Goodbye WIPO, Hello ACTA?


Something strange is happening at the WIPO: it's becoming more reasonable. Where once it was a bastion of intellectual monopoly intransigence, it is now showing signs of being, well, more *open* to new ideas.

It is true that there still remains much to be done at WIPO, as this blog post by the FSFE's Georg Greve makes clear:

As a UN agency, WIPO has a mandate to serve the greater good of humankind. Its role cannot be to maximise the benefits and privileges of a small group of society, or to avoid reconsidering privileges that have been granted in order to avoid upsetting the privileged group that finds those privileges highly profitable. The be-all and end-all of WIPO’s work is to which extent the granting of or exceptions from these exclusive rights serves society at large.

To achieve this, the WIPO secretariat depends upon the WIPO Member States for guidance and priority setting. All change must therefore come from the Member States, which currently seem split down a line defined by “20th century big industry” interests. It should come as a surprise that Group B, the group of developed countries, as well as the European Union are speaking out against inclusion of competency on Open Innovation Models, Free Software and Open Standards. At the same time many EU Member States individually and all of them jointly through the European Commission in its IDABC and Framework Programme activities have recognised the importance of Free Software and Open Standards for innovation and economic growth. The United States reaps the benefits of companies that are increasingly built upon Free Software and Open Standards, or at the very least see them as part of their strategic portfolio. Google, HP, IBM or Red Hat are well known, but others like Adobe, Intel or Oracle also made significant investments into these areas over the past years.

The disconnect between what Member States preach at WIPO and what they practice at home can to some extent be traced back to tactical considerations, but not be explained by tactics alone. There is an obvious disconnect within governmental departments, and a lack of engagement from industry, in particular, which has not briefed its government sufficiently on the benefits that local industry of developed countries can reap from a WIPO that can offer the full range of Free Software, Open Standards and Open Innovation Model competency alongside its traditional arsenal of exclusive rights.

What is really remarkable about this is that Greve can even be asking WIPO to consider free software and open standards: a few years ago, such a thing would have amounted to blasphemy.

Sadly, there is another sign that WIPO is becoming more accommodating to the ideas behind free software: the fact that there seems to be a move to come up with an alternative forum for promoting intellectual monopolies where it will not be so easy to participate. Here's Michael Geist's analysis:

In the short-term, WIPO members can expect progress on Development Agenda issues to stall as ACTA partners focus on completing their treaty. Given the scepticism surrounding the Development Agenda harboured by some ACTA countries, they may be less willing to promote the Agenda since their chief global policy priorities now occur outside of WIPO.

The longer-term implications are even more significant. While it seems odd to conclude an anti-counterfeiting treaty without the participation of the countries most often identified as the sources or targets of counterfeiting activities, the ACTA member countries will undoubtedly work quickly to establish the treaty as a "global standard." Non-member countries will face great pressure to adhere to the treaty or to implement its provisions within their domestic laws, particularly as part of bilateral or multilateral trade negotiations. In other words, there will be a concerted effort to transform a plurilateral agreement into a multilateral one, though only the original negotiating partners will have had input into the content of the treaty.

This looks all-too plausible. Hand-in-hand with the gains at WIPO, those pushing for more global sharing and collaboration of the kind that open source, open content and open access all promote, must recognise that WIPO is gradually being sidelined in favour of ACTA, which is strongly biased towards locking down ideas.

I think Geist's proposal as to how to deal with this threat is a good one:

Given these possibilities, I argue that the best course of action is for the developing world to demand a seat at the ACTA table. In doing so, it would in fact turn the plurilateral negotiations into a multilateral one and thereby ensure that the ACTA better reflects the interests and concerns of the global community. In particular:

With all the cards now on the table, the developing world faces a stark choice - remain on the ACTA sidelines and face a future filled with pressure to implement its provisions or demand a seat at the table now. Countries such as Mexico, Morocco, and the United Arab Emirates have all been part of current or previous ACTA negotiations, suggesting that there is little reason to exclude any country that wants in.

By bringing Brazil, Argentina, Chile, India, Egypt, South Africa, China, Russia, Indonesia, and a host of other countries into the mix, the ACTA would shift back toward a multilateral treaty and in the process ensure that the counterfeiting and piracy concerns of the global community are appropriately addressed. Moving the ACTA discussion into WIPO may not be happen, but it is still possible to imbue the negotiations with both transparency and broad participation from the developed and developing worlds.

If the developing nations manage to obtain access to the ACTA negotiations, there is hope that the good work now going on at WIPO in terms of making its treaties fairer for all can be carried over to the new global forum too. Indeed, it should make the kinds of changes that Greve is looking for easier to achieve, providing an additional reason to push for ACTA's enlargement.

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