Harmonisation: Issues for a Small South Pacific Nation – Feb. 2006

Background

As Owen Morgan notes in his paper, when it comes to small South Pacific nations, they have little room to move in the harmonisation environment.  Furthermore, given the trend towards higher rather than lower international norms and standards, the risk is that countries like New Zealand are being driven inexorably down a path over which they have little control.

Clearly, New Zealand has good reason to belong to the wider IP community and to support harmonisation, at least in principle.  However, I think it is useful to examine the harmonisation process and to consider whether ultimately it is in New Zealand’s wider social, cultural and economic interests?  I propose to do so by reference to a couple of emerging issues.

Access to Information

A wide range of groups are now cooperating in an effort to find common ground and to ensure that the right of individuals to access knowledge is acknowledged and recognised in a formal United Nations treaty.  The issue has become more important in the information age.  One factor is that certain developed countries/groups such as the US and Europe has demanded enhanced IP protection.  Another is that the Internet has allowed increased access to information and thus knowledge.

Much of the debate has been around limitations and exceptions to patents, copyright and other IP laws. However, other, arguably more fundamental issues are now being addressed, including the abuse of rights, for example anti-competitive practises and ways to foster the knowledge economy, for example by encouraging the use of free and open source software (FOSS). Some argue that the open source movement, the promotion of open access research archives and public domain databases is incompatible with digital rights management, which is very much a feature of the modern copyright landscape.

The increasing use of technological protection measures (TPM’s) and their potential impact on access to information and knowledge is also very much in the spotlight. Opponents of TPM’s say that they have the potential to undermine countries’ rights to exercise the exceptions and limitations provided under copyright laws, but of equal concern that they may unduly restrict access to existing public domain materials and content.

One could argue that harmonisation of our laws where the bar is usually raised is thus not necessarily appropriate or necessary. Enlightened solutions exist.  One example is the Creative Commons approach which allows users to obtain and use audio, images, text, video, and other formats free of charge, provided adequate acknowledgement is provided, see http://creativecommons.org/find/.  The iTunes music on-line offering is another example of creative and commercially viable problem-solving.

Greater “control” is not necessarily the solution and we need to be careful that in an effort to be good international citizens we don’t end up with an uncomfortable fit or worse supporting causes that ultimately hurt our national interest.

Harmonisation and Development

Developing countries such as Argentina and Brazil are now becoming far more vocal in pursuing an active and vocal Development Agenda.  In doing so they contend that access to knowledge is not just a desirable end but a basic human right. They also argue that restrictions on access should be the exception, not the rule.

These views are encapsulated in the Geneva Declaration on the Future of the World Intellectual Property Organization (WIPO). The declaration was signed by academics, researchers, non-profit and business entities. WIPO is being increasingly criticised as exhibiting a bias towards IP rights holders and allowing the continuous strengthening of IP rights without a corresponding balancing of the needs of consumers. It has also been criticised for paying insufficient attention to “access to information” and development issues.  It has also been criticised for trying to adopt a “one-size-fits-all” approach to IP.

The aim of the Development Agenda is to refocus WIPO’s attention on the wider public interest rather than primarily on rights holders.  In November 2005, Chile made a proposal to the twelfth session of the Standing Committee on Copyright and Related Rights at WIPO.  It stated:

“Exceptions confirm the need to harmonize copyright with other values of the legal system, since they recognize that even when that right applies to a specific work, certain uses are exempt from requiring authorization or payment of a fee to the rights holder. Justification of those exceptions is established on the basis of legal principles of fundamental importance such as the protection of the fundamental rights of users, the promotion of free circulation of information and the dissemination of knowledge.”

“Comparison of the various national legislations has revealed a disparity in the scope of exceptions and limitations to copyright, particularly in the area of digital uses. Consequently, within a given category of exceptions, substantial differences may exist in the way those exceptions are handled, both in terms of depth and scope.”

Chile’s argument is that, by reaching a consensus on minimum exceptions and limitations which recognises the appropriate balance between rights holders and users would benefit the wider international community.  Interestingly, while the US has been a strong proponent of increased IP norms and rules, it also has a more expansive and arguably sophisticated notion of fair use than common-law countries like New Zealand.  Our Copyright Act, for example, has little express recognition of the need to balance rights with the need for access to content and information.  Furthermore, it is understood that there is no current proposal to review our fair use provisions to try and ameliorate some of these concerns.  Thus, if the South American proposals find favour, there is every reason for New Zealand to support these efforts, because they are likely to benefit the public, while at the same time providing no obvious detriment to our trading opportunities as a country.

The hope is that WIPO will be more cognisant of the differing needs of developing countries.  New Zealand of course is not a developing country but it is certainly a small country with its own needs.  South Pacific countries are of course both developing and small – putting them in an even more invidious position.  Perhaps there is a potential to harmonise “down” rather than up and that on this issue we need to follow the South American lead.

Internet Governance

In 2003 the U.N. held the World Summit on the Information Society (WSIS), the process being organised by the International Telecommunication Union.  A working group on Internet governance has now issued its report on governance of policy issues.  The report will be discussed at the next WSIS preparatory committee in September in Geneva.

Practically, critical issues such as the formulation of policies on spam, network security and Internet crime are under review.

The report acknowledges that IPR’s are important and that balance is required between rights holders and users and that differences exist on where that appropriate balance lies and how new Internet related issues are best dealt with. The report cites the example of situations where rights holders are concerned about the high number of infringements, such as piracy of online music or film, but recognises that users are also concerned about certain dominant players in the market who are effectively impeding access to digital content. The report also notes that there is an evident “lack of global standards” for consumer rights on the Internet, for example in relation to international online purchases.

In terms of practical difficulties ICANN has recently been in the hot seat over its approval of an .xxx suffix for adult content websites on the Internet. The question of course is whether a body of this nature should be able to make decisions which affect a large number of countries.  It could be argued that New Zealand is represented on ICANN and decisions like this need to be made on a global basis. Indeed, effectively this is about global regulation as opposed to harmonisation.

At present, the Internet Corporation for Assigned Names and Numbers (ICANN) is the key player in terms of Internet regulation.  However, the U.S. Commerce Department has contractual oversight of ICANN and effectively is able to control the agenda.   This has led to international pressure to decentralise power.  The report proposes that the present U.S. control be diluted and made more representative and international.

Importantly, the report contains a number of possible models for governance, all of which require increased government participation in the process and the creation of a new Global Internet Council.  No doubt this will be strongly opposed by both the US government and ICANN but it may be both desirable and necessary in the long run to have a more representative process that New Zealand can both participate in and benefit from.

These issues are critically important to not just the developed world, but equally to the developing world. The question of course is how to get consistency.  Harmonisation should benefit smaller countries like New Zealand and support for these types of initiatives would clearly be in our national interest.

Convention on Biological Diversity

The 1992 Convention on Biological Diversity (CBD), to which New Zealand is a party, addresses the conservation of biological diversity, the sustainable use of materials and the fair and equitable sharing of the benefits from the use of genetic resources – see <http://www.biodiv.org/default.shtml>

At a meeting in Spain this year, discussions took place as to the development of a global regime on access to genetic resources and benefit sharing and the protection and promotion of traditional knowledge. More specifically, it includes the requirement for disclosure of origin and prior informed consent in patent applications. This stems, in part from a call from the heads of states at the World Summit on Sustainable Development held in Johannesburg in 2002.

The Spanish conference adopted various proposals and recommended a new international regime for the use of genetic resources.  If adopted by signatories to the CBD it will enhance the rights of indigenous peoples to benefit from the use of genetic resources and traditional knowledge when used to develop products. Supporters of the proposals also point out that if adopted, it would increase certainty for companies utilising these materials. The next Conference of the parties will take place in Brazil in March.

Predictably, a number of developed countries oppose the proposals including the EU, Australia and Canada.  It is understood that New Zealand is also opposed.

In relation to access and benefit sharing and to have a “certificate of origin” in patent applications, I suggest that given the concerns expressed in New Zealand about the lack of recognition of traditional rights and the inability of the traditional IPR regime to deal with cultural/spiritual interests, there is no obvious reason why New Zealand should not take a lead in this forum and why a global solution would not be in our national interest.

Biodiversity issues also are under discussion at WIPO, under the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. The next phase of this process is in April in Geneva. Once again, harmonisation in this context is likely to be beneficial.

Conclusion

Accordingly, it can be seen that “one size fits all” harmonisation, particularly where rights are ratcheted up, may not be in New Zealand’s wider interests.  However, as I have suggested above, the international harmonisation environment is arguably changing in some respects.  It seems that there are certain initiatives that New Zealand should support to assist in facilitating an environment which is more conducive to our status as a very small, essentially nonaligned, trading nation.  Having said that, it is apparent that with treaties like TRIPS there is often little room to manoeuvre and likewise, if and when we get into detailed bilateral trade discussions with the US and China we may find that the options are even more limited.

I do however consider that harmonisation for harmonisation’s sake should be strenuously avoided and unless we have no other option we should not adopt any law changes unless they squarely address the important balance between exclusive/proprietary rights and access to information.

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