-----Original Message----- From: owner-ip@v2.listbox.com [mailto:owner-ip@v2.listbox.com]On Behalf Of Dave Farber Sent: 20 August 2003 22:55 To: ip@v2.listbox.com Subject: [IP] USPTO, Microsoft seek to kill WIPO meeting on open collaborative models to develop public goods

Date: Wed, 20 Aug 2003 17:33:29 -0400 From: James Love james.love@cptech.org Subject: USPTO, Microsoft seek to kill WIPO meeting on open collaborative models to develop public goods To: Dave Farber dave@farber.net

August 19, 2003. Technology Daily PM Edition

-- Intellectual Property Global Group's Shift On 'Open Source' Meeting Spurs Stir by William New

A request for a meeting on open development issues has plunged the Geneva-based World Intellectual Property Organization (WIPO) into a Washington political battle, causing it to shift its position on the issue.

At issue is whether WIPO should hold a meeting next year on "open and collaborative projects" such as "open source" software, which allows users to view and modify underlying code.

The meeting was proposed in a July 7 letter sent to WIPO Director General Kamil Idris by 68 distinguished scientists, academics, technologists, open-source advocates, consumer advocates, librarians, industry representatives and economists worldwide. (http://www.cptech.org/ip/wipo/kamil-idris-7july2003.pdf)

Although the letter cited a broad range of open collaborative projects such as the World Wide Web and the Human Genome Project, the fight has focused on open-source software and on one signer of the letter -- James Love, director of the Consumer Project on Technology, who has actively pushed for the meeting.

WIPO's initial response to the idea was so favorable that proponents began planning for a meeting. After receiving the letter, Francis Gurry, WIPO's assistant director and legal counsel, e-mailed a statement to a Nature magazine reporter calling such open development models "a very important and interesting development."

"The director general of WIPO looks forward with enthusiasm to taking up the invitation to organize a conference to explore the scope and application of these models as vehicles for encouraging innovation," he

wrote.

But a few weeks later, WIPO backed off the idea. Gurry said he and other WIPO officials received "many calls" from consumer groups, trade associations, professional associations and representatives from

governments.

"What happened in the intervening weeks is that a request for an open discussion on a range of 'projects' became transformed into an increasingly domestically, as opposed to internationally, oriented, polarized political and trade debate about one only of those 'projects', namely open-source software," Gurry told National Journal's Technology Daily on Tuesday. "In those circumstances, the possibility of conducting a policy discussion on intellectual property of the sort that might be appropriate for an international organization devoted to intellectual property became increasingly remote."

U.S. government officials have argued that WIPO is an inappropriate place for such a meeting.

One developing country representative to WIPO on Monday expressed disappointment at hearing that the meeting is in doubt, and Love and representatives from the Computer and Communications Industry Association (CCIA) were furious to learn of the shift. Love last week called the decision a "temporary setback," and vowed, "We're going to make this happen." But for meeting opponents, he said, it would be "as if you made an atheist pope for the day."

CCIA President Ed Black said on Tuesday: "Does this indicate that WIPO is abdicating authority and responsibility for these issues, including open source for the future? If so, we will all live by that, but then so must they. They should step up the plate or step aside. ... It is inexplicable that they would shut the door on what are clearly important issues."

Intellectual Property U.S. Official Opposes 'Open Source' Talks At WIPO by William New

An international intellectual property body is not the place for discussions about "open source" software, which allows users to view and modify the underlying code, because it falls outside of the organization's mission, a senior U.S. official argued on Monday. Reviewing the original mission of the World Intellectual Property Organization (WIPO), said Lois Boland, the U.S. Patent and Trademark Office (PTO) acting director of international relations, it is "clearly limited to the protection of intellectual property. To have a meeting whose primary objective is to waive or remove those protections seems to go against the mission."

Boland was referring to a July request by a group of scientists, academics, open-source advocates and others for a meeting at WIPO on "open and collaborative projects," including open-source software. The WIPO secretariat initially replied favorably to the idea. In a telephone interview, Boland gave several reasons why the Geneva-based WIPO should not hold the meeting, including a tight budget and late scheduling. She also said WIPO's agenda should be driven by member nations, and the idea came from outside the organization. Officials from the 179 WIPO nations will convene in late September to decide their agenda for the next two years; the agenda has been in the works for months and does not include open-development issues. "It would have been somewhat unusual for such a meeting to materialize out of nothing," Boland said.

In the past six months, WIPO has had to cancel several meetings on topics directly relevant to the organization due to budgetary issues, she said, adding that with those problems, the organization should not "go out on a limb and express receptivity" to an open-development meeting. U.S. government officials have had "informal" communications with WIPO, Boland said. A WIPO official said that since receiving a wide range of communications, WIPO has stepped back from the idea of a meeting but has not fully rejected the possibility of addressing the topic.

The U.S. government has an interagency process for developing formal positions at WIPO. A meeting that included officials from PTO and the Copyright Office was held last Thursday at the State Department. The Commerce Department and Office of the U.S. Trade Representative are part of the interagency process, too.

Boland said the United States "would certainly have some rather bureaucratic objections" to WIPO considering a policy on open-source software. "There are technical and legalistic arguments to that." Open-source software is not protected under copyright law but only contract law, which is not the domain of WIPO, she said. That point has been heavily disputed by copyright experts.

Boland suggested that the U.S. government supports open-source growth as a development tool and she proposed it for consideration by a U.N. body focused on development.

She also reprimanded WIPO officials for publicly giving the impression that the body might consider open-source issues. "We think people working within the organization need to be better stewards of interactions" with nonprofit groups and other non-member organizations, she said.

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