add on to the public domain that encourages it, not kills it. It is a crime that nothing after 1923 is available in the public domain in the USA.

* Do open access licenses, such as the Creative Commons License, offer a viable economic model for creators and authors to distribute their works?

The Creative Commons license was created to fill a need that has been ignored by current copyright law. Without it, things would even be darker than they are now. At least this is a legal vehicle to release works that can be used by all while maintaining some control.

* In a society that now enjoys unprecedented access to unprecedented amounts of information, is there a real problem in access to information?

In the past, information has been priced so high that access has been a problem. As a result, many alternative paths have been created. When I was growing up, we would record and exchange cassette tapes of music that we liked. Records were priced high enough that I could only afford a few, so I would collect only my favorites. I would then create and exchange cassettes with people to expand my collection. The bottom line is that I only had x dollars per month to spend on IP – the IP industry would only get this amount no matter what quantity of IP they sold me.

Today, we still have the same situation. The Corporate IP industry is still in love with high prices – and people still only have so much money. The equation has changed in that it is MUCH easier and quicker to get IP that it was when I was young. If the Recording Industry hadn’t acted like a spoiled brat bully when the original Napster appeared, then most of the problems we have today with file sharing would not exist. The Recording Industry says that they can’t compete with free, but even “free” music costs in terms of time. Instead of taking advantage of an opportunity, they decided to fight instead. Now we have a war where the Music and Motion picture industry is fighting tooth and mail to keep the old ways while time marches on and newer and better P2P applications are built. The Industry can spend as much money on P2P and DMCA type laws as they want, but as Ian Malcom said in “Jurassic Park”, “life finds a way.”

* Are there classes of information for which open access models should be mandatory, and others where they should be excluded?

Personal Information such as credit reports, medical histories, and personal ID information should be protected. Any other information should be open (feel free to add any other exceptions in this category that I may have missed). Locking down information in the name of “Fighting Terrorism” should be prohibited. Solve the problem that results in terrorism instead of “Patriot Act”ing our rights away. I for one do not want any part of the Patriot Act – In my view it is an act of treason.

* Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?

Yes, Personal Information should be protected. Laws like HIPAA are a good thing.

* Is the IP system incompatible with, or in support of, open source software principles?

Open source software is a good thing, and should be part of our IP system. I’m not saying that closed source systems such as Microsoft’s software is wrong, just that the choice should be there. Open source allows the whole community to look at and improve software, which is a real good thing.

* Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?

Yes, thanks to 20 year software patents, patent law has the opportunity to slow the process of both open source and proprietary software. Microsoft has been the target of several dubious patent suits that threaten to not only hurt Microsoft, but hurt the whole Software community. Ideally, I would like to see the end of software patents – they have been misused to the point of where they hurt more than help, but if we must have them, please think about limiting them to 2-5 years – about a generation in computer development time. Twenty years is forever in computer time – it would be like making a traditional patent last 100 years – we would still be driving around in Model Ts.

Bill

Posted by Bill Strebin on June 09, 2005 at 08:27 PM CEST #

Creative Commons welcomes the opportunity to provide comments as part of this WIPO Online Forum. Creative Commons wishes to address one of the specific questions raised in this theme, namely whether the Creative Commons licensing model offers a viable economic model for creators and authors to distribute their works.

For the reasons discussed in Creative Commons’ comments in response to Theme Two, Creative Commons’ experience in the adoption of its licenses does not support the view that an assessment of the suitability of the public domain and open access models of information in the context of the intellectual property system is wholly and solely dependent on the extent to which these models provide a viable economic model for creators and authors to distribute their works. As discussed in Creative Commons’ comments in response to Theme Two, people create works for a variety of different reasons, and people use works for a variety of different reasons. Open access models, such as the Creative Commons model, enable creators and users with commons interests to come together.

That said, even if the Creative Commons’ model is assessed according to standards of economic viability for creators, the Creative Commons’ model meets this standard.

Creative Commons is aware of several comments by representatives of established copyright interest groups that Creative Commons licenses preclude creators from obtaining any remuneration ever for any of their works. Such statements are made without a proper understanding of the nature of Creative Commons licenses and how those licenses can be used in innovative business models. These statements also ignore the experience of numerous adopters of Creative Commons licenses to date.

Creative Commons licenses are standard licenses that, in general, do not include a provision for the payment of a royalty by the licensee. One exception is for those Creative Commons licenses that include the “NonCommercial” license option; where the work licensed with a “NonCommercial” license option is a musical work, the licensor expressly reserves the right to collect public performance, mechanical and other statutory royalties.

The general lack of a royalty-provision in the Creative Commons licenses does not, however, prevent creators from obtaining remuneration from their creative works. There are several scenarios under which Creative Commons licenses work well to assist creators to earn money from their work.

Firstly, Creative Commons licenses can be applied to a work in a particular format to encourage awareness of the work and, thus, sales of the work in a different format. One example of this occurs in the publishing industry. Authors and/or publishers release a book online under a Creative Commons license whilst selling hardcopies of the book.

One notable example is (unsurprisingly) Creative Commons’ Chairman & CEO Lawrence Lessig who released his book “Free Culture” under a Creative Commons Attribution-NonCommercial license. The book is now in its third print run.

Another example includes Magnatune, an innovative Internet radio label that started in 2002. Magnatune releases streams of its artists under a Creative Commons Attribution-NonCommercial-ShareAlike license but sells downloads and CDs.

A further example is the open access law publishing program, recently launched as part of Creative Commons’ Science Commons publishing project. The publishing model adopted by the program and signed on to by, to date, 21 prominent US law journals, enables the author to: retain their copyright; grant the publisher a limited-term, exclusive license for commercial publication; and, make the work available to the public under a, for example, Creative Commons Attribution-NonCommercial-NoDerivatives license. In this way, the commercial publishing model of the journals is not disturbed but authors and the general public from the greater availability of the author’s writings.

Secondly, a Creative Commons license can be applied to a work to signal to the general public the terms on which they may use the work and then interested parties may enter into a commercial side-deal in relation to the work. Also, by reason of the Creative Commons’ metadata and Creative Commons-specific search engines (discussed in greater detail in Creative Commons’ comments in response to Theme Two), Creative Commons licensed work can be more readily located by persons interested in making commercial uses of their work.

Thus, by licensing content within the Creative Commons network, access to a person’s creativity can be substantially increased. Business 2.0, for example, reported on the story of a Slovakian artist who used Creative Commons licenses to make his music available. That then translated into two lucrative commercial contracts to use his music for creative agencies within the United States. (See Andy Raskin, Giving It Away (for Fun and Profit), Business 2.0, April, 2004)

Thirdly, Creative Commons licensed works can advertise a creator’s talents and secure them a commercial arrangement for different or future works. One such example is that of ‘MinusKelvin’, a physics and calculus teacher by day, a composer by night. He makes tracks available to podcasters using Creative Commons licenses and recently joined the ccMixter site (discussed in greater detail in Creative Commons’ comments in response to Theme Two). Runoff Records, Inc. signed MinusKelvin, after discovering him on ccMixter. Together with another ccMixter musician, Pat Chilla, the label will now be doing the music for the next three seasons of America's Next Top Model.

Posted by Mia Garlick on June 09, 2005 at 10:59 PM CEST #

Standards: The UK standards organisation (BSI) has a stated policy of not incorporating matter covered by patents into British Standards unless the patent owner provides an irrevocable undertaking to make licences of right available to anyone on reasonable terms. I understand the situation is different in the US.

Posted by Ronald Camp on June 10, 2005 at 12:49 PM CEST #

I agree with many of the earlier comments that question the motivations of WIPO's raising these questions. Certainly the past history of WIPO's role in copyright has shown their interests to be aligned with moneyed interests.

Nevertheless, I offer a few comments. As the URL suggests, I'm affiliated with Project Gutenberg, which is an all-electronic library of digitized works. The vast majority of our 16,000+ titles are in the public domain in the US. We constantly strive to expand the accessibility of public domain eBooks by seeking older literary works. We also seek to identify public domain items that might not, at first glance, appear to be public domain. These might include:

- items published from 1923-1964 in the US which did not have their copyright renewed: these are public domain.
- items that are no longer commercially available or for which a copyright owner cannot be identified. Under the US Title 17 section 108(h), these may be public domain, and the US Librarian of Congress seems interested in making them accessible.
- items published prior to 1989 without a copyright notice in the US: these are public domain.

We believe there are more than adequate protections for copyright owners to benefit from their works. Unfortunately, copyright term extensions, combined with unduly harsh penalties for copyright-related infringement (especially in the US under the DMCA), has pushed the balance so that the public domain is deemphasized. Prior to 1998, one year's worth of copyrighted items (from 1923, in that case) would enter the public domain, even as the current year's items started their multi-year journey under copyright protection.

But thanks to the copyright term extention of 1998, the most astounding growth in the quantity of information in the world -- fueled by the Internet -- has not been accompanied by any significant growth in the public domain.

As others have pointed out in this topic, open source software and creative commons licenses are welcome, but no substitute for the public domain. Such items still have the full force and duration of copyright law.

Simply put, a healthy public domain is pre-requisite for support of the creative arts. It is very much possible to provide for ongoing commercial potential for some works, while maintaining growth in the public domain. This can be accomplished in many ways, but the most straightforward is to return to the need for active renewal of copyrights beyond a modest term. Such procedures would give the very long copyright terms desired by moneyed interests, while the vast majority of copyrighted items without such interests would enter the public domain after a limited term.

WIPO's leadership role should include fostering a growing public domain.

Posted by Dr. Gregory B. Newby on June 13, 2005 at 02:09 AM CEST
Website: http://gutenberg.org #

WIPO, beautiful initiative. How come though that Professor Lessig, the champion of free information, is the only one who’s contribution (to be found under "background resources" cannot be accessed, as his information is part of his book that he did not want to disclose here, despite many others who have generously contributed to this weblog, Lessig should feel ashamed!

Posted by Severin on June 13, 2005 at 09:58 AM CEST #

Few quick comments about this interesting forum...
1. IP needs fresh air : open-access & cc give it !
2. what the purpose of a creation ? Profit ? Stayed hidden in the family (store it !)? Distribute it ? Let's everbody be aware of this and the "tools" relative to the options !
3. optimistic about the construction / perennity of datas. datas of PD, of course. as a IP lawyer, worried about it.
4. want a clear language of wipo : the feeling that in the conference and seminars (eg. 11-13 may, geneva), wipo advocate for open acess. mmmmmm.but what's going on in "real life"?
5. Joel de Rosnay speaks about "rarity managment" (gestion de la rareté), building classical models...think about it! [if you mind a bit french ! http://www.agoravox.com ]
6.Have a look to epic 2014 !

Posted by luc on June 14, 2005 at 12:38 AM CEST #

** Position Statement from IP Justice **

The IP system is only justified to the extent that it enables widespread creation of (and broad public access to) information, knowledge and creative works. If and when the IP system fails to generate a robust public domain, it fails at its mission and loses its justification. Term limits for IP rights are a critical mechanism for producing a robust public domain, as the absence of such limits would lock up IP rights under a permanent monopoly. Monopoly is tangibly harmful to society, as it leads to excessively high prices for goods, constrains access to high price levels of demand, and reduces market incentives for innovation and quality. Monopolies are tolerated in the form of IP rights only to the extent that the social benefits of compensating and producing the knowledge outweigh the social costs of a monopoly over that creativity.

The current paradigm of periodically extending IP terms (especially when valuable IP is due to enter public domain imminently) is directly at odds with the mission of producing a robust public domain. Current terms are much longer than necessary to compensate opportunity costs, and only further the narrow interests of dominant rightsholders seeking to establish and expand monopoly power in new markets.

Current trends toward applying content control paradigms (such as encryption or Digital Rights Management (DRM), or creating entirely new rights for controlling broadcast transmissions) threaten to constrain access to such information beyond the intent of open access creators, and impinge upon legally established realms of fair use and access to content already in the public domain.

-----

IP Justice is an international civil liberties organization that promotes balanced intellectual property law in a digital world.

Posted by IP Justice on June 14, 2005 at 01:15 AM CEST
Website: http://www.ipjustice.org #

I consider it is very important to preserve or promote the domain public in order to promote bnew inventions and creativity. In terms of patents information under domain public is part of the state of the art so that it is the platform for inventors to creation.
Under copyright's side, we must bear in mind the lenght opf protection is justified because the class of information protected in quite different (despite some works being applicable on an industrial level such as software, or databases, etc) In Copyright Law the intention is the protection of the cultural heritage and take measures to keep it alive among generations without being deformed regarding moral rights (authorship and integrity)

Posted by Gonzalo Ramirez on June 14, 2005 at 01:26 AM CEST #

The discussion in this section distinguishes the "public domain" from copyrighted and unavailable works, and seems to place licensing such as Creative Commons at some point in between. However, the discussion still rests on a conception of authorship which is individual rather than social. There must be some acknowledgement that each product of authorship emerges from a social environment where specific audio, visual, and textual languages operate. Significant parts of these languages are implicit in works rather than explicit - for example, take a genre like hip-hop music: it is distinctly identifiable as a musical genre with its own conventions, which differ from other genres. While no-one "owns" hip-hop, artists in this genre produce not just their "individually authored copyright works", but also - often self-consciously - make a contribution to the genre and it's development, as well as making use of distinguishing features of the genre developed by others. At present, the IP system cannot adequately recognise or support such collective and not-strictly-commercial senses of innovation, and this will have grave consequences for the Traditional Knowledge issue. A revised and socially differentiated conception of authorship must be fostered within the IP system if it is to increase its legitimacy outside of Euro-US individualist cultures.

The discussion in paragraph 6 on the potential public benefits of the patent system seems defensive in tone and largely at odds with how the patent system is actually used and who it benefits. Benefits (and patents) overwhelmingly accrue to entities which can afford expensive legal resources to effectively use this system. It may be true that in the future the patent system may be a tool equally accessible and beneficial for all, however that day is a long way off. Solicit the experiences of those working in the health sector in developing countries to get a perspective on the real impact of the patent system on preventing access to medicines in developing regions. While it is true that "it is in patent-holders' interests to place the invention in the market at a price that the market will absorb", the important question is "Which market?" For a medical company, they can get return on investment from their sales in developed countries, requiring a large marketing expenditure that acts as a barrier to competition. Such a strategy will not work in a low-income market, and it may not be worth supplying the product to low-income markets. Nevertheless, the risk to *future markets* from competition is high enough that the patent-holder will use the IP system to prevent generic manufacturers from serving this market. The result is that the invention does *not* reach low-income markets, and the IP system is central to this "market failure".

Danny Butt
Associate Member
ORBICOM International Network of UNESCO Chairs in Communications

Posted by Danny Butt on June 14, 2005 at 05:57 PM CEST
Website: http://www.orbicom.uqam.ca/ #

Dear Mr Joseph Pietro Riolo,

First, I should mention that I am not what you would call a layman. It is true that I am trained as an engineer, but I have also studied formal law to an advanced level.

I examined the blog entry you point to. The first error is: "license needs an agreement because otherwise, it is worthless. Copyright law does not
need any agreement from anyone for it applies to everyone in the U.S. But, license needs an agreement because otherwise, it is worthless. GPL allows you to do certain things as long as you agree to the conditions as stated in GPL. Without
the agreement, GPL is just a blob of words. GPL has no effect on anyone who does not agree to it or does not see it.".

This is legally not right. You are confusing contract (where the parties must be 'at one', even in the case of so-called unilateral contracts) with licence.

In fact there are licences which do not require agreement by the person taking advantage of them, the classic example given in law lectures being the implied right of access to, say, a shop - stepping inside would otherwise be trespass.

It is only in contract law that agreement is specifically required. To say that without agreement the GPL 'is simply a blob of words' is equally wrong.

If the GPL fails copyright law still applies, and there by the way is no excuse for failing to know the conditions of either the licence or the copyright holder's rights.

Regards, TC

Posted by Terry Cole on June 15, 2005 at 01:24 AM CEST
Website: http://www.physics.otago.ac.nz #

To Terry Cole,

You made a wrong assumption that all licenses are alike.
Your example of implied license shows that not every license
is an implied license. GPL is never an implied license.
You have to read GPL to understand the conditions. In
order for GPL to be enforced, there has to be at least some
agreement (or understanding) between the licensee and
licensor. Otherwise, it is just a blob of words.

You obviously did not consider the case where GPL can be
violated without the copyright law being violated. Do you
ever wonder where GPL gets the power to enforce people to
abide by the conditions as stated in GPL? You can't use
the power of copyright law to enforce the conditions in
GPL that do not exist in the copyright law (known as
"extra elements"). Then, where do you get the power?
The answer is contract law.


Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Posted by Joseph Pietro Riolo on June 15, 2005 at 02:22 AM CEST #

To Danny Butt,

While I understand your point about the difference in
the cultural perspective on the concept of authorship,
your desire to give protection to Traditional Knowledge
is a threat to the freedom of knowledge. The holders
of Traditional Knowledge in many ways are very similar
to patent holders where they hold the "keys" to the
Traditional Knowledge. Where is the freedom of knowledge
in that?

You seem to forget that Traditional Knowledge is built
on many layers of previous knowledge and that Traditional
Knowledge occurs when the people in a social environment
have the freedom to use the previous knowledge to lay
a next layer of knowledge (such as hip-hop in your example).
If too much protection is given to Traditional Knowledge
where people can't use it to build the next layer of
knowledge, then it becomes harmful to the freedom of
knowledge.

Nowhere in your comment gives me any hint on how long
the protection for Traditional Knowledge should last. I
could assume that you favor perpetuality in the protection.
If my assumption, then, the perpetual protection for
Traditional Knowledge is just as detestable as the long
term for patent protection that you complained about.


Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Posted by Joseph Pietro Riolo on June 15, 2005 at 02:39 AM CEST #

To Gonzalo Ramirez,

You seem to forget that without moral rights, many
creative versions of original works are made possible.
Without moral rights, we have many different creative
versions of Romeo and Juliet. Without moral rights,
we have many different creative versions of Christmas
Carol. Without moral rights, we have many different
creative versions of Biblical stories.

Just imagine the consequence if the moral rights
are strongly enforced in perpetuality. Just imagine
the chill that moral rights will have on the future
generations who want to create different versions of
the original works. If the moral rights were given
to Shakespeare, we would not see so many versions of
Romeo and Juliet that we have now. If the moral
rights were given to Charles Dickens, we will not
see so many versions of Christmas Carol. If the
moral rights were given to the authors of books in
the Bible, we will not see so many versions of
Biblical stories that are told in different,
interesting ways.

Once copyright term expires, the moral rights should
expire as well. Making moral rights perpetual
is a threat to the freedom of expressions that
the future generations can enjoy. There is no
justification in very long copyright term. The
longer the copyright term is, the more censorship
it becomes.

Better to keep copyright term including moral
rights short lest they destroy the freedom of
knowledge and freedom of expression that the future
generations truly deserve.

Authorship is just a myth that authors and artists
want people to believe in. The authors and artists
themselves do not want to tell us where they get
the ideas from because if they do, they lose their
authorship. You have to recognize that the authors
and artists are standing on many layers of previous
knowledge and none of them stands on their own.

You do not need moral rights to keep cultural
heritage alive. Education is the key to survival
of cultural heritage. This can be only possible
if there is no restrictions on how people can
educate the next generation.


Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Posted by Joseph Pietro Riolo on June 15, 2005 at 03:15 AM CEST #

For creations, inventions and their underlying innovations to enter the public domain, they first have to be made available to the public by their authors and inventors. IP provides incentives and appropriate balances for making this happen. Open access models are likewise enabled by IP (e.g. Open Source Software licenses rely on copyright). By granting innovators the choice of the distribution model to pursue, IP promotes the sharing of information, culture and technologies, and stimulates competition, for the benefit of users and society at large.

Posted by Benoît Müller on June 15, 2005 at 08:24 AM CEST
Website: http://www.bsa.org #

This is the last day, and it was my first limited opportunity to access this material, so I haven't had time to review it all. I would like more time, if possible.
I want to submit the following. With globalization and the need to unify our governments more through the United Nations and the European Union, restricting the use of traditional knowledge and expressions of culture (currently considered elements of the public domain) is becoming much more popular. As a resident of Palau where our tiny culture has been dramatically affected by colonization, war, and occupation by four different foreign governments, I believe it is correct to say that Palauans, for instance, are very sensitive about the non-traditional use of the cultural images and knowledge by outsiders, and want very much to control such use.
With globalization happening rapidly around us all, I think every culture is somewhat sensitive to the threat of losing their cultural ways. The US was created as a "melting pot" of cultures. A melting pot is not what most of our cultures want. The recent voting on the EU constitution are a good example. Therefore, we need to keep working on some way to limit the non-traditional uses of our traditional knowledge and expressions of culture. With such authority and respect for each other's culture, globalization and working together through the UN will be much more positive. It needs to be done.
Palau has a US based democracy, but Palauans want their own form. They do not want to destroy the healthy aspects of their culture, aspects that are much better than the US. Firearms and nuclear weapons are forbidden by the Palau constitution, for example. And criminal justice is working towards being much more Palauan with reconciliation and forgiveness between the families of the criminal and the victim as being a critical element - not just locking up the bad guys.
Wish I had more time.

Jerry Marugg uchelkidl-AT-palaunet-DOT-com

Posted by Jerry Marugg on June 15, 2005 at 09:24 AM CEST #

Rechte wahrzunehmen kann wohl nur möglich sein, wenn entsprechende Rechte eingeräumt sind. Insoweit benötigen FS/OSS, CC etc selbstverständlich IPR. Ob allerdings die Idee in den einzelnen (Urheber-)Rechtsordnungen konsistent durchführbar ist oder an der konkreten Ausgestaltung der IPR scheitern muss, ist derzeit mE völlig ungeklärt. Hier besteht noch eine ganze Menge an juristischer Grundlagenarbeit. Die Frage, ob bzw inwieweit zB die GPL, CCl uÄ durch IPR (derzeit) verunmöglicht wird und wo Handlungsbedarf besteht, muss daher von den einschlägigen FachexpertInnen geklärt werden.

Die WIPO sollte idZ jedoch eine Grundsatzäußerung in Form der Bejahung alternativer Distributionsmodelle abgeben. Wenn der rechtliche Rahmen, der das Spannungsverhältnis UrheberInnen/Verwert/Allgemeimheit in den Grundzügen normiert, solche alternativen Lizenz- bzw Distributionsmodelle anerkennt und fördert, wird eine deutliche Stärkung der Position der UrheberInnen eingeleitet. Letztlich würde damit das Grundanliegen des Urheberrechts, dass UrheberInnen über die Verwertung ihrer Werken frei disponieren können sollen, tatsächlich realisiert. Es scheint mir das unbedingt nötige rechtliche Pendant zu den inzwischen erreichten technischen Möglichkeiten (insb der "Selbstverwertung").

Posted by Elisabeth Staudegger on June 15, 2005 at 12:15 PM CEST #

Public domain is where the information is open to the public for free use.The IP system namely patents have a maximum of 20 years from the date of registration.

Well,when it comes to public domain,i think such information will probably be outdated bacause it will have been replaced by new findings and will be somewhat irrelevant although still a source of information.

For copyright in reference to musical works,it is probably 70 years after the death of the author.Using the example of dance kind of music,i mean the Michael Jackson,even when it vcomes to public domain,the trend has probably changed to rap music.

Nevertheless,it is interesting source of information when something comes to public domain. The disadvantage i see with public domain is that it is increasingly difficult to re invent it as potential for growth because it has lived its usefulness.

Thank you for reading my comments and tou can keep my contacts to continue this debate.

Posted by Wilson Rading Outa on June 15, 2005 at 12:20 PM CEST #

To Jerry Marugg,

"Melting Pot" is not the best way to describe the U.S.
because there are still many cultures thriving in many
different places in the U.S. The more appropriate word
that I learned is "Smorgasbord". This is not surprising
because the U.S. is a fine example of pluralistic society
where many cultures can coexist with each other.

Your desire to control the uses of the cultural images
and knowledge puts you in the same group as the patent
holders who desire to control the uses of their patents.
You need to learn to let other people partake in your
cultural images and knowledge so that they can be enriched
by your culture. Otherwise, you will be viewed as a
closed society that forbid the outsiders. Also, you
should not forget that your culture is the result of
your descendents adopting the cultural images and
knowledge from other cultures.


Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Posted by Joseph Pietro Riolo on June 15, 2005 at 12:37 PM CEST #

To Benoit Muller,

If you are really representing BSA as indicated by your
website, you should know that BSA is a very poor example
of intellectual property and you should be ashamed of
that.

Intellectual property system is a very powerful incentive
system to encourage people to make their works available
to the public. But, too much of it will turn the symbiotic
relationship between intellectual property and public domain
into paraistic relationship where intellectual property
is diminishing the public domain. In other words, as long
as you know the limitations, the relationship is working.
This is something that BSA should learn.

If you are not really representing BSA, disregard the above
and you should tell the readers that you have no relationship
with BSA.


Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this
comment in the public domain.

Posted by Joseph Pietro Riolo on June 15, 2005 at 12:50 PM CEST #

Giving the world free of charge my own invention and creative work is my freedom. Recently there has been a continuum of threats in legal system reformation, new laws and pre-court trial FUDs which threatens the public inexitence of this freedom.

"Public domain" is a good example of how to maintain the freedom. Since it is a term applicable worldwide, it represent the same degree of freedom, regardless of pressures from anybody on the government of a particular country.

WIPO, as an internation organization, should recognise the need for more "constitutional freedom" of such form. For instance, creative commons would be much more effective, if it is WIPO which defines the term itself, and mandates acknowledgement of the freedom of authors to "put their work into the state of Creative Commons".

This may seem unnecessary at first sight, but it can prevent confusions caused by existence of terms which the public need uniformity which does not exist. A good example is "freeware", which is normally understood as "waived all rights of redistribution in unmodified form", while such a grant of right is rarely seen to be explicitly attributed to the software of such kind.

Similarly the BSD license is a good example of "grant of right with a clean meaning" that many people may want to attribute their work with. This can lessen the pressure that people cannot understand the rights they are granted, unless they sit down to read the long license texts, which cannot be written in a shorter form because of its legal requirements.

Posted by Alan Tam on June 15, 2005 at 06:16 PM CEST #

THEME 3: The public domain and open access models of information creation: at odds with the intellectual property system or enabled by it?

Comments of the International Intellectual Property Alliance (IIPA), www.iipa.com, on Theme 3.

The public domain is enhanced by strong protection of intellectual property rights. By providing incentives to artists and innovators, intellectual property protection spurs creative production and thereby increases the amount of material that will eventually enter the public domain. In addition, intellectual property protection does not preclude creators from dedicating their works to the public domain. If some creators do not rely upon the revenue from their works or inventions to provide for themselves and their families, there is no intellectual property law preventing them from utilizing a Creative Commons license or some other form of “some rights reserved” license. In fact, creators may abandon their rights entirely if they so choose. To the extent that Creative Commons licenses provide creators with choices, they are supported by everyone in the creative community.

Open source models for creating software, which are based in the copyright system, stand beside proprietary software models as legitimate business models. However, countries should be aware that the “total cost of ownership” associated with proprietary software is often lower than that of open source software, which comes without warranties and without an identifiable entity standing behind it. To the extent that the open source movement has spawned creativity, it is in the public interest. As the commentary states, “Software development is a powerful tool for economic development. IP plays a critical role in promoting research and development in this field and in protecting and rewarding creative software development, whether based on open source or proprietary models.”

Nevertheless, the open source/open access movement must not develop into a movement advocating that “all creative works should be free.” This naïve “principle” not only does not work practically, but can endanger the creative process itself by justifying the theft of intellectual property. In order for the public domain to continue to grow and continue to contain beautiful works in the literary and artistic domain and valuable enabling technologies, like software, whether protected by copyright or patent, the international community must continue to offer creators the option of making a living from their efforts by granting creators rights in their intellectual property.

Posted by International Intellectual Property Alliance on June 15, 2005 at 09:34 PM CEST
Website: http://www.iipa.com #

Comments of BSA:

Q: Are patent rights (e.g., software patents) consistent with need for interoperability in the Information Society?

A: Patents, including patent protection for software-based inventions, are not only consistent with current demands for IT interoperability, but may in fact foster the kind of information sharing and pooling of private-sector resources and expertise that are critical to surmounting interoperability challenges. First, a prerequisite for patent protection is that the inventor discloses to the public a clear and precise description of his or her invention. Patents for software-related inventions thus provide an effective mechanism for promoting the goals of technological disclosure and interoperability.

Patent protection enables software developers to share key technologies with partners, customers, and others (even competitors) without significantly diminishing the developer’s ability to prevent second comers from copying those aspects of a software program that are truly novel and innovative. So in this respect, patent protection enables software developers to maintain the integrity and value of their IP assets in ways that are consistent with promoting interoperability.

In short, patents offer an effective mechanism for balancing incentives for innovation against the goals of broad product interoperability. And in fact, software developers routinely use patent licensing as a means to contribute key interoperability technologies to standards-setting bodies while retaining the ability to profit from their R&D investments.

Q: Are IP issues (both patent and copyright) a factor in a cost/benefit analysis of adopting open source or proprietary software?

A: Computer programs, regardless of their development or licensing model, typically are subject to a variety of intellectual property rights, including copyright in the software code itself (whether in binary or source code form) and patents in specific technologies embodied in the program. Similarly, any program, whether open source or proprietary, may include intellectual property that is derived from a multiplicity of sources. Thus, users will often factor IP issues into the cost / benefit analysis of acquiring software, regardless of whether that software is made available under an open-source license or a more traditional license.

Jesse M. Feder
Director of International Trade and Intellectual Property
Business Software Alliance

Posted by Jesse Feder on June 15, 2005 at 11:04 PM CEST
Website: http://www.bsa.org #

NOTE: Much of the discussion in this post is relevant to other matters in other “themes”. To avoid double posting, I have referenced material in "Theme 1" that can be found on that theme's webpage. If you would like a copy of all postings in a single document, please feel free to email me at the address below.

ACT is a global trade association in the information technology sector and represents nearly 3,000 members – the vast majority being small and medium-sized enterprises.

The basic contours of what falls into the public domain is defined by intellectual property laws themselves, so asking the question – as WIPO does – as to whether the public domain should be “protected from” the IP system seems redundant. Again, the IP system, by defining the scope and length of protection sets the contours of the public domain. But it rests in the hands of the intellectual property owners themselves to determine whether they will seek and maintain protection for their creations or not. If they do not seek protection – or do not maintain it – then their creation falls into the public domain.

WIPO quite rightly points to the work of the Creative Commons Initiative as an undertaking that places the decision in the hands of authors as to how they would like their works to be exploited. A component of that decision is, of course, whether the work will be protected at all or be allowed to fall into the public domain. While the Creative Commons Initiative is very useful and appropriate, it can take on harmful attributes if government intervention requires its use. While this is not so much an issue in the case of Creative Commons-type licenses, it has arisen as an issue and a problem in the case of open source software. In particular, where governments intervene to take certain choices out of the hands of consumers by mandating that only software that is the subject of an open source license can be procured. Accordingly, the answer of ACT to the question posed by WIPO as to whether there are “classes of information for which open access models should be mandatory, and others where they should be excluded”, the answer would be clearly “no.” In particular, it should be a decision taken by the creator of a work or a piece of software to determine whether and how that work or software should be protected – in a manner appropriate for the business model he or she has chosen – and that choice should not be mandated either by intellectual property or procurement laws or rules.

WIPO has asked the question as to whether “patent rights (e.g., software patents) [are] consistent with need for interoperability in the Information Society.” ACT believes that there is no inconsistency between patents on software and interoperability. First, it should be noted that many of ACT’s members participate in industry standards bodies. There is no inconsistency between patent protection and such participation or, indeed, to the enterprise of setting standards in the information technology industry. Typically, relevant intellectual property, including patents, is made available to such standard setting bodies under "reasonable and nondiscriminatory" terms, either on a for-fee, or royalty-free basis. This is up to the rules governing the relevant standards setting bodies and their members to decide. Second, patent protection provides a much stronger and more reliable basis for the sharing of information pertaining to interoperability than other forms of intellectual property – in particular trade secrets. As noted by WIPO in the commentary to this online forum, one quid pro quo of being granted patent protection is that the technology must be fully disclosed so that others involved in the technology can understand and use it.
Lastly, ACT fully agrees with the statement made by WIPO in the commentary that:

“Software innovation is a powerful tool for economic development. IP plays a critical role in promoting research and development in this field and in protecting and rewarding creative software development, whether based on open source or proprietary models. The choice between open source and proprietary models of software is therefore not a decision antagonistic to IP, but rather a business decision, based on strategic and policy choices, to be made according to the circumstances of each case.”

In respect of open source software, ACT’s fundamental concern is that consumers be allowed to choose whether they wish to buy software that is distributed under an open source licensing model or proprietary software. There should be no mandate, but competition should proceed on the basis of cost, reliability, and other relevant matters. Certainly, if there are concerns about whether a given open source program infringes intellectual property rights of others, then a purchaser may either seek appropriate guarantees or indemnification from the provider of the program or choose to purchase another product. The important point is to allow the consumer to decide – and that governments not mandate the purchase of a given type or class of product.

Posted by Jonathan Zuck on June 15, 2005 at 11:49 PM CEST
Website: http://www.actonline.org #

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