Trevor Clarke, assistant director general for the Culture and Creative Industries Sector of the World Intellectual Property Organization (WIPO), said during a workshop on “Rethinking Copyright” today that the multi-stakeholder environment is “the best and and most appropriate” when it comes to the debate on copyright in the digital age. WIPO is preparing for such multi-stakeholder discussions, Clarke told Intellectual Property Watch.

Clarke said the WIPO director general and secretariat has added their voices to the call for a reexamination of the copyright system and have not shied away from the fact that some aspects of the law need to be revisited. Not only law, but also culture and infrastructure of the system, have to be considered, he underlined. Member state positions vary considerably on the issues, and it would make sense to include the private sector and also civil society into the talks, he said, adding, “We need that dialogue.”

Governments are looking for more effective frameworks to combat fraud and other crimes. Some commentators have suggested such frameworks could also legitimize censorship. However, Member States already have the right, as stated in Article 34 of the Constitution of ITU, to block any private telecommunications that appear "dangerous to the security of the State or contrary to its laws, to public order or to decency." The treaty regulations cannot override the Constitution.

Many authorities around the world already intervene in communications for various reasons – such as preventing the circulation of pornography or extremist propaganda. So a balance must be found between protecting people's privacy and their right to communicate; and between protecting individuals, institutions, and whole economies from criminal activities.

An important and influential factor is network financing, so the conference may consider strategies around sharing revenues more fairly, stimulating investment, mainstreaming green ICTs, and expanding access as widely as possible to meet booming demand.

1 - First, the was an overwhelming lack of support for action at the ITU by the participants. I’ve been to many international meetings over more than two decades. You can tell, through the often exaggerated politeness in which positions are inevitably couched, when a group is willing to continue to discuss an issue and when it is not. It was completely obvious long before the end of the day that there was insufficient interest in the room to take forward the discussion – at the ITU, at least.

2 - Secondly, the ITU had clearly decided in advance what was going to happen, and expected the participants to rubber-stamp their conclusions. This was obvious when an ITU official read out a pre-prepared speech at the end of the meeting, including the following:

“I believe that providing market players with clear, transparent, effective and up-to-date patent policies works for the benefit of the industry as a whole…As the Secretary-General stated in the opening, ITU has a determination to take a leading role in the development of effective RAND based policies in the ICT sector…”

Followed by this bombshell:

“I will therefore request the TSB Director’s Ad Hoc Group on Intellectual Property Rights, which will meet tomorrow, to begin work on a recommendation aimed at providing high level principles clarifying the meaning of reasonable, and the issue of injunctive relief, in the RAND context.”

In other words, ‘we’re going to do what we want and we expect you to go along with it.’

I recall only one of the 100 participants asking the ITU itself to do anything as an outcome of the meeting – though a few did suggest that standards organisations in general – of which the ITU is one of many – could usefully look at various technical issues (such as transparency of ownership of SEPs).

ISPs may require users to provide identifying information prior to accessing Internet content and services. The collection and preservation of identifying information associated with Internet data, and the disclosure of such information, subject to the appropriate safeguards, could significantly assist investigative and prosecutorial proceedings. In particular, requiring registration for the use of Wi-Fi networks or cybercafes could provide an important data source for criminal investigations. While some countries, such as Egypt, have implemented legislation requiring ISPs to identify users before allowing them Internet access, similar measures may be undertaken by ISPs on a voluntary basis.

The development of a universally agreed regulatory framework imposing consistent obligations on all ISPs regarding the type and duration of customer usage data to be retained would be of considerable benefit to law enforcement and intelligence agencies investigating terrorism cases.

The promotion of extremist rhetoric encouraging violent acts is also a common trend across the growing range of Internet-based platforms that host user-generated content. Content that might formerly have been distributed to a relatively limited audience, in person or via physical media such as compact discs (CDs) and digital video discs (DVDs), has increasingly migrated to the Internet. Such content may be distributed using a broad range of tools, such as dedicated websites, targeted virtual chat rooms and forums, online magazines, social networking platforms such as Twitter and Facebook, and popular video and file-sharing websites, such as YouTube and Rapidshare, respectively. The use of indexing services such as Internet search engines also makes it easier to identify and retrieve terrorism-related content.

Particularly in the age of popular social networking media, such as Facebook, Twitter, YouTube, Flickr and blogging platforms, individuals also publish, voluntarily or inadvertently, an unprecedented amount of sensitive information on the Internet. While the intent of those distributing the information may be to provide news or other updates to their audience for informational or social purposes, some of this information may be misappropriated and used for the benefit of criminal activity.

In order to provide effective criminal justice responses to threats presented by terrorists using the Internet, States require clear national policies and legislative frameworks. Broadly speaking, such policies and laws will focus on:

(a) Criminalization of unlawful acts carried out by terrorists over the Internet or related services;
(b) Provision of investigative powers for law enforcement agencies engaged in terrorism-related investigations;
(c) Regulation of Internet-related services (e.g. ISPs) and content control;
(d) Facilitation of international cooperation;
(e) Development of specialized judicial or evidential procedures;
(f) Maintenance of international human rights standards.

In the terrorism context, in China there are provisions criminalizing different forms of terrorist activities, including article 120 of the Criminal Law, which criminalizes activities related to organizing, leading and participating in terrorist organizations. This broad criminalization provision covers a wide range of terrorism-related activities, including those carried out over the Internet.

So why is this ITU security history relevant today? Because its Secretary-General's new draft of an unneeded and worthless treaty instrument called the International Telecommunication Regulations mentions the word "security" no less than 36 times. Although the term "security" is never defined, the draft leaves the impression that the ITU is competent to deal with the subject of network security.

The reality today is that almost all work relating to network security occurs in myriad other public-private global bodies where it is pursued on a significant scale among expert communities. It is that array of work in other venues that is used worldwide. What purports to occur in the ITU is basically irrelevant and involves a relative handful of people who appear at meetings or workshops in ITU-T, ITU-D, or the General Secretariat for the purposes of maintaining largely website-based fictions to appear responsive to some political mandate of its conferences or leadership. Although a few knowledgeable and dedicated individuals participate in its work, the ITU as an institution has not possessed in modern history, and today does not possess the competence to deal with the subject matter of network security; and treaty mandates will not alter that reality.

Any treaty-based reliance on the ITU's network security competency would be perilous for the global infrastructure and irresponsible for nation States to recognize. I should know — I was the designated leader of the ITU-T cybersecurity work for the past four years who had to deal with these realities.

The ITU itself, meanwhile, is stepping up the rhetoric in its campaign to defend the transfer of at least some Internet oversight from today’s multi-stakeholder process to the U.N. Dr. Toure, for example, says that he hopes the WCIT negotiations will address issues “of real import,” including Internet security.

But “security,” in ITU jargon, is a loaded term, relating more to perceived threats to national security than to the security of network communications.

In that regard, the ITU has become dangerously close to associating itself with the overtly repressive goals of Russia. Last year, at a meeting between Dr. Toure and Russian Prime Minister Vladimir Putin, Putin was characteristically blunt about his country’s aspirations for the ITU. Putin told Dr. Toure that he was keen on “establishing international control over the Internet using the monitoring and supervisory capability of the International Telecommunications Union.”

The ITU’s clumsy response has exposed just how uncomfortable the agency is in dealing directly with Internet users worldwide—a sure sign of the ITU’s inability to regulate a technology it doesn’t even know how to use.   The agency’s flurry of releases read like weird dispatches from Dickensian England, with lots of extra “distinguished guests,” “plenipotentiaries” “directorates,” and references to “civil society” thrown in for good measure.

In an unprecedented number of interviews and public speeches, ITU senior officials have tried to dismiss their critics as “scaremongers” and “paranoids.”  Dr. Toure has even called out FCC Commissioner Robert McDowell, who first brought the threat of a free-for-all WCIT to the attention of Congress.

The agency also keeps the media at arm’s length or better.  Any journalist who wishes to cover the WCIT conference, for example, must first satisfy the ITU that they are “a professional journalist or analyst with a proven track record of reporting for bona fide media.”  Online journalists must be “registered to a media organization with a verifiable non-web address and telephone number.”  Bloggers can just stay home.

This reference to data retention well illustrates the problems with involving the ITU in issues related to cybercrime and cybersecurity. Not only do national laws on data retention vary greatly, but there is ongoing controversy about whether governments should impose data retention mandates at all. In addition, where data retention is required, there are many different views on the legal standards under which governments should be able to gain access to retained data – whether access should require a court order, for example. Such questions are crucial to adopting a data retention law, but are far outside the expertise of the ITU. Other concerns arise from the fact that data retained by a service provider may, absent specific legal and procedural safeguards, be subject to access by the government to investigate any crime, may be accessed by intelligence agencies, and may be shared with other governments to assist their investigations. In addition, the more data that companies are required to retain, and the longer the retention period, the greater the risk that personal information could be breached, leaked, or otherwise abused.

CAN MEMBERS OF THE PUBLIC ATTEND WCIT-12?

At the opening of WCIT-12 the Secretary-General of ITU will propose that the public be allowed to be present at the conference venue, in line with the practical arrangements adopted at similar ITU conferences. A formal decision on admitting the public will be taken at a meeting of the heads of delegations on the first day of the conference. This would permit the public to attend plenary sessions and certain committee meetings. Webcasts of plenary sessions are also planned.

• Subject cyber security and data privacy to international control;
• Allow foreign phone companies to charge fees for "international" Internet traffic, perhaps even on a "per-click" basis for certain Web destinations, with the goal of generating revenue for state-owned phone companies and government treasuries;
• Impose unprecedented economic regulations such as mandates for rates, terms and conditions for currently unregulated traffic-swapping agreements known as "peering."
• Establish for the first time ITU dominion over important functions of multi-stakeholder Internet governance entities such as the Internet Corporation for Assigned Names and Numbers, the nonprofit entity that coordinates the .com and .org Web addresses of the world;
• Subsume under intergovernmental control many functions of the Internet Engineering Task Force, the Internet Society and other multi-stakeholder groups that establish the engineering and technical standards that allow the Internet to work;
• Regulate international mobile roaming rates and practices.

As part of this conversation, we should underscore the tremendous benefits that the Internet has yielded for the developing world through the multi-stakeholder model.

Upending this model with a new regulatory treaty is likely to partition the Internet as some countries would inevitably choose to opt out. A balkanized Internet would be devastating to global free trade and national sovereignty. It would impair Internet growth most severely in the developing world, but also globally as technologists are forced to seek bureaucratic permission to innovate and invest. This would also undermine the proliferation of new cross-border technologies, such as cloud computing.

A top-down, centralized, international regulatory overlay is antithetical to the architecture of the Net, which is a global network of networks without borders. No government, let alone an intergovernmental body, can make engineering and economic decisions in lightning-fast Internet time. Productivity, rising living standards and the spread of freedom everywhere, but especially in the developing world, would grind to a halt as engineering and business decisions become politically paralyzed within a global regulatory body.

Any attempts to expand intergovernmental powers over the Internet—no matter how incremental or seemingly innocuous—should be turned back. Modernization and reform can be constructive, but not if the end result is a new global bureaucracy that departs from the multi-stakeholder model. Enlightened nations should draw a line in the sand against new regulations while welcoming reform that could include a nonregulatory role for the ITU.

The Indian government has formally proposed a government takeover of the Internet at the United Nations General Assembly in New York.

In a statement sent yesterday, India argued for the creation of a new body to be called the United Nations Committee for Internet-Related Policies (CIRP) which would develop Internet policies, oversee all Internet standards bodies and policy organizations, negotiate Internet-related treaties, and act as an arbitrator in Internet-related disputes.

The CIRP would exist under the United Nations, comprise of 50 Member States, be funded by the United Nations, run by staff from the UN’s Conference on Trade and Development (UNCTAD) arm, and report directly to the UN General Assembly.

Despite the proposal representing an extraordinary shift from the status quo to a single, purely government-run Internet body, India’s spokesman, Mr Dushyant Singh, argued that the proposal “should not be viewed as an attempt by governments to ‘take over’ or ‘regulate and circumscribe’ the Internet.”

In a nod to the multi-stakeholder model of decision-making that currently defines much of the Internet’s processes - and where all actors from business to academia to the technical community and governments are given equal say in decisions - the Indian proposal foresees the creation of four “Advisory Groups” that would represent civil society, the private sector, inter-governmental and international organizations, and the technical and academic community.

Those groups would provide recommendations to the CIRP. The CIRP would consider them, along input from the existing Internet Governance Forum, at an annual two-week conference at the UN building in Geneva and then present its own subsequent recommendations to the UN General Assembly.

A very similar proposal to that proposed this week was published by a joint group of the Indian, South African and Brazilian governments just prior to the Internet Governance Forum (IGF) in Nairobi last month and caused some controversy when it clearly implied that the proposal came with the support of civil society and the technical community.

Its recommendations, which also foresaw all Internet organizations being pulled under the control of a new government-run United Nations body, were disowned by civil society and they then received a definitive thumbs-down from the broader Internet community during the IGF open session on “critical Internet resources”, during which the Indian government representative stated that the paper had only been put out for discussion.

Despite the very negative response to that paper, however, the Indian government pressed ahead with discussions on the exact same lines at an IBSA Summit on 18 October in Durban, South Africa. And the result of that meeting was the proposal put to the UN General Assembly yesterday.

If a UN Committee for Internet-Related Policies, adequately linked to multi-stakeholder public sphere, were able to set global norms for the Internet in an adequately open and inclusive manner, then neither the US government, corrupted by big-pocketed IP rights-holders, nor repressive governments such as China, would be able to regulate the Internet in isolation from these norms.

Now, some might say that governments have no role in setting policy norms for the Internet, even if it is in consultation with other stakeholders. In the long run, I agree: we should be able to develop a multi-stakeholder transnational governance mechanism that is not grounded in the nation-state. But we are far from that position now, and it is those most opposed to Internet governance reform who make this point most often, when opposing a norm-setting role for the IGF. They insist that the discussions at the IGF should merely inform norm-setting processes that take place at higher levels.

But where are those norms to be set, where no authoritative transnational institution already exists to set them? Unless an expansion of the IGF's mandate can be considered, then clearly some new mechanism is required. This was recognised at WSIS [World Summit on the Information Society] in 2005 when an "enhanced cooperation" mechanism was mandated, and it remains equally true today. The Indian proposal for a UN Committee for Internet-Related Policies is the first serious attempt by any government to propose such a mechanism, and for this it is to be welcomed. Civil society ought not to fall into the trap of rejecting this proposal out of hand, if the alternative is to leave existing more narrow Internet governance hegemonies unchallenged.

some of the most important areas of public policy online are not governed by multi-stakeholder networks at all, not even by any existing intergovernmental organisations, but by individual national governments and big businesses. The most blind to this seem to be representatives of technical community, who for practical purposes maintain a very narrow pre-WGIG [Working Group on Internet Governance] definition of Internet governance that excludes vital issues such as intellectual property enforcement, privacy and data protection, online filtering and censorship and network neutrality.

While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur is deeply concerned by discussions regarding a centralized “on/off” control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes- law” in France and the Digital Economy Act 2010 of the United Kingdom.

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.

Now long before I got here the United States has been stationing its experts around the world to help more countries be better able to apply for patents. We have our patent officers in our Embassy in Egypt as well as in other places around the world, and that has worked because we have seen an increase in the number of patent applications from a broader range of countries. That is good. However, the group in Geneva seems hell-bent on shortening these patents and creating more exceptions.

My point is if you create too many exceptions to a rule, you may as well not have the rule.

While we certainly want access to books for a lot of people around the world, I think denying the authors of these books their rights, or abrogating the rights of these authors, would mean that eventually we will never have a book.

I think the people at WIPO are aware that without successful conclusions to these longstanding negotiations the people who apply for patent protection may find ways around WIPO. That is obviously the sort of existential threat to WIPO. I think the Director General understands that very clearly. But we're also in an era where you have emerging economies that want to have their voices heard. It is important to note that the Development Agenda Group is led by Egypt, Brazil, India and Indonesia -- countries that themselves have patents to protect but also have thriving businesses in generic drugs.

...

But if we get to a system where the protections of patents are abrogated in the name of development then we certainly will kill that organization.