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February 21, 2006

Almost an intervention at WIPO PCDA

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Well, let's see: You fly all the way from Texas to Geneva in order to defend the idea of intellectual property, and thus to indirectly defend WIPO from its critics, and then the Chairman of the meeting abruptly cuts off NGO interventions and won't let you say your piece.

I'm annoyed, to say the least. I even approached the Chair just moments after he closed off NGO interventions, but got nowhere.

In retrospect, I've decided that I'm at least partially responsible for not getting to make an intervention. During last year's development agenda discussions, the practice was to let NGOs have an extended period of comment, and that is what I was expecting this time. So I wasn't as quick on the draw as I might have been. If the Chairman is going to try to keep the proceedings moving at a faster pace than last year, I am fully supportive of that.

There will apparently be other opportunities.

Nonetheless, here is the text of the intervention I was GOING to give. As you can see, it's a response to lots of rhetoric about the public domain: How it's under threat, and how WIPO must begin making protection of the public domain a part of its mandate.

Is this a sign of a new stratagem by the free culture movement? To cloak themselves in Shakespeare, and Beethoven, and to say that the public domain is under threat from an expansion of IP rights and DRM? Yes, I think so.

Thank you, Mr. Chairman, and congratulations on your election to this important series of meetings.

The Institute for Policy Innovation is a public policy research organization that is dedicated to researching and promoting economic growth. It is our observation that strong economic growth is the single most important factor in improving the lives of people, which includes improving education, human health, and human economic opportunity. So the factors that contribute to economic growth are the factors that contribute to human improvement.

It is clear from economic research and from historical observation that intellectual property protection is a strong contributor toward economic growth. Nevertheless, in recent years the importance of intellectual property protection has been questioned by a number of parties for a number of reasons.

In particular, so far in these proceedings, we have heard much about the importance of the public domain. This emphasis is welcome, because the public domain is indeed an important source of knowledge and culture.

In fact, no one disputes the value of the public domain. No one disputes that much innovation is incremental, and builds on the strength of what has gone before. No one disputes that the public benefits from knowledge that is widely available. And no one is trying to reduce the public domain, or to enclose materials currently within the public domain.

What is puzzling to me, then, is the rhetoric we have heard suggesting somehow that the public domain is under threat, or is in need of protection. The suggestion is that somehow intellectual property rights holders or some other villains have designs on the public domain, and wish to somehow “enclose” this knowledge. We have heard that TPMs will be applied to material that is in the public domain, though there would be no business case for doing so.

I am frankly puzzled by this rhetoric. We have seen no evidence that the public domain is under threat. We have heard much in the way of fear, imagined threats, and worst-case scenarios. But if anyone is aware of any empirical studies demonstrating that the public domain is vulnerable, I would appreciate if they could make me aware of it. I have seen much in the way of rhetoric, but very little demonstration of this threat.

In fact, it is clear to me that much of the concern we have heard about the public domain is based not on any obvious threat, but is rather attributable to an assumption that much of what is currently protected by IP rights should never have been protected in the first place—that somehow it has always rightly belonged in the public domain and should never have been protected. When, for instance, I hear an NGO describe IPRs as an “invasion” of the public domain, I see evidence of a basic philosophical disbelief in intellectual property, not a legitimate or discernible threat to the public domain.

The assumption seems to be that the public cannot benefit from privately-owned creative goods. But simple observation demonstrates that this assumption is false, and that it is obvious that the public does indeed benefit from privately-owned goods produced by the IP system.

Let's restate some obvious basic principles about intellectual property:
1.        Rightsholders have every incentive to see their intellectual property widely distributed, and have no reason to keep their goods away from consumers. Rightsholders are happy to get their materials to consumers in the way that is most pleasing to consumers, and are responsive to input from consumers, including responding to consumer feedback on price and on DRM methods. Consumers are, after all, their customers. We have evidence of the responsiveness of rightsholders to consumers in the recent episode where a company implemented a DRM scheme that was soundly rejected by consumers and then quickly withdrawn by the company.
2.        Markets only work when property rights are protected. We have seen evidence of this in the world of digital music. In the U.S., not until after the Supreme Court found that music file-sharing businesses like Grokster that encourage piracy are illegal that legal music services begin to flourish.
3.        IP contributes TO the public domain, and is not an opponent of the public domain. IP incentivizes invention and creativity, and all IP goods eventually make their way into the public domain. Patented inventions must be disclosed to the public, so the knowledge behind a patent becomes immediately available to the public.
4.        The IP system is already flexible. In copyright, for instance, the system was sufficiently flexible to allow for the development of the Creative Commons licensing system. It is ironic that proponents of the Creative Commons claimed the inflexibility of the copyright system as justification for the creation of the Creative Commons, but indeed the very flexibility of the copyright system is what has made the Creative Commons possible. This suggests that there must have been some other motivation behind the creation of the Creative Commons system.
5.        It is simply contrary to all fact and observation that IP rights result in knowledge “walled off” or “enclosed.” Consumers have full access to IP-protected goods while they are under protection. They may not have the right to manufacture those goods themselves, or to build a business around someone else’s property, but they certainly have access to the knowledge and to the benefits of IP-protected goods.

In conclusion, with specific regard to the proposal from Chile, we think that the projected described in item 3, the study determining what are the appropriate levels of IP protection in "each country" is of such scope as to be unworkable. We believe item 1, an analysis of the public domain, and item 2, a permanent discussion of alternative systems to the IP system would be interesting, but are only tangentially related to WIPO’s mandate, and thus should not be a focus of WIPO efforts.

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