Copyright and Acess To Knoledge

ASIA PACIFIC CONSUMER
VOL 43 & 44 1 & 2/2006
Copyright and Access to Knowledge

Intellectual Property - A Balance of Rights CI Study on Copyright and Access to Knowledge Access to Knowledge in Indonesia Access to Knowledge in Thailand Access to Knowledge in Southern Africa Access to Knowledge in Brazil Freedom and Diversity A Defence of the Intellectual Commons Freeing Ideas The Adelphi Charter The WIPO Development Agenda Access to Knowledge Treaty WIPO Carves Up The Internet Blocking Access with Digital Locks Libraries the Peoples Universities Open Access Journals Some Rights Reserved An Introduction to the Creative Commons Open Source Software The Free Software Foundation List of CI Members in Asia Pacic 34 36 38 40 44 47 50 52 4 13 18 21 24 28 30
Edited by: CI KL Team ASIA PACIFIC CONSUMER is the quarterly magazine of Consumers International Kuala Lumpur Ofce. Articles included here do not necessarily reect the ofcial views or policies of Consumers International. They may be freely reproduced with due acknowledgement. Please address all correspondence to: Editor Asia Pacic Consumer CI Kuala Lumpur Lot 5-1, Wisma WIM 7 Jalan Abang Haji Openg Taman Tun Dr Ismail 60000 Kuala Lumpur Malaysia Tel: +6 (03) 7726 1599 Fax: +6 (03) 7726 8599 E-mail: consint@ciroap.org Other CI Ofces: CI London 24 Highbury Crescent London N5 1RX United Kingdom Tel: +44 (0) 207 226 6663 Fax: + 44 (0) 207 354 0607 E-mail: consint@consint.org CI Santiago Agustinas 715, Ocina 504, Santiago-Centro, Chile Tel: (56-2) 632 0812 Fax: (56-2) 632 0613 E-mail: consint@consint.cl CI Accra No 2, La Tebu Close East Cantonments Estates PMB CT 386 Cantonments, Accra Ghana Tel: +233 21 911829 / 21 911994 Fax: +233 21 784370 E-mail : zhopewell@consint.org
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www.consumersinternational.org
Editorial
CI commenced work on the Copyright and Access to Knowledge project in September 2004 with support from the Open Society Institute and the International Development Research Centre. Since then we have: Published our research ndings on the copyright laws of 11 developing countries in Asia entitled Copyright and Access to Knowledge Policy Recommendations on Flexibilities in Copyright Laws, Produced country reports on Access to Knowledge in Indonesia and Access to Knowledge in Thailand, Assisted our project partners, the Yayasan Lembaga Konsumen Indonesia and the Foundation for Consumers Thailand to organize national workshops and launch their campaign activities, Represented CI and presented statements at WIPO meetings on the Development Agenda and the Standing Committee on Copyright and Related Rights, Written to WIPO to review their draft laws on copyright and related rights, Launched a global postcard campaign on April 26 the WIPO declared World Intellectual Property Day - calling for WIPO to review their draft copyright laws, Disseminated the project ndings at various international conferences on intellectual property issues, and Developed a website (www.ciroap.org/a2k) to share the materials produced during the course of this project with a wider audience. More recently, on 5 June 2006, we organised a Training Workshop on Copyright and Access to Knowledge in Bangkok for CI members from Asia, Africa and Latin America and facilitated their participation at the Asian Conference on the Digital Commons also held in Bangkok, from 6-8 June 2006. We therefore think it appropriate to dedicate this double issue of the Asia Pacic Consumer to the theme of Copyright and Access to Knowledge. It is intended to be a primer on the issues, initiatives and institutions working on Access to Knowledge. We hope you nd the publication a useful resource. Thank you for your support and we look forward to your feedback. The CI KL Team
Asia Pacific Consumer Vol 43 & 44 No 1 & 2 2006 | 3
A Balance of Rights
By Dr. Sothi Rachagan*
Intellectual Property
Dr. Sothi Rachagan
W HAT IS INTELLECTUAL PROPERTY (IP)?

The World Intellectual Property Organization (WIPO) denes IP as creations of the mind, such as inventions, literary and artistic works, symbols, names, images and designs used in commerce. The commercial value of IP is derived from its usefulness and the legal protection attached to it.
WHY PROTECT IP?

Owners of IP base their claim for protection of their rights on two theories. The rst is the bargain theory. Monopoly rights are granted and protected to ensure that the private innovator has the economic incentive for future technological innovations. The bargain is that the innovator shares his invention with society in return for the monopoly rights granted. The second is the natural rights theory. Here, the innovation is seen as the outcome of the mental labour of the creator and therefore by right the property of the creator. There is no obligation to disclose anything and the creator has every right to be compensated for its use by others.
It is this latter theory that is now being increasingly promoted. Proponents of IP rights have begun to even contend that any innovation is the property of the creator for perpetuity and the state must protect it in the same way as any other property such as land, a house etc. Such a contention challenges the notion that IP protection should be limited for a specic duration or in any other way. Both theories are logical, yet incorrect. Monetary gain is not the only motivation for innovators. More importantly, innovations are never made in a vacuum. Innovators create by building on existing knowledge and must permit their own creations to be a building block for the creations of other innovators. IP rights therefore involve striking a balance between the private rights of an inventor and the right of the public to access the innovations. All the international treaties beginning with the UN Declaration of Human Rights 1948 right through to the WIPO Copyright Treaty
1996 speak of this balance between private and public rights. (See Box 1)
PUBLIC RIGHTS COMPROMISED

However, over the last 20 years, the IP regime has been developed so as to greatly tilt the balance in favour of the private rights of the inventor/creator. There has been an unprecedented increase in the scope and extent of IP rights protection and a decrease in the public right to access. This has taken place both at the international level as well as at the national level.
ASSUMPTIONS IN IP PROTECTION
There are three assumptions that have been used to support IP protection. These are that: The concept of IP and the IP system are good for society, There is no better alternative system, and The system has worked well and will work well for all societies at all stages of development. These assumptions are not proven; yet by their continual assertion tend to be accepted as fact.
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Box 1
BALANCE OF PUBLIC AND PRIVATE IP RIGHTS

Article 27 - Universal Declaration of Human Rights, 1948 1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientic advancement and its benets 2. Everyone has the right to the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he is the author. Article 15 - International Covenant on Economic, Social and Cultural Rights, 1976: 1. The States Parties to the present covenant recognize the right of everyone: i. To take part in cultural life; ii. To enjoy the benets of scientic progress and its applications; iii. To benet from the protection of the moral and material interests resulting from any scientic, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. 3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientic research and creative activity. Article 7, TRIPS Agreement, 1994: 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. Preamble, WIPO Copyright Treaty, 1996: ..the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reected in the Berne Convention.
TM
PATENT
PAT.PEND
GLOBALIZATION OF IP
There are three major aspects to the globalization of IP: Deeming creations of the mind/ inventions as property and then privatizing its ownership, Expansion of the protection granted to private owners, and Standardization/ harmonization of this expanded protection.
societies were shared with the community for the betterment of the people. This was seen as contributing to the public domain to ensure further creativity. Despite very sophisticated legal and political systems, non-Western civilizations did not attempt to make knowledge into private property and this was despite being more technologically advanced than Europe. European supremacy in technology became established only around AD1450. The Chinese invented the wheelbarrow, gunpowder, matches, cast iron, porcelain, magnetic compasses, paper, printing and paper money. The Indians developed the decimal system (and the concept of zero), the water wheel, cloth dyes, brass, and the extraction of crystalline sugar from cane. None of these were regarded as private property; they belonged to everybody. Privatization of creations and inventions only began when Europe became more technologically advanced. The rst IP law was the Venetian Patent Law 1474 - it protected new and ingenious devices reduced to perfection for ten years. The West now holds back knowledge from being shared freely.
DEEMING CREATIONS OF THE MIND/ INVENTIONS AS PRIVATE PROPERTY

Until the 18th Century, patents and copyright were referred to as monopolies or royal privileges. The term property came to be used only since the French Revolution. The rst such reference is in the French Patent Bill 1791 and was intended to convey the impression that IP is fundamentally like interest in land or tangible property. This was followed by the US Patent Act 1793 that referred to a patent grant as property. Privatization of the creations of the mind is not a universal concept. It began only when the West became a net producer of IP. The intellectual outputs of individuals in other
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EXPANSION OF IP PROTECTION
There has been an expansion in the protection granted to private owners of IP. The expansion has taken place in: The subject matter of IP, Within each subject area, In the scope of the rights protected, In the duration of protection, and Through the restriction of fair use.
the copyright holder the right to authorize reproduction, translation, adaptation, and communication to the public by broadcasting or loudspeaker. TRIPS added to this, the right to authorize commercial rental in respect of computer programs and cinematographic works. The WIPO Copyright Treaty expanded the right of communication to the public to include communication through the internet. The US Digital Millennium Copyright Act (DMCA) 1998 created a new right to control access to copyrighted works by deploying technological means of restriction and made it an offence for anyone to circumvent these technological barriers. This is an interesting concept since the offence is for circumventing the technological device used to lock up knowledge. The charge is akin not to theft, since you could not steal what is yours, but rather of breaking and entry. What happens if what is being locked away is not the property of the owner but something that rightfully belongs in the public domain? Should the person still be charged for breaking and entering. Indeed, should not the person who locked up public property be charged for theft?
enabled by provisions in the law that permit certain uses without the copyright owners permission. This is called fair use in the US, fair dealing in the UK and other common law countries, and private use in the EU and other civil law countries. Fair use is permitted in international IP treaties, but how it is applied is left to national laws. Generally, certain requirements must be met for fair use. For example, the copyright owners right of reproduction is subject to the fair use provision which permits copying for private, non-commercial purposes. Even the 1976 US copyright law permitted photocopying for private non-commercial use. The new law severely restricts photocopying. This trend to reduce or exclude the possibilities of fair use is also found in international treaties. Article 11 of the WIPO Copyright Treaty now provides that parties may choose to make fair use entirely dependent on the permission of the copyright holder or not to include them at all. The United States DMCA 1998 makes illegal any act circumventing encryption technology even in cases traditionally considered legal under the fair use exception. Such an approach is not made mandatory either by TRIPS or the WCT, but the US is using FTAs to spread this norm to the rest of the world. The US-Singapore and US-Australia FTAs provide for this locking up and criminalizing access to copyrighted material. The US is negotiating FTAs with many countries, including Thailand and Malaysia, and it is likely that this provision will pass into the national law also in these countries.
SUBJECT MATTER EXPANSION

Initially, there were only three distinct areas of IP protection: patents, copyright and trademarks. The trend now is to expand the areas of protection. TRIPS added the following areas: geographical indication, industrial designs, layout-design of integrated circuits, undisclosed information, life forms (biological and microbiological processes, microorganisms, plants and animals) and compilations of data. The WIPO Copyright Treaty reafrmed this. Some countries have added personality rights i.e. rights to prevent exploitation or unauthorized commercial use of an individuals name, image or likeness. WIPO is now negotiating a treaty to provide new protection for broadcasting and web casting organizations. More and more new areas are being locked up.
EXPANSION OF DURATION
IP protection is given only for a xed period of time. Upon expiry, the creation/ invention ceases to be protected and falls into the public domain. Take the example of copyright. For literary works, the duration of protection initially granted by the Berne Convention was life of the author plus 7 years. In 1908, this was extended to the life of the author plus 50 years. TRIPS and the WIPO Copyright Treaty adopted this, but set this as a minimum requirement. Countries were therefore free to set a higher duration than these minimum requirements. The US and the EU expanded copyright protection to life of the author plus 70 years. The US has forced other countries to apply this higher standard through bilateral Free Trade Agreements (FTAs). In the case of Mexico, copyright duration is life of the author plus 100 years. There is discussion now of protection in perpetuity!
EXPANSION WITHIN EACH SUBJECT AREA

Another way in which expansion is taking place is within each area. Take the example of copyright. Copyright initially protected only work that was in literal text. The Berne Convention in 1886 expanded the works covered by copyright to include many new areas such as cinematography, drawings, paintings, architecture, sculpture, engravings, lithography, maps, plans, sketches, illustrations, photographs, art works and music. TRIPS in 1995 and the WIPO Copyright Treaty in 1996 extended protection to software and databases.
STANDARDIZATION OF IP
This expanded IP regime is now being standardized/ harmonized throughout the world. International treaties on IP have existed since the late 19th Century. TRIPS made it global and mandatory all members of the World Trade Organization are required to accept TRIPS as part of a package of agreements they sign. The forum has now shifted and standardization/harmonization is now being achieved through WIPO. Developed countries are using WIPO to push for even
EXPANSION OF THE SCOPE OF THE RIGHT PROTECTED

The scope of the right granted itself has been expanded. Again, take the example of copyright. In the 19th Century, the copyright owner enjoyed little more than protection against verbatim copying of the work. The Berne Convention expanded this by granting
RESTRICTING FAIR USE

There are public rights in IP. For instance, public rights to access copyrighted work is
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higher standards. Other means for achieving standardization are FTAs and the use by the US of its Special 301 procedure. The Special 301 procedure is used to withdraw preferential treatment and impose sanctions against countries with weak IP enforcement measures. The US Trade Representative produces a comprehensive report every year that monitors IP implementation in its trading partner countries and uses this report to threaten action if stricter enforcement measures against infringements are not taken. Developed countries, notably the US and the EU, are imposing this one size ts all IP standard to the detriment of developing countries.
others was then benecial to the Swiss economy. It was the same for Japan, Taiwan and Korea. They made copies, and then they made slight improvements until they reached a level of development when they could produce their own inventions. That is the sequencing that is necessary. Developing countries cannot develop new technologies overnight they need time to learn by copying what others have done; then they improve their own copies and then perhaps the time will come when others will copy from them. The problem is that those who copied to develop are now demanding that copying be made illegal. They bring to bear their might to stop others from copying
their IP, which they developed by copying in the rst place! Developed countries enjoyed a long grace period for their societies to freely access knowledge in their pursuit of development. The same transition period is not being accorded to developing countries. Developing countries are being pressured into adopting the new highly restrictive IP regimes entrenched in the West, without addressing their development needs and agenda such as in health care, education, science, and research. National lawmakers are unable to formulate IP protection based on local conditions and they are subject to continual pressure to ratchet upward the protection granted to right owners.
SEQUENCING IP PROTECTION
Developed countries did not begin with strong IP protection. The US Constitution provides that Congress shall promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their writing and discoveries. The protection is to be for authors and inventors and for limited times. The US has shaped its IP policy such as to suit its own development needs. This it has done over time by changing the category of authors who can qualify for protection, redening the exclusive rights to be protected and increasing the duration of protection. The US did not initially extend copyright protection to the works of foreigners; protection was limited to only citizens and residents of the US. In fact, the US at rst exploited much of the intellectual property of Europe. Copyright protection of foreign works was only given in 1891. (See side panel) There was also no recognition given to foreign and imported patents on the ground that these works were necessary to meet the development agenda of the country. The US only ratied the Berne Convention in 1989. Similarly, the Swiss, who are today among the biggest producers of pharmaceuticals, had weak patent laws until 1907 when the Germans threatened trade sanctions. Swiss laws did not cover chemicals and pharmaceuticals until 1978. Copying from
Copyright in the 19th century

In the 19th century, British literature was reprinted cheaply in the United States. Charles Dickens lobbied the American congress to act upon this copyright infringement but without success. American publishing was undercapitalized and needed copyright infringement in order to survive. On the other hand, in the US, Harriet Beecher Stowe is said to have lost USD$200,000 because her famous book Uncle Toms Cabin was reprinted in Europe without permission. In 1853, she sued a German publisher for translating and selling a copy of her book. But the court ruled that because it was not an exact copy, and it was translated, it could not be considered as infringing copyright.
Source http://www.victorianweb.org/authors/dickens/pva/pva76.html http://www.victorianweb.org/authors/dickens/pva/pva75.html http://www.pbs.org/now/politics/copyright.html
IMPLICATIONS OF EXPANDED IP RIGHTS

ACCESS TO KNOWLEDGE
Strong and sustained enforcement of copyright creates a barrier to access knowledge and negates development of the poor, especially in the area of education and research. The monopoly rights given to copyright owner permits the owner to determine prices, translations, supply, distribution, etc. and these monopoly rights are being used to reap unconscionable prots. The result of high prices is diminished scholarly communication. The CI research surveyed textbook prices in Indonesia, Thailand and the US. The same book Goodman and Gilmans The Pharmacological Basis of Therapeutics retails at US$ 81.70 in Indonesia, US$ 66.23 in Thailand and US$ 139.00 in the US. It would appear that the books are cheaper in Indonesia and Thailand than they are in the US and indeed they are in absolute terms; but not so in relative terms. The books are prohibitively expensive when considered in terms of the Gross Domestic Product (GDP) per capita and the Purchasing Power Parity (PPP) equivalent. The student in Indonesia pays the equivalent of US$3,171(in GDP terms) and US$913 (in PPP terms) of what the student in the US pays. A student in Thailand will have to pay an equivalent of US$1,065 (in GDP terms) and US$323 (in PPP terms). Affordability is the critical determinant for access of books and the books are priced such that they preclude access. It is well to remember that in Indonesia 56% of the people live on less than one US dollar a day!
A Loughborough University survey of scholarly journal prices between 2000-2004 indicates that prices increased between 27% and 94% during this period. In 2004, the median overall journal prices for all subjects varied from 124 pounds sterling for Cambridge University Press publications to 781 pounds sterling for those of Elsevier. An American Library Association survey of journal prices from 2001-2005 indicates price increases of 34% for US titles and 42% for non-US titles incurred by colleges and universities. During the same period, public libraries fared no better the price increase was 16% for US titles and 35% for non-US titles.
The problems faced by colleges, universities and libraries in the developing world are manifold that of those in the US. Universities and libraries in the developing world cannot keep up with such increases year after year. Many get no increase in acquisition budgets and some even have to contend with cuts.
ACCESS TO MEDICINES
Patent holders take advantage of their monopoly rights by charging high prices for medicines including for diseases that affect a large number of people. They pressure developing countries to prevent local manufacture or the parallel import of cheaper generic versions of drugs from countries where they are not patented. A survey of retail prices of Zantac shows illogical differential pricing. The drug that is sold at a retail price of US$23 in Australia and US$21 in New Zealand is retailed in Mongolia at US183, in the Philippines at US$63, in Sri Lanka at US$61 and in Thailand at US$ 37 (See Box 2).
ACCESS TO SEEDS
When countries newly gained independence, they set up research stations to produce high quality seeds and fertilizers. They set up demonstration farms to help diffuse the adoption of new varieties and improved production methods and introduced land reform. They gave peasants land, seeds, and fertilizers and provided irrigation. They sought to liberate their farmers from poverty and dependence. Since then, there has been a major shift in agricultural production. Governments are pulling out of research and
Box 2
Traditionally scholars at research institutions made their research available through a gift exchange arrangement. They submitted articles to publishers and served on peer review editorial boards with little or no nancial gain, but with the implicit understanding that publishers will provide the widest possible audience for their research. It was readily acknowledged that their research ndings were a public good. From the 1960s the journals were bought up by a few multinationals, the largest of which is Elsevier.
Retail prices in USD of 100 tablets of 150mg Zantac (Ranitidine) (1998) HAI News No.100, April 1998 Min.Daily Wage Australia N.Zealand India Bangladesh Mongolia Philippines Sri Lanka Thailand 46 32 1.3 2.1 0.8 5.0 1.4 2.9 GNP per capita 18,720 14,340 340 240 31 1080 600 2740 Price 23 21 2 9 183 63 61 37
Box 3
Return to Innocence
Return to Innocence is a 1994 song created by the musical group, Enigma. The single was the rst from their chart-topping second album, The Cross of Changes. In the song the main vocals are provided by Angel X (Andreas Harde) while the Native Taiwanese chant was sampled from the Jubilant Drinking Song without the singers permission. Kuo Ying-nan and Kuo Hsiu-chu, were in a cultural exchange programme in Paris, France in 1988 when their performance of the song was recorded by the Maison des Cultures du Monde and made into a CD. The producer of Enigma, Michael Cretu later obtained the CD and proceeded to sample it. Return to Innocence was used in the 1994 movie Exit to Eden and in the 1995 movie, Man of the House. In 1996, the song was further popularized as it was used in a television advertisement to promote the 1996 Summer Olympics held in Atlanta, USA. In March 1998, the Taiwanese singers sued Cretu, Virgin Records and a number of recording companies for unauthorized usage of their song. Michael Cretu claimed that he believed that the recording was in the public domain. The case was settled out of court for an undisclosed amount of money and all further releases of the song were credited (including royalties) to the Kuos. The settlement did not address the issue as to who are the real owners of traditional knowledge and what compensation they should receive.
private institutions and corporations have replaced them. Now it is these entities that produce the seeds and the fertilizers. Farmers now have to buy the seeds they wish to plant. Similarly, patents over seeds and patent or plant variety protection for new plant varieties have resulted in farmers having to pay high prices for proprietary seeds. Farmers are not being allowed to save and replant the seeds they produce; they have to buy fresh seeds for each new planting season. This has created a new dependency. Corporations now control the food chain. These corporations are also only interested in a few commercial varieties and consequently there is immense loss of biodiversity.
Who owns TK? A particular community? The nation state within which the community is located? Is TK part of the public domain? Who speaks for TK at international fora? What legal regime is to be applied? The global IP regime? A one of a kind sui generis regime? Customary law? Developed countries, and the international institutions that are beholden to these developed countries, are not in a hurry to address the issues related to TK. While the issues remain unresolved, TK is being exploited by corporations (both TNCs and local), universities, and even national governments with no benet going back to the indigenous owners of TK. The now often repeated story of the Enigma music Return to Innocence is illustrative (see Box 3). Akin to the issues related to TK are those related to bio-resources. Corporations are increasingly tapping into the resource base of many developing countries to develop plant varieties and medicines. Failure to compensate the indigenous communities and the developing countries concerned is viewed by many as biocolonialism and bio-piracy (see Box 4)
TRADITIONAL KNOWLEDGE AND IP

Perhaps the most glaring conict between the rich and the poor over IP is in the area of Traditional Knowledge (TK). It is of immense concern to indigenous communities, yet not readily addressed within the IP regime that has already been developed. There are many unresolved issues regarding TK. This is because its communal ownership, uncertain date of creation and unwritten form does not t the requirements of the current IP system.
RECLAIMING THE PUBLIC DOMAIN

Numerous efforts are being undertaken across the globe to reclaim the public domain. These can be categorized as follows: Effort for a paradigm change in international law and practice Increasing access through new practices or initiatives National law reform to maximize use of permitted exibilities in international treaties
CONSUMER RIGHTS, IP AND THE POLITICS OF IP PROTECTION

The ratcheting up of IP protection adversely impacts almost all the rights of consumers. The right to basic goods and services, especially access to education, healthcare and food are reduced by IP protection. The right to choice is reduced when IP laws create monopolies; permit market segmentation, and differential pricing. The consumer rights to access information and education are severely reduced when information and knowledge are made into private property that yields its owners the right to seek rent. The right to a healthy environment is compromised when there is a loss of biodiversity and crop varieties because corporations that nd it more protable to move away from the rich variety of agricultural species to a limited range control the food chain. As in the case of all restrictive laws, it is the poor who are affected the most by strong IP laws. Focusing of IP issues will permit the consumer movement to pay greater attention to those who cannot afford basic goods and services and those unable to consume. The politics of IP is not easily comprehended. There is the divide between the developed world and the developing world with IP protection seen as a way to appropriate the traditional knowledge and bio-resources of the developing world even whilst denying them access to knowledge and consequently development. There is at the national level a lack of coherence in the policies of many developing countries and this is the case even with those that at the international level call for a liberal IP regime. Brazil and Argentina which sponsored the development agenda at WIPO themselves provide far more IP protection than is required by their own international obligations. Indeed CIs study of eleven countries in Asia indicates that all 11 countries have granted more protection than they are required to. And there are tensions as regards IP even
with global NGOs reecting the varied biases of their often-diverse constituents. Policy positions then reect the relative strength of the constituents within these organizations. Fortunately for the developing world, there is a loose alliance of academics, scientists, researchers and activists in both the developed and developing world who have kept the IP issue on the radar of development discourse. They have developed a coherent theory and presented viable alternatives to the vexing issue of IP protection. The support they have had from progressive international organizations and funders is critical to this effort.
PARADIGM CHANGE IN INTERNATIONAL LAW AND PRACTICE

These efforts include: The campaign for a review of TRIPS at the WTO as part of the Doha Development Agenda The WIPO Development Agenda Proposal by Brazil and Argentina and supported by the 14-member Friends of Development calling for WIPO to meet the needs of developing countries The campaign for an Access to Knowledge Treaty The Adelphi Charter on Creativity, Innovation and IP to ensure that society has access to knowledge generated by others and IP laws do not become too restrictive
* Dr. Sothi Rachagan is Vice President, Nilai International College, Malaysia and Advisor, Consumers International.
INCREASING ACCESS THROUGH NEW PRACTICES/INITIATIVES

Examples of such efforts are: Open access software ensures that software programmers have access to source codes to freely innovate and develop new applications Open access scholarly journals overcomes price and access barriers through open access journals and self-archiving Creative Commons allows authors to select different types of licenses for publishing their work to ensure wider access Electronic Information for Libraries (Ei) consortium of libraries purchasing digital materials on a cost sharing basis
NATIONAL LAW REFORM

Consumers International policy recommendations on exibilities in copyright laws of 11 Asian countries Access to Learning Materials project in Southern Africa
Box 4
Bio-Colonialism and Bio-Piracy The failure to address issues related to traditional knowledge and bio-resources even whilst ratcheting upward the protection granted to new inventions doubly jeopardizes developing countries. The obvious questions are If a company takes a seed from a farmers eld, adds a gene and patents the resulting seed for sale at a prot, what reason is there for not compensating for the original seed? If the traditional knowledge of a particular community is the basis for a development that is granted intellectual property status and protection, what is the compensation to be granted the community that is the source of the traditional knowledge or resource? Countries from which the resources have been used without compensation regard such acts as bio-colonialism or bio-piracy. Some examples of such use are:
Two cancer drugs, vincristine and vinblastine, were developed by Eli Lilly in the 1950s and 1960s, from the rosy periwinkle of Madagascar. The drugs have helped dramatically reduce deaths from childhood leukemia and testicular cancer and netted Lilly hundreds of millions of dollars (Pollack, 1999). But Madagascar did not get a share of the prots.
Cross-breeding with barley collected in Ethiopia in the 1950s saved Californias crop from yellow-dwarf virus, resulting in hundreds of millions of dollars worth of increased output (Pollack, 1999). But Ethiopia received no returns.
Scientists from University of Wisconsin have used a West African berry to isolate a protein 2,000 times sweeter than sugar. That gene can be inserted into other fruits to make them sweeter. It will now probably be produced in genetically modied bacteria, eliminating the need for the berry itself (Pollack, 1999). But no payments have been made to any West African country.
Abbott laboratories is developing a painkiller that is said to be 200 times stronger than morphine and has no side effects. Abbott found the active ingredient in a poison secreted by a frog, and now managed to make a synthetic version of it. The frog, a poison-dart frog, is an endangered species and only lives in parts of Ecuador. The native people of Ecuador already knew about the capabilities of the skin of the frog and used it to make poison darts. This company now patents the active ingredient called epibatidine.
In 1997 the German based multinational Cognis led its rst patent regarding the Baobab tree. It patented leaf extracts for cosmetic products. This tree grows in many countries in Africa and has great symbolic value. It is widely used in for example traditional medicine. A medicinal plant database cites 51 traditional uses of this tree in Africa. Cognis patented an ingredient to use it as a cosmetic product. It is however highly unlikely that this multinational was the rst to discover this use.
The Neem tree (Azadirachta Indica) grows mainly in India, and its various parts have been used for ages by the people in India for medicines, toiletries, contraception, agriculture and fuel. In 1995 a patent was granted to a US company W.R. Grace and the US agricultural department on an anti-fungal product derived from Neem. A ten year struggle challenging this patent in the European Patent Ofce (EPO) was waged by Dr. Vandana Shiva together with Magda Aelvoet, Member of the European Parliament and Linda Bullard from the International Federation of Organic Agricultural Movement (IFOAM). Their struggle ended successfully in 2005 when the EPO revoked the patent on the grounds that the process that was patented was in use for many years in India. This is the rst case of biopiracy that has been handled by the EPO.
In 1999 a patent was granted to POD-NERS LLC on the Enola bean. The president of the company took the Enola bean from Mexico in 1996. The bean is also called the yellow bean, because of its colour. In Mexico, these yellow beans have been cultivated for centuries. Because of the patent, Mexican export of yellow beans and also other beans has decreased, in some sales even as much as 90%. Because of the patent the company has the exclusive right to export and grow the bean and can prohibit others from exporting or can force others to pay royalties when importing yellow beans from somewhere else.
Source 1. Pollack, A. (1999) Patenting life - a special report: biological products raise genetic ownership issues, The New York Times, 26 November 1999. 2. Yellow bean monopoly has Mexicans jumping, The Herald, (Glasgow), February 11, 2002. 3. A picture of ill health: by all measures the people of the south suffer from worse health than those of the north, Canada and the World Backgrounder, May 2000.
4. Rattray, G.N. (2002), The Enola bean patent controversy: biopiracy, novelty and sh and chips, Duke Law and Technology Review, http://www.law.duke. edu/journals/dltr/articles/2002dltr0008.html 5. Chee Yoke Heong, Africa suffers 36 cases of biopiracy, http://www.ghanaweb.com/public_agenda/article. php?ID=5062
7. India wins landmark patent battle (2005), http://news. bbc.co.uk/2/hi/science/nature/4333627.stm 8. Background paper on the Neem patent challenge (2000), http://www.evb.ch/fr/p25000448.html 9. http://www.williams.edu/go/native/neem.htm 10. http://www.groen.be/nieuwseninformatie/pers/
6. McGown, J. (2006), Out of Africa: Mysteries of Access and Benet Sharing Edmonds Institute, Washington, http://www.edmonds-institute.org/outofafrica.pdf
persmed_item.asp?persmed_id=416
The CI study on Copyright and
Access to Knowledge
opyright, as indeed all intellectual property rights, do not grant the owner absolute rights. The owners rights are qualied with limitations and exceptions so as to enable the public to gain access to such materials under certain conditions. The public is granted access when it is for instance for personal non-prot use or for research and educational purposes. These limitations and exceptions, the scope of works and rights protected by copyright and the duration of copyright, are contained, albeit to a differing degree, in each of the international treaties - the Berne Convention, the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) and the World Intellectual Property Organization Copyright Treaty (WCT). Any country that becomes a party to these international treaties, is entitled to avail itself of these exibilities in order to ensure that public access to copyrighted materials is ensured. Consumers International (CI) recently conducted a study and published a report on Copyright and Access to Knowledge (2006). The CI study sought to determine the:
1. Extent to which the Berne Convention, TRIPS Agreement and the WCT each provide for exibilities for public access to knowledge of copyrighted works; 2. Extent to which the national copyright laws of 11 developing countries in Asia (Bhutan, Cambodia, China, India, Indonesia, Kazakhstan, Malaysia, Mongolia, Papua New Guinea, the Philippines and Thailand) take advantage of these exibilities; The study also reviewed the World Intellectual Property Organization (WIPO) draft laws on Copyright and Related Rights and the United States-Singapore Free Trade Agreement (FTA) with respect to its provisions on intellectual property rights. In addition, a comparative price study of educational textbooks in Indonesia, Thailand and the United States was conducted. The CI report reveals that: 1. The international instruments have progressively ratcheted upwards the scope of protection, the rights accorded to copyright owners and the duration of protection for copyright owners; 2. All the 11 developing countries have not taken advantage of all the exibilities available to them in the international treaties they signed and in fact, provide copyright owners far more rights than they need to under the treaties they signed; 3. The WIPO draft laws on copyright do not provide for all the exibilities available in the international treaties and is more restrictive than need be of public access to knowledge. 4. The US-Singapore FTA has ratcheted even higher the copyright protection of owners than is required by the three international treaties; 5. The same books are far more costly in Indonesia and Thailand than in the US, when compared in terms of the gross domestic product per capita of the countries concerned and in terms of the purchasing power parity.
THE INTERNATIONAL COPYRIGHT REGIME

The Berne Convention for the Protection of Literary and Artistic Works 1886 is the rst international treaty on copyright. The UK mooted the idea of international cooperation and the early members were mainly Western European countries (Belgium, Germany, France, Spain, Switzerland, Tunisia and the UK became members in 1887). The US only became a member of the Berne Convention in 1989. The rst Asian country to become a member was Japan in 1899. The majority of the developing countries in Asia formally adopted the Berne Convention well into the 20th Century. Copyright protection for educational materials has been increasingly strengthened since the Berne Convention was adopted in 1886. The only attempt to streamline the Berne Convention to take into account the needs of developing countries for mass education was made at the Stockholm conference in 1967. The attempt eventually failed and the only agreement in this regard was reached in Paris in 1971, where a watered down set of exemptions for developing countries were included as an Appendix to the Berne Convention. Nevertheless, there are important limitations and exceptions in the Berne Convention that balance the rights of copyright owners with access in the public domain. Since then, the Agreement of Trade Related Aspects of Intellectual Property Rights
(TRIPS) 1995 and the WIPO Copyright Treaty 1996 have expanded copyright protection even further to areas that were previously not covered in the Berne Convention. The TRIPS Agreement (1995) committed all the member countries of the World Trade Organization to adhere to the Berne Convention and the Appendix (except for the moral rights provisions of the Berne Convention) and this regardless of whether they were a party to the Berne Convention. The TRIPS Agreement raised the threshold set out in the Berne Convention. It added computer programs and databases to the categories of copyright works. It also expanded the bundle of rights accorded to copyright owners to include the right to control commercial rental of computer programs and cinematographic works. Then came the WCT in 1996, purportedly to address the challenges posed by the digital world. It expanded the scope of the right to communication to include communication via the internet. In addition, the WCT requires legal remedies against the circumvention of technological protection measures (TPMs). TPMs pose problems. They are being used not only to prevent unauthorized access to copyrighted material but also to deny access to material that rightfully belongs in the public domain. For example, both the TRIPS Agreement and the WCT provide that copyright protection does not extend to the data or material contained in compilations of
such data or material but TPMs are being used for example to control access to only users who pay a fee. TPMs can also be used to deny access to educational material that is in fact allowed by copyright exceptions. Developed countries using their inuence at the WIPO and through bilateral and regional trade agreements to further their trade and commercial interests have further expanded copyright protection for owners. The space available to developing countries to adopt policy options suited to their development needs have consequently been reduced. Each of the international treaties and FTAs served to further reduce the options that can be used to enhance access to knowledge and facilitate education. The Berne Convention, the TRIPS Agreement and the WCT each provide a different set of exibilities for developing countries. The exact mix of exibilities available to a country therefore depends on the treaties to which it has become a party. A country not a party to any of the international treaties is free to fashion its copyright law in any manner it chooses. In the Asia Pacic region, there are at least 14 such countries (as at 28 November 2005). However, the vast majority of the developing countries in the world have signed on to at least one of the international treaties. In total, 80 countries have signed the Berne Convention and TRIPS while 52 are parties to all three.
WIPOS LEGISLATIVE ADVICE

The CI study reviewed the WIPO Draft Laws on Copyright and Related Rights (versions 1 and 2). The Draft Laws do not address many of the exibilities identied above. Indeed, in WIPOs draft laws, public lending is included as one of the economic rights of the copyright owner. Public lending is dened as the transfer of the possession of the original or a copy of a work...for a limited period of time for non-prot making purposes, by an institution, the services of which are available to the public, such as a public
library or archive. This right is not required by any of the international copyright treaties. Such an extension of the copyright owners rights is particularly restrictive of public access to knowledge since it means that a library cannot lend books without prior permission of the copyright owner. Libraries the world over are the repositories of knowledge at low cost. This important public and social service libraries perform will now be curtailed if they have to seek permission and pay fees to copyright owners for the books they lend out.
The right to control importation of copies of the work is included in the draft laws in parenthesis. The footnote claries that such a right is not based on any of the international copyright instruments, but is aimed at safeguarding the principle of territoriality in copyright. The draft laws thus explicitly do not recommend parallel import of copyright works. Although the duration of copyright provided in the main text of the draft laws is the minimum required by current international copyright instruments, a footnote is included to advise countries that the present tendency at the international level is to extend the term of protection to 70 years after the authors death. What WIPO seems to be doing is to recommend the longer duration of protection that is only practiced in the US (since 1998) and the EU (since 1995). Further, the draft laws do not provide for: Compulsory licensing of copyright works; Works to be xed in a material form before they become eligible for copyright protection; Limitations and exceptions for the provision on circumvention of TPMs; The whole of a work to be used for illustration in teaching; More than one copy of a copyrighted work to be reproduced for face-to-face teaching in educational institutions; Quotations to be used in full only a short part may be quoted; Unpublished works to be quoted; Exclusion of political speeches from copyright protection; Exceptions to allow copyright works to be used in broadcasts for educational purposes; and Minor reservations for educational purposes in respect of performance, broadcasting, recitation, recording and cinematograph rights. WIPO is clearly not providing proper legislative advice to developing countries so as to enable them to take full advantage of all the exibilities available to them. CI has called on WIPO to undertake a thorough review of its draft laws to ensure that all permitted limitations and exceptions are incorporated into its drafts laws.
NATIONAL COPYRIGHT LAWS

Access to educational materials especially in the eld of higher scientic and technical education is crucial for the poor countries to develop their human resources and achieve economic progress. In order to educate people, schools, universities and libraries need access to affordable teaching and learning materials. Copyright laws if crafted intelligently can contribute to knowledge and the development agenda. In order to maximize access to knowledge, the copyright laws of developing countries should therefore provide for public access to copyrighted materials, especially educational materials. They should take advantage of all available exibilities in the international copyright treaties. The CI study found that this has not happened. For instance: Bhutan has granted copyright protection to computer programs and compilations of data when this is not necessary under the Berne Convention, of which Bhutan is a party. Ten out of the 11 countries studied (except for the Philippines) have extended the duration of copyright protection for some or all work forms beyond the minimum duration required by their treaty obligations. The Berne Convention does not prohibit the utilisation of the whole of a work for the purpose of teaching, so long as it is justied by the purpose and is compatible with fair practice. However, only three of the 11
countries studied (Indonesia, Malaysia and the Philippines) allow such a possibility. The Berne Convention does not restrict the number of copies of publications or sound or visual recordings that can be made for the purpose of illustrations for teaching. However, ve out of the 11 countries studied, (China, India, Indonesia, Kazakhstan and Papua New Guinea) expressly restrict the number of copies of these materials for teaching purposes. The Berne Convention expressly allows national lawmakers to impose a requirement for works to be xed in some material form before they become qualied for copyright protection. Such a requirement will permit countries to provide copyright protection only to materials that appear in some physical form. Member states are also entitled to give a narrow meaning to the term material form so as to, for example, exclude digital materials from copyright protection. Unfortunately, 10 out of the 11 countries studied have not specied xation in material form as a condition for conferment of copyright. Only Malaysia has done so. Copyright protects not the idea, but the expression of the idea. This principle serves the important public policy of preserving and enriching the public domain and ensuring that new expressions such as electronic databases do not lock up ideas. China, India and Indonesia have not incorporated in their copyright legislation a provision excluding ideas from copyright protection.
THE US-SINGAPORE FREE TRADE AGREEMENT The CI study also reviewed the US-Singapore Free Trade Agreement (FTA) to determine how copyright protection is addressed. The US-Singapore FTA commits the contracting party to accede to the WCT; includes the right to prohibit all reproductions, including temporary reproduction in electronic form; increases the duration of protection to life of author plus 70 years; and makes mandatory legal protection and legal remedies against the circumvention of TPMs. In this manner, the FTA has ratcheted upwards the copyright protection prescribed in the Berne Convention, the TRIPS Agreement and the WCT. The US-Singapore FTA is seen as the model for the US negotiations for bilateral agreements with Asian countries. The US is now negotiating FTAs with Thailand and Malaysia. Clearly, access to knowledge will be jeopardised in these two countries if the same model is applied. PRICING OF COPYRIGHTED MATERIALS The comparative price survey of educational textbooks in Indonesia, Thailand and the US shows that when the price of a book is considered in the context of a countrys GDP per capita (i.e. the average individual income), these books become prohibitively expensive to the average Indonesian and Thai. For example, when a student in Indonesia is made to pay US$81.70 for Goodman & Gilmans The Pharmacological Basis of Therapeutics, it is equivalent to a student in the US paying US$3,170.97 for the same book in GDP per capita terms and US$913.07 when compared using the GDP per capita calculated at purchasing power parity (PPP) exchange rate. CIs eld research studies in Thailand and Indonesia revealed that most copyrighted English university textbooks are imported and priced beyond the affordability of the average university student. Students then resort to photocopying copyrighted books and this is a rampant and everyday occurrence in both countries. Even academic libraries in Indonesia and Thailand are increasingly unable to afford
subscriptions to foreign published journals. The state-owned Indonesian Institute of Science has substantially cut its subscription to foreign journals, from 1,610 before the 1997 nancial crisis to 42 since. Similarly in Thailand, many libraries regularly conduct evaluations to cull subscriptions to those journals that are not widely used or referred to. In addition, publishers of digital journals often impose legal and technological barriers,
such as limiting the number of users from accessing the content at any one point by the IP address or User ID authentication or Digital Rights Management. Libraries thereby do not get the full use of the journals they have paid for, unlike printed copies where there is no restriction on the number of users. Such restrictions have the effect of severely limiting access to knowledge for research and development.
few at the expense of the millions in need.
USING COPYRIGHT LAWS TO INCREASE ACCESS TO KNOWLEDGE

Policy makers in developing countries need to be better aware of their obligations under the international treaties they have signed. For national copyright laws to even take advantage of the exibilities common to all three international treaties, they have to provide for the following: 1. Keep the duration of copyright protection to the minimum required: literary and artistic works life of author plus 50 years, cinematographic works 50 years, anonymous or pseudonymous works 50 years, works of applied art 25 years; 2. Allow parallel import; 3. Provide for compulsory licensing options for translation, reproduction and publication of copyrighted works; 4. Make xation in material form a condition for conferment of copyright; 5. Provide protection only for the expression of the idea, not the idea itself; 6. Provide for power to deal with anticompetitive practices; 7. Include a general fair use provision; 8. Use all the teaching exceptions: allow the use of the whole of a work, not limit the types and forms of utilization, apply the teaching exception to all classes of education including distance education, not restrict the number of copies that can be made for teaching purposes; 9. Use all the quotation exceptions: not restrict the ways quotations can be made, not limit the types of works that can be quoted, provide the widest interpretation for the quoted work to have been lawfully made available to the public, not limit the length of the quotation, not limit the purpose of the quotation; 10. Exclude ofcial texts, political speeches, speeches delivered in the course of legal
proceedings and their translations from copyright protection; 11. Allow the use of copyright works in broadcasts for educational purposes; 12. Provide minor reservations for educational purposes in respect of performing, recitation, broadcasting, recording and cinematographic rights.
Moreover, the overwhelming emphasis on the protection of the rights of copyright owners has led to the misguided notion amongst the public (especially students, teachers and librarians), that there is no free access to information. They fear that they may be infringing on someones copyright and consequently do not exercise their own rights in relation to copyright owners.
CONCLUSION
The CI report reveals that the space for access to knowledge is shrinking not only because of increased pressure for more rights from copyright owners but also because developing countries are giving away public rights. Developing countries are net importers of copyrighted material. They are in no position to be magnanimous in protecting the rights of copyright owners. Yet, they are bowing to pressure and granting more protection and rights to copyright owners than they need to by their treaty obligations. This has grave implications for the access to knowledge of their people. By increasing the restrictions and excluding the limitations and exceptions, they are permitting for less and less information to be freely available in the public domain. Such curtailment serves the interest of a privileged
Governments need to commit to expanding, not reducing access, to information and knowledge in the public domain. They should reform their copyright laws to permit for all the limitations and exceptions that they are entitled to. They should also commit resources towards launching an awareness campaign to educate the public on how best they (students, teachers, archivers, academics and librarians) can leverage and capitalise on the free access to copyrighted materials that they are entitled to.
Access to Knowledge in
Indonesia
ndonesia is a country still recovering from one crisis after another. With a population of 242 million scattered across 18,108 islands, it is the third most populous nation in Asia and the fourth in the world. Delivering on development to its vast population is a major challenge. The GDP per capita is US$970; 52% of its people live on less than US$2 per day. When the government cut fuel subsidies in 2005, prices shot up by an average of 126%. This caused a ripple effect particularly affecting the poor. Many primary and secondary school
children stopped going to school because their parents could not afford to pay higher bus fares. Against this backdrop, the prospects for access to knowledge in Indonesia present a grim picture. The Indonesian Constitution guarantees every citizen the right to education. Interestingly, the Indonesian Constitution goes further to stipulate that 20% of the annual government budget be allocated for education. This is a rare provision not found in the constitutions of other countries. Despite this, it is evident that Indonesias constitutional design does not by itself determine how the system operates in practice. In 2005, the administration of President Megawati Soekarnoputri allocated Rp21.5 trillion or 5.9% for education that year. What more, this sum was inclusive of funds for teachers salary and training, provision or upgrading of infrastructure and facilities for schools. One can imagine what was left over for educational materials for schoolchildren! In Indonesia, the high cost of education and the lack of access to educational materials present major problems for access to knowledge. To begin with, students are required to pay admission fees when they enrol at the beginning of every academic year. Added to this, most schools are unwilling to set admission fees at a xed amount. The government does not set
standards for this. Some schools even collect a whole range of other fees either yearly or monthly. Indonesia also practices a unique policy as far as school textbooks are concerned. School textbooks are replaced every year, even though the school curriculum remains the same. Though this benets publishers, distributors and schoolteachers, all of whom reap nancial gains from this exercise, parents have no choice but to fork out money for new textbooks every year for each of their children. Many cannot afford the cost of purchasing these books, thus denying them access to formal education. Students pursuing tertiary level education also face many challenges in accessing educational materials. The cost of books is a major impediment. Although local market conditions are taken into account when pricing the books (differential pricing) nevertheless, when compared with the GDP per capita and purchasing power parity of Indonesians with consumers in other countries, the prices of these textbooks remain prohibitively expensive to the average Indonesian.
18 | Asia Pacific Consumer Vol 43 & 44 No 1 & 2 2006
As an alternative, students opt for translated versions of foreign-language textbooks, which is one of the main sources of knowledge for the average Indonesian. These books are cheaper when compared to imported books. But the problem does not end here. In practice, only the most commercially viable textbooks are translated. As a result, students lack access to the books they need for the courses they study. Even books available in libraries are very limited. Most libraries do not have the means to afford subscriptions to foreign journals. To illustrate, the nancial crisis of 1997 resulted in the state-owned Indonesian Institute of Science cutting down its subscription of 1,610 foreign journals to a mere 42. Only a handful of university libraries subscribe to online journals. Indeed, the Faculty of Agricultural Technology at University Gadjah Mada, one of the most prestigious universities in Indonesia, does not subscribe to any on-line journal. The Internet penetration rate in Indonesia is low at 7% of the population, compared to Malaysia at 40% and Japan at 61%. Though warnets (internet cafes) are popular with
lecturers and students in urban centres such as Jakarta and Yogjakarta, they are only able to access on-line information that is available for free. Students in Indonesia therefore predominantly purchase pirated books which are sold at a fraction of the price of original books, and/or rely heavily on photocopied materials. Fortunately for these students, enforcement of copyright with regards to books is hardly ever carried out, although the government is being increasingly pressured to strengthen enforcement of intellectual property rights.
materials are overly harsh. Foreign academic publishers insist upon entering into copublishing licensing arrangements with local publishers. Local publishers end up paying more besides having to take higher business risks. The result - costs and risks are transferred to the consumer, causing books to be excessively priced. To make matters worse, foreign publishers are unwilling to grant reprint licences to local publishers. Many large book retailers in Indonesia use their dominant market position to demand more discounts from the publishers. Yet, these discounts do not necessarily translate to cheaper books for consumers. Some book retailers are known to mix the original and the pirated version of books, and display them side-by-side, so as to confuse consumers into buying the cheaper version at more expensive prices. Indonesias policy on taxes also contributes to the problem. In Indonesia, all books, other than school textbooks in the local language, are subject to 10% value added tax (VAT). All materials in the production line are also subject to 10% VAT. Inevitably, these taxes are transferred to the consumer through hiking up the list price of books.
CAUSES OF LACK OF ACCESS TO EDUCATIONAL MATERIALS

Corrupt practices within the textbook supply and procurement system has perhaps contributed the most to the problem of high cost of textbooks for primary and secondary schools in Indonesia. Also of concern is the practice adopted by publishing and book retailing industries. Often, licensing terms imposed by foreign publishers on local publishers to translate
THE INDONESIAN COPYRIGHT LEGISLATION

Though the Indonesian copyright legislation already provides for certain limitations and exceptions these are not being taken advantage of by the government, educational community and the public. For example: Article 15a allows the use of a work for the purpose of education, research, scientic thesis, report writing and criticising or reviewing an issue; Article 15c permits lecturers to excerpt a work, in whole or in part, solely for the purpose of education and science; Article 15d allows non-commercial reproduction of a scientic, artistic and literary work in Braille for the blind; and Article 15e permits limited reproduction of a work other than a computer program by, among others, public libraries and scientic or educational institutions, solely for the
Indonesias copyright law has not taken advantage of all the exibilities available to it under the treaties it has signed. Indonesia should reform its copyright laws in the following manner: 1. In respect of cinematographic works, not grant the right to control commercial rental in Article 2(2) unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction; 2. Limit the duration of copyright protection for works of applied art to 25 years instead of 50 years; 3. Specically provide that the right to control distribution in Articles 2(1) and 1(5) is limited to only the rst distribution of copies not previously circulated in any part of the world;
4. Make a declaration under the Berne Convention to make use of both the faculties in the Appendix; and extend the existing compulsory licensing regime for translation right and reproduction right in Article 16 to the subsequent publication of such translated or reproduced work; 5. Not confer copyright protection to works unless they have been xed in some material form; 6. Expressly exclude all ideas, procedures, methods of operation and mathematical concepts from copyright protection; 7. Expand the list of limitations and exceptions to include detailed provisions for all aspects of educational activities, such as provisions for libraries, handicapped community and distance education; include a general fair use provision to serve as a fall back provision in the event the use complained of does not fall within any of the specic limitations or exceptions; 8. Allow teachers or educational institutions to make as many copies of teaching materials as necessary; 9. Allow the making of excerpts for any purpose; 10. Exclude ofcial translations of ofcial texts from copyright protection; 11. Exclude from copyright protection political speeches and speeches delivered in the course of legal proceedings; 12. Link the anti-circumvention of technological protection measures provision in Article 27 to copyright infringement and extend the application of all limitations and exceptions to the anti-circumvention provision; 13. Allow the free use of copyright work in broadcasting for educational purposes; 14. Include minor reservations in respect of performing, recitation, broadcasting, recording and cinematographic rights of copyright owners for educational purposes.
purpose of conducting their activities. Similarly, although the copyright law of Indonesia provides that licensing agreements should not contain clauses that cause unfair business competition, this provision has never been used to prevent anti-competitive practices in the book industry. Indonesia is a party to the Berne Convention, the TRIPS Agreement and the WIPO Copyright Treaty. It is thus critical that Indonesia incorporates all permitted limitations and exceptions so as to ensure maximum access to knowledge in the public domain. However, Consumers Internationals study found that
Thailand
hailand is a South East Asian country with 65 million people. Over the years, Thailands Ministry of Education has been working to provide educational services that will enhance the quality of life and society. In tandem with this, a National Education Act was promulgated in 1999 to serve as the fundamental law for the administration and provision of education reform. The education system in Thailand comprises four levels, namely pre-school education, primary education, secondary education and higher education. The combined gross enrolment ratio for primary, secondary and tertiary education for 2002/03 was 73 %. Both the government and private sector are involved in the textbook supply system for primary and secondary schools. Textbooks are published by the private sector. However, only those that have been evaluated, approved and certied by the relevant government department can be sold to schools and used
by students as prescribed textbooks. Approved textbooks are issued with a certicate, a copy of which is to be printed at the back of each textbook published. Interestingly, the price of primary and secondary school textbooks is affordable. Costs are kept low with the use of low quality paper and large print runs. There is an understanding among local publishers that school textbooks is not for proteering as sharing and generating knowledge is seen as a social and public duty. Some foreign academic publishers have set up regional ofces in Bangkok. They produce cheaper editions of the textbooks in Hong Kong or Singapore for distribution in the region. Although these books are cheaper than imported textbooks, they are nonetheless more expensive than books produced in Thailand. Used books that are often inherited or purchased from local markets are also popular among university students. There are two types of university textbooks, i.e. the imported textbooks in English and the locally produced textbooks in the Thai language. The locally produced textbooks are either locally authored or are translations of imported textbooks. Students in the eld of science, particularly medicine rely heavily on imported textbooks, while some students, such as those studying law, rely only on the locally authored textbooks. Locally authored textbooks are common in Thailand as lecturers and professors
are encouraged to write through various schemes and awards. Translated textbooks can be found, but their range and type are limited. Hence, most lecturers and professors prefer students to refer to imported textbooks. Imported textbooks are generally expensive and many students cannot afford to buy them. Although retail prices of these books are lower than those sold in developed countries, the prices of imported textbooks remain prohibitively expensive to the average Thai student. Bookstores are abundant in the urban centres and especially in Bangkok. Book fairs are held every year where cheaper books are offered. Very few university libraries are well stocked. Many still struggle with limited budgets and have to contend with ever-increasing prices of books and journals. It is common for libraries to purchase only one copy of the imported textbook due to the high cost of these books. As a result, the collection of imported titles in these libraries is not as wide as it should be. Another problem associated with subscribing to foreign journals is that libraries are categorised as institutional subscribers. Subscription fees for this category is two to
three times higher when compared to the rate for individual subscribers. Many libraries in Thailand subscribe to on-line databases and e-books through the consortium of libraries initiated by the Commission of Higher Education in Thailand. The consortium shares the cost of subscribing to digital materials through sharing such materials via virtual access throughout the country. However, different universities have different needs and the sharing of online journals and databases has not been equally benecial. A major challenge faced by libraries is that many publishers of e-books prohibit or limit the access to and the printing of such e-books. Although most libraries subscribe to online journals, the subscription fees for these are equally, if not more, expensive than the subscription fees for printed journals. Some foreign publishers will only give the library access to the contents of its online journal provided that the library continues its subscription to the print version of the journal. As a result, these libraries have to pay the subscription fees for both the print version and the e-version of the same journal! To make matters worse, publishers of digital content often impose restrictions in the licensing agreements for their content. They sometimes only give a specied number of users access to their content at any one point in time.
COMMERCIAL PRACTICES
Translation and publishing is done by local publishers as well as the foreign publishers that have set up regional ofces in Bangkok. In Thailand, most university textbooks are written by lecturers and professors and published by the university press. Foreign academic publishers insist upon entering into co-publishing or print-and-sale arrangements with local publishers. Books produced under such arrangements are usually more expensive than books produced under the usual licensing agreement. In fact, obtaining a licence to reprint textbooks locally is not common in Thailand. The price of imported books is based on the list price of books in the country from which they are imported. To the thus determined price is added other expenses, such as logistics, insurance and administrative
charges. These further increase the cost of imported books. Although books are exempted from value added tax (VAT), a 7% VAT is imposed on almost all other products and materials used to produce printed materials. There is no tax for importing books. Nevertheless, if the book is bundled with a CD-ROM, an import tax of 20% will be imposed on the value of the CD-ROM. The government used to undertake translation of books for educational purposes through the Book Translation Institute under the Ministry of Education. However, the number of books translated has been substantially reduced in recent years due to budget constraints.
PHOTOCOPYING A MEANS OF ACCESSING KNOWLEDGE

Photocopying is a common way of accessing knowledge for the average Thai and plays an important role in promoting access to educational materials. Both, students and lecturers alike rely heavily on photocopied materials. In Thailand, legal action has been brought against two commercial photocopy shop owners. They were charged and convicted for infringing copyright through the making of free copies of textbooks. The judgements of the IP & IT Court and the Supreme Court helped clarify the law: a student who makes a copy of copyrighted works for education and research purposes cannot be deemed as having infringed copyright as long as the copy made is not for prot. This exception extends to the owner of a photocopy shop provided that the owner can prove that the act of photocopying is done on behalf of the student under a hire-for-work contract. The photocopy shop owner is entitled to charge for the work performed under the hire-for-work contract and such charges do not constitute prot. The decision also established that the quantity or amount of work allowed to be photocopied under the fair use principle depends on the case at hand and in considering its acceptability the court should take into account the need for development. Currently, enforcement of copyright with regard to photocopying books is hardly carried out in Thailand.
The photocopy shop owner is entitled to charge for the work performed under the hire-for-work contract and such charges do not constitute prot.
THE US-THAI FTA The United States started negotiations with Thailand on a bilateral Free Trade Agreement (FTA) in August 2004. The negotiations are shrouded in secrecy. There has been widespread civil society opposition in Thailand to the proposed US-Thai FTA. The US demands include a comprehensive intellectual property protection regime that includes levels of protection and practices more in line with US law and practices and stringent enforcement including through accessible, expeditious, and effective civil, administrative and criminal enforcement mechanisms. Insofar as copyright is concerned, it is believed that the US will most likely demand that the duration of copyright protection be extended to the US standard of life of author plus 70 years. Though Thailand has only acceded to the Berne Convention and TRIPS, by virtue of the FTA with the US, Thailand will have to accede to the WIPO Copyright Treaty and also apply the US standard of Digital Rights Management. If Thailand signs an FTA with the US, it will have far-reaching impact on access to knowledge in Thailand. Clearly, longer duration of copyright protection and DRM will allow right owners to lock up more information for longer periods. Stringent enforcement will also mean that the current practice of students photocopying books will have to come to an end.
or sell to students in a class or in an educational institution provided that the act is not for prot. Unfortunately, the public generally lacks awareness of these exceptions to copyright. Thailand is a party to the Berne Convention and the TRIPS Agreement. Its copyright law should be based on its treaty obligations. However, Consumers Internationals study found that Thailand has not taken advantage of all the exibilities available to it under the treaties it has signed. In fact, in certain instances, it has provided copyright owners more rights than necessary. Thailand should reform its copyright laws in the following manner: 1) Exclude sound recording and sound and video broadcasting work from the categories of copyright work; 2) Limit the duration of copyright protection for photographic works and works of applied art to 25 years instead of 50 years; 3) Remove the right of distribution in the denition of communication to the public since Thailand is not a party to the WIPO Copyright Treaty (WCT); grant the right to control commercial rental rather than rental; in respect of computer programs, ensure that the right to control commercial rental does not apply to rentals where the program itself is not the essential object of the rental; and exclude internet transmission from the right of communication to the public since Thailand is not a party to the WCT; 4) Not confer copyright protection to works unless they have been xed in material form; 5) Delete the word distributing from the denition of communication to the public in Section 4 since Thailand is not a party to the WCT; alternatively, specically provide that the right to control distribution is limited to only the rst distribution of copies not previously circulated in any part of the world;
FLEXIBILITY UNDER THE COPYRIGHT LAW

The copyright legislation of Thailand provides certain limitations and exceptions to copyright protection. For example: Section 32(1) permits not-for-prot research or study. Section 32(6) allows a teacher to reproduce, adapt, exhibit or display copyright work for the benet of his teaching provided that the act is not for prot. Section 32(7) allows the reproduction, adaptation in part of a work or abridgment or the making of a summary by a teacher or an educational institution so as to distribute
6) In addition to compulsory licensing for translation works, Thailand should make a declaration under the Berne Convention to make use of the compulsory licensing faculty in relation to reproduction right, to enable publication of reproduction; 7) Allow the use of the whole of a work for the purpose of not-for-prot distribution or sale to students; not limit the types and forms of utilisation for teaching; and to expressly include distance education in the teaching exception; 8) Allow quotation of the whole of a work (not limit the quotations exception to only those that are reasonable and in part); 9) Expand the list of exceptions and limitations to include detailed provisions for all aspects of educational activities, such as provisions for libraries, handicapped community and distance education; not subject all specic exceptions to the general provision incorporating the second and third steps of the three-step test; and apply the general fair use provision in such way so as to serve as a fall back provision in the event the use complained of does not fall within any of the specic exceptions or limitations; 10) Allow free use of copyright work in educational broadcast; 11) Exclude from copyright protection political speeches and speeches delivered in the course of legal proceedings; 12) Include minor reservations in respect of recitation, broadcasting, recording and cinematographic rights for educational purposes besides those provided in Section 36 of the Act.
Southern Africa
ducation in the countries that make up the Southern African Customs Union (SACU) i.e. South Africa, Namibia, Botswana, Swaziland and Lesotho is characterised by general underperformance, as manifested in standard human development indicators. (See Table 1). There are many factors contributing to this.
It is even more excessive when compared with the proportion of income spent on acquiring textbooks across countries. If an American student were to pay the same proportion as the price paid by a South African student for the Oxford English Dictionary, the price would be US$497, instead of US$20.46. South Africa is one of the few countries in the world which levies a Value Added Tax (VAT) on books, currently resulting in a 14% increase in retail price. Imported books face an additional customs tariff of 10%, in addition to freight charges, which a Global Publishing Information (GPI) report from 20045 estimates at 10%. A rough calculation of the mark-up due to taxes, tariffs and freight pegs the gure at 35%
Achal Prabala*
EXCESSIVE PRICING
The price of books in South Africa for example, can be considered excessive in two ways: rst, by a comparison of absolute prices across several countries; second, in comparison to average incomes within the country. The lowest local price of a textbook for secondary and tertiary education can be several times more than in developed country markets. South Africans for example, are paying almost double the price paid by Americans for a book written by South Africas most famous personality, Nelson Mandela!
which is still insufcient to justify the international pricing disparities observed in Table 2, which place South African book prices at an increase of more than 100% over the foreign counterpart.6 Among the main reasons for the excessive pricing of books in South Africa is a lack of competition in the market. In the academic
Table 2: International Book Price Comparison3
Table 1: UNDP Education Index Rank Country South Africa Namibia Botswana Swaziland Lesotho UNDP Education Rank2 (Out of 177) 119 126 128 137 145
SA UK US $ 21.70 $ 10.15 $ 10.15 SA UK US $ 23.70 $ 16.30 $ 11.60
India $ 6.50
India $ 13.50
book publishing market (denoting textbooks and reference material primarily for tertiary education), three publishers (LexisNexis Butterworths, Pearson and Juta) have a combined market share of 62%. Academic book distribution is even more consolidated, with two rms Van Schaik and Juta retail holding close to a 100% market share. In the schoolbooks market (i.e. primary and secondary education), ve publishers (Maskew Miller Longman, Macmillan, Nasou, Oxford University Press and Juta) hold a combined market share of 71%. There are a limited number of bookshops that exist only in shopping malls located in afuent parts of urban South Africa. There are very few bookshops outside the larger cities and virtually no bookshops in rural areas or in the townships (townships are an apartheid term for urban black settlements), signifying that the majority of the urban and rural population has limited access to book buying and reading, even as a leisure activity. Excessive pricing indicates a lack of affordability. The GPI report estimates that the average cost of a single book in South Africa is ZAR 100 (ZAR 1 = US$0.13). It further estimates that the average government outlay on learning materials is ZAR 189 (US$25) per student. The South African Students Congress estimates that the average annual cost of tertiary education learning materials is ZAR 60007 (US$780). These costs for learning materials (albeit very
partially offset by grants and scholarships) need to be viewed in the context of South Africas average annual income per capita, ZAR 14,0008 (US$1,820) which in the case of single earner households is equivalent to the annual sum of money available to the whole family, for all basic needs, such as food, clothing, shelter and transport (indicating, for example, for a family earning the average income, that 40% of its annual income would have to go towards supporting one childs curricular book costs at university).
UNAVAILABILITY AND UNSUITABILITY

In smaller, less industrialised Southern African economies (such as Zambia9), textbooks, particularly for tertiary education, are routinely unavailable. In subjects without politically contextual limits (such as the physical sciences, engineering and medicine and unlike, for example, history), tertiary institutions in the south often rely on published material from the north. But the book in question will only be available through a publisher, wholesaler or distributor, if it is adequately protable to supply the market with that book. The low demand for specialised books in higher education (for example in courses that have very few students enrolled) sometimes means that it does not make business sense for a private retailer to stock them. This is coupled with another deterrent
to access: unsuitability. In SACU, the majority population, though multilingual, is primarily uent in one or more of the indigenous languages. Rural students (approximately 30% of South Africa live in rural areas) in the large part, receive their primary and secondary education in one of these indigenous languages, depending on the region the student is from, and the options available. Dominant languages (such as English and Afrikaans) are then only encountered upon entering tertiary education at which point the student is confronted with a near-total lack of learning materials in her preferred language of instruction, thus often having to grapple with learning in an unfamiliar language. Students with a sensory disability (including blindness and partial sightedness) face similar issues. In 2005, students at the Filadela School for the Blind in a township called Soshanguve outside Pretoria, South Africa were compelled to go on strike to protest the unavailability of learning materials in Braille10. Text-to-audio and text-to-Braille conversion incur signicant process costs, but notwithstanding, licensing factors whether related to a delay in obtaining formal permission, or the cost of obtaining an adaptation licence remain as barriers. Distance learning institutions, which serve the majority of South Africas tertiary education students, nd that the cost of designing curricula restricts an expansion of their student base, in part, because of copyright
Table 3: International book price comparison by income proportion4 Country

SA UK US $ 44.61 $ 24.00 $ 20.46 India $ 12.50
GNI/Capita (US$) 3630 41,400 33.940
Oxford English Dictionary as a fraction of average income 1.2 % 0.0004 % 0.0007%
Local cost of Oxford English Dictionary at current South African proportions (US$) (Null) $497 $407
South Africa USA UK
for over half the publishing industrys turnover13. In 2003, the Director General of the Department of Education (DOE) highlighted the book-price crisis in a report to the Minister of Education: Though there has been no proper study into the matter, some views suggest that the textbook industry may not be sufciently competitive, and that it is characterized by too many sole-supplier situations to ensure competitive prices. Higher prices could allow producers to make abnormally high prots, or might simply sustain inefcient production processes. Thorough research is required on this subject to inform possible responses by Government to improve the competitiveness of the industry. Such a study might include an assessment of the relative costs of production in South Africa compared to those in other countries.14 According to the DOE, South Africa, the expenditure outlay on school learning materials in 2003 2004 was ZAR 2.2 billion (US$286 million). While government investment in education is generally high15 (6% of GDP), and total annual education expenditure in 2003 04 was ZAR 70 billion (US$9.1 billion), there are compelling and sometimes competing infrastructure and human development needs in education that demand more resources. In its 2000 Register of Needs survey16, the DOE found that: 80% of schools did not have libraries 43% of schools did not have electricity 88% of schools did not have computers for learning; in those that did, the students: computer ratio was 164:1 A related point is that resource constraints facing governments within the SACU mirror resource constraints facing universities in the region. While government is usually (not directly) involved in the commissioning and funding of tertiary education learning material, universities which rely in part on government nancial support face the issue of having to sufciently fund their library systems.
CASE STUDY: NANCECOL, JOHANNESBURG

An instructive example of the failure in access to learning materials in secondary school education can be found at Nancecol (formerly, the Nanceeld College of Technology), an adult learning centre in South Africa, where 485 students spend half their day completing Grades 9, 10 and 12 of the secondary education system (Grade 11 is conated into the grade 12 syllabus for adult education). Over the course of eld visits conducted by the Access to Learning Materials Project in Southern Africa and the South African Students Congress in 2005, it was observed that not one of the students or teachers at the school owned a single textbook. The school administration itself only owned two copies of textbooks applicable for one subject (out of 12) for one level (Grade 9). Teachers at the school taught from old books and handwritten notes, while students relied on their class notes for reference. The distribution of textbooks to Nancecol by the provincial DoE had been disrupted, and conversations with the school administration suggested that there were procedural problems in local bureaucracy that needed urgent attention. The administrator hastened to add that even if distribution were to function efciently, the local education budget allowed for only something like one in ve students to have access to textbooks. Nancecol is located in Klipspruit, a neighbourhood of Soweto, which is among the largest black townships in South Africa, accounting for a third of the city of Johannesburgs population.
licence fees applicable when adapting existing content into suitable formats. Indigenous language learners, sensory disabled students and distance learners are all groupings generally considered outside the mainstream11 in that for educational material to be suitable to their needs, it requires adaptation from its original format (typically, a printed English book).
GOVERNMENT RESOURCE CONSTRAINTS

In situations where the government is a signicant procurer of learning materials for primary and secondary education, as is the case in South Africa12, the excessive pricing, limited adaptability and unavailability of suitable learning materials cause a severe resource crunch. In South Africa, textbooks form the single highest component of student costs; simultaneously, government is the single largest procurer of textbooks, accounting
COPYRIGHT LAW IN SOUTHERN AFRICA OPEN ACCESS TEXTBOOKS

In September 2002, a group of postgraduate students at the University of Cape Town, led by Mark Horner (a student of physics), decided to form a collective of students, professors and researchers who would contribute to the creation of free high school science texts. Today, the project is well recognised and much larger than at inception; and the collective has produced draft versions of textbooks for physics, chemistry, mathematics and biology (see http://www.nongnu. org/fhsst/) for use in secondary schooling in South Africa. Open access textbooks can thus be both freely available and freely adaptable, representing a signicant opportunity in accessing affordable, up-to-date texts of quality. In many cases, international open access textbooks have local relevance and applicability. Some noteworthy projects include: BookPower http://www.bookpower.org/ California Open Source Textbook Project http://www.opensourcetext.org/index.htm Textbook Revolution http://www.textbookrevolution.org/ Wikibooks http://en.wikibooks.org/wiki/Wikibooks_ portal Connexions: Rice University http://cnx.rice.edu/ Open Course Ware: MIT http://ocw.mit.edu/OcwWeb/index.htm A comprehensive review of copyright law and regulation within SACU suggests that currently, neither does copyright legislation in SACU countries make signicantly positive provisions for access to learning materials, nor does it take full advantage of the exibilities provided by TRIPs. In the interests of access to learning materials, it is necessary to develop guidelines for fair practice which take into account the specic circumstances prevailing in developing countries. Fair dealing as a means of access to knowledge could be considerably enhanced by the introduction of clear, detailed, progressive provisions. However fair dealing provisions are by their nature limited in their impact, and it is other exceptions and limitations such as state sponsored parallel importation which require proactive steps by SACU governments. Ironically, it is precisely in this disabling legal environment that the SACU countries are being asked by domestic and international publishing industry lobbies to strengthen the enforcement of criminal sanctions for certain copyright violations, even as they constitute an access mechanism in a context that offers few alternatives.
Andrew, J. 2004. Publishing Market Prole: South While this might suggest that a South African student
Africa. British Council and the Publishers Association, UK.

6
would be better off buying books from a UK/US online retailer, rather than buying books at a local bookstore or from a local online retailer, the preconditions for such purchase (access to the internet, ownership of a credit card, a willingness to tolerate the considerable delay in procurement, etc.) render this option meaningless for the greater part.
7
From an unpublished survey conducted in South Africa
in 2005 by the South African Students Congress (SASCO), on le with the authors.
8
UNDP. 2004, United Nations Development Programme, From statements recorded by the authors at a
Human Development Report. Geneva: UN.

9
workshop for academics and schoolteachers in Lusaka, March 2005, organised by the Open Society Initiative for Southern Africa (www.osisa.org), and attended by the Access to Learning Materials Project in Southern Africa (www.access.org.za).
10 11
SABC News, 19 May 2005. It must be noted that the use of the word mainstream
is misleading since it has no quantitative basis; we use it to note prevailing social prejudice. The accumulated number of indigenous language learners and/or disabled students and/or distance learners in Southern Africa, combined, would in fact form the vast majority of students in the region as a whole.
12
Mirroring a situation generally applicable in the global
south, where governments involvement in curricular development is high in primary and secondary education, and less in tertiary education.
13
Gray, E. and Seeber, M. 2004. Print Industries Cluster
Council (PICC) Report on Intellectual Property Rights
Endnotes
1
in the Print Industries Sector. Commissioned by the Department of Arts & Culture, Government of South Africa, p. 12.
14
Adapted from a presentation by Achal Prabhala
formerly associated with the Access to Learning Materials in Southern Africa project at the CI Training Workshop on Copyright and Access to Knowledge and from Andrew Rens, Achal Prabhala, Dick Kawooya, Intellectual Property, Education and Access to Knowledge in Southern Africa, ICTSD, UNCTAD and TRALAC, 2006.
2
South Africa. Department of Education. 2003. Report
to the Minister: Review of the Financing, Resourcing and Costs of Education in Public Schools. Pretoria: Government Printers.
15
In comparison, the average OECD country spending
UNDP. 2004, United Nations Development Programme, Comparative editions priced at: www.amazon.co.uk,
on education was 5.6% of GDP in 2005: see http://ocde. p4.siteinternet.com/publications/doiles/012005061T031.xls.

16

3
See http://www.education.gov.za/content/
www.amazon.com and www.kalahari.net. All three books are recommended texts in the South African secondary school system, and in various tertiary courses. To the best of our knowledge, student editions of these books are not widely marketed.
4
documents/295.pdf.
UNDP. 2004, United Nations Development Programme,
Brazil
s in other developing countries, Brazil is facing a crisis in access to knowledge. Traditional ways of accessing knowledge through books, libraries and newspapers are increasingly being blocked through stronger intellectual property laws. Take for instance the market for book publishing. In 2004, there were 4876 books published. Of these 2487 were reissues and the rest were new releases. There are 1800 bookstores in Brazil. For a population of 186 million people, this is wholly inadequate for access to knowledge. Though there was an increase in translations by 40% from 2002 to 2004, there was a decrease in the number of local authors getting their works published. It is very difcult to obtain gures from publishers in Brazil about their publishing activities. With respect to textbooks, the Ministry of Education has centralized all the purchasing for all textbooks. So, for example, the government pays US$2.20 for a mathematics textbook (Mathematica). The same textbook is being sold by bookstores at a price of US$28.00. So, there is no problem of access to knowledge for students in public schools. However, there is no incentive for bookstores to sell textbooks since they are not able to compete with the governments pricing. There is no xed price for textbooks in Brazil.
The copyright laws in Brazil are TRIPS plus. The duration of copyright protection is life of the author plus 70 years and there is no fair use provision. If one buys a CD and wants to store it in an ipod, it is considered an infringement. In order to exercise the exception for making a copy of a book in accordance with the law, the conditions are it must be for private use, it must not be for prot, it must be one single copy and it must be made by the user. The problem is with the last condition. The publishers organization has interpreted this to mean that the user has to make the copy in handwriting. If the user takes it to a photocopy shop, it is interpreted to mean that the copy is not made by the user and therefore it is not allowed.
Ronaldo Lemos*
Excerpts from books are also restricted to small excerpts. For example, if the books is 200 pages, the excerpt cannot be more than one or two pages. Anything other than that is considered an infringement of the copyright law in Brazil. In 1998, the copyright law was amended in Brazil to remove the right to copy for educational purposes. But this was only enforced in 2004 by the publishers organisation. They started suing universities, academics, and students.
The interesting reaction to this was that the students got together and formed a movement called copying books is a right . It later transpired that the publishers association used the threat of court action as a marketing tool. They invited those who were being sued to sign a settlement agreement with them. According to the settlement agreement, for example for a university, if they committed to remove all the photocopy machines and prevent their academics from using photocopied material, they would immediately be eligible for a 40% discount on all books they bought from them. This is quite amazing for a country like Brazil where the entire university student population relies primarily on photocopied books! The publishers take the position that libraries should stock more copies. This is a poor strategy if we want to increase access to knowledge in Brazil as library budgets are limited. If we look to newspapers as an avenue for access to knowledge, the story is not much different. The largest Brazilian daily newspaper is the Folha de Sao Paolo. Its circulation gures are as follows: 2000 440,000 2001 399,700 2002 346,300 2003 314,000 2004 307,000 2005 307,000 The trend shows a consistent decrease in the circulation and this is the same fate of all the other newspapers in Brazil. CDs with digital rights management (DRM) are already in the market in Brazil. Consumers buying such CDs will not be able to do all the things they would be able to normally do with non-DRM protected CDs. Therefore they would not be able to copy it into their computer, or ipods, they would not be able to play it on their car stereos, etc. The producers of these CDs are saying that since they are already informing consumers on the label of the CDs that they are DRM
protected, consumers are already informed and can exercise their right of choice whether to buy the CD. However, the price of the DRM protected CD is the same as the normal CD. Consumers therefore have to pay the same price for a product that comes with restrictions and cannot be used for as many uses as they would want. This is an issue for consumer organizations because the right of consumers to use a product in a particular way is being taken away from them and they are still being charged the same price. So, what are the avenues then for access to knowledge in Brazil? New initiatives have begun. Open publishing is a model that is now being tried quite successfully. An organization called the Scientic Electronic Library Online (SCIELO) (www. scielo.org) makes available locally generated scientic publications online for free access to everyone. They have a comprehensive database that also operates on the open publishing model. The countries participating in SCIELO are Brazil, Chile, Cuba, Spain and Venezuela. Together, a total of 238 journals are made available online. Also available is a sub website on public health. In development are sites for Costa Rica, Argentina, Colombia, Peru, Mexico, Portugal and Uruguay. A site
for social sciences is forthcoming. The main thrust of SCIELO is to ensure that scientic information from Latin America and the Caribbean countries is not lost because they encounter barriers in publishing and dissemination, which is often the case with locally generated scientic information. Such initiatives make an important contribution to access to knowledge in Latin America.
*Presentation at CI Training Workshop on Copyright and Access to Knowledge by Ronaldo Lemos, Director of the Institute for Internet Society at FGV Law School, Rio de Janeiro, Brazil.
FREEDOM
AND DIVERSITY
A Defence of the Intellectual Commons
by Prof. Peter Drahos1
n a 1968 article Garret Hardin suggested that resources held in common such as pasture lands faced what he called the tragedy of the commons2. Greedy herdsmen following their own interests would overgraze pastures held in common and eventually ruin it for all. Avoiding the tragedy required private property rights or some kind of government intervention. Subsequent historical and empirical analysis has revealed, however, that some groups had in fact managed to preserve their common resources without having to rely on private property rights or government intervention3. Selforganized groups had managed to avoid the tragedy of the commons. Hardin was concerned with tangible resources such as pastures, sheries, or forests that can be depleted through use. In this article I want to focus on the intangible resource of information. For present purposes, the intellectual commons refers to information, where information is used as a generic term to mean things like veried knowledge (for example, the structure of the DNA molecule), data, interpretations of that data, techniques, information embodied in technology, the
products of technology (for example, music) and many other discrete classes of information. I will argue that monopoly rights in the form of intellectual property rights are an especially bad idea for the intellectual commons. Amongst other things, information cannot be depleted through use. Economists have for a long time known about the dangers of monopoly. I am not, however, intending to rehearse those arguments in this short piece. Rather I want to argue that the intellectual commons are a form of political expression that need to be defended as such. We need to defend use rights held by citizens and consumers over the intellectual commons because these use rights face a new and threatening context in the form of globalization and global intellectual property owners4. Pharmaceutical, software and media companies argue for and obtain, usually by means of trade agreements, stronger and stronger forms of intellectual property that are backed by the coercive power of civil and criminal law. Law is an instrument of coercion. In essence, private monopolists are using intellectual property law to command our obedience over new arrangements for the intellectual commons. How much say have we had in these new arrangements?
Should we obey? How much coercion should we tolerate when it comes to our use rights? These are timeless questions of politics. They have in the intellectual commons and intellectual property a new and urgent context.
THE INTELLECTUAL COMMONS DEFINING AND DISTINGUISHING THEM FROM THE PUBLIC DOMAIN
To begin with we shall distinguish the intellectual commons from the public domain. For reasons that will become clear, the intellectual commons more than the public domain accommodate diversity of group life or, to borrow John Stuart Mills phrase, experiments in living. Mill defended a version of freedom that allowed diversity to ourish. The intellectual commons are defended here for the same reason. Putting the matter simply, the public domain gains its meaning and content by reference to that information and activity that is not restricted by a species of intellectual property law. In other words, the public domain is a residual category and there are as many public domains as there are species of intellectual property. So, for example,
software can be protected by means of copyright and patent, but the ways in which the restrictions on the use of software are lifted under copyright law as opposed to patent law vary tremendously. I do not want to be interpreted as arguing that the public domain is an unimportant leftover, for the emergence of a rights-based public domain in the Anglo-American intellectual property tradition does represent an important conceptual shift in which statutory monopolies become linked to public interest. Rather, my argument is that the intellectual commons is the more important concept because it leads directly to questions of moral and political philosophy concerning the kinds of associations and rights we want for the governance of knowledge. The public domain is too narrow a concept for this kind of broader inquiry. To some extent, it also predetermines answers to questions that should be left open. The common has been used since ancient times by groups to regulate access and use of resources on which those groups have depended. Drawing on a distinction between the positive and negative common to be found in the natural law writers of the 17th century like Hugo Grotius, Samuel von Pufendorf and John Locke, we can construct a simple but powerful conceptual scheme of the intellectual commons5. The negative common is one in which resources are initially owned by no one, but anyone may appropriate those resources for their individual use. Pufendorf in his Of the Law and Nature of Nations (1672), describes negative community as the community of all things in which all things lay open to all men and belonged no more to one than to another. The positive common is a common in which resources are jointly owned and so use of those resources by any one commoner depends on all the commoners having consented. To this distinction between negative and positive community we can add a distinction between inclusiveness and exclusiveness. An intellectual common in which all individuals are recognized as holding rights of common we shall call inclusive. An inclusive common is universal
in the sense that it embraces all individuals, irrespective of geography, race or culture. It would be rare for tangible resources to be part of an inclusive common (the star-lled sky is perhaps an example), but we might well argue that certain types of knowledge are resources over which all have use rights (the rules of arithmetic for example). An exclusive intellectual common is one in which the use of resources is conned to a particular group. Historically, most commons have arisen through the customary activity of groups and the resources in those commons have been made exclusive to those groups. Clearly the borders of commons and the resources that constitute them will vary greatly. These distinctions provide us with the simple matrix below.
FOUR TYPES OF INTELLECTUAL COMMONS
NEGATIVE INCLUSIVE EXCLUSIVE Negative Inclusive Negative Exclusive POSITIVE Positive Inclusive Positive Exclusive
works already in existence. (Copyright terms are shifting from life of the author plus 50 years to life of the author plus 70 years.) Many scientists would also say that information relating to human DNA should form part of the universal use rights that the positive inclusive common establishes. But an elite coterie of patent technocrats have over the last few decades already decided the question by allowing valuable genetic resources to become the subject of patent appropriation. Much of the discussion now taking place about patents and genetic resources is occurring years after biotech companies have bolted to patent ofces around the world. The politics of the negative intellectual common was simply imposed on these resources. The dangers of the negative intellectual common for citizens everywhere come fully into focus when we understand the signicance of the fact that information cannot be depleted through use. In fact, unlike tangible resources it actually grows through use. The more of us who meet to discuss books we have read, the more we learn about what we have read; the more mathematicians who meet to discuss a mathematical proof, the more likely that an alternative and possibly more elegant proof will be found. Repletion though use rather than depletion is what characterizes the intellectual commons. The intellectual commons is our most vital resource. It represents the publicly available means at our disposal for solving problems, it underpins our cultural and scientic creativity and, perhaps most importantly,
A DEFENCE OF THE POSITIVE INTELLECTUAL COMMONS

We can all think of examples of information that we would more or less insist on being in the positive inclusive intellectual common. This would mean that all human beings would have use rights over the information in this particular common. The rules of arithmetic would be one example and the works of Shakespeare another. Shakespeares works have become a global cultural resource and even though any company would dearly love to be granted a perpetual property right over this incalculably valuable asset this is never likely to happen. However, many important cultural works of the twentieth century such as F. Scott Fitzgeralds The Great Gatsby are being kept out of the positive inclusive common by virtue of companies lobbying for and obtaining copyright term extensions that are made to apply to
it helps us to arrive at our chosen ends. It follows that creating even temporary monopoly rights over the intellectual commons carries risk and should only be done if we have great condence that the benets outweigh the risks. Unfortunately around the world today all governments have failed their citizens when it has come to embracing a cost-benet approach to intellectual property. I said earlier that my defence of the intellectual commons follows Mills theme of increasing freedom so that men and women may tread a plurality of paths in society. A moment ago I suggested that allowing the negative common to ourish as a political arrangement for the intellectual common carries great risk. It follows that I support the greater use of the positive intellectual common because it is a political institution that increases the freedom of citizens. I want, in these concluding paragraphs, to provide two illustrations of this. Earlier I drew a distinction between the public domain and the intellectual commons.
I did so because the public domain as a residual category of intellectual property law does not respect diversity of social arrangements in the way that the positive intellectual common can do. Imagine that we gain information that a particular plant is very useful for dealing with infections. So far as patent law is concerned, neither the information about the plants usefulness or the plant as it exists in nature is patentable. The information and the plant legally exist in patent laws public domain. If, however, a company identies the active ingredient in the plant it will have something that is potentially patentable. Imagine further that the plant has been bred over the centuries by a group of indigenous people and this has enhanced its curative powers. Moreover, the indigenous group believes that the plant has religious and mystical signicance. Under their customary arrangements the plant is a joint tribal resource, positive exclusive commons in other words. Patenting the active ingredient of the plant is, so far as they are concerned, an act that requires the permission of those holding the exclusive rights of common over the plant. Under patent laws public domain rules no such permission is required. The patent system in this case permits an act of taking from a public domain that is constituted by patent law itself. The plant is in the public domain, but the active ingredient it holds is not. If, on the other hand, we recognized the plant and its genetic information as being part of a positive exclusive intellectual common, it follows that taking it would only be permissible if we had obtained the consent of the commoners. By recognizing the commoners power of consent we invest them with more capacity to control the use of the resources within their common. The example I have given can, of course, be tested in many ways. Some might say that as a matter of utilitarian calculation we should simply override the rights of the indigenous
group so that more might benet from the plant. The cost, however, is what Mill wanted most from political arrangements freedom and experiments in living. In any case it is not clear to me that the utilitarian analysis does come out on the side of the public domain. A utilitarianism that failed to calculate the total costs (for example, in terms of future information ows) of smashing the rights of indigenous groups could hardly call itself that. Bio-imperialism might be a more suitable label. Before leaving this example it is worth observing that in various international fora such as the World Intellectual Property Organization and the World Trade Organization there are heated debates about the kind of example I have given. At base these are not technical debates (although they require technical solutions), but political debates about the kinds of commons that will or will not be recognized through globalization processes and therefore the kinds of group diversity we as humanity will or will not allow to ourish. My nal illustration of the importance of the positive intellectual commons relates to a phenomenon that I believe will increasingly characterize the knowledge societies of the 21st century. More and more groups will organize around a positive intellectual commons of some kind as a way of preserving the freedom of individuals in that group. An example of what I am suggesting is the emergence of the Free Software movement. Lying at the heart of this community is the view that all programmers that are part of the community should have
Unfortunately around the world today all governments have failed their citizens when it has come to embracing a cost-benet approach to intellectual property.
use rights over the algorithms that allow programmers to write, adapt and improve software. If I write (x,y) (x + y + 0 = x + y) then another programmer should be free to study this and perhaps write (x) (x + 0 = x). In the language of the positive commons, all programmers have rights of common over algorithmic resources that are essential to their group life as programmers. At a technical level this requires access to what is known as the source code of the program. Proprietary companies use intellectual property rights like copyright and patents to protect the electronic versions of the programs that they release publicly, while not making the source code publicly available. The Free Software movement also claims copyright in the software, but it then relies on a licence that gives subsequent users of the software the right to copy, modify and redistribute the software on condition that they do the same in terms of rights for others. Access to the source code is made mandatory because without the freedom to study the source code the exercise of these rights is meaningless. In essence, the licence is a form of conditional permission. If you comply with the conditions you have use rights and if you do not you become an infringer. At a deeper level, the licence acts as a mechanism of social consent to a positive commons in which the commoners have agreed that no commoner may take these algorithms out
of circulation and that improved versions of them have to be returned to joint ownership. The commoners have the right to sell the programs that are the fruit of their labour, but not the right to enclose the resources of the common. These remain in the common and, as we have noted, grow through the law of repletion that applies to the intellectual commons. The Free Software movement is explicitly not a public domain movement. In an illuminating essay, Eben Moglen, the General Counsel of the Free Software Foundation says that Richard Stallman and others in the movement are defending the ethical right to share information.6 Later when he compares the Berkeley Systems Division (BSD) license for the distribution of UNIX with the Free Software Foundations General Public License he criticizes the BSD licence as not protecting against appropriation things in the public domain may be taken out and put into proprietary production. The Free Software Foundations General Public Licence, he argues, constructs a non-restricted, protected commons. This is the language of the positive common in full ight. Just as in the previous patent example, the public domain enables appropriation without consent. The Free Software movements GPL licence is a way of investing the commoners with the power to protect their use rights and the resources that are central to their group life.
intellectual common is subject to the law of repletion. It grows rather than depletes through use. In the mix between negative and positive intellectual commons, I have argued along Millian lines that we should favour the positive intellectual commons because it promotes freedom and allows for a diversity of group life, the kind of diversity we in fact nd amongst, for example, indigenous groups when it comes to use rights over information. A negative common in which monopolists gain the power of restriction over the commoners slows down the operation of the law of repletion and, more importantly, represents a net loss of freedom. Self-organized positive intellectual commons will become more prevalent as citizens conclude that governments, because they have been corrupted by the wealth of big business, will not deliver the institutions of knowledge that citizens want. Citizens will, through social licences, construct variants of the positive intellectual commons that maximize their use rights over the informational assets that matter to their ends in life, commons that will help to disperse the centralizing power of private monopoly over information.
Endnotes 1. Professor of Law, Australian National University. My thanks go to Geoff Tansey, currently the holder of a Joseph Rowntree Visionary Award, for the way in which he has helped to develop the ideas in this article. 2. G. Hardin, The Tragedy of the Commons, Science, 162,
CONCLUSION
The intellectual commons can be distinguished from the public domain. The latter draws its meaning from the laws of intellectual property, while the former is a political expression of community when it comes to social arrangements for use rights over information. Hardins tragedy of the commons does not apply to the intellectual commons. In fact, the
1243 (1968). 3. E. Ostrom et al, Revisiting the Common: Local Lessons, Global Challenges, Science, 284, 278 (1999). 4. See P. Drahos with J. Braithwaite, Information Feudalism: Who Owns the Knowledge Economy?, Earthscan, London, 2002. 5. For a full account see P. Drahos, A Philosophy of Intellectual Property, Ashgate, Dartmouth, 1996. 6. Eben Moglen, Freeing the Mind: Free Software and the Death of Proprietary Culture, http://emoglen.law.columbia.edu/publications/mainespeech.html
FREEING
IDEAS
The Adelphi Charter
he growing fear that patents and copyright may no longer boost or promote innovation prompted an international group of prominent legal scholars, artists, scientists, politicians, economists, academics and business experts to issue The Adelphi Charter on Creativity, Innovation and Intellectual Property in October 2005.
less restrictive. The authors of the Charter stress that much real work has just only begun - governments and the general public must now be persuaded that all stakeholders must re-think the way intellectual property rights are granted and regulated. The Adelphi Charter was prepared by an International Commission, whose members at the time of publishing included: Professor James Boyle William Neal Reynolds Professor of Law, Duke Law School, and Faculty Co-Director, Centre for the Study of the Public Domain, Duke University Lynne Brindley - Chief Executive, British Library Professor William Cornish - Former Herchel Smith Professor of Intellectual Property University of Cambridge Carlos Correa - Centre for Interdisciplinary Studies on Industrial Property and Economics University of Buenos Aires; and South Centre Switzerland Darius Cuplinskas - Director, Information Programme Open Society Institute Carolyn Deere - Chair, Board of Directors, Intellectual Property Watch; and Research Associate, Global Economic Governance Programme, University of Oxford and University College Oxford. Cory Doctorow - Staff Member, Electronic Frontier Foundation; and writer Peter Drahos - Professor of Law, Director of the Centre for Competition and Regulatory Policy, and Head, RegNet, The Australian National University Bronnac Ferran - Director, Interdisciplinary Arts Council England Dr Michael Jubb - Director, UK Research Libraries Network
The Charter, a strongly worded statement on what is good intellectual property policy, was the result of a project commissioned by the Royal Society for the Encouragement of Arts, Manufactures and Commerce in the UK. It seeks to ensure that society has access to ideas and knowledge generated by others, and that intellectual property laws do not become too restrictive. Professor John Naughton, one of its authors, captures this aim in his description of the Charter: an attempt to formulate a sane set of principles to guide law-making on intellectual property in a digital age. He also describes the Charters goal which has all to do with reversing the commercial worlds current mania for stronger IP rights. The document sets out new principles for copyrights and patents, and calls on governments to consider the public interest when dealing with intellectual property. It aims to promote a new, fair, user-friendly and efcient way of handing out intellectual property rights in the 21st century. However, the Charter should not be construed as the climax in the effort to make copyright
Gilberto Gil - Minister of Culture, Brazil; and musician Professor Lawrence Lessig - Chair, Creative Commons; Professor of Law and John A. Wilson Distinguished Faculty Scholar Stanford Law School James Love - Executive Director, Consumer Project on Technology; and Co-Chair, Transatlantic Consumer Dialogue (TACD) Committee on Intellectual Property Hector MacQueen - Professor of Private Law and Director, AHRB Research Centre on Intellectual Property and Technology Law University of Edinburgh Professor John Naughton - Professor of the Public Understanding of Technology, Open University; Fellow of Wolfson College, Cambridge University; and columnist, The Observer Vandana Shiva - physicist, philosopher, environmental activist and writer. Sir John Sulston - Nobel Laureate; former Director, Wellcome Trust, Sanger Institute Louis Sylvan - Deputy Chair, Australian Competition and Consumer Commission
Source 1. http://www.adelphicharter.org/ 2. http://en.wikipedia.org/wiki/Adelphi_Charter 3. The Economist, Free ideas, Oct 13 2005 4. BBC Online, Copyright for the digital age, Oct 17 2005 5. John Naughtons weblog http://memex.naughtons. org/index. php?m=20051014.
Adelphi Charter
Humanitys capacity to generate new ideas and knowledge is its greatest asset. It is the source of art, science, innovation and economic development. Without it, individuals and societies stagnate. This creative imagination requires access to the ideas, learning and culture of others, past and present. Human rights call on us to ensure that everyone can create, access, use and share information and knowledge, enabling individuals, communities and societies to achieve their full potential. Creativity and investment should be recognised and rewarded. The purpose of intellectual property law (such as copyright and patents) should be, now as it was in the past, to ensure both the sharing of knowledge and the rewarding of innovation. The expansion in the laws breadth, scope and term over the last 30 years has resulted in an intellectual property regime which is radically out of line with modern technological, economic and social trends. This threatens the chain of creativity and innovation on which we and future generations depend. We call upon governments and the international community to adopt these principles. 1. Laws regulating intellectual property must serve as means of achieving creative, social and economic ends and not as ends in themselves. 2. These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life. 3. The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws. 4. Intellectual property protection must not be extended to abstract ideas, facts or data. 5. Patents must not be extended over mathematical models, scientic theories, computer code, methods for teaching, business processes, methods of medical diagnosis, therapy or surgery. 6. Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.
on creativity, innovation and intellectual property

7. Government must facilitate a wide range of policies to stimulate access and innovation, including non-proprietary models such as open source software licensing and open access to scientic literature. 8. Intellectual property laws must take account of developing countries social and economic circumstances. 9. In making decisions about intellectual property law, governments should adhere to these rules: * There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights. * The burden of proof in such cases must lie on the advocates of change. * Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote peoples basic rights and economic well-being. * Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benets and detriments.
The WIPO
Development Agenda
IPO was created in 1970 to take over the role of its predecessor, the Berne-based United International Bureau for the Protection of Intellectual Property or BIRPI. French for Bureaux Internationaux Reunis pour la Protection de la Propriete Intellectualle, the BIRPI was set up in 1983 to administer the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property. It was the signing of the Convention Establishing the World Intellectual Property Organisation in Stockholm on July 14, 1967 that led to the birth of WIPO three years later. In 1974, WIPO became a specialised agency of the United Nations, with a mandate to administer intellectual property matters recognised by the member States of the UN.
Article 4 of the WIPO Convention describes WIPOs role - to promote the development of measures designed to facilitate the efcient protection of intellectual property throughout the world and to harmonise national legislation in this eld. The Article also mentions that WIPO is to encourage the conclusion of international agreements designed to promote the protection of intellectual property. Headquartered in Geneva, WIPO enjoys a source of income unlike that of other branches of the UN. Instead of being dependent on the contributions of member states, over 90 per cent of its income comes from the collection of fees by the International Bureau under the intellectual property application and registration systems, which it administers. This includes the Patent Co-operation Treaty, the Madrid system for trademarks and The Hague system for industrial designs.
The agency currently has 183 member states and administers 23 international treaties dealing with various aspects of intellectual property. However it is not an elected body and as such there are doubts by some parties as to whether WIPO is able to act in the interests of the citizens of its member states.
WIPO COMMITTEES
WIPO gets most of its work done through specic committees. Some of these committees include the Standing Committee on Patents (SCP), the Standing Committee on Copyright and Related Rights (SCCR), the Advisory Committee on Enforcement (ACE), the Intergovernmental Committee (IGC) on Access to Genetic Resources, Traditional Knowledge and Folklore, and the Working Group of the Reform of the Patent Cooperation Treaty (PCT).
RESISTANCE TO IP EXPANSION AND FORUM SHIFTING

WIPO has been making decisions by consensus. Each member state has only one vote regardless of population or contribution to funding. This resulted in developing countries being able to block plans by their developed counterparts to expand intellectual property treaties through WIPO. This resistance was evident in the 1960s and 1970s when developing countries blocked expansion plans such as universal pharmaceutical patents. To get around this stand off, developed countries led by the United States in the 1980s moved the discussion on intellectual property standard-setting out of WIPO and
Rural school in Cambodia
into a forum where the developed countries are better able to get their way the General Agreement on Tariffs and Trade (GATT). GATT eventually evolved into the World Trade Organisation and the American forum shifting strategy led to the enactment of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
document in which Argentina and Brazils development agenda was based on. The Declaration calls on WIPO to pay more attention to the needs of developing countries and to approach intellectual property as a means for development rather than being an end in itself. The Declaration points out that being partial to the owners of intellectual property has many dire effects on consumers in developing countries: Without access to essential medicines, millions suffer and die; Morally repugnant inequality of access to education, knowledge and technology undermines development and social cohesion; Anticompetitive practices in the knowledge economy impose enormous costs on consumers and retard innovation; Authors, artists and inventors face mounting barriers to follow-on innovation; Concentrated ownership and control of knowledge, technology, biological resources and culture harm development, diversity and democratic institutions; Technological measures designed to enforce intellectual property rights in digital environments threaten core exceptions in copyright laws for disabled persons, libraries, educators, authors and consumers, and undermine privacy and freedom; Key mechanisms to compensate and support creative individuals and communities are unfair to both creative persons and consumers; Private interests misappropriate social and public goods, and lock up the public domain. Giving support to the proposal of Argentina and Brazil, the Geneva Declaration calls for WIPO to take on a more balanced view of the benets of harmonization and diversity. Global conformity of intellectual property rules may only be pursued if it is certain that it will benet everyone. Without this
ITEM 12 THE DEVELOPMENT AGENDA

On October 4 2004, the WIPO General Assembly agreed to adopt a proposal offered by Argentina and Brazil on the Establishment of a Development Agenda for WIPO. This proposal came out of the Geneva Declaration on the Future of the World Intellectual Property Organisation and was co-sponsored by Bolivia, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Sierra Leone, South Africa, Tanzania and Venezuela. Together with Argentina and Brazil, these countries argued that the various degrees of intellectual property rights protection should reect the level of development of any given country. The proposal, often referred to as Item 12 due to its place on the meeting agenda list, was also supported by India albeit in a separate but similar statement. The term development as used by these (developed) countries, including in WIPO, means quite the opposite of what developing countries understand when they refer to the development dimension, said Indias representative to WIPO, Debabrata Saha with regards the Development Agenda proposal. Saha added: If you share the perspective of the developed countries, development means increasing a developing countrys capacity to provide protection to the overwhelmingly developed country owners of IP rights!
certainty the Declaration says A one size ts all approach that embraces the highest levels of intellectual property protection for everyone leads to unjust and burdensome outcomes for countries that are struggling to meet the most basic needs of their citizens. Consequent to the efforts of civil society in the Geneva Declaration, a number of organisations led by CI member Consumer Project on Technology (CPTech) have embarked on an Access to Knowledge (A2K) Treaty in the hope that the A2K Treaty will eventually be introduced and adopted as part of WIPOs Development Agenda.
Source 1. Wikipedia World Intellectual Property Organisation http://en.wikipedia.org/wiki/WIPO, 2. WIPO has failed in its development mission, http:// www.twnside.org.sg/title2/twr171h.htm, 3. Chee Yoke Heong, Putting the breaks on intellectual property rights Asia Times Online, http://www.atimes. com/atimes/Global_Economy/FJ15Dj01.html, 4. The Geneva Declaration, http://www.cptech.org/ip/ wipo/genevadeclaration.html
THE GENEVA DECLARATION AND THE FUTURE OF WIPO

Prior to this General Assembly, a meeting was held where NGOs, scientists, academics and other concerned individuals, including Consumers International, signed the Geneva Declaration on the Future of the World Intellectual Property Organization, the
Access to
Knowledge Treaty
n the wake of the Geneva Declaration on the Future of the World Intellectual Property Organisation (WIPO), and soon after the adoption of the Development Agenda on the WIPO programme, several civil society organisations began work on an Access to Knowledge Treaty (A2K Treaty). The Development Agenda proposal laments that despite the important scientic and technological advances and promises of the 20th and 21st centuries, in many areas a signicant knowledge gap as well as a digital divide continue to separate the wealthy nations from the poor. Indeed, it is the gaining of knowledge that serves as an indispensable tool for any society to gain upward mobility. And both developing countries and civil society see the Development Agenda in an organisation such as WIPO as the rst step to ensure that everyone has access to knowledge. The idea (of the Development Agenda proposal) was to try to fundamentally change this UN agency (WIPO) so that it focuses on innovation and creativity. This would be consistent with the idea to protect human rights and ensure consumer protection and the control of un-competitive practices, explains James Love, Director of Consumer Project on Technology (CPTech).
The proposal, says Love at Consumers Internationals Training Workshop on Copyright and Access to knowledge in Bangkok recently, led to the creation of an on-line forum on access to knowledge. The most obvious beneciaries of the A2K Treaty would be developing countries that may fall by the wayside as the world increasingly becomes more and more integrated into the single global trading system. For developing countries the coming century of knowledge-based growth raises two basic development priorities, wrote Peter Drahos in BRIDGES Monthly Review, a publication of the Geneva-based think tank International Centre for Trade and Sustainable Development. The rst is that these countries must give more urgent attention to encouraging investment in human capital and this essentially translates into investment in health and education, added Drahos. Drahos explained that the second basic priority is to creatively think up about models of governance for the production of knowledge. These models should maximise the participation of developing countries in the process of innovation, maximise the spill over benets of knowledge and minimise the social cost of accumulating knowledge.
While the rst priority is of importance at the national level, it is the second priority that civil society organisations hope to address through the drafting of a framework agreement that contains guiding principles on access to knowledge the A2K Treaty. Such a treaty would at least offer developing countries a longer term vision of their development interests, as well as an opportunity to build a coalition around the issue of knowledge and development. The A2K Treaty is still a work in progress as more civil society organisations join in and more issues are being brought in to be included in the drafting of the Treaty. So far, a variety of proposals on matters such as the implementation of the Doha Declaration on TRIPS and Public Health, the need for exceptions in copyright and patent law to allow access for various groups and rules for the promotion of access to publicly funded research have been proposed. The many complex issues raised on intellectual property, public goods, research and development and innovation could each become the subject of an annex in the treaty, proposes Drahos. For example, there could be an Annex on technical standards and intellectual property, an Annex on open source innovation in software, an Annex on education, libraries and copyright, an
Visualization and Analysis of Internet Trafc Flow
Annex on open source innovation in the life sciences, and annex on technology transfer and so on. As of May 9, 2005 the draft A2K Treaty has clauses that call for limitations and exceptions to copyright, patents, expanding and enhancing the knowledge commons, promotion of open standards, control of anticompetitive practices and on the transfer of technology to developing countries. Under limitations and exceptions to copyright, the A2K Treaty proposes a number of noncommercial and educational practices that should be free from copyright restrictions. It also has provisions on distance learning, the rights of people with disabilities, libraries, internet service providers and Technological Protection Measures among others. Much of what is going on in discussions about the A2K Treaty is documented and accessible at CPTechs website at this link http://www.cptech.org/a2k/. However, a major portion of the current input for the A2K treaty comes from civil society, which poses
a problem to the development and possible adoption of the Treaty by governments. Its not without precedent that civil society takes the lead in pushing for a treaty, says Love quoting other treaties on landmines, tobacco control, and climate change. However, Love warns that if it becomes too obvious that NGOs are playing a big role in pushing for a treaty, national governments may view this campaign the wrong way. So now there is an effort to try and get governments to hold consultations on the various elements of the treaty, explains Love. Alternatively, civil society should engage other agencies such as UNESCO to discuss and give WIPO some competition. The treaty could also be discussed at the regional levels such as ASEAN, APEC or MERCOSUR. Another option is to deal with the various elements of the treaty and make it into separate treaties on its own. Love cites the proposal by Chile to have the General Limitations and Exceptions to Copyright as a treaty in its own right within the WIPO process.
In the meantime, civil society and consumer leaders such as Love expect NGOs to continue to take the lead in getting A2K high on the agenda of governments and industry. To not do so would risk losing the whole concept to opportunists who may change the proposed treaty into something that does not promote access to knowledge for all.
Source 1. CP Tech Access to Knowledge http://www.cptech. org/a2k/ 2. Third World Network, Friends of Development Group propose way forward for WIPO (22 Feb 2006) http:// www.twnside.org.sg/title2/twninfo354.htm 3. Peter Drahos, Access to Knowledge: Time for a Treaty. BRIDGES Monthly Review (April 2005) -http://www.ictsd. org/monthly/bridges/BRIDGES9-4.pdf.
Copyright - Martin Dodge, 2004
WIPO Carves Up
the Internet
distributed over television, radio, cable television, or through any wired or wireless computer network, including the Internet. This is something different from copyright. Indeed, it is designed to benet people who cannot get a copyright, because a work belongs to someone else (the person or group that created it), or because the information is in the public domain. The new right is not a copyright, but a broadcaster or webcaster right. It is a bad idea when applied to television or radio, but a disaster if applied to the Internet. In different ways, the US and the EU both think they can use this right to extract money for simply distributing information over the Internet into foreign markets. The right comes at the expense of consumers and copyright owners -- beneting the distributors of information. It might be called the middleman right. This has attracted a large group of corporate lobbyists who want to see their clients named as beneciaries of the treaty. It works like this. If the owner of a broadcaster or webcaster publishes anything, they get an ownership right in the information, equal to the rights of the copyright owner, so before you could make a copy, share or reuse the information in any way, you would have to get permission from both the copyright owner and distributor of the work. This is supposed to protect the caster for its investments in broadcasting or webcasting. The meetings at WIPO are chaired by a very strong advocate of high levels of intellectual property rights, Jukka Liedes, from Finland. The European Union, the United States Government and several other governments want this new right to last 50 years, beginning each time information is republished. This new right only applies to copies of the works distributed by the casting organization, so if you can get a copy from another source, it would not apply, something that would not be a problem if the work was a Hollywood lm or music recording widely available elsewhere in DVD or CD formats. But for a number of other works, there just wont be any practical or cost effective way of getting a copy from another source. (Which makes the casting right so valuable). Why is this such a big deal, and particularly for the Internet? First, there are lots of important works that are not protected by copyright, including events of high public interest such as presidential speeches, recordings of US Supreme Court debates, recordings of meetings and telephone calls by several US presidents, and some Congressional hearings. And, there are far more works that are technically protected by copyright, but which are in practice freely available, because the owners of the work want to share it widely, or do not choose to enforce restrictions on how a work is reused. Web pages are full of documents, sound recordings and video that are licensed under Creative Commons licenses, or simply passed
Jamie Love *
ont bother reading this unless the words new intellectual property right and the Internet seem important when put together, because it is a twisted and complicated story. Even the key players are struggling to gure out what is going on. But like a lot of twisted and complicated things, it is important. The World Intellectual Property Organization (WIPO) is a specialized UN agency, headquartered in Geneva, Switzerland is negotiating a contentious new Treaty, the purpose of which is to provide a new protection for broadcasting and webcasting organizations. What does this mean? WIPO is debating whether or not to create a new intellectual property right in information that is
around informally. Information on the Internet often is republished on many different web sites, each reaching its own communities. This is exploding at an astonishing rate as the costs of making and hosting works falls. Within a short time, anyone will be able to create a webcast from a mobile phone, and create records of meetings of all types, news events, performances, interviews, or any number of other events. Increasingly, people are using these works to create newer works, in documentaries, news reports and commentary, or cultural or technical works that remix or mash up content. Grid Computing and other emerging technologies are creating astonishingly creative and important ways of collaborating. Copyright alone presents huge problems for the distribution of and creation of these new Internet based works. But a new intellectual property right for webcasting will make things even more difcult, at least doubling the permission one needs. At a minimum it will increase transaction costs. At worst, it will change the culture of sharing
information on the Internet, with some exercising as many rent seeking rights as they can acquire. Who is pushing for this new webcasting middleman right? It is not the vast majority of bloggers, web page owners and others who are creating and distributing content. It is a tiny handful of big corporate players, including most notably US companies like Yahoo, News Corp (owner of MySpace), Microsoft, Time-Warner/AOL, AT&T, and a handful of large European media companies, including it seems, the BBC. Yahoo and others see themselves as aggregators and distributors of wide varieties of audio visual works created by others, including music performances and lms from all over the world. Under the most aggressive proposals debated this week, the Webcasting right will make Yahoo a part owner in everything they webcast, and potentially give them the right to claim things like fees from cyber-cafes, community Wi networks, schools and educational institutions, even when works are in the public domain or
are freely licensed under creative commons type licenses, as well as a number of other situations. This comes at the expense of both the copyright owners and consumers. The Broadcast/webcast right, if dened too broadly, as some here want, also allows the broadcaster/webcaster to compete against the copyright owners in downstream commercialization of works, which is another reason why it makes copyright owners unhappy. The US and the EU are split on who should be the beneciaries of this new right. The EU, led by copyright chief Tilman Lueder, who formerly worked on competition issues, wants to restrict this new webcasting right to the incumbent broadcasting organizations, like BBC, so that only they would be able to claim the layer of rights, and not new competitors, even though they are both operating on the Internet. The US, led by Library of Congress lawyer Jule Sigall, wants to extend this new right to companies like Yahoo, News Corporation,
Microsoft, Time-Warner or AT&T, but not to bloggers or people who just maintain web pages. Right now the treaty denitions extend to pretty much any legal entity that creates a web page. During discussions with the US delegation, I actually created a webcasting site webcastingexample.blogspot. com, to show how trivial it was to get the 50 years of exclusive rights over copies of Congressional testimonies involving Avian Flu. About eighty-percent of the push for this is coming from the United States, about 19 percent from the European Union, and about 1 percent from other countries. No one who is pushing these treaties can explain why
anyone who would get the right actually needs it in the rst place, and there is no assessment of how this will impact copyright owners, consumers or creative communities and innovative businesses.
highly protable broadcast sector. (Dito for the cable TV industry). Basically, the Rome Broadcaster right is a 45 year old mistake. But like many other intellectual property treaties, it is extremely difcult to roll back unnecessary or restrictive IP rights. The US based National Association of Broadcasters (NAB) lead by lobbyist Ben Ivins, had pushed for years for WIPO to update the 1961 Rome Convention to expand the Broadcaster rights, extend the term (from 20 to 50 years), and add a number of other things. Even though NAB is pushing a European style approach, the USPTO and US Library of Congress has strongly backed a new treaty, extending European legal norms. Because broadcasters worldwide play an important role in shaping public views on politicians, they have extraordinary political power. Yahoo, now led by Terry Stemel, a former Hollywood executive, pushed to include Webcasters in the treaty, with full parity rights of the Broadcasters through the trade association DiMA and a number of private lobbyists. Seth Greenstein, a DCbased lobbyist, said he wrote the key sections of the current treaty that extended the Rome rights to webcasting organizations. Lobbyist Jonathan Band has been downplaying the importance of the treaty to the technology
WHERE DID THIS COME FROM?

The original basis for this right is a 45 year-old treaty called the Rome Convention on the protection of performers, producers of phonograms and broadcasting organizations. The Rome Convention is now signed by 83 countries, but not by more than 100 other countries, including the United States. Every country, including the United States, gives some types of rights to performers (actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works) or producers of sound recordings, but the US and many other countries did not create a special right for broadcasters. The Rome Broadcasting Right is considered the weakest and most controversial component of the Rome Convention. Broadcasters typically rely upon free public spectrum, are hugely protable, and do not need any additional incentives to broadcast. As Jamie Boyle has pointed out, the US never accepted this right, and we have a huge and
Photo: Mercedes Martinez Dozal
WIPO Deputy Director General Rita Hayes, SCCR Chairman Jukka Liedes, and WIPO Legal Counsel Edward Kwakwa during the SCCR
and library communities, despite its close parallels to a new intellectual property right for databases, which he opposes on behalf of other clients.
In different ways, the US and the EU both think they can use this right to extract money for simply distributing information over the Internet into foreign markets.
DEBATE OVER SCOPE OF RIGHTS

There is a deeply divided debate at WIPO over the scope of rights associated with the Broadcaster or Webcasting organizations. The European Union and some other countries are pushing very strong ROME+ rights in the treaty. A growing fraction on the other side, are pushing for a very thin layer of protection that is really only useful in protecting against piracy of a broadcast/ webcast, but does not create an ownership right in the work. At this meeting Jule Sigall of the US Library of Congress has moved toward the signal protection only approach, supported by most NGOs, copyright owners and many developing countries. This was a long overdue and welcome development that has enraged the NAB. It is uncertain how this debate will play out, given the strong position of the European Union to promote its much different approach, and the very difcult problem of lower global treaty norms for intellectual property protection.
LITTLE VIABILITY IN THE US

If you dont know about the Treaty, it is because there has not been a single story about it in the New York Times or Wall Street Journal, and I think only two stories in the Washington Post, the most recent of which ran last year, and one in the International Herald Tribune, which few people in the United States read. The computer trade journals have written very little about it either. The US Patents and Trademarks Ofce and Library of Congress have rejected numerous requests to issue formal requests for comment on the treaty, and have scheduled no public meetings on the treaty. The US Congress has not held any hearings on the treaty. When the National Academies held a recent 5-hour public event about the meeting, not a single member of the US negotiating team attended. Ironically, it was a webcast of the National Academies event that has created more
resistance. Key Intel ofcials listened to the National Academies event, and decided to oppose it. This has been a wake-up call for many in the technology community. Some big rms are siding with Intel, that the whole treaty poses a number of problems and should be opposed. Others, like AT&T, are trying to ensure they get the new webcasting rights. We have told technology companies, including Yahoo, Myspace, AT&T, Google, and others, that it is short sighted to see this new right as something that will only benet them as publishers. There is enormous value in sites like Yahoo, Google, Myspace, Blogspot and millions of other large and small web pages, blogs etc, which ourishes because of the relative freedom that exists on the Internet. New regulations, restrictions and costs of sharing of information will shrink this value. In the developing countries, there is strong opposition to the expansion of the Rome broadcaster right to the Internet. They correctly see this as something that will increase transaction costs and prices, harm
access to knowledge, and undermine the rights of their own copyright owners in the works distributed over the Internet. A larger and growing number of non-prot groups like CPTech, Electronic Frontier Foundation, Public Knowledge, Consumers International, Consumers Union, (nonUS) library groups (like the International Federation of Library Associations and Institutions, Electronic Information for Libraries), IP-Justice, Third World Network, the Open Knowledge Foundation, Union the for Public Domain, and other A2K groups are playing a very important role in opposing the treaty. With the exceptions of James Boyle at Duke and Jennifer Urban at USC, US academics have not expressed interest in the treaty so far.... we are hoping that will change.
*Written by Jamie Love, Consumer Project on Technology.. Source http://www.hufngtonpost.com/james-love/wipo-carvesup-the-intern_b_20336.html
Blocking Access with
Digital Locks
listening. Because of this, consumer advocates have criticised the term Copy Protection as misleading and prefer the terms Copy Restriction or Copy Control. Digital Rights Management (DRM) is the umbrella term referring to any or several technologies used to enforce pre-dened policies for controlling access to software, music, movies, or other digital data and hardware. More specically, DRM covers the description, layering, analysis, valuation, trading, monitoring and enforcement of the usage restrictions that accompany any particular digital work. DRM critics often say that this practise is best described as Digital Restriction Management rather than its current form as it is technical restrictions that are actually being managed. DRM is often imbedded in videotapes, digital videodiscs (DVDs), computer software discs, video game discs and cartridges and more recently, some audio compact discs (CDs). This is in the belief among publishers that DRM will secure and improve their revenue as consumers will not be able to make copies of media such as the above. However, the claim that reducing the ability of consumers to indulge in casual copying prevents loss of sales is countered by the argument that such consumers who usually use free copies are less likely to bother paying for such copyrighted work even if it was not freely available. It has been proven that it is almost technically impossible to completely prevent consumers from making copies of copyrighted material that they have purchased. For instance, it is necessary for a consumer to have equipment that can read media such as CD and DVD players to enjoy their CDs and DVDs. Such equipment can be modied and used to also copy this media and write or record these copyrighted work onto other similar media such as blank re-write-able CDs. The entertainment and publishing industries understand that DRM will not restrict the determined individual who plans to illegally mass-copy works for re-sale. However, TPM is still practised to prevent the ordinary consumer from practising casual copying even if it is for personal, non-prot purposes. DRM has emerged as a means to enforce restrictions that are above and beyond existing legal restrictions as set down under copyright law. The form and degree of these additional restrictions are at the sole discretion of the media publisher/distributor. These restrictions may remove or nullify rights specically assigned to the purchasers of copyrighted material by statute or precedent. As most digital works can be distributed via the Internet, DRM is not restricted to being embedded in media such as CDs, DVDs, software CDs. DRM is present in proprietary equipment such as media players that will only play music or video les that have been written in a particular format. To avoid the risk of reverse engineering by users who want to make copies of these les, publishers have often embedded DRM deep in the fundamental operating software of certain media players as well as the use of tamperresistant hardware.
n the midst of the on-going campaign by civil society, law professors, IT experts and consumers to resist and reverse the increasing restrictions on fair use of copyrighted material, a new means of eradicating the unauthorised copying of Internet content is taking shape. Fearful that the rapid growth of the web and the proliferation of le-sharing software will lead to widespread copying, the entertainment and publishing industries have combined hard-hitting technological barriers to the current legal protection they enjoy through copyright laws. Technological Protection Measures (TPM) is dened as the use of technological tools to restrict the use and/or access to digital work. TPM is also sometimes referred to as Copy Protection, which is any technological measure designed to prevent the duplication of information. Copy Protection does not allow consumers to make a back-up copy of a music CD they have purchased, to install a programme on more than one personal computer or to simply upload music on to a portable player for easier access and
DRM has found its way into a number of media such as Apples iTunes Store, eBooks and Sony CDs, among others. Some of its restrictions include limiting the number of devices a media le may be played on and even how many times a media le may be viewed. Some consumers may nd that they cannot play a music CD on the CD-ROM drive on their computer as publishers fear it can be copied. Consumers may also nd that a video that they have just paid to download from a legitimate online subscription service will vanish from their personal computers hard drive after 24 hours. Media publishers believe that DRM will help prevent piracy and preserve the revenues of producers and distributors. Opponents to DRM however argue that the use of technology should not be more restrictive than current copyright laws. Shifting control of a digital le to the producer even after it has been sold will hurt creative expression and damage consumer rights.
Internet service providers are exempt from the DMCA if they adhere to the Acts guidelines and if it acts to promptly block access to (duplicate) copyrighted work should they receive a notication from a copyright holder. The DMCA also claries the duties of the Copyright Ofce, and makes provisions for distance learning, sound recording libraries, collective bargaining and the transfer of movie rights. There are efforts in the US Congress to modify the DMCA. One of these efforts is led by Democrat Rick Boucher, who is introducing the Digital Media Consumers Rights Act (DMCRA). However, there are also attempts to legislate laws that would further enhance protection for copyright holders at the expense of the consumer. One such law is the Consumer Broadband and Digital Television Promotion Act (CBDTPA), which deals with devices used to access digital content and would be more restrictive than the DMCA.
just on content, but also on the means to protect it, says the Trans Atlantic Consumer Dialogue (TACD), a coalition of consumer organisations in Europe and North America. Consumers are faced with a triple lock between them and the exercise of their rights: copyright protection, technological restriction (by using DRMs) and legal protection of the technological restriction (anti-circumvention provisions). Excessive protection measures are also a danger to developing countries. In this context, the EFF says anti circumvention measures are likely to: Override national copyright exceptions and limitations, and hamper a countrys effort to introduce new exceptions; Impair access to knowledge and increase the cost of accessing information for educational uses, expanding the knowledge gap between industrialised and developing economies; Chill scientic research and publication; Restrict legitimate competition and entrench monopoly-priced consumer goods; Inhibit the transfer of technology and stie domestic technological innovation; and Preclude free and open software. Countries that are net importers of copyrighted information goods stand to lose out the most. As it is DRM laws will result in a transfer of wealth from the developing countrys domestic to foreign rights holders. This would be without any guarantee of some form of reciprocal investment in the net-importing economy. The EFF adds that should these importing countries not have its
RESISTING DRM DIGITAL MILLENNIUM COPYRIGHT ACT

Despite these attempts to restrict copying, tools to get around DRM have emerged and proliferated. In response to this, the US passed on May 14, 1998, the Digital Millennium Copyright Act (DMCA) to make the production and dissemination of technology that can circumvent copyright protection measures a criminal offence. The DMCA also makes penalties for infringement of copyright on the Internet more severe. On May 22, 2001 the European Union passed the EU Copyright Directive, which is largely similar to the DCMA. It was reported that the DMCA was passed without debate or opposition in the US Congress as US lawmakers were under the impression that this was a technical enactment that would not result in any signicant public policy implications. The DMCA, among others stipulates a broad ban on the circumvention of copy protection systems and requires that all analogue video recorders have copy prevention built in. It does allow people who repair computers to make temporary and limited copies of software while working on the machine. Opponents to DRM say that laws to prevent circumvention have gone overboard and have extended their reach way beyond the boundaries of copyright law. It is an offence to circumvent a TPM even if the underlying use of the protected work would not be copyright infringement, says the Electronic Frontier Foundation (EFF) in a brieng paper for the WIPO Intersessional Inter-governmental Meeting on the Development Agenda. The EFF argues that DRM has proven ineffective at protecting rightholders copyrighted content while at the same time causing substantial harm to consumers, scientic research, freedom of expression, competition and technological innovation. Unfortunately lawmakers have been giving the entertainment and publishing industries too much attention. Much discussion revolves around the copyright holder and the need to combat copyright infringement. Strong copyright laws in the US and EU give copyright holders monopoly rights, not
own existing industrial capacity, DRM laws are likely to impede technology transfer. In this light, the EFF calls for WIPO assistance to preserve public interest exibilities and existing national copyright law exceptions and ensure that legal protection for DRM is appropriately set within the boundaries of copyright law. The TACD highlights the costs of DRM to consumers. Besides restricting the consumers ability to make private copies, DRM has arbitrarily set unpractical parameters on its denition of households and families in deciding when, where and who may access digital information. There is also the question of privacy as DRM works to collect and transmit data about personal use of digital work and prole consumers. The lack of inter-operability between different devices and lack of transparency in the operation of DRM also frustrates consumers and only serves to delay and stymie the acceptance of DRM among consumers. DRM systems may impair other security systems in personal computers as the protection measure requires internet connection to register itself. DRMs are already in the market not only in developed countries but also in developing countries. It is in the interest of all countries to ensure that DRMs are appropriately cabined to the boundaries of copyright law.
TACD RECOMMENDATIONS ON DRM Access to and use of content DRM systems that are capable of being used in excess of what is necessary to protect copyright will not receive the privilege of anti-circumvention protection. DRM systems that dene social entities such as household and families in their technology, and that dene these entities more narrowly or restrictively than have been dened in local law or custom will not receive the privilege of anti-circumvention protection. DRM systems that block the use of assistive technologies employed by disabled people will not receive the privilege of anticircumvention protection. Privacy DRMs should be certied as compliant with data protection rules or privacy rights by the Data Protection Registrar or privacy enforcement agency before they are introduced onto the market. By building privacy interests into the design of the DRM, privacy rights may be enforced more effectively. In particular, DRM systems should not use registration, use data, or other personal information for secondary purposes without rst obtaining the individuals informed and voluntary consent. That is, the individual should be able to use the media without consenting to marketing or other secondary uses of their personal information. Interoperability DRMs that restrict the normal expected usage of that product, such as space and time shifting, should not receive the privilege of anti-circumvention protection. DRMs whose licensing and implementation terms preclude the use of Free and Open Source Software (FOSS) will not receive the privilege of anti-circumvention protection. Transparency DRM systems that are updated without a users consent will not receive the privilege of anti-circumvention protection. All equipment containing DRMs must be clearly labelled showing what uses are
allowed and what equipment it will or will not work on. DRM systems that are marketed without adequate disclosure of restrictions will not receive the privilege of anti circumvention protection. Security DRM software should not hamper or limit the use of software protection on consumer computers. DRMs should not bring new vulnerabilities into consumers computing equipment and such systems must not interfere with consumers ability to set and retain their own polices and levels of security for their own machines. Anti-competitive behaviour The potential anti-competitive effects of DRMs should be reviewed. In particular, a competition investigation should be undertaken into the licensing terms for DRM technology and the effect on competitors and complementary producers. Redress Consumers must have clearly dened and enforceable consumer rights that cannot be overridden by contract terms, DRM systems or other technological measures. They should not have to rely, as now, on the restraint or goodwill of the rights holders or, as in Europe, on the whims of each Member State as to which consumer exemption they will allow. Among the consumer rights that should be clearly expressed: Right to private copy Right to fair commercial practices Right to be informed and refunded for faulty products Right to privacy and data protection. Right to free speech A simple and speedy alternative dispute resolution system should be established for cross border DRM disputes so consumers do not have to rely on costly litigation for low value disputes, whilst retaining the right to use court action as a last resort.
Source 1. Wikipedia Copy Protection http://en.wikipedia.org/wiki/ Copy_protection, 2. Wikipedia Digital Rights Management http:// en.wikipedia.org/wiki/Digital_rights_management, 3. Wikipedia Digital Millennium Copyright Act http:// en.wikipedia.org/wiki/DMCA, 4. Trans Atlantic Consumer Dialogue, Resolution on Digital Rights Management, http://www.tacd.org/docs/?id=275 5. Electronic Frontier Foundation, Brieng Paper on Technological Protection Measures for the WIPO Inter Sessional Inter Governmental Meeting on the Development Agenda Proposal & Fourth Session of the Permanent Committee on Cooperation Related to Intellectual Property Development, April 11-15, 2005 http://www.eff.org/IP/ WIPO/dev_agenda/EFF_WIPO_brieng_041205.pdf
LIBRARIES
The Peoples Universities
ibraries of all types are the starting point from which citizens can have access to information on an equal basis and in a trusted and neutral environment. Library and information services are the peoples universities. Through their vast collections, they enable access for all members of the community to global knowledge resources, ideas and opinions thus fostering a creative and innovative society. A strong library infrastructure is integral to a nations development as evidenced by the countries, which have ranked number one in the UN Human Development Index over the last ten years, i.e. Norway and Canada1 . In developed countries, libraries accompany citizens through all stages of life, for example, Bookstart for Babies programmes in the local public library2 ; Help with Homework clubs in the school library; as a student, logging into the university library from home for course-work material; as a
professional, accessing the latest market research reports from the in-house company library on your desktop. Libraries collect, organise and preserve our global cultural and scientic heritage: the memory of humanity. The richness of the content is reected in the diversity of the media: books, newspapers, journals, audiovisual material, maps, pictures, and music. The raison detre of libraries is to collect and preserve our knowledge for the purposes of making it available to current and future generations.
Libraries are essential to the free ow of ideas and to maintaining, increasing and spreading knowledge. As repositories of books and other printed material, they are key to promote reading and writing. UNESCO and Libraries portal
was transformed especially for academic and scholarly resources. However, in poor countries or those which are undergoing the transition to a market economy, the barriers to access were formidable: little money to pay for expensive electronic resources; poor technological infrastructure and lack of capacity; political
BRINGING DOWN THE BARRIERS IN DEVELOPING COUNTRIES

Electronic Information for Libraries (see www. ei.net), known as eIFL.net, recognises the key role that libraries play in the exchange of ideas, knowledge and information and the development of open societies. The advent of digital technologies heralded a new era and new opportunities as traditional print journals became available electronically. Within a decade, the information landscape
eIFL.net members: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, Cameroon, China, Croatia, Egypt, Estonia, Ghana, Georgia, Iran, Lesotho, Jordan, Kazakhstan, Kosovo, Kyrgyzstan, Laos, Latvia, Lebanon, Lithuania, Macedonia, Malawi, Mali, Moldova, Mongolia, Mozambique, Nigeria, Palestine (Gaza and West Bank), Poland, Russia, Senegal, Serbia and Montenegro, Slovakia, Slovenia, South Africa, Sudan, Swaziland, Syria, Tajikistan, Uganda, Ukraine, Uzbekistan, Zambia, Zimbabwe
each year using licences negotiated by eIFL.net. Co-operation and resource sharing between libraries is growing ensuring long-term sustainability and members are beneting from expertise in cutting edge information and technology policies and practices.
This places restrictions on the services provided by libraries and prevents innovative new services from being developed e.g. distance education services to people living in rural or remote areas, ironically those standing to benet most from the new technologies.
STRIKING A BALANCE
However, just as researchers and students in the eIFL member countries are beneting from access to these new resources, they have also become exposed to the international policy making environment with regard to copyright and related trade issues. Especially over the last ten years, the global trend is towards more rights for right-holders and stricter enforcement laws. Intellectual property now belongs to the global trading system. The public domain, the common cultural and intellectual heritage of humanity and a rich resource for further creativity, is being eroded. Libraries support copyright because they recognise the need for creators to be rewarded for their work and for creative works to be protected from piracy and other unfair exploitation. But copyright is not just about protection for right-holders. Copyright was from its early days meant to balance the need to protect creators with the users right to access information for teaching, learning and further creative endeavours. The mechanism that makes copyright work is in fact the exceptions and limitations combined with adequate protection of copyright. So if there are no exceptions or only narrow exceptions, how can there be a balance? If there is no balance, then copyright works against libraries, learning and access to knowledge. Users of copyright material nd that they have less rights in the digital environment than in the traditional print world e.g. exceptions and limitations granted to print material often do not apply to digital works; libraries are forced to sign away their rights in non-negotiable licences in order to gain access to essential resources; digital locks prevent libraries from making lawful use of a work.
RECLAIMING THE AGENDA

The digital copyright agenda is increasingly driven by multinational corporations in the music, software and lm industries. Although the requirements of the mass entertainment industries are not directly applicable to other situations such as education and research, they impact directly on the services of notfor-prot libraries. The criteria for copying and distributing a song by U2 are very different from those of the latest research paper on avian u. The same rules however apply to a Hollywood movie, a video game, the latest song by U2 as to an academic research paper. Librarians in many parts of the world are actively engaged in protecting the public interest of libraries and education through their national library organisations. eIFL-IP3 , the eIFL.net copyright program, coordinates a network of national copyright experts in developing and transition countries and represents members at international policy
and legal rewalls; few opportunities to join international experts where pertinent knowledge is shared and discussed. eIFL.net saw an opportunity to assist libraries and their users in achieving affordable access to electronic scholarly resources. As access to Internet-based digital material can be expanded at marginal cost to the provider, the idea was to leverage the purchasing power of individually poor customers and to negotiate with information providers on a multi-country consortial basis with highly discounted prices and alternative business models. In this way, eIFL.net aims not only to lessen the digital divide between north and south, but also to ensure equitable access within individual countries to cover better-funded institutions, as well as smaller libraries lacking the funding for new acquisitions. With eIFL.net library purchasing consortia now operating in 50 developing and transition countries serving thousands of libraries, access to global research and information has become a reality for millions of users. When rst accessing e-resources provided through eIFL.net, Professor Hamlet Isaxanli, Rector of Khazar University in Azerbeijan exclaimed: Its fantastic. Yesterday I had a dream, now it is a reality. eIFL.net members are saving millions of dollars
The Millennium Development Goals are one of the great challenges facing the international community. On reaching these Goals, Ko Annan says: We cannot win overnight...It takes time to train the teachers, nurses and engineers; to build the roads, schools and hospitals; to grow the small and large businesses able to create the jobs and income needed. Student teachers, nurses and engineers in poor countries often rely entirely on the university library to provide learning and research material for their courses. Developing countries must ensure that learning content is made available to the widest possible base as part of their focus in achieving the Millennium Development Goals.
full their mission in the twenty-rst century and enabling readers, especially those in developing countries, to full their dreams.
Written by Teresa Hackett, Project Manager of eIFL-IP: Advocacy for Access to Knowledge, a programme to raise awareness on copyright issues for libraries.
Further Reading 1. eIFL statements on a Development Agenda for WIPO http://www.ei.net/services/wipo_da.html 2. Learning with Libraries and Copyright Issues Information Meeting on Educational Content and Copyright in the Digital Age, 21 November 2005 WIPO, Geneva http://www.wipo.int/meetings/en/doc_details. jsp?doc_id=53634 3. Library-Related Principles for the International
making fora such as the World Intellectual Property Organization (WIPO). These efforts generally meet with stiff opposition from powerful right-holder organisations and result in varying degrees of success. It is time therefore to reclaim the agenda for the public interest and to redress the balance. This is why libraries support the call for an international Treaty on Access to Knowledge (A2K). Such a Treaty would establish an international framework setting out the norms by which user rights are protected while maintaining adequate protection for rightholders. It would safeguard library interests especially in the digital environment; redress the balance between rightholders and the public interest; provide guaranteed minimum exceptions and limitations to copyright and promote new and alternative business models such as open access publishing and free software. The international library community through eIFL.net and IFLA, the International Federation of Library Associations and Institutions, are active participants in the A2K campaign, a vibrant coalition of civil society partners including consumers, blind and visually impaired people and free software developers. The diversity of the group illustrates the pervasiveness of IP as it touches almost every aspect of our daily lives.
Development Agenda of the World Intellectual Property
In response to current developments, libraries formulated a set of principles for use in discussions at the World Intellectual Property Organization (WIPO) concerning the impact of intellectual property protection on economic development and the signicance of copyright exceptions for libraries, educational institutions, and people with disabilities. The principles set out the importance of a robust and growing public domain to provide new opportunities for creativity and research; individual research and study leading to high levels of creativity and technological progress; effective library programmes and services. Custodians of the public interest Librarians providing services in the public, educational and cultural sectors are uniquely placed as custodians of the public interest. Librarians around the world are vigorously defending the library viewpoint and representing the interests of the users of library services to governments and policy makers alike. Copyright law does not need to be a barrier to library or education services. Rather, librarians are convinced that copyright law should be an enabler of access to knowledge, allowing libraries to
Organization and IFLA statements http://www.ia.org/III/clm/copyr.htm Endnotes 1. http://en.wikipedia.org/wiki/Human_Development_ Index 2. E.g. Australia www.library.act.gov.au/locandhrs/ bookstart.html 3. eIFL-IP: Advocacy for Access to Knowledge: copyright and libraries.
Open Access
JOURNALS
ith the advent of the printing press, the founding of the scholarly journal Philosophical Transactions in 1665 by the Royal Society of London effectively brought an end to the secretive tradition of scholars communicating with one another via private correspondence. In the course of the centuries that followed scholars often relinquished the copyright in their papers to journal publishers in exchange for being published in a predominantly noncommercial environment. Today, scholars are once again at the cross-roads. Just like the printing press, the proliferation of the Internet and the World Wide Web threatens to re-invent the way researchers publish and circulate their work. Just as the journal Philosophical Transactions transformed academia some 350 years ago, online and open access scholarly journals such as Theoretical Economics (www. econtheory.org) may soon become the norm. Currently there are about 24,000 scholarly journals world wide, but only three to seven percent of them are considered to be open
access. This means that they make their research papers available for free on the Internet. But the evolving debate over openaccess scholarship poses some fundamental questions about academic research: Do publicly funded universities and granting bodies have a democratic indeed a moral obligation to ensure that academic scholarship is available on the Internet? What kinds of public and institutional policies are needed to make such wideranging dissemination both possible and useful? And what are the implications for publishers, research libraries, copyright, and for scholarship itself? Most researchers are supportive of open access journals - there are a number of benets that are quite difcult to dispute. In an interview with University Affairs, a publication on Canadas tertiary education institutions, Stevan Harnad of Universit du Qubec Montral (UQAM) points out that citations can more than double for articles that are freely available on the web. Dr Harnad, also says that accessible online papers benet academics in poor countries where universities have fewer resources. Research libraries see institutional electronic
repositories as one way of ensuring the preservation of digitised online material that is highly vulnerable to the problem of disappearing URLs. Current trends and developments may seem to make open access journals the obvious choice for researchers. On the one hand, journal subscription rates have risen steeply since the 1970s while on the other, funding and space pressures even among very large institutions have led to reductions in their subscriptions. Academics are increasingly becoming comfortable posting papers on personal websites and there is growing demand for electronic interlibrary loans of scholarly articles. In the classroom, tech savvy university students often prefer receiving learning materials in electronic form. Scholarly journals are migrating online, offering pay-per-view fees while in some disciplines, especially medicine, consumer use of online scientic information has exploded, bringing scholarly writing to broad lay audiences. Tim Mark, Executive Director of the Canadian Association of Research Libraries (CARL)
describes the current practise for academics to get published as absurd. It is absurd because these academics who work for publicly funded institutions have to give up their intellectual property rights to commercial journal publishers, who turn around and sell the fruits of their labour right back to those institutions in the form of costly journal subscriptions. Increasingly, younger and more web-savvy academics have taken up more workable alternatives such as using the creative commons licences which allow authors to reserve certain electronic rights while ensuring that their work can be legally circulated on the web. Not everyone of course is warming up to the idea of open access journals. Critics claim that open access journals will herald the destruction of academic journals as open access journals would result in lower editorial quality and higher subscription prices. And it may not even effectively improve access. Open access journals and traditional journal publishers need not always be in conict. In the US, the National Institutes of Health in 1999 created an electronic archive of NIH-funded research after laws had been passed to ensure public access to government documents. Soon however, journal publishers found that the NIHs E-biomed database was a signicant source of competition and lobbied US lawmakers to embargo articles for a year after publication before they could be posted to the archive, now known as PubMed. Currently most open access journals are published by small scholarly societies such as the Society for Economic Theory, which is setting up Theoretical Economics. Some of these journal publishers are dependent on grants from large research councils such as the Social Sciences and Humanities Research Council (SSHRC) of Canada. The SSHRC currently refuses to give grants for open access journals as its policy requires that grants commensurate with paid subscriptions. Unlike subscribed journals, it is difcult to gauge the impact of open
access journals as papers can be downloaded for absolutely nothing. This brings prospective open access journals publishers to the question of selfsustainability. Martin Osborne, the researcher who heads Theoretical Economics has most of it gured out. To sustain the journal Dr Osborne and his colleagues decided that there would be a charge of US$75 submission fees for authors ($35 for academics in developing countries), and an offer for one free submission a year to those who take out society memberships. Expenses such as administrative overheads, as well as fees or stipends to editors and peer reviewers had to be kept to a minimum. Printing costs, editing, typesetting and hosting costs are all also kept very low. Lastly, to get the journal online, hundreds of hours were spent adapting an open-source, journal-publishing software package instead of paying the licensing fee for a commercial model. According to Dr Osborne, the alternative of contracting with a large commercial publisher could amount to $35,000 a year a substantial sum for a small scholarly society. Besides self-sustainability, open access journals face another equally potent hurdle, which stymies signicant development in this area. Academics are so focused on getting published that they do not see the
need or the benet of getting their work widely circulated. Better circulation can be achieved if academics make it a practise to self-archive their work, whether on their own websites or with searchable, indexed and networked electronic repositories. As it is, Dr Hanard of UQAM cites the lack of available user-friendly archiving software for academics to self-archive their work. The practise of self-archiving has yet to become an accepted routine or unquestioned part of the work of scholarship as basic as including bibliographies and reference lists at the end of any paper. Since it is possible for open access journals to be self-sustaining while at the same time peacefully co-exist with traditional journal publishers, the onus is on universities and research institutions to establish policies requiring their academics to self-archive, as well as encourage them to publish in openaccess journals. This is a natural extension of publish or perish in the internet age.
This article is adapted from The Bottom Line on Open Access by John Lorinc, which appeared in University Affairs, March 2006. University Affairs is a publication of the Association of Universities and Colleges of Canada. http://www.universityaffairs.ca/issues/2006/march/open_ access_01.html
Some rights reserved

An introduction to the Creative Commons
Balance, compromise, and moderation once the driving forces of a copyright system that valued innovation and protection equally have become endangered species, says the Creative Commons on its website.
Indeed the Creative Commons was born from the effort to nd a middle ground in the debate on the extent of control as a result of intellectual property (IP) rights. While industrial and commercial interests push for a longer and rmer grip on their IP rights, a number of academics and prominent gures in cyberlaw argue that such control will only serve to stie creativity, innovation and signicantly thwart possible future discoveries. Creative Commons was started by people worried about the state of the public domain - the body of intellectual work that is not subject to proprietary control, said Molly Van Houweling, the projects Executive Director, in an interview with the BBC. According to Houwelling, recent technological and legal developments are making it easier for people to stop works being copied, whether under copyright or not. Because of this the Creative Commons believes that the aggressive attempts by record companies to eradicate online music swaps through portals likes Napster - illustrates how the creative power of the internet is being eroded. The Creative Commons is a non-prot organisation that aims to enable copyright holders to concede some rights to the public while retaining others. This allows for a greater variety of work available for others to build upon and share. Launched in 2001, this project was largely supported by a grant from the Centre for the Public Domain, a philanthropic foundation based in Durham, North Carolina. The Creative Commons is led by cyberlaw and intellectual property experts James Boyle, Michael Carrol, Molly Van Houwelling, and Lawrence Lessig. Also on the Board of Directors are MIT computer science Professor Hal Abelson, lawyer-turned-cyberlaw expert Eric Saltzman, renowned documentary lmmaker Davis Guggenheim, noted Japanese entrepreneur Joi Ito, public domain web publisher Eric Eldred, entrepreneur turned strategist Laurie Racine and Wikipedia founder Jimmy Wales. By using the Creative Commons website, creators of intellectual property (copyright holders) can procure a number of free licenses to use when releasing work on the Internet. The Creative Commons also provides the necessary encoded identication data that describes the license and makes it easier to automatically process and locate licensed works. The website also provides a Founders Copyright contract which is intended to re-create the effects of the original U.S. Copyright created by the founders of the U.S. Constitution.
PERMISSION CULTURE
The efforts undertaken by the Creative Commons are done to arrest if not reduce the proliferation of what they refer to as a dominant and increasingly restrictive permission culture. Lawrence Lessig, Chairman of the Board for the Creative Commons explains that permission culture is one in which creators get to create only with the permission of the powerful or of creators from the past. Lessig argues that modern culture is dominated by traditional content distributors. This domination is ercely sustained and defended in order to maintain and strengthen their monopolies on cultural products such as popular music and popular cinema. The Creative Commons, adds Lessig, provides alternatives to these restrictions The Creative Commons gives creators a web-based tool that allows them to write non-traditional copyright licences without
having to pay a lawyer. Besides setting aside some work to the public domain, copyright holders can tailor licences to their needs. For instance they could specify that the work is not free for commercial uses. Lessig and his team have developed special tags in extensible mark-up language (XML) that allow licences to be described in a machine-readable form. This XML code can then be embedded in the web page containing the work. So with the help of a search engine, a web designer could nd a specic image in the public domain. The Creative Commons claims to use private rights to create public goods. This means freeing certain creative works for certain uses. The goal is somewhat similar to the free software and open-source movement i.e. it is co-operative and communityminded. But unlike free software and opensource initiatives, the Creative Commons advocates a system that is voluntary and libertarian. It works towards offering creators and copyright holders a chance to have the best-of-both-worlds - to protect their works while encouraging certain uses of them. It is only then that creators can declare some rights reserved. Property rights are only half of the system, explains James Boyle, Professor of Law at Duke Law School in North Carolina in an article in the Guardian. Boyle is also a Board Member of Creative Commons and the cofounder of the Centre for the Study of the Public Domain. Boyle points out that even the very proponents of intellectual property saw it as a necessary evil, something to be limited to the narrowest scope, and time necessary. He states that Just as important is the realm of material that is not owned, the public domain, the raw material from which the next invention, novel or song will spring.
medium audio (music, sounds, speeches,...), images (photos, illustrations, designs,...), video (movies, animations, footage,...), text (books, blogs, essays,...) and educational and research material (lesson plans, course packs, textbooks, ...).
and be non-commercial, the users do not have to license their derivative works on the same terms. 4 - Attribution No Derivatives This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to the original copyright holder. 5 - Attribution Share Alike Other users may remix, tweak, and build upon original work even for commercial reasons, as long as these users credit the copyright holder and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on the original work will carry the same license, so any derivatives will also allow commercial use. 6 - Attribution This license lets other users distribute, remix, tweak, and build upon original work, even commercially, as long as they credit the copyright holder for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with the original copyright holders works licensed under Attribution. Other licenses These licenses are for more specialised uses: 1 - Public Domain Dedication work is completely copyright free 2 - Founders Copyright work is completely free of copyright only after 14 or 28 years 3 - The Music Sharing License for musicians to share their work with their fans 4 - Developing Nations License - less restrictive terms to countries that are not considered high income by the World Bank.
There are six main licenses each with a different degree of restrictions: 1 - Attribution Non-commercial No Derivatives The most restrictive of the lot, this license allows redistribution. This is the free advertising license as it permits others to download the copyright holders works and share them with others on condition that the copyright holder is mentioned and theres a link back to the copyright holder. The work cannot be changed in any way or used for commercial benet. 2 - Attribution Non-commercial Share Alike This license allows for other users to remix, tweak, and build upon original work of the copyright holder non-commercially. This is ne as long as the creator is credited and that the users license their new creations under identical terms. Other users can download and redistribute the copyright holders work just like the non-commercial, no derivatives license, but users may translate, make remixes, and produce new stories based on this work. All new work based on original work by the copyright holder will carry the same license, so any derivatives will also be non-commercial in nature. 3 - Attribution Non-commercial Other users are permitted to remix, tweak, and build upon original work noncommercially. Although the users new works must also acknowledge the original creator
Source 1. http://creativecommons.org/ 2. http://en.wikipedia.org/wiki/Creative_Commons 3. The Economist, Uncommon Protection, 12 Dec 2002 4. The Economist, Killing Creativity, 15 April 2004 5. BBC Unlocking the copyright culture, 24 June 2002 6. BBC A sharing approach to copyright 5 Oct 2004 7. Guardian, Protecting the public domain, 14 Oct 2005.
THE CREATIVE COMMONS LICENCES

Creative Commons offers a exible range of protections and freedoms based on the some rights reserved approach. The licences are adapted for the particular
Open Source
Software
pen source software refers to computer software or programmes that may be examined, modied or improved due to the accessibility of its underlying programming better known as source code - that is available alongside the product. The practise of making the source code available with the computer software was the norm in the early days of computing. The very rst computer programmers and developers sought to netune the fruits of their labour by allowing others to understand how the software works and to share any derived improvements. This trend came to an end in the 1970s when software giant Microsoft withheld their source code for their operating systems and other programmes that were bundled together. However, open source software did not go away quietly despite the growth and proliferation of proprietary software such as those made by Microsoft and other commercial software manufacturers.
THE OPEN SOURCE LABEL

The term open source came about in reaction to Netscapes announcement in 1998 that it would release its source code. A group of software developers coined the term open source as a better name for Netscapes free software, which for some meant something of little value. The goal of open source software is to allow better comprehension of the product, to allow modications, replications and ultimately the creation of an improved product The term free software, however, did not entirely disappear. The Free Software Foundation, founded in 1985, argues that free software is free as in free speech but not free as in free beer.
management to release its Navigator source code as open source, to remarkable results. In Raymonds 1997 essay The Cathedral and the Bazaar, he suggests a Bazaar approach to developing open source software as opposed to the traditional Cathedral model, which is closed and clandestine. The Cathedral model, Raymond describes is fully crafted by individual wizards or small bands of mages working in splendid isolation. A bazaar approach is more favourable: a great babbling bazaar of differing agendas and approaches. Most well known open source software products follow the Bazaar model as suggested by Raymond. These include projects such as, among others Linux, Netscape, Apache, the GNU Compiler Collection and Perl.
THE OPEN SOURCE INITIATIVE

The Open Source Initiative was formed in February 1998 by Eric S. Raymond and Bruce Perens, to present open source as a viable option for commercial interests. This was on the basis of 20 years of cases of closed software development as against open software development. Raymond and Perens then successfully persuaded Netscapes top
OPEN SOURCE VS. CLOSED SOURCE

Many consumers will be familiar with closed source software, which is also referred to as proprietary software. Almost all personal computers in the world run on the
ubiquitous Microsoft Windows operating system, which is far from being an open source software. Open source software cannot pay for itself through traditional methods such as sale of the use of individual copies and patent royalty payment. It is also seen as a threat to the commercial software market. However, open source software does pay for itself using the following methods: Giving the software for free and instead charge for installation and support;
the user greater freedom while the other emphasises on the accessibility of the source code and the quality that results from the bazaar development model. Free software is not necessarily free of charge or costs but instead free to be used, changed or improved for whatever purpose, including making a prot. (See article on Free Software Foundation). An extensive list of examples of open source software may be found on Wikipedia at this link http://en.wikipedia.org/wiki/List_of_ open_source_software_packages
Under the Open Source Denition, licenses must meet ten conditions in order to be considered open source licenses: 1. Free Redistribution: the software can be freely given away or sold 2. Source Code: the source code must either be included or freely obtainable. 3. Derived Works: redistribution of modications must be allowed. 4. Integrity of the Authors Source Code: licenses may require that modications are redistributed only as patches. 5. No Discrimination against Persons or Groups: no one can be locked out. 6. No Discrimination against Fields of Endeavour: commercial users cannot be excluded. 7. Distribution of License: The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
Make the software available as open-source so that people will be more likely to purchase a related product or service you do sell; Cost avoidance/cost sharing: many developers need a product, so it makes sense to share development costs. In terms of security, open source software users enjoy faster aw discovery and repair times as compared to closed source. The availability of the source code allows users to look out for and anticipate potential security vulnerabilities. However, a malicious person may exploit this same access to damage the open source software.
THE OPEN SOURCE DEFINITION

The Open Source Denition provides a guideline as to what software may be regarded as open source software. It describes the philosophy behind the concept and clearly denes the boundaries with regards usage, modication and redistribution of open source software. Open source software is not merely about having access to the source code but involves a number of other conditions as well. An Open Source License is necessary to allow users of the software certain rights, which would normally be restricted under copyright. While there are several licenses that fall within the Open Source Denition, the most widely used license is the GNU General Public License (GPL). Other licenses include Apache License, BSD license, GNU Lesser GPL, MIT License, Eclipse Public License and Mozilla Public License.
8. License must not be specic to a Product: the program cannot be licensed only as part of a larger distribution. 9. License must not restrict other Software: the license cannot insist that any other software it is distributed with must also be open source. 10. License must be Technology-Neutral: no click-wrap licenses or other mediumspecic ways of accepting the license must be required.
Source 1. Open Source Initiative http://www.opensource.org/, 2. Wikipedia Open Source Software http://en.wikipedia. org/wiki/Open_source_software 3. Wikipedia http://en.wikipedia.org/wiki/Open_Source_ Denition
OPEN SOURCE VS. FREE SOFTWARE

The denitions of open source software and free software are almost identical. There are only a few cases of software being open source but not free and a few being free but not open source. The distinguishing factor is that free software stresses on giving
The Free Software
Foundation
ounded in October 1985, the Free Software Foundation (FSF) is a non-prot organisation that is dedicated to promoting computer users rights to use, study, copy, modify and redistribute computer programmes. Among the various free software, the FSF particularly promotes the development and use of the GNU operating system. Since its founding, FSF initially used most of its funds to employ software developers to write free software. This changed in the mid to late 1990s as many companies and individuals began writing free software on their own. Now, FSF employees and volunteers mostly work on legal and structural issues with regard to the free software community. The FSF rst published its Free Software Denition in 1989. This was later reworded to become the Debian Free Software Guidelines. It was modied by the Open Source Software movement by changing the terms free software to open source. Currently the FSF is working on several projects. The GNU Project - The FSF is committed to developing and maintaining the GNU free software operating system. General Public Licence (GPL) Enforcement - The FSF enforces GPLs and
other GNU licenses for use of software to which FSF holds the copyright. GNU Licenses The FSF writes and distributes various GPLs for developers who wish to license their programmes as free software. Free Software Directory Started in September 1999 to catalogue all useful free software running under free operating systems. Savannah a website by FSF to provide software development services at no cost to all free software developers. Its founder and President Richard M. Stallman and Executive Director Peter T. Brown currently head the FSF. The FSF has six people on its Board of Directors. They are: Geoffrey Knauth, Senior Software Engineer at SFA, Inc.; Lawrence Lessig, Professor of Law at Stanford University; Eben Moglen, Professor of Law and Legal History at Columbia University; Henri Poole, Founder of CivicActions, a grassroots campaign technology consulting rm; Richard M. Stallman, Founder of FSF and the GNU Project and author of the GNU GPL; and Gerald J. Sussman, Professor of Computer Science at the Massachusetts Institute of Technology. The free software movement, the GNU Project and the FSF are all the brainchild of
computer programmer Richard Matthew Stallman. An acclaimed hacker, Stallman is credited for having written the original Emacs, GNU Emacs, GNU C Compiler and the GNU Debugger, all of which are basic but popular software tools for programmers to make the code they write readable to computer hardware. Since the 1980s proprietary software vendors have been proliferating and computer manufacturers were using new means to stop their software from being used in computers manufactured by others. It was this and the growing practise of restricting access to source code and imposing restrictions on the copying and distribution of software that brought Stallman to the forefront of the free software movement. Stallman insists that the efforts of proprietary software vendors to prohibit the freedom to share, study and modify software are actions that are anti-social and unethical. He argues that freedom is crucial for the benet of software users besides just being instrumental in the creation of better software.
Stallman was also the creator of the concept of Copyleft. Copyleft is something endowed by a creator on his or her creation to avoid impediments that other users may face when dealing with intellectual property rights. It provides a license that ensures that users of a creation, e.g. software, may study, use, modify, and also redistribute both the work, and derivatives of the creation. Copyleft came about when a software company he had written a programme for later refused to grant Stallman access to an improved version of his submitted work. Stallman emphasises on the need to use words such as free software and strongly rejects the term open source as a better alternative to free software as it downplays the underlying concept of freedom. It is generally accepted that most open source software may also be considered as free software and vice-versa. However, this is not always the case. The most well known examples of free software are: Operating systems: GNU/Linux, BSD (Berkeley Software Distribution) and Darwin (Apple Computer) GCC compilers, GDB debugger and C (programming language) libraries. Servers: BIND (Berkeley Internet Name Domain) name server, Sendmail mail transport, Apache web server, and Samba le server. Relational database systems: MySQL and PostgreSQL. Programming languages: Perl (Practical Extraction & Report Language), PHP (Hypertext Pre-processors), Python, Ruby and Tcl (Tool Command Language). Graphical user interface related: X Window System, GNOME (GNU Network Object Model Environment), KDE (K Desktop Environment), and xfce (Xforms Common Environment) desktop environments. OpenOfce.org ofce suite, Mozilla and Firefox web browsers and the GIMP (GNU Image Manipulation Programme) graphics editor. Typesetting and document preparation systems TeX and LaTex.. MediaWiki, the software which runs Wikipedia.
THE FREE SOFTWARE DEFINITION

Contrary to its name, free software is not software that you do not need to pay for. To clear the air, the FSF maintains the Free Software Denition to clarify what particular software programmes may be deemed free. Free software, according to the FSF, is more akin to the concept of liberty rather than price or nancial cost. The given analogy to describe this is that one should think of free as in free speech, not as in free beer. The FSF explains that free software is a matter of the users freedom to run, copy, distribute, study, change and improve the software. This freedom enjoyed by users is categorised in four ways: The freedom to run the program, for any purpose. The freedom to study how the program works, and adapt it to your need. The freedom to redistribute copies so you can help your neighbour. The freedom to improve the program, and release your improvements to the public, so that the whole community benets. The availability and access to the source code of any particular software is a necessary precondition for the above-categorised freedoms. A software or programme is only deemed to be free software if its users can enjoy all four freedoms. It follows then that any user should be free to redistribute copies, either with or without
modications, either gratis or charging a fee for distribution, to anyone anywhere. Being free to do these things means (among other things) that you do not have to ask or pay for permission. The FSF also states that users of free software need not notify the developers if the user decides to modify, distribute or make money from distributing or using the free software. The original text of the FSF denition of free software goes into greater detail, exploring various possibilities and discusses how free software may be maintained as free given the many scenarios. Due to its length and depth it is not reproduced in full in this article. Do refer to the FSF Free Software Denition web page at this link: http://www. gnu.org/philosophy/free-sw.html for more information.
Source 1. Wikipedia Richard Stallman http://en.wikipedia. org/wiki/Richard_Stallman, 2. Wikipedia Free Software Foundation http:// en.wikipedia.org/wiki/Free_Software_Foundation 3. Wikipedia Free Software http://en.wikipedia.org/wiki/ Free_software
Richard Stallman
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ASIA PACIFIC CONSUMER

VOL 43 & 44 1 & 2/2006

Copyright and Access to Knowledge

Asia Pacific Consumer Vol 43 & 44 No 1 & 2 2006 | 3

Dr. Sothi Rachagan

W HAT IS INTELLECTUAL PROPERTY (IP)?

WHY PROTECT IP?

PUBLIC RIGHTS COMPROMISED

4 | Asia Pacific Consumer Vol 43 & 44 No. 1 & 2 2006

BALANCE OF PUBLIC AND PRIVATE IP RIGHTS

DEEMING CREATIONS OF THE MIND/ INVENTIONS AS PRIVATE PROPERTY

Asia Pacific Consumer | 5

SUBJECT MATTER EXPANSION

EXPANSION WITHIN EACH SUBJECT AREA

EXPANSION OF THE SCOPE OF THE RIGHT PROTECTED

RESTRICTING FAIR USE

6 | Asia Pacific Consumer

Copyright in the 19th century

Source http://www.victorianweb.org/authors/dickens/pva/pva76.html http://www.victorianweb.org/authors/dickens/pva/pva75.html http://www.pbs.org/now/politics/copyright.html

Asia Pacific Consumer | 7

IMPLICATIONS OF EXPANDED IP RIGHTS

8 | Asia Pacific Consumer

TRADITIONAL KNOWLEDGE AND IP

Asia Pacific Consumer | 9

RECLAIMING THE PUBLIC DOMAIN

CONSUMER RIGHTS, IP AND THE POLITICS OF IP PROTECTION

PARADIGM CHANGE IN INTERNATIONAL LAW AND PRACTICE

INCREASING ACCESS THROUGH NEW PRACTICES/INITIATIVES

NATIONAL LAW REFORM

10 | Asia Pacific Consumer

Asia Pacific Consumer | 11

12 | Asia Pacific Consumer

The CI study on Copyright and

Asia Pacific Consumer Vol 43 & 44 No 1 & 2 2006 | 13

THE INTERNATIONAL COPYRIGHT REGIME

14 | Asia Pacific Consumer Vol 43 & 44 No. 1 & 2 2006

WIPOS LEGISLATIVE ADVICE

NATIONAL COPYRIGHT LAWS

Asia Pacific Consumer | 15

16 | Asia Pacific Consumer

few at the expense of the millions in need.

USING COPYRIGHT LAWS TO INCREASE ACCESS TO KNOWLEDGE

Asia Pacific Consumer | 17

18 | Asia Pacific Consumer Vol 43 & 44 No 1 & 2 2006

CAUSES OF LACK OF ACCESS TO EDUCATIONAL MATERIALS

THE INDONESIAN COPYRIGHT LEGISLATION

Asia Pacific Consumer | 19

20 | Asia Pacific Consumer

Asia Pacific Consumer Vol 43 & 44 No 1 & 2 2006 | 21

PHOTOCOPYING A MEANS OF ACCESSING KNOWLEDGE

22 | Asia Pacific Consumer

FLEXIBILITY UNDER THE COPYRIGHT LAW

Asia Pacific Consumer | 23

Table 2: International Book Price Comparison3

24 | Asia Pacific Consumer Vol 43 & 44 No 1 & 2 2006

UNAVAILABILITY AND UNSUITABILITY

Table 3: International book price comparison by income proportion4 Country

GNI/Capita (US$) 3630 41,400 33.940

Oxford English Dictionary as a fraction of average income 1.2 % 0.0004 % 0.0007%

South Africa USA UK

Asia Pacific Consumer | 25

CASE STUDY: NANCECOL, JOHANNESBURG