1. Working Towards Coherence in IPRs Issues
The lack of coherence in international agreements that relate to access to information
Strategic Dialogue on Coherence Between Multilateral, Regional and Bilateral Processes on Intellectual Property and a pro-Development Agenda on IPRs
Working Towards Coherence in IPRs Issues
Manon Anne Ress
CPTech
November 20, 2003

2. 1. What do international agreements say about access to information?
Declarations on education, development or human rights
Trade agreement provisions on copyright and related rights
2. How can we better incorporate development and other social objectives into trade agreements?

3. UNIVERSAL DECLARATION OF HUMAN RIGHTS Adopted by UN General Assembly Resolution 217A (III) of 10 December 1948
Art. 19 
Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

4. Article 27 - UNIVERSAL DECLARATION OF HUMAN RIGHTS
What does it say?
Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
What does it mean?
Authors (does not mention owners), should benefit
Moral and material interests are not the same as exclusive rights –
the right of creators to benefit when works are commercially exploited.

5. The International Covenant on Economic, Social and Cultural Rights (ICESCR) December 1966
Article 13, the longest provision in the Covenant, is the most wide-ranging and comprehensive article on the right to education in international human rights law….

6. March 1990 UNESCO The declaration was adopted by 155 governmental delegations
Therefore, we participants in the World Conference on Education for All, assembled in Jomtien, Thailand, from 5 to 9 March, 1990:
Recalling that education is a fundamental right for all people, women and men, of all ages, throughout our world; Understanding that education can help ensure a safer, healthier, more prosperous and environmentally sound world, while simultaneously contributing to social, economic, and cultural progress, tolerance, and international cooperation; Knowing that education is an indispensable key to, though not a sufficient condition for, personal and social improvement; Recognizing that traditional knowledge and indigenous cultural heritage have a value and validity in their own right and a capacity to both define and promote development; Acknowledging that, overall, the current provision of education is seriously deficient and that it must be made more relevant and qualitatively improved, and made universally available; Recognizing that sound basic education is fundamental to the strengthening of higher levels of education and of scientific and technological literacy and capacity and thus to self-reliant development; and Recognizing the necessity to give to present and coming generations an expanded vision of, and a renewed commitment to, basic education to address the scale and complexity of the challenge; proclaim the following

7. World Declaration on Education for All: Meeting Basic Learning Needs
EDUCATION FOR ALL: THE PURPOSE
ARTICLE I - MEETING BASIC LEARNING NEEDS 1. Every person - child, youth and adult - shall be able to benefit from educational opportunities designed to meet their basic learning needs. These needs comprise both essential learning tools (such as literacy, oral expression, numeracy, and problem solving) and the basic learning content (such as knowledge, skills, values, and attitudes) required by human beings to be able to survive, to develop their full capacities, to live and work in dignity, to participate fully in development, to improve the quality of their lives, to make informed decisions, and to continue learning. The scope of basic learning needs and how they should be met varies with individual countries and cultures, and inevitably, changes with the passage of time.

8. 6-8 September 2000 55/2. United Nations Millennium Declaration
9. We resolve further:
To ensure that, by the same date [2015], children everywhere, boys and girls alike, will be able to complete a full course of primary schooling and that girls and boys will have equal access to all levels of education.
IV. Protecting our common environment
To ensure free access to information on the human genome sequence.
V. Human rights, democracy and good governance
To ensure the freedom of the media to perform their essential role and the right of the public to have access to information.

9. The Berne Convention for the Protection of Literary and Artistic Works (1886 amended1971) is the most important treaty on copyright (referenced by TRIPS and most IP trade agreements)
Article 9
Possible exceptions;
(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
[note, refers to legitimate interests of author. For works not owned by authors, author interests are much narrower than owner interests. Author may want the owner to be protected for a short term to make enterprise economic, but there is no basis for excessive term, and conflict with author interest in being read.]

10. Berne, Article 10: Certain Free Uses of Works: 1. Quotations; 2
Berne, Article 10: Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author
It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.
Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon

11. Appendix to the Berne Convention Special Provisions Regarding Developing Countries
Article III  (1)
Any country which has declared that it will avail itself of the faculty provided for in this Article shall be entitled to substitute for the exclusive right of reproduction provided for in Article 9 a system of non-exclusive and non-transferable licenses, granted by the competent authority under the following conditions and subject to Article IV.

12. Berne Appendix (con’t) Article III (2)
(a) If, in relation to a work to which this article applies by virtue of paragraph (7), after the expiration of  
(i) the relevant period specified in paragraph (3), commencing on the date of first publication of a particular edition of the work, or   
(ii) any longer period determined by national legislation of the country referred to in paragraph (1), commencing on the same date,
copies of such edition have not been distributed in that country to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any national of such country may obtain a license to reproduce and publish such edition at that or a lower price for use in connection with systematic instructional activities.
(b) A license to reproduce and publish an edition which has been distributed as described in sub-paragraph (a) may also be granted under the conditions provided for in this article if, after the expiration of the applicable period, no authorized copies of that edition have been on sale for a period of six months in the country concerned to the general public or in connection with systematic instructional activities at a price reasonably related to that normally charged in the country for comparable works.  

13. Berne Appendix Article III, con’t
(3) The period referred to in paragraph (2)(a)(i) shall be five years, except that (i) for works of the natural and physical sciences, including mathematics, and of technology, the period shall be three years;   (ii) for works of fiction, poetry, drama and music, and for art books, the period shall be seven years.  
(4)  (a) No license obtainable after three years shall be granted under this article until a period of six months has elapsed (i) from the date on which the applicant complies with the requirements mentioned in Article IV(1), or   (ii) where the identity or the address of the owner of the right of reproduction is unknown, from the date on which the applicant sends, as provided for in Article IV(2), copies of his application submitted to the authority competent to grant the license.
(b) Where licenses are obtainable after other periods and Article IV(2) is applicable, no license shall be granted until a period of three months has elapsed from the date of the dispatch of the copies of the application.   
(c) If, during the period of six or three months referred to in sub-paragraphs (a) and (b), a distribution as described in paragraph (2)(a) has taken place, no license shall be granted under this article.  
(d) No license shall be granted if the author has withdrawn from circulation all copies of the edition for the reproduction and publication of which the license has been applied for.

14. Berne Appendix, Article III, con’t
(5) A license to reproduce and publish a translation of a work shall not be granted under this article in the following cases:  
where the translation was not published by the owner of the right of translation or with his authorization, or
where the translation is not in a language in general use in the country in which the license is applied for.
(6) If copies of an edition of a work are distributed in the country referred to in paragraph (1) to the general public or in connection with systematic instructional activities, by the owner of the right of reproduction or with his authorization, at a price reasonably related to that normally charged in the country for comparable works, any license granted under this article shall terminate if such edition is in the same language and with substantially the same content as the edition which was published under the said license. Any copies already made before the license terminates may continue to be distributed until their stock is exhausted.  
(7)   (a) Subject to sub-paragraph (b), the works to which this article applies shall be limited to works published in printed or analogous forms of reproduction.   
(b) This article shall also apply to the reproduction in audio-visual form of lawfully made audio-visual fixations including any protected works incorporated therein and to the translation of any incorporated text into a language in general use in the country in which the license is applied for, always provided that the audio-visual fixations in question were prepared and published for the sole purpose of being used in connection with systematic instructional activities. 

15. Some weaknesses of the Berne appendix:
1. The appendix discourages rather than encourages the use or licensing of rights by making it complex to negotiate separate use, arrangements.
2. Some critics believe developing countries do not have the capacity to overcome the complex procedural barriers to obtain compulsory licensing schemes
3. Negotiated in the pre-photocopier/internet era, there was no explicit attention to the role of new information technologies in increasing access to materials. The entire focus was to authorize local publishers to reproduce materials.

16. In general, exports of copies authorized under a compulsory license are prohibited
Appendix, Article IV
4(a) No license granted under Article II or Article III shall extend to the export of copies, and any such license shall be valid only for publication of the translation or of the reproduction, as the case may be, in the territory of the country in which it has been applied for.
Only exceptions to IV.4(a) are for nationals living abroad
Berne is more restrictive than Article 31(f) of TRIPS regarding limits of exports under compulsory license of a patent
31(f) required use to be predominately for domestic market (allows exports up to 49 percent)
31(k) waives 31(f) when licenses are issued as remedy to anticompetitive practices

17. TRIPS (1994) is the most important trade and IP agreement (first broad IP agreement to include effective dispute resolution mechanisms)
Article 7 Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

18. TRIPS: Article 8 Principles
Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

19. TRIPS Agreement Relationship to Berne, and general exceptions clause
Part II, Section 1: Copyright and Related Rights
Article 9 Relation to the Berne Convention
1.  Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.
[6bis is the moral rights clause in the Berne Convention]
Article 13 Limitations and Exceptions
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

20. The 1996 WIPO Copyright Treaty (WCT)
Preamble
recognizing the large public interest, particularly education, research and access to information, as reflected in the Berne Convention

21. UK Commission on Intellectual Property Rights Report p.104
“In order to improve access to copyrighted works and achieve their goals for education and knowledge transfer, developing countries should adopt pro-competitive measures under copyright laws. Developing countries should be allowed to adopt or maintain broad exemptions for educational, research and educational uses in their national copyright laws”.

22. Who is to be protected? Declaration on Human Rights – “authors”
Berne – “authors”
Rome “performers, producers, broadcasting organisations”
WIPO 1996 Copyright treaty – “authors”
TRIPS – “right-owners”
US/Chile FTA: fn 7, References to "authors" in this chapter refer also to any successors in interest.
US/Singapore: “authors, performers, producers of phonograms and their successors in interest.”

23. Existing minimum terms of Protections
Berne – life plus 50 years, except for photographs, which are protected for 25 years
WIPO 1996 WCT – life plus 50 years
Rome – 20 years
TRIPS
Copyright owners – 50 years
Performers and Producers – 50 years
Photographs – (Berne) 25 years
Broadcasting organizations – 20 years
Proposed WIPO – Broad/cable/webcasting treaty – 50 years
US/Chile FTA – 70 years
US/Singapore FTA – 70 years

24. FTAA Copyright Provisions Article 10. Term of protection
[10.1. With respect to the term of protection, the provisions of the Berne Convention shall be applicable.]
[10.1. Each Party shall provide that: a) where the term of protection of a work (including a photographic work), performance or phonogram is to be calculated on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death; b) where the term of protection of a work (including a photographic work), performance or phonogram is to be calculated on a basis other than the life of a natural person, the term shall be not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance or phonogram or, failing such authorized publication within 25 years from the creation of the work, performance or phonogram, not less than 120 years from the end of the calendar year of the creation of the work, performance or phonogram.]
[10.2. The term of protection for authors of photographic works shall be 50 years counted from the end of the calendar year of their making.]

25. Other terms of protection
Data for registration of products
pharmaceuticals – 3 to 5 years in the US, 7 years in Australia, 6 to 10 years in Europe
Agricultural products – 10 years in US with mandatory compulsory license
Orphan Drug development – 7 years in US, 10 years in Europe
Pediatric testing exclusivity – 6 months in the US
Database protection (includes protection of collections of non-original or non-copyrighted works)
15 years in Europe, renewed when database is updated
Semi-conductor design – TRIPS requires 10 years
Other Industrial designs
TRIPS – at least 10 years US
Boat hull designs – US sui generis protection for 10 years
design patents – 14 years for new, original, and ornamental design for an article of manufacture
UK – 5 years, renewable for up to total of 15 years of protection subject to compulsory license after first 10 years of protection
EU – 5 years, renewable for up to 25 years
Plant breeder rights
FTAA, no less than 15/20 years, except for vines and trees, no less than 18/25 years.

26. The FTAA Place holder for a treaty on Broadcaster Related Rights is Objectionable
The WIPO proposals for a broadcaster/webcaster treaty would allow broadcasting organizations to exercise 50 years of exclusive rights over material they did not create or own, including information that is in the public domain, or even when the author encourages free dissemination.
The US and some other countries have proposed extending this instrument to computer networks such as the Internet. If the definition of covered subject matter is broad, it could create an entirely new layer of IP rights that would apply to every web page.
Bad precedent to agree to 50 year term for investment based protection.
(even less deserving than database protection)

27. Could FTAA provisions on copyright related issues have been useful
Could FTAA provisions on copyright related issues have been useful? (thinking about what we would have done)
Minimum standards for exceptions relevant for Internet
No IP claims for hypertext linking
Agree to permit reverse engineering necessary to achieve interoperable products
Joint approach to require disclosure of assertions that implementation would infringe on patents
Public Funded R&D to enter public domain
Open journals
Support for Open Source/Free software
Governments require use of open standards for file formats
Limit scope of software patents
Agreement to support public domain distance education tools
Technological measures
Least privacy restrictive methods
Minimum exceptions to protect the visually impaired,

28. Strategies for Civil Society
Differentiate rights of authors from owners
Support economic interests of authors,
oppose excessive levels of protection, and promote non-exclusive rights models where appropriate.
In trade proceedings, elevate discussions of software, focusing on abuses of Microsoft monopoly
Microsoft and Bill Gates are polarizing and unsympathetic figures
Cost of Microsoft monopoly is high in terms of price and (low quality) of software
Frame issue in terms of “open source” or “free” software development models.
Open new front on access to essential learning tools
April 5 meeting in NYC at Ford Foundation
Textbooks, journals, databases, software and distance education tools