Call for WIPO DG on Open and Collaborative Public Goods

Seth Johnson seth.johnson at
Mon Jul 7 16:30:19 UTC 2003

(Looks like we're about to call WIPO out on the carpet.  Information is the
one indisputable public good, whatever its form of organization.  Please see
the APPENDIX below for an overview of categories of public goods being
suggested.  -- Seth)

-------- Original Message --------
Subject: [Random-bits] WIPO DG asked to convene meeting on open and
collaborativeprojects to create public goods
Date: Mon, 7 Jul 2003 11:51:21 -0400 (EDT)
From: Jay Sulzberger <jays at>
To: fairuse-discuss at
CC: Jay Sulzberger <jays at>

 ---------- Forwarded message ----------
 Date: Mon, 07 Jul 2003 11:40:57 -0400
 From: James Love < at>
 To: random-bits at, ecommerce
<ecommerce at>
 Subject: [Random-bits] WIPO DG asked to convene meeting on open and
collaborative projects to create public goods


7 July 2003

Director General
Dr. Kamil Idris, Director General
World Intellectual Property Organization
Geneva, Switzerland

Dear Dr. Idris:

In recent years there has been an explosion of open and collaborative
projects to create public goods.  These projects are extremely important,
and they raise profound questions regarding appropriate intellectual
property policies.  They also provide evidence that one can achieve a high
level of innovation in some areas of the modern economy without intellectual
property protection, and indeed excessive, unbalanced, or poorly designed
intellectual property protections may be counter-productive.  We ask that
the World Intellectual Property Organization convene a meeting in calendar
year 2004 to examine these new open collaborative development models, and to
discuss their relevance for public policy.   (See Appendix following
signatures for examples of open collaborative projects to create public


(in alphabetical order)

Alan Asher
Consumers Association
London, UK

Dr. K. Balasubramaniam
Co-ordinator of Health Action International, Asia Pacific
Columbo, Sri Lanka

Konrad Becker, Director
Institute for New Culture Technologies /t0
Vienna, Austria

Yochai Benkler
Professor of Law
Yale Law School
New Haven, CT  USA

Jonathan Berger
Law and Treatment Access Unit
AIDS Law Project
University of the Witwatersrand
South Africa

James Boyle
Professor of Law
Duke Law School
Durham, NC  USA

Diane Cabell
Director, Clinical Programs, Berkman Center for Internet & Society
Harvard Law School
Cambridge, MA, USA

Darius Cuplinskas
Director, Information Program
Open Society Institute
Budapest, Hungary

Marie de Cenival
Chargée de mission ETAPSUD
Agence Nationale de Recherches sur le Sida  (A.N.R.S.)
INSERM 379 "Epidémiologie et Sciences Sociales appliquées à l'innovation
Marseille, France

Felix Cohen
CEO, Consumentenbond
The Hague, the Netherlands

Benjamin Coriat
Professor of Economics, University of Paris 13
Director of CEPN-IIDE, CNRS
Paris, France

Carlos Correa
Center for Interdisciplinary Studies on Industrial Property and Economics
University of Buenos Aires
Buenos Aires, Argentina

Paul A. David
Professor of Economics, Stanford University & Senior Fellow, Stanford
Institute for Economic Policy Research
Stanford, California, USA
Emeritus Fellow, All Souls College, Oxford & Senior Fellow, Oxford
Internet Institute
Oxford, UK

Kristin Dawkins
Vice President for International Programs
Institute for Agriculture and Trade Policy
Minneapolis, MN  USA

Peter T. DiMauro
Center for Technology Assessment
Washington, DC  USA

Rochelle Cooper Dreyfuss
Pauline Newman Professor of Law
New York University School of Law

Peter Eckersley,
Department of Computer Science, and IP Research Institute of Australia,
The University of Melbourne

Michael B. Eisen
Public Library of Science
San Francisco, CA,
Lawrence Berkeley National Lab
Berkeley, CA  USA

Nathan Geffen
Treatment Action Campaign
Cape Town, South Africa

Gwen Hinze
Staff Lawyer
Electronic Frontier Foundation
San Francisco, CA USA

Ellen F.M. 't Hoen LL.M.
Medecins sans Frontieres
Access to Essential Medicines Campaign
Paris, France

Jeanette Hofmann
Nexus & Social Science Research Center
Berlin, Germany

Aidan Hollis
Associate Professor, Department of Economics,
University of Calgary, and
TD MacDonald Chair in Industrial Economics
Competition Bureau, Industry Canada
Gatineau, Quebec  Canada

Dr Tim Hubbard
Head of Human Genome Analysis
Wellcome Trust Sanger Institute
Cambridge, UK

Nobuo Ikeda
Senior Fellow, Research Institute of Economy, Trade and Industry
Tokyo, Japan

Professor Wilmot James
Chair, Africa Genome Initiative
Social Cohesion & Integration Research Programme
Human Sciences Research Council
Cape Town, South Africa

Niyada Kiatying-Angsulee, Ph.D.
Drug Study Group

Philippa Lawson
Senior Counsel, Public Interest Advocacy Centre
Ottawa, Canada

Lawrence Lessig
Professor at Law and Executive Director of the Center for Internet and
Stanford Law School
Stanford, CA USA

James A. Lewis
Director, Technology and Public Policy Program
Center for Strategic and International Studies
Washington, DC  USA

Jiraporn Limpananont, Ph.D.
Pharmaceutical Patent Project, Social Pharmacy Research Unit (SPR),
Faculty of Pharmaceutical Sciences
Chulalongkorn University
Bangkok, Thailand.

James Love
Director, Consumer Project on Technology
Co-Chair, Trans Atlantic Consumer Dialogue (TACD) Committee on
Intellectual Property
Washington, DC USA

Jason M. Mahler
Vice President and General Counsel
Computer and Communications Industry Association
Washington, DC USA

Eric S. Maskin
A.O. Hirschman Professor of Social Science
Institute for Advanced Study
Princeton, NJ  USA

Professor Keith Maskus
Chair, Department of Economics
University of Colorado at Boulder.
Boulder, CO USA

Ken McEldowney
Executive Director
Consumer Action
California USA

William McGreevey
Director, Development Economics
Futures Group
Washington, DC  USA

Professor Jon Merz
Center for Bioethics
University of Pennsylvania
Philadelphia, PA USA

Jean Paul Moatti
Director, INSERM 379
Faculté de Sciences Economiques
Université de la Méditerranée
Marseille, France

Eben Moglen
Professor of Law & Legal History
Columbia University
General Counsel, Free Software Foundation

Ralph Nader
Consumer Advocate
Washington, DC USA

Hee-Seob Nam, Patent Attorney
Intellectual Property Left
Korea Progressive Network JINBONET

James Orbinski MD
Associate Professor
Centre for International Health
University of Toronto, Canada

Bruce Perens
Director, Software in the Public Interest Inc.
Co-Founder, Open Source Initiative, Linux Standard Base

Greg Pomerantz,
Fellow, Information Law Institute, New York University
New York, NY USA

Laurie Racine
President, Center for the Public Domain
Durham, NC USA

Eric S. Raymond
President, Open Source Initiative

Juan Rovira
Senior Health Economist
The World Bank

Frederic M. Scherer
Emeritus, John F. Kennedy School, Harvard University
Cambridge, MA  USA

Mark Silbergeld
Consumer Federation of America
Washington, DC USA

Richard Stallman
Launched the development of the GNU operating system, whose GNU/Linux
variant is the principal competitor for Microsoft Windows.
Cambridge, MA USA

Anthony Stanco
Center of Open Source & Government
George Washington University
Washington, DC  USA

Joseph Stiglitz
Professor of Economics and Finance
Columbia University
Former Chief Economist World Bank
Chairman of the White House Council of Economic Advisers from 1995 to 1997
Received Nobel Prize for Economics in 2001
New York, NY USA

Peter Suber
Research Professor of Philosophy, Earlham College
Open Access Project Director, Public Knowledge
Senior Researcher, SPARC
Brooksville, ME, USA

Sir John Sulton
Winner of 2002 Nobel Prize for Physiology or Medicine
Former Director of the Wellcome Trust Sanger Institute
Cambridge, UK

Harsha Thirumurthy
Yale University, CT USA

Alexander C. Tsai, MD
Case Western Reserve University
Cleveland, OH USA

Pia Valota
ACU Associazione Consumatori Utenti ONLUS
AEC Association of European Consumers socially and environmentally aware
Milano, Italy

Professor Hal Varian
Dean, School of Information and Management Systems
University of California at Berkeley.
Berkeley, CA USA

Machiel van der Velde
Co-Chair, Trans-Atlantic Consumer Dialogue (TACD)
Committee on intellectual property
The Hague, the Netherlands

Victoria Villamar
le Bureau Européen des Unions de Consommateurs/
European Consumers' Organisation
Brussels, Belgium

Robert Weissman
Essential Action
Washington, DC USA

Professor Jonathan Zittrain
Co-Director, Berkman Center for Internet & Society
Harvard Law School
Cambridge MA USA


Open collaborative projects to create public goods

These are some of the projects that could be discussed:

1.	The IETF and Open Network Protocols.

The Internet Engineering Task Force has worked for years to develop the
public domain protocols that are essential for the operation of the
Internet, an open network that has replaced a number of proprietary
alternatives.  It is important that WIPO acknowledge the success and
importance of the Internet, and appreciate and understand the way the IETF

The IETF is currently struggling with problems setting open standards. When
the IETF seeks to adopt a standard, there is uncertainty if anyone will
later claim the standard infringes a patent.  One suggestion to address this
problem is to create a system whereby a standards organization could
announce an intention to adopt a standard, and after a reasonable period for
disclosure, prevent parties from later enforcing non-disclosed infringement

2.	Development of Free and Open Software

This movement is highly decentralized, competitive, entrepreneurial,
heterogeneous, and devoted to the publishing of software that is freely
distributed and open.  It includes projects that embrace the GNU General
Public License (GPL), which uses copyright licenses to require that modified
versions also be free software, and projects such as FreeBSD, which use
minimal licensing restrictions and permit anyone to make non-free modified
versions, as well as projects such as MySQL, which release the code under
the GNU GPL but sell licenses to make non-free modified versions, as well as
many other approaches.

The new Apple operating system runs on top of FreeBSD, and big corporate
players like Oracle and IBM run databases and server software on the
mostly-GPL'd GNU/Linux operating system.  Apache is the leading web page
server software.  WIPO provides frequent forums where firms that embrace
closed and proprietary development models express their views, but very
little is heard from those who have embraced open and collaborative
development models for free software. The astonishing success of this
movement should be recognized by WIPO, and policy development should be open
to new ways of thinking.

These various actors have a variety of values and objectives.  Richard
Stallman of the Free Software Foundation says "the freedom to change and
redistribute software is a human right."  Others see this is as primarily an
issue of how to most efficiently develop and distribute software. The
proponents of open collaborative free software projects note that there are
powerful reasons why software code should be open and freely copied.  Not
only is it efficient to copy existing code in new programs, but the
transparency of the code allows a large community to find flaws and suggest
improvements (Linus Torvalds' observation, popularized by Eric Raymond's,
that "with enough eyeballs, all bugs are shallow").

The free software movement is very important to the success and the future
of the Internet, and it is also quite important in countering Microsoft's
massive monopoly power, particularly given the number of commercial
competitors to Microsoft that have disappeared.  In recent years many
governments have began to embrace open collaborative free software
projects.  Free software developers are concerned about a number of policies
that WIPO is involved in, including whether to allow patents on
computational ideas, the future development of digital rights management
schemes, and the enforceability of "shrink wrapped" or click-on contracts
that contain anticompetitive provisions.

3.	The World Wide Web.

If measured by the rate at which it has transformed the world, the World
Wide Web is the most important publishing success ever.  The web was built
on public domain protocols, and on documents that were from the beginning,
transparent and open at the level of source code.   Long before anyone even
knew how copyright would apply to the Internet, millions of documents were
being created for free distribution on the Internet.  Governments are now
routinely publishing documents and data on the web so it can be freely
available, as do multilateral institutions like WIPO.

The entire future of the Web will depend upon the extent to which new
digital copyright regimes permit such practices as hypertext linking, the
use of materials in search engines such as Google, and liberal views toward
fair use.

4.	The Human Genome Project (HGP).

In an April 14, 2003 state, the heads of state for the France, the US, the
UK, Germany, Japan and China issued a statement, which noted that:
"Scientists from six countries have completed the essential sequence of
three billion base pairs of DNA of the human genome, the molecular
instruction book of human life. . . This information is now freely available
to the world without constraints via public databases on the World Wide

If Presidents Jacques Chirac and George Bush, Prime Ministers Tony Blair and
Junichiro Koizumi, Chancellor Gerhard Schroeder and Premier WEN Jiabao can
collaborate on a statement to herald efforts to create a public domain
database, free from intellectual property claims, it is time for the World
Intellectual Property Organization to better appreciate why these
governments did not want the Human Genome patented.

5.	The SNP Consortium

A different example of a project to create a public domain database involves
single nucleotide polymorphisms (SNPs), which are thought to have great
significance in biomedical research.  In 1999, the SNP Consortium was
organized as a non-profit foundation to provide public data on SNPs.  The
SNP Consortium is composed of the Wellcome Trust and 11 pharmaceutical and
technological companies including Amersham Biosciences, AstraZeneca,
Aventis, Bayer, Bristol-Myers Squibb Company, Hoffmann-LaRoche, GSK, IBM,
Motorola, Novartis, Pfizer and Searle.  The work was preformed by the
Stanford Human Genome Centerm, Washington University School of Medicine (St.
Louis), the Sanger Centre and the Whitehead Institute for Biomedical
Research.   The mission of the SNP consortium was to develop up to 300,000
SNPs distributed evenly throughout the human genome and to make the
information related to these SNPs available to the public without
intellectual property restrictions.    By 2001 it had exceeded expectations,
and more than 1.5 million SNPs were discovered and made available to
researchers worldwide.  The SNPs consortium, the HGP and other similar
projects represent different notions regarding the intellectual property
rules for databases, and more information about these projects would be
useful in evaluating assumptions and informing debates in the WIPO Standing
Committee on Copyright as it considers current proposals to convene a
diplomatic conference to adopt a treaty on new sui generis intellectual
property rules for databases.

6.	Open Academic and Scientific Journals

The development of the Internet and the World Wide Web has fueled interest
in new models for publishing academic and scientific journals.   The prices
for traditional journals have been sharply rising for years, worsening the
gap between those who can afford access to information and those who
cannot.  In the past several years there has been a proliferation of
projects to create open academic and scientific journals.  The Public
Library of Science was founded by Nobel Prize winner Dr. Harold Varmus and
fellow researchers Patrick Brown and Michael Eisen.  The Free Online
Scholarship (FOS) movement, the creation of the widely read (for profit)
BioMed Central to provide "immediate free access to peer-reviewed biomedical
research," the Budapest Open Access Initiative (which has been endorsed by
210 organizations), and other similar projects seek to promote new business
models for publishing that allow academic and scientific information to be
more widely available to the research community.  Other efforts to provide
reduced price or free access to researchers in developing countries include
the Health InterNetwork, which was introduced by the United Nations'
Secretary General Kofi Annan at the UN Millennium Summit in the year 2000, a
number of projects sponsored by the International Network for the
Availability of Scientific Publications, eIFL.Net (Electronic Information
for Libraries), a foundation that "strives to lead, negotiate, support and
advocate for the wide availability of electronic resources by library users
in transition and developing countries," and a new effort by the Creative
Commons to create a license for free access to copyrighted materials in
developing countries.  Recently US Congressman Martin Sabo introduced
legislation to require all US funded research to enter the public domain,
and others are calling for international cooperation to similarly enhance
the scientific commons.

7.	The Global Positioning System.

This is not an example of collaborative development model, but it does
illustrate the benefits of providing a free information good, in terms of
stimulating the development of an entire generation of new applications.  
If lighthouses are considered a textbook example of a public good, the
modern equivalent might be the Global Positioning System (GPS), which
provides the entire world highly accurate positioning and timing data via
satellites.    GPS signals are used for air, road, rail, and marine
navigation, precision agriculture and mining, oil exploration, environmental
research and management, telecommunications, electronic data transfer,
construction, recreation and emergency response. There are an estimated 4
million GPS users worldwide.  The services are offered without charge. 
Following the Korean Airline disaster, President Reagan offered GPS free to
promote increased safety for civil aviation, and more recently President
Clinton eliminated the intentional degrading of the system for civilian use.
NASA reports that "many years ago we evaluated charging for the civil
signal. The more we looked at it, the more convinced we became that by
providing the signal free of direct user fees we would encourage
technological development and industrial growth. The benefits from that, the
new jobs created, and the increased safety and efficiency for services more
than outweighed the money we would get from charging – especially when you
consider the additional bureaucracy that would be needed to manage cost
recovery. We think that judgement has proven valid, as the world-wide market
for GPS applications and services now exceeds $8 billion annually."

James Love, Director, Consumer Project on Technology, at
tel. +1.202.387.8030, mobile +1.202.361.3040

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