"INTELLECTUAL PROPERTY" AND WHY GOVERNMENTS SHOULD NOT BREAK INTERNATIONAL LAW
  The Working Group on Enabling Environment
 
 
 


Geneva, 19 September 2003. Observers, which means civil society and private sector, got kicked out of the ad hoc working group on Enabling Environment after 5 minutes. The strongest fighters for closed shop working environment in this group were Egypt and Mexico in opposition to Europe, Canada and the USA. The Brazilian Chair first tried to let non-governmental experts stay, under the condition that they just observe and don't raise their voices, but in the end participation and inclusiveness were not on the winning side.

Two paragraphs discussed for the declaration of principles are especially interesting. One on intellectual property (40 C old draft, 33 new) and the other on a question hard to understand without insider knowledge (45 old draft, 37 new).

The proposed paragraph 45 reads:

"Governments must take steps with a view to the avoidance of and refrain from any unilateral measure not in accordance with international law and the Charter of the United Nations that impedes the full achievement of economic and social development by the population of the affected countries, that hinder the well-being of their population and that creates obstacles to the universal enjoyment of the benefits of the information society."

The question was raised why there should be a paragraph that in its essence points out that governments should not break international law - or, as Mexico put it - that governments should obtain from doing harm to others? This should be evident and not worth being mentioned in the declaration. The Cuban delegate explains: This is to avoid that governments hinder the free development of information society in other countries, for example the US embargo policy directing Hewlett Packard and others not to deliver software to Cuba. To know more about this, he recommended to google under "USA Cuba Hewlett Packard Software".

Finally there was no more opposition in the working group to let this paragraph enter the declaration, especially because a similar text already made its way through several UN declarations.

A big debate went on about how to refer to intellectual property. Civil society proposed the following sentence which is supported by many countries:

" Striking the necessary balance between the protection of intellectual property and public access to knowledge is essential to the information society."

Almost all delegates agreed that the issue of balance must be the focus of this paragraph and that the first sentence of the old draft version should be deleted which says:

"Intellectual property protection is essential to the Information Society."

During the debate the following text was developed:

"Striking a fair balance between protection of intellectual property on the one hand, and its use, and knowledge sharing, on the other, is essential to the Information Society. Facilitating meaningful participation by all in intellectual property protection and production through awareness, capacity building and development of legal framework is a fundamental part of an inclusive Information Society."

Just before closing the meeting the USA intervened by insisting on the reintroduction of the first sentence. So against the will of the majority and for the sake of consensus the paragraph now starts with an emphasis on the protection of intellectual property. But even then, the US delegation could not tell if this final proposal was going far enough. The ad hoc group for solving problems had to go back to the status of consultation: The US delegation has to talk with its capital.

Annette Mhlberg


 

 
 
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