Well, I Do Declare: Washington and Open Government Declarations

There seems to be something in the air (maybe it's the crazy weather): everyone is making “declarations”. First up, The Washington Declaration: The Global Congress on Intellectual Property and the Public Interest, August 25-27,...

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There seems to be something in the air (maybe it's the crazy weather): everyone is making "declarations".

First up, The Washington Declaration:

The Global Congress on Intellectual Property and the Public Interest, August 25-27, 2011, convened over 180 experts from 32 countries and six continents to help re-articulate the public interest dimension in intellectual property law and policy. This document records the conclusions from the Congress and is now open for endorsements and comments.

Now, as that hints, this is unusual because it approaches the subject with the aim of "re-articulating" the public interest dimension. Here's the background:

The last 25 years have seen an unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders. This expansion has been driven by governments in the developed world and by international organizations that have adopted the maximization of intellectual property control as a fundamental policy tenet. Increasingly, this vision has been exported to the rest of the world.

Over the same period, broad coalitions of civil society groups and developing country governments have emerged to promote more balanced approaches to intellectual property protection. These coalitions have supported new initiatives to promote innovation and creativity, taking advantage of the opportunities offered by new technologies. So far, however, neither the substantial risks of intellectual property maximalism, nor the benefits of more open approaches, are adequately understood by most policy makers or citizens. This must change if the notion of a public interest distinct from the dominant private interest is to be maintained.

The next decade is likely to be determinative. A quarter century of adverse changes in the international intellectual property system are on the cusp of becoming effectively irreversible, at least in the lives of present generations. Intellectual property can promote innovation, creativity and cultural development. But an old proverb teaches that "it is possible to have too much of a good thing," and that adage certainly applies here. The burden falls on public interest advocates to make a coordinated, evidence-based case for a critical reexamination of intellectual property maximalism at every level of government, and in every appropriate institutional setting, as well as to pursue alternatives that may blunt the force of intellectual property expansionism.

Clearly, that strikes a chord with much of what I have been writing on the subject over the years. The heart of the document is the following:

Valuing Openness and the Public Domain

Copyrights and patents are time-limited rights because the public interest requires that creative and innovative works ultimately become free for all to use as part of the public domain. The public domain serves as a foundation of cultural heritage and scientific knowledge from which future creators and inventors necessarily draw. A group of related civil society movements has emerged to promote the benefits of the public domain or openness, including through open licensing, open access, open educational resources, open data, open standards, open government, and related open information policies. To further these efforts, and those like them, we should:

Advocate for a permanent moratorium on further extensions of copyright, related rights andpatent terms.

Call for government procurement and education policies to place Free/Libre/Open Source Software on an equal competitive footing with proprietary software.

Support private initiatives to increase access through licenses or terms of use that enable widespread public use or through alternative publication and distribution models.

Support the values of interoperability and long-term preservation by requiring use of open standards for information produced by or for public entities.

Support the use of open educational resources through government procurement policies for textbooks and other educational materials, and through incentives to generate open resources at all levels of education.

Insist on policies that grant the public free and unrestricted access to all government funded endeavors, such as output of publicly funded research, government-collected data, cultural works supported by public funds and publicly funded collections and archives.

Again, this picks up on most of the major themes that have run through posts on this blog.

One section clearly refers to software patents and the use of the patent system to threaten other companies:

In a period of rapid technological change, the patent system has serious problems. In some industries, very low patenting standards and a proliferation of patents of questionable validity have fueled a culture of competition by intimidation and litigation, rather than innovation.

There's also a nice nod to the Hargreaves' report's emphasis on evidence-based policy making:

Most would agree that research used in policy making should meet basic standards of transparency. Yet the intellectual property policy debates of the past two decades have not done so. Industry-funded research dominates the intellectual property policy conversation, yet virtually none of the major industry-sponsored studies document their methods, assumptions, or underlying data in any detail. The institutions responsible for intellectual property policy making have failed to exert enough pressure for either transparency or quality—and in many cases have relied on discredited statistics in their own statements. The weakness of evidence in this area is now widely recognized and calls into question the legitimacy of much of the expansionist intellectual property policy of the past quarter century.

As I hope you can tell from these extracts, the declaration is really spot-on in so many areas; I urge you to read it and sign it – at the time of writing, there are still fewer than 1000 signatories. Sadly, though, I don't think it will have much effect; for all its moderation, it will be seen as far too "radical" given the current status quo of insatiable intellectual monopoly maximalism.

If governments are unlikely to pay any attention to the Washington Declaration, they ought to take the Open Government Declaration more seriously, since they – or least seven of them (Brazil, Indonesia, Mexico, Norway, Philippines, South Africa, United Kingdom, United States) - wrote and signed the thing.

Here are some of the more noteworthy passages:

As members of the Open Government Partnership, committed to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, and other applicable international instruments related to human rights and good governance:

We acknowledge that people all around the world are demanding more openness in government. They are calling for greater civic participation in public affairs, and seeking ways to make their governments more transparent, responsive, accountable, and effective.

We recognize that countries are at different stages in their efforts to promote openness in government, and that each of us pursues an approach consistent with our national priorities and circumstances and the aspirations of our citizens.

We accept responsibility for seizing this moment to strengthen our commitments to promote transparency, fight corruption, empower citizens, and harness the power of new technologies to make government more effective and accountable.

We uphold the value of openness in our engagement with citizens to improve services, manage public resources, promote innovation, and create safer communities. We embrace principles of transparency and open government with a view toward achieving greater prosperity, well-being, and human dignity in our own countries and in an increasingly interconnected world.

And:

Governments collect and hold information on behalf of people, and citizens have a right to seek information about governmental activities. We commit to promoting increased access to information and disclosure about governmental activities at every level of government. We commit to increasing our efforts to systematically collect and publish data on government spending and performance for essential public services and activities. We commit to pro-actively provide high-value information, including raw data, in a timely manner, in formats that the public can easily locate, understand and use, and in formats that facilitate reuse. We commit to providing access to effective remedies when information or the corresponding records are improperly withheld, including through effective oversight of the recourse process. We recognize the importance of open standards to promote civil society access to public data, as well as to facilitate the interoperability of government information systems. We commit to seeking feedback from the public to identify the information of greatest value to them, and pledge to take such feedback into account to the maximum extent possible.

Note the interesting reference to "open standards" there – although quite what that might mean is left undefined (and the devil is in the details, as readers of this blog will know....) In fact there's a whole section devoted to the role of technology in promoting openness:

New technologies offer opportunities for information sharing, public participation, and collaboration. We intend to harness these technologies to make more information public in ways that enable people to both understand what their governments do and to influence decisions. We commit to developing accessible and secure online spaces as platforms for delivering services, engaging the public, and sharing information and ideas. We recognize that equitable and affordable access to technology is a challenge, and commit to seeking increased online and mobile connectivity, while also identifying and promoting the use of alternative mechanisms for civic engagement. We commit to engaging civil society and the business community to identify effective practices and innovative approaches for leveraging new technologies to empower people and promote transparency in government. We also recognize that increasing access to technology entails supporting the ability of governments and citizens to use it. We commit to supporting and developing the use of technological innovations by government employees and citizens alike. We also understand that technology is a complement, not a substitute, for clear, useable, and useful information.

All of which sounds jolly laudable. And yet the whole thing leaves me sceptical, to say the least. It's all very well to "pledge to lead by example and contribute to advancing open government in other countries by sharing best practices", but against a background of deep and unapologetic secrecy around opaque treaties like ACTA and TPP, and at a time when the Obama administration, for example, is rejecting even more Freedom of Information requests than his predecessor, this is pure hypocrisy.

What we need is not feel-good but fatuous orotundities on openness and transparency, but real-world actions that make those happen. The signing of ACTA this weekend is a painful reminder that Western governments are refusing even minimal transparency and openness in some areas just as fast as they are appearing to roll it out in others.

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