The World Intellectual Property Organization is one of those incredibly important international bodies of which most of us have never heard. Cory Doctorow, besides being a bull goose blogger and science fiction writer, is one of the Electronic Frontier Foundation's key activists, trying to get WIPO to become more responsive to the needs of average citizens, especially in the developing world. Here Cory talks about intellectual property and development, but the stories he tells, I think, address an even larger question: how do you do worldchanging activism on emerging issues?
Alex Steffen: So, what does "copyfight" mean, and what's WIPO?
Cory Doctorow: Copyfight is the broad banner to describe people who are fighting for reforms to intellectual property -- trademarks, patents, copyrights and what are called "related rights" (broadcast rights and so on).
WIPO -- the World Intellectual Property Organization -- is the UN's most captive agency. WIPO was originally a stand-alone organization, essentially an industry consortium for rightsholders' interests, and they got brought in under the umbrella of the UN thirty or so years ago, with the understanding that they would change their practices to make them consistent with other UN instruments like the Universal Declaration on Human Rights -- humanitarian instruments -- and that it would become a humanitarian agency for development.
Which makes sense. Information goods are a critical piece of the development picture. Every successfully developed country made use of free information goods. More accurately, they all went through a stage when they were a pirate nation. America spent a century as a pirate nation, ripping off the intellectual property of every country around it, and in particular, of Britain, because when you're a net importer of intellectual property, signing on to multilateral copyright and patent agreements is signing on to exporting your wealth off-shore. When you're a net exporter of intellectual property, it makes economic sense.
The choice is not simply one of piracy or monopoly. There is a whole rich middle ground of public domain and open information regimes which could give developing world countries the tools they need to serve humanitarian purposes, while protecting the legitimate interests of authors, performers and inventors. WIPO could have created a global knowledge goods regime which protected both the commercial and the humanitarian fairly.
But WIPO completely failed to do that, and it went on being a completely captive agency, simply making more copyright, more patent, more related rights, more trademarks on the grounds that all of these rights were themselves a good, regardless of the impact they had on people -- whether they were denying access to patented pharmaceuticals in poor countries that desperately needed them and couldn't afford to buy them at the market price, or simply creating copyright regimes that made basic education more difficult to provide in developing nations. WIPO and the World Trade Organization's intellectual property instruments together foisted a lot of policies on the developing world that required them to adopt knowledge goods laws that were incredibly dangerous to their body politic.
AS: Can you give us an example?
CD: If you're a net importer of copyrights, it is to your advantage to have a robust public domain, for example, textbooks which are in the public domain. It's to your advantage to have a wide scope of things which are not copyrightable, like government speeches and factual material. It's to your advantage to have databases, in particular -- large collections of facts, which are not original -- be not own-able so that you can reproduce them, and interact with them, and just use them when you need to. If someone has produced a database of all the spectral colors and their values, or basic existing engineering science, or so on, it's to your advantage to be able to grab that and use it. Otherwise, you've got to pay monopoly rents on the basic information you need to run your country.
WIPO and the WTO created instruments that required developing countries to take things that had been in the public domain and put them back in strong boxes. It created regimes that made it illegal, just for instance, to reverse-engineer digital rights management tools and create locally-interoperable products, so you had to import foreign goods, which could only play foreign media, and your local arts scene would find itself smothered, your culture would find itself overwhelmed by imported culture, and your local technologists would be undermined by foreign interests.
AS: So, the Nollywood scene, which we've written about -- the explosion of the Nigerian film industry through the use of digital video -- might be an example of something that would get whacked under these rules.
CD: Totally. WIPO introduced something called the Broadcaster's Treaty, which is the most egregious example of any of this stuff, and essentially says, regardless of the copyright of a broadcast work, the person who broadcasts it should have a 50 year monopoly over what you do with the copies of that broadcast you receive. So, if it's GPL or Creative Commons, doesn't matter. If the author of that work has already blessed your use of it, doesn't matter. If it's in the public domain, so the person who broadcast it doesn't even own it, it doesn't matter.
So, imagine being a development-oriented broadcaster with a low-power FM transmitter in, say, rural Costa Rica (where I used to live), servicing Nicaraguan refugees by taking information that you receive from distant stations with your big antenna -- public health information, distance learning, government announcements -- and splicing it together with locally-relevant public affairs programming and retransmit it, that becomes unlawful under the Broadcast Treaty.
AS: Even if all the pieces of that content were originally Creative Commons, or open source, or free use, or public domain, or whatever.
CD: Yep. If they were factual, if they were government transmissions, whatever. Things that aren't subject to copyright.
Copyright traditionally rewards creativity. In this case, the people who transmit this stuff don't create it. If they do, they have the copyright, and they don't need some broadcaster's right. That right is strictly for people whose contribution to the work is electro-magnetic modulation. That's their creative act.
So, anyways, there was one NGO that'd being going to WIPO forever, pretty much the only one: the Consumer Project on Technology, or CPTech. It was started by this guy named Jamie Love, who is an economist, and an ex-Nadarite, who originally got involved primarily because of pharma issues, trying to get sick people access to medicine in the developing world, but found himself ever more embroiled in larger knowledge goods questions.
He was a voice in the wilderness. And he was desperate to find another NGO (or two or five) who would come out and help. Because it's really tough when you're the only one in the world saying, "This is crazy. This is wrong. This flies in the face of reason." Everyone thinks that you're a loon. But if fifty of you say it, it starts to look more credible. So Jaime convinced EFF and Public Knowledge to come to a meeting. Now there are thirty or so groups involved.
What that means is that citizens are starting to exert tons of leverage on WIPO. Last September, a bunch of us gathered in Geneva and wrote the Geneva Declaration, which was a declaration that basically reminded WIPO that it had agreed, when it was brought in under the umbrella of the UN, to support humanitarian objectives, and that it had done nothing to date to do that and had treated IP as an end in itself and not as a means to promulgate development and creativity. We made a big stink.
At the same time, some of the very strong developing nations -- Brazil, India, Argentina -- developed a document called the Development Agenda, which was an extension of this thinking, and they brought it to the next week to the plenary of WIPO. This was in the wake of Doha and Cancun, and developing nations were just really starting to say, "We simply will not sit at the table, if what happens at the table is we get fucked."
So WIPO was running scared, and they adopted the Development Agenda unanimously. They said, we will, henceforth, make all of our decisions on the basis of how those decisions will impact humanitarian and development goals. That seemed like a huge victory.
So, we go to the next WIPO meeting, and -- well, you have to understand how WIPO works. WIPO calls anyone who isn't a government an NGO. So you have NGOs like the National Association of Broadcasters, or various captive agencies from developing countries, getting up and claiming to represent the people, but meanwhile, if you're that Costa Rican community radio station we were talking about, which operates on say, a total annual budget of $3,000, you don't fly people to Geneva to speak on your behalf there.
So, we mount these arguments, and we have them on the ropes, and they start to play dirty. We have these unprecedented heaps of literature. We're cranking them out all night, getting them translated by colleagues all over the world into French and Spanish and other languages, and laying them out on the table the next morning. The secretariat stops paying for the photocopying of NGOs' work, so we have to go way into town to find a photocopy place. It's this amazing flowering of information that challenges not just the misconceptions, but the factual inaccuracies, the outright lies, of the other side, and that information starts to disappear.
We'd put out 150 copies, they'd be gone ten minutes later. We were like, look how popular we are! We never suspected it! Then someone looked in the garbage cans by the toilets and found out that someone had been stealing our documents by the hundreds and dumping them in the toilets, hiding them in the potted plants, real dirty stuff. The Secretariat said if you don't like it, maybe we just shouldn't let people hand stuff out. There were security cameras over the information tables but as far as I know, no one reviewed their footage, which would have found the identity of the theif who was trying to censor our literature.
AS: Somebody was clearly paying attention to you.
Yeah, because we're getting more vocal. So now when the copyfighters go to WIPO we're demanding that they do things like establish a permanent office that does academic study and research into which development regimes do what where, set out best practices for development-based IP, investigate alternative compensation schemes for pharmaceuticals (like compulsory licenses for life-saving medicines in the developing world).
The last one is a great example. The phramaceutical companies were saying, "Well, that's very nice, that you think that we can recover enough of our costs through some form of compulsory license to fund the next round of drug development, but hands up everyone in the room who's ever made a life-saving drug." And they'd put their hands up and say "We say this won't work. These other people who've never made a life-saving drug say it will. Who are you going to listen to?"
So we pulled together a bunch of smart people and said, Maybe you're right, maybe we do need to fund research, maybe compulsories won't do it. Why don't we have a treaty on this where we have competition on research funding methodologies, where all signatories to the treaty get compulsory license on all pharma, and in exchange, they have to pledge a minimum fraction of their GDP, however they want to raise it, and we'll structure that minimum fraction so it equals the total global budget for pharma research. In the developed world, Big Pharma can convince the legislatures there to fund research through strong IP rights, and we'll AIDS cocktails which cost $100,000 a year in America. But we'll do it through direct grants to universities, and we'll get publicly-available malaria drugs--
AS: Drugs that actually keep people from dying from orphan diseases, rather than treat people's minor anxieties or erectile dysfunction --
CD: Exactly. The kind of patents we accept directly leads to the kind of pharma we get, And not just pharma. We need development-centric, action-oriented programs across the board. We need programs that support that Costa Rican radio station, that encourage the Nigerian film industry.
The Brazilians and the Chileans and the Argentines have been showing up and kicking a lot of ass, particularly on a treaty proposal that the EFF and CPTech and a lot of other groups helped draft: the Access to Knowledge, or A2K treaty, which starts from the premise that all the copyright, patent and trademark treaty instruments to date have got it all wrong -- they set out a mandatory minimum set of rights that everyone who's a rightsholder gets, and an optional set of rights that the public gets. As a result, you have global harmonization of the restrictions to the public access to knowledge, and you have no harmonization around the world on the rights that the public gets.
This is a particular problem for democracy in the age of the Internet. In the age of the Internet, entities around the world, civic and nonprofit entities, who are by their nature cooperative instead of competitive, and who therefore need harmonized frameworks in which to work in -- because they need to know that what they're doing in one country is legal in another country in which they're trying to help -- have no way of knowing.
If you scan Orwell in Australia for inclusion in the Gutenberg Project, and send it to London to be edited, you break the law, because in Australia, Orwell's in the public domain, and in the UK, he's not. If you turn a book into Braille in America and send it to South Africa for access to the blind, you break the law, because in America it's legal to make Braille editions without the author's permission, but it's not in South Africa.
So what we're saying is that we need a set of harmonized limitations and exceptions to copyright around the world -- for the assistance of people who are helping the disabled, providing education, or engaged in translation and archiving. Strict humanitarian objectives, you know? We're still fighting this one out, but more and more, WIPO is being forced to reject the American approach to IP in favor of a comprehensive agenda for development.
AS: So it sounds like the copyfight is going well, at the WIPO level?
CD: We have kicked stupendous quantities of ass at WIPO. The reason we've been able to do it is that they're flabby. They forces of darkness have never encountered the forces of light there, so they've gotten sloppy and openly dishonest. They're accustomed to strong arming developing world countries. They're unused to the power of citizen networks.
One of the truly subversive and amazing things the NGOs did is that we set up open WiFi networks that weren't connected to the Internet -- because there was no Internet access at the meetings when we started -- and then we would take exhaustive collaborative notes on what was said. It's very hard to take notes at these events. Diplomatic speech is very stylized, so you'll have a typical intervention which begins something like, "Mr. Chairman, allow me to congratulate you as I take the floor for the first time, on your reappointment to the chairmanship. I have every confidence that with your steady hand at the tiller, you'll guide us to a swift and full consensus on the issues at hand. The delegation from Lower Whatistan is pleased to take the floor." Und zo weiter. Eventually you get to the point, and after 20 minutes it boils down to, "No." Taking notes on that kind of speech is really grueling, because it's very hard to stay attentive and catch the one little phrase that has meaning.
So we'd have teams of three or four people using collaborative note-taking software, and one would be taking notes, one would be adding commentary and another would be following behind and correcting typos and formatting and the like. Meanwhile, we're all of us checking each other as we go -- filling in the blanks, noting discrepancies and so on -- and then publishing it twice a day at lunch and dinner.
Now, the delegations there were accustomed to the old WIPO regime, where the notes would be taken by the secretariat, sent out for approval by the delegates, sanitized -- all the bodies would be buried -- and then published six months later. And what happened once we started working together like this is that delegates would get calls on their lunch break about things they'd said that morning. Suddenly, they're immediately accountable for their words, which completely changed the character of the negotiations.
AS: So you knocked a big hole in the ceiling --
CD: And let some sunshine in. And once we had that level of coordination in place, it let us do some other things better. The way this works, see, is once the national delegations are done speaking, the NGOs are given the floor, and the speaking order is pretty arbitrary. The chair calls them in semi-random order, they speak, but there is no chance to rebut. Since we were networked together, though, when an industry lobbyist would stand up and say his piece, and we knew he was wrong, we could give the next NGO person to speak arguments to rebut with.
AS: So, basically, you guys are swarming at these meetings to counter the power and money that these enormous industry associations have.
CD: That's completely right. So many of the arguments that knowledge goods industries make for extending their reach are really naked self-interest and rhetorical tricks. Any one NGO might not have the expertise to counter them, but together, we're doing a better and better job of exposing them. And once they've been exposed, the arguments for extending the public domain are just obvious. So, we're winning.
Now, of course, they're trying to forum switch. They're trying to use standards bodies to mandate technologies and approaches. They're trying to set up separate regional bodies, and get national laws changed, and so on. What's happening is that the connection between copyright, patent and related rights, and development, human rights and humanitarian interests are being made by more and more disparate groups of people. As these various NGOs come together, we're putting them on the ropes, and they're fighting harder.
Gandhi said first they ignore you, then they laugh at you, then they fight you, then you win. They're not laughing anymore. We're at the fighting stage. But I think we can all see what's coming next.
(See also, Bruce Sterling's thoughts on WSIS)
This piece is a part of our month long retrospective leading up to our anniversary on Oct. 1. For the next four weeks, we'll celebrate five years of solutions-based, forward-thinking and innovative journalism by publishing the best of the Worldchanging archives.