This is the third post of a series of four. All of them will be posted during this week. The original posts were made in Brazilian Portuguese, between 26-30 June 2006, during the second session of the Provisional Committee on the Development Agenda (PCDA), of the World Intellectual Property Organization (WIPO). The author was in Geneva on behalf of Fundac�o Get�lio Vargas (FGV) School of Law in Rio de Janeiro, Brazil. The translation into English was only possible due to the kind assistance of Andr�s Vivas, a US-Argentinian former Harvard University graduate student, to whom the author is very thankful.

Originally posted on 29 June 2006.

I return in real time, monitoring WIPO as part of the Free Culture (Cultura Livre, in its original Brazilian Portuguese) project of the Center for Technology and Society at the Funda��o Get�lio Vargas School of Law in Rio de Janeiro.

Today, the fourth day of the second session of the Provisional Committee to discuss the Development Agenda (PCDA) for the World Intellectual Property Organization - WIPO, an agency of the United Nations that specializes in intellectual property, discussions heated up quite a bit.

After some informal meetings among various groups, the formal meeting began at around 11:00 a.m..

The meeting begins, and the silence of the previous days reveals itself devastating: the meeting Chair announces that the WIPO Secretariat has prepared a draft to be presented to the 2006 WIPO General Assembly, which will take place in September/October 2006, with recommendations of all discussions from the PCDAs.

Worth mentioning: the document was written without the participation or consent of any member of the Groups of Friends of Development, as well as several other delegations.

Another important point: some countries began early in the week to enumerate the items in the document PCDA/1/6/prov.2 with which they agreed upon, and those with which they did not agreed upon at the time.

This was a clear attempt to slowly and subtlety exclude various items from the Agenda. Items for which there was no general consensus could be excluded, and this is just what the Groups of Friends of Development was trying to avoid: a scenario in which items were organized into groups and, slowly, excluded, one by one. It would represent a near complete emptying of the WIPO Development Agenda.

Conclusion: while the meeting Chair announced that a draft of the proposal written by the WIPO Secretariat was ready - without the participation of various delegations - the cited document was handed out to everyone present in the conference room. The president then announced that the meeting would continue informally.

Brazil requests the floor, but the Chair does not see the raised plate. The Brazilian delegate then strikes the plate on the table, making a considerable noise and drawing the attention of those present. The Brazilian delegation calls for a “point of order”, meaning that everything should be halted in order for the delegation to be heard.

Brazil, followed and supported emphatically by Argentina, South Africa, Bolivia and Iran, stated that it had not participated in the elaboration of the draft of the document that contains recommendations for WIPO’s year-end General Assembly, and for that reason would not accept such a document. Brazil also expressed that it would not accept that the meeting continue informally.

Brazil was emphatic, demanding greater transparency, inclusion, impartiality, and balance.

Countries like Austria, representing the European Union and Group B, comprised of developed countries, requested that the document be accepted and that the meeting continue.

With the insistence of Brazil and others, the meeting is suspended at that moment to allow for different regional groups (Asia, Africa, Group B, the EU, etc.) to meet separately to discuss the matter. I will be returning shortly with more updates and news from the conference. Please don’t hesitate to include your comments on what’s taking place.

This is the last post of a series of four. All of them will be posted during this week. The original posts were made in Brazilian Portuguese, between 26-30 June 2006, during the second session of the Provisional Committee on the Development Agenda (PCDA), of the World Intellectual Property Organization (WIPO). The author was in Geneva on behalf of Fundac�o Get�lio Vargas (FGV) School of Law in Rio de Janeiro, Brazil. The translation into English was only possible due to the kind assistance of Andr�s Vivas, a US-Argentinian former Harvard University graduate student, to whom the author is very thankful.

Originally posted on 30 June 2006.

Today marked the final day of the second session of the Provisional Committee on the Development Agenda (PCDA) for the World Intellectual Property Organization - WIPO, agency of the United Nations that specializes in intellectual property.

Nothing decided, and the things remained tense.

Everything will remain to be decided in the WIPO General Aessembly, which occurs annually, this year from September 25th until October 3rd.

Yesterday, after various meetings between the regional groups and between some of the delegations, nothing was resolved, as consensus could not be reached.

It is interesting to note that the representative for the Austrian delegation had said before everyone in the formal meeting held in conference room A that God had not given him enough fantasy to understand the reason why Brazil disagreed with the draft proposal prepared by the meeting Chair. Definitely, an attitude that should not be taken by a diplomat.

At nearly 7 p.m., an hour past the meeting’s regular end time, it was announced in the main meeting room, nearly empty at this point, that the meeting would continue today.

This morning, on the fifth and final day of meetings, the climate remained tense. Once again, everything took place informally in the hallways and in conference room B.

A representative from one of the public interest NGOs prepared a chart that contained three columns. The first column held items from the proposals made by the U.S., the second held items from the draft proposals of the meeting Chair, and the third held items from proposals made by the European Union. The strong influence of the United States was made clear in the proposal made by the meeting Chair. The document containing items from the meeting Chair’s proposal is not yet on WIPO’s webpage, but it should be made available shortly here. [This has been written 40 days ago; by now the document is still not available, I mean, it is available, but in the name of the Kyrgyz Republic, under doc.PCDA/2/3 as stated in the last 3 paragraphs bellow.]

And that is exactly why Brazil, Argentina and all the other 13 members of the Group of Friends of Development, supported by India and Chile, do not agree with such a proposal. It lacks balance, transparency and participation.

Today, already in the afternoon session, when the formal session was finally resumed, from the beginning there was a general silence. The climate was tense.

Slowly the countries were reiterating their positions.

The U.S., Japan, Austria (on behalf of the European Union), Canada, Australia, China, Russia, and the Kyrgyz Republic were the countries that enphatically supported the draf made by the meeting Chair.

Literally in the meeting’s last minute, the meeting Chair received a new document, presented by the Kyrgyz Republic, a former state of the extinct Soviet Union. Immediately, the only intervention was from the Argentine delegation, which inquired if this new document was in fact exactly the same as the draft previously prepared by the Chair. The response was affirmative. It was a card up the sleeve. The Chair’s proposal now enters as a proposal from one of the member countries, without having the risk of being left out of discussions that will occur at the 2006 WIPO General Assembly.

Therefore, according to the suggestion from the Group of Friends of Development, a report simply on the facts of the meetings will be made containing everything discussed throughout the two PCDAs, along with all documentation proposed up until that date in the form of an annex exceeding 100 pages.

Result: everything will be discussed at the 2006 WIPO General Assembly, and there will be bargain once other crucial matters are also discussed at the General Assembly, like the SPLT (treaty on patents).

The private sector has played and continues to play a decisive role in the shaping of policy-making concerning knowledge-based goods. The result is an unequal battle between access to knowledge and enclosure favouring the latter over the former. Such an unbalanced scenario chiefly affects the South, but has implications for the public everywhere. The Development Agenda being proposed for adoption by the World Intellectual Property Organization (WIPO), and which has been advocated for and designed by developing countries governments in collaboration with a coalition of governments, academics, civil society and public interest NGOs from both North and South, is the latest attempt to bring a balance to this scenario. However, the Development Agenda is encountering opposition and despite the unique nature of the coalition backing it, the outcome is uncertain.

Please click here for the downloadable version of a Master in Laws (LL.M.) dissertation undertaken at the University of London, under supervision of Dr. Graham Dutfield, on the Development Agenda for WIPO, written by the coordinator of this A2K project.

It is taking place (07-08 September 2006) in Alexandria, Egypt, the first A2K (access to knowledge) meeting in the African continent.

The Library of Alexandria is holding a comprehensive seminar “to raise awareness about global developments in the areas of access to knowledge, open collaborative models and creative commons in the Arab world. It also aims to launch a process of networking and partnerships between relevant Arab stakeholders with an interest in these issues (such as government officials, scientists, academics, authors, artists, consumers) and a number of these global initiatives. The seminar also seeks to develop a regional research agenda in the area of access to knowledge that may contribute positively to development efforts in the region.”

Amongst the participants, there is professor Ronaldo Lemos, from Fundação Getúlio Vargas’ (FGV-Rio) School of Law in Rio de Janeiro, Centre for Technology and Society (CTS). Prof. Lemos also represents the Creative Commons in Brazil.

Some other speakers are: Sisule F. Musungu, of the South Centre; Counsellor Guilherme Patriota, of the Brazilian Permanent Mission in Geneva; James Love, of the Consumers Project on Technology (CPTech); Professor Uma Suthersanen, of the Centre for Commercial Law Studies, Queen Mary, University of London; John Wilbanks, of Science Commons; Philippe Aigrain, of the Society for Public Information Spaces; Teresa Hackett, of the Electronic Information for Libraries (eIFL.net); Sohair Wastawy, Chief Librarian of the Bibliotheca Alexandrina; Luis Villaroel, of the Chilean Ministry of Culture; Ricardo Melendez-Ortiz, of the International Centre for Trade and Sustainable Development -ICTSD; Tim Hubbard, Head of Human Genome Analysis, The Sanger Centre Wellcome Trust, among many others.

For more information, click here.

Besides the informal debate amongst civil society groups, it is also being discussed within the Brazilian Federal Senate ways of balancing copyright and access to knowledge.

The law Project proposed last May by Senator Valdir Raupp to the Comission of Constitution, Justice and Citizenship intends to amend the Brazilian Copyright Law, aiming at the regulation of an usual procedure amongst readers and students: the reproduction of book excerpts for private use.

The Project proposes amending the Law by allowing the reproduction of 25% of a literary work, provided the copy is made for private use and is not for profit. Currently, Section II of Article 46 of the Brazilian Copyright Law allows "the one-time reproduction of small excepts, for the copyist’s private use, provided it is made by the copyist and without the intention to profit".

But what exactly are "small passages"? One of the law Project’s target is to suppress the subjectivity of this expression, conciliating the parties involved on the issue: the copyists, most of them being students and researchers, and the copyright owners and collecting groups, such as ABDR (Brazilian Association of Reprography Rights).

According to the ABDR´s guide, "(...) small passage is a fragment of the work that does not consist on its substance. A small passage does not refer to the extention of the reproduction, but rather to the substance (in quality) reproduced. Thus, any intention of associating a small passage to 10% or 15% of the totality of a whole work is inappropriate. It is possible that those 10% or 15% of the reproduction contains a substantial part of the work". Contrary understanding is raised by University of Sao Paulo (USP), Getulio Vargas Foundation (FGV) and Pontifical Catholic University (PUC-SP), high level higher education institutions in Brazil, that issued a Resolution, according to which "the reproduction of ’small passages’ as large as entire chapters of books are allowed, so long as the request is made on an individual basis for the solicitor’s own personal use with no attempt to profit from the reproduction".

Conflicts generated by distinct interpretations of the Law have been taking place mostly in the academic fora. Students argue that purchasing all the bibliography proposed by their lecturers is impossible, due to high prices and quantity of books needed for a solid learning. As stated by a survey made by FGV´s Business students , if they purchase all the suggested books, they would have to spend, only for the first semester of the course, about US$ 870 (circa 6 Brazilian minimum wages), which is a highly unaffordable amount for students — even for FGV students, who are known for being from the upper social class.

In the Project´s justification, Senator Valdir Raupp agues that its aim is "on the one hand, to guarantee the essence of the Copyright Law, limiting what can be copied; and on the other hand, it intends to assure the right of access to information and knowledge for the students".

Historically informing, we must highlight that the polemic expression "small passages", existing in current Brazilian Copyright Law (no. 9.610/98), did not exist on the previous Act (Law no. 5.988/73). The 1973 law, which was in force for 25 years, until 1998, foresaw in Section II of its Article 49 that it did not constituted an offense to copyrights "the one-time reproduction of any work, provided it was made without the intent to profit" — put in other words, the not-for-profit one-time copying of a whole work was allowed. Therefore, the Brazilian society has been facing, since 1998, a retrocession regarding the compromise of promoting access to knowledge, as guaranteed by the Brazilian Federal Constitution.

The law Project is now pending decision in the Federal Senate’s Commission of Constitution, Justice and Citizenship (CCJ), awaiting for the opinion of the relator, Senator Amir Lando, who will issue a report regarding its eventual approval. The relator will also determine if the Project should go through another Commission (of Education and Culture, for example).

Once approved by the relator, the proposal will be voted by the CCJ and, if approved, will be sent out to the Congress Chamber - this is the case of a "terminative decision", a decision taken by a Commission and that counts as if voted in the Senate Plenary. The Project will only go to Plenary if at least nine Senators present a petition to the Senate president.

The law project (PLS 131/06) can be followed up here.

On the 13th of September, Professor Pedro Paranaguá debated on the 34th Project Brazil Forum on Cultural Industry and Digital Convergence.

Technology industry versus entertainment content industry and their diverse interests was the subject of the debate. The former wants to be free to develop products and/or technological services that help spreading a wide range of content, while the latter wants to control the transmission of those contents - usually protected by copyright.

According to Professor Paranaguá, new ways of doing business are someway challenging and showing the gaps of traditional business models. Brazilian Minister of Culture, Gilberto Gil, opened the Forum with a similar perspective.

Pedro Paranaguá brought examples like the business model used in the city of Belém do Pará, in the Amazon area, which is showing that the artists’ informal consent on disseminating their works on shows performed by DJs in huge parties (without copyright payment) has been contributing to the divulgation of their works and, consequently, to the increasing of audience on their own live concerts - artists’ main source of revenue.

More than this, on these DJ shows the artists can "test" if the audience will enjoy or not a newly created song: if they do, then the author releases it on CD and plays it on their live concerts. This new business model, faced by many as an "open business" model, has been leaving traditional record companies behind.

In fact, technology and new business models have been revolutioning the way people produce, distribute, consume and pay for cultural goods.

Following a collaboration project initiated between the Centre for Technology and Society (CTS), of FGV School of Law in Rio de Janeiro, and the Innovation and Access to Knowledge Programme of the South Centre, an intergovernmental organization of countries of the South, it is with great pleasure that we make it public the first post kindly prepared by the latter’s experts:

I. Introduction

Member States of the World Intellectual Property Organisation (WIPO) met on 11-13 September 2006 for the Fifteenth Session of the Standing Committee on Copyright and Related Rights (SCCR) to discuss a Revised Draft Basic Proposal for a WIPO Treaty on the Protection of Broadcasting Organisations (WIPO document SCCR 15/2). The discussions on the Treaty began eight years ago as an attempt to address the issue of the protection of signal theft. The Member States of the European Union and broadcasting organisations sought protection for programme-carrying signals on the grounds that these can be stolen and retransmitted without permission through new means of transmission not covered in previous international instruments (i.e. the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations - the Rome Convention; and the Agreement on Trade-Related Aspects of Intellectual Property Rights – the TRIPS Agreement). What some expected to be a simple negotiation has become complex, since a great number of proposals have been submitted by WIPO Members over the eight year period. There has also been greater involvement by public interest groups in the last couple of years as well as by technology industries coupled with deeper analysis of the provisions of the draft treaty which was hitherto missing

The discussions on the draft of the Treaty on the Protection of Traditional Broadcasting Organisations, including cablecasting organisations, involve several controversial issues, such as whether the treaty should cover webcasting. Although the United States tried to push for protection of webcasting organisations in the draft text by arguing that the functional role of webcasting (transmissions through computer networks), and traditional broadcasting is similar, and that the only difference between them is the means of transmission, the U.S. proposal was not successful. As a result, protection of webcasting organisations was left out of the draft, but it will be part of a separate discussion in the SCCR, though fears have been raised that some of the language in the draft text would still cover some form of webcasting.

II. Recommendation to the WIPO General Assembly

Notwithstanding the contentious debate in the Fifteenth Session of the SCCR on various substantive issues and the clear lack of agreement on many of these, the SCCR under pressure from the Committee Chairman agreed to recommend that the WIPO General Assembly, scheduled to meet from 25 September 2006, decide that: (a) the Revised Draft Basic Proposal (SCCR 15/2) would become the Basic Proposal for the Diplomatic Conference, which is the last step in the treaty-making process, subject to any proposals that might be agreed to at a special meeting in January 2007 or proposals presented by Members at the Diplomatic Conference, and (b) a Diplomatic Conference to negotiate and conclude the treaty take place from 11 July to 1 August 2007 in Geneva. While in normally the General Assembly simply endorses Committee recommendations, such recommendations could be modified or even rejected by the General Assembly.

III. Brief Analysis of the Key Issues Discussed at the Session

Some of the main issues discussed in the Session were the following: (a) preamble, objective and scope of the treaty; (b) the rights of protection; (c) exceptions and limitations to rights and (d) technological protection measures (TPMs). The following is a brief summary of the issues and the relevant discussions. The analysis is partly based on a pre-publication research paper released by the South Centre at the start of the session. The paper is available at the South Centre website. A series of other papers outlining concerns with regard to the Draft Basic Proposal were also presented by representatives of civil society, non-governmental organisations and industry at the session.

(a) Preamble, Objective and Scope

The delegations of India, Brazil, South Africa and the African Group, among others, argued that prior to beginning the discussion on substantive issues, such as rights to be protected, the objective and scope of the Broadcasting Treaty must be clearly defined. In particular, it is important to clarify that the rationale of the treaty is to protect broadcasters and cablecasters against signal theft. The object of the protection would be limited to the signal, and not extend to the content transmitted through the signal. One of the problems identified by delegations is that there is no definition of “broadcast” in the text of the Draft Basic Proposal, and it does not specify whether only broadcast signals are the object of protection. Although the objective of the Treaty might be obvious for many Members, because broadcasts represent the product of a broadcasting organisation, if explicit reference to broadcasts is not made in the objective of the Treaty and the objective is not clearly defined, it can be later argued that the object of protection is not the signal itself, but the signal and the content carried by the signal. Moreover, many delegations pointed that it is necessary to define whether the Treaty is limited to signal protection and takes a signal-based approach, or whether it takes a rights-based approach, in order to determine whether exclusive rights to broadcasters are warranted or not.

(b) The Rights to be granted to Broadcasting Organisations

The Draft Basic Proposal contains a number of exclusive rights that confer on broadcasters and cablecasters the right to control the signals, and as argued by various analysts and delegations, the content carried by the signals. Exclusive rights would create a dangerous additional layer of rights for broadcasters and cablecasters over those already granted to copyright and other related right holders. These provisions may pose serious risks for developing countries and Least Developed Countries where generally traditional broadcasting via TV and radio are the most important means of providing access to information. Articles 9 to 16 of the draft text contain the provisions related to the rights to be protected, which go beyond the provisions contained in the Rome Convention, Satellites Convention and the TRIPS Agreement.

(c) Limitations and Exceptions

Limitations and exceptions to the exclusive rights that may be provided to broadcasters and cablecasters are a core issue for developing countries. Limitations are extremely important in providing a balance between the rights of broadcast organisations and the public interest. The establishment of limitations and exceptions may allow governments to ensure public use of information and access to knowledge for their population, in particular, for those who do not have economic resources to pay for accessing such content. Several developing countries expressed support for alternatives in the text on limitations and exceptions that would provide for a non-exhaustive list of specific limitations and exceptions that leave enough flexibility for governments to establish policies that are necessary to protect the public interest. This was also supported by some developed countries, such as Canada. On the other hand, several developed countries such as the United States and Switzerland, expressed their preference for maintaining language on limitations and exceptions similar to that contained in the WIPO Performances and Phonograms Treaty (WPPT), which does not list specific limitations and exceptions.

(d) Technical Protection Measures (TPMs)

The discussion on the TPMs was highly contentions. TPMs refer to technological tools that may be used by the copyright owner, performer or phonogram producer to prevent or restrict non-authorised use and/or access to works in the digital environment. Concerns have been raised with the implementation of TPMs as they could block access by, for example, consumers to legitimate uses of content when it is in the public domain. According to some delegations, if TPMs were extended to broadcasting organisations and cablecasting organisations as proposed in the two alternatives in the Basic Draft Proposal, it would mean new obligations for WIPO Members, since neither the Rome Convention nor the TRIPS Agreement contains such provisions. In addition, some delegations, including Brazil, argued that TPMs are not relevant to protect signals, which is the objective of the Treaty, and would only serve to protect the content.

IV. Conclusion

The analysis of the provisions above, demonstrates that the Broadcasting Treaty contain provisions that may seriously affect developing countries. It also shows that the establishment of safeguard measures, such as limitations and exceptions are essential for assuring access to knowledge, in particular, for those who lack economic resources to pay for accessing information.

Almost everything that we touch, use or simply see, even eat is directly or indirectly protected by what has come to be known as intellectual property (IP). Almost everything is now protected: the chemical formula in wall paints, the songs we listen to on the radio or mp3 players, these devices themselves, the books we read on airplanes - and the dozens of airplane parts like the engines, landing systems etc. – the medicines we take, genetically modified foods, as well as fertilizers and pesticides used in agriculture, the photograph on a postcard we send our families, the film we see at the movies as well as the screen projector and the list goes on. It’s human knowledge being made concrete.

How did this all come about? Intellectual Property rights, all put in the same basket: patents, copyrights, software, databases, location detectors etc. It’s the consolidation of intellect, thoughts or even ideas. It’s the protection of investment. There would be nothing wrong in protecting such areas of knowledge, for limited time, if it weren’t for the abuse of these rights that we’ve recently seen.

Even copyright lifespan has now been increased; they’ve already been protected for 14 years. Now, in Brazil, they’re protected during the entire life of the author and then 70 years after his death. Who is the government trying to incentive to produce culture? Not the dead author at least!

Its funny to think that never in the history of mankind have we needed incentives through concessions of legal, timed monopolies (through copyrights and patents) to have an expansion of the arts, science or culture. The great philosophers of time didn’t have their ideas protected though copyright and that didn’t keep us from having intellectual evolution. In industry, Thomas Jefferson, one of the editors of the American Constitution, ex-president of his country and the first president of the American Copyright and Patent office used to say in the beginning of the 19th century that countries that didn’t offer protection through parents were just as fruitful as countries that did. With that in mind, would patent protection really be essential? What is the balance between the two?

Recently, economists such as F. Machlup, E. Penrose, P. David e J. Stiglitz have questioned the functioning of intellectual property systems as a whole. Everything indicates that rich countries today try to impose a maximal protection towards other countries. What happens is that countries have only had the opportunity to get rich and develop because in their past, when they weren’t developed; they didn’t offer protection to creations in the arts (patents) nor to industrial innovations (patents). The World Intellectual Property Organization (WIPO) was created in 1967 to “protect” intellectual property rights. Lawyers who had companies interested in such protections founded it. A few years later, in 1974, WIPO became one of the United Nations specialized agencies, and therefore, couldn’t only “protect” intellectual property, but it had to “promote creativity and inventions” in a way to promote development, actually, that’s exactly what’s written in the American Constitution. In this way, WIPO no longer had intellectual property as a goal, but as a means of reaching development.

As most members at WIPO are developing countries, the rich nations were a minority. A great play from the last few years was to associate intellectual property to commerce, which happened after the creation of the World Trade Organization (WTO) in 1995. With growing need to join international commerce, as countries join the WTO, they automatically joining the TRIPS agreement, on intellectual property, which states the foundation and minimal requirements of IP, such as, and maybe this is the smartest thing dominating countries have done in this area, sanctions against members who don’t comply with the rules. So in case a country does not follow what’s foreseen in the TRIPS, they can be held accountable at the WTO and be subject to sanctions and economic embargos by the country detaining the intellectual property rights.

As if these rules weren’t enough, countries like the United states have been pressuring through bilateral trade agreements: it’s much easier to pressure one poor (or even rich) country at a time, than trying to impose something on many countries at once. Such strategy has been efficient: there are bilateral and regional agreements all foreseeing elevated protection articles than those founds in the TRIPS, already been signed between the US and Jordan, Australia, Singapore, Chile and Morocco amongst others. Another way of political pressure that cannot be neglected are the United States Trade Representative ´s reports, their famous “priority watch list” that lists countries on the black list, stating which nations do not have their intellectual property rights properly protected. In a recent annual report, from the end of April 2006, Brazil is once again put on maximum alert degree: maybe something to do with Brazil’s initiative at the WIPO, to balance the debate? (see below)

This maximalist policy doesn’t only affect poor countries, but rich ones as well. In the 2005, the Business Software Alliance report (BSA), that represents amongst others, Microsoft, reported that companies have suffered with the patent system, which has been used in a way to make market reserves, instead of promoting innovation. Patents are seen as pressure and threat instruments, instead of being effectively used. What’s spent on million dollars legal fights could be spent on research and development. But poor countries suffer even more, once royalties for the use of intellectual property are sent to rich countries by the millions, creating a great deficit in the commercial balance.

In the case of access to information, education, culture, medicines and knowledge in general, poor countries definitely feel the impact. Book prices, CDs and DVD are at astonishing rates, as well as patented drugs and software. At the end of the day, the abuse of private interest in contrast to public interest, the right to exclusiveness in exploration of an industrial product or intellectual creating ends up meaning not only and exclusiveness, but an exclusion of other, that are kept out without knowledge.

Today, if anyone writes anything, copyright laws automatically protect the work, since their original draft. There is no need to register it. And the rights are held at their integrity. Now I ask, protected from whom? It almost seems as if we’re a bunch of barbarians that with such thirst for culture and information, break everything and anything in our way so that intellectual creations have to be protected and kept away from us. In Brazil, if a book is out of print, hence no longer on sale, therefore the publisher is not receiving any compensation, people are still restricted from photocopying it. How does that serve the social function of property, guaranteed in our constitution? In Germany on the other hand, if a book is out of print for more that two years, that work can be photocopied as a whole. So as we see, Brazil has not implemented all the flexibilities foreseen in international agreements. Could it be pressure from the “ Priority watch list”? For example, the Creative Commons, a type of license for art works created by Professor Lawrence Lessing from the University of Stanford, represented in Brazil by the Center of Technology and Society (CTS) of Fundação Getulio Vargas’s (FGV) Law School in Rio de Janeiro, is based on copyrights, but instead of “ all rights reserved”, it’s an instrument for “ some rights reserved”, promoting the dissemination of knowledge through a greater balance between private and public interests.

Its exactly in this maximalist scope promoting more protection and less access that the Development Agenda for WIPO, an incentive by 15 developing countries, headed by Brazil and Argentina, was proposed. The Development Agenda seeks to promote the flexibilization on the debate of intellectual property in a way to bring a compromise between private and public interests.

Hoping to closely follow and participate in the debates, FGV DIREITO RIO, Center of Technology and Society - CTS have created the Free Culture Project, to monitor the UN organ specialized in intellectual property – WIPO. In this way, I have personally gone to all meeting since 2005 on behalf of FGV, who is an official credited member at WIPO. One of our other projects is Access To knowledge, or A2K, as it is known. Its main goal is to bring the debate close to the laymen public, letting them know what’s really going on. We handle extremely interesting cases that affect all out lives, such as book photocopying, the use of DRM, technology that limits or impedes the access to films, music etc. For example most virtual stores for legal downloading of music and videos use some sort of DRM system that forbids you to record digital content directly to players such as the iPod from Apple.

Its interesting to mention that although many say that personal participation in Geneva at the WIPO wont bring any benefits or possibility of change in the present political scenery, its certain that with such presence we have real knowledge of what’s going on, and more than that, we see how subjects are taken up. The growing participation of Non-governmental Organizations for public interest, as well as academia, has broadened and brought back the topics, slowly but surely to the general public – an area unknown of not so long ago. Decisions involving public interests were taken without their knowledge.

What we see at all these WIPO meeting is that in many moments, the debates are “ informal” taking place at room B, a much smaller room next to the main room: A. What does that mean? That many debates happen behind close doors, so that NGO’s can’t even listen to what’s being Said. Its curious to state that nothing that is debated informally is ever on the official report from the meeting. In other words, officially it’s like it never happened. There’s no documentation. It doesn’t go into the official history. It’s not part of the official records. There’s a slight connection to military dictatorship times

In some moments, it’s interesting, for strategic diplomatic reasons to have informal meeting. But when these informal meetings become a habit, instead of exceptions, something is probably wrong. On the sixth and most recent meeting on the Development agenda at WIPO, which took place at the end of June 2006, the air was filled with tension towards the end, including provocations from the Austrian diplomat (representing the European Union) directed towards Brazil – and the other fourteen member countries of the Friends of Development, that once again received support from India and Chile. On the Austrian side were mainly the United States, Japan, Canada, Australia, China, Russia and Kyrgyzstan.

Therefore, due to great tension and lack of transparency, there was agreement as to what should be recommended to WIPO’s General Assembly, which will take place from September 25th to the 3rd of October 2006. In other words, nothing was agreed and it will all have to be discussed at the General Assembly.

Everything leads us to believe that there will be bargaining, as other important matters will be discussed at the Assembly. The result: The future of the Development Agenda remains uncertain.

The NGOs were allowed to speak yesterday night, at 8 p.m., on the night session, at an almost empty room: there were only three delegations, from the US, Brazi, and an Asian one, supposely from Japan.

Take a look at FGV’s intervention bellow:

42nd Series of the Assemblies of the Member States of WIPO Geneva, 25 September to 03 October, 2006

Statement by the Fundacão Getulio Vargas (FGV) School of Law in Rio de Janeiro, Centre for Technology and Society

Dear Mister Vice-Chairman,

Allow me to congratulate you on your election, and the Director General, Dr. Kamil Idris, and all the WIPO staff for their efforts in bringing the development dimension within WIPO.

WIPO, as a specialised agency of the United Nations, must be guided by the UN principles, bearing in mind, moreover, that the intellectual property system should not be understood as an end in itself, but rather as a means for achieving development. Having said that, the WIPO Secretariat shall not endorse or support particular proposals by Member States.

When taking into consideration the various levels of development, all WIPO treaties shall have special and differential treatment for developing countries and least developed countries (LDCs), and before the commencement of discussions on any new treaty open forums such as the Open Forum on the draft Substantive Patent Law Treaty (SPLT) or similar public discussions shall be held to debate the objectives, feasibility and desirability of the proposed treaty and its eventual impacts, ensuring, additionally, a broader participation of civil society and public interest groups in WIPO activities.

Accordingly, Mr. Vice-Chairman, as no consensus could be reached on the Standing Committee on the Law of Patents (SCP) as regards to the SPLT, there should be another open forum to continue discussions.

Moreover, FGV supports the development and adoption of a treaty or similar mechanism on access to knowledge, and the adoption of non-exclusive systems for fostering creativity, innovation and transfer and dissemination of technology, such as free software and Creative Commons licenses. Additionally, Mr. Vice-Chairman, FGV supports the establishment of a special fee on PCT applications for the promotion of research and development activities in developing and least developed countries.

As regards to the Development Agenda, FGV understands that the process of the PCDA should be renewed, and three five-day sessions would be desirable by July 2007.

Connected with the Standing Committee on Copyrights and Related Rights (SCCR) discussions on a possible Broadcasting Treaty, Mr. Vice-Chairman, besides there being little discussion on the possible impact on public access to information and cultural diversity, there is no agreement in substance. Having said that, and bearing in mind the growing opposition from different industry groups, the WIPO General Assembly should reject the recommendations of the SCCR to hold a Diplomatic Conference, and thus promote further discussions with the sufficient participation of relevant stakeholders in order to provide a better understanding of the implications of the treaty.

In relation to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), FGV understands that national legislation is not enough, being desirable to finalise a legally binding international instrument with no further delay. It should also be stressed that the work of the IGC should advance in parallel with the work in other forums, such as the SCP.

On the Advisory Committee on Enforcement, FGV is of the understanding that developing countries should be the focus, as well as their creative industries, including discussions on the broader context of society interests, obligations of right holders, and experience on bio-piracy.

In short, FGV supports the statements made on the first day by Argentina, on behalf of the Group of Friends of Development; Benin, on behalf of LDCs; Brazil; Chile; China; Indonesia, on behalf of the Asian Group; Nigeria, on behalf of the African Group, and South Africa.

Thank you, Mr. Vice-Chairman.

The General Assembly of the World International Property Organization (WIPO), United Nations’ specialized agency for intellectual property, initiated its works last Monday, 25 September 2006.

The WIPO General Assembly, which takes place annually, is taking place from the 25th of September to the 3rd of October, here in Geneva, Switzerland.

The General Assembly’s agenda is especially dense this year, containing themes that are crucial to the future of intellectual property in the world. Topics related to protection and access to knowledge are on the agenda, as: i) WIPO’s Development Agenda; ii) the Substantive Patent Law Treaty ; iii) the Broadcasting and Webcasting (transmission via Internet) Treaty; iv) traditional knowledge, folklore and genetic resources, among others.

I, Pedro Paranaguá, am here on behalf of the Center for Technology and Society (CTS) of the Fundacao Getulio Vargas (FGV) School of Law in Rio de Janeiro (FGV DIREITO RIO), the only academic institution in Brazil with permanent accreditation at WIPO.

The WIPO monitoring is part of the Cultura Livre Project of the CTS/FGV DIREITO RIO.

Follow the discussions up in real time at the Cultura Livre website.

The Brazilian Minister of Culture, Gilberto Gil, opened the WIPO General Assembly on this 25th of September with a very expected statement in name of the Delegation of Brazil here at the WIPO General Assembly, in Geneva.

The intervention can be found at FGV’s Cultura Livre Project website. Click to read it integrally (Portuguese version).

Highlights of Minister Gilberto Gil’s speech:

"(...) We are living a historical moment when, more than ever, intellectual property deserves to be the object of a debate that corresponds to the breadth and complexity that this subject has acquired. We have seen that a number of sectors of the international community has become increasingly aware of the importance of discussing intellectual property in all its aspects, particularly its effects on social and economic development, as illustrated by the Doha Declaration on TRIPS and Public Health.

"It is clear to us that development will only be ensured if there is a balance between intellectual property rights and obligations and the public interest, as had been highlighted by the Ambassador of Argentina, on behalf of the Group of Friends of Development. If such balance is lost we will violate the nature of knowledge itself: we should never forget Thomas Jefferson’s words, according to which there would not be any one thing less susceptible than all others of exclusive property than ideas, whose sharing does not necessarily harm anyone.

"(...) The Brazilian Government is concerned with the fact that the Basic Proposal for a Treaty on the Protection of Broadcasting Organizations, approved by the Standing Committee on Copyright and Related Rights, remains the object of disagreements and had not been able to please the majority of Members, both developed and developing.

"Should this Assembly confirm the convening of a Diplomatic Conference with a view to finalizing the Treaty, we must be aware that many questions remain to be solved after several years of hard work on the subject, shedding doubt on the very opportunity of such a negotiating exercise.

"The Brazilian Government calls for the Assembly to hold reasonable and comprehensive discussions on this subject. If the Diplomatic Conference is ultimately confirmed by this Assembly, notwithstanding many pending issues, we will be consciously assuming the risk of another failure at WIPO, repeating the outcome of the Diplomatic of the year 2000, meant to approve a new audiovisual treaty.

"(...) At the international level, many different organizations are already engaged in assessing the impacts of intellectual property. The UN, UNESCO, WTO, WHO, CBD, UNCTAD and many others have been contributing to the debate on intellectual property and development."

Some heavy-weight US companies have severely rejected the WIPO Broadcasting Treaty arguing that if a Diplomatic Conference for finalising such a treaty in the end of 2007, as it has been proposed so far at the WIPO General Assebly, the issue of the treaty shall not cover the protection of the content transmited, nor webcasting (transmission via the Internet), but rather, it should only cover the protection against signal theft.

This is the position of several developing countries, such as South Africa, Chile, Brazil etc..

The document rejecting the continuation of the discussions as they have been proposed so far has been signed by companies of the caliber of AT&T, HP, DELL, amongst others.

Take a look at the document bellow:

Joint Statement of Representatives of Industry Regarding a Diplomatic Conference on Broadcasting in 2007

We wish to call to your attention a number of concerns the undersigned companies and organizations have, as the WIPO General Assembly meets. We recognize that there will be many substantive issues on the full working agenda for the General Assembly, however, we wish to alert you to the potentially serious consequences of approving a Diplomatic Conference on the WIPO treaty on the Protection of Broadcasting Organizations.

We appreciated the opportunity to meet informally with many delegations during the recent 15th Session of the SCCR. We have strong concerns about the scope and language of the present treaty document, and had hoped to see improvements made during the SCCR itself. As observers at the recent meeting, we witnessed many member states’ expressions of concern about the substance and form of the draft. As the SCCR ended, we found ourselves even more concerned with the recommendation by the Chair of the SCCR.

As the General Assembly meets, we are urging delegates to reject approval of Diplomatic Conference. Our reasons are outlined below. The current text is simply not ready for consideration at a Diplomatic Conference and before any agreement to hold one there should be a fully developed treaty text that would focus protection for broadcasters on prohibition of signal theft.

The current text is simply not ready for consideration at a Diplomatic Conference:

• During the last SCCR meeting many countries expressed reservations to the current draft treaty text. • The current text is not stable – the document contains 72 brackets. • The current text conflates two fundamentally different approaches – right-based protection and signal theft-based protection – in an inconsistent fashion. • A number of countries expressed their support for developing a text based on prohibiting signal theft. • There is no agreement among delegates on which fundamental approach should be taken to protect broadcasters and broadcast signals capable of being addressed in a treaty. • We believe the outcome of the SCCR meeting did not fully represent the concerns expressed by many countries the Diplomatic Conference in 2007 was premature.

Therefore, we believe that concerned countries should support the following:

• Absent clear treaty that enjoys broad support the general Assembly should not approve the convening of a Diplomatic Conference in 2007. • Instead, the general Assembly should convene a future SCCR meeting to develop a consensus text based on the signal protection.

We are at the disposal of the distinguished delegates to the General Assembly to discuss these views.

After months of dissatisfaction within’ consumers, in last July EMI Music finally disabled the anti-copy system of the record company’s products. The technical protection measures (TPMs) are usually named DRM (Digital Rights Management), being attached to commercial CD’s and DVD’s to avoid or limit copies of the content.

In the late releasing of the albums by Marisa Monte, Brazilian top artist from EMI’s cast, media vehicles echoed the discontentment of people who, having legally purchased the CD’s, could not transfer them into their computers nor mp3 players due to Copy Control — TPM installed by EMI and already non-successfully tested by the opponent Sony Music. That DRM even made difficult to consumers to play the songs in some CD players, mainly the automotive ones.

Although, it is well-known that those barriers can be easily outstripped through softwares created by hackers and freely available on the web. It shows DRM’s unreasonableness and inefficiency, which, more than prejudicing legal consumers, does not serve as an effective obstacle to internet illegal file sharing.

International groups like StopDRM! have been organizing public demonstrations to promote discussions about the inconsistency of technical protection measures, mechanisms that obstruct the access to information affecting everyone in the new technologies scenario.

It has just taken place at Copacabana Palace, in Rio de Janeiro, a press conference of the International Federation of the Phonografic Industry (IFPI).

Even though FGV had gotten oficial accreditation to participate on the conference, the Centre for Technology and Society´s team of professors WERE BARRED FROM ENTERING the room.

FGV team of professors, Carlos Affonso Souza, Pedro Paranaguá, and Sérgio Branco, were told that the room could fit only 40 persons but they already had around 50 inside it. When asked if the professors could have access and keep standing at least to hear the debate, they were told that there was no room even for standing.

However, after having talked to journalists from TV SBT, O Estado de Sao Paulo, Reuters, Associated Press, Folha de Sao Paulo amongst others, the professors were told that the room was not full and that there were places available.

They tried to obtain the press release, but they were told that IFPA ran out of the copies, and that their representative would send a copy via email — FGV is still waiting for it.

The IFPI, that represents the major recording companies in the world, held this morning a national (Brazilian) press release to officially inform that they are initiating a new round of court actions, this time in Brazil, against users of peer-to-peer networks, a system for downloading files, including music, through software like Soulseek, eMule etc.. They are spreading their court actions from the USA to Brazil.

FGV´s Centre for Technology and Society, under the A2K programme, has prepared a document clarifying the situation and proposing an amendment to the Brazilian copyright law in order to bring a balance to the discussion.

Since FGV was not allowed to enter the conference room, there being bodyguards walking around to intimidate our peaceful professors, they waited until the journalists and photographers were coming out of the room to speak to them and to deliver the document.

All of the journalists got very interested on the issue, and were surprised that FGV was barred from the meeting, despite having had its accreditation accepted.

Make your voice heard. Sign on the online petition prepared by the Centre for Technology and Society (CTS) at FGV School of Law in Rio de Janeiro, to be sent to the Brazilian National Congress in order to amend the Brazilian copyright law.

To sign the petition, click here.

More than 900 people in the last 72 hours signed the petition prepared by the Centre for Technology and Society at Fundação Getulio Vargas (FGV) School of Law in Rio de Janeiro in reaction to lawsuits carried on against Brazilian peer-to-peer (file sharing) users. The Brazilian Government does not support the court action as well, as stated yesterday by O Globo, the highest circulation news paper in Rio de Janeiro:

"Yesterday, the National Council for Combating Piracy (CNCP) criticized the decision took by Brazilian record companies concerning the prosecution of 20 illegal download users in Brazil, announced last Tuesday in Rio de Janeiro. (...) According to the executive secretary of the Ministry of Justice and president of the CNCP, Luiz Paulo Barreto, the law that regulates copyright, in force since 1998, is not clear about the downloading practices spread over the market. According to Barreto, a new sector regulation is necessary".

Brazilian and international media vehicles are reporting the negative repercussion of the record companies’ initiative: Michael Geist’s blog, a highly respected professor of University of Ottawa, and the most visited blog in the world, Boing Boing, plus Brazilian Jornal Nacional, the most watched TV news program in the country (Globo TV), Folha de São Paulo, O Dia, O Globo, Estado de São Paulo, JB Online, Folha Online and Globo.com/G1. All these are major communication channels in Brazil.

Organizations like Electronic Frontier Foundation (EFF), Derechos Digitales, from Chile, Free Software Foundation Europe (FSF-Europe), and IP-Justice, also made public the condemnation of those actions.

It is vital to bring awareness to the society. These measures (court actions) may be harmful to the constitutional right to privacy, to consumers rights, to the access to knowledge and culture, besides contributing to an even more restrictive interpretation of the already restrictive Brazilian copyright law.

Make your voice heard. Make it public and sign on the online petition prepared by the Centre for Technology and Society (CTS) at FGV School of Law in Rio de Janeiro, to be sent to the Brazilian National Congress in order to amend the Brazilian copyright law.

The document is supported by the following organizations: Centro de Tecnologia e Sociedade / FGV DIREITO RIO (Brazil), Cultura Livre (Brazil), A2K Brazil, IP Justice (USA), Free Culture (USA), Association des Audionautes (France), Derechos Digitales (Chile), iRights, CPSR-Peru, Alternative Law Forum (India), Rits (Brazil) e Intervozes (Brazil).

To sign the petition, click here.

In the last ten days, more than 2,900 people already signed the petition for amending the Brazilian Copyright Law in order to set up a more balanced relation between interests of industry, authors and consumers. The petition was elaborated by the Centre for Technology and Society (CTS) at Fundação Getúlio Vargas Law School.

It is essential to have the collaboration of everyone for spreading this proposal for amending Brazilian Copyright Law that will be sent to the National Congress. There are flexibilities existing on international agreements that are not put in practice by Brazilian legislation. And that proposal aims to include some of those flexibilities.

About the phonographic industry and its "marketing of fear", see the article published by Folha de São Paulo newspaper (Portuguese version), written by the Director of Fundação Getúlio Vargas Law School, professor Joaquim Falcão.

The highest circulation news paper in Rio de Janeiro, O Globo, published this week a reporting (below) introducing the A2K project, whose defense of the right to access to knowledge disturbed the phonographic industry to the point of making it block the entering of three previously accredited CTS professors into the press conference of the International Federation of the Phonografic Industry (IFPI).

The PC World magazine reporting highlights that the IFPI initiative of prosecuting Brazilian peer-to-peer (file sharing) users took place exactly during the 4th Brazilian National Week for Democratization of Communication. The p2pbr website shows its analysis of the late occurrences and even contextualizes in a juridical comprehension the lawsuits announced against 20 Brazilian internet users.

Take part of this net for democratization of the access to knowledge. To sign the petition that will be sent to Brazilian National Congress: http://www.petitiononline.com/netlivre/. Propagate this web link.

Reproduction of O Globo newspaper, 23th of October of2006 (authorized by the reporting author)

Brazilian witch hunt season begins

Phonographic industry starts arresting music ’pirates’ in Brazil. Decision already generates polemic

Elis Monteiro

The Brazilian phonographic industry decided to follow the steps of its co-brothers in Europe and USA and announced, last week, an operation to lawsuit users that upload large quantities of songs to the internet. Last Tuesday [17th of October], the Brazilian Association of Recording Producers (ABPD) divulged that is already processing twenty illegal download users. The first "victims" made available, according to the association, from 3 to 5 thousand songs on the web.

Simultaneously, the International Federation of Phonographic Industry (IFPI) announced eight thousands lawsuits over the whole world aiming to decrease the using of file-sharing services like Kazaa, eMule and LimeWire, amongst others.

The decision disturbed the defensors of cyberspace freedom and caused chain reactions, besides the releasing of a repudiation document against the decision. At the ABPD and IFPI meeting, that took place last week, three professors of the Centre for Technology and Society of Fundação Getúlio Vargas (FGV) Law School, that works in Brazil propagating the Creative Commons project, were barred. According to Pedro Paranaguá, FGV professor and coordinator of the A2K Project, the three professors, although previously accredited to attend the event, had their entering forbidden.

— We were told that the room could fit 40 people and was already with 50 in, and that the event was for journalists, but that there were not only the organizations board of directors inside of it, but also lawyers that will sponsor the lawsuits. The attending reporters told us that there were available seats inside the room – says Pedro. – In the end, we tried to get a copy of the document and they said it was over. So we asked them to send it by email, but after the staff said that their internet connection was unavailable.

Professor asks for amending Brazilian Copyright Law

Still according to Pedro Paranaguá, the intention of the group was to suggest organizations to rethink their methods of combating music piracy. One of the suggestions would be the changing of Brazilian Copyright Law.

— We are not against authors rights, but there must be more balance on this issue. We do not support who mass download, but now the industry wants to, through technology, block the access of the consumer to the product he or she purchases – says Pedro, referring to the DRMs that some record companies have been introducing in their artists’ CDs. – EMI Music, for example, announced that is not inserting those restriction features anymore.

About the lawsuits announced by the industry for Brazil, Pedro is emphatic to affirm that does not believe in its efficiency.

— Those actions did not work in the USA. They caught scapegoats and make up the marketing of fear, what leads to the frightening of potential consumers. There is more on it: they affirm that they have identified 20 people that uploaded more than three thousand songs, but they do not tell how they identified those people. They would only access that information through judicial writs. In other case, they are infringing the Federal Constitution.

Surprisingly, still on last week the Brazilian National Counsel for Piracy Combating (CNCP) criticized the record companies’ decision. According to the Brazilian Ministry of Justice executive-secretary and President of the CNCP, Luiz Paulo Barreto, the organization is against criminalization of who downloads music through the internet. Barreto affirmed, in interview for O Globo, that "does not thing that criminalization of the user is the best way, but the education, one of the fronts we work to combat piracy in Brazil".

Translation by Marcelo D’Elia Branco - Free Software Project - Brazil (PSL-Brasil)

Exceptionally we have this post also in Castellano.

En los últimos 12 dias, más de 3.400 personas suscribieron la petición elaborada por el Centro de Tecnología y Sociedad de la Fundación Getúlio Vargas - Direcho Rio de Janeiro en reacción a las medidas judiciales tomas contra usuarios de redes peer-to-peer (reparto de archivos por la Internet).

El Gobierno Nacinal de Presidente Lula también se muestra desfavorable, conforme informó el periodico O Globo:

"El Consejo Nacional de Combate a la Piratería (CNCP) criticó ayer la decisión de las grabadoras brasileñas de procesar judicialmente 20 usuarios de downloads ilegales en Brasil, anunciada el último martes en el Río. (...) De acuerdo con el secretario-ejecutivo del Ministerio de la Justicia y presidente del CNCP, Luiz Paulo Barreto, la ley que regula los derechos autorales, de 1998, no es clara en relación a la práctica de downloads que tomó cuenta del mercado. Según Barreto, una nueva reglamentación para el sector se hace necesaria".

Órganos de la prensa nacional e internacional vienen informando la repercusión negativa de la iniciativa de las grabadoras brasileñas: teleJornal Nacional (Rede Globo, 17/10), Folha de São Paulo, O Día, O Globo, Estado de São Paulo, Jornal do Brasil-Online, Folha Online, Globo.com/G1, además del blog del conceituado profesor de la Universidad de Ottawa, Michael Geist y del blog más visitado en el mundo, Boing Boing.

Organizaciones como la Electronic Frontier Foundation (EFF), Derechos Digitales, de Chile, y Free Software Foundation Europe (FSF-Europe) también divulgaron las acciones.

Es importante que la sociedad civil esté conocedora de los problemas traídos por esa cuestión. Estas acciones son perjudiciales al derecho constitucional a la privacidad, a los derechos del consumidor, al acceso al conocimiento, al acceso a la cultura, además de contribuir para una interpretación aún más restrictiva de la ya restrictiva ley de derecho autoral en Brasil.

Haga su voz ser oída. Divulgue y suscriba la petición preparada por el Centro de Tecnología y Sociedad (CTS) de la Fundación Getúlio Vargas-Derecho Rio de Janeiro- para ser enviada al Congreso (parlamiento) Nacional, pidiendo alteración de la Ley de Derechos Autorales: http://www.petitiononline.com./netlivre.

El documento cuenta con el apoyo de entidades como: Centro de Tecnología y Sociedad / FGV DERECHO RÍO (Brasil)[, Cultura Libre (Brasil), A2K Brasil, IP Justice (EUA), Free Culture (EUA), Association des Audionautes (Francia), Derechos Digitales (Chile), iRights, CPSR-Pavo, Alternative Law Forum (India), Rits (Brasil) y Intervozes (Brasil).

Para suscribir la petición requiriendo la modificación de la ley de derechos autorales brasileña, clique aquí .

October of 2006 was an important month for the music world. On the 17th, the phonographic industry announced another round of lawsuits against internet users within several countries. For the first time, Brazil was part of the list of the countries in which users will be prosecuted.

A week before, international press noticed the buying of YouTube, one of the most important media for music divulgation, by Google. On the sequence of that, YouTube announced an agreement with the record companies Warner, Universal and Sony-BMG in order to allow using music content in the website without risk of judicial retaliation.

In this market shifting situation due to the digital technology and internet, many opportunities and challenges are emerging. The seminar "The music process" will discuss important factors for the music economics scenario in Brazil and abroad.

The seminar is organized by the Centre for Technology and Society (CTS) at Fundação Getulio Vargas (FGV) School of Law in Rio de Janeiro. CTS is a reference, nationally and internationally, in the area of law and technology, occupying the position of permanent observer on WIPO (World Intellectual Property Organization), the UN organization sit in Geneva and globally responsible for intellectual property. Besides that, CTS works in partnership with Yale, Harvard, Oxford and Kent Universities for research on intellectual property, as well as with governmental and private institutions in several countries in the world.

In Brazil, CTS is responsible for the Cultura Livre Cultura Livre, Access to Knowledge, Open Business and Creative Commons programes.

Among the topics that will be debated are: the question of copyright and lawsuiting in Brazil, piracy, the collaborative media’s role for music, consumer’s rights, artist’s position and the insertion of Brazil in the intellectual property international scenario.

It will also be discussed the proposal for amending Brazilian copyright law, elaborated by ABPI (Brazilian Association on Intellectual Property), supported by Fundação Getulio Vargas School of Law in Rio de Janeiro, and object of the online petition on the website: http://www.petitiononline.com/netlivre/

The seminar will count on the participation of musicians, lawyers, academics, governmental representatives, judicial power members and music industry members.

The event will take place on the 9th of November. Registrations can be done through the e-mail cabral [arroba] fgv [ponto] br. Vacancies will be distributed on the following way: 50% for guests and 50% for the public that register through the e-mail, selected by allotment. On the registering moment, it is obligatory to send a resumed curriculum (one paragraph) and contact information (name, telephone number, address and e-mail). Press credentialing shall be done through RP Bebel Prates (prabebel [arroba] gmail [ponto] com).

The event programme can be found on this weblink.

Date: 09 November, 2006 (Thursday)
Duration: from 9 a.m. to 6:20 p.m.
Venue: FGV School of Law - Praia de Botafogo, 190, 8th floor - Rio de Janeiro

SEMINAR PROGRAMME

08:30 – 09:00 REGISTRATION

09:00 – 09:20 OPENING

Participants:
Prof. Dr. Joaquim Falcão, director of FGV School of Law in Rio
Prof. Dr. Ronaldo Lemos, director of the Centre for Technology and Society, FGV School of Law in Rio

09:20 – 10:30 BRAZILIAN AND INTERNATIONAL MUSIC SCENARIOS IN VIEW OF THE NEW MEDIA

An analysis of the music production chain and its transformations resulted from the emerging and expansion of new technologies

Participants:

Dr. Dirceu Santa Rosa (Lawyer – Veirano Advogados)
Prof. Dr. Joaquim Falcão (Director of FGV School of Law in Rio)
Lucas Santtana (Musician)
Prof. Dr. Ronaldo Lemos (Centre for Technology and Society/FGV-Rio)
Dr. Alexandre Matias (Trama Record Company)

10:30 – 10:50 DEBATE

10:50 – 11:15 COFFEE BREAK

11:15 – 12:35 NEW BUSINESS MODELS FOR MUSIC AND THE COMBAT AGAINST PIRACY

Emerged controversies and pointed solutions for the piracy problem. Who are the actors of this debate and what are the advantages and disadvantages of the old and the new business models

Participants:

BNegão (Musician and composer)
Prof. Carlos Affonso (Centre for Technology and Society/FGV-Rio)
Dr. André Barcellos (Executive Secretary of the Brazilian Ministry of Justice and president of CNCP - National Council for Combating Piracy)
Dr. Luiz Fernando Marrey Noncau (Attorney of the IDEC– Brazilian Institute of Consumer Defense)
Dra. Alessandra Blanco (iG Internet Portal’s Content and Portal manager)

12:35 – 12:50 DEBATE

12:50 – 14:30 LUNCH

14:30 – 15:40 LAWSUITS AGAINST PEER-TO-PEER NETWORK USERS: INTERNATIONAL EXPERIENCE AND REFLECTIONS IN BRAZIL

The different perspectives over judicial actions aiming at the combat of music sharing in Brazil. Perspectives of artists, lawyers, academy and judicial power

Participants:

Dr. André Fontes (Federal Regional Court)
Marcelo Camelo (Musician and composer, Los Hermanos band)
Marcelo Yuka (Musician)
Dr. Denis Borges Barbosa (lecturer of Intellectual Property Rights, lawyer)
Prof. Sérgio Branco (Centre for Technology and Society/FGV-Rio)

15:40 – 16:00 DEBATE

16:00 – 16:20 COFFEE BREAK

16:20 – 17:40 THE FUTURE OF THE COPYRIGHT LAWS IN BRAZIL AND IN THE WORLD

Proposal on amending the Brazilian Copyright Law and perspectives on the copyright legislation in the world in view of the Development Agenda proposed on World Intellectual Property Organization (WIPO)

Participants:

Diplomat João Carlos Beato Storti (Intellectual Property Division of the Brazilian Ministry of Foreign Relations)
Prof. Dr. Joaquim Falcão, director of FGV Law School
Dr. Bernardo Sorj (UFRJ Professor, director of Edelstein Center for Social Research and coordinator of SciELO Social Sciences Internet Portal in English)
Prof. Pedro Paranaguá (Centre for Technology and Society/FGV-Rio)
Dr. Guilherme Carboni (Coordinator of the Copyright Comission of ABPI – Brazilian Association on Intellectual Property)

17:40 – 18:00 DEBATE

18:00 – 18:20 CONCLUSIONS (FGV SCHOOL OF LAW IN RIO)

Giles Tremlett in Madrid

A Spanish judge has dealt a blow to the global music industry after ruling that there is nothing illegal about downloading music for free from the internet as long as it is for personal use.

The decision, the first of its kind in Europe, opens the way for Spain’s estimated 16 million internet users to swap music through online sites. "This is extremely unusual," said a spokesman for the international recording industry body IFPI, as the judgment was announced yesterday.

Judge Paz Aldecoa threw out a case against an unnamed 48-year-old man who offered and downloaded digital versions of music on the internet, according to Spanish press reports. He also sent selections of music recorded on CDs out to people in the post, prosecutors claimed. The judge ruled that, under Spanish law, a person who downloaded music for personal use could not be punished or branded a criminal. "That would imply criminalising socially admitted and widely practised behaviour where the aim is not to gain wealth illegally but to obtain private copies," she said in her judgment.

"If the purpose of the copy is not to gain wealth there is no way that it can be considered illegal," Victor Domíngo, head of Spanish internet user’s association Internautas, told the Abc newspaper yesterday. "It would be a lot different if someone downloaded in order to sell on." But Antonio Guisasola, from Spain’s Promusicae recording industry federation, said the judge had got it wrong. "We have already appealed against the decision," he said. "Peer-to-peer [P2P] sharing is not legal in Spain."

Mr Guisasola, whose federation had backed a prosecution case that demanded a two-year prison sentence and €25,000 (£16,700) in fines and compensation, explained it had tried to prove the man was selling the music he sent out on CDs, rather than just distributing it for free. Even though it had failed to prove that he was selling, Mr Guisasola said his federation was still convinced "private use" was not a legal excuse for downloading music for free. "I have been with both the justice minister and the culture minister today and they are both quite clear that peer to peer is illegal," he said.

This was even more clearly so in a case where music was being shared by more than one person, he said. "People should understand that we all have to respect people who create," justice minister Juan Fernando Lopéz Aguilar said yesterday. "These are people who have the right to control the use of their literary or artistic creations in all media." But the judge insisted Spain’s intellectual property law protected people against being prosecuted if they could prove private use. Spain is drawing up a new law that is likely to strike out the existing right to "private copies" of material.

The licensing of digital content has become a major issue for the entertainment industry. The Financial Times today reported that Google has been offering up to $100m to media companies including CBS, Viacom, Time Warner and News Corp to license their content to the video website YouTube, which it bought last month for $1.65bn. Analysts have warned that YouTube could be targeted by lawsuits for carrying copyrighted material.

Contribution: Michelle Childs, CPTECH

Unlike most other EU member States the UK does not have a personal right to copy ( nor does it have copyright levies). The issue has come to a head as it is technically illegal to rip a cd to your ipod in the UK. Given virtually everyone who owns an ipod does so, the law is in disrepute. The recording industry trade body, recognise the present situation is unsustainable, but doesn’t want a legal right to copy to be given to users instead they want to ’authorise’ such copying. In that way they set the terms. It is also a ’right’ at their whim- it could be withdrawn at any time.

The UK’s main recording industry body wants to authorise UK music buyers to copy CDs for personal use. The British Phonographic Industry (BPI) has recommended to a government investigation that a private right to copy be created, according to the report below extracted from OUT-LAW magazine.

BPI lobbies Gowers for a ’private right to copy’ OUT-LAW.COM, Nov, 11st, 2006

The UK’s main recording industry body wants to authorise UK music buyers to copy CDs for personal use. The British Phonographic Industry (BPI) has recommended to a government investigation that a private right to copy be created.

"We certainly agree with the line that something needs to be done," Richard Mollet, the BPI’s director of public affairs told weekly technology podcast OUT-LAW Radio.

Though the Institute for Public Policy Research (IPPR) has called for a change in UK law to allow people to copy legally bought tracks on to MP3 players, the BPI says no law change would be necessary if it gave permission for the activity.

"Whether one actually changes the law or not is actually a moot point because it is possible to give consumers that permission simply through authorisation from existing rights holders," said Mollet.

Mollet said the BPI had made its views known to the Gowers Review, a Government-commissioned report on copyright law reform due to report its findings this month. It is being conducted by former Financial Times editor Andrew Gowers.

In the UK any copies of music on CDs or from downloads is illegal, which means that people who put music on their MP3 players or computers are breaking the law.

The BPI, which polices copyright theft on behalf of record labels, has already announced that it will not prosecute people for copying music to MP3 players. Mollet told OUT-LAW, though, that the BPI now wants to directly authorise consumers to carry out the activity, and is likely to put the authorisation directly on to CD packaging.

"My understanding of how this would work in practice is that one might need to put something on product and that would be one of the potential problems with going down the authorisation route," he said.

Mollet said that the BPI’s stance is not "hard and fast", but that it would be prepared to go down the authorisation route.

Kay Withers was the author of the IPPR’s report recommending the establishment of a private right to copy. She disagrees that BPI authorisation would solve the problem. "It’s good that the BPI have said they’re not going to prosecute but it should be the government deciding what the consumers and citizens rights are, rather than citizens."

The IPPR’s report said the fact that no private right to copy exists not only puts many people on the wrong side of the law mostly without them knowing it, but also undermines the public’s respect for copyright law in general, and makes serious infringement more likely.

Withers said it is also unfair to consumers. "What the law currently would expect consumers to do just doesn’t really seem fair," she said. "Asking someone who buys a CD in HMV to then have to go to a digital music store and buy that content again so that they can listen to it both on their hi-fi and on their mp3 player just doesn’t seem fair."

Invited by the Brazilian Ministry of Culture to join the 9th Annual Ministerial Meeting International Network on Cultural Policy – INCP, that took place in Rio de Janeiro from 22nd to 25th of November, the Centre for Technology and Culture (CTS) of Fundação Getulio Vargas Law School was represented by Prof. Pedro Paranagua, A2K Project coordinator.

Taking place during the World Culture Forum, the INCP Meeting assembles 68 Ministries of Culture from countries from all continents. Brazilian Minister Gilberto Gil was this year’s host and opened the discussions with the theme proposed by Brazil: Access to Culture, Copyright and New Technologies: Evolving Challenges for Cultural Diversity. The extremely important issue of the copyright, mostly of its limitations and exceptions, as well as the new technologies, were debated.

The Brazilian Ministry of Culture (MinC), in early 2006, sent 16 questions to all the INCP countries-members containing subjects about policies and legislation on copyright and related rights (performers’, for example) of each of those countries. The questionnaire’s objective was to detect the best practices and to identify eventual negative actions, so that a debate on that subject could be promoted.

Aiming at this, MinC elaborated a prior document, together with the Centre for Technology and Culture (CTS) of Fundação Getulio Vargas Law School, analyzing all the questionnaire answers and then suggesting practices on public policies for developing countries or countries in a lower relative development grade on copyright and related rights. That document was distributed on the event in English, Portuguese, French and Spanish [.pdf].

After the document presentation, made by Minister Gil, some countries-members made interventions.

Sweden suggested that there should be a greater balance on copyright issue and told that

those rights must obligatorily be neutral relating to technologies

. This is extremely important, since copyrights must not benefit a type of technology, or manufacturer, over other. It must be given enough space for technology to grow without juridical fastenings. For example, the peer-to-peer (P2P) technology must not be banished just because it can serve for some illegal uses. On the contrary, the fact of that the P2P technology can be used for licit purposes is already enough for it not to be banished, per se.

Greece said that copyright must not limit the use of technologies in order to promote the access to knowledge. Furthermore, the Greek representative affirmed that the DRMs – "digital rights management", the technological locks that limit the quantity of copies that can be done, or in which player we can listen to a CD or DVD – are not sufficient for protection against non-authorized copying, and went further by saying that education and cultural diversity are extremely important when it comes to the theme copyrights and related rights. And concluded emphasizing that

"the primordial objective of copyright are the creativity and the creators".

The South Africa representative said that

we must not support a copyright system in which the developed countries will have much more "muscle" to fight on the question than the developing countries.

Argentina representative opined that we are in a moment of analysis, in which we shall not take precipitate steps. His opinion was that technologies shall be left to develop, and one should not block them or use them to block the access to culture and knowledgement. Still, besides Argentina had highlighted the loss of balance between the "author" character and the "copyright titular" character – mostly publishers and record labels – its representative emphasized that

"the copyright must not be absolute".

Claudio Prado, responsible for the digital policies sector of Brazilian Ministry of Culture, expressed his fear of the staying of this discussion on the "twentieth century mousetrap", when referring to the great XX century decay in copyrights field – a century in which the authorial protection took away several decades, letting the public more far from culture, instead of nearer, amongst other factors.

Minister Gil told that we are facing a "trilemma: author – public – corporative world". The latter, according to the Minister, is "powerful, greedy and starving". Still

according to Minister Gilberto Gil, the INCP members seem to constitute a "polyphony", as distinct voices come to the same conclusion: it is necessary to promote the cultural diversity and a greater balance on copyrights.

The event took place in the beautiful Itamaraty Palace, former headquarters of the Brazilian Ministry of International Relations, when Rio de Janeiro was the capital of the country.

Proceeding within the World Culture Forum activities, the Centre for Technology and Society (CTS) of Fundação Getúlio Vargas Law School will participate, next Tuesday the 28th, of the I Creative Economy for Development International Forum.

This event, taking place in Rio de Janeiro from the 26th to the 29th of November, is organized by the South-South Cooperation Special Unit (SU-SSC) on the ambit of the United Nations Development Programme (UNDP), headquartered in New York, in partnership with the World Culture Forum and in collaboration with United Nations agencies, among them UNESCO. The detailed programme and the presentation of symposiums and workshops speakers can be checked out here.

On the 28th, will participate of the Intellectual Property Rights and Development symposium the Brazilian Minister of Culture Gilberto Gil, Professor Ronaldo Lemos (Creative Commons Brazil and CTS), Richard Owens (Copyright, E-Commerce, Technology and Management Division, WIPO, Geneve), John Howkins (writer and consultant on TV, film and creative economy, United Kingdom), Sérgio Sá Leitão (Brazilian Development Bank - BNDES, Brazil), Garry Neil (International Network for Cultural Diversity, Canada) and Joxean Fernández (UNESCO Programme Culture and World Heritage representative, Uruguay).

Professor Ronaldo Lemos, coordinator of the Centre for Technology and Society (CTS), will approach the theme Implications of Intellectual Property Rights for Development. The symposium will be complemented by the IP Rights and Multilateral Agreements: What’s Next? workshop, with the participation of Professor Pedro Paranaguá (A2K Brazil and CTS), Daniel González (Organización de Estados Iberoamericanos – OEI) and Marcos Alves de Souza (Substitute Coordinator of the Copyright Division of the Brazilian Ministry of Culture - MinC).

Last Thursday, the 23th of November, Professor Pedro Paranaguá participated of the debates on the 9th Annual Ministerial Meeting International Network on Cultural Policy – INCP, which assembles 68 Ministries of Culture from all continents. On that event, Minister Gilberto Gil presented the document developed in partnership with CTS., based on questionnaires sent over by MinC to the countries-members of INCP. The document digests suggestions on public policies practices for developing countries – or countries in a lower relative development grade on copyright and related rights.

The Ministerial Meeting is also part of the World Culture Forum programme, as well as the Creative Economy for Development International Forum.

Below, extracted from IP Watch website, an article by Prof. Pedro Paranaguá, from the Centre for Technology and Society (CTS) at the Fundacao Getulio Vargas (FGV) School of Law.

The Music Process - Between New Business Models And Lawsuits

by Pedro Paranaguá

The traditional business model of the phonographic industry is being left behind by the competitiveness of new technologies. The technological world is evolving, but some businesses are struggling as they are not adapting themselves to the ever-increasing changes. Trying not to be left behind, the phonographic industry has preferred to use the marketing of fear: file lawsuits against file-sharing users.

On 17 October at Copacabana Palace in Rio de Janeiro, a public announcement was jointly held by the London-based International Federation of the Phonographic Industry (IFPI), which “represents the recording industry worldwide with over 1,450 members in 75 countries,” together with the Brazilian Association of Disc Producers (ABPD in the Brazilian Portuguese acronym). IFPI’s Chairman and CEO, John Kennedy, announced that, for the first time, 20 Brazilians that have uploaded and made available around 3,000-5,000 files for others to freely download via peer-to-peer (P2P) file-sharing software will be sued.

Interestingly enough, three law professors, including me, from the Centre for Technology and Society (CTS) of Fundacao Getulio Vargas (FGV) School of Law in Rio de Janeiro, were barred from the meeting despite having previously had our accreditation accepted by the organisation of the event. We were told that the room could fit only 40 persons but they already had around 50 inside it. When asked if we could have access and keep standing, we were told that there was no room space even for standing. However, after talking to journalists from TV Globo (the major broadcaster in Brazil), TV SBT, O Estado de Sao Paulo, Reuters, Associated Press, and Folha de Sao Paulo amongst others, who were leaving the room, we were told that it was not full and that there were places available, indeed.

Our intent, as academics, was to simply be informed of this new policy that the phonographic industry is now implementing in Brazil, and if at all possible to ask questions, just like the journalists did. But we were barred, and while we were waiting for someone coming out of the event room to tell us the news, the security men hired by the event made sure we were not doing “anything wrong” at the adjacent lounge of the hotel.

Accordingly, FGV’s Centre for Technology and Society, under its Access to Knowledge (A2K) programme, has prepared a document clarifying how restrictive the Brazilian copyright law is and how new technologies are being threatened by traditional business models, to further support an amendment to the Brazilian copyright law in order to bring a balance to the discussion. To date more than 8,000 persons signed the online petition to be sent to the Brazilian National Congress, supporting the proposal originally made by the Brazilian Intellectual Property Association (ABPI). The major communication channels in Brazil, including radio, TV, newspapers and magazines, have widely published on the issue, many of them heavily criticising IFPI’s measures.

Since then, FGV Centre for Technology and Society’s petition has officially received wide support from various institutions in the world, such as: USA’s IP Justice and Free Culture, France’s Association des Audionautes, Chile’s Derechos Digitales, Europe’s iRights, Peru’s CPSR-Perú, India’s Alternative Law Forum, and Brazil’s Intervozes, Information Network for the Third Sector (RITS), Brazilian Institute of Consumer Defense (IDEC), and Free Software Project Brasil (PSL-Brasil), the largest free software community in Brazil.

Rethinking the model

But what is important in all these discussions, and why we all should care about it? To name only a few, we are talking about the right to privacy; the right to, as a consumer, be clearly and correctly informed about the product; and the right to enter the market and the right of free competition. All these rights are either guaranteed by the Brazilian Constitution - just like several other countries’ constitutions - or by national legislation.

Let’s try to imagine a world without digital audio and video recorders, like CD and DVD burners, MP3 players and so on. Let’s imagine we are not allowed to record our favourite soap opera or TV show to watch it when we arrive home after work - “time shifting.” Had a famous 1984 US Supreme Court decision been different, today people in the United States, and perhaps in the whole world, would not be allowed to take such actions. None of the digital audio and video recorders today available, ranging from computers, music players, CD and DVD recorders, would (legally) be in the market. Not even our mobile phones would be allowed to record videos or sounds. None of the great advances made possible by these technologies would be legally allowed.

That was the first time we saw a definitely strong attempt by the content industry to prevent the technology industry from developing, under the argument that their technological inventions were causing or could cause enormous profit loss to the content/entertainment industry and the authors they “represent.”

Ironically, the content industry later learned that they could profit a lot by renting videotapes (now DVDs) to be played at the video recorders/players (VCRs) that they tried to ban. Another interesting fact is to see sometimes the same corporation profiting from both produts: content and technology, as is the case of Sony/Sony BMG.

Today, digital technology has made things much easier. The quality of a copy is relatively high, the costs for copying it tends to zero, it is definitely quite easy to make a copy, and the distribution of the work through the Internet is also quite simple and effective. Thus, consumers do not necessarily need intermediaries anymore, and they themselves are able to make their own high quality copies and also distribute and share them with others via peer-to-peer file sharing software. They can even create their own work, and make them available on the net. YouTube, MySpace and Overmundo are just three of the effective tools for sharing information and sometimes even creating your own work.

In Brazil, the price of music CDs are around US$14, varying 30 percent up or down, or around 10 percent of the Brazilian minimum wage per month! The price of a single digital song, bought on one of the only three legal online music stores in Brazil is around US$1, exactly the same price found in the US or in the European market. The gross domestic product (GDP) at purchasing power parity (PPP) per capita of these regions, as calculated by the World Bank and the International Monetary Fund in 2005, is widely distant: US$41,399 (USA), around US$30,000 (main European Union countries), and US$8,561 (Brazil), which means that, in real terms, the same song in Brazil costs almost 5 times more than in the US or 3.5 times more than in the EU. Definitely, the price of legal music in Brazil is way above the average local purchasing power.

While having this information, we know that the phonographic industry tripled its profits to US$1.1 billion from 2004 to 2005 with the sale of online music.

But that is not all. In Brazil, if one wants to legally download a song, she or he must be using Microsoft’s Windows proprietary operating system, once all of the three currently available online music stores run the WMA/DRM technological lock, which is not interoperable with Apple’s iPod, or with Apple’s operating system, or with any free software GNU/Linux distribution. All Linux users, thus, are encouraged to illegally download music, unless they patiently wait for a businesses to develop a system that runs with free software. Or everyone must also pay for a Windows license.

Preventing the evolution of new technologies may hinder the development of humanity. While even artists are against such bans and lawsuits, the courts should not prohibit “… socially admitted and widely practised behaviour where the aim is not to gain wealth illegally but to obtain private copies” as recently stated by a Spanish Judge on a case on P2P file sharing.

Why not, then, have a system that brings balance to the issue? The owners (normally corporations) have their rights, but what about the artists, the creators? What about the public at large, the consumers? And what about the differences of social classes? And more importantly, the right to access to knowledge, culture and information? The right to compete, to enter the market?

Why not, for instance, have a system with no digital lock at all - like DRMs/TPMs - so that no fair use in the broad sense of the term is prevented? TPMs, technological protection measures, just penalise fair players, the ones that are paying for it. The ones that want to earn money with illegal copies will continue to do so. Even inexperienced hackers know how to break the recently launched technological locks, and no legal text or lawsuit will prevent them from doing so. This will unfairly spread fear amongst the industry’s own consumers.

Likewise, why not allow for unlimited downloads on a monthly payment of, let’s say, US$2 in Brazil, and US$8 in the US, Europe and Japan? Being tremendously pessimistic, if only 1 percent of the Brazilian population or instead, 10 percent of the Brazilians that currently have Internet connection pay US$2 per month to have the right to unlimited downloads, then the phonographic industry would profit around US$4.4 million in either case. Should these figures be reasonably increased by 10 times, then we would have a profit of US$44 million. This is of course much less than the US$286 million announced for 2005 [.pdf], but again, that does not take into account the potential increase in the number of Brazilians with Internet access, nor any kind of associated value or service with the songs. Nor the elimination of the cost of the CD, and of its physical distribution. Nor the possibility of increasing profits once the recording industry may operate on a business-to-consumer (B2C) basis, thus eliminating intermediaries, and also getting to know better its consumers, for being closer to them. This also is not a definite proposal, just a spark for promoting the discussion towards a balanced system.

Like Marcelo Yuka, a famous Brazilian composer and musician, said at the “Music Process: between new business models and law suits” seminar organised by FGV on the 9th of November, “the discussion is not only within economic basis. It is time to bring the discussion within a human basis. … When dealing with intellectual property we are renegotiating my life not as an artist, but rather as a citizen. … It is crucial that the human aspect be the core of the discussion: I am a commons good, I create the national identity. I and all the other artists are intrinsic goods of the country just like petrol is.”

Pedro Paranaguá is professor of law at the Fundacao Getulio Vargas (FGV) School of Law in Rio de Janeiro, and researcher at FGV’s Centre for Technology and Society, where he coordinates the A2K programme. He earned his LL.M. in intellectual property from the University of London, Queen Mary, represents FGV Rio School of Law at the World Intellectual Property Organization (WIPO), is an invited lecturer at the Brazilian Patent and Trademark Office (INPI), Federal University of Rio de Janeiro (UFRJ), Rio de Janeiro State University (UERJ), and FGV Sao Paulo School of Law. Before joining the academic field, he worked for a couple of years as a lawyer at a Brazilian IP law firm, then led research at a nongovernmental organisation focused on access to medicines. Currently he is also legal consultant for the Brazilian Ministry of Culture, and has spoken on several national and international events on IP and sustainable development, and access to knowledge.

This work is licensed under a Creative Commons License. All of the news articles and features on Intellectual Property Watch are also subject to a Creative Commons License which makes them available for widescale, free, non-commercial reproduction and translation.

(extracted from OpenDocument Format Alliance website [.pdf])

Washington, DC, November 28, 2006

The OpenDocument Format Alliance (ODF Alliance), a broad cross-section of organizations, academia and industry dedicated to improving access to electronic government documents, today applauded Brazil’s decision to recommend ODF as the government’s preferred format; India’s decision to use ODF at a major state government agency; and Italy’s decision to recognize ODF as a national standard.

The Alliance also recognized Poland, too, for demonstrating serious interest in adopting ODF in the wake of a national meeting held for its government with broad participants from industry and non-profit agencies.

"2006 is ending as auspiciously as it began, with legions of government the world over expressing real support for ODF," said Marino Marcich, Executive Director of the ODF Alliance. "We congratulate Brazil, India, Italy, and Poland for recognizing ODF, each in their own way, and look forward to the movement’s continued momentum in the new year. ODF is providing compatibility that will enable diverse organizations worldwide to work better with one another at lower cost, and give them access to their own information."

With the publication of version of its 2.0 e-Ping Interoperability Framework [.pdf], Brazil becomes the first country in South America to officially recommend ODF. The framework states that all .xls, .doc and .ppt files are in transition, meaning they do not comply anymore with its technical policies, and that ODF is now the Brazilian Government’s officially recommended format. Brazil’s National IT Institute, Ministry of Defense, and State Government of Parana are members of the ODF Alliance.

In India, a government order was issued that ODF files will be used for the Delhi state government’s commercial tax office. For its part, Italy is now joining countries such as Malaysia that intend to recognize ODF as a national standard (please see www.uninfo.polito.it/SC34/SC34_Norm.... Italian standards bodies voted unanimously to recognize ODF as soon as the International Organization for Standardization (ISO) formally publishes IS 26300, which is expected shortly.

The Alliance has grown to 345 members in 50 countries, demonstrating continued momentum for the file format globally.

For more information about the ODF Alliance, please visit our Web site at http://www.odfalliance.org.

Last Tuesday, the 28th of November, World Culture Forum had as its main activity the I Creative Economy for Development International Forum. The Centre for Technology and Society (CTS) of Fundação Getúlio Vargas Law School was represented on the Intellectual Property Rights and Development symposium and on the IP Rights and Multilateral Agreements: What’s Next? workshop.

With the participation of the Brazilian Minister of Culture Gilberto Gil, Professor Ronaldo Lemos (Creative Commons Brazil and CTS), Richard Owens (WIPO, Geneve), John Howkins (writer and consultant on TV, film and creative economy, UK), Sérgio Sá Leitão (Brazilian Development Bank - BNDES, Brazil), Garry Neil (International Network for Cultural Diversity, Canada) and Joxean Fernández (UNESCO, Uruguay), the Intellectual Property Rights and Development symposium worked as a channel for a Minister’s call for the need of balancing intellectual property for developing countries:

"In view of the amplitude of intellectual property, there is no more space for dogmas on this theme. The Law must reach creative, social and economic purposes and must consider the situation of developing countries. It is necessary that the intellectual property world system embrace all possibilities. Japan modifies its regulatory mark every five years due to technological changes. We shall do the same. The Law must be well settled. The future of capitalist system is conditioned to the rethinking on intellectual property model. I saw both sides, as an artist and as a politician, and have been embracing the alternative creativity models cause. WIPO can not ignore the emergency of a new thought and cooperative ways of stimulating creation. The upcoming intellectual property models must think about the development policies according to national necessities of developing countries".

Richard Owens, director of the Copyright, E-Commerce, Technology and Management Division of World Intellectual Property Organization (WIPO), said that "today there is already a greater flexibility on copyright, but we still find some bottlenecks in it. There is still a resistance about if webcasting must be protected or not. This is a challenge".

The Centre for Technology and Society (CTS) of Fundação Getúlio Vargas Law School was also represented on the Forum’s workshops by Professor Pedro Paranaguá, A2K Brazil Programme coordinator.

On the IP Rights and Multilateral Agreements: What’s Next? workshop, Professor Paranaguá referred to the analyst James Boyle, in his column published on Financial Times newspaper, by observing that, according to the United Nations Development Programme (UNPD), less than 1% of existing patents in the world are owned by developing countries, and that, "since only about 4 per cent of copyrighted works more than 20 years old are commercially available, this locks up 96 per cent of 20th century culture to benefit 4 per cent".

I was sketched an evolutionary outlook on WIPO, from its foundation, in 1967, when its objective was to protect the intellectual property until its integration to United Nations (UN) in 1974. From then on, OMPI’s objective turned into "promoting creativity and technological development. So, intellectual property started having a social purpose, being a way for development, not an end in itself.

With the World Trade Organization (WTO) foundation and the creation of its foreseen sanctions against countries disrespecting rules that – for the first time in History – entail IP to commerce, there was an hardening on the deal with intellectual property. Nevertheless, still, United States manifest its intentions for expanding more and more the protection for IP withholders, through a range of bilateral treaties. Professor Paranaguá highlighted the North American unilateral pressure mechanisms, carried out through the United States Trade representative (USTR) and its famous ’black list’ or priority watch list [.pdf]. Concluding, it was exposed the influence of those bilateral and unilateral pressure measures in the protection level increasing and developing countries prejudice.

The event, that took place in Rio de Janeiro from the 26th to 29th of November, was organized by the South-South Cooperation Special Unit (SU-SSC) on the ambit of the United Nations Development Programme (UNDP), headquartered in New York, in partnership with the World Culture Forum and in collaboration with United Nations agencies, among them UNESCO.

The Brazilian Institute for Consumer Defense (IDEC) divulged on its website the institute support to the petition elaborated by the Centre for Technology and Society (CTS) at Fundação Getúlio Vargas Law School, to be sent to the Brazilian National Congress in order to amend the Brazilian Copyright Law. The petition was already signed by more than 8.600 people and its divulgation is fundamental.

The IDEC participation on the "Music Process" seminar, promoted by CTS last 9th of November, reinforced for the civil society the importance of discussing intellectual property face to new media – this moment of technological transition demands incisive action from consumers, in order to assert their rights, like obtaining clear and correct information about the purchased product or service.

Read below the reproduction of the IDEC’s website content.

For Brazilian Copyright Law modification

IDEC supports online petition for preliminary law project approval in order to modify the in force Law

The communication media evolution, the new technologies and the internet spreading, nowadays, are phenomena already known by everyone. On the other side, the incredible opportunities opened by this true technological revolution still provoke vehement debates over the world.

After all, would the existent intellectual property protection structure be capable to balance the legitimate interests of creators and consumers?

For IDEC, the desired balance will only exist through a revision of the existent legislation. That’s why the Institute supports the initiative of the Centre for Technology and Society of Fundação Getúlio Vargas School of Law, that will present to Brazilian National Congress a petition for preliminary law project approval in order to modify the Copyright Law.

In other occasions, IDEC already defended the flexibility for intellectual property norms. It was the case, for example, of the patent breaking aiming at stimulating medicine manufacturing at lower costs in Brazil and other developing countries.

Regarding access to knowledge and diverse cultural goods, the situation is not different. As a clear example, we can find great difficulty at the Universities for copying passages from educative material or, still, the impossibility of downloading music on the internet. According to the in force Law, both procedures are considered crimes, independently of their purposes or of the way in which they are taken.

The issue, however, is polemic, opposing, on one side, those impelled into strengthening the combat against piracy, and, on the other, society sectors that revolute the ways through what human kind got used to share or limit the access to knowledge.

It shall be highlighted that the Institute positioning is not about migrating into a system in which there is no legitimate compensation for authors and creators, but that that compensation is made compatible with the necessity of technology democratization and of access to knowledge, fundamental components for inclusion in the present information society.

For these reasons, IDEC supports the initiative of the Centre for Technology and Society of Fundação Getúlio Vargas School of Law. For joining the movement and including your name in this petition, click here: http://www.petitiononline.com/netlivre/.

Reproduction of today’s article on The Wall Street Journal.

In a Turnabout, Record Industry Releases MP3s

By Ethan Smith and Nick Wingfield December 6, 2006; Page B1

The music industry has long resisted selling music in the MP3 format, which lacks the copy protections that prevent songs from being duplicated endlessly. But now, Blue Note Records and its marquee artist, jazz-pop singer Norah Jones, are selling her latest single through Yahoo Inc. as an MP3 — despite the risk that it may add to piracy problems.

The move represents a small but significant retreat from one of the central tenets of the music industry’s digital strategy. EMI Group PLC’s Blue Note and other music companies are beginning to think they will have to sell some MP3-formatted music both to satisfy customer demand and to provide access to Apple Computer Inc.’s iPod for songs that are sold by online stores other than Apple’s iTunes Store.

Blue Note yesterday began letting Yahoo sell MP3s of Ms. Jones’s latest single, "Thinking About You." Another EMI act, Christian rock band Relient K, also released two MP3s through Yahoo yesterday. All of the songs will come without any of the software that normally keeps users from making unlimited copies of songs they buy online.

The releases come as some high-tech and music-industry executives are becoming increasingly concerned about Apple’s growing clout in the music business. Only online music files purchased from iTunes, ripped from users’ own CDs or downloaded from pirate services can be played on the popular iPod. Copy-protected songs purchased from Yahoo and other legitimate sources don’t work on it. By selling music in the MP3 format without copy-protection software, Yahoo can offer music that works easily on iPods.

Blue Note General Manager Zach Hochkeppel called the initiative "an experiment," adding that he doesn’t believe it will cut into sales of Ms. Jones’s forthcoming album, also called "Thinking About You," which is due out Jan. 30. That’s because even if early copies of the song end up widely copied among friends or online, Ms. Jones’s mostly adult fan base is thought to be less likely than teenage pop fans to be satisfied with just one song from the album and thus willing to buy the entire album even if they have gotten one song free.

"Nobody gets hurt — we think," Mr. Hochkeppel said.

The MP3 releases are coming as digital-music sales have stalled for the first time since Apple launched its iTunes Store in 2003. Digital track sales held steady at 137 million songs in the second and third quarters of this year, according to Nielsen SoundScan. That’s a slight drop from the 144 million sold in the first quarter.

The MP3 announcements highlight a growing internal debate at EMI and other music companies over the correct approach to maximizing the impact of digital sales. Throughout the music industry, executives at record labels who suggested using MP3s for promotions spent years butting heads with their corporate superiors.

Ted Cohen, an independent digital-media consultant who used to be EMI’s senior vice president for digital development, called yesterday’s announcement "a nice first step," but said the company hadn’t gone far enough. "We need to see some albums available as MP3," he said.

Mr. Hochkeppel confirms that he and other Blue Note executives had to overcome what he called "general resistance" on the part of senior EMI executives. He says they were ultimately persuaded there was a need to try fresh approaches to digital sales.

Since the rise of the original Napster in 1999, the music industry has largely blamed the free online trading of MP3 files for a 20% decline in its sales. As a result, it has insisted that when music is sold online by iTunes and others, it be delivered in formats that use special software called digital rights management, or DRM, to prevent copying and redistribution.

But music companies have grown increasingly troubled by Apple’s unwillingness to allow music it sells to play on devices from other manufacturers, or to allow music sold on other mainstream sites to work with the market-leading iPod. Music companies worry that those hurdles are holding back legitimate sales of music on the Internet. For instance, cellphone companies this season are rolling out numerous handsets that can play music, but most of them won’t play songs purchased from iTunes, cutting off a potentially major new market.

Apple spokesman Steve Dowling declined to comment.

For Yahoo, the deal with EMI represents another step in a long-running effort by David Goldberg, the vice president and general manager of Yahoo Music, to persuade recording companies to abandon their insistence on antipiracy software. Mr. Goldberg publicly floated the proposal at a music industry conference in February, but initially found few takers.

His reasoning: Antipiracy software on music isn’t helping the industry because the same music is already available without copy protection on CDs and through Internet file-sharing programs. What’s more, many consumers don’t like the limitations that copy protection imposes on how and on which devices they can listen to their music. If DRM benefits anyone, Mr. Goldberg argued, it’s technology companies like Apple, because it makes it trickier for consumers that have made hefty purchases of digital music through iTunes to switch to non-Apple music devices in the future.

"It just isn’t working," he said. "It’s not solving piracy. It’s not helping consumers: They view it as a tax."

For music executives, allowing Apple to gain increasing control over digital music sales — iTunes accounts for more than 90% of the tracks sold online some weeks, according to people who work in the music industry — is shaping up as the latest in a long series of strategic blunders that have helped create powerful new gatekeepers between them and their customers. (Past middlemen have included radio broadcasters, MTV and big retailers like Best Buy Co. and Wal-Mart Stores Inc.

Even as digital sales have stalled, peer-to-peer networks that traffic in pirated music — virtually all of it MP3s that can be played on iPods and other devices — have much more traffic than all the legitimate retailers put together.

Eric Garland, chief executive of BigChampagne LLC, which tracks peer-to-peer traffic, says more than one billion songs are traded over those networks every month. "It took iTunes several years to reach that particular mile marker," he notes. "The pirate market — if we considered that a market — would command better than 90% of the online marketplace."

One online retailer has, in fact, made a healthy business of selling MP3s. Dimensional Associates Inc.’s eMusic has made itself the No. 2 digital music retailer, by units sold, by selling all of its music as unprotected MP3 files. The catch: The company offers only music sold by independent labels, which don’t generally have the same stringent policies requiring copy-protection software that major labels do.

Sony BMG, Warner Music Group Corp. and Walt Disney Co.’s Hollywood Records have also made a handful of selections from their catalogs available as MP3s. Sony BMG, a joint venture of Sony Corp. and Bertelsmann AG, sold MP3s of a Jessica Simpson song earlier this year, as Hollywood did for Jesse McCartney.

Yahoo, which promoted the sale of MP3 tracks by Ms. Simpson and Mr. McCartney, didn’t see "massive, massive" sales of the music, but the results were satisfying, says Mr. Goldberg. He adds that Yahoo is also talking to independent labels about getting their music in the MP3 format and hopes to have a significant catalog of songs by next year.

On the next 12nd and 13rd, Brazilian Ministry of Culture (MinC) will promote in Brasília, the country capital, the National Seminar on Copyrights and the Role of State. Promoted by MinC with collaboration of the Centre for Technology and Society (CTS) of Fundação Getúlio Vargas School of Law – resulting from partnership through A2K Brazil Programme —, the seminar aims at "mediating a wide and propositional discussion forum that will subsidize the elaboration of the MinC’s Copyright Policy and of the National Plan for Culture (PNC).

The Seminar’s opening event will be conducted by the Brazilian Minister of Culture Gilberto Gil, with the participation of the Minister of Superior Tribunal of Justice, Carlos Alberto Menezes Direito; of the executive-secretary of the Ministry of Justice, Luiz Paulo Teles Barreto; and of the authoralist attorney José Carlos Costa Netto.

The discussions will be developed into eight debates: Public Domain, Limitations and Exceptions, New Licensing Modes; Technological Protection Measures (TPMs), Collective Rights Management; Models for Patrimonial Rights Assignment and Transferring, Registering of Protected Intellectual Works and Ethnic Groups’ Collective Copyrights and Traditional Populations. The complete programme can be found here [.pdf in Portuguese].

The Centre for Technology and Society of Fundação Getúlio Vargas School of Law will be represented by its general-coordinator, Professor Ronaldo Lemos, and by the A2K Programme coordinator, Professor Pedro Paranaguá. Dr. Lemos will debate the New Licensing Modes on a board with representatives from the artistic class and the phonographic industry. Dr. Paranaguá will participate of the board Technological Protection Measures (TPMs) together with the Brazilian Ministry of Culture representative Marcos Alves de Souza, and representatives from the Brazilian Society for Managing and Protection on Intellectual Rights (SOCIMPRO), Jorge Costa, and from the Brazilian online music store iMusica, Felippe Llerena.

Direto do Seminário Nacional sobre Direitos Autorais e o Papel do Estado, que ocorre em Brasília, imagens da solenidade de abertura do evento. A mesa foi conduzida pelo Ministro da Cultura Gilberto Gil, com a participação do Ministro do Superior Tribunal de Justiça, Carlos Alberto Menezes Direito; do secretário-executivo do Ministério da Justiça, Luiz Paulo Teles Barreto; do advogado autoralista José Carlos Costa Netto, e também contou com a participação especial do coordenador da Gerencia de Direitos Autorais do MinC, Otavio Afonso, que encontra-se licenciado do cargo por motivos de saude.

O Ministro Gilberto Gil destacou em sua fala a importancia dos direitos autorais para a promoção da diversidade cultural, bem como deu destaque para o papel do Estado em sua gestão, de forma a trazer um equilibrio entre os diversos interesses em jogo, tais como o dos autores, o da industria, bem como o do publico usuario do sistema ou das obras.

O seminário promovido pelo Ministério da Cultura (MinC) é um dos frutos da parceria do MinC com o Centro de Tecnologia e Sociedade da FGV DIREITO RIO, realizada através do Projeto A2K.

A equipe do CTS será representada, hoje, nos painéis Novas Formas de Licenciamento (pelo Dr. Ronaldo Lemos, coordenador-geral) e Medidas Tecnológicas de Proteção x Gravame (pelo Prof. Pedro Paranaguá, coordenador do Projeto A2K). Confira a programação completa.

From the National Seminar on Copyrights and the Role of State, taking place in Brasília, the country capital, images of the event opening. It was conducted by the Brazilian Minister of Culture Gilberto Gil, with the participation of the Minister of Superior Tribunal of Justice, Carlos Alberto Menezes Direito; of the executive-secretary of the Ministry of Justice, Luiz Paulo Teles Barreto; and of the authoralist attorney José Carlos Costa Netto. Also counted on the special participation of the coordinator of Copyright Division of the Brazilian Ministry of Culture, Otavio Afonso, out of his position due to health matters.

Minister Gilberto Gil highlighted in his speech the main importance of copyright for promoting cultural diversity, and also detached the role of State in his Ministry, so that it can balance the diverse interests of players like authors, industry and the users of the system or works.

The seminar promoted by the Brazilian Ministry of Culture (MinC) is one of the results of the partnership between MinC and the Centre for Technology and Society (CTS) of Fundação Getúlio Vargas (FGV) School of Law, through the A2K Programme.

CTS team was represented yesterday on the debates New Licensing Models (by Dr. Ronaldo Lemos, general cordinator) and Technological Protection Measures (by Prof. Pedro Paranaguá, A2K Programme cordinator). Check the programme out here [Portuguese version].

Collaborative culture, that, through well-succeeded projects like Wikipedia, aims at reaffirming the value of shared creation, has just achieved a new Brazilian representative.

Overmixter is a website for sampling and remixing developed by Overmundo in partnership with South African ccMixter. In it, the users can listen to, create and re-create music in a totally legal and free way. Songs, samples, remixes and vocals are licensed in Creative Commons, allowing artists from different places in Brazil to create collectively and spread their work.

In its launching, Overmixter promotes a remix contest that will take the winner to South Africa in order to work together with the South African prize winner, that will also come to Brazil.

Read more about Overmixter at Cultura Livre project website.

Ronaldo Lemos took over the reigns from former iCommons Chairman, Joi Ito at a board meeting in Berlin yesterday. Ronaldo is no stranger to iCommons. He is the force behind Creative Commons Brazil and a number of commons-related projects including the Cultura Livre project, and the Open Business Project, an international initiative taking place in Brazil, Nigeria, Chile, Mexico, South Africa and the UK. Ronaldo is also one of the founders of Overmundo, the largest Web 2.0 iniative in Brazil - a project that he is helping iCommons to extend to its own community in 2007.

Ronaldo is excited about the future of iCommons: ‘The future of iCommons is bright and we have important challenges ahead. Our first goal is to develop tools to empower the iCommons network, and to help the nodes of our community to speak out and act globally. Our meeting in Dubrovnic next June will consolidate our unique role of putting into practice new ideas regarding the future of culture, technology, and information policy.’

Although relinquishing his role as Chairman due to his recent appointment as Chairman of Creative Commons, Joi Ito will remain on the board of iCommons.

From the original iCommons.org

Originally written by Pedro Paranaguá, in Brazilian Portuguese.

There’s much being heard and spread, here in Brazil and abroad, regarding the Cicarelli v. YouTube case — the blocking of YouTube due to the law suit filed by the model, ex-wife of Brazil´s Ronaldo, the Phenomena.

Understand here what has been occurring and the consequences that may arise from this very important case.

In September 2006, the Brazilian model and TV show hostess Daniela Cicarelli, ex-wife of Brazil´s Ronaldo, the football player, and her boyfriend, Renato Malzoni Jr., filed two lawsuits against YouTube, Globo Organizations and the Internet Group (iG), one of them claiming moral damages and the other, for taking the video off of the website.

The video was filmed by a paparazzo on a beach in Cadiz, Spain, and shows Cicarelli and Malzoni Jr., in public, caressing each other on the sand and in presumed sex scenes in shallow water. The video was taken to the Internet, in the famous Google’s video-sharing website YouTube, and finished resulting in the mentioned lawsuits.

YouTube is perhaps the most popular video-website on the Internet. According to the company, the videos put online on its servers are watched 100 million times a day. YouTube was bought in 2006 for US$ 1.6 billion by the U.S. company Google.

A preliminary injunction (a Judge´s order by which the merit of the issue is not analysed, however, due to the urgency of the case, an initial step is taken and later confirmed or not by the Court of Appeals) of the Sao Paulo State Court of Appeals (TJ-SP) , a second instance Tribunal, obliged the websites to take the video off, under a daily fine of R$ 250,000 (circa US$ 115,000) if the order was not complied. According to supposed declarations (Portuguese version) by Rubens Decossau Tilkian, Malzoni Jr.’s lawyer, the fine is being executed (charged), but the website-blocking is a way of enforcing the Brazilian Justice decision, which had not being complied – some say that YouTube had not complied with the Tribunal´s preliminary injunction order of blocking the video. According to that lawyer, “They [YouTube] do not have an effective system to prevent the video from being published / made available again”.

As the video was not blocked, despite the Court of Appeals´s order, Malzoni Jr. filed another lawsuit, last December, claiming for YouTube to be entirely blocked, filtered as a whole, not just the video.

On 02 January, Tuesday, the Judge of the 4th Chamber of Private Law of The Sao Paulo Court of Appeals (TJ-SP), Ênio Santarelli Zuliani, ordered under another preliminary injunction, and based on a technical opinion given by an expert commissioned by the Tribunal, that all the five Internet backbone companies in Brazil, which are responsible for the traffic information between foreign and national websites,

“promote the setting of filters on the access solicitation or on the response entrance of the U.S. website [YouTube], in order to completely block the access, by Brazilians, to the video of the couple.”

In other words, the Judge ordered that the access to the video should be fully blocked. However, he has not mentioned if, for that purpose, the whole website should be blocked as well. The order is that the video should be blocked. He has not explicitly ordered to block YouTube as a whole, but according to the interpretation of Malzoni Jr.’s lawyer, the Judge demanded the total blocking of the website.

From then onwards, there was an enormous confusion, and different news agencies, both in Brazil and abroad, started divulging that the Sao Paulo State Court of Appeals (TJ-SP) had ordered the total blocking of YouTube.

And, indeed, Brasil Telecom as well as Telefonica, from the following weekend, blocked YouTube entirely. More than 5 million people, approximately 25% of Brazilians connected to the Internet, had their access to YouTube completely shut down. Nothing else could be accessed, not even that friends’ video, or that funny kitten cat, or that magnificent lecture by one of the greatest specialists on Internet in the world, Eben Moglen: the whole thing was blocked.

Middest the generated confusion, the TJ-SP made a press release informing on 04 January that the Judge has not ordered the total blocking of YouTube, but only of the referred video.

Accordingly, on 09 January, the Judge issued a new document, clarifying that “the total blocking of YouTube´s signal had not been ordered”, further ordering the

"restoration of YouTube´s signal, and requiring that the backbone companies restore the access to the website and inform the Court of Appeals the technical reasons of the presumed impossibility of blocking the electronic addresses."

The Judge also explained that the decision of blocking the website "is generating a multitude of comments, which is natural due to the pioneer issue, which does not have a law support". Therefore, he admits that the actual legislation is not sufficient to deal with the case.

Complying with the Judge´s last order, the access to the YouTube website was immediately unblocked.

It is worth mentioning that the Judge´s decision is only on the preliminary injunction, and there will follow a final decision taken by the Court.

Now that you have understood the facts of the case, please await for a deep and critical analysis of the multiple issues involved, such as some legal aspects, the web neutrality, the inefficiency of filtering, the trespassing of filtering limits, the need for a new law as regards of the Internet Service Providers’ (ISPs) responsibility in Brazil, the legal uncertainty and the prejudice for the development of the web 2.0 in Brazil, and yet the worrying precedent that the case might bring, clouding the image of Brazil on the Internet governance.

Soon, here.

Still about the case, last Sunday, 14 January, the vice-coordinator of the Centre for Technology and Society (CTS) of Fundacao Getulio Vargas School of Law in Rio de Janeiro (FGV DIREITO RIO), Professor Carlos Affonso Pereira de Souza gave an interview on the case for TV Globo´s Fantástico, the most popular TV Broadcaster in Brazil, and the second most watched TV show in the country, with over 30 million persons.

Originally written by Pedro Paranaguá, in Brazilian Portuguese.

After having read part I, about the Cicarelli versus YouTube case, we now proceed to part II: far beyond Cicarelli and YouTube.

As mentioned and criticized by some colleagues, this case is everywhere around: newspapers, magazines, radios, TVs, blogs in Brazil and in the whole world. Many just cannot hear about this case anymore – we needed to put a stop to that. But no, this is not our opinion.

What actually matters for us here is not if it is about Cicarelli, ex-wife of Brazil´s Ronaldo, the Phenomena, or any other famous person, or if it is about YouTube or any other website: what actually matters for us is the macro-analysis, and how that all may affect the Internet, freedom of speech, democratic access to information and absence of authoritarianism on the web. To sum up, the web neutrality.

So, let’s forget if it was Cicarelli the plaintiff. Let’s forget if it was YouTube the blocked website. Let’s now think about the possible consequences for the Internet neutrality.

In some moments, in order to elucidate the issue more clearly, mostly for lay persons, we will use examples that involve the concrete case: but, again, let’s not adhere uniquely to the Cicarelli case; let’s think wider, about the web neutrality.

Why blocking or filtering, are generally not welcome, be that about a whole website, be that about an specific content, like a video, within this website?

And the answer is:

independently if it aims at blocking a whole website or a certain content within that website, filtering shall always be the last solution. The general rule universally accepted is that content filtering is always the worst of the ways.

There are many papers on this issue, and it is important to mention the document developed by the Berkman Center for Internet & Society, of Harvard University.

The mentioned paper shows interesting data about content blocking in Saudi Arabia and China. In Saudi Arabia, for example, thousands of websites have been blocked, including websites containing information on health, education, women, humour, entertainment etc. Websites like the Rolling Stone music magazine, FoxSearchLight film searching, as well as a website about the museum of the Holocaust survivor, in Amsterdam, the Anne Frank House, have also been completely blocked.

The conclusion is that filtering is (practically) always inappropriate. There are at least three reasons for this:

1. Filtering is inefficient. The use of very simple and Internet-available technological mechanisms make possible the defrauding of the filters utilised. If the blocked or filtered content is a video, for example, and if the filter is put on the video’s given name, then, for the filter to be defrauded, one shall just change the video’s name so that the filter will not recognize it. When the keyword is removed the filter does not work anymore. In case the filter acts through the URL, i.e., the video’s address on the Internet, one may just create another URL for the same video and the blocking mechanisms will not recognize it, and thus the video will be available. If filtering occurs in the whole website, one may just access that website through a proxy server [Portuguese version], deceiving the filter. Beyond these possibilities, the content, in this case a video, may be put available on-line in another website. Therefore, there is no use in filtering YouTube, because surely that content will be available in other websites – as a matter of fact, it already is. Another way of making the filtering ineffective is to make the content available with the aid of file-sharing mechanisms: peer-to-peer (P2P) software like eMule, BitTorrent, LimeWire, SoulSeek etc..

Therefore, once on the web, a content will be hardly filtered.

2. Filtering always extrapolate the specific limits for what it was implemented. When a type of content is blocked, certainly other legitimate ones will be blocked too. So, filtering is not punctual, it always ends blocking other contents. It is the same as using a dragnet for fishing prawns and having a turtle coming together with it.

3. Filtering affects the called web neutrality. Imagine if the telecom companies blocked certain types of conversation? Society would be completely different. It is not a coincidence that filtering occurs in authoritarian countries, characterized by democracy pruning, like China, Saudi Arabia and, more recently, Thailand. The web can not be controlled so that it can become authoritarian. Democratic access to information must prevail. Only in extreme cases of great offensive potential, like paedophilia for example, measures like that can be taken. It is about the defense of children’s physical and psychological integrity: this is fatefully a consensus in society. Nevertheless, one or two people’s interests can not be put ahead of the interests of the whole collective, of millions of people, of the access to information, communications net integrity and technological neutrality. It is curious to note that on the same 9th of January, day in which the Sao Paulo State Court of Appeals (TJ-SP) informed that the tribunal did not claim the whole YouTube blocking, US congressmen brought back on the agenda the discussion on web neutrality, though the Internet Freedom Preservation Act.

We can go further on the discussion. Relating to illegal acts on the Internet, the ones that are not crimes but civil infringements, i.e., much more connected to private interests than to public interests, the fundamental principles of democratic access to information must prevail. And protecting those principles must be priority to the Judiciary Power, making clear that restrictions shall only occur as specific exceptions.

So, and as explicitly recognized [Portuguese version] by the Judge of the 4th Chamber of Private Law of The Sao Paulo Court of Appeals (TJ-SP), Ênio Santarelli Zuliani, in the specific case Cicarelli vs. YouTube,

there is a need for a new legislation on the issue. On the responsibility of the Internet Service Providers.

Brazil needs a new legislation that safeguard Internet Service Providers (ISPs) from the responsibility over the content that circulates through them.

The responsibility of the ISPs shall only arise in circumstances very specific, clear and prescribed by law, otherwise an improper juridical insecurity can be generated, being harmful for web innovation in the end.

Internet service and content providers are the favourite targets on judicial lawsuitings, because of its easy identification by having physical addresses and carrying out commercial activities, i.e., generally having revenues. Nevertheless, that strategy is wrong. More and more we see countries adopting specific legislations in order to safeguard ISPs from this practice of always being charged in first place. That protection is fundamental. To bring a balance related to providers’ responsibility is fundamental to promote technological innovation.

In this way,

the issue that is in Brazilian Courts can represent an obstacle for entrepreneurism on the Internet, and also bring an international extremely bad fame related to uncertain judicial decisions.

An entrepreneur, when calculating the risks of investing in a new web tool, mostly if it is about a platform through which it is possible that the Internet user himself build or at least upload contents – the called web 2.0 —, will think twice before moving forward. After all, in Brazil, who is the responsible for content? Our courts have been deciding in multiple ways. There’s uncertainty. There’s no specific law on the subject.

So, as can be seen, the concrete case Cicarelli versus YouTube is extremely important for the discussion we launched here, not because of its specificities, but because it directly affects the web neutrality and future issues in Brazil.

Give your opinion on this subject, constructively criticizing and/or suggesting solutions: please fill the form below.

Paper developed by the South Centre’s Innovation and Access to Knowledge Programme as part of the institutional partnership between Centre for Technology and Society (CTS) of Fundação Getúlio Vargas School of Law and South Centre, an intergovernmental organisation of developing countries with its headquarters in Geneva.

Post by Viviana Munoz, Ermias T. Biadgleng, Marcia Aribela, Caroline Ngome Eneme, Marumo L. Nkomo and Sisule F. Musungu (South Centre, Innovation and Access to Knowledge Programme).

Introduction

The 2006 World Intellectual Property Organization (WIPO) Assemblies took place from 25 September to 3 October 2006. At the session, Member States took decisions related to a wide range of issues, including major substantive and political ones, which have a direct impact on the ability of developing countries to protect the public interest and access, generate and use knowledge and technologies. From a development perspective, the main issues on which the WIPO General Assemblies took decisions were the following:

(a)The continuation of the discussion on the establishment of a Development Agenda for WIPO;

(b)The WIPO work plan on patent law issues and the Draft Substantive Patent Law Treaty (SPLT);

(c)The proposed Diplomatic Conference for a WIPO Treaty on the Protection of Broadcasting Organizations; and

(d)The work of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Other significant issues discussed at the WIPO General Assemblies included: the work of the Advisory Committee on Enforcement (ACE); the Protection of Audiovisual Performances; the Programme Performance Report for the 2004 – 2005 period, and the WIPO programme implementation during the first half of 2006; issues related to the strengthening of the role of Member States in WIPO governance and oversight, including the design, control and management of the WIPO programme and budget; the conclusion of the Singapore Treaty on the Law of Trademarks (Singapore Treaty), in March 2006; and the approval of WIPO agreements with other intergovernmental organisations.

This post presents a summary and non-exhaustive analysis of the decisions of the 2006 WIPO General Assemblies on the four key issues and their implications for developing countries and other stakeholders in 2007 and beyond.

The Discussions on Establishing a WIPO Development Agenda

Two years have passed since Member States of WIPO embarked on a process to establish a Development Agenda for WIPO, initiated by 15 developing countries that make-up the Group of Friends of Development (Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, Uruguay and Venezuela). From a development perspective, the process towards establishing a Development Agenda for WIPO is perhaps the most important one ever initiated in WIPO by developing countries.

The proposals as presented by the Friends of Development encapsulate many of the concerns that had been voiced for a long time by developing countries, academics, experts and civil society organizations in relation to the activities of WIPO and the role of the organization as a United Nations (UN) agency. These include, for example, concerns that WIPO’s work is not in line with that of other UN organisations and agencies, including that its technical cooperation and norm-setting activities do not fully take into account the different levels of development of countries, the need to protect the public domain, and that flexibilities in existing treaties are not sufficiently emphasised in technical assistance. The Friends of Development did not only raise these and other concerns, but also made pro-active and detailed proposals on how WIPO may transform its structure and governance as well as its programmes to be more development-friendly and aligned with the requirements of the Millennium Development Goals (MDGs). Other Member States such as the African Group, the United States, the United Kingdom (UK), Colombia, Mexico and a group of Arab countries have also made useful and specific proposals for a WIPO Development Agenda. There are now a total 111 separate proposals. Although there have been substantive discussions on many of the proposals, in-depth analysis is pending and no proposal has been agreed to or discarded.

The WIPO General Assembly at its 2006 session was faced with the crucial task of giving new direction and impetus to the process, given that the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA), a committee established under the authority of the General Assembly to discuss the various proposals on the establishment of a development agenda for WIPO, failed to reach consensus on the way forward. There was overall support for the process to continue, following agreement that the issues related to the establishment of a WIPO Development Agenda are of importance to all Members. The challenge, however, was the process for continuing the discussions. The main points of divergence on how to proceed related to: whether the PCDA mandate should be renewed, or if a permanent committee should be set up to continue discussions on the 111 proposals; the mandate and time period for the renewed PCDA, if so agreed; and the method for organizing the discussions on the 111 proposals to arrive at concrete results. During the General Assembly meeting, many different ideas were presented by Member States on the precise methodology for moving forward.

The final decision adopted provides both opportunities and challenges especially for the Group of Friends of Development and other developing countries interested in a WIPO that is better focussed on their development needs. The decision, among others, provided that: The mandate of the PCDA would be renewed for another period of one year with two 5-day sessions during the year organised in a manner that would allow for structured in-depth discussions on all 111 proposals made so far. The first session would address a first set of proposals contained in Annex A of the decision and the second the remainder of the proposals.

As done during the sessions of the PCDA in 2006, WIPO will provide financing for the participation of representatives from developing countries, including LDCs, as well as from countries with economies in transition, to attend the meetings of the PCDA. In order to facilitate the task and streamline the process for detailed examination of all proposals in an inclusive manner, the PCDA should undertake an exercise: to narrow down the proposals, in order to ensure that there is no repetition or duplication; to separate the proposals, which are actionable, from those which are declarations of general principles and objectives; and to note those proposals, which relate to existing activities in WIPO and those which do not. The Chair of the General Assembly would, in consultation with Member States, produce initial working documents.

The PCDA will report to the 2007 General Assembly, with recommendations for action on the agreed proposals, and on a framework for continuing to address, and where possible to move forward, on the other proposals following the 2007 General Assembly.

The opportunity is that there will continue to be a dedicated forum and space for developing countries and other stakeholders including civil society groups to discuss how to mainstream the development dimension into all WIPO activities and programmes and to ensure that the organisations governance structure is one that is responsive to changing times and to the needs of developing countries. It is hoped that better structured discussion based on initial documents prepared by the Chair of the General Assembly would produce better results than before. However, many challenges remain.

First, given that the mandate of the PCDA was renewed for only one year, and only two sessions of the PCDA will be held before the General Assembly session in 2007, taking into account the working methods of WIPO committees, arriving at consensus or agreement on the more important, and hence, the more difficult issues may prove elusive. If concrete results are not realised a lot of political capital will have to be expended again at 2007 Assemblies just to keep the discussion going. Second, because of the separation of proposals into two different sets, it is likely that Members would not want to make concessions until they know what happens to the second set of issues which may be considered more important. This is logical in any negotiations and especially in WIPO with recent history in mind. This means that, except with very visionary leadership at the PCDA, it is inevitable that the deal with have to be reached only at the 2007 General Assemblies.

Third, there is so far no clarity as to what success for the development agenda will mean. To some it is short-term gains. To others it is a question of long-term transformation of WIPO both in terms of structures and processes as well as in terms of organisational culture. From the latter perspective, a lot of progress has already been achieved and its worth spending as much time as is necessary to move forward. From the former perspective the faster we close the issue the better and so some quick gains should be good enough. The test will be which perspective developing countries take. Finally, is the continued view among developed countries that the Development Agenda is against their interests and the seeming efforts to contain the proponents as revealed by an Intellectual Property Watch (IP-Watch) exclusive story on the discussions in Group B (developed countries) on how to deal with the development agenda (http://www.ip-watch.org/weblog/index.php?p=449&res=1280&print=0). In these circumstances there remains a significant trust deficit.

The Future of the Draft Substantive Patent Law Treaty (SPLT)

Discussions concerning the Draft Substantive Patent Law Treaty (SPLT), and more broadly, on patent law issues, have come to a stand-still in WIPO. This is largely a result of the growing concerns regarding the potential economic and social impacts of the proposed international binding standards in fundamental areas of patent law. A turning point in the discussion took place at the 2005 session of the WIPO General Assembly, that decided in respect of a work plan for the Standing Committee on the Law of Patents (SCP) and the discussions on the SPLT, that an informal open forum would be held in Geneva in the first quarter of 2006 on all issues that have been raised in the draft SPLT, or that Member States wish to include in the draft SPLT. The informal forum, which was followed by an informal session of the Committee, was intended to provide an opportunity to begin sorting out the impasse.

While the Open Forum was an important event that helped create greater understanding on a number of issues and fostered fruitful exchanges among an array of stakeholders, the informal session of the SCP, meant to take forward the discussions started in the open forum, was unable to agree on a work programme for the SCP. Member States were unable to break the deadlock between two different positions; on the one hand, developed countries together with some of the economies in transition wishing to join the European Union (EU) or those that are members of the European Patent Organization (EPO), commonly called Group B+ insistence that the SCP should have a limited work plan based on a “reduced package” composed of four issues identified by them (also known as SPLT-light) and, on the other hand, most developing countries which have argued that their concerns must also be part of any package and should be discussed on an equal footing with Group B+’s four issues.

It is in this context that the WIPO General Assembly at its 2006 session had to address the issue. After lengthy discussions and informal consultations little progress was achieved in terms of narrowing the differences. As a result, the SCP will be in virtual suspension in 2007 as Members seek to find a way forward based on the decision of the General Assembly that: delegations may submit, by December 2006, proposals for the work programme of the SCP including proposals on ways forward or approaches; the Chair of the General Assembly will conduct informal consultations in the first half of 2007 with the aim of discussing the proposals and recommending a work plan for the SCP to the General Assembly in September 2007; and the General Assembly in 2007 will consider the results of the consultations with a view to establishing a work plan for the SCP for 2008 and 2009.

Parallel to the SCP process, two other processes related to the SPLT and the general WIPO work on patent law issues are currently underway. These two processes will have direct or indirect implications for the discussions on the future of the SCP work plan and should therefore be kept in mind. The first is the process by Group B+ to continue discussions on the four issues outside of WIPO. The aim of the initiative is to move the negotiations for a SPLT outside of WIPO, if the process in WIPO does not move forward in accordance with Group B+’s expectations. Developing countries need to watch developments in this process but should resist pressure to agree to the terms of the discussion on the SPLT that do not include their interests.

While it is preferable to have a multilateral discussion on these issues it can not be that such multilateral discussions are predicated on a “what we want or nothing” attitude that Group B+ has taken. Indeed, one lesson to learn here is that time might have come for developing countries to seriously consider shaping the international processes by having development-oriented South-South IP Agreements which would provide a template for international discussions. Such Agreements, which could take the form of soft or hard law, could be considered regionally or cross-regionally. Whether the idea of South-South development-oriented IP agreements is pursued or not, however, consideration will need to be given to developing countries finding a forum where they can shape their positions beyond mere coordination.

The second important process is the series, started in 2006, of WIPO patent colloquia on various patent-related issues some of which have been previously proposed for discussion by developing countries and civil society groups. The discussions, provided that the colloquia offer a true multistakeholder platform to discuss these key issues outside of negotiations, should obviously be welcomed. In the context of the future work plan of the SCP these discussions are important because they are likely to shape the thinking on these issues in 2007 as informal consultations continue. The discussion on the issue offer an opportunity to shift the discussion in WIPO from a narrow focus on the SPLT to a larger set of key patent-related issues that are important not only to public interest groups but also to governments and industry as the previous colloquia discussions have demonstrated. However, the colloquia should not be seen as an alternative forum to discuss those issues raised by developing countries and civil society while the SCP is reserved as the forum for discussing the SPLT-light.

The Proposed WIPO Treaty on the Protection of Broadcasting and Cablecasting organisations

One of the most important and contentious issues for WIPO Member States during the General Assembly at its 2006 session related to whether, and under what conditions, to convene a diplomatic conference to negotiate a new instrument on the protection of broadcasting organizations, including cablecasting organizations. At the last session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in September 2006, there was a clear lack of consensus among Member States both on how to proceed and on the substance of a possible new instrument on the protection of broadcasting organisations.

The lack of consensus was again evident in the discussion during the WIPO General Assembly, a clear sign that despite having discussed the issue for over 8 years, very little in-depth analysis and substantive discussions have taken place in relation to the possible new instrument. The European Communities (EC), Russia, Mexico and Japan were the main countries expressing support for a decision by the General Assembly to accept the full recommendation of the SCCR. Traditional broadcasting organisations in the EC have long been lobbying their governments for the conclusion of a treaty that would create new rights and additional protection for their signals and broadcasts, in addition to those they currently enjoy under the Brussels Satellite Convention, the Rome Convention and the TRIPS Agreement.

On the other hand, the United States and other developed countries, including Canada as well as other countries, opposed the scheduling of a Diplomatic Conference for the date recommended by the SCCR, noting that there was a clear lack of consensus among countries on many issues, including the scope of the proposed instrument. The United States government has, over the past year, been subject to increased internal pressure from civil society and business stakeholders, including internet service providers (ISP) and podcasters, to oppose the proposed treaty. Among other reasons, these stakeholders view the proposed instruments as unnecessary and potentially harmful particularly the proposals to grant broadcasting organisations exclusive rights that would extend beyond those required by the Rome Convention. The United States is also concerned with some of the alternative provisions concerning competition policy, protection of cultural diversity and specific limitations and exceptions that have been submitted by developing countries and are currently included in the Revised Draft Basic Proposal.

Many developing countries, including Brazil, India, the African group, among others, expressed reservation concerning the convening of a diplomatic conference since further analysis and impact assessments were required and there was still no agreement on the objectives, scope, and object of protection of the proposed instrument.

Clearly a decision to convene a Diplomatic Conference requires careful consideration, especially by developing countries given the central role that broadcasting plays in the diffusion, transmission and absorption of knowledge in these countries’ social and economic development. Developing countries need broadcasting services to remain accessible and affordable to all citizens, and to follow the values and objectives of that underpin the media system, including freedom of expression, access to information, media pluralism and cultural diversity. For developing countries, the most unfavourable outcome would not be a failed Diplomatic Conference, but an unbalanced treaty that may lead to unintended consequences, including possible restrictions on the flow of information, access to knowledge, freedom of expression and cultural diversity; unnecessary costs for consumers and exclusion of the poor from the social benefits of broadcasting; stifling of competition and technological innovation; the stalling of creative activity; and prejudicing the rights of copyright owners and other related right holders.

Due to persisting divergences the General Assembly decided to convene a diplomatic conference subject to certain conditions. Among others it was decided: To approve the convening of the Diplomatic Conference on the condition that two special sessions of the SCCR to clarify the outstanding issues will be convened the first one in January 2007, and the second one in June 2007 in conjunction with the meeting of the preparatory committee. It is understood that the sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal. The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on document SCCR/15/2. The scope of the treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense. That the Revised Draft Basic Proposal (document SSCR/15/2) will constitute the Basic Proposal with the understanding that all Member States may make proposals at the Diplomatic Conference.

The decision of the General Assembly made important modifications to the recommendations submitted to it by the SCCR. Primarily, it was agreed that the Diplomatic Conference cannot take place unless agreement is achieved, based on a signal-based approach, on the objectives, specific scope and object of protection of the proposed treaty on the protection of broadcasting organizations. This reflects the position of most Member States that the Revised Draft Basic Proposal, document SCCR/15/2, while constituting a good basis for continued discussions, does not constitute a sufficient basis to move towards a Diplomatic Conference.

The main challenge for Members now will be to seek to build consensus on the main aspects of the proposed treaty to ensure that the new protection that may be granted to broadcasting organizations is not overly broad and that such protection, if necessary, does not give rights to organizations which do not necessarily require such protection. The participation of civil society organisations and other stakeholders, including industry, in the upcoming SCCR meetings will be important to present evidence of the problems with the proposed approach and the potential negative effects of granting overbroad protection or exclusive rights to broadcasting and/or cablecasting organizations. It is quite clear that not even the sophisticated developed countries know what the possible implications of the treaty are and who will benefit.

Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

For almost eight (8) years now, the relationship between intellectual property rights and the use, conservation and appropriation of genetic resources, traditional knowledge and folklore has been the subject of important discussion at WIPO. Related discussions have also continued in other intergovernmental organisations, including at the Convention of Biological Diversity Conference of the Parties (CBD - COP) and the World Trade Organisation (WTO) as well as other WIPO Committees and bodies such as the SCP and the Working Group on the Reform of the Patent Cooperation Treaty.

Since the creation of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) in 2001, the participation of Member States, civil society organisations, indigenous groups and other actors has been growing exponentially. While the IGC has provided a space for a number of stakeholders to meet and discuss, and a large number of documents, which have helped to increase the understanding of the issues, have been produced, progress has been slow. One of the reasons for the slow progress seems to be the complexity of the issues and large divergences of views in respect to the role that the intellectual property system may play in relation to the protection and appropriation of genetic resources, traditional knowledge and folklore. Another reason could be that some developed countries have an interest in slow progress so as to stall progress on this issue in other intergovernmental organisations, particularly WTO, as well as other WIPO Committees such as the SCP. These developed countries have argued that since the discussions are taking place in the IGC, parallel discussions should not proceed elsewhere. The mandate of the IGC currently extends until the year 2007.

The priority for developing countries continues to be the advancement of the discussions in all related fora. Given that the IGC at its last session held from 24 – 28 April 2006 only forwarded to the General Assembly a report of its activities, no decisions were expected to be taken by the 2006 General Assembly. However, the General Assembly can provide guidance to the work of any Committee, including the IGC. In this regard, during the General Assembly discussions developing countries highlighted the need to accelerate the work of the Committee to generate tangible results that excludes no outcome, including the possible development of an international instrument or instruments on the protection of traditional knowledge and traditional cultural expressions, as well as mechanisms to prevent the misappropriation of genetic resources. Several developing countries also asked the General Assembly to provide clear directions to the IGC to accelerate and finalize its work before the expiry of its current mandate in 2007.

Conclusion

The various decisions of the WIPO General Assembly at the 2006 session have set the stage for 2007. The various key decisions provided important opportunities for developing countries to bring their concerns to, and seek solution at WIPO. With the growing importance of discussion on IP and the socio-economic impact of the current international standards and rules these opportunities should be fully utilised. At the same time, however, significant challenges still remain for these countries. Clearly articulating their concerns and generating evidence for workable solutions, committing the necessary political, material and intellectual capital, coordinating joint positions and being able to set the agenda at WIPO and other related forums are some of the key problems and challenges. Exploiting the opportunities offered by the decisions of the 2006 WIPO General Assembly decisions will therefore also mean addressing these challenges.

In the joint statement handed on the First Special Session of the WIPO’s Standing Committee on Copyright and Related Rights (SCCR), that took plane in Geneva last January, industry representatives like AT&T, Dell, HP, Intel, Panasonic and Verizon joined NGOs like Creative Commons, CPTech, EFF and IPJustice on the defense of a new approach to the Broadcasting Treaty.

Organisations like Consumer Federation of America (CFA), Broadband Service Providers Association (BSPA) and International Federation of Library Associations and Institutions (IFLA), among others, also signed the statement, reproduced below (highlights of the original).

Joint Statement of Certain Civil Society, Private Sector and Rightsholders Representatives for the First Special Session of the SCCR

The undersigned organisations represent a broad set of constituencies with a direct interest in the discussions underway regarding an international instrument relating to broadcasting.

Whilst we remain unconvinced that a treaty is necessary at all – and note that no convincing evidence has been presented that new international norms are required in this area – we do believe that a focussed, signal-protection-based Instrument to prevent piracy could be valuable. In the spirit of constructive engagement, we therefore submit the following for consideration of delegations:

1 If the treaty moves forward in any form, we believe that the current rights-based approach of the treaty must be abandoned entirely. We understand that some parties to these negotiations have equated ‘signal protection’ with granting ‘rights to prohibit’ certain uses of broadcasts. We believe that rights in any form are not signal protection, or signal-based protection, and we cannot support their inclusion in any potential new Instrument in connection with Broadcasting.

2 We submit that this Instrument should not be negotiated in either a ‘Rome+’ or ‘Rome–’ context. The TRIPS Agreement, The Brussels Satellite Convention and the Phonograms Convention are all ‘Rome–’ as regards the rights granted to various Rome beneficiaries and all postdate the Rome Convention. Further, we believe that strong signal protection provisions, such as those we have recommended and continue to recommend as an alternative to the current Draft Basic Proposal, are entirely congruent with the Rome Convention.

3 To the degree that the treaty allows for Contracting Parties to create broader rights or protections beyond protection against intentional signal theft, then we submit that a mandatory set of limitations and exceptions must be included in the treaty in order to ensure that uses of broadcast content that are lawful under copyright law are not inhibited by the treaty. At a minimum, limitations and exceptions under the treaty should be equivalent to those that an implementing state provides under its copyright laws, and should provide flexibility for additional limitations and exceptions that are appropriate in a digital network environment.

4 Under the current Draft Basic Proposal, the broad scope of the proposed rights, combined with proposed additional rights to use technological protection measures (TPMs) in connection with these rights, raises questions about whether the beneficiaries would gain the ability to control signals in the home or personal network environment. Such control is without precedent and would interfere with the rollout of broadband and home and personal networking services and limit the development of innovative devices that provide home and personal networking functionality. Accordingly, the treaty should include a provision excluding coverage of fixations, transmissions or retransmissions across a home network or personal network. Further, we should note that many organisations within our group believe that TPM provisions are inappropriate in connection with this treaty and should be excluded from the treaty entirely.

5 The inclusion of ‘by any means’ in important elements of the Draft Basic Proposal clearly provides for control over Internet retransmissions of broadcasts and cablecasts. Whilst members of our group do not share a common view about the best approach to addressing Internet-related issues, we are united in our belief that the current approach is unacceptable. Further, to the extent that the treaty continues to take a rights-based approach rather than a signal theft or signal protection approach, we oppose the treaty’s application to the Internet.

6 To the extent that the Treaty continues to include Internet transmissions in its scope, we wish to make clear our serious concerns that network intermediaries would face the threat of direct or secondary liability for infringement of the broad rights granted under the current Draft Basic Proposal. The limitations of liability afforded to intermediaries today under existing national laws would only protect against copyright infringement, not against a violation of these broad new rights. Should a new Instrument result from these negotiations that includes any protection of Internet transmissions of any kind, we submit that the treaty must ensure that network intermediaries do not face liability for alleged infringement of rights or violations of prohibitions by virtue of actions they take in their normal course of business or as a result of the actions of their customers.

We wish to draw to distinguished delegates’ attention that the issues identified in this Statement do not represent a comprehensive list of the concerns of all the undersigned. Individual organisations intend to independently raise other issues of serious concern.

We are at the disposal of the distinguished delegates to the SCCR to discuss these views.

AMD – Advanced Micro Devices

YISP – Yale Information Society Program

The United States Patent and Trademark Office (USPTO) approved, in the end of January, the unappeable enforcement of the investigation of the national patent number 6.988.138, which protects "Internet-based Education Support System and Methods". In August, 2006, the business company that owns that patent, e-learning software developer Blackboard, even sued its competitor Desire2Learn for developing e-learning softwares.

The non-governmental organisation Software Patent Law Center (SFLC) requested the re-examination process in the name of a serie of open source software projects. Accoridng to SPLC’s press release, “A re-examination of this type usually takes one or two years to complete. Roughly 70% of re-examinations are successful in having a patent narrowed or completely revoked”.

Source: TecnoLlama Blog, by the E-commerce Professor of University of Edinburgh Andres Guadamuz.

Fifteen months since the adoption of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, it was reached the initial number of 30 ratification instruments of UNESCO’s Member-States, necessary for the implementation of the instrument that finally entered into force in the 18th of March.

In Brazil, the Convention text was approved at Brazilian Federal Senate about two monst ago, after following the proper procedures and being approved at the Federal House. The presentation of the ratification instrument to UNESCO happened on the 16th of January, 2007.

The oficial text of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions [.pdf] can be accessed here.

After four days of negotiations amongst players from the phonographic sector, and intense cultural activities, on the 11th of February it has ended in the northeastern Brazilian city Recife the 1st Brazilian Music Fair 2007, event promoted by the Brazilian Ministry of Culture (MinC) and the Brazilian National Bank for Development (BNDES).

The Center for Technology and Society (CTS) was invited for minister the course Copyright on Music. During three days, CTS professors Pedro Paranaguá and Sérgio Branco, plus Caio Mariano, juridical cordinator of the Culture Points, by MinC, put in the public eye the discussions on the future of copyright in face of the use of new technologies, the revolution of collaborative works, the access to knowledge, Creative Commons and new business models.

Brazilian Music Fair 2007 is a pilot action of the Cultural Economy Development Program (PRODEC), created by the Brazilian Ministry of Culture and envigorated this year, as attested by Minister Gilberto Gil at the Fair releasing speech, aiming at supporting and promoting the productive dimension of Culture activities.

The event was a promotion by the Brazilian Ministry of Culture and the Brazilian National Bank for Development executed by the Brazilian Association of Independent Music (ABMI) and supported by Petrobras, partnership with Recife City Hall, Brazilian Service for Support to Small Enterprises and the Pernambuco State Government.

It took place in Brasília the 1st Seminar on Juridical Information Management for Digital Environments, organized by the Brazilian Federal Supreme Court and headquartered at the Brazilian Labor Court from the 12nd to the 14th of February.

Professor Pedro Paranaguá, A2K Brasil Project leader, joined the programme of the first day of the event, speaking about Creative Commons and alternative licensing models for cultural works. Besides representatives of academia and national public institutions, 26 foreign speakers presented their experiences in French, North-American and Italian bodies.

The themes were around copyright within’ digital spaces, fundamentals of information architecture, practical information architecture, digital information treatment, accessibility and recovering of juridical information within’ digital spaces.

The Seminar had around 500 participants from juridical comunity, librarians and IT professionals, and aimed at disseminating new tendencies, concepts and technologies applied to juridical information management for digital environments.

The event, produced by the Brazilian Federal Supreme Court, was supported by bodies like Brazilian Labor Court, IBICT (Brazilian Institute for Information os Science and Technology) and Brasília University.

During Brazilian Carnival, on the 19th of February began the third meeting of the WIPO Provisional Committee for Proposals Related to a Development Agenda (PCDA), a serie of discussions on World Intellectual Property Organization ’s Development Agenda, in Geneva. Reporting direct from Switzerland, the Center for Technology and Society of Fundação Getúlio Vargas School of Law published a serie of posts on A2K Brazil website.

The Development Agenda was proposed at the WIPO General Assembly in September of 2004, primarily by Brazil and Argentina, that soon formed a 14 countries group, the called Friends of Development Group.

Joined this session 105 Member States of WIPO, plus 43 observers, including non-governmental organizations (NGOs) and intergovernmental organizations (IGOs).

At the end of the meeting, on the 23rd of February, it was adopted the President’s Resume, which mentions that on the 5th of April the Report Draft of this third PDCA session will be done and available on WIPO’s website. Comments on the Draft will be accepted due to the 20th of Aprl, so that it will achieve a final version.

The Resume has a four pages append in which are listed the agreed topics, divided in six cluters. The digital version, reproduced below, of the printed handed document was made available by the Yale Information Society Project.

Cluster A: Technical Assistance and Capacity Building

1. WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and actvities should include time frames for completion. In this regard, design, delivery mechanisms and evaluations processes of technical assistance programs should be country specific.

2. Provide valuable assistance to WIPO through donor funding, and establish Trust-Funds or other voluntary funds within WIPO specifically for LDCs, whole continuing to accord high priority to finance activities in Africa through budgetary and extra-budgetary resources, to promote, inter alia, the legal, commercial, cultural, and economic exploitation of intellectual property in these countries.

3. Increase human and financial allocation for technical assistance programs in WIPO for promiting a, inter alia, development-oriented IP culture, with an emphasis on introducing intellectual property at different academic levels and on generating greater public awareness on IP.

4. Place particular emphasis on the needs of SMEs and institutions dealing with scientific research and cultural industries and assist Member States, at their request, in setting-up appropriate national strategies in the field of IP.

5. WIPO shall display general information on all technical assitance activities on its website, and shall provide, on request from Member states, details of specific activities, with the consent of the Member State(s) and other reicipients concerned, for which the activcity was implemented.

6. WIPO’s technical assitance staff and consultants shall continue to be neutral and accountable, by paying particular attention to the existing Code of Ethics, and by avoiding potential conflicts of interest. WIPO shall draw up and make widely known to the Member States a roster of consultants for technical assistance available with WIPO.

7. Promote measures that will help countries deal with IP-related anti-competitive practices, by providing technical cooperation to developing countries, especialy LDCs, at their request, in order to better understand the interface between intellectual property rights and competition policies.

8. Request WIPO to develop agreements with research institutions and with private enterprises with a view to facilitating the national offices of developing countries, especially LDCs, as well as their regional and sub-regional IP organizations to access specialized databases for the purposes of patent searches.

9. Request WIPO to create, in coordination with Member States, a database to match specific IP-related development needs with available resources, thereby expanding the scope of its technical assistance programs, aimed at bridging the digital divide.

Cluster B: Norm Setting, Flexibilities, Public Policy and Public Domain

1. Norm setting activities shall:
be inclusive and member dirven;
taken into account different levels of development
take into consideration a blaance b/t costs and benefits
be a particiaptory process, which takes into consideration the interests and priorities of all WIPO Member States and the viewpoints of other stakeholders, including accredited inter-governmental organizations and non-governmental organizatons; and
be in line with the principle of neutrality of the WIPO Secretariat.

2. Consider the presrevation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and beneifts of a rich and accessible public domain.

Cluster C: Technology Transfer, Information and Communication Technologies (ICT) and Access to Knowledge

1. To request WIPO, within its mandate, to expand the scope of its activities aimed at bridging the digital divide, in accordance with the outcomes of the World Summit on the Information Society (WSIS) also taking into account the significance of the Digital Solidarity Fund (DSF).

2. To explore IP-related policies and initiatives necessary to promote the transfer and dissemination of technology, to the benefit of developing countries and to take appropriate measures to enable developing countries to fully understand and benefit from different provisions, pertaining to flexibilities provided for in international agreements, as appropriate.

3. To encourage Member States, especially developed countries, to urge their research and scientific institutions to enhance cooperation and exchange with research and development institutions in developing countries, especially LDCs.

4. Facilitating IP-related aspects of ICT for growth and development: Provide for, in an appropriate WIPO body, discussions focused on the importance of IP-related aspects of ICT, and its role in economic and cultural development, with specific attention focused on assisting Member States to identify practical IP-related strategies t use ICT for economic, social and cultural development.

5. To explore supportive IP-related policies and measures Member States, especially developed countries, could adopt for promoting transfer and dissemination of technology to developing countries.

Cluster D: Assessment, Evaluation and Impact Studies

1. To request WIPO to develop an effective yearly review and evaluation mechanism for the assessment of all its development-oriented activities, including those related to technical assistance, establishing for that purpose specific indicators and benchmarks, where appropriate.

2. With a view to assisting Member States in creating substantial national programs, to request WIPO to conduct a study on constraints to intellectual property protection in the informal economy, including the tangible costs and benefits of IP protection in particular in relation to generation of employment.

3. To request WIPO to undertake, upon request of Member States, new studies to assess the economic, social and cultural impact of the use of intellectual property systems in these States.

Cluster E: Institutional Matters including Mandate and Governance

1. To request WIPO, within its core competencies and mission, to assist developing countries, especially African countries, in cooperation with relevant international organizations, by conducting studies on brain drain and make recommendations accordingly.

2. To request WIPO to intensify its cooperation on IP related issues with UN agencies, according to Member States’ orientation, in particular UNCTAD, UNEP, WHO, UNIDO, UNESCO and other relevant international organizations, especially WTO in order to strengthen the coordination for maximum efficiency in undertaking development programs.

3. To conduct a review of current WIPO technical assistance activities in the area of cooperation and development.

4. To enhance measures that ensure wide participation of civil society at large in WIPO activities in accordance with its criteria regarding NGO acceptance and accreditation, keeping the issue under review.

Cluster F: Other Issues

1. To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that "the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technology knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations", in accordance with Article 7 of the TRIPS Agreement.

Yesterday, for the very first time in Brazilian history, a pharmaceutical company had its patent compulsorily licensed by the Federal Government due to its public interest. Before the issuance of the compulsory license, President Luis Inacio Lula da Silva issued a decree declaring the anti-retroviral Efavirenz of public interest.

The anti-retroviral Efavirenz, used by 38% of Brazilians under AIDS treatment, is currently held by the North-American laboratory Merck Sharp & Dohme, the owner of the patent. According to the Brazilian Government, the measure will allow a decrease of 72% on the drug’s current price now that generic versions of Efavirenz will be imported from Indian laboratories.

Merck will receive from Brazil royalties of 1,5% over the amount invested on purchising of the drug from Indian laboratories. The compulsory licensing is a legal and legitimate instrument recognized by both Brazilian law and international trade agreements, namely the TRIPs agreement of the World Trade Organisation.

According to informations provided by the Brazilian Ministry of Health, "the practice of compulsory licensing for pharmaceutical products is frequently used both by developed (Italia and Canada, for example) and developing countries. In antiviral drugs case, developing countries already used that flexibility: Mozambique, Malasya, Indonesia and, more recently, Thailand".

We from the Center for Technology and Society from Fundação Getulio Vargas School of Law in Rio de Janeiro support the historical decision held by the Brazilian Federal Government, as well as the work of the Brazilian Interdisciplinary AIDS Association and the Medecins Sans Frontiers in Brazil.

Below, we reproduce the document released by the Working Group on Intellectual Property (GTPI) from the Brazilian Network for the Integration of Peoples (REBRIP) on Friday, the 4th of May, 2007.

The Working Group on Intellectual Property (GTPI) from the Brazilian Network for the Integration of Peoples (REBRIP) expresses its support for the federal government’s decision to issue a compulsory licence for the antiviral drug, Efavirenz, whose patent is current held by Merck Sharp & Dohme. This historical decision reinforces the efforts of civil society groups fighting for access to medicines, for the sustainability of public health policies, such as universal and unlimited access to antiretroviral medicines used in the treatment of HIV/AIDS, and for the strengthening of the Brazilian public health care system, the Unique Health System (SUS).

We understand that the use of compulsory license allows the procurement and production of more affordable generic versions, providing the guarantee of fundamental human rights, especially health’s rights. The measure taken by the Brazilian government takes into account the government’s conditions to guarantee the supply, considering the possibility to immediately import medicines with quality and the local production subsequently.

We would like to emphasize that the use of compulsory licences is a legal and legitimate instrument recognized by both Brazilian law and international trade agreements, namely the TRIPS agreement of the World Trade Organisation. The interests behind the drafting and adoption of this agreement are becoming clearer every day and demonstrate how private interests, increasing the profit margins of multinational companies, are appropriating knowledge and technological goods. These profits are extremely high, especially when one considers that they are earned thanks to the protection of products that are essential for human survival – in this case, medicines.

Finally, we consider sovereignty as a central political and legal institution of the State. As such, trade agreements must not prevent States from adopting measures that aim to protect health, safety and the independence of the people. In this sense, the measure adopted by the Brazilian government today represents a victory of common-sense in dealing with the question of access, and can and should stimulate the issuing of licences for other medications that are fundamental for the treatment of various diseases affecting the country.

Efavirenz is one of the most used for the anti-retroviral therapy. Currently, 38% of the patients are using this medicine. It is estimated that until the end of 2007, 75.000 of the 200.000 patients being treated with anti-retrovirals will be using efavirenz.

Due to the increasing number of people living with HIV/Aids in Brazil, current price for efavirenz threatens the sustainability of the Brazilian Aids Program. Based on the current prices (US$1,59/tablet), the purchase of efavirenz (600 mg) for the Aids Program accounts for almost US$ 42,9 millions to the Brazilian government. This means about US$ 580 per patient per year. Proposals received by international organizations for the procurement of this medicine, from WHO pre-qualified laboratories, which are between US$163,22 and US$ 166,36 per patient per year. These proposals would mean a reduction of government expenses, in 2007, of US$ 30 millions per year. After issuing the compulsory license for efavirenz, it is estimated that the savings until 2012 will be of US$236,8 millions, when the patent of this anti-retroviral expires.

Brasilia, 4th of May, 2007.

Contacts

Renata Reis: renata [at] abiaids [dot] org - Mobile: (55) (21) 9114-1838

Gabriela Chaves: Gabriela [at] abiaids [dot] org - Mobile: (55) (21) 8879-5680

Michel Lotrowska: access [at] msf [dot] org [dot] br - Mobile: (55) (21) 8111-3666

by James Packard Love

The Huffington Post

May 4, 2007

On national television Brazilian President Luiz Inácio Lula Da Silva has just announced a compulsory license on patents controlled by Merck for the important AIDS drug Efavirenz. Brazil has a large and growing population of AIDS patients, and cannot afford to sustain treatment without obtaining low cost generic copies of AIDS drugs.

Press coverage of today’s action will likely have a narrative about poor countries breaking rich country patents, but it could also be presented as a larger discussion about the problems of giving exclusive rights to patent owners.

Yesterday, The Wall Street Journal praised the US Supreme Court for "restoring some sanity to America’s runaway patent law" by giving "judges much-needed flexibility in granting or denying permanent injunctions." The WSJ was referring to the 2006 decision involving an attempt to enforce an injunction against eBay, enforcing a patent owner’s "exclusive" right to determine who can use the invention.

The U.S. Supreme court decision in eBay made it clear that, after considering the facts in the case and the public interest, a judge could choose to not enforce the exclusive right, and instead authorize the infringer to use the patent, in return for a court determined royalty.

Outside of the U.S., when Thailand or Brazil decide to allow non-voluntary use of a patent, we call it a compulsory license, and a smug U.S. and European press talk about the lack of respect for intellectual property in certain developing countries (the ones that dare to issue compulsory licenses).

In the U.S., The WSJ and others call the non-voluntary use of a patent something else — patent reform.

Since June of 2006, U.S. courts have issued compulsory licenses on patents in cases that have benefited Toyota (for patents on an automatic transmission), Direct TV (set top box patents), Microsoft (on DRM technology patents) and Johnson & Johnson (on a medial device). The U.S. Federal Trade Commission recently issued a compulsory license on computer memory chips (the Rambus case).

Since 2005, Italy has granted compulsory licenses on patents for two Merck products (an antibiotic and a prostrate and baldness drug), and one GSK products (for migraine headaches.)

For more of these examples, see here and here.

Back to Brazil, and the very important announcement today regarding its compulsory license. What does this mean for drug developers?

The Brazil decision today, which involves the first (post-WTO/TRIPS Agreement) compulsory license on patents on medicines for all of Latin America, will likely be widely copied in the region.

It is now time for drug developers to rethink their strategy and business models. Developing countries will not accept prices that the poor cannot afford. But prices that the poor can afford don’t include a premium for R&D.

The answer to this dilemma is not to raise prices, but to decouple the R&D incentive from the price. The most far reaching way to do this would be to replace drug monopolies with large prizes.

by Tove Iren S. Gerhardsen

Intellectual Property Watch

May 7, 2007

The government of Brazil has issued a license that will allow the importation of cheaper versions of a patented HIV/AIDS drug after negotiations failed to bring about agreement on price reductions with Merck, the US company holding the patent. Merck said it was “profoundly disappointed,” as Brazil’s action sparked a flurry of positive and negative reactions.

This is the first compulsory license issued in Brazil after several threats to do so since 2001 resulted in lower prices for other drugs, sources said. In 2001, a World Trade Organization (WTO) ministerial declaration on public health and trade law - called the Doha Declaration on the TRIPS Agreement and Public Health - reinforced countries’ liberties to decide when public health concerns come before intellectual property rights.

A compulsory license is legal under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) if, “prior to such use, the proposed user has made efforts to obtain authorisation from the right holder on reasonable commercial terms and conditions and such efforts have not been successful within a reasonable period of time,” according to Article 31. But the same article of TRIPS also states that this requirement may be waived in cases of “national emergency or other circumstances of extreme urgency or in cases of public non-commercial use.”

The Doha Declaration Article 5(b) states that: “Each member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted.”

The product in question is the HIV/AIDS drug, efavirenz (Stocrin), marketed by Merck, and currently used by 38 percent of AIDS patients in Brazil as part of their treatment, the Brazilian Health Ministry said in a statement.

A Brazilian health official told Intellectual Property Watch that Brazil has three steps in its patent law, which incorporates the TRIPS agreement, that have to be adhered to before a compulsory license is issued.

First, it had to declare in a decree that the product in question was of public interest, which the Brazilian government did in Decree No. 886 on 25 April. Secondly, the government was required to start negotiations with the company, in this case Merck, “to push down the price,” he said. And thirdly, the government would have to issue another decree if the price negotiations failed and it wanted to issue a compulsory license. In this case, after the decree was issued and during the price discussions, “the laboratory offered a discount of 30 percent on the current price of US$1.59 per tablet paid by the federal government,” the health ministry. “This proposal was considered to be unsatisfactory, since Brazil would be able to obtain the product elsewhere for US$0.45.”

Chilling Signal to Researchers or Heroic Action to Save Lives?

There appears to be a general agreement that Brazil is adhering to international trade law in what it has done. Brazil received broad praise among health advocates for its action. But it has not been spared sharp reactions from the research-based pharmaceutical industry, which sees Brazil’s choice to use the trade provisions as a threat to its business model.

“This expropriation of intellectual property sends a chilling signal to research-based companies about the attractiveness of undertaking risky research on diseases that affect the developing world, potentially hurting patients who may require new and innovative life-saving therapies,” Merck said in a statement. “As the world’s 12th largest economy, Brazil has a greater capacity to pay for HIV medicines than countries that are poorer or harder hit by the disease.”

But Peter Drahos, professor at Australian National University, said on the ip-health listserv that, “Brazil’s action will not ‘break’ Merck’s Brazilian patent. The patent has not been revoked by the Brazilian government. The patent continues to operate and Merck remains its owner. Merck will receive royalties based on its use.”

The company said it remains open to negotiation. “Merck has attempted to negotiate in good faith with the government of Brazil, but a fair offer on Stocrin has been rejected,” it said. “While we remain flexible and committed to exploring a mutually acceptable agreement with the Brazilian government to help the country achieve its objective of universal access to treatment, we believe their action is not in the best interests of patients in Brazil and around the world.”

Some sources have suggested that while industry appears to be responding to larger developing country markets such as Brazil or Thailand, the forcefulness of their response may have a discouraging effect on smaller economies considering similar public health actions but lack the legal or political resources to defend themselves on the global stage.

The Geneva-based International Federation of Pharmaceutical Manufacturers and Associations echoed Merck’s view: “Although permitted under specific conditions by the WTO TRIPS agreement, compulsory licensing is not a solution to improve access to medicines. Improved access can only be assured by adequate financing and collaboration with the innovative companies that develop new therapies,” it said. “Compulsory licensing is a confrontational approach, and may be aimed to benefit local government-owned companies’ commercial interests.”

Daniel Christman, senior vice president for international affairs at the US Chamber of Commerce, warned that the decision could divert investment from Brazil. “Brazil is working to attract investment in innovative industries that rely on IP, and this move will likely cause investments to go elsewhere,” he said. Christman also noted that the action followed just days after the Office of the US Trade Representative upgraded Brazil in USTR’s annual Special 301 report on trading partners protection of US intellectual property rights. The upgrade was related to Brazil’s efforts against piracy and counterfeiting.

Others welcomed Brazil’s decision to go beyond the threats to actually issue a compulsory license. “Brazil achieved lower prices in the past using the threat of CL. However, there has certainly been an erosion of the power of the threats since none of them actually led to a CL. In addition, the prices offered by the companies were clearly not the lowest possible - as the last offer made by Merck in Thailand after the CL was issued has shown,” Gaëlle Krikorian, Researcher at CRESP (Research Center on Health, Social and Political Issues), a research unit in association with the University of Paris, told Intellectual Property Watch.

Thailand offered three compulsory licenses in late 2006 and early 2007 for two HIV/AIDS drugs (including efavirenz) and a heart disease drug (IPW, Public Health, 12 March 2007). Among other countries that have issued CLs for pharmaceuticals are Canada, Indonesia, Italy, Malaysia and Mozambique, the Brazilian Health Ministry said.

On why Brazil has not issued a CL before, Krikorian said, “The most obvious reason is the fear of an open conflict with the United States. The Thai case, and the recent 301 list report (IPW, US Policy, 30 April 2007), indeed shows that despite the Doha Declaration and all the commitments made, the US is ready to be extremely aggressive with countries with producing capacity that use CL for medicines.”

Others highlighted Brazil’s role in bringing down prices of HIV/AIDS drugs over the past years. Thiru Balasubramaniam from Knowledge Ecology International (KEI) said Brazil’s AIDS programme had contributed significantly to the, “remarkable price drop from $10,000 to around $130 for the cost of antiretroviral (HIV/AIDS drugs) combination therapy over the last seven years.”

Ellen t ‘Hoen of Médecins Sans Frontières told Intellectual Property Watch that this should be a lesson for other developing countries that one actually gets lower prices by issuing a compulsory license instead of only threatening to issue one, and said this was also reflected by the Thailand case.

She said Brazil had achieved a price for efavirenz of $580 per patient per year earlier when it had threatened to use compulsory license. But this was too expensive compared with the price for generics (Thailand was offered $244 per patient per year after it issued a CL), and thus Brazil has paid too much for too many years, she said. Both Brazil and Thailand have programmes for universal access to HIV/AIDS drugs.

“With Brazil and Thailand expanding the market for generic versions of efavirenz, greater economies of scale should push prices down further, eventually to less than $.24 per day,” KEI director James Love said.

The Brazilian Health Ministry said the license “enables the ministry of health to import generic versions of efavirenz from laboratories that are pre-qualified by the World Health Organization,” adding that three Indian generic companies meet this requirement at the moment.

This work is licensed under a Creative Commons License. All of the news articles and features on Intellectual Property Watch are also subject to a Creative Commons License which makes them available for widescale, free, non-commercial reproduction and translation.

By Alastair Stewart

Wall Street Journal

May 5, 2007

SAO PAULO — Brazilian President Luiz Inacio Lula da Silva Friday signed a compulsory license, breaking the patent on an anti-retroviral AIDS drug made by the U.S. pharmaceutical giant Merck & Co.

Brazil’s government issued the groundbreaking decree after rejecting a Merck offer to sell the drug at $1.10 per pill, the equivalent of a 30% discount.

Brazil claims the price is unjust considering it can acquire the drug for $0.45 from generic manufacturers, the president said in a statement. "Between our trade and our health [interests], we chose to protect our health," said President Lula in Brasilia at a ceremony marking the signing of the decree.

Jose Gomes Temporao, Brazil’s health minister, said: "We had eight meetings with Merck and at none of them did they present a satisfactory proposal. At best, they proposed a 30% discount. We told them we needed a 60% discount."

Merck said in a statement that it is "profoundly disappointed" by Brazil’s decision to break the patent.

A compulsory license allows a country to manufacture or buy generic versions of patented drugs while paying the patent holder only a small royalty. Brazilian law and rules established under the World Trade Organization allow for compulsory licenses in a health emergency or if the pharmaceutical industry uses abusive pricing.

This is the first time Brazil has overridden a drug patent after threatening to do so on various occasions in the past.

After Thailand moved to override patents on three anti-AIDS drugs, including those made by Abbott Laboratories and Merck, the U.S. placed Thailand on a list of copyright violators.

During the signing ceremony, Mr. Lula warned that Brazil could break other patents, if prices weren’t affordable. "People shouldn’t be able to get rich through the misfortune of others," he said.

The U.S.-Brazil Business Council expressed alarm at Brazil’s decision. "Just days after Brazil was recognized for improving its enforcement of intellectual property rights, this is a major step backward for the country’s development. Brazil is working to attract investment in innovative industries that rely on IP, and this move will likely cause investments to go elsewhere," the council said in a statement.

Brazil provides free AIDS drugs to anyone who needs them and manufactures generic versions of several drugs that were in production before Brazil enacted an intellectual property law in 1997 to join the WTO.

by Andrew Jack in London and Richard Lapper in São Paulo

May 5, 2007

Brazil yesterday overrode the patent on a pivotal HIV medicine, becoming the second emerging economy aggressively to challenge the pharmaceutical industry in seeking a sharp reduction in drug costs.

President Luiz In=E1cio Lula da Silva yesterday signed a "compulsory licence" for Efavirenz, Merck’s HIV drug, allowing the government to purchase from rival generic suppliers under provisions permitted by World Trade Organisation rules.

The move marks a sharp escalation in clashes over drug pricing between developing countries and industry, following a recent decision by Thailand to issue compulsory licences for several patented medicines including Efavirenz.

Health activists welcomed Brazil’s action in boosting affordable medicines for patients with a life-threatening disease, but the pharmaceutical industry warned it could severely harm supplies of cheap drugs to the world’s poorest countries.

Michael Weinstein, president of AIDS Healthcare Foundation, which operates clinics in Latin America, said: "Today is a victory for Aids activists and patients everywhere, and proof that drug companies will go down in defeat every time they place themselves in the way of justice for Aids patients."

However, Jeffrey Sturchio, a vice-president at Merck, said: "If Brazil expropriates our intellectual property, it will have a chilling effect on whether companies research diseases of the developing world and in the long term will have an impact on the poorest countries."

The decision leaves a few days for discussion in Brazil, while Thailand meets drug companies this month to avert the cheaper purchases from rivals. Brazil has negotiated by brinkmanship over HIV drug pricing, threatening in recent years to issue compulsory licences but stopping short after winning deeper discounts from companies. Talks broke down earlier in the week between the authorities and Merck, which resisted Brazil’s calls to reduce its price from $1.57 a patient a day to the 65 cents at which it is sold to Thailand.

Merck said the difference was that Thailand had a much higher prevalence of HIV, which put it into its category of sales for Efavirenz at cost price.

Mr Sturchio argued Merck continued to lower the price of the medicine, but emerging economies such as Brazil had a role to play alongside the developed world in helping not only cover production costs but also funding future drug innovation.

On the 17th of May, 2007, the Intellectual Property and Consumer Rights: Access to Knowledge (A2K), Culture and Information Seminar, promoted by the Center for Technology and Society (CTS) of FGV DIREITO RIO and the Brazilian Institute for Consumer Defense (Idec), launched the partnership between both institutions. The event also served as public launching of the Campaign Technological Restrictions: you pay and take less promoted by A2K Project Brazil and Idec.

That partnership aims at promoting researches and actions on Access to Knowledge (A2K), informing consumers about how abusing on rules that regulate intellectual property, and the use of technological restrictions (DRMs/TPMs) affect their rights. The A2K areas to be approached by those actions will include: research on book pricing; Technological Restrictions (TPMs); limitations and exceptions on copyright; copyright law amendment; interoperability; and web neutrality.

Ronaldo Lemos, Director of the Center for Technology and Society, pointed out the need for interoperability and flexibility, as well as the importance of social impacting on academic research development: “Brazilian information society must work out intellectual property and new technologies issues in order to compete on international marketplace”.

Marilena Lazzarini, President of Brazilian Institute for Consumer Defense, spoke about the importance of access to knowledge over Idec activities, relating consumption to society as a whole, not only to purchasing relationships.

Approximately a hundred persons attended the Seminar, which was covered by vehicles like O Globo, Estado de São Paulo (two of the most important newspapers in Brazil), Jornal da Tarde newspaper, TV Record, TV Cultura and other online and offline vehicles.

The seminar sessions had the participation of representatives from the Copyright Coordination of Brazilian Ministry of Culture->, Brazilian Ministry of Justice, Brazilian Association of Reprographic Rights (ABDR), National Anti-Piracy Council (CNCP), Information Network for Third Sector (RITS) and main Brazilian Universities, besides representatives from Brazilian Institute for Consumer Defense and researchers from Center for Technology and Society, like Professors Ronaldo Lemos, Pedro Paranaguá, Sergio Branco and Carlos Affonso Souza.

The programme of Intellectual Property and Consumer Rights: Access to Knowledge (A2K), Culture and Information seminar included debates on the following main themes, each sub-theme being presented by one of the representatives listed above, and others.

The costs of knowledge and the book production chain

Consumers, intellectual property and access to knowledge (A2K): research on book pricing in academic courses
The book production chain

Copyright and the right to copy: a possible balance?

Copyright and access to knowledge (A2K) in Universities
“Copying Books is Right” Movement
Lawsuits by Brazilian Association of Reprographic Rights (ABDR) against copying in Universities
Class action against Brazilian Association of Reprographic Rights (ABDR)
Fair intellectual property: balance between owner, author and consumer – Ministry of Justice’s point of view

Technologies that make knowledge scarce and affect Consumers

Copyright protection systems and new technologies
Technical Protection Measures (TPM): impacts on consumer
Technical Protection Measures (TPM) and compensation system

Freedom, culture and information: building up a collaborative society

Study on limitations and exceptions to Copyright
Brazilian Copyright Law between forbidden and allowed: impacts on access to knowledge (A2K)
Web neutrality and collaboration society

Read bellow the joint statement made by 10 public-interest NGOs, including Brazil’s FGV Centre for Technology and Society, at the World Intellectual Property Organization (WIPO), and the reasons why you should be against the proposed WIPO Broadcasting Treaty.

"We call upon WIPO delegates to reject the proposed WIPO Broadcast Treaty.

After more than 9 years of discussions, efforts to find a treaty formulation that deals with piracy of broadcast signals, but which does not harm copyright owners and the legitimate users of broadcasts have failed.

Piracy of broadcast signals is already adequately dealt under existing laws and treaties. Broadcasters are asking for exclusive rights that will change their bargaining positions in terms of the right to exploit and commercialize works. The treaty will harm both the creative communities, and the public, who will have to negotiate the required permissions and pay for these new rights.

WIPO should not be creating new economic rights for broadcasters and they should certainly not be creating such new economic rights for cable companies or the companies that aggregate content on cable channels, since the public already has to pay to receive such information through subscription services. There is no shortage of existing laws that make cable piracy illegal.

The demanders of the treaty – the broadcasting industry, have repeatedly stated at WIPO that they will not accept any treaty that does not grant them intellectual property rights in information they did not create and do not otherwise own under copyright law. This is inconsistent with the signal-based approach mandated by the WIPO General Assembly.

It is also important to be aware of the special, but obviously central issue of the impact of a treaty on the Internet.

The Internet has created immense opportunities for the increased flow and dissemination of information and knowledge. It has also played a crucial role in greatly reducing the disparity in access to knowledge between developed and developing countries.

The relationship between the treaty and the Internet is highly problematic. A treaty that establishes non-copyright controls over reuses of information over the Internet will harm access to knowledge.

Signed June 20, 2007, Geneva"

1. Centre for Technology and Society (CTS) of Fundação Getulio Vargas (FGV) School of Law in Rio de Janeiro

2. Civil Society Coalition

3. Electronic Frontier Foundation

4. Electronic Information for Libraries

5. European Digital Rights

6. International Federation of Library Associations

7. IP Justice

8. Knowledge Ecology International

9. Public Knowledge

10. Third World Network

See bellow an article from the Miami Herald on the "tecnobrega" or "techno cheesy" music scene in Brazil:

BY JACK CHANG jchangmcclatchydc.com

In Belem, Brazil, on the eastern edge of the Amazon rain forest, thousands of partygoers gather every weekend to revel to a frenetic dance music that’s quickly become the soundtrack of the jungle.

Disc jockeys blast what’s known as tecnobrega at parties filled with lasers and giant video screens, while tecnobrega singers belt out their latest hits backed up by legions of fans who have memorized every lyric.

It’s a scene familiar to pop fans around the world, but what sets tecnobrega apart — and what has inspired many to call it the future of the global music industry — is that it has exploded in the absence of record companies, concert promoters or anything resembling a traditional music industry.

While media giants spend millions fighting music piracy, tecnobrega singers record their songs on home computers and send their music directly to bootleggers, who burn hundreds of copies and sell them at sidewalk stands next to illegal copies of the latest Hollywood blockbusters.

Fans, rather than being sued for sharing music with each other, are encouraged to copy the songs and post them on file-sharing websites, where millions around the world can download them.

In this free-for-all, musicians make a buck only from their elaborate live shows, which they promote by giving away records.

THINGS TO COME

Singer Gabi Amarantos, one of the genre’s top stars, said tecnobrega is a sign of things to come around the world. Along with Belem natives Banda Calypso, Amarantos’ band Tecno Show has become nationally famous solely on the strength of bootleg sales.

’’There’s no way to stop piracy, so we’re taking advantage of what’s emerged in Belem, which is an extremely quick system for distributing music, through the pirates,’’ Amarantos said.

``Here, we don’t have record companies. Really, we don’t have anything but jungle and piracy. What that meant is we musicians had to get creative.’’

Piracy, fueled by the quick, cheap copying of compact discs and online file-sharing, accounts for practically every music recording sold in countries such as Paraguay and Bolivia, according to the recording industry association IFPI, which has also listed Brazil as a priority country in its fight against piracy.

The trend is global. Pirated CDs account for 37 percent of all music discs bought worldwide, according to IFPI. As a result, media giants have seen sales plummet, even in the United States.

The close partnership in Belem between musicians, bootleggers and disc jockeys could be a new model, said Ronaldo Lemos, a law professor at the business and law school the Getulio Vargas Foundation in Rio de Janeiro.

Lemos, who has studied the tecnobrega movement, found that its singers earn about $850 per month — nearly five times Brazil’s minimum wage — from their music, with 88 percent of them having had no contact with record labels.

Street vendors, musicians and DJ sound systems in Belem earn an estimated $5 million a month selling tecnobrega CDs, DVDs and show tickets, Lemos found.

’’People often say that if there’s no protection of intellectual property, there’s no incentive for creativity,’’ Lemos said. ``But in the tecnobrega case, creativity has grown without any protections.’’

For tecnobrega fan Carla Pantoja, economics is the key. With legal compact discs selling in Brazil for about $15 a copy, a day’s wages for many in Belem, pirated music is the only affordable alternative for most people, she said. On the streets, compact discs can go for as little as 50 cents a copy.

She said piracy is also a quick way for fans like her to stay on top of tecnobrega’s dizzyingly fleeting trends, where hit songs go the way of grunge rock and disco within a day or two.

’’Sometimes, the music is being sold on the streets the same day it’s recorded,’’ the 26-year-old said. ``Sometimes, by the time it’s being sold on the streets, it’s already gone out of fashion.’’

That brutal fickleness throws singers and disc jockey sound systems into a relentless chase to reinvent themselves and keep their audiences’ attentions, a pursuit familiar to U.S. media companies trying to stay on top of the new, Internet-based times.

Singers have dreamed up a flurry of tecnobrega offshoots, with names such as cibertecnobrega and brega melody, to remain on the cutting edge. Tecnobrega itself is a more beat-heavy version of brega, a music form that began in Belem in the 1970s with U.S. rock music as an inspiration.

BIG PRODUCTIONS

It’s also been a huge push for the producers of the tecnobrega shows, who have had to stay fresh by buying tens of thousands of dollars in new lasers, speakers and video screens every few months and throwing huge parties to hype the new equipment.

Recordings of sound system parties, sold by bootleggers, have become the main way tecnobrega singers get heard.

Recently, disc jockeys have taken to blasting their music in enormous mock-ups of spaceships, complete with jet boosters spitting out steam and lasers shooting into the crowd.

Erick Santos, whose family owns a sound system called Powerful Rubi, the Spaceship of Sound, said he remembered simpler days more than five decades ago, when his father started the business with only a record player and a megaphone.

Now, although he has bought three trucks full of video screens and lights, Santos is seeing his audience drift to other sound systems with flashier gear.

’’Is this the future of music?’’ Santos asked on a recent night, as tecnobrega blasted at one of his parties. ``I think so. And like it or not, no one will be able stop it.’’

In spite of strong opposition on the part of consumer groups and civil society in general, Brazil is about to embrace DRM for its new digital television system. The situation is especially worrisome when one considers that TV is the number one network in Brazil, reaching more than 90% of Brazilian households. If the broadcasters succeed, DRM will be installed in all Brazilian set-top boxes, i.e., the digital signal decoders for analogical TV sets.

The history in Brazil is becoming different from what happened in the United States, where the adoption of DRM was proposed by the Federal Communication Commission (in the modality of a “broadcast flag”) and was rejected, even judicially, thanks to an effort coordinated by the Electronic Frontier Foundation, under arguments of unconstitutionality. In Brazil, the same unconstitutionality is once again present. To implement DRM (the same “broadcast flag”), the executive branch in Brazil will have to mandate that the Brazilian industry only manufactures set-top boxes tainted by the system. It will have also to ban all imports of equipment not certified according to the DRM standards. That will be a clear violation of the Brazilian Constitution, in as much as such drastic limitation of rights and imposition of burdens would have to be decided by the Brazilian congress.

To make things worse, the Brazilian Constitution sets forth that television must be “free and gratuitous”. Accordingly, if the DRM is implemented, it directly violates this constitutional definition. In addition to that, Brazilian Copyright Law explicitly allows limitations on copyright that actually allows copying and quoting excerpts of TV programmes. With the DRM, the technology is not able to distinguish between the types of uses that are allowed by law, and the types that are not. Good and bad uses will be dealt with in the same way: they will be equally blocked.

In spite of all these arguments, the battle is being won by the broadcasters. There are only a few Ministries in Brazil who went public against the implementation of the DRM: the Ministry of Culture and the Ministry of Science & Technology, among others. Nevertheless, the almighty Ministry of Communications, led by Helio Costa – a former anchorman of the largest Brazilian broadcasting company (TV Globo) – totally supports the adoption of DRM.

Recent facts, not-so-new divergences

On 21 August 2007, a major newspaper reported that "the tendency is that the Secretary of State will follow broadcasters’ request and recommend to the President the prohibition of recordings".

In the same article, the Folha de Sao Paulo newspaper stated that "divergences were opened on Government because of the DRM and Digital TV issue”. Besides the Ministry of Culture’s position against DRM, the Secretary of State released a communication to the press denying that the Committee had already made a decision on the issue (after rumours that it would reject the implementation of DRM). Even Minister Helio Costa, before meeting with his former employers (the broadcasters), had declared that the DRM would be unconstitutional, but he quickly changed his mind after being reprimanded for this slip.

On 22 August, Mr. Costa informed that, in the end, the final decision on DRM for digital TV would be taken directly by the President Luiz Inacio Lula da Silva.

Academics also oppose the implementation of the system. “The Brazilian Constitution refers to open television as free and gratuitous. Inserting anti-copy technologies means overcoming those characteristics foreseen by Constitution,” says Bruno Magrani, a professor at the FGV Law School in Rio de Janeiro.

Civil society groups disapprove

Articles presenting different points of view have been published in the main newspapers in Brazil. The broadcasters and their lawyers have written in support of the adoption of an anti-copy system, claiming that if it is not adopted, they will not be able to get deals on premium content such as the Olympic Games or the Soccer World Cup. The local branch of the Motion Picture Association (MPA) also insinuated that if DRM is not implemented, they might increase the prices of films sold to local televisions, and might even cease offering films altogether.

Consumer groups and civil society as a whole claims that legitimate and reasonable uses, like exhibiting a TV show in classroom in order to illustrate a theme, for example, would then be made impossible by DRM. Additionally, the main problem would be the transfer of power to the broadcasters: they alone would be able to decide what could and what could not be copied. In the best case scenario, even if someone is allowed by the broadcasters to copy a show, it will not be possible to take it legally anywhere else without breaking the DRM – not even to a friend’s house or to a classroom, a portable media player or work.

Proprietary DRM technology collects royalties

The DRM proposed in Brazil is the High-bandwith Digital Copy Protection (HDCP). It is a proprietary standard, and manufacturers must pay royalties for its usage. Royalties, in turn, will be collected from consumers purchasing the set-top boxes. In other words: you pay for a technology that does not do you any good. Conversely, it reduces the utility of your TV system. Additionally, HDCP has been pointed out by many studies as a fundamentally flawed protection technology. It will be easy to break it and to manufacture DRM-free set-top boxes, giving birth to a parallel market that simply eliminates the benefits of the Digital Television over the national industrial policy.

And it goes further – according to the chairman of the Institute for Television Studies and former member of the Advisory Committee of the Brazilian Digital TV System in Brazil, Nelson Hoineff:

“Very recently, manufacturers of TV sets asked government, if not allowing definitely the DRM for equipments, to at least allow them to have devices which would comply with future forthcoming DRM needs. Discussions about copyright and DRM are at the core of the most important discussion that is right now being undertaken on the digital TV implementation in Brazil.”

Who will pay the bill?

Proprietary and expensive, HDCP system would make set-top boxes even more expensive than the “one hundred dollars” promised by Minister Helio Costa. Some recent estimates indicate that the set-top boxes might cost up to US$ 400 – and we are talking about a country in which 1/3 of the population have per capita incomes of less than US$90. Considering that more than 90% of the households have television sets, think about a television divide between those with and without access to digital television.

Throughout a complicated license scheme, in which HDCP is offered as a feature of the HDMI connector, there is also a promise that the royalties might actually be cheaper if you buy HDMI with the DRM than without it. Nevertheless, who can guarantee that the cost of royalties – that must by paid annually – will not be increased in a few years, to compensate for this initial discount?

The largest consumer group in the country, the Institute for Consumer Defense (IDEC), recently published an article in one of the most popular newspapers in Brazil criticising the implementation of DRM in digital television. IDEC argues that "the anti-copy system simply does not work, as demonstrated by studies made in the US". It continues:

“MPA wrote a reply to our article claiming that there has been no opposition in the United States against the implementation of the DRM. DRM was actually rejected by public interest and consumer organizations in the USA. It would be worse for consumers and would not stop piracy.”

IDEC has been opposing DRM for some time – in May, it launched an anti-DRM campaign named ’Technological Restrictions: You Pay for it and Get Less’, in a partnership with the A2K Brazil project, run by the Center for Technology & Society at FGV School of Law. The Association of Housewives, Consumers and Citizenship also supported IDEC in its fight against DRM on Digital TV.

In Brazil, TV services must be governed by public interest. A political system that allows the adoption of a knowingly inefficient system, which implicates costs and no benefits to consumer, is a defective political system. Or, at least, it is giving too much importance to only a few speakers.

Article originally published in iCommons’ website

The Center for Technology and Society (CTS) of Getulio Vargas Law School was highlighted on CNN on October 19.

The story highlights Tecnobrega, musical style from the city of Belem, Para, studied in a research promoted by the CTS in partnership with Fipe-USP in 2006. The research looks over the Tecnobrega production chain, analyzing its business model from the quantitative point of view as well as from the qualitative one. Find below the reproduction of the original CNN article:

"BREGA" SOUND TURNING HISTORY ON ITS EAR

Story Highlights

Tecnobrega artists see counterfeiters as key to their success
A new business model for the digital era — music as a service not a good
The "brega" sound: Cloyingly sweet melodies and synth-driven shuffle beats

BELEM, Brazil (AP) — This steamy city at the mouth of the Amazon river is a haven for pirates — the digital kind who copy CDs and DVDs by the thousands for illegal sidewalk sales.

Belem is also home to one of Brazil’s most thriving pop scenes: tecnobrega, a musical movement that’s expanding exponentially thanks to musicians and producers who see copying as a marketing tool rather than intellectual property theft.

All around the city of 1.5 million, tecnobrega’s cloyingly sweet melodies and synthesizer-driven shuffle beats blast from cars, river boats and curbside speakers set up by street vendors hawking the latest hits.

While piracy is the bane of many musicians trying to control the sale of their songs, tecnobrega artists see counterfeiters as key to their success. Artists, who make their money off of live shows, deliver their CDs directly to the street vendors, who determine the price that market can bear. This "mixtape" phenomenon is popular in other parts of the world, including Argentina and the United States, where it is an integral part of hip-hop.

"Piracy is the way to get established and get your name out. There’s no way to stop it, so we’re using it to our advantage," explains Gabi Amarantos, who frequently appears on Brazilian TV on the strength of bootleg sales of her CDs (from which artists don’t get a cut).

Aspiring tecnobrega artists also e-mail MP3s of their latest efforts to producers and DJs who burn CDs that go straight to the copiers and street stall vendors nationwide, selling for as little as 50 cents. Legal CDs sell for around $15 at record shops.

"It’s this really gritty tacky, sleazy jungle music. It’s just genius," said John Perry Barlow, a former lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation, which advocates protecting free speech in the digital age.

Barlow sees tecnobrega as following in the footsteps of his hallowed "Dead heads," whose trade in bootleg Dead tapes boosted the band’s popularity for decades.

"It’s making it possible for every kid in Brazil to know their songs by the time they turn five," Barlow said. "It’s actually good for a lot of money — you give it away and it will come back. That’s literally true with information, not with property."

Ronaldo Lemos, a law professor at Brazil’s respected Getulio Vargas Foundation, an elite Rio de Janeiro think tank and research center, says tecnobrega and other movements like it represent a new business model for the digital era, where music is transformed from a good to a service.

"This year the multinational record labels will only release about 40 records by Brazilian artists, while tecnobrega artists will release around 400," said Lemos. "The record industry argues if intellectual property isn’t protected there will be no innovation. But tecnobrega has shown that’s not true."

Brazil’s National Anti-Piracy Association dismisses tecnobrega as an insignificant movement that makes light of piracy, which it says costs the Brazilian economy two million jobs a year and $15 billion in lost tax revenues.

"Piracy in Brazil is undermining the ability of the music and film industries to invest in the next generation of local talent. Lower revenues from current sales mean less money to invest in new artists," the association’s general director, Andre Borges, said when he announced the industry’s plan to sue illegal downloaders in Brazil.

Brazil is one of the world’s biggest markets for music theft, with more one billion tracks illegally downloaded each year, according to the London-based International Federation of the Phonographic Industry. Counterfeited discs account for around half of the all Brazilian CD and DVD sales.

But tecnobrega also is an economic engine — moving about $5 million a month through Belem’s economy, according to a study by the Getulio Vargas Foundation. The average singer makes about $850 a month — about five times the minimum wage in Belem, and a decent salary for a musician.

Tecnobrega producer Beto Metralha said the music developed out of necessity in a place where few musicians could afford to pay a whole band and most music consumers don’t take home enough money to buy non-pirated CDs. The average ensemble consists of little more than a keyboardist and a singer, sometimes accompanied by an electric bass. The signature shuffle rhythm is derived entirely from a single program on an electronic keyboard.

The distribution scheme also grew out of necessity — few record companies were interested in tecnobrega, but enterprising copiers figured out there was a market to exploit.

Brazil’s top-selling Banda Calypso, whose "brega" sound paved the way for tecnobrega, claims to have sold more than 4 million CDs nationwide, avoiding traditional distribution networks and marketing its CDs directly through news stands and other unconventional outlets.

The best songs are played by "aparelhagens," hugely popular DJs running shows with laser displays, smoke machines and giant video monitors that alternate images of the dancing crowds with psychedelic imagery.

"Before you couldn’t get your record played on the radio if you couldn’t afford payola. Now if a song hits big with the aparelhagens, the radio has no choice but to play it," says Metralha. "The dynamic has changed."

http://edition.cnn.com/2007/TECH/10/19/brazil.tecnobrega.ap/index.html?eref=ib_technology

"Elite Squad / A bone too hard to chew / Catches one / Catches all / Is gonna catch you too"

(From the original Portuguese version "Tropa de Elite / Osso duro de roer / Pega um / Pega geral / Também vai pegar você")

The most frightening nightmare (or the most efficient marketing dream) of every Brazilian film producer has become a reality – and, what’s more, with a Brazilian movie that had not been released to movie theatres yet. ’Piracy’ has been the most spoken word on the streets and in all media since late July, when Tropa de Elite (’Elite Squad’), a national production scheduled to be released in November, started being copied and sold by street vendors, and became a social phenomenon in Brazil: 1,5 million people watched the film before it hit the screens, only in the city of Sao Paulo.

As soon as the film leaked to the pirates, director José Padilha (who directed the film Bus 174) wrote an aggressive article in the newspaper O Globo, claiming vigorously that the incident was not a marketing strategy and that he was shocked and angry with the leak. He also anticipated that piracy was going to cause huge financial damage to the film, and claimed that Brazilian authorities should start fiercely repressing it immediately.

The leakage not only changed the movie’s financial perspectives, but also forced the studio (Paramount/Universal) to release it in theatres two months before the planned date. Producer Marcos Prado said in a press conference that, before July, the director’s perspective was that one million people would go to the theatres to watch the film. But now everything had changed. For the better: "To try predicting what number we will reach would be too subjective. I personally think that we will make a five million people audience", said Prado after the movie had an impressive opening (attracting 180,000 people in the first weekend, a very good number for a Brazilian film, without any TV advertising).

There was another side affect of the leakage: the film was originally planned to be released in 150 theatres in November, however, the early opening of Tropa de Elite grew to 300 theatres all over the country – thanks to the huge publicity generated by the piracy. The bet paid off. The opening was 90% better than the Brazilian film City of God, directed by Fernando Meirelles (The Constant Gardener), the highest-grossing foreign film of 2003 in the United States, and also a big hit on Brazilian screens. And it was 46% better than Two Sons of Francisco, the Brazilian biggest hit movie in the last few years.

"I’d like to express my gratitude to the people that are actually going to the theatres for watching the final version of the film. The good results of this first weekend show that there is public interest for Brazilian movies", said the director José Padilha in a press release written in a very different tone to his earlier comment.

A quick look over Brazilian culture financing policy

These days, filmmaking in Brazil is a big activity for only a few people. In the absence of a commercial market, the government provides companies with an income tax exemption whenever they invest in approved films (sometimes the tax exemption reaches more than the 100% of the amount invested). This often generates criticism. Another criticism is that films are paid for even before they’re released. This reduces the pressure to make money at the box office, and allows Brazilian directors to go "artistic", privileging art house formats (the vast majority of Brazilian films are watched by less than 100,000 people).

Government also provides withhold income tax exemptions to international studios, when they remit royalties abroad, if they invest in local productions. It means that a significant number of "Brazilian" films are actually owned by the major Hollywood studios, who produced them using tax-exemption money (money that one would have to pay anyway to the Brazilian IRS). That is the case of Tropa de Elite, which is co-produced and distributed by Paramount/Universal. If the film hits big in Brazil and abroad, it will be a good example of money generated with practically zero financial risk.

The cost of a feature film remains high. The cost of creating Tropa de Elite totaled approximately US$ 6 million, one of the largest film budgets in the country. These big numbers are controversial. Moviemakers, such as veteran Domingos de Oliveira, are a good example of directors refusing to use the Brazilian tax exemption system for raising big amounts. He prefers to use digital technology in order to shoot with lower budgets. He has even published a manifesto called BOAA (Portuguese acronym for "Low Budget and Good Vibes"). His 11th movie, Carreiras, was shot on an approximately US$17,000 budget and was released in digital theatres. Domingos says: "Many filmmakers have become used to inflating the budgets so that, in one film, they can earn the amount they need to live for four years, the average time between that and the next production. This situation reminds me of Rio de Janeiro police officers who also take freelance jobs as private security agents."

Elite Squad 2, 3 and 4

So, 1,5 million people watched Tropa de Elite on pirate DVDs for the price of one third of a movie theatre ticket. How many among those people (or ’pirates’) could effectively be accounted as contributing to ’revenue losses’? Or, in other words: how many could afford to pay 5% of a minimum wage salary for a ticket?

The demand for the film was so big, that the street vendors quickly created "sequels" to Elite Squad, creating versions two, three, and four of the movie. Version two was a documentary shot in the late 90s by João Salles (brother of Walter Salles, director of Dark Water) called News from a Personal War, about the drug wars in the Rio de Janeiro favelas. Version three is more difficult to map: it consists basically of news footage recorded and edited from television about the drug wars. "Elite Squad 4" consists of the 2004 Brazilian film Almost Two Brothers, directed by Lucia Murat, and subsequently renamed by the street vendors, which is also about gang violence in the favelas.

Both films, News from a Personal War, and Almost Two Brothers, are excellent. One doubts whether they could have been found by that "new" audience through a conventional distribution system. The film Almost Two Brothers, for instance, was watched by only 59,000 people in total when it was distributed in the film theatres in 2004.

If there is one thing that can be learned from the Elite Squad case, it is that there is a huge demand on the part of the Brazilian population at-large for cheap, interesting movies that deal with their often-difficult reality. This is very similar to the Nigerian film industry, which started with films sold through the street vendors (check the paper by Ronaldo Lemos "From Legal Commons to Social Commons" for further information). The first movie producer that shoots a good and attractive film, with a low budget, and sells it directly to its audience through cheap DVDs, will probably make a lot of money. Just like Kenneth Nnbue who became rich when he shot the film Living in Bondage in Nigeria and sold it in the streets in the early 90s, thus becoming the precursor to the entire industry. As Charles Igwe, one of the most influential Nigerian film producers of these days says: “Piracy emerged because we producers weren’t able to produce the number of copies demanded by the market."

However, anyone planning to experiment with the Nigerian model in Brazil should do so quickly. The Brazilian senators are already discussing an amendment to the Brazilian Criminal code to increase penalties for piracy-related crimes, and for creating new crimes to repress the entire activity. In other words, it’s possible to imagine a near future in which, if you infringe copyright in Brazil, the Elite Squad will come for you.

For a very comprehensive and interesting report on the Nigerian film industry, see the transcription of the conference given by the Nigerian well-known producer Charles Igwe at the Center for Technology & Society at the FGV Law School within the Cultura Livre project.

Article by Paula Martini originally published in iCommons website.

By Claudia Jurberg for Intellectual Property Watch

RIO DE JANEIRO - Doubt about the constitutionality of an aspect of the Brazilian Industrial Property Law has been raised by civil society institutions to Attorney General Antônio Fernando Barros e Silva e Souza.

Articles 230 and 231 of Brazil’s Law 9.279/96 created the mechanism known as the pipeline, which allowed patent claims to be accepted and approved for technological fields that had not been recognised previously, such as pharmaceutical and food products, based on the date of first foreign filing. The rule effectively created monopoly situations in some cases where items had already entered the public domain, sources said.

Some in civil society argue that this kind of patent violates the principle that asserts the supremacy of the public interest and the pursuit of national technological and economic development over intellectual property rights. The Brazilian attorney general may decide on the challenge in the coming days. If Barros accepts the question, he will send it to Superior Federal Court, the next level, which will judge it on merit.

By the end of 1990s, 1,182 pipeline patents had been requested in Brazil, about 45 percent from the United States followed by the United Kingdom with 13 percent, Germany 10 percent, Japan 9.6 percent and France 7.7 percent, according to Lia Hasenclever, an economist at the Federal University of Rio de Janeiro.

The pipeline mechanism exists in Brazil through its implementation of the 1994 World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which contains a clause requiring recognition of pharmaceutical and food patents. Article 27, paragraph 1, states that any invention, product or process in all technology sectors, is patentable if it is new.

Brazil could have used the period of transition for developing countries to adopt TRIPS by the year 2005, but under pressure it implemented the agreement in 1997.

In this case, the pipeline mechanism was adopted and the country allowed patent claims to be accepted and approved for previously unrecognised technological fields, such as pharmaceutical and food products. The applications for pipeline patents do not undergo any technical analysis by the Brazilian patent office, the National Institute of Industrial Property (INPI). INPI normally could have analysed novelty, inventiveness and industrial application.

According Mauro Maia, an attorney at INPI, the pipeline mechanism has provided unusually high profitability for pharmaceutical companies through high prices and royalties. “The situation is a scandal,” he said.

Has Investment Followed Pipeline?

By its early acceptance of TRIPS, Brazil agreed to recognise pharmaceutical and food patents before the required time of 2005. At the time, the government believed that multinationals would invest in research, as they promised. But the reality has been very different, according to some observers. Investments by multinationals have been disappointing and the pipeline patents are imposing a high cost on society, they said. Hasenclever said that pipeline mechanism is an “aberration” because it favours multinationals to the detriment of the national industry.

However, a spokesperson for the Merck, Sharp & Dohme pharmaceutical company contested the negative assessment and told Intellectual Property Watch that the company has invested approximately US$10 million per year in research in Brazil in recent years.

“This value represents one of the biggest in comparison with other pharmaceutical companies in Brazil and one in five from Merck in the world,” she said.

But NGOs insist that pipeline patents remain problematic. “The concession of pipeline patents also violates the acquired right of the collectivity by removing from the public domain knowledge belonging to everyone, which once again goes against society’s interest,” said Renata Reis, an attorney at the non-governmental Brazilian Interdisciplinary AIDS Organization.

The case of anti-retroviral drugs (ARVs) for patients with HIV/AIDS may offer a good example of the prejudice inherent in the mechanism of pipeline, critics said. Brazil has a highly touted national AIDS programme, providing a model for many other countries. Until 1990, there was a policy ensuring access to drugs and the country had national production of ARVs. After 1997, with the pipeline mechanism, this process was interrupted prematurely, said Hasenclever.

In Brazil, there are around 600,000 people infected with HIV/AIDS. More than 200,000 receive drugs without cost from the government. Attorney Maia explains the pipeline situation related to HIV/AIDS with an equation. The AIDS drugs cost the Health Ministry around US$750 million for 18 medicines to treat patients, and 80 percent of this budget goes toward only four medicines which are protected with pipeline patents.

A study by economists at the Federal University of Rio de Janeiro calculated the hypothetical financial loss caused by the adoption of the pipeline mechanism in the case of government purchases of five ARVs, during the period 2001-2007. The results showed that, due to the granting of unmerited patent protections for these medicines, the Brazilian state paid an additional $420 million when prices paid were compared to the World Health Organization’s minimum prices, and an extra $519 million when compared to the minimum prices of nongovernmental Médecins Sans Frontières.

Hasenclever calculated that the margin with 5 percent royalties on five ARVs during 2001-2007 would be $35.3 million.

Of the ARVs, Merck now produces only efavirenz and indinavir. Although these drugs are on the list of the Health Ministry, the company currently does not sell them to the government.

The efavirenz ARV, for which the Brazilian government recently issued a compulsory licence, is protected by a patent obtained under the pipeline mechanism (the first patent claim was filed in 1992). Now, generic efavirenz is imported from India.

When the patent claim was filed in Brazil, it no longer met the country’s novelty requirement, as the information on the invention had already been published five years earlier. Had the pipeline patent not been granted, this active ingredient could have been produced generically in Brazil, as it has been in India. Without the pipeline, patents would not protect these products, even though Brazil started granting patents in 1997.

Other medicines fundamental against the AIDS epidemic, such as lopinavir/ritonavir, abacavir, nelfinavir, amprenavir, also were protected by pipeline patents, removing them from the public domain without an evaluation of the national interest. A pipeline patent also was granted for cancer medicine imatinib (brand name Glivec), and for Hepatitis B.

The alleged harm inflicted upon public health by pipeline patents does not refer only to the increasing amount of costs, but also to other problems such as preventing local production of medicines, risks of supplies running out (such as the case of abacavir in 2007) and the poor quality of products offered by companies holding the patents.

On civil society’s charge to the Brazilian attorney general, Merck said it could not speculate on the outcome. But it did say the laboratory believes that the law of patents is an important tool to ensure the capacity for innovation and investment in research in a country.

Claudia Jurberg may be reached at info@ip-watch.ch.

Articles in Brazilian Law (unofficial translation):

* Art. 230, Law 9.279/96. An application for a patent, related to substances, materials or products obtained by chemical means or processes, and food products or chemical-pharmaceutical substances, materials, mixtures or products, and medications of any kind, as well as the respective processes for obtaining or modifying them, may be filed by a party who enjoys protection guaranteed by a treaty or convention in force in Brazil, in which case it is assured the date of the first patent application filed abroad, provided that its object has not been introduced on any market by direct initiative of the titleholder or by a third party with his consent, and that no serious and effective preparations to exploit the object of the application or of the patent have been made, in this country, by third parties. (1) The filing must occur within a period of 1 (one) year from the date of publication of this Law, and must indicate the date of the first filing abroad. (2) A patent application filed on the basis of this Article shall automatically be published, and any interested party may submit comments, within a period of 90 (ninety) days, as to whether it satisfies the provisions in the caput of this Article. (3) When Articles 10 and 18 of this Law have been observed, and once the provisions established in this Article have been satisfied and the granting of the patent in the country where the first application was filed has been proven, the patent shall be granted in Brazil, just as it was granted in its country of origin. (4) The patent granted on the basis of this Article is assured the period of protection remaining in the country where the first application was filed, calculated from the date of filing in Brazil and limited to the period established in Article 40, not applying the provisions of its Sole Paragraph. (5) An applicant who has filed a patent application that is still pending, related to substances, materials or products obtained by chemical means or processes, and alimentary or chemical-pharmaceutical substances, materials, mixtures, or products, and medications of any kind, as well as the respective processes for obtaining or modifying them, may submit a new application within the time limit and under the conditions established in this Article, attaching proof of having abandoned the pending application. (6) The provisions of this Law apply, where applicable, to the application filed and the patent granted on the basis of this Article

Art. 231, Law 9.279/96. An application for a patent related to the subject matter dealt within the preceding Article may be filed by a national or a person domiciled in this country, in which case it is assured the date of disclosure of the invention, provided that its object has not been introduced on any market by direct initiative of the titleholder or by a third party with his consent, and that no serious and effective preparations to exploit the object of the patent have been made, in this country, by third parties. (1) The filing must occur within a period of 1 (one) year from the date of publication of this Law. (2) The patent application filed on the basis of this Article shall be processed pursuant to this Law. (3) The patent granted on the basis of this Article is assured the remainder of the 20 (twenty) year protection period calculated from the disclosure date of the invention, beginning on the filing date in Brazil. (4) An applicant who has filed a patent application that is still pending, related to the subject matters dealt with in the preceding Article, may submit a new application, within the time limit and under the conditions established in this Article, attaching proof of having abandoned the pending application.

Article originally published on iCommons website.

More than 200,000 HIV positive people receive anti-retroviral drugs (ARVs) at no cost from the Brazilian government. However, the sustainability of this AIDS Programme is being threatened by the high prices of the patent protected medicines: the universal distribution policy costs the Health Ministry about US$1 billion per year – 80 percent of which is spent only on six out of the 18 ARV medicines provided by the program.

The six drugs in question – lopinavir/ritonavir, abacavir, nelfinavir, ritonavir, amprenavir and efavirenz – had their Brazilian patents claimed in 1996 via the country-exclusive mechanism known as the "pipeline", a temporary institute created by articles 230 and 231 of the Brazilian Industrial Property Law (9.279/96) that resulted in the filing of 1,182 patents, many of which were products already in the public domain prior to 1996.

Prior to the amendment, products like food and pharmaceuticals could not have their patents filed in Brazil. The 1996 law went much further than the plain suppression of that prohibition (which was actually required for the implementation of the 1994 WTO’s TRIPS Agreement): it allowed all patent claims for those products – previously requested in any other country – to be automatically approved and granted in Brazil, as long as the object had not been comercialized in any market yet, and that any efforts to explore it had taken place in the country.

The interested parties had one year to formalize the patent at the Brazilian patent office, the National Institute of Industrial Property (INPI), and only had to prove the original filing was made elsewhere. Still, according to the law, those patents would even skip the traditional INPI’s previous evaluation. "The impact was the creation of monopolies that had a huge impact on prices", says Michel Lotrowska, Brazil’s representative of the campaign on access to essential medicines led by the NGO Médecins Sans Frontières.

As a result, the country’s novelty requirement was also neglected in the pipeline mechanism, even though the TRIPS’ Article 27, paragraph 1 stated that "any inventions, whether products or processes, in all fields of technology, provided that they are new (...)" are patentable. This becomes a bigger issue when the 1988 Brazilian Federal Constitution adopted a principle of absolute novelty for industrial property, i.e., if the protection-claimed technology already became public prior to the patent filing date, no temporary monopoly privilege can exist.

Compulsory licensing: does it actually hurt innovation?

Brazil is one of the ten biggest pharmaceuticals market in the world. The universal access to treatment, granted by the 1988 Federal Constitution, creates a broad and reliable market for the transnational pharmaceutical industry, as well as a unique and special client: the government.

But sometimes customer’s old dissatisfaction can spill over. In May 2007, one of the six ARVs of the AIDS program licensed under the pipeline mechanism was compulsorily licensed by the Brazilian government in an historical decision: efavirenz had its public interest declared by the President Luiz Inacio Lula da Silva after Merck refused to reduce its price from US$1.57 a patient/day to the 65 cents at which it is sold to Thailand. Efavirenz’s first patent claim was filed in 1992, i.e., had the pipeline patent not been granted, this active ingredient would be in the public domain and could have been produced generically in Brazil, as it has been in India. So, from May 2007 on, efavirenz is being bought from Indian laboratories, and royalties of 1,5 percent over the amount invested by government on the drug purchasing are being paid to Merck – that remain the patent owner.

A compulsory license is legal under the TRIPS Agreement, Article 31, if: "prior to such use, the proposed user has made efforts to obtain authorization from the rights-holder on reasonable commercial terms and conditions and such efforts have not been successful within a reasonable period of time". But the same article also states that this requirement may be waived in cases of "national emergency or other circumstances of extreme urgency or in cases of public non-commercial use". In 2001, the Doha Declaration on the TRIPS Agreement and Public Health also reinforced countries’ liberties to decide when public health concerns come before intellectual property rights.

The pharmaceutical industry often argues that compulsory licensing hurts innovation due to the high investments required for research and development (R&D). Renata Reis, coordinator of the Working Group on Intellectual Property (GTPI) from the Brazilian Network for the Integration of Peoples (REBRIP), says: "R&D substantial investments are not made in the South countries. Usually the medicine is an adaptation, for local conditions, of the already existing medicine. Besides that, industry tends to include marketing costs in its R&D budgets, as James Love reported in a 1993 document by the CPTech".

An article published in the Berkeley Technology Law Journal compares rates of patenting and other measures of inventive activity before and after compulsory licenses over drug patents, suggesting that "the assertion that licensing categorically harms innovation is probably wrong".

TRIPS Agreement and production of generic drugs

Since the TRIPS Agreement signing by the WTO’s Member States, the World Health Organization (WHO) has been alerting countries about the need for monitoring the implications of this and other international treaties on the enforcement of access to medicines policies.

At the time of the signing, developing countries that did not recognize patents for pharmaceuticals (like India and Brazil) had the option to only do so after a 10-year transition period, a flexibility foreseen in the TRIPS Agreement. Under pressure, Brazil decided to start recognizing patents immediately (from 1997 on), while India chose to do so only in 2005. That allowed Indian local industry to develop and export not only generic versions of many medicines that are patent-protected in most countries, but also to develop new combinations in fixed doses of patented ARVs, which can facilitate adhesion to the treatment due to a reduced number of pills to be ingested.

Countries like Brazil and Thailand could only structure their AIDS programmes because the main ARV medicines were not protected by patents and could be cheaply imported and/or locally produced. And the success of the Brazilian programme derived complimentary concerns, as Renata Reis says: "The survival rate is very high here, so access to new second-line therapy drugs has critical importance for keeping HIV infection under control by overcoming the long-term patient’s growing resistance to the ARV previous treatments".

The prices of the second-line ARVs threaten the sustainability of Brazilian universal drugs distribution policy, since they cannot be locally manufactured as generics. Though the country has got full capacity and ability to produce the second-line ARV medicines, as attested by the document "ARVs Production in Brazil - An Evaluation", by Professors Joseph M. Fortunak and Octavio A. C. Antunes – indeed, until the 1990s, Brazil had national production of ARVs, a process prematurely interrupted by the pipeline mechanism.

Please click here to access an audio interview with Michel Lotrowska (Médecins Sans Frontières) about the pipeline system and public domain issues.

Read bellow the "five part series on the World Intellectual Property Organization Leadership Race" developed by IQsensato, an independent, international not-for-profit development research and policy think tank.

A Five Part Series on the WIPO Leadership Race

In the next few weeks, IQsensato will run a five part series on the race to succeed Kamil Idris as the Director General (DG) of the World Intellectual Property Organization (WIPO). The aim of this series is to examine what the candidates for the post offer in terms of intellect, management and political acumen, and to highlight other considerations that could shape the outcome of this important race for the knowledge governance and IP community as well as the broader global community. In this first part of the series, we review the candidates’ field in the context of the type of leadership WIPO needs/deserves. In subsequent parts, we will examine: What it means to learn from the Idris Era while avoiding to be held hostage by his legacy; The North-South Question; The Insider-Outsider Dichotomy and whether such dichotomy has any relevance; and the influence that non-governmental stakeholders can bring to bear on the process and hold governments responsible for the leader they choose.

Part I: A Review of the Candidates Field

The race for the election of the next DG of WIPO looks wide open. At the close of the deadline for receipt of proposals for candidates for the post on 13th February 2008, 15 names; one woman and 14 men, had been put forward by WIPO Member States. The WIPO Coordination Committee, which is charged with the responsibility for nominating a candidate for approval by the WIPO General Assembly, is to meet in an extra-ordinary session on 13 and 14 May 2008 to make the nomination. The campaign is now on.

In making their choice, WIPO Members need to address their minds to a number of issues to ensure that the ultimate winner is the right person to lead the organisation into the 21st Century. It is worth remembering that whoever gets elected will lead the organisation for between 6 and 12 years that is, until around 2020. If the wrong choice is made it will be a heavy burden for the organisation. It is also important to remember that sometimes the adage that people get the leaders they deserve comes true. In this context, it should not be lost to the Member States and observers that Kamil Idris was re-elected unanimously by WIPO member States a few years ago.

In order to determine whether the Member States made the right choice, the first question that ought to be asked is: What choice do they have? What does the candidates’ field offer? A preliminary matter, however, before examining this question is to determine what kind of leader WIPO needs/deserves today.

What Leadership does WIPO Need/Deserve?

WIPO’s overall responsibility, as a specialised agency of the United Nations, is to take “appropriate action in accordance with its basic instrument, treaties and agreements administered by it, to promote creative intellectual activity and for facilitating transfer of technology related to industrial property to developing countries in order to accelerate economic, social and cultural development” (as per Art. 1 of the 1974 Agreement between the UN and WIPO). WIPO can therefore be thought of as an organisation charged with coordinating international cooperation to facilitate creativity and innovation, and elaborating measures to ensure that the power of knowledge (technology) is transformed into real outcomes, especially for people in developing countries. Of course, for a long time, WIPO has not lived up to this responsibility for various reasons which we do not have space to go into here. WIPO’s responsibility seen in this context is important for the global community as the effects of WIPO policies and treaties are felt (knowingly or unknowingly) by everyone and affect everything from access to health products and services through to matters related to internet governance.

As already noted, whoever gets elected as WIPO’s next DG could be in charge until the year 2020. That is a long-time, longer than the constitutional limits for Presidents in most democracies. The world of IP, leave alone the knowledge economy, is likely to change drastically during this period. The next DG of WIPO should therefore be a leader prepared to shepherd the organisation to face up to the internal and external challenges of today and to a complex future.

The type of leader that WIPO needs/deserves will therefore be a DG who can get the organisation out of its current problems while being able to keep the organisation relevant for the wide range of stakeholders going forward. The new WIPO DG will be taking over an organisation in which not only the Member States have experienced bitter division but also one in which the staff is divided, demoralised and/or uninspired. In this context, WIPO will need a tough-minded, visionary and politically astute leader who can appreciate the needs of different stakeholders, but who is willing to push change against the protests of the corrupt and incompetent or other vested interests in and outside of WIPO. The ability to engage intellectually with substantive issues, tested managerial competence at a global level as well as political maturity will therefore be important attributes.

The Candidates’ Field: What is on Offer?

The field of candidates for the WIPO DG’s post offers interesting choices. Looking at the CVs of the candidates on the WIPO website; it is difficult to say that the Member States will be spoilt for choice. Nonetheless, depending on what one considers important, this might turn out to be a competitive race. The candidates’ field can be looked at from various angles. Three possible angles are: (1) the academic and professional backgrounds of the candidates; (2) the publication record of the candidates as a proxy for their level of intellectual engagement with current knowledge governance and IP-related issues; and (3) regional and gender diversity.

Academic backgrounds and professional experience

In general, it is fair to say that the WIPO Member States have a well educated pack to choose from. Seven (7) of the candidates hold PhDs. The other candidates, except two, hold at least two degrees. A number of the candidates also have lectured/taught at universities.

With respect to professional experience, the field can be narrowed down into two categories: IP professionals, who include the candidates from inside WIPO and those coming from national patent offices, on the one hand, and diplomats, mainly current or former Ambassadors, on the other. In the former category are nine (9) candidates namely: Aranha; Otieno-Odek; Takagi; Petit; Simonov; Amigo; Gurry; Adamczack; and Pretnar. In the latter category are six (6) candidates, namely: Manalo; Panting; Ali; Masi; Khan; and Filipov.

The academic and professional experience of the candidates show that the next DG of WIPO will be a lawyer, an economist or a scientist (engineer) whose claim to the post is backed by their experience either in IP administration or in diplomacy. There is no hope for bringing in leadership from the private sector, academia or the non-governmental sector. In this regard, there is a valid question, considering the predominance of heads of IP agencies and ambassadors, whether in fact this is the best group of candidates we could get. There is a real possibility that within many of the nominating countries the best candidates were not necessarily the ones put forward. Privileged access to the nominating authorities and perceptions of the expertise and experience needed at WIPO may have locked out better candidates.

Publication record on knowledge governance and IP

The publication record of the candidates ranges from impressive to dismal. In general, the candidates with PhDs, as expected, tend to be well published. Noticeably, the career diplomats have more limited publication record either on general international policy issues or with respect to knowledge governance and IP issues in particular. This means that, except in one or two cases, it will be much more difficult to discern the intellectual leanings of the candidates coming from the diplomatic community and their capacity to engage with the current challenges in this field.

What differentiates the candidates who have a good publication record is their level of engagement with global knowledge governance and IP issues, especially current issues relating to innovation, technology and IP management. While most of the candidates from the national IP offices have written on IP issues, their writings have tended to focus on national problems. Significant intellectual engagement with global issues and challenges is limited within the field. Only a couple of candidates stand out as having strong publication records on current global issues and challenges relating to knowledge governance and IP.

Regional and gender diversity

The candidates come from all corners of the world and from all WIPO regional groups except China. This offers some open choice unlike in other organisations like UNCTAD where regional rotation locks out deserving candidates on the basis of the region they come from.

In terms of gender diversity the opposite is true. There is only one woman among the 15 candidates. This is partly the failure of the Coordination Committee and the WIPO Membership generally. At the very least, the Note Verbale that was sent out to Member States asking for nomination should have urged them to consider gender in their nominations and give deserving female candidates a chance.

The Open Rights Group and Electronic Frontier Foundation (EFF) have just launched a campaign against the extension of the copyright term on sound recordings beyond 50 years in the EU. To support this campaign, you can sign the petition here: For more background see here.

*

Tell the EU: Keep Copyright Sound!

A handful of major record labels are trying to break a fifty year-old promise. Musicians and their fans will not be the only victims. Copyright in sound recordings currently lasts for 50 years. An independent review (the "Gowers review") commissioned and endorsed by the UK government says it should remain at 50 years. Yet the recording industry continues to demand that this term be extended. But term extension would be an injustice to European musicians and musical culture, and may harm our economy.

If you agree that copyright term on sound recordings should not be extended past 50 years, please, sign this petition today. Copyright is a bargain. In exchange for their investment in creating and distributing sound recordings to the public, copyright holders are granted a limited monopoly during which are allowed to control the use of those recordings. This includes the right to pursue anyone who uses their recordings without permission. But when this time is up, these works join Goethe, Hugo and Shakespeare in the proper place for all human culture – the public domain. In practice, because of repeated term extensions and the relatively short time in which sound recording techniques have been available, there are no public domain sound recordings. This situation is about to change, as tracks from the first golden age of recorded sound reach the end of their copyright term. The public domain is about to benefit from its half of this bargain. Seminal soul, reggae, and rock and roll recordings will soon be freed from legal restrictions, allowing anyone (including the performers themselves and their heirs) to preserve, reissue, and remix them.

Major record labels want to keep control of sound recordings well beyond the current 50 year term so that they can continue to make marginal profits from the few recordings that are still commercially viable half a century after they were laid down. Yet if the balance of copyright tips in their favour, it will damage the music industry as a whole, and also individual artists, libraries, academics, businesses and the public. The labels lobby for change, but have yet to publicly present any compelling economic evidence to support their case. What evidence does exist shows clearly that extending term will discourage innovation, stunt the reissues market, and irrevocably damage future artists’ and the general public’s access to their cultural heritage.

As Europe looks to the creative industries for its economic future, it is faced with a choice. It can agree to extend the copyright term in sound recordings for the sake of a few major record labels. Or it can allow sound recordings to enter the public domain at the end of fifty years for the benefit of future innovation, future prosperity and the public good. If you agree that copyright term on sound recordings should not be extended past 50 years, please, sign this petition today. Together, we can defeat copyright term extension.

Read bellow the new press release by WIPO, on a study on exceptions and limitations to copyright:

Geneva, March 13, 2008 PR/2008/541

Member states of the World Intellectual Property Organization (WIPO) agreed this week on elements of a program of work for the Standing Committee on Copyright and Related Rights (SCCR). Meeting from March 10-12, 2008, the SCCR decided that it would continue to address issues such as the protection of broadcasting organizations and the protection of audiovisual performances, as well as exceptions and limitations.

The SCCR decided to continue discussions on the protection of broadcasting organizations with a view to concluding an international instrument. Following two special sessions of the SCCR in 2007, while progress was made towards better understanding of the positions of the various stakeholders, negotiators concluded that further work to achieve agreement on objectives, specific scope and object of protection was required before convening a diplomatic conference.

Delegates were briefed on regional and national activities that were being undertaken by the WIPO secretariat to build understanding on the issue of the protection of audiovisual performances. The secretariat will continue to organize national and regional activities on this issue and an information meeting will be held on this question in conjunction with the next meeting of the SCCR. A diplomatic conference convened in 2000 with the objective of updating the rights of audiovisual performers at the international level concluded with no agreement.

The SCCR also considered a proposal from Brazil, Chile, Nicaragua, and Uruguay on limitations and exceptions. This was an elaborated version of a proposal originally submitted to the SCCR by Chile in 2005, which called for an analysis of limitations and exceptions as they relate to education, libraries and access to protected works by the visually-impaired. The SCCR called for the organization of an information meeting on existing and forthcoming studies on exceptions and limitations at its next session with a view to preparing a comprehensive work plan on the issue.

To further enhance understanding of the issue, the SCCR requested that a study be undertaken by the secretariat on exceptions and limitations in relation to educational activities and distance education, including transborder aspects. WIPO has already undertaken three studies on exceptions and limitations, namely, the WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment, WIPO Study on Automated Rights Management Systems and Copyright Limitations and Exceptions, and the WIPO Study on Copyright Limitations and Exceptions for the Visually Impaired. The need for prompt action to improve access to protected works by visually impaired people was emphasized by several delegations. A fourth study on exceptions and limitations for libraries will also be published shortly.

In the framework of a specific discussion on the future work of the Committee, a proposal for inclusion of additional agenda items - artist’s resale right, collective management, orphan works and applicable law - was submitted by several delegations. Many delegations called on the SCCR “to tackle and accelerate” work on unfinished business. Others called for the SCCR to focus on exceptions and limitations as a priority. The Chairman of the SCCR, Mr. Jukka Liedes of Finland, said that consideration of the work plan for the Committee would continue during the next session of the SCCR.

At its opening session, the SCCR also elected Mr. Abdellah Ouadrhiri of Morocco and Mr. Luis Villarroel Villalon of Chile, as Vice Chairs.

For further information please contact the Media Relations and Public Affairs Section at:

* Tel: (+41 22) - 338 81 61 or 338 95 47 * Fax: (+41 22) - 338 82 80 * Email: publicinf@wipo.int

The majority of Brazilians simply do not know much about copyright. The Brazilian population in general knows that copyright exists, but actual copyright rules are not well recognized. When asked to take a guess if a certain act of reproduction is against the law, many Brazilian nationals would probably give a correct answer, but actual knowledge of the law – its text and possible interpretations – is certainly absent as a rule, especially when it comes to the concept of exceptions and limitations.

Since many times not reproducing content makes absolutely no sense – such as taping a TV show for time-shifting – Brazilians keep on breaking the law, and shrug it off as being at worst an inconsequential offense, and at best not an offense at all. In the end, the criterion used to separate copyright infringement from a permitted use is basically its non-commercial or private nature, despite the existence of strict lists of limitations which do not follow the same logic. In other words, the legislation in Brazil simply does not accommodate an idea of “fair use”. All the exceptions and limitations to copyright are based on an exhaustive list, and Brazilian scholars claim that this list must be interpreted restrictively, i.e., judges are not allowed to expand its limits when deciding a case. The consequence would be funny, if it were not so tragic. If someone buys a CD in a store, goes home and copies it to his/her iPod, the person is infringing Brazilian law, because the current exceptions and limitation do not include the possibility to copy a work for private use, by only “excerpts” of a work.

Many other perfectly normal and common uses of copyrighted material are equally forbidden, such as reproduction for time-shifting purposes; freedom of speech is severely affected by provisions such as the parody and paraphrases limitations; research and education take a backseat to industrial interests; and access to culture and knowledge are undermined by overtly strong copyright legislation. With just a few uses of copyrighted material being clearly permitted, the vast majority of possible uses lead straight to copyright infringement, and, on top of that, criminal offense.

At the same time, digital reproduction is here to stay, and so is content distribution through the Internet. Collaborative authorship, commons-based peer production, free software and open content licensing are on the rise despite technological and legal threats, and there is no way that anyone can remain oblivious to change.

Exceptions and limitations are somehow thought of as a concession to the public, given as an expression of the author’s generosity, and not as a matter of sheer necessity, logically derived from copyright’s nature itself. The fact that the Brazilian system is based on the "author’s rights" tradition, instead of the US copyright model, immensely helps the protection of industry through the proxy of authorship, by centering the entire universe of copyright law on the figure of the mythical, romantic author/creator – who can, despite the moral rights being non-waivable, be replaced by any corporate agent through contractual means. Moral rights, it must be said, are much hyped by Brazilian literature, but are also usually waived through contracts, even though not explicitly, by means of loopholes such as the ambiguous state of rights over derived works, which are, in the end, both moral and economic rights.

Yet, despite this being a new phenomenon, the normative basis for file sharing culture, in Brazil and elsewhere, is not exactly recent: practices involving the sharing of cultural goods, whether they imply reproduction or not, are far from being novel. Be it lending a book, making someone a mixtape, or telling a campfire story, people are used to sharing information, and have been doing so forever. “Culture is public”, as the anthropologist Clifford Geertz puts it, “because meaning is.” When one takes that into account, it is obvious that if technologies which allow for easy reproduction of content are accessible, cultural transmission through reproduction will inevitably ensue, regardless of copyright law, which, when historical origins are considered, is purely destined to regulate trade and competition, and not non-commercial modes of sharing.

Despite that, parallel copyright’s “rights” of non-commercial use and distribution are still not conceptualized as a problem related to exceptions and limitations to copyright law – which would be the most obvious approach to tackling them. Users of protected content are beginning to get in touch with copyright law, and trying to argue in the defense of practices of non-commercial reproduction and distribution in order to sustain the sharing ethos, but lack the conceptual repertoire that is necessary for rational public discourse over information policy matters. The industry version of copyright law, the same version that was written into legal text and was immunized from policy considerations through the effort of legal scholarship, finally shows signs of being put into question, and information policy considerations are now being placed where they always belonged: at the center of public discourse, and within reach of the ordinary citizen. But at the same time, there is still a lot of catching up to do, and it will be a while until copyright matters can be properly discussed, and until industry biases can be completely abandoned. Even so, there is reason for optimism: if questions such as “What is copyright for, anyway?” and “What should my rights as a user of copyrighted content be?” start to appear in everyday conversations, there is still hope for balance to be struck someday.

In sum, exceptions and limitations in Brazilian copyright law are inadequate on many accounts. They are excessively restrictive and anachronistic, in some cases incoherent, and offer no opportunity for balance through interpretation. To make things worse, they are often misused by industry, instead of being seized by the public as a necessary component of copyright law and made into rights of use and access to information, in the broadest sense of the word. Copyright law is not a traditional part of Brazilian public discourse, and largely industry-dominated scholarship has taken control of legal interpretation, offering no opportunity for dissent, with heavy use of strong natural rights-based argumentation which considers intellectual property to be boundless and superior to any other interest. As a result, copyright law is never dealt with as a matter of policy, and exceptions and limitations fail to attend users’ needs, contradict Brazil’s developmental goals, and are completely hostile to the current technological context and the opportunities it might offer.

But even though the scenario is bleak, the disturbances caused by the Internet and digital technologies have taken copyright out of the grasp of a reduced number of industry actors and turned it into the focus of many people’s attentions. Industry discourse and traditional copyright scholarship will have to deal with increased academic and popular reaction to maximalist approaches to legislation and legal interpretation, and enforcement of copyright law will continue to face many challenges, no matter how substantial protection is, and no matter how laws are construed.

While the outcome of these battles is not easy to predict, at least copyright is now finally on its way to being properly considered as a policy issue in Brazil, and with that comes the question of what an ideal system of exceptions and limitations would be. Whether or not the country actually ends up with a balanced system of exceptions and limitations within its copyright law, the relevance of alternative licensing models should be noted for countries like Brazil and others with serious educational problems, where access to knowledge is still a privilege of the most affluent citizens, resulting in extremely negative impacts on the quality of life and the fundamental rights of a large number of people.

This article contains excerpts from Exceptions and Limitations in Brazilian Copyright Law, a paper written by Pedro Mizukami in partnership with the Center for Technology and Society at the FGV Law School in Rio de Janeiro for the Yale Information Society Project, CC-BY-NC.

This article was originally published by Paula Martini at the iCommons website.

Considering that:

1. Health is a fundamental human right and a necessary condition for human dignity and for the full exercise of citizenship.

2. The dominant model of medical innovation, reinforced by the implementation of the Trade-Related Aspects on Intellectual Property Rights (TRIPS) agreement of the World Trade Organization, is based on patent incentives that create monopolies, high prices as return on investment and market perspectives in developed countries.

3. Data on the world pharmaceutical market1 show that developing countries represent less than 15% of the world medicines sales.

4. Diseases that disproportionately affect developing countries are not the targets of significant Research and Development (R&D) activities and innovations, despite the increase of patent protections in these countries.

5. A recent report of a World Health Organization commission called Commission on Intellectual Property, Innovation and Public Health (CIPIH) showed that intellectual property is not an adequate instrument to ensure the development of the technology necessary to respond to the specific health problems of developing countries.

6. The incorporation into national legislation of the flexibilities foreseen in the WTO TRIPS Agreement, such as compulsory licenses, with the goal of protecting public health does not guarantee the effective implementation of these mechanisms and countries making use of these flexibilities are currently undergoing threats of retaliations from some developed countries.

We consider to be of utmost importance the current discussion in the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (IGWG) of the World Health Organization (WHO) and we request:

A revision of the rules regulating Innovations and the Access to the fruits of Innovations so that the health needs of developing countries be included in the international agenda of innovation.

That the IGWG find sustainable solutions so that existing and new medicines, vaccines and diagnostic tools be accessible to all those who need them in developing countries.

That the IGWG emphasizes the importance of the WHO’s support in the effective implementation of the TRIPS flexibilities by countries that need them to guarantee access to medicines.

That the IGWG seeks out new incentive mechanisms for innovation in health, taking into consideration the importance of guaranteeing access in the future. High prices as a solution to pay for the cost of innovation is not a solution.

That the participation of civil society and patient organizations, especially those from the Global South, in negotiations held in the IGWG be maintained and expanded, taking into careful consideration the conflicts of interest that may exist within these organizations.

[1] Data estimates taken from the IMS website.

Signature of civil society organizations and patient groups

1 – Associação Brasileira Interdisciplinar de AIDS - ABIA (RJ - Brasil)

2 – Grupo de Incentivo à Vida - GIV (SP - Brasil)

3 – Grupo de Apoio aos Doentes de AIDS Solidário pela Vida (ES - Brasil)

4 – Grupo de Trabalho em Prevenção Posithiva - GTP+ (Brasil)

5 – Articulação AIDS em Pernambuco (Brasil)

6 – Gênero, mulher, Desenvolvimento e Ação para a Cidadania - GEMDAC (Piauí - Brasil)

7 – Centro Dialogo (Piauí - Brasil)

8 – Fórum de ONGs/AIDS do Piauí (Brasil)

9 – Fórum de ONGs/AIDS de Pernambuco (Brasil)

10 – Rede Nacional de Pessoas Vivendo com HIV/AIDS do Nordeste (RNP+/NE) (Brasil)

11 – GAPA/SP (Brasil)

12 – GAPA/RS (Brasil)

13 – Fórum Catarinense de ONGs/AIDS (Brasil)

14 – Fórum de ONGs/AIDS do Rio Grande do Norte (Brasil)

15 – Comissão de Articulação com Movimentos Sociais – Região Norte (CAMS) (Brasil)

16 – Fórum de ONGs/AIDS do Tocantins (Brasil)

17 – GAPA/DF (Brasil)

18 – Casa Servo de Deus (ES - Brasil)

19 – GESTOS/PE (Brasil)

20 – Fórum de ONGs/AIDS da Paraíba (Brasil)

21 – Grupo Solidariedade (MG) (Brasil)

22 – Fórum Mercosul

23 – Grupo Pela Vidda/RJ (Brasil)

24 – Organização Brasileira de Apoio Filantrópico (OBRAF-SP) (Brasil)

25 – Somos – Comunicação, Saúde e Sexualidade (Brasil)

26 – Centro de Promoção da Saúde (CEDAPS-RJ) (Brasil)

27 – Fórum de ONGs/AIDS do Rio de Janeiro (Brasil)

28 – Grupo de Apoio aos Soropositivos (GASP-MG) (Brasil)

29 – Fórum de ONGs/AIDS do Matogrosso (Brasil)

30 – RNP+ Núcleo Médio Paraíba (Brasil)

31 – Núcleo de Estudos da Prostituição (NESP-RS) (Brasil)

32 – Grupo Pela Vidda/SP (Brasil)

33 – Conectas Direitos Humanos (Brasil)

34 – Instituto de Defesa do Consumidor (IDEC-SP) (Brasil)

35 – Grupo Pela Vidda/Niterói (Brasil)

36 – Médicos sem Fronteiras – BRASIL

37 – AFADA (Araruama/RJ) (Brasil)

38 – Grupo Amigos Posithivos (Brasil)

39 – API-AIDS (Brasil)

40 – CAAIDS (RJ) (Brasil)

41 – CEDOICOM (Brasil)

42 – Centro Social Cultural Tatiane Lima (Brasil)

43 – Centro de Integração, Ação e Desenvolvimento Social (CIADS-RJ) (Brasil)

44 – Cidade Viva (Brasil)

45 – Cieds (Brasil)

46 – Conselho de Gestores Comunitários (Congesco-RJ) (Brasil)

47 – Centro de Referência para Saúde da Mulher (CRESAM-RJ) (Brasil)

48 – Federação de Bandeirantes do Brasil (Brasil)

49 – Grupo de Apoio ao Tratamento para AIDS do Hospital de Ipanema (GATAHI-RJ) (Brasil)

50 – Grupo Água Viva (RJ) (Brasil)

51 – Grupo Arco-Íris (RJ) (Brasil)

52 – Grupo Amigos Posithivos (RJ) (Brasil)

53 – Grupo Assistencial SOS Vida (RJ) (Brasil)

54 – Grupo de Mulheres Felipa de Souza (RJ) (Brasil)

55 – Grupo Diversidade de Niterói (RJ) (Brasil)

56 – Grupo Fio da Alma (RJ) (Brasil)

57 – Grupo Reagir Posithivo (RJ) (Brasil)

58 – Ibiss (RJ) (Brasil)

59 – Comunidade Internacional de Mulheres Vivendo com HIV/AIDS (ICW-BRASIL)

60 – Instituto Evangélico de Assistência Médica e Social (RJ) (Brasil)

61 – Milagre da Vida (RJ) (Brasil)

62 – Movimento Nacional Cidadãs Positivas (RJ) (Brasil)

63 – Movimento de Mulheres de São Gonçalo (RJ) (Brasil)

64 – Ser Mulher (RJ) (Brasil)

65 - Thai network of people living with HIV/AIDS (TNP+ - Tailândia)

66 - Thai Rural Doctors society (Tailândia)

67 - Rural Pharmacist Foundation (Tailândia)

68 - Thai NGOs Coalition on AIDS (Tailândia)

69 - Foundation for AIDS Rights (FAR - Tailândia)

70 - AIDS ACCESS Foundation (Tailândia)

71 - Foundation for consumers (Tailândia)

72 - Federação Nacional dos Farmacêuticos (Fenafar) (Brasil)

73 – Grupo de Resistência Asa Branca-GRAB (Brasil)

74 – Rede de Solidariedade Positiva-RSP+ (Brasil)

75 – Nacional de Pessoas Vivendo com HIV/Aids- núcleo Ceará (Brasil)

76 – Movimento de Reintegração das Pessoas Atingidas pela Hanseníase (MORHAN) - Fortaleza (Brasil)

77 – Associação dos Voluntários do hospital São José (Brasil)

78 – Núcleo de Integração pela Vida-NIV (Brasil)

79 – Misión Salud (Colombia)

80 – Acción Internacional por la Salud (Colombia)

81 – Fundación IFARMA (Colombia)

82 - Red Colombiana de Personas Con VIH o SIDA – RECOLVIH (Colombia)

83 – Oxfam International - Brasil

84- Action Aid International

85- Agua Buena Pro Defensa de DDHH (Costa Rica)

86- Caribbean Vulnerable Communities Coallition - CVC (Caribbean)

87- Centro de Orientación e Investigación Integral – COIN (Republica Dominicana)

88- Amigos Siempre Amigos (Republica Dominicana)

89- Acción Ciudadana Contra el Sida (Venezuela)

90- Laccaso/ Consejo Latino Americano y del Caribe de Organizaciones con Servicios en VIH/Sida

91 - Centre for Trade and Development – Centad (India)

92 - Delhi Network of Positive People – DNP+ (India)

93 - Positive Malaysian Treatment Access & Advocacy Group - MTAAG+ (Malaysia)

94 - Positive Living/ PT Foundation (Malaysia)

95 - Network of Indian People with Alternative Sexuality Living with HIV/Aids – NIPASHA+ (India)

96 - Health GAP

97 - Korean Federation of Medical Groups for Health Rights – KFHR (Korea)

98 - Physicians` Association for Humanism (Korea)

99 - Aids Law Project – ALP (South Africa)

100 - Treatment Action Campaign – TAC (South Africa)

101 - AIRO + Rights Alliance for Southern Africa – ARASA (South Africa)

Dear colleagues,

On May 15, 2008, the World Intellectual Property Organization (WIPO) will be choosing a new Director-General. Historically, the selection process has been non-transparent and closed to civil society. In an attempt to open up the process, CIEL, Third World Network, and a group of civil society organizations invited all 15 of the WIPO Director-General candidates to meet with civil society groups on April 15, 2008 in Geneva. Candidates were also asked to respond in writing to 8 questions.

* The letter requesting a meeting can be found here.

* The Agenda for the meeting is available here.

A Webcast of the whole meeting in five sequences is available below:

Video 1

Video 2

Video 3

Video 4

Video 5

Further information on who attended the meetings well as the written responses that have been received so far, can be found on the CIEL website at:

http://www.ciel.org/Tae/WIPO_DirGen_15Apr.html

News reports on the WIPO DG candidates race and on the meeting with civil society can be found at:

Responses to 5 IP Watch Questions

Report on meeting with Civil Society

Report on Candidates meeting with member states

We encourage civil society and other stakeholders to make their opinions and evaluations known and to engage as fully as possible in the discussion about who the best person should be to lead to WIPO.

Dalindyebo Shabalala Center for International Environmental Law and Sangeeta Shashikant Third World Network

The following is a press release from the Copy South Research Group. It announces the release today (28 April 2008) of the Spanish edition of the 210-page CS Dossier as prepared by Servicio Autónomo de la Propiedad Intelectual (SAPI), the Intellectual Property agency of the Bolivarian Republic of Venezuela.

The English version of the release follows the Spanish text - www.copysouth.org

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Boletín de prensa 28 abril de 2008

ANUNCIANDO LA EDICIÓN EN ESPAÑOL DEL DOSSIER COPIA/SUR Problemas económicos, politicos e ideológicos del copyright (derechos de autor) en el Sur global Investigado y publicado por el Grupo de Investigación Copia Sur Mayo 2006

ISBN: 978-0-9553140-1-8 (de la 1ª edición impresa en inglés) No restringido por el copyright

LA EDICIÓN 2008 EN ESPAÑOL DEL DOSSIER COPIA/SUR: Editado por Rafael Carreño del Servicio Autónomo de la Propiedad Intelectual, Venezuela

En 2005, un grupo de académicos y activistas, principalmente del Sur global, crearon el Grupo de Investigación Copia Sur para analizar, criticar, y confrontar la naturaleza de los regímenes globales de copyright (derechos de autor), tales como aquellos defendidos por la Organización Mundial de la Propiedad Intelectual y otras similares alrededor del mundo. En mayo de 2006, 22 de nosotros, incluyendo 15 miembros del Sur global, publicamos el DOSSIER COPIA/SUR: Problemas económicos, políticos e ideológicos del copyright (derechos de autor) en el Sur global.

El propósito del Dossier fue abrir un debate crítico y radical sobre el impacto real de las leyes del copyright y como afectan las vidas diarias de la gente que vive en más de 150 países en desarrollo del Sur global. También resaltamos los problemas que no son únicos del Sur global, sino también que afectan ambos lados de la brecha Norte-Sur. Esta publicación de más de 50 artículos ha sido creada para investigadores, educadores, bibliotecarios, músicos, activistas y organizaciones preocupadas por el acceso al conocimiento, y para todos aquellos que quieran saber más sobre el rol de las leyes del copyright, y en particular su rol inmensamente negativo en los países en desarrollo del Sur global.

Dado los objetivos democráticos del Grupo de Investigación del Sur Global, el Dossier no está restringido por el copyright. Por lo tanto, ha sido accesado abierta y libremente tanto en formatos electrónicos como en papel por miles de lectores de alrededor del mundo en inglés. Pero el inglés no es hablado por todos los ciudadanos del Sur global. Con esto en mente, las 200 páginas del Dossier fue traducido al español a finales del 2007 por un equipo entusiasta de traductores voluntarios de Argentina, Boliva, Cuba, México, España y Venezuela.

Pero lo que es aún más extraordinario acerca de la traducción en español es que fue completamente coordinada y editada por el Servicio Autónomo de la Propiedad Intelectual (SAPI) del gobierno democrático de la República Venezolana Bolivariana. El Dossier provee "material útil para introducir este tópico a los profesores y estudiantes" y realiza un buen trabajo de "resumir una situación compleja y conflictiva" para los países en desarrollo, como lo dijo Jumersi La Rosa, nueva directora del SAPI, la semana pasada al anunciar el lanzamiento de la edición en español del Dossier. Ella ha escrito una nueva introducción especial para la edición en idioma español.

El Grupo de Investigación Copia/Sur está muy complacido de que el mensaje radical de resistencia encontrado en el Dossier puede ahora ser leído por miles de hispanoparlantes quienes están cuestionando el régimen actual del copyright y de quienes se espera que sean encendidos por las ideas del Dossier para que emprendan la lucha contra los regímenes opresivos basados en el copyright.

Tú puedes obtener una copia del Dossier en español e inglés descargándolo, gratuitamente, aquí: http://www.copysouth.org . También contamos aún con cierta cantidad limitada de copias impresas en rústica de la versión inglesa original del Dossier. Si quisieras que te fuera enviada por correo postal una copia de la edición inglesa, que contiene ocho carteles, envíanos un mensaje a este correo electrónico (contact@copysouth.org) e incluye los detalles de tu dirección postal.

APOYARON FINANCIERAMENTE AL GRUPO DE INVESTIGACIÓN COPIA/SUR: 1)The Open Society Institute, Budapest, Hungary; 2) HIVOS,The Hague,The Netherlands; 3)The Research Fund of Kent Law School, Canterbury, Kent UK.

GRUPO DE INVESTIGACIÓN COPIA/SUR - 28 abril 2008 - http://www.copysouth.org

* * *

ANNOUNCING THE SPANISH EDITION OF THE COPY/ SOUTH DOSSIER

Issues in the economics, politics, and ideology of copyright in the global South Researched and published by the Copy/South Research Group May 2006 ISBN: 978-0-9553140-1-8 (printed first English edition) Not restricted by copyright

THE 2008 SPANISH EDITION OF THE COPY/SOUTH DOSSIER: Edited by Rafael Carreño of the Servicio Autonomo de la Propiedad Intelectual

In 2005, a group of scholars and activists, mostly from the global South, created the Copy/South Research Group to analyse, criticise, and confront the oppressive nature of current global copyright regimes, such as those defended by the World Intellectual Property Organisation, and similar ones around the globe. In May 2006, 22 of us, including 15 people from the global South, published THE COPY/SOUTH DOSSIER: Issues in the economics, politics, and ideology of copyright in the global South.

The aim of the Dossier was to open up a critical and radical debate on the real impact of copyright laws and how they affect the daily lives of people living in more than 150 developing countries of the global South. We also highlighted issues that are not unique to the Global South, but also affect both sides of the North-South divide. This publication of more than 50 articles was addressed to researchers, educators, librarians, musicians, activists, organizations concerned about access to knowledge, and all of those who want to learn more about the oppressive global role of copyright laws and, in particular, their largely negative role in the developing countries of the global South.

Given the democratic objectives of the Copy/South Research Group, the Dossier was not restricted by copyright. Therefore, it has been accessed openly and freely in both electronic and paper formats by thousands of readers from around the world in English. But English is not spoken by all citizens in the global South. With this in mind, the entire 200-page Dossier was translated into Spanish in late 2007 by an enthusiastic team of voluntary translators from Argentina, Bolivia, Cuba, Mexico, Spain, and Venezuela.

But what is still more extraordinary about the Spanish translation is that it was completely coordinated and edited by the Servicio Autonomo de la Propiedad Intelectual (SAPI) of the democratic government of the Venezuelan Bolivarian Republic. The Dossier provides "useful material to introduce this topic to teachers and students" and does a good job of "summarizing a complex and conflicting situation" for developing countries, Jumersi La Rosa, SAPI’s new Director General, said last week in announcing the release of the Spanish edition. She has written a special new introduction for the Spanish-language edition.

The Copy South Research Group is very pleased that the radical message of resistance found in the Dossier can now be read by thousands of Spanish-language speakers who are questioning the current copyright regime and who hopefully will be ignited by the ideas in the Dossier to take up the fight against oppressive regimes based on copyright.

You can get a copy of the Dossier in Spanish and English by downloading it, free of charge, at http://www.copysouth.org . We also still have a limited number of printed and bound copies of the English-language version of the Dossier. If you would to be mailed a copy of the English-language version, which contains eight posters, send us an e-mail (contact@copysouth.org) and include your full postal details.

FINANCIAL SUPPORTERS OF THE C/S RESEARCH GROUP:

1)The Open Society Institute, Budapest, Hungary; 2) HIVOS,The Hague,The Netherlands; 3)The Research Fund of Kent Law School, Canterbury, Kent UK.

COPY/SOUTH RESEARCH GROUP - 28 April 2008 - http://www.copysouth.org

Article originally published on the Financial Post website by Sarah Schmidt.

OTTAWA — Consumers will be locked out of some digital content they have already paid for and face penalties up to $20,000 if they try to get around any digital lock to copy CDs or DVDs for themselves under Canada’s proposed new copyright bill.

The federal government tabled the legislation in the House of Commons on Thursday, dubbing it as a "Made in Canada" solution to stamp out online piracy. "This is truly a win-win for Canadian consumers who use digital technology and for everyone who creates material that becomes digitally accessible," said Industry Minister Jim Prentice.

But just as soon as the government unveiled the details, the proposal split members in the arts and business communities over whether the hard line approach is the right way to deal with consumers in the digital age. And some rebranded it as an American duplicate.

Only in cases where companies do not put a digital lock on their material will consumers be allowed to make a backup copy of a legally purchased CD or DVD, or transfer it to an MP3 player or another device for personal use. And while the new bill proposes to make expressly legal the "time shifting" of television programs through widely used personal video recorders, there is a catch.

The shows cannot be kept indefinitely to build a library of recordings, and if broadcasters block the ability to digitally record certain shows through broadcast flags, consumers will not be allowed to get around that lock legally. The legislation also proposes a ban against tools to circumvent digital locks.

"The effect of the digital lock provisions is to render these rights virtually meaningless in the digital environment because anything that is locked down cannot be copied," said Michael Geist, a law professor specializing in digital copyright at the University of Ottawa.

Mr. Prentice defended the approach, saying it strikes the right balance in changing times.

"Think about it in these terms: 10 years ago, the first portable MP3 player hit the market. The 1998 version bragged about storing up to one hour of music. Today’s players can hold thousands of songs, videos and photographs," said Mr. Prentice, pointing out Canada’s copyright law was last amended in 1997.

In cases where people download copyrighted songs or other digitized material, penalties will be capped at $500. But in cases where teenagers legally purchase songs online, then e-mail them to a friend or share them through a peer-to-peer service, this transgression will still carry a maximum penalty of $20,000 per copyrighted song.

Duncan McKie, president of the Canadian Independent Record Production Association, was quick to praise the government for starting "on the right road. I think they’ve addressed the right issues. I think they’ve been sensitive to everyone’s concerns."

He added the music industry isn’t keen to take regular consumers to court to collect damages. The industry is more "concerned with the most egregious violators, people who try to make a business out of the trade of illicit and infringing materials. I’m not really concerned about people in their basements sharing a few files here and there."

The Canadian Record Industry Association, the Canadian Music Publishers Association and the Alliance of Canadian Cinema, Television and Radio Artists also applauded the draft legislation.

But the Canadian Music Creators Coalition slammed the bill, characterizing it as "an American-style approach to copyright. It’s all locks and lawsuits," according to Safwan Javed, coalition member and drummer for Wide Mouth Mason.

"Rather than building a made-in-Canada proposal to help musicians get paid, the government has chosen to import American-style legislation that says the solution to the music industry’s problems is suing our fans," said Mr. Javed.

The coalition of nearly 200 Canadian acts includes household names Avril Lavigne, Sarah McLachlan, Broken Social Scene, Matthew Good, Billy Talent, Sloan, Chantal Kreviazuk, Sum 41 and Sam Roberts.

The minister was set to table the legislation last December, but pulled it amid concerns the Canadian legislation too closely resembled the U.S. Digital Millennium Copyright Act, recognized as the toughest legislation worldwide. Like the Canadian proposal, the U.S. law takes a hard line circumventing digital locks, even for legally purchased content for personal use.

If passed into law, Internet service providers in Canada will get a reprieve, an area where Canada deviates from provisions under U.S. law.

The American legislation requires ISPs to block access to allegedly infringing material or remove it from their system when they receive a notification claiming infringement from a copyright holder or their agent. The proposed legislation will require ISPs to forward a notice of infringement to the subscriber, a so-called "notice and notice" system already widely used voluntarily in Canada.

But Mr. Geist says an absence of a U.S.-style "notice and takedown" system under Canadian copyright law could be meaningless if Canada signs on to the proposed Anti-Counterfeiting Trade Agreement (ACTA). Mr. Prentice confirmed Thursday that the government is working to reach such a deal with international trading partners.

An ACTA discussion paper, recently leaked on the Internet, could require ISPs to filter out pirated material, hand over the identities of customers accused of copyright infringement, and restrict the use of online privacy tools.

The fate of the Canadian legislation was in doubt on the same day it was tabled, as opposition politicians lined up to question key aspects of the proposed legislation. The government will require support from some opposition Members of Parliament for the bill to become law. It could also die on the order paper if an election is held before it’s fully debated.

Liberal heritage critic Denis Coderre suggested the maximum penalty of $500 for downloading copyrighted songs may not protect creators. Besides, he said, enforceability is a real problem. "Are we going to have cyber police now? How are they going to manage to go and keep respecting privacy in the house."

Charlie Angus, digital affairs for the NDP, said the digital lock provisions around personal use pose a real problem. "The fact is this bill was not created with any serious consultation with any of the stakeholders, except, as far as we could tell, the American lobby interests."

The proposed legislation creates specific education and research provisions, which will allow teachers and students to use material they find online as long as it’s used for educational or training purposes. They’ll also be able to use copyright material in lessons conducted over the Internet.

Librarians will also be to digitize print material and send a copy electronically to a client through an interlibrary loan. The client, in turn, can print a copy on their computer.

"This is a huge benefit for educational institutions, and certainly the publishers and authors will be disappointed by the breadth of it," said Mark Hayes, a partner in the Intellectual Property Group at the law firm of Blake, Cassels & Graydon.

On Tuesday May 13th Francis Gurry from Australia was selected by the WIPO Coordination Committee to be the nominee for WIPO Director-General put forward to the WIPO General Assembly in September 2008. It was a close vote in a process that, while still not fully transparent, seemed to reflect a move towards more openness, some credit for which is due to Mrs. Hilde Skorpen, Norwegian Chair of the Committee, and her staff.

Mr. Gurry was one of 7 candidates who met with civil society and a video of his presentation, question and answer session, and concluding remarks can be seen here.

Mr. Gurry’s positions on civil society issues can be compared with those of the other candidates through the following videos:

Video 1

Video 2

Video 3

Video 4

Video 5

More information on the Selection process is available on CIEL’s website.

Today, 3 July, 2008, is the deadline for amendments to the Draft Law in Brazilian Senate. Possibly, the bill will reach the Senate for next week, and there it will only be possible to fully veto the proposed law or any of its articles. Amendments will no longer be possible.

In case the Draft Law passes the Senate, regardless of any vetoes, it will proceed to the House of Representatives (Câmara dos Deputados), where it will only be possible to either completely approve or veto any of its provisions.

FOLHA DE SÃO PAULO , 03 July 2008

ELVIRA LOBATO, RIO DE JANEIRO

According to professors from FGV, a bill currently at Senate could criminalize net users who download [content] without prior authorization.

A brief [authored by the professors] claims that the bill may affect even mobile phone owners who unlock their devices.

A bill about electronic crimes, or cybercrimes, about to be voted at Senate could result in the mass criminalization of Internet users who engage into file sharing (of music, text and video) without prior authorization from rights holders.

This is the opinion of six professors from Fundação Getulio Vargas’ Law School, written in a brief released in Rio. According to the professors, the bill would have consequences reaching well beyond the realm of the Internet. Given the breadth of the wording used in the draft law, it could affect even mobile phone owners who unlock their devices. Brazil has 130 million cell phones.

Signing the brief were Ronaldo Lemos, Carlos Affonso Pereira de Souza, Pedro Nicoletti Miozukami [sic - Mizukami], Sérgio Branco, Pedro Paranaguá and Bruno Magrani, founders of the Center for Technology and Society of FGV Law School.

The bill was approved last month at the Economic Affairs and Constitution and Justice committees at Senate, and is now under amendment proposal stage before being sent to floor.

The same bill had caused controversy in 2006, when specialists and ISPs reacted against the proposal of obligatory identification measures directed at Internet users for any operation requiring interactivity, such as sending e-mails, on grounds that it would bureaucratize the net.

The text has been changed, but new questions are being raised. The brief written by FGV’s professors claims that articles 285-A and 285-B, establishing new crimes against the security of information systems, cover trivial acts committed by millions of people on the Internet, creating an instrument of "mass criminalization."

Article 285-A qualifies as a crime – punished with 1 to three months [sic – actually years] of imprisonment and a fine – to "access computer networks, communication devices or information systems without prior authorization of the legitimate owner, when required".

According to Ronaldo Lemos, director of the Center for Technology and Society at FGV, people could be condemned for disobeying terms of use drafted by private parties.

"Each ’legitimate owner’ decides which are the terms of the authorization, and is granted the power of determining the content of criminal law. Violations now occur according to subjective conditions and specific interests, giving room to abuse"

MP3

According to Ronaldo Lemos, by referring to "computer networks", "communication devices" and "information systems", the draft law covers not only computers, but also MP3 players, cell phones, DVD players, software systems and even digital TV set-top boxes, not to mention websites. Following this line of reasoning, the bill would cover even the act of unblocking a cell phone.

The professors claim that no country criminalizes access to information on the Internet in such broad fashion. "The closest legislation to what is being proposed here is the one passed in the USA, which criminalizes the act of circumventing technological protection measures. But no law has criminalized access itself," mentions the brief.

Article 285-B qualifies as a crime – also punished with 1 to 3 years of imprisonment and a fine – "to obtain or transfer data or information" without prior authorization of the legitimate owner.

The professors propose the exclusion or amendment of the text of two articles of the draft law. They suggest that the access and transference of information on the Internet be considered a crime only if fraud or "unlawful advantages" are involved.

SURVEILLANCE

Another article from the draft law – article 22 – is also being targeted by ISPs and the law professors. It imposes an obligation to ISPs requiring them to secretly inform authorities of any suspicion of criminal activity of which they acquire knowledge.

According to the professors, the article creates a system of private surveillance and finger-pointing affecting every net user, since ISPs will be obliged to communicate cases in which – according to their own convictions – there would be potentially criminal activity.

Cuba’s Academy of Science will hold an International Workshop on Open Access to Scientific Literature and other Digital Scientific Information Resources in Central America and the Caribbean: Focus on Education and Health for Sustainable Development.

It will take place at Palco Hotel, Havana, Cuba, September 3 – 4, 2008.

The details follow bellow:

* Wednesday, 3 September.

08:00 – 09:00 Registration.

09:00 – 09:20 Session 1. Welcome and review of Workshop objectives.

Chair: Ismael Clark Arxer, President, Academy of Sciences of Cuba (ACC), (Cuba).

1. Welcoming remarks by Sergio Jorge Pastrana, Foreign Secretary, Academy of Sciences of Cuba (ACC), (Cuba). 2. Background to the IAP Program and Workshop objectives by Michael Clegg, Foreign Secretary, National Academy of Sciences (NAS), (USA).

09:20 – 10:00 Keynote address. Luis C. Silva Ayçaguer, National Medical Sciences Information Center (INFOMED), (Cuba).

10:00 – 10:20 Coffee Break.

10:20 – 11:50 Session 2. Panel Discussion: International trends and perspectives on open access to, and use of, scientific literature and other digital scientific information resources.

Chair: Robert J. Lancashire, Secretary, Caribbean Academy of Sciences, (Jamaica).

Rapporteur: Paul F. Uhlir, Director, Office of International S&T Information Programs, National Academy of Sciences (NAS), (USA).

2.1. Presentation on Research and Education Networks, Martha I. Giraldo Jaramillo, Executive Director, High Technology National Academic Network (RENATA), (Colombia).

2.2. Presentation on Open Access Initiative, John Wilbanks, Executive Director, Science Commons, (USA).

2.3. “Designing a Data Commons for Sustainability Science: Lessons Learned from a World Data Center”, Alexander M. de Sherbinin, Center for International Earth Science Information Network (CIESIN), (USA).

2.4. General Discussion.

11:50 – 13:20 Lunch.

13:20 – 14:50 Session 3. Panel Discussion on challenges in open access to, and use of, scientific literature and other digital scientific information resources in developing countries for sustainable development: management, technical and infrastructure issues.

Chair: María Zunilda Sanchez, Full Member, Academy of Sciences of the Dominican Republic (The Dominican Republic).

Rapporteur: Raúl G. Torricella Morales, Director, Publishing House for Electronic Texts (EDUNIV), Ministry of Higher Education of Cuba (MES), (Cuba).

3.1. Presentation on CLARA Network, Martha I. Giraldo Jaramillo, Executive Director, High Technology National Academic Network (RENATA), (Colombia).

3.2. Presentation on the National University Network (REDUNIV), Ministry of Higher Education of Cuba (MES), Francisco Lee Tenorio, Director of Informatics, Ministry of Higher Education, (Cuba) and Jorge D. Villa Hernández, Supervisor, National University Network (REDUNIV), Ministry of Higher Education (MES), (Cuba).

3.3. “Scholarly communication: a new modelo for Brazil”, Hélio Kuramoto, Brazilian Institute for Information in Science and Technology (IBICT), (Brazil).

3.4. General Discussion.

14:50 - 15:10 Coffee – Break.

15:10 – 16:40 Session 4. Panel Discussion on challenges in open access to, and use of, scientific literature and other digital scientific information resources in developing countries for sustainable development: legal and policy issues.

Chair: María del Carmen Samayoa Grajeda, President, Academy of the Medical, Physical and Natural Sciences of Guatemala (Guatemala).

Rapporteur: Alexander M. de Sherbinin, Center for International Earth Science Information Network (CIESIN), (USA).

4.1. “The copyright conundrum: producing and accessing education & health resources in the global south”, Alan Story, Chairperson, The Copy South Research Group, (UK).

4.2. “Towards a National Policy for scientific and technological information”, Anna María Prat Trabal, BIREME, (Chile).

4.3. “Restrictive Copyright Laws and an Alternative to Open Scientific Information: Science Commons”, Pedro Paranaguá, “Getulio Vargas” Foundation, (Brazil).

4.4. General Discussion.

16:40 - 17:00 Coffee - Break.

17:00 – 18:00 Session 5. Thematic presentation: “Access to knowledge in the digital age, an introduction to eIFL.net programs and services”, Monika Segbert-Elbert, Member of the Management Board, Electronic Information for Libraries (eIFL), (UK).

18:30– 20:00 Reception.

* Thursday, 4 September.

9:00 – 10:10 Session 6. Panel Discussion on challenges in open access to, and use of, scientific literature and other digital scientific information resources in developing countries for sustainable development: institutional and economic issues.

Chair: Victor J. Sánchez Urrutia, Vice President of the Panamanian Association for the Advancement of Science (APANAC), (Panama).

Rapporteur: Leslie Chan, Associate Director, Bioline International (Canada)

6.1. “Emerging institutional models for providing Open Access to scientific information”, Paul F. Uhlir, Director, Office of International S&T Information Programs, National Academy of Sciences (NAS), (USA).

6.2. “The effects of Open Access Journals on the access to and dissemination of scientific information”, Lewis Joel Greene, Editor, Brazilian Journal of Medical and Biological Research, (Brazil).

6.3. “Institutional repositories supporting research”, Barbara E. Kirsop, Trustee and Secretary, Electronic Publishing Trust for Development, (UK).

6.4. General Discussion.

10:10 - 10:30 Coffee – Break.

10:30 – 13:00 Session 7. Panel Discussion on initiatives for improving access to scientific literature and other digital scientific information resources in Cuba: focus in education.

Chair: Xiao Yun, Director of Internet-based Science Communication Center, Computer Network Information Center (CNIC), Chinese Academy of Sciences (CAS).

Rapporteur: Nanci E. Oddone, Head of the Information Science Graduate Program, Universidade Federal da Bahia (UFBA), (Brazil)

7.1. “Contributions of Cuba to the Literacy Decade: Yo si puedo and Yo si puedo seguir Programs”, Jorge Tamayo Collado, Latin American and the Caribbean Pedagogical Institute (IPLAC), (Cuba)

7.2.”EDUNIV, the Publishing House for Electronic Texts of the Ministry of Higher Education of Cuba (MES)”, Raúl G. Torricella Morales, Director, EDUNIV, (Cuba).

7.3. Presentation on the University of Informatics Sciences (UCI), Luis Guzmán Hernández, Head of Infrastructure, (UCI), (Cuba).

7.4. Presentation on Youth Computing Clubs, Miguel A. Ramón Rodríguez, (Youth Computing Clubs), (Cuba).

7.5. “The Cuban Network of Science: conception and main results”, Francisco A. Fernández Nodarse, Head of the Project, (CITMATEL), (Cuba).

7.6 “Cuba Ciencia harvester: a project to align the selection and organization of contents for the Cuban Network of Science with the principles and technological foundations of Open Access”, Ricardo Casate Fernández, Director, National Library of Science and Technology, (IDICT), (Cuba)

7.7 “Information system for Cuban R&D Program Management”, Orlando E. Sánchez León, Center for Management of Priority Projects and Programs (GEPROP), Cuba

7.5. General Discussion.

13:00 – 14:15 Lunch.

14:15 – 15:45 Session 8. Panel Discussion on initiatives for improving preservation of, and access to, scientific literature and other digital scientific information resources in developing countries: focus on health.

Chair: Jorge A. Huete Pérez, Vice President of the Nicaraguan Association for Science, (Nicaragua).

Rapporteur: Paul F. Uhlir, Director, Office of International S&T Information Programs, National Academy of Sciences (NAS), (USA).

8.1. “The Virtual Health Library of Cuba (VHL Cuba)”, Gustavo Kourí Cardellá, National Medical Sciences Information Center (INFOMED), (Cuba).

8.2. “SciELO: the case of a successful program. Evolution and perspectives”, Anna María Prat Trabal, BIREME, (Chile).

8.3. Presentation on SciELO and Science Commons, John Wilbanks, Executive Director, Science Commons, (USA).

8.4. “The Virtual Health University of Cuba”, Francisca M. Diego Olite, National Medical Sciences Information Center (INFOMED), (Cuba).

8.5. General Discussion.

15:45 - 16:00 Coffee – Break.

16:00 – 17:30 Session 9. Sessions reports, closing remarks and conclusions.

Chair: Sergio Jorge Pastrana, Foreign Secretary, Academy of Sciences of Cuba (ACC), (Cuba).

9.1. Summary of discussions by Rapporteurs.

9.2. Closing remarks, Michael T. Clegg, Foreign Secretary, National Academy of Sciences (NAS), (USA).

9.3. Conclusions, Ismael J. Clark Arxer, President, Academy of Sciences of Cuba (ACC), (Cuba).

From 08—10 September it takes place in Geneva the Third Conference on Access to knowledge (A2K3), from the Information Society Project (ISP) at Yale Law School.

For the complete programme, please click here.

It will also be launched the A2K Global Academy, a group of 06 academic institutions: Brazil, China, South Africa, India, Egypt, and the USA.

For real time information, click here.

Plataforma Democratica’s virtual library has reached the mark of 3,000 texts on issues related to democracy in Latin America. All the articles and books were produced by Plataforma Democrática, as well as its associated institutions and other Latin-American research centers. They can be freely downloaded here.

You can support to expand the database on research centers here.

The following publication, The Consumer & Copyright, is an informational booklet regarding what is and what isn’t allowed, according to the copyright system. It aims to reveal permitted, yet unknown, actions that can be beneficial to society as a whole.

Edited in 2008, this booklet is the result of a partnership between Idec and the Center of Technology and Society (CTS) from the Fundação Getulio Vargas (FGV) Law School in Rio de Janeiro with financing from the Open Society Institute (OSI).

Although the booklet is written in Portuguese, the content is licensed via a Creative Commons license so anyone is free to translate the material. We encourage people to translate it and distribute booklets in English, Spanish, German, and every other language.

By Kaitlin Mara

Intellectual Property Watch

Outside the realm of mainstream proprietary entertainment, owned by big studios and protected by brand names, lay large numbers of artists without audiences looking for the means to distribute their creativity, and groups of people who yearn for art reflective of experiences not touched upon by the mainstream movies and music. These artists have created independent side industries that challenge conventional views on piracy.

Such expression used to be the property of neighbourhood streets, or oral tradition, but the digitising world has brought with it two important changes: on the one hand, localised forms of creation and communication are being outpaced and outcompeted by mass media capable of faster movement and farther penetration; on the other, the internet and the rise of personal recording equipment - coupled with its falling price - has placed the power of communication within reach of those who want to grasp it.

“We have cultures literally vanishing,” said Charles Igwe of motion picture information and services company The Big Picture, which advises the successful Nigerian film industry: “each time someone dies, it is like losing a library.”

The issue was addressed at a 9 September panel of Yale University Law School’s third annual Access to Knowledge conference.

In Brazil, said Ronaldo Lemos from the Center for Technology and Society at Fundação Getulio Vargas (FGV) law school in Rio de Janeiro, major music company Sony/BMG releases about 13 new compact discs a year. “Where,” asked Lemos, “is the Brazilian music?”

The answer to that question is that out of these previously unrecorded spaces, several independent industries have grown, with unique ways of creation, recording, and distribution.

The Brazilian website TramaVirtual, for instance, boasts over 60,000 artists: “an entire generation of art and music coming from this website rather than the traditional music industry,” said Lemos. A popular form of Brazilian street music, tecnobrega, sees the production of about 400 new CDs and 100 new DVDs every year, he added, “but you won’t find them in stores.”

This music is instead distributed directly to street vendors. The same people normally thought to be selling pirated material have a deal with tecnobrega in Brazil to sell the real thing, explained Lemos.

Such people are sometimes dismissed as pirates, said Regina Casé of Pindorama Produçes Artisticas, which she argued is unfair as the music is theirs.

Regina Casé, with help from Ronaldo Lemos, talks about the relationship between prejudice towards certain communities and the label of piracy Casé spoke of her organisation’s work in televising this music scene, at first in Brazil and increasingly around the world.

“We travel,” she said, “to places no one had an interest [in] before and show people that were invisible to most… then we noticed that TV was no longer what you normally see.” This TV programme was dubbed Central da Periferia - the Centre of the Periphery - and plays the kind of music wildly popular in peripheral areas, and often neglected by mainstream record makers. They document distribution methods such as the “candonga” - vans with speakers, so that people can listen to new music as the driver drives through a neighbourhood.

A single episode of Central da Periferia may reach over 100 million people, she said. On one video clip, grinning musicians triumphantly grip the keyboard and cheer, “Let’s hear it for the technological outsiders!”

Nor is Hollywood immune from this outpouring of creation from marginal areas. In 2005, according to Lemos, Brazil released 51 new movies a year, the United States 611, India 934, and Nigeria 1,200. In Nigeria, the cost to purchase a film is $3, and $0.50 for a rental. From these sales, the industry generates $200 million a year, the third highest in the world after the US and India.

Igwe said that after a 1992 decision to commercialise television broadcasting in Nigeria, stations decided it would be cheaper and easier to buy a foreign product. But there was a leftover and undersupplied market for the old Nigerian TV stars and programmes that were then off TV. A movie made with some of these stars sold 200,000 copies in a week; making clear the potential in this industry.

Demand quickly outpaced the supply and soon pirate copies of films were making their way into the market. Igwe said the industry faced two options: to look for collaboration to stop counterfeiting and piracy - an expensive prospect in a fledgling industry with no state support - or allow that every disc, legitimate or not, that went into the market “created an audience for us.” Behind the piracy, explained Igwe, was a desire for more of the product; in the wake of piracy, even more new markets opened up.

Charles Igwe discusses piracy in the Nigerian film industry

This is a key factor of open business, explained Elizabeth Stark of the Yale Information Society Project: they are “not relying on traditional means of exclusive rights.” When traditional means of licensing are not an option “people work outside the system, innovate to create these models.”

And in the western world, alternative forms of distribution and licensing are catching on: the band Radiohead, for example, released its latest album In Rainbows on a “pay what you want” system. Another band, Nine Inch Nails, went even farther, noted Stark, releasing their latest album The Slip on a Creative Commons licence.

In 2008, Igwe said, Nigeria’s film industry, dubbed “Nollywood,” is making 2000 films a year - and it is not just growing, “it’s mushrooming.” There is a “massive cultural revival” in Africa, he said. In Uganda, an Ugowood is growing; a Riverwood in Kenya is doing the same.

The explosion of these films is the first time there has been a way to record traditions that are not conducive to being written down, traditions that are otherwise at risk of being lost Igwe said. Nollywood is a business, and has to be to survive, he explained, but it is a business with extraordinary social impact and social responsibility.

Charles Igwe talks about the role of motion pictures in preserving Nigerian oral history in the knowledge economy

What underpins much of this drive for new business models may have its roots in something even more fundamental than the desire for access to information. Rishab Ghosh of United Nations University Maastricht Economic and Social Research and Training Centre on Innovation and Technology (UNU-MERIT) said of open source software, another form of participatory and open business, that the key issue is really about “not just access to consuming knowledge” but also “access to participation.”

On January 15, 2010 the Permanent Mission of Brazil to the World Trade Organization and other economic organizations in Geneva submitted a proposal to the World Intellectual Property Organization (WIPO). The Brazilian note verbale to WIPO notes that the proposal:

"aims at contributing to the discussion of exceptions and limitations to patent rights. . . While not purporting to cover all interfaces of the matter with development concerns, it emphasizes the importance of promoting a wide and sustained debate on the issue in the SCP".

The 14th session of the the WIPO Standing Committee on the Law of Patents (SCP) which is meeting in Geneva from January 25-January 29, 2010 will consider "Exclusions from Patentable Subject Matter and Exceptions and Limitations to the Rights". The Brazilian submission (SCP/14/7, January 20, 2010) would beef up the WIPO patent committee’s work on limitations and exceptions as it proposes a "work program be established in the SCP to carry out a wide and sustained debate on this issue in three phases".

Read the proposal here-

Source: KEI Online-

Originally posted in OpenSpectrum Japan-

Japanese government seems to be changing its industry-oriented policy toward consumers.

Last week the Council of Information and Communication decided to scrap the B-CAS, the notorious conditional access system for free broadcasting (link in Japanese). Due to this change, "Dubbing Ten", which forbids copying the programs of digital broadcasting more than ten times, would be abolished, because it is enforced by the encryption of B-CAS. It might be the result of accusation by many people (including me) on the Web that B-CAS is violating the Anti-Monopoly Act.

On Sep. 18, the Council of Culture gave up the extension of copyright from 50 years after the death of the author to 70 years (link in Japanese). Two years ago, the Council proposed the extension to follow the "global standard", but many people on the Web objected against the legislation. A Council member confessed that he didn’t imagine such strong objection from overwhelming majority on the Web.

These might be signals that the Web is becoming the "Fifth Estate" to compete against mass media. In Japan, since broadcasting stations are tied with major newspapers, they are so strong that B-CAS nor copyright extension has scarcely been reported in media. However, this taboo is strongly attacked by many blogs and bulletin boards. They organized NPO and accused B-CAS to Fair Trade Commission.

As a result, the tide is changing, but it’s only a beginning. We should unite to open the spectrum and abolish the monopoly of broadcasters.

In celebration of Open Access Day, October 14, 2008, the Information Society Project at Yale Law School (Yale ISP) will launch a new book, Access to Knowledge in Brazil: New Research on Intellectual Property, Innovation and Development. The volume is the first in a new series of research on access to knowledge published by the Yale ISP.

The book features four chapters on current issues related to intellectual property, innovation and development policy in Brazil. Featured topics include: exceptions and limitations to copyright, free software and open business models, patent reform and access to medicines, and open innovation in the biotechnology sector. Each chapter is authored by one or more legal scholars from the Fundação Getulio Vargas, Brazil’s leading institution of higher education.

The book is edited by Lea Shaver, Associate Research Scholar and Lecturer in Law at Yale University and the director of the Information Society Project’s research program in Access to Knowledge.

"Access to knowledge is a critical issue for scholars, policy makers and public interest advocates," says Shaver. "Will the law treat knowledge as something to be widely shared so that all can benefit or allow it to be controlled and monopolized for the benefit of a few?"

The inaugural volume marks an important institutional milestone for the ISP—its first venture in the role of publisher. Future volumes in the series will be produced in collaboration with other members of the A2K Global Academy, a new network of academic centers dedicated to research, education, and policy analysis promoting access to knowledge. Research for the books was made possible by a three-year grant from the MacArthur Foundation.

The October 14 launch date is timed to coincide with the first ever Open Access Day. According to the event’s organizers, "Open Access is a growing international movement that uses the Internet to throw open the locked doors that once hid knowledge. It encourages the unrestricted sharing of research results with everyone, everywhere, for the advancement and enjoyment of science and society."

Consistent with the values of Open Access, the ISP publication will be made widely available to the public. A digital edition may be accessed for free from http://www.law.yale.edu/intellectuallife/6620.htm and through Google Books. Print-on-demand copies will be available for purchase at cost through the printing service Lulu.com. The book will also be available through traditional retail outlets.

The authors, editor and publishers have also made the entire work available under a Creative Commons license. This license gives permission for a copyrighted work to be shared or adapted in new and creative ways by third parties. For example, anyone is free to translate the book into another language, provided they give appropriate credit to the original authors, editor and publisher.

The Information Society Project (ISP) at Yale Law School was founded in 1997 by Professor Jack Balkin to study the impact of the Internet and other information technologies on law and society. For more information, visit http://isp.law.yale.edu/.

Source: Yale Law School

Panel held at the Brazilian Nacional Copyright Forum – Fortaleza, Ceará, Brazil

The International Seminar on Copyright , organized by the Brazilian Ministry of Culture (MinC) in conjunction with the World Intellectual Property Organization (WIPO), took place from the 26th to 28th of November in Ceará. The seminar was part of the National Copyright Forum, an initiative carried out by MinC since December 2007 aiming at rethinking copyright in Brazil, in order to promote a greater balance between protection and access to knowledge.

Many experts from various countries, including Brazil and Portugal, were present at the event. Over 30 countries were represented by members from both private initiative as well as public interest instances.

One of the most important panels was “Private Copies and Levies: The International Experience”.

The so called “levies” basically would be the taxation or percentage fee over products like blank CDs, DVDs, pen drives, cell phones that play mp3 files, or any other sort of gadget that allows content recording. This collected percentage would then be divided among authors of each work, as a payment for the private copying. There is, nevertheless, much criticism regarding such methods:

1. First of all, not every blank CD or DVD is used to partially or entirely copy copyrighted content – there is also the possibility of it being a public domain content, specifically authorized by the author or licensed in Creative Commons etc.

2. How would the distribution of these copyrights take place? How would there be a record of the copyrighted content actually copied?

3. What would the correct value of this levy? Would there be a social-economic formula in order to determine the value in each country?

4. The private copy is authorized by international treaties and there are no demands regarding a fee for such copies, therefore, there is no obligation in charging.

The speaker Marcelo Branco, coordinator of the Associação Software Livre (Free Software Association), was efusively applauded by an audience of 400 people. The claps echoed throughout the auditorium and lasted for a long time.

Marcelo Branco spoke on how the 20th century was a step back for copyright. The intermediaries greatly benefited while authors were hindered – together with the public interested in accessing culture. The Internet and technology, according to Marcelo Branco, must be used for the progress of humanity, not the opposite.

For Branco, one thing is to make illicit copies in great proportion and for sale. Another thing is to make a copy with no profit intents and among the private context of whoever is copying.

Marcelo also mentioned Spain’s example, in which the country failed in the “digital canon” area, as the Spaniards call the copyright system. Formerly a strategy consultant for the Information Society at Generalitat de Catalunya, Spain, Branco cited professor Manuel Castells as one of the strongest opposers against the levy system, for its opposition to a democratic, just, and sustainable evolution.

Regarding technological protection measures, the so called DRM, Marcelo mentioned the example of Apple’s iTunes, which functions only with products from the same brand, be it iPods or iPhones. This characterizes an excluding and non-democratic method, according to Marcelo Branco, which would be equivalent to needing a specific radio receiver in order to listen to a certain broadcaster. Another example would be to need a Sony CD reader to able to listen to CDs from the Sony/BMG label.

Online Streaming – All of the seminar panels were transmitted live in real-time, via the Internet. Check the link at Copyright Policies area on MinC website for more information.

During the week of a worldwide celebrated World AIDS Day, REBRIP’s Work Group in Intellectual Property (GTPI), which is currently coordinated by the Brazilian Interdisciplinary AIDS Association (ABIA), launched a national campaign on the impacts of the patent system’s abuses on the access to essential medicines, including the ones necessary for treating HIV/Aids.

Posts printed by the group can be found in various places such as cinemas, bars, bookstores and restaurants, in four Brazilian capitals (Rio de Janeiro, São Paulo, Recife and Curitiba), informing people about the issue and inviting them to access the campaign’s homepage-. On that website, people can find information about the impact of patents on public health and on access to essential medicines, and can also read GTPI’s documents and take part in this campaign by sending an e-mail to the competent authorities through the website. The action is supported by Ford Foundation, RS2 Comunicação and MICA Media Cards.

For more information and to take part in the campaign click here-.

Today, January 20, 2009, a few minutes ago in Washington, DC, the 44th President of the United States of America, Barack Hussein Obama, sworn in.

And we may already see at the White House’s website a copyright notice stating that "Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License."

By William New, Feb 3, 2009

The ambassadors to the World Trade Organization from Brazil and India on Tuesday charged that other WTO members had no grounds to block legitimate shipping of generic medicines on the basis of potential intellectual property rights conflicts in the transit country and said recent cases of doing so in the Netherlands call into question WTO rules. The concern was supported by 17 other developing country governments at Tuesday’s WTO General Council meeting.

Meanwhile, the ambassadors of Brazil, India, the European Union and Switzerland are expected to meet on Wednesday, according to an official, to discuss ways to start negotiating within the WTO on a proposal to extend higher name protection wines and spirits enjoy to geographical indications on other products, and on a proposal to amend WTO rules on intellectual property rights to require the disclosure of origin of genetic material in patent applications. Over 100 WTO members have called for these topics to be negotiated but a smaller number has resisted.

On Thursday, the official said, a group of 16 interested parties also will meet at the ambassador level on the same subject. IP rules at the WTO mainly fall under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Proponents of these two issues would like them to join a proposed register for geographical indications as mandated for negotiation in the ongoing round of talks. There was a meeting on the GI register last week with Barbados Ambassador Trevor Clarke, who chairs special sessions on the matter. The European Union remains potentially in a defensive posture as it is being asked to explain its proposal on the GI register. It appears that what was agreed in the meeting with Clarke was to hold a TRIPS special session in conjunction with the next TRIPS Council meeting in early March.

The flare-up on generics shipments came in the context of a somewhat sobering meeting in which ambassadors and WTO Director General Pascal Lamy stressed a need to keep free-trade talks going at the WTO to counter increasingly negative global economic news. Trade is projected to reach its lowest levels since 1982, Lamy said. Governments have begun again to negotiate.

In addition to Brazil and India, those voicing concerns about access to medicines and customs were: Argentina, Bolivia, Burkina Faso, China, Costa Rica, Cuba, Ecuador, Egypt, Indonesia, Israel, Nigeria, Pakistan, Paraguay, Peru, South Africa, Thailand and Venezuela.

The statement by Brazil to the General Council will be available here shortly [doc]; the statement by India to the General Council is available here [doc].

Meanwhile, the ambassador from the European Union sought to defend the actions and come to a better understanding of what happened. Both sides plan to speak further about the matter.

The statement by the European Union to the General Council is here [doc].

On 4 December, Dutch customs authorities seized an air shipment of generic medicines sent by generics producer Dr Reddy’s in India bound for Brazil, and held it for 36 days allegedly on suspicion of being counterfeit. The cargo was 500 kilos of losartan potassium, an active ingredient used in manufacturing medicines for arterial hypertension, a shipment the EU valued at €55,000 euros. The action was taken on the request of a company (possibly brand-name drug producer Merck, Sharp and Dohme) which holds the patent in the Netherlands, the EU said. The ingredient is not patented in India or Brazil and therefore could not be violating IP rights in those markets. In the end, the drug shipment was released back to the Indian owner, which decided at that point to return the shipment to India.

Trade in generics is fully legal worldwide - and governments and activists have been fighting to clear up any confusion between generics and counterfeits, which unlike generics might be substandard or illegal. Under the TRIPS agreement, medicines are considered to be generic based on the country in which they are meant to be commercialised, meaning either Brazil or India, they said. The law of the country of transit does not matter, Brazil argued.

The Dutch authorities’ action “clearly violates the freedom of transit, which is a right enshrined in GATT [General Agreement on Tariffs and Trade] Article V,” Brazilian Ambassador Roberto Azevêdo told the WTO General Council Tuesday. “Only very exceptional circumstances warrant restrictions on that freedom. Brazil is not aware of any such circumstance in this concrete case.”

EU Ambassador Eckart Guth countered at the General Council that the Dutch seizure “is allowed by TRIPS and is based on provisions in EU customs law that allow customs to temporarily detain any goods if they suspect that these goods infringe an intellectual property right.” As the goods were eventually determined not to be headed for the EU market, they were returned to the owner.

But Azevêdo said that the decision to impede a shipment of generic medicines not destined for the Dutch market “is unacceptable and sets a dangerous precedent.” And, he said, there are “indications” that this is not an isolated case, raising concerns about systemic problems with WTO rules if they do not prevent a transit country from interfering with legitimate trade. India also asserted that this case is not alone.

“Brazil is gravely concerned with the setting of a precedent for extraterritorial enforcement of IP rights,” Azevêdo said. “Attempts to extend the rights granted by patents beyond national borders have critical systemic implications.”

Furthermore, extraterritorial enforcement of patent rights cannot be reconciled with the 2001 Doha Declaration on TRIPS and Public Health, Brazil said. The declaration reinforced nations’ sovereign rights to take measures to protect public health, and includes access to medicines.

The Dutch action also could undermine use of the so-called paragraph 6 system at the WTO, which refers to paragraph 6 of the TRIPS and public health agreement and allows countries lacking manufacturing ability to import needed medicines from other members under a compulsory cross-licensing arrangement.

‘IP Maximalists’ at the WCO, WHO

Concern also was raised about efforts by some countries to increase enforcement on goods in transit and blur the line between generic and counterfeit medicines at international organisations such as the Brussels-based World Customs Organization, the World Health Organization, and the Universal Postal Union.

There is a concerted effort among these organisations to “promote the IP maximalist agenda,” which is upsetting the delicate balance achieved in the 1994 TRIPS agreement, India said.

“There is an attempt to enlarge the definition of counterfeits beyond its definition in the TRIPS Agreement, to set maximalist enforcement norms, and to include TRIPS-plus provisions in RTAs [regional trade agreements],” Indian Ambassador Ujal Singh Bhatia said. “These are subtle and concerted ways of circumscribing the flexibilities of the TRIPS agreement. They also run counter to the spirit of the TRIPS agreement, which is a minimum standards agreement. And this is certainly counter to the understanding given to developing countries when the TRIPS agreement was being negotiated.”

“Neither the WCO nor the WHO are adequate fora for discussing IP rights enforcement,” Azevêdo said. “In the WHO, the focus should be on the quality, safety and efficacy of medicines, as well as on the issue of access.” The WCO, he said, “should concentrate on developing methodologies for enhancing customs’ performance, rather than venturing into TRIPS-plus norm-setting.”

The Indian ambassador said repeated actions like Holland’s could cause exporters to change routes possibly having a negative impact on access to essential drugs and on public health budgets in developing countries. The health of poor populations could be at risk if their medicines access is impaired, he added.

“What if countries commenced to create impediments to the legitimate trade of generic medicines based on the wrongful allegation that it violates national patent rights?” said Azevêdo. “In that case, trade in generic medicines would be rendered virtually impossible.”

EU Ambassador Guth responded to the charges by saying it would have been preferable for Brazil and India first to raise the issue bilaterally in order to clarify facts “before triggering a highly emotional debate.” Guth also referred to TRIPS Article 51, which allows customs authorities to suspend the release of goods, and he said under EU law, companies whose goods are wrongly detained are eligible for reimbursement.

“Let me make it very clear that the EU has absolutely no intention to hamper any legitimate trade in generic medicines or to create legal barriers to prevent movement of drugs to developing countries, nor have our measures had this effect,” Guth said. “We are absolutely committed to all the efforts that are being made to facilitate access to medicines.”

But India said it raised the issue at the General Council “with the expectation that the EC will urgently review the relevant regulations and the actions of the national authorities based on such regulations, and bring them in conformity with the letter and spirit of the TRIPS agreement and the rules-based WTO system.”

William New may be reached at wnew@ip-watch.ch.

This article was originally published on http://www.ip-watch.org/weblog/index.php?p=1415

By Dugie Standeford for Intellectual Property Watch

Copyright has taken centre stage again this year as the battle over internet service provider (ISP) responsibility for digital piracy intensifies and spreads around the world.

2009 will also feature growing global pressure for a more harmonised system of copyright limitations and exceptions, and continuing controversy over the proposed Anti-Counterfeiting Trade Agreement (ACTA).

Intermediary Liability

This year is crucial for the music industry, which needs to see "ISP cooperation become a reality," said a spokesman for the International Federation of the Phonographic Industry. IFPI’s Digital Music Report 2009 [pdf], published on 16 January, warned that despite a greater variety of legitimate online music offers and innovative business models, peer-to-peer (P2P) piracy continues to overwhelm the sector.

The recording industry’s belief that ISPs should assume more responsibility for protecting the content that passes through their pipes continues to find a sympathetic ear in some governments.

In 2007, French ISPs agreed to try filtering infringing files (IPW, European Policy, 27 November 2007). A proposal by French President Nicolas Sarkozy for a "graduated response" scheme in which alleged infringers are given two warning notices before their internet subscription is terminated was approved by the Senate late last year. Assembly action is expected by the end of March at the latest, the government has said.

In July 2008, the UK government brokered a deal with major ISPs and the music and film industries as part of a light-touch, co-regulatory approach to digital piracy (IPW, Enforcement, 28 July 2008). However, in a 29 January 2009 response [pdf] to input on legislative options to address illicit P2P file-sharing, the government acknowledged that neither its co-regulatory approach nor any other proposed option won widespread support from rights holders, consumers or ISPs.

In an interim "Digital Britain" report published the same day, the government signalled its intent to require ISPs to notify alleged infringers, subject to "reasonable levels of proof from rights holders," that their conduct is unlawful, and to collect anonymised data on serious repeat infringers to be turned over to rights owners upon receipt of a court order. It apparently ruled out disconnection of serial infringers’ internet subscriptions. The final report is due in June.

As part of the Digital Britain initiative, the UK Intellectual Property Office is seeking feedback on an informal paper on "Developing a Copyright Agenda for the 21st Century" [pdf]. In addition to issues relating to digitisation and the internet, the inquiry covers creators’ rights, rights clearance processes and enforcement matters. A discussion paper is expected early this year, the IPO said.

The European Commission also has toyed with the idea of a graduated response approach to unauthorised file-sharing. However, an April 2008 European Parliament vote urging governments not to allow shut-off of internet access in cases of suspected piracy may have forced EU Information Society and Media Commissioner Viviane Reding to rethink her position (IPW, Enforcement 10 April 2008).

In a speech last November, Reding said she is still working on a future framework for online content. She criticised efforts at the EU and national level to view content issues such as piracy as requiring a "deal" between two camps only. The third camp, consumers, must be part of the equation, she said. She promised to relaunch the ’Content Online’ debate in 2009.

Australian ISPs, battling a similar push for a "notice and disconnect" regime, are watching European developments closely, Internet Industry Association Chief Executive Peter Coroneos said last year (IPW, Monthly Edition, June 2008).

In December, the Australian government published a draft consultation paper on digital economy future directions [pdf]. Among other issues, the government is considering whether to extend copyright "safe harbours" limiting intermediaries’ liability for infringement activities of their subscribers to other types of online service providers, such as social networking and video-sharing sites. The consultation closes 11 February.

The ISP issue is also in play in the United States but with a network neutrality "wrinkle" that could pop up elsewhere, said Copyright Alliance Executive Director Patrick Ross. One question Congress must deal with in deciding whether service providers should be allowed to manage traffic flow on their networks is whether to protect legal and illegal transmissions, he said. So far, lawmakers favour only the former, he said.

The impact of India’s Information Technology Act 2000 Amendment Act 2006 on intermediary liability, which cleared Parliament in December, will be analysed soon, said Pranesh Prakash of the Centre for Internet & Society. Most cases so far have centred not around copyright but on obscenity, defamation and other issues, he said. But given the increase in copyright-related litigation and enforcement, ISP responsibility for infringement "will soon be a topic of contention," he said.

Licensing may hold the key to slowing online infringement. But despite ongoing talks among music labels and ISPs in the UK and elsewhere, there is no simple solution in the offing and more governments are mulling regulation (IPW, Copyright Policy, 28 January 2009).

Limitations and Exceptions

Limitations and exceptions to copyright - and, in particular, the issue of access to information by the visually-impaired - was at the top of the agenda at the last meeting of the World Intellectual Property Organisation’s Standing Committee on Copyright and Related Rights (SCCR), WIPO Deputy Director General Michael Keplinger said.

Discussion on the special needs of the visually-impaired with respect to copyright will continue this year, including how to enhance their access to protected works and the cross-border transfer of copies in accessible formats, he told IPW. The visually-impaired community needs effective and prompt solutions to these challenges, particularly regarding access to digital content, he added. The SCCR is expected to meet next on 25-29 May.

Last year, the European Commission launched a debate on limitations and exceptions needed to ease dissemination of knowledge for research, science and education in the digital environment. The comment period on the "Green Paper on Copyright in the Knowledge Economy" [pdf] closed in November.

In January, the European Parliament Legal Affairs Committee responded to the green paper. The European Bureau of Library, Information and Documentation Associations branded the report "unduly biased" toward publishers and asked lawmakers to reject it when it comes up for vote in plenary session in February.

Anti-Counterfeiting Treaty Agreement

Negotiations on international trade standards for tackling large-scale copyright, patent and trademark infringements continue this year, the European Commission said. Current negotiating parties to the Anti-Counterfeiting Treaty Agreement (ACTA) are the US, Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland.

The proposal has sparked an outcry from public interest groups. "The speed with which it has been rushed through - and the secrecy of the meetings and the provisions is alarming," said IP Justice Executive Director Robin Gross. ACTA will make routine surveillance of laptops, iPods and other devices in the hope of finding questionable music, videos and other information "a de facto standard for every airport in the world," she said. The proposal also shifts the costs of enforcing private rights to the public, she said. So far civil society and developing countries have been barred from talks, she added.

But the Commission said there is not yet even a draft text on which negotiators agree. "A number of ’texts,’ wrongly presented as draft ACTA agreements have been circulated on the web," it said. The next round of talks could take place in Morocco in early March, it added.

In another trade-related development, a World Trade Organization panel considering a US-China dispute over copyright and customs matters found China in violation of two of its responsibilities under international trade and IP rules and in partial breach of another (IPW, WTO/TRIPS, 26 January 2009). Either side could appeal.

Open Access

Interest in free access to scientific research publications is growing worldwide, commentators said.

Last August, the European Commission, which set aside over €50 billion for research between 2007 and 2013, began pilot-testing a regime to give open access to peer-reviewed scientific journal articles resulting from EU-funded research. The initiative is one of several underway in Europe that experiment with open access and new business models guaranteeing access to publicly funded research results, the Commission said.

Open access will "likely be an issue" in the US as well, said Ross. A National Institutes for Health rule effective last year mandates free access on the NIH website to copyrighted scientific journal articles 12 months after their publication if any of the research was paid for by federal grant, he said.

The only papers posted, however, are ones that have undergone a journal-sponsored peer review and are edited and ready for publication in that subscription journal, Ross said. The works then compete for free against the journals sponsoring them, he said. In response, House Judiciary Committee Chairman John Conyers (Michigan Democrat) introduced the "Fair Copyright in Research Works Act" on in February. The measure bars agencies from requiring researchers to give up their intellectual property rights in works partly, but not totally, paid for by federal grants.

The open access movement is "slowly gaining prominence" in India as university students and faculty mobilise, said Prakash.

Other Issues

Copyright reform is "a very hot issue" in Brazil, said Professor Pedro Paranagua, project lead at the Centre of Technology and Society, Fundacao Getulio Vargas School of Law, in Rio de Janeiro. Pressure from copyright owners, although not necessarily authors, is strong, he said. In addition, artists are deeply divided over Creative Commons licences, and scandals have erupted over mismanagement and unfair royalty distribution by Brazil’s collecting society ECAD, he said.

The Ministry of Culture will introduce copyright reform legislation in coming months and, in January, issued guidelines (in Portuguese) on best practices and needed changes to the Copyright Act, which Paranagua called "one of the most unbalanced in the world."

The internet is putting "real strains" on collective management of copyright royalties, Keplinger said. WIPO wants to further assess how collecting societies will fare in the digital age, he said.

Another issue on WIPO’s radar is applicable law in online cross-border copyright disputes. And on 10 March, the organisation will hold information meeting, with speakers from the developed and developing worlds, to explain the importance of IP financing, Keplinger said. In addition, the UN Commission on International Trade Law (UNCITRAL) Working Group VI, on security interests, will discuss security interests in intellectual property at its 27 April - 1 May meeting.

Dugie Standeford may be reached at info@ip-watch.ch.

This article was originally posted at http://www.ip-watch.org/weblog/2009/02/09/isp-liability-limitations-and-exceptions-top-global-copyright-issues-in-2009/

Source: BBC NEWS-

By Gary Duffy

BBC Brazil correspondent

In the early hours of the morning in the Amazonian city of Belem, Brazil a dockside warehouse is shaking to the sound of tecnobrega.

In this humid atmosphere, the beer is flowing and thousands of young people are dancing and enjoying what has become a music phenomenon among some of the poorest districts of the city.

Tecnobrega is a mix of electronic beats of music from the 1980s and catchy "brega" which essentially means cheesy or tacky sounds - a combination that is very easy to dance to.

Sometimes it is based on old songs that were hits, but up to 80% involves new compositions.

It might not appeal to everyone - but here in Belem, near the mouth of the Amazon river - the formula has proved a stunning success.

"Tecnobrega is a regional music, the music that people here in [the state of] Para most enjoy," says DJ Edilson.

"The secrets are the beats which drive people crazy."

But it is not just the music that is different. It is the way it is produced and reaches the public that makes tecnobrega stand out, some of which is not unique to Brazil. Tecnobrega Tecnobrega music is often produced in people’s homes

"What is going on is that people, sometimes in very poor areas, are appropriating electronic instruments like computers and synthesizers to create their own music," says Ronaldo Lemos, a professor at the respected Getulio Vargas Foundation.

"So this is a phenomenon that is going on not only in the tecnobrega scene but with many scenes around the world like Kuduro in Angola, Kwaito in South Africa, Bubblin’ in Suriname."

Tecnobrega also offers a different kind of business model that offers a significant challenge to the traditional music scene.

The music starts in dozens of little makeshift studios - often just a converted bedroom where, with the help of one computer and a software program, tecnobrega performers are producing the music they hope will make their names.

Gaby Amarantos is a singer who started this way and who has now boosted her profile to include appearing on national television.

"We have found a new way to work," she says. "It is a new format and a new market model because we produce the music ourselves and the cost to make one song is very cheap.

"For example, the guys who work with me charge between £30-45 to make one song."

Spreading the word

From the improvised studio, the next stop is a typical street market in Belem where among the stalls for clothes and food the street traders are hard at work selling tecnobrega CDs.

It is the street traders who have made the copies and it is they who will make the money - selling CDs at a fraction of the normal price.

"Everything depends on the CD quality," says street trader Bacurau. "If the public likes it and it is a CD with good music - everyone comes to buy."

Tecnobrega CDs Tecnobrega CDs are used to advertise rather than to make money

"What happens is that the musicians skip the intermediaries," says Ronaldo Lemos.

"So the musicians do not make money from the CDs that are sold by the street vendors, they actually make money by playing live at the so-called sound system parties - the aparelhagem parties as we tecnobrega say here in Brazil - and also by selling CDs after they play live."

"What the scene understood is that the CD is becoming more of an advertisement.

"No-one expects to make money from the CDs - they use it as a way to advertise the music and to advertise themselves as artists, and then their expectation is that they get invited to play at the sound system parties and clubs.

"The more their music gets distributed, the more they will make money in return.

"So it is actually the opposite of the traditional business model in which you want to control how many CDs you have, you want to control how many tracks have been sold."

There are said to be as many as 4,000 sound system parties per month in Belem and it is a hugely competitive market.

There is furious competition among the DJs in Belem - each one vying with the other for the best sound system and the biggest crowd.

Future of music

The sound system parties are independent companies ranging from small operations on the back of a van - to the larger well established ones with lots of equipment playing for 10-15,000 people.

The parties are a crucial part of the successful formula that makes a tecnobrega star, and there is good money to be made.

One musician may be paid 2,200 reais (£677) for a live presentation, and can perform as many as 12 times a month. Tecnobrega gig The fans of tecnobrega will drive its future The minimum wage in the area of Belem is approximately 700 reais (£215).

On top of this, the average number of CDs and DVDs sold after each presentation is 77 CDs and 53 DVDs while often the number of CDs sold after concerts at the bigger venues in the south of the country is often much smaller.

Tecnobrega is now a multi-million dollar music industry. With their music selling well in the street markets and a huge hit in the sound system parties, the artists can also go on to organise their own shows and earn their own profits.

Critics say tecnobrega encourages tolerance for piracy that costs Brazil jobs and billions of dollars in tax revenue but supporters say it offers the industry a new way forward.

"The number one lesson would be innovation - if you want to survive in the music industry right now you have to innovate," says Mr Lemos.

"Tecnobrega is a very fertile scene that is really transforming itself very quickly. From the initial tecnobrega style you now have cyber tecnobrega, you have brega melody you have electro melody.

"But it also evolves from the perspective of business models - they are all the times designing new ways of creating more revenues.

"That is a very important point the music industry has to learn because if you take a look at the last 10 years there has not been a lot of innovation going on in the music industry."

"It took like four or five years for the music business to start selling digital songs online, so it is a lot of time. The tecnobrega has been developing this business model of being 100% digital free copying, free distribution for at least six years."

Tecnobrega is an unconventional sound and an unconventional music model.

The music industry may not approve of all its methods - but it seems that in Belem the will of the consumer is a more powerful voice and that in the end may prove decisive.

A great achievement has been accomplished by the Open Business project in Brazil. The project, supported by IDRC (International Development Research Center), negotiated an important change on the part of the Brazilian Classification of Economic Activities (referred to by the acronym CNAE in Brazil). This major change will make it easier the formalization of the Brazilian so-called "LAN-Houses" (that is name used in Brazil to define "Local Area Network-Houses", i.e., micro and small business providing internet access to the public in exchange for a small fee).

What is CNAE and why is the change important?

CNAE is the national classification of economic activities. Based on the CNAE definitions, State and City governments determine the tax levies and the rules applicable to each economic activity. The CNAE is defined by the National Commission of Classification (referred to by the acronym CONCLA).

The Open Business Team project has been discussing since the last year with several governmental branches the need creating an adequate classification for the LAN-Houses. Without a special classification, many LAN-houses were being classified under the category of "gambling, betting or entertainment". Under that category, the LAN-houses had to face very strict regulations. For instance, they were subject to strict laws that imposing a minimum distance between the LAN-houses and educational institutions (such as being prevented from being locating close to schools), having to prohibit entrance by children and teenagers, and very strict and burdensome tax regulations. In practice, because of this inadequacy, the absolute majority of LAN-houses were operating without any license whatsoever, or under other licenses which had nothing to do with their current business (such as "snack places" or even "beauty parlors").

With this major change, all the LAN-Houses in Brazil can now be registered Internet services providers, open to the public. The best thing is that electronic games continue to be permitted at the LAN-houses, provided that they are not the "predominant" activity.

Mario Brandão, president of ABCID - the biggest organization that represents the LAN-Houses in Brazil and an important group that also supports the change – said: "the decision alters in a significant way how the category is treated by the government and by law". Ronaldo Lemos, one of the coordinators of the Open Business project said: "This is an important recognition on the part of the government of the role played by the LAN-houses in bridging the digital divide in the country, from the bottom-up". From now on, it will be much easier for the LAN-Houses to obtain all the necessary permits, reducing "informality", with great benefits for society as a whole.

The Importance of the LAN-Houses: bridging the digital divide

The LAN-Houses play an important role in bridging the digital divide in Brazil. The last research released by the Brazilian Steering Committee, a governmental branch, indicates that LAN-houses currently provide internet access to more than 45% of the Brazilians connected to the internet., becoming the local most used by Brazilians to connect to the web (see chart below). The majority of the LAN-houses are located in poor areas (such as rural areas, favelas etc.), which otherwise would not be able to have access to the internet at all.

There are currently more than 90,000 LAN-houses in Brazil (as opposed to 2,200 movie theaters, and 2,000 bookstores). Accordingly, the Open Business project understands LAN-Houses can be extremely important not only to provide access to the internet in places where the income rate is low and the access would not happen, but also as a place with a huge potential to disseminate citizenship, public interest activities, and also to help other business to become "formal" in Brazil.

About

CTS and the Open Business Project

The Open Business Project is conducted by the Center for Technology & Society (CTS) at the Fundação Getulio Vargas Law School in Rio de Janeiro. CTS is the only institution in Brazil specifically aimed at dealing with the interplay of law, technology and society. The CTS is engaged in several research and education projects, always under an interdisciplinary approach. Its collaborators include anthropologists, computer scientists, economists, and media executives.

Among its projects, the CTS is responsible for launching and managing the Creative Commons project in Brazil (www.creativecommons.org). CTS is also a consultant to several branches of the Brazilian government (the Brazilian Internet Steering Committee, the National Institute of Technology, the Ministry of Education and others). CTS is also engaged with the Ministry of Culture in developing projects to promote access to knowledge and for bringing cultural production to the more impoverished areas of Brazil, with the help of technology.

Also, the CTS coordinates several courses at the Fundação Getulio Vargas law school, such as the intellectual property course, both at graduation and post graduation levels.

www.direitorio.fgv.br/cts

IDRC

The International Development Research Centre (IDRC) is a Crown corporation created by the Parliament of Canada in 1970 to help developing countries use science and technology to find practical, long-term solutions to the social, economic, and environmental problems they face. Our support is directed toward creating a local research community whose work will build healthier, more equitable, and more prosperous societies.

www.idrc.org/index_en.html

Source: SciDevNet-

Patents on scientific knowledge may not be as useful — or valuable — as many claim them to be.

The speed of the global economic collapse is provoking a widespread — many would say belated — realisation that many of the beliefs underlying economic expansion over the past 20 years need close questioning, particularly those involving the relationship between the state and the market.

But so far the need to reassess the value of protecting intellectual property, and in particular, the claim that scientific and technological patents are essential for economic growth, has drawn little attention.

Few would deny that technological innovation needs some form of patent protection to prosper. Without protection, no-one is likely to invest in developing innovations, since as soon as products were made public, others could immediately copy them at zero cost.

But just as the economic crisis can be ascribed to governments following bankers and speculators’ decisions too closely, so there is a parallel danger in trusting strong science patents to promote social development.

Right to profits?

Take, for example, the aura that surrounds the 1980s US Bayh–Dole Act, which gave US universities, for the first time, ownership of patents arising from government-funded research.

There is a widely-held belief this helped the US economy’s explosive growth in the following two decades, making many universities — and the scientists who work for them — rich in the process. Those with interests in the commercial, rather than the social value of science, actively promote this view.

This conviction, for example, has led South Africa to introduce similar legislation. And it has recently taken hold in India, where the government, urged on by its pharmaceutical and biotechnology industries (and supported by the US Chamber of Commerce), is proposing tightened patent legislation based explicitly on the Bayh–Dole approach, namely making it easier for publicly-funded research to be ’owned’ by private entities.

Yet there is very little empirical evidence to show that the Bayh–Dole Act has had the claimed effect in the United States, let alone that it is appropriate for developing countries (see ’Indian patent bill: Let’s not be too hasty’). Critics point out for example, that only about five per cent of US universities’ income comes from licensing inventions.

Counter collaboration

Conversely, there is widespread anecdotal evidence that the act created a mind-set among many researchers that their knowledge represents a potential goldmine not to be shared with potential competitors (i.e. those working in other universities) — at least until it has been protected by a patent application.

Similarly the act has led to a flood of ’upstream’ patents on basic scientific knowledge, leading to what some commentators describe as a virtually impenetrable ’patent thicket’ blocking small-scale inventors from marketing their products. For example, restrictive software patents limit further development and commercialisation in the field of information technology.

As a group of academics recently stated, the present impetus for similar legislation in developing countries "is fueled by overstated and misleading claims about the economic impact of the Act in the US, which may lead developing countries to expect far more than they are likely to receive" (see ’Is Bayh–Dole good for developing countries? Lessons from the US experience’).

We have been here before. The dotcom boom in information technology companies at the end of the 1990s was accompanied by a similarly meteoric rise in the value of small biotechnology companies, as venture capitalists hunted around for other technology-related investment opportunities. In many cases, the companies’ sole asset was the promise of a patent on some critical gene sequence data.

When the dotcom bubble burst, the value of the biotech companies also collapsed, leaving many investors nursing heavy losses. Their mistake was not so much the decision to invest in biotech stocks, as an inflated belief in the value of science-based patents.

Radical innovation

There are alternatives available to developing country governments. For example, they can focus patent legislation on genuine technological inventions, while leaving publicly-funded research openly accessible, and rewarding researchers who come up with socially-valuable inventions through other mechanisms, such as prizes.

More radically, governments could promote ’open innovation’, where a wide range of individuals are encouraged to work towards technological breakthroughs. This approach has already been suggested in India, for example, to design new tuberculosis treatments.

Now is the time for radical thinking. We need new types of innovation strategy to meet future economic and social challenges, and also to avoid repeating the mistakes of the recent past.

Protecting intellectual property will legitimately remain part of such new strategies. But science can only effectively contribute to these if it remains as open as possible. Duplicating the Bayh–Dole approach, and building expectations only of science’s commercial value, is not the way to go.

David Dickson Director, SciDev.Net

Source: SciDevNet-

To prevent foreign companies from patenting indigenous medicine, the Indian government has made 200,000 traditional medicines "public property" — available for anyone to use but no one to sell as a brand.

Indian authorities have become concerned about the growing practice of foreign companies patenting medicinal plants and other components of traditional medicine systems. Five thousand patents for traditional medicines have been issued in global trademark offices, 2,000 of which belong to the Indian ayurveda, unani and siddha systems of medicine.

The 200,000 medicines are listed in the Traditional Knowledge Digital Library, which took 200 researchers eight years to compile by translating ancient Indian texts. The European Patent Office will now use the database to check that patent applications from companies are valid.

India has long faced attempts to patent its traditional remedies. It spent US$5 million fighting patents taken out on the spice turmeric and the Indian tree neem — a battle that took ten years.

Link to full article in The Guardian-

Dear Sound Copyright petitioner,

Amid intense lobbying in the European Parliament next Monday’s vote on the proposal to extend the term of copyright has been struck off in a shock move. Following a meeting of the presidents of the political groups in the European Parliament on Tuesday, and with controversy and a lack of consensus surrounding the proposal, MEPs have delayed voting till the end of April - just before this summer’s European elections. A trialogue discussion between the European Commission, Council and Parliament, set for the end of March, will now attempt to broker a deal to see if the directive will be allowed to pass.

MEPs are waking up to the reality that the proposal to extend copyright term doesn’t do what it says. It’s a terrible and unworkable instrument that will do nothing but bring copyright into disrepute in the eyes of consumers. If you’re concerned about the need for a fair and balanced copyright framework you must contact your MEPs now (1). Make your voice heard!

In other news this week Professor Martin Kretschmer, Director of the Centre for Intellectual Property Policy & Management Bournmemouth, and Horace Trubridge, Assistant General Secretary of the British Musicians’ Union, have been debating the copyright term extension proposal (2). Additionally copyright creators in the Association for Fair Audiovisual Copyright in Europe have launched a petition against the proposal (3).

But right now the most important thing is to contact your MEPs (4) and tell them why copyright term extension is a bad idea (5)! Use our web banners (6) and spread the word.

Yours, the Sound Copyright Team

(1) http://www.europarl.europa.eu/members/public.do?language=en-

(2) http://blogs.telegraph.co.uk/shane_richmond/blog/2009/03/16/ copyright_extension_debate_we_must_not_inhibit_digital_creators-

(3) http://aface.eu/-

(4) http://www.europarl.europa.eu/members/public.do?language=en-

(5) http://www.youtube.com/watch?v=kijON_XODUk-

(6) http://www.soundcopyright.eu/badges-

===

The Sound Copyright privacy policy is linked from

http://www.soundcopyright.eu/about-

Today began the third session of the Committee on Development and Intellectual Property (CDIP) of the UN’s World Intellectual Property Organization (WIPO).

The meeting is taking place from 27 April to 1 May 2009.

For real time updates on the discussions, access the Twitter @pedroparanagua, both in English and Portuguese.

Please find bellow the statement delivered yesterday from the floor at the 18th session of the Standing Committee on Copyrights and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO), the UN agency specialised in intellectual property.

Statement by the Centre for Technology and Society at Fundação Getulio Vargas (FGV) School of Law in Rio de Janeiro – Standing Committee on Copyright and Related Rights (SCCR), WIPO

Geneva, 25-29 May 2009

Dear Mister Chairman,

Congratulations on your re-election.

I speak on behalf of the Centre for Technology and Society (CTS) at Fundação Getulio Vargas (FGV), School of Law in Rio de Janeiro, Brazil, considered by the US magazine Foreign Policy as a top-5 "policymaker think-tank" worldwide.

The current SCCR meeting is supposed to address some highly important issues connected to the public interest. The first one relates to the proposal of a treaty that would fulfill the legal and moral obligations to guarantee equal access to knowledge to the blind, visually impaired and other print disabled persons.

We strongly support the proposal officially tabled by Brazil, Ecuador and Paraguay (SCCR/18/5) with a focus on implementing mandatory minimum standards (SCCR/16/2) on broad exceptions and limitations for copyrighted materials in order to strike a balance between the incentive for creation and protection of works, at one side, and broad access to knowledge, at the other. We fully support all countries, developing and developed, that understand that implementing a flexible umbrella instrument with the objective of promoting broader access to knowledge to all through exceptions and limitations is the right way forward.

As our studies, research and experience demonstrate, several developing and least developed countries lack the expertise and needed knowledge for implementation, or are under strong pressure by industry lobbying not to implement meaningful exceptions and limitations provisions into their national legislations.

Therefore, and taking into consideration the adoption of the WIPO Development Agenda, the time is now urgent for Member States to achieve a moral and legal binding agreement for providing a balanced approach for all.

FGV understands that a framework instrument may be the best option at this moment. General declarations on exceptions and limitations may be adopted by the Member States in this body in order to draw a starting point to the issue. Once this framework is agreed upon and adopted, further discussions should follow to adopt annexes on various topics, such as (i) exceptions and limitations for blind, visually impaired and print disabled persons, (ii) exceptions and limitations for educational purposes, including distance learning, (iii) exceptions and limitations for libraries and archives, (iv) exceptions and limitations for private non-commercial use, and so on.

This is not just a legal issue, it is a social and moral concern for all persons and countries.

Thank you Mister Chairman and Member States.

Right now, in Geneva, at the UN’s World Intellectual Property Organization, history is being made. For the first time in WIPO history, the body that creates the world’s copyright treaties is attempting to write a copyright treaty dedicated to protecting the interests of copyright users, not just copyright owners.

At issue is a treaty to protect the rights of blind people and people with other disabilities that affect reading (people with dyslexia, people who are paralyzed or lack arms or hands for turning pages). This should be a slam dunk: who wouldn’t want a harmonized system of copyright exceptions that ensure that it’s possible for disabled people to get access to the written word?

The USA, that’s who. The Obama administration’s negotiators have joined with a rogue’s gallery of rich country trade representatives to oppose protection for blind people. Other nations and regions opposing the rights of blind people include Canada and the EU.

Update: Also opposing rights for disabled people: Australia, New Zealand, the Vatican and Norway.

Activists at WIPO are desperate to get the word out. They’re tweeting madly from the negotiation (technically called the 18th session of the Standing Committee on Copyright and Related Rights) publishing editorials on the Huffington Post, etc.

Here’s where you come in: this has to get wide exposure, to get cast as broadly as possible, so that it will find its way into the ears of the obscure power-brokers who control national trade-negotiators.

I don’t often ask readers to do things like this, but please, forward this post to people you know in the US, Canada and the EU, and ask them to reblog, tweet, and spread the word, especially to government officials and activists who work on disabled rights. We know that WIPO negotiations can be overwhelmed by citizen activists — that’s how we killed the Broadcast Treaty negotiation a few years back — and with your help, we can make history, and create a world where copyright law protects the public interest.

I am attending a meeting in Geneva of the World Intellectual Property Organization (WIPO). This evening the United States government, in combination with other high income countries in "Group B" is seeking to block an agreement to discuss a treaty for persons who are blind or have other reading disabilities.

The proposal for a treaty is supported by a large number of civil society NGOs, the World Blind Union, the National Federation of the Blind in the US, the International DAISY Consortium, Recording for the Blind & Dyslexic (RFB&D), Bookshare.Org, and groups representing persons with reading disabilities all around the world.

The main aim of the treaty is to allow the cross-border import and export of digital copies of books and other copyrighted works in formats that are accessible to persons who are blind, visually impaired, dyslexic or have other reading disabilities, using special devices that present text as refreshable braille, computer generated text to speech, or large type. These works, which are expensive to make, are typically created under national exceptions to copyright law that are specifically written to benefit persons with disabilities...

The opposition from the United States and other high income countries is due to intense lobbying from a large group of publishers that oppose a "paradigm shift," where treaties would protect consumer interests, rather than expand rights for copyright owners.

The Obama Administration was lobbied heavily on this issue, including meetings with high level White House officials. Assurances coming into the negotiations this week that things were going in the right direction have turned out to be false, as the United States delegation has basically read from a script written by lobbyists for publishers, extolling the virtues of market based solutions, ignoring mountains of evidence of a "book famine" and the insane legal barriers to share works.

Originally posted by Cory Doctorow at BoingBoing.

The National Institute on Industrial Property (INPI, acronym in Portuguese) published on June 30th the patent rejection for Tenofovir (Viread), produced by Gilead, which is used for HIV/AIDS treatment. According to data from the Ministry of Health’s STD and AIDS Department, Tenofovir accounts for 14,94% of the budget for the purchase of antiretrovirals (ARVs), being one of the most expensive medicines for treatment. The Brazilian government had already declared its public interest in Tenofovir in April 2008, considering it to be an essential drug.

Not only have Tenofovir’s active pharmaceutical ingredient and its antiretroviral activity been known since 1985, but also the additional patent applications filed by Gilead do not fulfill the requirements of inventiveness and novelty – basic requirements for the grant of a patent in Brazil. The application for Tenofovir’s patent in Brazil has been contested by several civil society organizations, members of the Working Group on Intellectual Property (GTPI) of REBRIP and also by Farmanguinhos (Technological Institute in Medicines) of the Oswaldo Cruz Foundation since 2006. The laboratory as well as civil society organizations presented arguments to support INPI’s examination, pointing out the problems in the patent application and the grant’s potential impact on the sustainability of the universal access to ARVs policy.

The rejection of a patent that does not fulfill the legal requirements is an important achievement for society as a whole because it prevents a single company from having exclusive rights for 20 years. With the decision adopted by INPI, the country gains the option to buy affordable generic versions through importation or through local production.

In India, the Tenofovir patent is also being contested by civil society organizations. In 2008, The Indian NGO Sahara Centre for Residential Care & Rehabilitation (SAHARA) and the Brazilian Interdisciplinary Association for AIDS (ABIA) submitted a pre-granted opposition in India against the grant of two other patent applications for Tenofovir, based on the arguments that this medicine is a known compound and should not be considered an invention according to the Indian Patent Law. These patents, contested in India and Brazil, have also been contested in the USA and the USPTO have also published decisions against its granting.

Tenofovir’s case is a clear example of how the patent system is being used by companies to obtain unjustified monopolies of essential products. Even if these products do not fulfill the minimum requirements for a patent grant, the mere expectation of a grant denotes a monopoly and has made the purchase of affordable versions through the public health system unviable. Utilizing this strategy, the pharmaceutical company Gilead, on July 10th, 2008, filed a divison patent application for Tenofovir, which had been previously deferred (PI9816239-0). The application not yet been analyzed by the INPI. It is expected that this application will not be granted , reinforcing the sustainability of the national policy on universal access to ARVs.

For more information: + 55 21 22231040 (Renata Reis). E-mail: abia at abiaids.org.br .

PROVIDENCE, R.I. [Brown University] — Brazil’s nearly two-decade effort to treat people living with HIV and AIDS shows that developing countries can successfully combat the epidemic. Inexpensive generic medicines are a large part of the solution, say researchers from Brown University and the Harvard School of Public Health.

Brazil did this, researchers said, largely by pursuing controversial policies that prompted pharmaceutical companies with exclusive drugs to lower their prices dramatically and generic companies to develop lower-cost alternatives for use in emerging markets.

“Brazil has proved it is possible to treat people with AIDS in developing countries,” said lead author Amy Nunn, assistant professor of medicine (research) at The Warren Alpert Medical School of Brown University. She added that the country saved more than $1 billion as a result of bargaining with multinational pharmaceutical companies, resulting in significant changes in global AIDS policy.

That effort, Nunn said, has had a wide impact.

“Before Brazil’s efforts, as recently as the year 2000,” she said, “most people living with HIV/AIDS in developing countries died without receiving treatment.” AIDS treatment in developing countries: Brazil pressed pharmaceutical companies to lower their prices and began producing AIDS medicines in public factories, as in this production line at Farmanguinhos. AIDS treatment in developing countries Brazil pressed pharmaceutical companies to lower their prices and began producing AIDS medicines in public factories, as in this production line at Farmanguinhos.

Details of their findings will be published in the July/August issue of Health Affairs. Francisco Bastos, a well-known AIDS epidemiologist at the Oswaldo Cruz Foundation in Rio de Janiero, and Elize da Fonseca at the University of Edinburgh in Scotland also participated in the research. Senior author Sofia Gruskin is an associate professor of health and human rights at the Harvard School of Public Health in Boston, where the initial research began.

One of the biggest advances in Brazil’s push to address the advance of HIV and AIDS came in the 1990s, when the country passed a law guaranteeing free, universal access to drugs for AIDS treatment. The country also began producing generic AIDS medicines in public factories. Brazilian authorities also pressured drug companies to reduce their prices drastically for patented medicines by threatening to produce generic versions of those drugs.

Brazil was working to contain the virus years before taking that step. Researchers noted that Brazil began its HIV education and prevention campaigns early in the 1980s, focusing on condom distribution and HIV testing. Health officials also targeted prevention campaigns to those vulnerable to contracting HIV, including sex workers, injecting drug users and men who have sex with men.

The results were enormously beneficial. Researchers said the country’s treatment initiatives also helped minimize the spread of the virus in Brazil. In doing so, health officials proved AIDS treatment was possible in a developing country. The example helped prompt sweeping changes in global public health policy and foreign aid relating to global health, with Brazil’s actions as an example of how to make HIV/AIDS policies more effective.

Gruskin said that Brazil also spearheaded important changes in global health, trade policies, and international human rights protections related to medicines, and the country forced greater transparency about global drug prices.

An example of the change: Since 2003, the United States and other developed countries once opposed to Brazil’s policies have invested billions of dollars annually to provide generic AIDS medicines to people in developing countries.

At home, Brazil kept its HIV/AIDS epidemic confined to .5 percent of the population. Today, about 660,000 Brazilians live with the disease.

Nunn said the study’s findings show that developing countries around the world can dramatically reduce AIDS-related deaths by treating patients. She added that the research highlights the value of strategic global political engagement by developing countries.

Still, there are challenges ahead. The study shows that the cost of treating HIV/AIDS patients in Brazil has risen in recent years. The long-term costs of treating people living with HIV/AIDS will continue to rise in other countries as more people receive treatment, life expectancy is extended, and patients require more costly and often patented medicines.

A number of organizations funded the research: The U.S. Departments of State and Education, the National Institute on Drug Abuse and the National Institute of Allergy and infectious Diseases.

Source: Brown University News-

In the edition of August 12, 2009 the widely known and distributed Brazilian magazine Veja published a cover story titled "The Big Bang of the Internet."

Among the articles that would be published according to the magazine’s editor, one would be focused specifically on copyright and on the current discussions surrounding the copyright issue in Brazil and in the world.

Several experts around the world were interviewed, among them: Prof. Peter Drahos , a famous critic of the intellectual property system; Sisule Musungu, a reference in international intellectual property politics; Richard Stallman, a former MIT researcher and renowned creator of the operating system GNU/Linux - along with Linus Torvalds; Prof. Pedro Paranaguá , from Fundacao Getulio Vargas (FGV) School of Law in Rio de Janeiro, among others.

None of their answers nor comments were mentioned in the news article.

In order to promote access to information and enrich the debate, we thought it would be good to disclose the following answers given by Prof.. Pedro Paranaguá, from FGV School of Law - Rio, to the questions made by Veja magazine:

VEJA - The Internet has revolutionized the way people relate with each other and is imposing a new form of business to the entertainment industry. Despite the fact that the international conventions show the path for repression, the social practice goes to a different direction. How to solve this conflict?

PARANAGUÁ: Perhaps the problem lies precisely here: to find that there is conflict. The Internet has democratized access to information and entertainment. It eliminates intermediaries and lowers the chain of culture production. It makes consumers closer to authors and to the entertainment industry. It enables the industry to know what are the cultural preferences of its consumers. This creates an ocean of opportunity for all parties involved: industry, authors and consumers. Not to mention the possibility of a much higher financial gain than from the times of analog technology or even digital CDs and DVDs. Nowadays one only needs a HD or flash / pen drive (very cheap), a digital music player, a cellphone, etc. to have digital entertainment. It is useless to have rules or laws to prevent something that is widespread and socially accepted. If passed, these norms would not be legitimate, would not be accepted by the vast majority of society; they would not have social effectiveness, as the Italian jurist Norberto Bobbio would say. Legitimate is to do something that is accepted, that is welcome, and that will benefit the majority. The Internet should not be limited or filtered, but rather it should serve as a path to social, cultural and economic progress.

VEJA: Copyright laws were a victory for authors and for almost three centuries addressed the economic problems of the authors at the same time it increased the number of consumer enthusiasts. However, the Internet has questioned this model. This model is no longer viable?

PARANAGUÁ: I have my concerns if copyright laws were a victory of authors. I think it was more a victory of the publishing industry in England 299 years ago. Later, with the ideals of the French Revolution, the authors, flesh and blood - and not the industry - had their rights protected. It was a protection for the personality of authors, against the supremacy of monarchies. I also have my doubts if copyright laws solved the economic problems of the authors and if they have been responsible for increasing the number of consumer supporters. Even today we see the majority of authors receiving very little for their copyrights or even not getting a penny. The collection of copyrights is efficient, but its distribution is flawed. And in several cases the author does not receive a penny. There are cases, for instance, in which authors pay to publish books of his own - including Law Judges in Brazil. Not to mention the famous "jaba" - payment made by the author to have her/his song played on the radio. In short, within the artistic universe there are very few authors who really are compensated for their copyright. The poor distribution and low payment established by the copyright holders are largely responsible for this. The traditional model is in fact old fashioned. The Internet can — and should — be used to maximize access to knowledge and to increase the remuneration of everyone involved.

VEJA:There are other examples in history that the legislation did not follow the social behavior? What happened then? What was the solution to the problem?

PARANAGUÁ: Every change implies, in a greater or lesser degree, some resistance. We have current examples: in Iran, in theory a Republic, people are being deprived of their liberties. People are monitored, have their Internet connection cut; have websites filtered and/or blocked; they have their cell phone text messages blocked; have their satellite TV antennas, camcorders and cameras confiscated. Women are forbidden to leave home without having their head covered by a scarf. Hetero couples are barred from holding hands in the streets. These are clear and current forms of laws and acts that do not follow social behavior. I was in Iran last June and I personally know many Iranian men and women who would love to leave his/her own country because of not agreeing with the rules laid there, even though it is theoretically a democratic government. The result? Bloody demonstrations in the 21st Century. Rules or laws that are not legitimate never had been nor ever will be respected by society, unless there is employment of brute force, as that is unfortunately occurring in Iran.

VEJA: The industry argues that without copyright, innovation and intellectual property are at serious risk of having a significant reduction. Do you believe that intellectual property protection may undermine innovation? Are there studies and/or data that demonstrate your opinion?

PARANAGUÁ: This is rhetoric; marketing of fear. It has never been economically proven that if there were no copyright or patent system it would decrease creativity or innovation. There are for decades, on the contrary, several concerns about the efficiency of such systems. In the nineteenth century until today the renowned magazine The Economist has wondered about the efficiency of patents, and they even suggested that patent laws were abolished in England, which in fact was done in the Netherlands for over 40 years. Economists such as Frederick Mashlup and Edith Penrose came to similar conclusions 60 years ago. Today we have Paul David, of Oxford; Keith Maskus (University of Colorado), Nobel laureate Joseph Stiglitz, all of them, just to name a few, questioning impartially and with economic basis the efficiency of the patent and copyright systems. I do not understand that intellectual property is completely dispensable. However, one has to bring a greater balance to the current scenario. One should not only protect, but also promote access to knowledge, education and health. The lack of balance is clear, specially in a country like Brazil, where family income is extremely low. So the question is not only legal, but much more economical and social. If the economic model applied by intellectual property owners is not improved, then the industry will continue to complain and it will self-suffocate. The prices as well as the business model must take into account the local society. There are several alternative models that are running in parallel, as the free and open source software licenses, the Creative Commons copyright licenses, among many others. Not to mention the boost of sales of CDs put entirely for free on the Internet, or the increase of sales of hard copies of books that were previously digitalized without the authorization of the copyright owners. In the end, what at first glance may seem a bad business, in practice it has proved to be very lucrative and consumer-friendly.

VEJA: Are there data and/or estimates of how many people are downloading music, films and books over the internet in the world?

PARANAGUÁ: There is plenty of data: both from the music industry (International Federation for the Phonographic Industry - IFPI), as well as from private consultancy firms or academics. The reality is that people like to share content, whether or not protected by copyright. People like to share. People often don’t even listen to the music or read the books that they downloaded from the Internet, as shown by a research made by Professor William Fisher of Harvard. In the same direction are the understandings of the worldwide known Brazilian science fiction novelist Paulo Coelho. Preventing people to download and to share content goes against a socially accepted practice, and does not make sense in the virtual world. The best way forward is to encourage the sharing and download of files, and to find a fair economic model, such as the charging of a fixed amount of money for unlimited downloads of any digital copyrighted content (books, movies, music etc.), should the broadband user clearly state that she/he wants to download copyrighted content.

More appeals pending, domestic manufacturing some way off.

In a victory for Indian drug companies, patent protection has been refused to Tenofovir, an anti-AIDS medicine of the US-based Gilead Sciences. The decision was taken by the patent office here.

Domestic drug companies are now a step closer to manufacture the medicine for sale in India, as well as to export it to least developed countries.

Since Gilead had made several patent applications on the same medicine (for different claims), the companies will have to wait for the patent office’s decisions on other pleas before they can launch the product.

Currently, the medicine is marketed by most Indian companies through a voluntary licence scheme negotiated with Gilead Sciences some years earlier. Cipla, which had challenged Gilead’s patent claim, is the only firm that has launched the product at ‘risk’. The patent office decision will see the medicine being freed of negotiated terms and conditions.

Tenofovir is an important anti-AIDS drug and has been recommended by World Health Organisation as the primary medicine for AIDS treatment.

The patent office decision was based on the pre-grant opposition filed against Gilead’s application by civil society groups within the country and outside. The groups argued that the patent application lacked inventive steps and failed to satisfy the patentability criteria under Indian rules.

According to industry sources, Gilead is likely to appeal against the patent office decision. “Our stand has been vindicated, though the battle is far from over”, domestic industry representatives said.

This is the first instance where a foreign advocacy group was seen joining hands with Indian NGOs to oppose a medicine patent application in the country. Brazilian AIDS advocacy group Brazilian Interdisciplinary AIDS Association (ABIA) and a local NGO, Centre for Residential Care and Rehabilitation (SAHARA), while filing pre-grant oppositions, had said that a patent in India would have a direct impact on the ability of Brazil to produce and access affordable generic versions of the drug.

Last year, the Brazilian government had declared Tenofovir to be of ‘public interest’ in treating people living with HIV.

Brazil will not be able to procure generic versions from India if Tenofovir gets a patent in India. On the other hand, if the patent is rejected, Indian generic companies would be able to supply Tenofovir to Brazil and other middle-income countries. This would also mean Brazil could purchase affordable generic versions of Tenofovir from multiple producers competing against each other.

Source: Business Standard-

Unitaid welcomes GlaxoSmithKline’s renewed interest in the Unitaid patent pool initiative for HIV/Aids medicines and its openness to taking a flexible approach to managing intellectual property (Letters, 10 September); and GlaxoSmithKline urged to pool its patents on HIV drugs, 7 September). Wherever multiple patents owned by different companies are required to make a product, patent pools may offer a useful solution. Pills that combine three medicines into one tablet to treat HIV/Aids are a good example of such products.

The World Health Organisation recommends the use of such pills because they make it easier for patients to take their treatment and reduces the risk that viral resistance will render the drugs useless. However, patents from two to three different companies are usually required, meaning that single-company initiatives will not do the trick. The Unitaid pool will facilitate the development of combination pills and children’s formulations of HIV/Aids medicines for use in developing countries, based on voluntary patent contributions from pharmaceutical companies. Those companies will receive royalty payments for doing so. The pool will also enable robust competition among drug producers to ensure that international resources to fight Aids, currently under severe strain, are spent as efficiently as possible.

The situation is urgent. An estimated 6 million people needing access to Aids treatment, including hundreds of thousands of children, still do not receive it. This number will only grow in the years to come. We ask GSK and other Aids drug patent-owners to work with us to make this initiative a success.

Ellen ’t Hoen

Source: The Guardian-

By Priya Shetty

When GlaxoSmithKline set up a patent pool earlier this year to stimulate research into neglected diseases, it was little surprise that they excluded patents for their extremely lucrative HIV drugs.

But there is a strong humanitarian case — now promoted by the health organisation UNITAID — for pooling HIV drug patents. A UK parliamentary group on AIDS estimatesthat by 2030, 50 million people will need HIV drugs. Already, over six million people with HIV/AIDS are dying because they have no access to lifesaving medicine.

UNITAID’s proposed patent pool could change all that. It would work by collecting patents held by companies, universities or research institutes and making them available to the developing world for drug production or research at the cost of an affordable licence fee or royalty.

This differs from the way drug patents usually work. When a company creates a new drug, the patent protection lasts about 20 years. It prohibits other companies from producing and selling the drug or using it for research. Occasionally, the patent-holder may give other organisations access to its protected knowledge, but usually only in an extremely restricted capacity and at high cost — which puts low and middle income countries out of the running.

Patents ensure maximum profits and allow companies to recoup the millions of dollars they spend getting a drug to market. But they also mean that people who can only afford cheap ’generic’ copies of drugs must wait decades. And researchers cannot develop new combination treatments — recommended by the WHO as the best way to reduce the risk of drug resistance — if one of the drugs is under patent.

The UNITAID HIV patent pool would mean generics could be made immediately, and research could begin into new drug combinations and child-friendly formulations.

Right idea, right time?

Patent pools aren’t the only way of ensuring the developing world has access to drugs. Some countries, like Brazil, India and Thailand, have issued compulsory licences to allow manufacturers to produce generic versions of patented drugs. These nations are as aggressive in protecting their right to make cheap life-saving medicines as pharmaceutical companies are in protecting their share prices.

But compulsory licensing is a difficult path, fraught with complications including legal actions from pharmaceutical companies. And while it makes existing drugs affordable, it doesn’t stimulate research. UNITAID’s patent pool could revitalise innovation, saving lives in the developing world.

And there’s good reason to believe that the organisation can make a pool work. UNITAID has a track record in lowering the cost of HIV/AIDS drugs through bulk purchase agreements. It also has the expertise of Ellen t’Hoen, a key ex-member of the Access to Medicines campaign Médecins Sans Frontières uses to improve poor people’s access to antiretrovirals.

Some pharmaceutical companies are also, at least in principle, coming round to the idea. Johnson and Johnson, Gilead, and Indian generics-maker Cipla have been openly supportive, and Novartis and Merck are reportedly in talks with UNITAID. Even GlaxoSmithKline, in a recent letter to the UK’s Guardian newspaper, say they haven’t ruled out joining the patent pool.

Payments and prizes

But UNITAID still needs to come up with an incentive for the companies to join — they are unlikely to do so from corporate goodwill alone.

Current proposals focus on royalty payments for voluntary patent contributions.These royalties would "not be insignificant", t’Hoen told SciDev.Net. But given the enormous profits that HIV drugs can bring — Tenofovir costs £3,500 (US$5,500) in developed countries per patient every year — companies are unlikely to settle for royalties alone.

An alternative, proposed by the advocacy group Knowledge Ecology International, among others, is to create a multi-million dollar prize fund to tempt companies into joining the pool. Those who join the pool become eligible for prizes, which could, for instance, be allocated to companies that have the biggest effect on public health.

The idea is gathering support from some academics, as well as donors such as the Clinton HIV/AIDS initiative.

Some developing countries also support the idea. Bangladesh, Barbados, Bolivia, and Suriname have written to the WHO (who host and administer UNITAID) asking it to consider the prize fund/patent pool model. They suggest that ten per cent of donor drug purchase budgets go towards this fund, which could run to millions. No doubt, donors and nongovernmental organisations will dispute the exact percentage, or even the mechanism for financing the fund, but they and governments need come up with a workable plan before the momentum slips away.

UNITAID’s proposal for a patent pool comes as the World Intellectual Property Organization (WIPO) is revitalised under new leadership. The new head, Francis Gurry, is trying to revive the organisation’s development agenda, and t’Hoen said WIPO has offered UNITAID technical support.

UNITAID now need to make sure they successfully broker what could be a hugely important deal for the developing world.

Source: SciDevNet-

The heavy punishment of illegal file sharers on the web will be counter-productive in the global fight against Internet piracy and copyright infringement, the director-general of a United Nations agency said on Thursday.

Francis Gurry of the World Intellectual Property Organisation (WIPO) said music copyright protection was "under the most severe stress" and the problem will likely spread to films as web connections speed up.

The music industry has been hit by rampant Internet piracy and has so far struggled to persuade consumers to pay for downloaded music.

Some 40 billion music files were illegally shared on the web in 2008, a piracy rate of 95%, WIPO cites industry estimates as showing.

"I don’t believe we are going to win this, (to) find the solution by putting teenagers in jail," Gurry said in an interview on a visit to India. "I think that is not going to win public sympathy."

"Part of the battle here is to sensitise the public to the fact that there is a real issue involved. It is not simply a victimless crime," he added.

The rise in prosecutions of file sharers has seen some high profile cases carrying hefty fines.

Gurry cited the case of a student in the United States ordered to pay USD 675,000 for sharing 30 songs this year.

In another suit in April, four men behind The Pirate Bay, one of the world’s biggest free file-sharing websites, were sentenced to a year in jail and ordered to pay USD 3.6 million in compensation.

Gurry said there has been no clear answer to copyright protection though several schemes, such as a flat rate access charge to a large music database, have been put forward.

Governments such as Britain and France are pushing measures to clamp down on illegal file sharing to help the European recorded-music market, now worth about 7 billion euros (USD10 billion) a year, compared with almost 12 billion euros in 2001.

On the heels of a French move, Britain will push ahead with punishments that could result in repeat offenders losing their net connection.

"There are a lot of signs that the copyright system is under the most severe stress in making the transition from the physical world to the digital world," Gurry said.

"Now that the capacity, the bandwidth is improving, of course there’s going to be a similar issue for films," he added.

Source: News Center-

Several non-governmental organisations used the World Aids Day to promote the patent pool initiative underway at UNITAID that is expected by proponents to enhance access to second line HIV/AIDS drugs. Action Against AIDS, a German NGO, released thousands of balloons in capsule form over Berlin while handing over 28,000 to representatives of Abbott, Bristol-Meyer-Squibb and Gilead.

The campaign requests from the pharmaceutical companies to give up patent applications in India to make way for generic drugs for the second line treatment. Doctors without Borders (Médecins Sans Frontières) chose a more conciliatory standpoint, throwing an oversized pill into an allegorical “patent pool” in Munich on the eve of the World Aids Day. Doctors without Borders support the quick start of the UNITAID patent pool to allow for cheaper second line antiretroviral drugs and also combinations of substances of several companies.

Commenting on the NGO actions and the patent pool idea, a spokesperson from Abbott said that the company thinks the patent pool would not provide better access to its substances Ritonavir and Lopinavir in Africa as the company does not have patents on these in Africa (only in South Africa), allowing for the distribution of generic drugs there.

Source: IP Watch-

On 1 December, World AIDS Day, the Brazilian Working Group on Intellectual Property (GTPI/ Rebrip) published a list with the greatest initiatives for increasing access to antiretroviral medicines in 2009. Also, the GTPI listed the major villains - that by omission or financial interests - put the commercial profit above the right to health. In the list, there are companies, Brazilian politicians, among other categories.

Check the list!-

Source: ABIA-

Brazil is going through a remarkable procedure for the establishment of a civil-rights based regulatory framework for internet. On October, 29th, the Ministry of Justice, in partnership with CTS-FGV, held an event at Fundação Getúlio Vargas to launch a public consultation in order to draft our civil regulatory framework for internet, the so called "Marco Civil". Ministry of Justice, Tarso Genro and the Executive Secretary from the Ministry of Culture, Alfredo Manevy, joined a round table to present the debate.

This public consultation is structured in two phases:

a) First phase (finnished on December, 17th): based on selected topics proposed by the Ministry of Justice, public opinion had an open space to expose their opinion on a weblog. During this period, the blog received more then 800 contributions, besides oficial contribution of important institutions on the matter.

b) Second phase (underway): considering the opinions posted at the weblog, the goal is to compose a draft bill for the civil regulatory framework to be submitted to a second round of virtual public consultation for reaching final document that should reach the Congress by March.

The topics proposed for debate at the first phase were structured in three goals: 1) adapting and consolidating individual rights for the context of electronic communication, 2) underlining a transparent civil responsibility for all the actors implicated on the virtual communication process, 3) establishing directives for public policy. The most polemic topics are: right to access, freedom of expression, privacy, non-discrimination of content and conflict resolution on the web.

At the launching occasion, representatives from CTS and the Ministry of Justice where able to explain the mechanisms for the first phase of public consultation. They could also expose ideas on balancing IP for development and education and for repelling old-fashioned views of intellectual property as key points to consider for the new legislation. All these explanation and videos from the event can be currently found at the weblog home page.

Since the launching, the weblog average daily visiting was about 1500 people, a wide range of seminars has been held throughout Brazil to debate the topics (such as the International Forum of Brazilian Digital Culture, etc), and the civil regulatory framework was been massively addressed on Twitter (#marcocivil) and some websites. This all truly represents an interactive network probably able to foster a wider debate and reach consensus towards directives for the new legislation.

Nonetheless, the use of virtual social networks to formulate a legal framework represents a major change on Brazilian political process and democracy. It is a concrete expression of policy-makers acknowledgement about the importance of using new channels for improving dialogue within society. And surely represents a practice of decentralized public coordination able to foster innovative solutions more likely to address challenges of the information society.

To keep yourself updated about this process, visit the weblog at www.culturadigital.br/marcocivil

On Monday, 18 January 2010, Brazil delivered the following statement to the 126th session of the Executive Board of the World Health Organization (WHO) under agenda item 4.3 "public health, innovation and intellectual property". In her intervention, the delegate of Brazil stressed,

"Access to medication is a critical issue. The Global Strategy refers to the Doha Declaration on TRIPS and Public Health and states the very fact that the price of medicines is one of the factors that hinder access to treatment. Medicines cannot be treated like other products. Strategies to reduce the price of drugs must be pursued, including proposals to de-link the costs of research and development from the price of drugs."

To read more, acess KEI-

The 14th Standing Committee on the Law of Patents has just made available a draft text of a Future Work Agenda for Member States’ consideration. The Brazilian proposal on exceptions and limitations to patent rights has been mentioned on the document in order to outline further actions.

According to the Brazilian delegation, the proposal: "aims at contributing to the discussion of exceptions and limitations to patent rights. . . While not purporting to cover all interfaces of the matter with development concerns, it emphasizes the importance of promoting a wide and sustained debate on the issue in the SCP".

The proposal also states that a number of recommendations of the Development Agenda addresses directly or indirectly this issue, be it in connection with norm setting, public policy, technology transfer, access to knowledge or impact studies. For instance, recommendations 17 and 22 state that WIPO should take into account, in their activities, the flexibilities in international IP agreements as well as address in its working documents for norm setting activities issues such as potential flexibilities, exceptions and limitations for Member States

This proposal seams to be taken into account once, currently, the countries are in informals considering the following text:

Agenda 8: Future Work

1. [Following a proposal by the Chair,] the Committee

(a) reaffirmed that the non-exhaustive list of issues identified at the twelfth session of the SCP held in June 2008, and updated at its 13 session, would remain open for further elaboration and discussion at its next session(1);

(b) agreed that the preliminary studies submitted at the 13th and 14th session of the SCP would remain open for further discussion and comments at the next session of the SCP;

(c) decided that the 15th session of the SCP will:

(i) consider a revised preliminary study on transfer of technology, focusing on how the patent system supports innovation and technology transfer;

(ii) discuss the study on exclusions, exceptions and limitations prepared by external experts;

(iii) revert to the proposal by the Delegation of Brazil on exceptions and limitations to patent rights contained in contained in document SCP/14/8, with a view to consider further action on it;

(iv) consider two new preliminary studies in respect of patent administration as follows:

a preliminary study on patent quality management systems, and
an expanded preliminary study on dissemination of, and access to, complete patent information, including digitization issues;

(v) consider a document compiling the information received by Member States on how national laws and practices apply the client privilege or the professional secrecy obligation, respectively, to foreign patent advisors.

2. The SCP suggested that the Director General consider including, in the revised Program and Budget for 2011, provision for a Conference on Patent and [Public Health] [Food Security] to be held in the first quarter of 2011.

3. Presentations of the studies will be held at the beginning of the next meeting.

4. The International Bureau informed the SCP that its fifteenth session was tentatively scheduled to be held from October 11 to 15, 2010 in Geneva.

5. The SCP noted that the present document was a summary established under the responsibility of the Chair and that the official record would be contained in the report of the session. The report would reflect all the interventions made during the meeting, and would be adopted in accordance with the procedure agreed by the SCP at its fourth session (see document/4/6, paragraph 11), which provided for the members of the SCP to comment on the draft report made available on the SCP Electronic Forum. The Committee would then be invited to adopt the draft report, including the comments received, at its following session.

Source: KEI online-

Communia Network, a thematic group established by the European Union focused on public policies for copyright and public domain, has just launched the Manifesto of the Public Domain. The document outlines the general principles and recommendations on how to promote a balance between copyright protection and free access to works that shall be considered as public domain.

Willing to support to this innitiative and spread the idea of the Manifesto thoughout Brazil and Portuguese speaking community, the Centre for Technology and Society-CTS, together with a representative from the Ministry of Culture, José Murilo Junior, have prepared the Portuguese version of the document.

As discussed at the Seventh Workshop of the Communia, held between Jan, 31 and Feb, 02 at Luxembourg, the Manifesto is a document that seeks to stimulate the recovery in the public domain and serves as a real calling for society to be proactive on the matter. One of the highlights of the document states that "the public domain is the rule, copyright is the exception."

The CTS / FGV is a member of the network Communia as non-European institution invited to join the group since its inception in 2007.

For further information about the Manifesto and to sign it, click here-

According to the Science and Development Network, the Pharmaceutical giant GlaxoSmithKline (GSK) announced the release 13.500 malaria drug candidates into the public domain as part of its ’open innovation’ agenda. The report posted on their website can be quoted just as bellow:

Chief executive Andrew Witty outlined the company’s strategy for increasing its intellectual property flexibility and altering its business model to tackle neglected tropical diseases.

"We’re trying to identify a more pluralistic approach to how we might solve very difficult problems". "We need to be much more ... open minded and be prepared to try new things," Witty told a meeting at the New York Academy of Sciences, United States.

Under the plans any researcher or company will have access to the chemical structures of and associated data about more than 13.500 compounds shown to have activity against Plasmodium falciparum, the most dangerous malaria parasite. They would be free to use this information provided they were working towards tackling malaria in least developed countries. Five GSK scientists screened their two-million-compound library by hand to find the shortlist.

The company will also create an ’open lab’ at its neglected diseases research and development (R&D) facility in Spain. There, up to 60 researchers will be able to use GSK infrastructure and expertise to carry out their own neglected disease research projects, with the company providing a total of US$8 million in seed funding.

Ian Boulton of TropMed Pharma Consulting, which works with the pharmaceutical industry on expanding neglected diseases R&D, described the open lab initiative as "groundbreaking" and hoped other companies active in the malaria field, such as Novartis and Sanofi Aventis, would follow suit.

But he said: "Drug discovery is a long process and both the organisations involved and GSK need to have worked out how the projects can be carried forward once their time in the ’open lab’ is over".

"The malaria community needs to develop a system to use this data in an intelligent manner. It would be a shame if there was no coordination or information sharing on who will be working on what classes of compounds," he added.

Mohga Kamal-Yanni, a senior health policy adviser at Oxfam, said: "This action is going beyond their own R&D decisions to encourage others. They have gone further than opening libraries, by actually doing the screening themselves."

Witty said that GSK is committed to continuing malaria R&D. "We have five or six malaria compounds in clinical or preclinical testing."

Last year GSK announced it would allow royalty-free access to its patents and knowhow on drugs for neglected diseases, as well as ploughing 20 per cent of profits made in least developed countries back into their health systems and cutting drug prices. However, no other drug company joined the patent pool.

As highlighted by the Science and Development Network, all these innitiatives of pharmaceutical companies towards an oppen innovation strategy are trully worth to be noticed. Notheless, they shall be closely followed by civil society in order to reassure that it doesn´t become only a market strategy, and that new developments on the field of neglected diseases are really achieved and medicines reach developing countries with accessible prices.

Source: Science and Development Network-

by ICTSD

On 11 February Brazil’s president, Luiz Inácio Lula da Silva, approved legislation that allows the suspension and limitation of the IP rights of citizens or companies domiciled in countries that violate WTO rules. The legislation, which effectively enables cross- retaliation, comprised the following measures: (a) suspension and limitation of IP rights; (b) alteration of the rules and procedures that secure IP protection, mainly provided by the Brazilian Patent Office and the Ministry of Agricultural for plant variety; (c) alteration of the measures to apply IP rights; (d) temporary prohibition of royalty remittances from licensing and technology transfer and (e) additional tax application to remuneration of IP owners.

However, additional administrative action is still needed before Brazil can be in a position to effectively implement the cross- retaliation.

If Brazil follows through with the duties on IP rights and services, many believe that the measures would target the economically and politically strong US pharmaceutical industry. By suspending or breaching the IP rights of pharmaceutical companies, Brazil would be able to seize royalty payments or even produce cheaper generic versions of the targeted drugs. Jose Gomes Temporao, Health Minister of Brazil, has compiled a “list of medicines” that could face retaliation. However, he cautioned that “a decision must be made, slowly, by the entire government.”

The threat of cross-retaliation is not new to international trade disputes. Cross-retaliation has been authorised twice before: once between Ecuador and the EU and again between Antigua and the United States. However, the Brazilian cotton case may be the first time that cross-retaliation will be put into action.

For further details access: ICTSD-

By Monika Ermert for Intellectual Property Watch

Ensuring public access to knowledge while supporting intellectual property rights cuts across broad areas such as internet availability, public health, education and culture, climate change, and basic technical standards. And while the non-profit movement that has worked to encourage access is facing serious challenges this year, they are set to fight it out in the various fora related to essential drugs, books and academic journals, and software again in 2010.

There have been general acknowledgements that classical intellectual property rights protection has created problems with access to medicines. In addition, IP rights and technology transfer was debated at a high level at the climate conference in Copenhagen, and the difficult relationship between patents and standards in technology has been discussed at the World Intellectual Property Organization.

While the various nongovernmental organisations that work for better access to IP-protected material have somewhat given up on their common platform of access to knowledge created at the United Nations-led Internet Government Forum, they are still in the fight.

Access to Medicine

For Knowledge Ecology International (KEI), one of the leading NGOs on these issues, the biggest concern in 2010 is creating an alternative incentive for research and development in drug development, being discussed at the World Health Organization. “We propose to the WHO to put aside quite a bit of the Global Fund to Fight AIDS, Tuberculosis and Malaria money to reward innovation and develop new drugs,” said KEI Director James Love. Another proposal is a reward system for diagnostics, he said.

It is not a new proposal, as KEI has lobbied for the idea for years. A 10 percent share of the Global Fund money should be channelled into the R&D for new AIDS drugs which will then be brought into the UNITAID patent pool to allow easy access for producers and drug developers. But Love is optimistic that after the start of the patent pool under drug-purchasing mechanism UNITAID following its December board decision, the award idea will get traction. In fact, he thinks it is the only way to keep up the treatment of HIV/AIDS patients in poor countries, given that the patent-protected second generation drugs are far too expensive for donor money. With the economic crisis this is even truer.

Members of the European Parliament have taken up the issue and established a new Working Group on Innovation, Access to Medicines and Poverty-Related Diseases. During a recent hearing, Scottish Member of Parliament David Martin questioned Commissioner-designate for Trade Karel de Gucht about the discrepancy “that we spend millions tackling HIV/AIDS and cancer in the developing world, yet at the same time our trade policy sometimes denies access to medicines to the same people through bilateral trade agreements and other trade agreements we enter into.”

According to KEI, with money available for HIV/AIDS treatment in poor countries, the number of patent applications in these countries has grown considerably, too.

De Gucht, while defending the necessity of “TRIPS-plus” provisions (those exceeding the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights) for some aspects, confirmed that he intends to revisit EU Council regulation 1383/2003 “concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights.”

De Gucht acknowledged that “there certainly are some adjustments that should be made to avoid what had happened in the past year, for example in the Netherlands,” referring to European delays of generic drug shipments from India to Brazil. The decision for the free trade agreement between India and the EU is on the Parliament’s agenda in February.

The seizures of drugs off-patent in the countries of manufacture and of destination by the Dutch authorities during the last year have meanwhile led to a discussion among WTO experts, said Holger Hestermeyer of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. Hestermeyer said that “both Brazil and India had indicated they would request consultations with the EU concerning the seizures, the first step towards a possible WTO case.”

Bringing the Global Patent System Back on Track

Problems with the patent system have become obvious over recent years, acknowledged Rainer Osterwalder, spokesperson for the European Patent Office (EPO) in Munich. “The EPO is on the front line to bring the global system back on track and allow it to provide what it was originally created for,” he said.

The EPO itself will start to work with a reshuffled procedure for patent applications on 1 April. The changes made to the application process were merely technical in nature, for example setting strict timelines for answers from the applicants during the process or limiting the filing of secondary claims to an original application. There is no intention to change the requirements for the “inventive step” because the standards already had been high, he said.

The EPO also has partnered with the US Patent and Trademark Office (USPTO), the Korean Intellectual Property Office (KIPO), the Japan Patent Office (JPO), and the State Intellectual Property Office of China (SIPO) to allow for better cooperation. In their “IP5” project, the five offices have set up 10 projects to prepare for jointly used tools and procedures to minimise double work, said Osterwalder.

Working groups on the 10 projects have been started, with each patent office focused on two. The EPO working groups are seeking to solve questions of a “common documentation database” with resource material for patent examination and a “common approach for a hybrid classification” of patents. The USPTO is working, according to the project list, on a “common approach to sharing and documenting search strategies” and a “common search and examination support tools in a shared system,” and SIPO is working on a “common approach to sharing and documenting search strategies” and “common search and examination support tools.”

Implementation of the IP5 group - which was started in addition to the long-standing trilateral cooperation of USPTO, EPO and JPO - would, according to Osterwalder, bring a “rearrangement of the global patent system.” While the cooperation focuses on the shared tools and databases, in the long run it might also lead to similar results on patent examination, said Osterwalder. Reform of the WIPO Patent Cooperation Treaty (PCT) is a step the IP5 partners see as necessary, and the IP5 in a way might become a model about how cooperation could work better. Departing EPO President Alison Brimelow will discuss EPO plans at a speech in Melbourne in March, Osterwalder said.

Patents, Open Source and the Big Cases

For the Free Software Foundation Europe and the Foundation for a Free Information Infrastructure (FFII), 2010 looks like a decisive year given that several interesting decisions will be taken on the patentabilty of software, business processes and conventional seeds. Four questions about computer implemented inventions and their patenting have been referred by Brimelow to the EPO Enlarged Board of Appeal and a decision can be expected soon, even if the referral itself is rejected.

Meanwhile, a decision is expected on the so-called broccoli case involving an effort to patent non-genetically modified plants. The public hearing is set together with a similar case on tomatoes for 20-21 July. FFII has filed amicus curiae briefs on the referral issue, and another one on the court case Bilski v. Kappos which is pending before the US Supreme Court.

The Bilski case is considered by FFII and many organisations of the open source software movement as “the single most important decision worldwide on the issue of patents on business methods, software and algorithms since the [2007] rejection of the Software Patents Directive by the European Parliament.”

Bernard Bilski’s patent application covers a process “of initialising a series of sales transactions between brokers and sellers based on a (fixed) historical price rate, identifying sellers and initialising a series of sales between brokers and sellers in order to balance out the risks of sellers and buyers,” FFII summarised in its documentation. Already now, according to critics of software patents, there are far too many of these patents granted by the EPO and the USPTO.

Bilski’s patent application had been rejected by the USPTO and the USPTO decision has been supported by the courts so far. Now the two sides - the open source software organisations on one side and pro-patent lawyers on the other - are hoping that their arguments will be victorious. The decision is expected in spring.

Open Standards - Model for A2K and Technology Transfer

There seems to be nobody in the world who can avoid climate change on his political agenda, so patent people and A2K people, too, talk climate change. Heavily discussed during the Climate Change Conference in Copenhagen, IP for climate change technology and finding the best way to allow quick technology transfers for this urgently needed technology has also reached the EPO.

According to spokesman Osterwalder, the EPO currently is preparing the release of a joint study with the United Nations Environment Program (UNEP) and the International Centre for Trade and Sustainable Development (ICTSD) on the “role of patents in the development and transfer of environmentally sound technologies”, in particular in the field of energy generation.

The raw data have been collected by the EPO from its databases, said Osterwalder, now the analysis is underway to understand what is out there and whether concentration has taken place or whether there have been “Microsoft- or Apple-effects,” leading to a monopoly situation. “We did not see the latter,” said Osterwalder, but North-South relations have been negatively impacted, he added. In addition to a look at patenting numbers, the EPO also undertook a survey on licensing practices and received responses from 150 companies and institutes (out of 600 addressed worldwide). The study is expected to be finalised in May or June.

The free and open source software model might be a better alternative to patenting and then “repairing” possible barriers to technology transfers, said Karsten Gerloff, president of the Free Software Foundation Europe. It might be possible to transfer this model to other technology areas like climate technology, he said. In any case, information technology related climate technology would gain through free and open source software.

The FSFE, according to Gerloff, will follow closely the work by the EU Commission on the European Interoperability Framework (EIF), which consists of a set of interoperability guideline documents for European Public Services. While the first draft resulting from consultations in 2008 contained solid references to open standards and open source software, according to the FSFE, these had vanished from a second draft leaked last September. Six member states filed objections against this second EIF draft, according to the FSFE.

Ignoring open standards and open source software has a series of disadvantages, according to the free and open source software organisations, from anti-competitive effects against smaller software companies to proprietary formats for public content.

A second focus of the FSFE’s work in 2010 is the relationship between standards and patents. “In our view, patents that are part of standards have to be licensed royalty free,” said Gerloff. While standardisation bodies like the World Wide Web Consortium or the Internet Engineering Task Force this worked well, in other organisations like the International Standards Organisation, reform is necessary, he said. “There is a lot of work to do.”

Financial Crisis in A2K Movement

The various A2K players all think there is a lot of work to do, yet funding has thinned out considerably over the last two years. In the US, several big foundations stopped their programs on A2K-related work, reported Love.

The dynamic coalition on A2K at the IGF was possibly one victim, with A2K players redirecting their attention to the fora they thought they would gain the most for their cause. Love, when asked his greatest concern for 2010, did not point as many others did to the much-debated Anti-Counterfeiting Trade Agreement, but said he was most afraid about the effects of the Supreme Court’s decision that corporate funding of independent political broadcasts in US government elections should be unlimited. “It is a big threat for democracy,” he said.

Last Thursday, Center for Tecnology and Society was one of the spots that hosted a wireside chat with Lawrence Lessig, one of the main voices from the free culture movement.

Transmitted from Harvard Law School, in partnership with Open Video Alliance-, it was hosted by more then 40 streaming locations, including Rio de Janeiro, Delhi, Sao Paulo, Toronto, New York, and many more, allowing an worldwide interactive conversation with Lessig about copyright and fair use at the digital era. Questions were submited by twitter (@openvideo) under the hashtag #wireside.

To watch the video, click here-

by KEI-

On 12 February 2010, the Council of the European Union distributed a table drawn up by the Commission Services, outlining the positions of various counties regarding civil enforcement and the special requirements relating to the Internet. A copy of this 44 page document was leaked on March 1, 2010.

The following are Knowledge Ecology International (KEI) comments on some parts of the EU document.

Types of IP covered

On page 2, the EU insists that "All IPR" should be included in the civil enforcement section. This is also said to be the US/Japan position. The USTR has been telling NGOs and Congressional staff that it only wanted copyright and trademarks included, so the EU report of the US position will surprise some persons. The EU reports that Singapore, Canada and New Zealand only want to include copyright and trademarks.

ACTA as an attack on liability rules

A "liability rule" regime for intellectual property rights is one where an infringement is deliberately allowed, in cases where some type of "reasonable" or "adequate" compensation or remuneration is available. This is explicitly allowed in Article 44.2 [4] of the TRIPS. One important example of such a liability rule regime in U.S. law is 28 USC 1498 [5], concerning uses of patents, copyrights or plant breeder rights by or for the federal government. Another example involves infringements of architectural plans in buildings under construction in Canada. Liability rules are mandated for certain infringements of layout-designs (topographies) of integrated circuits, in Article 37 of the TRIPS. Liability rules have also been considered for other cases, such as access to orphaned copyrighted works. Many academic writers, including for example Jerome Reichman or Mark Lemley, have argued that liability rules should be implemented more extensively as part of broader reforms in the area of intellectual property right policy.

In many actual or proposed implementations of liability regimes for copyrighted works or patented inventions, the "infringer" would have to be shielded from injunctions, and the liability for using works or inventions would be limited to some reasonable amount. The ACTA, however, seems to be targeting liability rules, as follows.

First, the ACTA would reduce the current flexibility regarding injunctions. On page 2, the EU says that measures, procedures and remedies should be "effective, proportionate and deterrent." On page 3, the EU/US and Japan are reported to want to require the possibility of injunctions in all cases of infringement. The injunctive relief would include

"an order to a party to desist from an infringement, including an order to prevent infringing goods from entering into the challenges of commerce and to prevent their exportation."

While this is often if not normally the case for copyright, trademark or patent cases, there are important exceptions (as noted above) as is now allowed for in Article 44.2 of the TRIPS. The possibility of eliminating injunctions in certain cases does not appear in the leaked versions of the ACTA text on injunctions.

The EU wants "added value" language that would extend injunctions against intermediaries. All of these measures and others undermine the possibility of liability rule regimes, and create all sorts of new risks for businesses and consumers.

Article 2.2 of ACTA concerns damages in cases of infringements. The EU table entries for Article 2.2 run six pages (pp 4-9). This section is quite important, and includes proposals that go far beyond existing national laws and global norms. The EU and other countries are pushing for language requiring judicial authorities to consider "lost profits." There is also a proposal to require judicial authorities to consider:

"the value of the infringed good or service, measured by the market price, the suggested retail price, or other legitimate measures of value submitted by the right owner."

The US and Japan propose that judicial authorities be required to consider "any legitimate measure of value that may be submitted by the right owner."

In cases involving an alternative of statutory damages, the US proposes that "right owners shall have the right to choose the . . . alternative they want."

Taken together, ACTA will dramatically change global norms for damages, and change national laws in several countries.

EU opposes protections of fair use or fair dealings. In the Internet section of ACTA, there is a provision concerning "third party liability" and recognizes:

"considerations of exceptions or limitations to exclusive rights that are confined to certain special cases that do not conflict with a normal exploitation of the work, performance or phonograph, and do not unreasonably prejudice the legitimate interests of the right owner, US: including fair use, fair dealing, or their equivalents."

The EU proposal is to delete the fair use/fair dealing language: "including fair use, fair dealing, or their equivalents."

ACTA and the narrow flexibility of the three step test

Under the Berne and Rome Conventions and the TRIPS agreement, the current flexibility to have exceptions and limitations to exclusive rights in fact go beyond those included in the three step test. For example, areas where limitations and exceptions to exclusive rights do not depend upon the 3-step test include the following:

* Article 6 of the TRIPS (the first sale doctrine)

* Article 40 of the TRIPS (Control of anticompetitive practices)

* the Appendix to the Berne Convention

* Articles 10, 10bis, 11bis, and 13 of the Berne Convention

* Article 15 of the Rome Convention.

These flexibilities are not recognized in the leaked ACTA language. ACTA would thus appear to narrow the grounds for limitations and exceptions in the area of copyright, by implying that all exceptions would be subject to the 3-Step test.

If the European Union’s February 12, 2010 analysis of the ACTA negotiations is accurate, and one assumes it is, it provides more evidence that the secrecy of the ACTA negotiations is designed to shield from public scrutiny and domestic accountability a reckless assault on balance and safeguards in the enforcement of intellectual property laws.

To access the full document, click here-

Recently the Brazilian Prosecutor General’s Office manifested favorably to the annullment of pharmaceutical pipeline patents at ADI 4234 at the Brazilian Supreme Court (STF). ADI 4234 is a law suit that argues the unconstitutionality of pipeline patents. Read more about the discussion here-

Source: GTPI and ABIA

Today the Brazilian government published a list of US goods that will be subject to higher import taxes when entering Brazil, according to a press release.

This follows a WTO dispute settlement decision giving Brazil the authorisation to suspend Brazil’s concessions and other obligations in the WTO towards the US which was found in violation of international trade rules over its cotton subsidies (IPW, WTO/TRIPS, 7 September 2009-).

The list, which corresponds to retaliation in amount of US $591 million, has been notified to the WTO and was approved in a resolution by the Council of Ministers of the Chamber of External Trade (CAMEX). The resolution will take effect in 30 days.

The remaining amount of annual retaliation granted to Brazil (US$238 million) “will be applied in the sectors of IP and services,” according to the release. The list of goods that might fall under this retaliation will be completed after the conclusion of a public consultation expected to be launched by 23 March (IPW, WTO/TRIPS, 19 February 2010-).

Brazil said it remains “open to a dialogue with the United States that may facilitate the achievement of a mutually satisfactory solution to this dispute.”

To see the list, click here-.

Source: IP Watch-