The Debate on Intellectual Property Rights
  Letting the Cat out of the Bag on IPRs
  Dublin/Geneva, 4 October 2003. The substantive issues raised by the WSIS process include a number on which progress may be considered a 'dead zone' i.e. powerful governments are ensuring that nothing will be done beyond confirming the existing status quo as exercised outside of the WSIS. Thus a number of 'inert' passages in the Declaration are intended as no more than markers that this topic must not be touched.

But one in particular goes further, in that it not only reaffirms the external status quo, but gives away the game as to where the powers that be would like to move. This is around who owns and controls the rights to use information, one would think a key area for the information society.

Here a perverse notion is pursued that what we need is the 'protection' of intellectual property by means of exclusive monopoly rights given to owners. The Draft Declaration states:

"Intellectual property protection is essential to encourage the innovation and creativity in the Information Society. However, 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. This balance is reflected by protection and flexibilities included in existing Intellectual Property agreements which should be maintained." (Paragraph 33, Version September 26th)

Expressed like this, the idea of intellectual property protection is nonsense, historically, legally and logically. 'Intellectual property rights', the collective term preferred by industry for copyright, patents, trademarks etc., are basically monopoly usage-privileges granted by society to their creators (later, their 'owners') for a given period, before such intellectual creations go into their natural habitat in the public domain. This is proposed as a means (among several possible means) to ensure that the creative process is rewarded and thereby encouraged to continue. Logically, to 'protect intellectual property' thus refers at least equally to ensuring that it finds its way into the public domain, as it does to protecting the monopoly usage-privileges temporarily granted.

Furthermore the 'fair balance' to be struck is thus rendered nonsensical: There is simply no balance to be struck between the 'protection of intellectual property'; and its 'use, and knowledge sharing'. The best way to 'protect' creations of the intellect is to allow them to be used - this constantly reproduces them. Only in exceptional circumstances and for very specific reasons (and there are some) should they be withheld for a period from the public domain.

In fact this language is logically consistent only if it is presupposed that the only right possible is the right of the party that is granted the temporary monopoly usage. And of course this is the intention (though not necessarily conscious) of those drafting this paragraph. They believe that only owners have rights over intellectual property, just as only owners have rights over the disposal of a physical object, or indeed of a piece of land.

It is this application of exclusive rights associated with physical ownership (that not everyone anyhow agrees with -- ask any indigenous peoples) to the rights associated with products of the intellect that is the basic error in this way of thinking. It ignores the several and fundamental differences between intellectual products and physical products, as well as the entire economic and legal history of copyright, patents and other forms of protection since their invention.

But do they care? Their main goal is to keep the IPR railroad moving, the WTO as the engine and WIPO aboard, trampling earlier agreements, human rights treaties, national laws and any other barriers they encounter into the dust. The IPR industries are simply trying to create facts on the ground, the fact that the only rights are those of IPRs owners. Paragraph 33 merely reveals this fact through the hand of the WSIS Declaration process which has already adopted the lingo, either naively or disingenuously. In this, they have done us a favour, but at what price?

Seán Ó Siochrú, CRIS Campaign.

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