At the plenary of the Human Rights Council meetings late last month, panelists had established that there was no need for any new human rights standards on freedom of expression; that the existing standards in the Universal Declaration of Human Rights and the Covenant of Civil and Political Rights (Article 19) were written to anticipate “any means” of communication. The only new element of the Internet is that it is interactive in real time. Challenges are mounting, though, especially with censorship by governments, as raised by the Google executive, but also with the role of the state to protect individuals from interference of their other fundamental rights as well as protection from criminalization. Some even suggested that a new set of rules might be needed, in spite of the adequacy of the basic standards, to address such issues as the right to development and cultural diversity, or establishing a global mechanism against censorship or filtering. As for a business role, references were made to voluntary corporate standards in the Global Network Initiative, the Internet Coalition, and the Silicon Valley Standard. The Turkish delegate provided some clarity by suggesting there were two issues – first the elementary issue of access, where the Turkish government has been partnering with the private sector to place computers in every school to ensure access; and secondly, to ensure freedom of expression itself through a legal framework to tighten definitions and restrictions for exceptions. There seemed to be widespread acceptance of the Google position that intermediaries should not be liable to regulate content, and many delegates spoke about working together against censorship.

China’s delegate contributed to the debate with an intervention that was endorsed by some twenty other Council members, and that emphasized the need to balance the right to freedom of expression with other fundamental economic and social rights including specific articles of international law against the undermining of the rights of others – those that protect others from speech that is inflammatory, criminal, corrupt or disruptive of cultural values. There continued to be an ebb and flow of ideas about how to apply existing interpretations for balancing these rights with the fundamental right to freedom of expression and who should be called upon to assume greater responsibilities. Several delegates referred to an important private sector role for this, while the Google executive reiterated the importance of a common platform or code. One delegate spoke about the importance of agreeing on how NOT to control the web and the need to answer the question WHO has the right to regulate what aspects of it. Finally, the issues of how much information might be legitimately accumulated by Internet providers and how to protect copyright and trademark and related intellectual property rights were touched on but not prominently featured in the debate. But this is only the beginning of the Human Rights Council’s role in this area, and we can certainly expect further deliberations and resolutions to define an expanded role for human rights impact assessments in Internet policy debates, codes and other mechanisms, whether they are at the Council or at the Internet Governance Forum or the follow-up process to the World Summit for the Information Society or at the International Telecommunications Union or even the UN General Assembly.

Intellectual Property has secured its position on the global agenda in 2012, with action already being taken across the board on shoring up IP policy. Looking forward, we provide below some insight into the IP issues we feel are the most interesting at this stage.

WIPO

The World Intellectual Property Organization has a full program lined up for 2012, with an apparent breakthrough at last year’s General Assemblies in the impasse between developed and emerging economies.  This accomplishment is all the more impressive when one observes that the developing country interests were transformed into a Development Agenda Group, a coalition that mobilized a continuing engagement for development on IP issues.  We are impressed with the variety of IP-related issues that are starting to move, and a handy outline of the full menu is available in the WIPO press release summarizing the outcomes at the close of these General Assemblies on 5 October, available here.    We won’t list the whole menu here but only mention some of the highlights for 2012.  Most importantly, perhaps, there will be a diplomatic conference mid-year (20 to 26 June) in Beijing for a treaty on protecting audiovisual performers. Information on the conference is available here.  This treaty was delayed for a good ten years over a dispute on transfer of rights between performers and producers, with the breakthrough compromise language actually being agreed to in the summer of 2011.  So maybe this is not such a major newsworthy development, but on other copyright-related issues relating to broadcasting organizations, in one example, and the rights of persons with print disabilities, in another example, the barriers to agreement have yet to be overcome.  Perhaps this breakthrough for audiovisual performers will help nudge things along.

Another area where WIPO members are flirting with a possible treaty is in the area(s) of traditional knowledge, traditional cultural expressions and genetic resources.  Here the deliberations of an Inter-Governmental Committee (IGC) on these three related topics have attracted a growing number of NGOs, and the General Assemblies renewed the mandate of the Committee in order to prod the members to engage in the formalities that precede the convening of a diplomatic conference for a treaty.  This relates to a procedure described as “text-based negotiation for an eventual legal instrument(s)”.  Advocates of a diplomatic conference hope that this will happen with a green light to be given by the General Assemblies when they meet this year, for a diplomatic conference in 2013.   The IGC has a long session on 14 to 22 February to give it a try.

And finally, we mention some of the brewing issues relating to IP and the Internet.  The WIPO Standing Committee on Trademarks, Industrial Designs and Geographic Indications will also be meeting in February (1-3 February) to delve into the touchy subject of who controls what with regard to Internet domain names.  There’s a whole lot else going on, of course, but we bring this one up because it is one of the many places where the Internet battle between open space and IP is rearing its profile.  Using a plant metaphor, we see a battle between growth from flourishing unfettered innovation versus growth from channeled and cultivated innovation.   In the WIPO Committee, the issue is new domain names threatening the intellectual property of trademarks.  The issue is also being debated in the UN Commission on Science and Technology for Development, where a Working Group on the Future of the Internet Governance Forum will be presenting its report with recommendations in May, but also, as we see below, in domestic political battles as well.

European Union

IP features prominently as one of Denmark’s many priorities for its six-month presidency of the European Union, specifically in the context of further developing EU IP policy – including reviewing trademark rules and the development of a common EU patent system. Other relevant priorities for this Danish Presidency include international trade and issues surrounding research and innovation. With regards to the proposed common EU patent system, the greatest hurdle at this stage relates to discussions over the creation of a “patent court.”

United States

The debate between incentivizing innovation and availability of cheap technology is raging in Congress. Indeed a recently published Department of Commerce report entitled “The Competitiveness and Innovative Capacity of the United States”, mandated by the COMPETES Reauthorization Act of 2010, points out that “Innovation is the key driver of competitiveness, wage and job growth, and long-term economic growth” and that three main pillars have contributed in the past to American growth: Federal support for basic research, education, and infrastructure. The report highlights that ongoing investment is required in these three areas if the US is to sustain its growth. A couple of IP-related initiatives have already been debated on the Congress floor this year: the Stop Online Piracy Act (SOPA) – shelved, but likely to come back in an amended format – and the Protect IP Act (PIPA).  SOPA was shelved after the White House let it be known that President Obama did “not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet”.  This legislation had provisions in it to block foreign websites for reasons of online piracy. See more here.