Debriefing on

by Georg C. F. Greve <greve@fsfe.org>

European Caucus of Civil Society@WSIS, Chair
Patents, Copyrights, Trademarks (PCT) working group of Civil Society@WSIS, co-coordinator
Delegate of German Civil Society@WSIS coordination circle in German governmental delegation
FSF Europe, president

Introduction

The United Nations (UN) World Summit on the Information Society (WSIS) is the first such a global summit held in two parts. The first part was held in Geneva, Switzerland from December 10th-12th 2003 and adopted two documents, the Declaration of Principles and the Plan of Action. The second phase will take place in Tunis hosted by the Government of Tunisia, from 16th to 18th November 2005. So after the first phase has finished its work, an assessment of experiences and in particular the adopted documents seems warranted.

Procedural Overview

The structures of global governance are in a process of transformation. Governance, originally the function of governments alone, is increasingly taking place in a network in which governments are one party. The other two stakeholders usually identified in this regard are Civil Society and economy.

How and in which form that network will take shape is not clear today. Ideas range from an equal participation of all sides ("tripartite") over other forms of networking with different levels of influence ("multi-stakeholder") to a pure governmental network.

Among the novelties that the WSIS claims for itself is a uniquely inclusive multi-stakeholder, even tripartite approach. After Geneva, we have to concede that positive steps have been taken in this direction, but the current situation does not warrant the label of "tripartism."

As described in more detail in other places, Civil Society was in- or excluded from working groups on a seemingly random basis throughout the whole preparatory process. But the summit itself in Geneva climaxed in a way that will make it easy for Tunisia to shine as a symbol of Civil Society involvement and freedom of speech.

While logistics provided during the preparatory process were adequate, even good, this was not true for the summit itself. Some little shacks had been assembled as temporary housing for Civil Society within the exhibition, but no rooms were reserved for civil society use, most notably the civil society plenary assembly. Lack of logistics also included printers, photocopiers and -- not without irony given the topic of the summit -- adequate network access.

This however qualified as uniquely favorable treatment in comparison with those Civil Society participants who were trying to organise alternative events outside the Palexo premises and were removed by Geneva riot police from the rooms they had rented under adaptable legal excuses. A peaceful public protest on the last day was also stopped by the police before it began.

Unnoticed by most governments remained the fact that Civil Society was not even entitled to determine who would speak in its stead at the summit ceremonies.

Although the self-organising mechanisms of Civil Society provided a list of speakers that was balanced in terms of questions such as geography, gender, topic and prior involvement, that list was largely ignored by the WSIS secretariat.

So when Civil Society was informed Dec 1st, 2003 by the secretariat who was to speak in its name during the summit, it had to realise that most of the names on that list were unbeknownst to them and even included one mayor of a city, who was apparently to speak in the name of Civil Society.

Only for questions of timing and for not wanting to undermine the message of Civil Society while playing into the hands of such divisionary tactics, did Civil Society not react to this officially. It is unlikely Civil Society would remain silent about repetition of such a demonstration of disrespect for its active members and self-organised structures.

So the way towards Tunisia and the summit in Tunis will show whether we come closer to tripartism by allowing Civil Society to choose who is speaking in its name or -- alternatively -- whether Civil Society will get to decide upon two thirds of the governmental speakers.

European perspectives

Even though the European Union and its member states share some positions of Civil Society more than others, positions are different on some critical issues. Still, they were always among the first to protest against exclusion of Civil Society in the working groups and asking for more participation and involvement.

During the PrepComs III and IIIa, coordination meetings between the European Caucus of Civil Society and the European Union took place, exploring ways of implementing active participation of Civil Society not only in theory, but in reality.

By means of strengthening this process of building and exporing cooperation and participation, the European Union and its member states are about to cover new ground in the multi-stakeholder approach, building up experience that may also help on a larger level or within other processes.

Also, some countries -- for instance Germany and Switzerland -- have taken initiative on an individual level by including Civil Society representatives in their governmental delegations to the preparatory process and the summit itself.

Civil Society will certainly seek to build upon these positive experiences in the future, a message also personally delivered to the Irish delegation to the summit in Geneva, since Ireland will take over EU presidency in January 2004.

PCT perspectives

The multitude of interesting Civil Society side events was another positive part of the summit. Personally, I enjoyed very much the opportunity to speak at the APC event on Free Software for women in Africa. Just afterwards, also on wednesday, Dec 10th, the Patents, Copyrights, Trademarks (PCT) working group of Civil Society held its "Free Software, Free Society" event.

After Prof. Lawrence Lessig, who shared his visions for a Free Society, the speakers shed light on their experience on building Free Societies with the help of Free Software in South America and Africa. This experience was complimented by the experience of the Swiss NGO Ynternet.org.

Surprising special guests were Sergio Amadeu Da Silveira and Rogerio Santanna of the Brazilian government, who told the audience about their experience building the Free Software policy for Brazil. And as the final speaker, just after his appearence at the governmental high-level round table, Richard Stallman, founding father of the GNU Project, vividly expressed the freedoms of Free Software.

Assessment of the documents

Leaving aside all problems, frustrations and obstacles that Civil Society faced, some positive influence on the governmental documents Declaration of Principles and Plan of Action adopted during the World Summit on the Information Society (WSIS) seems evident. This is my first personal assessment for the areas that I have been following most closely.

Access to public domain of global knowledge

It is self-awareness, the possibility to reflect and our ability to develop and communicate abstract concepts that make humankind different from any other species on our planet. As a result of that process, including concepts, thoughts and experiences from all people alive and dead, we create the public domain of global knowledge. From this reservoir we learn, improve ourselves and build new knowledge.

This makes the question of access to the reservoir that is the public domain of global knowledge central to humankind in general, but information societies in particular.

Central paragraphs dealing with access to the public domain of global knowledge adopted on Dec 12th, 2003 are

Declaration of Principles 24: "The ability for all to access and contribute information, ideas and knowledge is essential in an inclusive Information Society."

Declaration of Principles 25: "The sharing and strengthening of global knowledge for development can be enhanced by removing barriers to equitable access to information for economic, social, political, health, cultural, educational, and scientific activities and by facilitating access to public domain information, including by universal design and the use of assistive technologies."

Declaration of Principles 26: "A rich public domain is an essential element for the growth of the Information Society, creating multiple benefits such as an educated public, new jobs, innovation, business opportunities, and the advancement of sciences. Information in the public domain should be easily accessible to support the Information Society, and protected from misappropriation. Public institutions such as libraries and archives, museums, cultural collections and other community-based access points should be strengthened so as to promote the preservation of documentary records and free and equitable access to information."

The weakness of these paragraphs is their emphasis on the economic and development related aspects, which somewhat neglect the social and political issues. Also they put most of their attention on the past, not the future extension of human knowledge. But despite these weaknesses, the thrust is good. Most particular, they come before the paragraph on Patents, Copyrights, Trademarks (PCTs) in the declaration, emphasising early on the significance of the public domain of global knowledge and of access to it.

Patents, Copyrights, Trademarks (PCT)
(a.k.a. Limited Intellectual Monopolies (LIM))

Patents, Copyright and Trademarks (PCTs) centrally regulate access to the public domain of global knowledge, the reservoir of all human knowledge, from which new knowledge is in turn created. As an effect of the current system, some Northern companies have become immensely rich while the vast majority of humankind is excluded from access to that knowledge.

The lines of conflict in this area ran between the Southern and Northern countries, most particular United States, European Union and Japan. While Northern countries wish to see international treaties and organisations -- most notably the "World Intellectual Property Organization" (WIPO) -- accepted as they stand, Southern countries question the balance of the current system and wish to see the system reevaluated.

The PCT working group of Civil Society, which is working on these issues, has been giving support to the Southern countries in this area and supported them through statements (in plenary and beyond), personal discussions and drafts for compromise text.

The paragraphs dealing with the issue as they have been adopted on December 12th are:

Declaration of Principles 42: "Intellectual Property protection is important to encourage innovation and creativity in the Information Society; similarly, the wide dissemination, diffusion, and sharing of knowledge is important to encourage innovation and creativity. Facilitating meaningful participation by all in intellectual property issues and knowledge sharing through full awareness and capacity building is a fundamental part of an inclusive Information Society."

Plan of Action C3, 10, d): "Governments, and other stakeholders, should establish sustainable multi- purpose community public access points, providing affordable or free-of- charge access for their citizens to the various communication resources, notably the Internet. These access points should, to the extent possible, have sufficient capacity to provide assistance to users, in libraries, educational institutions, public administrations, post offices or other public places, with special emphasis on rural and underserved areas, while respecting intellectual property rights (IPRs) and encouraging the use of information and sharing of knowledge."

While it can and should be criticised that the paragraphs are using the ideologically charged and misleading terminology of "intellectual property" and contain a good load of fuzzyness, it should be realised that they are a step forward, albeit a small one.

As they stand, they still neglect that all monopolisation of knowledge draws its sole justification from increasing the dissemination, diffusion and sharing of knowledge, as adequately stated in Article 1 of the United States constitution: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

But unlike other statements (and what the Northern countries were also trying to achieve in the scope of WSIS), it does not put forward the notion that ultimate monopolisation of knowledge should be the goal of humankind. Instead, it gives monopolisation, dissemination, diffusion and sharing of knowledge equal weight.

Also, it does not mention the international treaties in the area, therefore not reinforcing them. In particular, it does not mention WIPO, in essence leaving room for the interpretation that it is not the Information Society that should serve WIPO, but rather WIPO which should serve the Information Society.

This is of critical importance. Earlier in 2003, WIPO cancelled a conference on knowledge sharing because of heavy opposition by the United States. When asked why the United States had opposed the WIPO meeting, Lois Boland, director of international relations for the U.S. Patent and Trademark Office, told the Washington Post, "Open-source software runs counter to the mission of WIPO, which is to promote intellectual property rights." She added: "To hold a meeting, which has as its purpose to disclaim or waive such rights, seems to us to be contrary to the goals of WIPO."

In short: WIPO has in the past years understood its mission as seeking ultimate monopolisation of knowledge. Every aspect of society had to serve that goal. Thanks to WSIS, there is now room to reevaluate the role of WIPO into one of readjustment instead of single-minded expansion.

It is not enough to stop here, but a door has been opened that remained closed before.

Free Software

Software shapes the digital age and access to it determines who may participate in a digital world. That is why Free Software with its freedoms of use for any purpose, studying, modification and redistribution is an essential building block for an empowering, sustainable and inclusive information society.

The paragraphs adopted for this on December 12th were

Declaration of Principles 27: "Access to information and knowledge can be promoted by increasing awareness among all stakeholders of the possibilities offered by different software models, including proprietary, open-source and free software, in order to increase competition, access by users, diversity of choice, and to enable all users to develop solutions which best meet their requirements. Affordable access to software should be considered as an important component of a truly inclusive Information Society."

Plan of Action C3, 10, e): "Encourage research and promote awareness among all stakeholders of the possibilities offered by different software models, and the means of their creation, including proprietary, open-source and free software, in order to increase competition, freedom of choice and affordability, and to enable all stakeholders to evaluate which solution best meets their requirements."

One might have hoped that governments were already more advanced in their understanding of the digital society, but these paragraphs are going further than it may seem at first glance; especially given their development over time.

During the work on the documents, especially the United States tried to declassify Free Software by means of referring to it as the "open source software development model," pretending it was a foremost technical issue, which could later disappear from the documents entirely, as there is no need to talk about all the technical models in a political document. This was stopped around the Intersessional Meeting in Paris, when Civil Society managed to get Free Software into the official documents.

Although the official documents pose the risk of further spreading the notion of "open source" as "any software with (partially) visible source code," they do avoid the most severe misunderstanding by not confusing proprietary (non-Free) and commercial software, as both Free and proprietary software can be both commercial or non-commercial.

More importantly, instead of talking about software development models, the documents speak of "software models." For the first time, a formal United Nations level takes steps to acknowledge that the choice between proprietary and Free Software is not a mainly technical issue, but a political, economical and social choice of paradigm.

One of the most fundamental tasks of the Free Software Foundation has always been to build awareness, because ubiquitous understanding of the different software paradigms and their effects is the most effective way of establishing Free Software; someone who has understood the full consequences of that choice will not freely choose proprietary software.

So while encouraging research and promoting awareness may not seem like much, it is all that is needed for Free Software to be understood and prevail as the most favorable paradigm.

In essence: on Dec 12th, 2003, all governments represented in the United Nations have committed to encourage research and promotion of awareness for the different paradigms of software and their effects, something we can support entirely, even if we hoped that the governments had understood these issues better already.

Open Standards

Open standards are the equivalent of well documented and accessible languages in a digital world, allowing communication and cooperation.

Unfortunately, the paragraphs adopted for standardisation adopted on Dec 12th were insufficient:

Declaration of Principles 44: "Standardization is one of the essential building blocks of the Information Society. There should be particular emphasis on the development and adoption of international standards. The development and use of open, interoperable, non-discriminatory and demand-driven standards that take into account needs of users and consumers is a basic element for the development and greater diffusion of ICTs and more affordable access to them, particularly in developing countries. International standards aim to create an environment where consumers can access services worldwide regardless of underlying technology."

Plan of Action C6, 13, p):"Governments, in cooperation with other stakeholders, should promote the development and use of open, interoperable, non-discriminatory and demand- driven standards."

While "open" and "interoperable" are important adjectives and "demand-driven" is uncritical, it is not enough to ensure open standards. Especially "non-discriminatory" has acquired sad notoriety in the standardisation discussions by at times being used in ways to make Free Software implementations impossible.

As the PCT working group has repeatedly pointed out, no standard will ever qualify as a truly open standard unless it is freely implementable and publicly documented.

In essence, the paragraphs fall short of what they seek to accomplish.

Open Access

Science is the source of the technological development that empowers the Information Society, including the World Wide Web. In the best tradition of science, scientific authors donate their work to humankind and access to that information is crucial.

The paragraphs mention this explicitly in

Declaration of Principles 28: "We strive to promote universal access with equal opportunities for all to scientific knowledge and the creation and dissemination of scientific and technical information, including open access initiatives for scientific publishing."

Plan of Action C3, 10, i):"Encourage initiatives to facilitate access, including free and affordable access to open access journals and books, and open archives for scientific information."

While "encourage initatives" is not very binding, these paragraphs do mention in particular the significance of Open Access to scientific information, a part that had disappeared for a while in all documents throughout the process.

Since Francis Muguet, co-coordinator of the PCT working group and coordinator of Scientific Information (SI) working group, was most active in this part, I'm going to leave the full assessment of this up to him.

Summary

One can say that the governmental documents fall short of the essential benchmarks of Civil Society in all considered aspects. But one can also say that they have in most cases made progress and moved in the right direction.

A fair evaluation of both the process and the adopted documents might be that they have moved into the right direction, but that we cannot be satisfied yet and will have to keep working on all aspects. Given that Civil Society has networked itself better than ever before throughout the summit, my personal outlook is positive.

So my conclusion would be that we haven't arrived and will probably not do so in Tunis, but we've made progress and now are finding ourselves in a solid starting position for the years to come.