EIGHTH INTERNET GOVERNANCE FORUM
BUILDING BRIDGES ENHANCING MULTI‑STAKEHOLDER COOPERATION FOR GROWTH AND SUSTAINABLE DEVELOPMENT
TUESDAY, OCTOBER 22, 2013
INTERNET COPYRIGHT POLICY: MULTISTAKEHOLDER
This text is being provided in a rough draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
>> SUSAN CHALMERS: Morning, everyone. Thank you for being here. It's great to see we have a healthy audience relative to the room size. So thanks again. My name is Susan Chalmers and I am the policy lead of Internet New Zealand, I'm very pleased to welcome you to our panel this morning, Internet copyright policy, multi‑stakeholder or multilateral, which we have organized with the IFLA, or the Internet federation of library associations and our colleague Stuart Hamilton from IFLA is in the audience and he will be helping out with the roving mic throughout the session.
So a quick housekeeping note, please, if you tweet from the session ‑‑ welcome, come in.
If you tweet from the session, we'd like to ask you to use at least two hash tags, the first being IGF 2013 and the second being hash tag SEC, as in the first three letters of the word security which will signal that this workshop is part of the security, legal and other frameworks sub theme. The IGF secretariat has asked us to do this because if we do this, you'll be helping us to track the discussions at the IGF in a more organized manner and it will also take content at friends of the IGF.org, which if you haven't taken a look at that site, please do. It's a living project and the purpose is to make the discussions at the IGF more accessible.
So how do we define success for this session? Well I think the session will be successful if we have a really healthy, colorful, robust and open debate, on where international norms for Internet related copyright policy should be developed. So throughout the session, let's ask ourselves which is the appropriate venue for developing this type of policy. Should copyright policy for the Internet environment be developed in a multi‑stakeholder forum. How would that work in practice. Or is it the status quo of the state based multilateral fora, or is that more appropriate and more sensible, and what are free trade agreements, like the trans‑Pacific partnership, which will actually set copyright standards for 12 countries outside of these two processes. So we are very fortunate to have representatives from intergovernmental organizations, the private sector, and the technical community on our panel to guide us in this discussion.
So we have 90 minutes together today and we'll begin by introducing this esteemed panel of experts, who will then give brief opening remarks. I will then pose questions to the panelists, and after our panel discussion, we will touch base with the remote participants. Our remote moderator is Ellen Broad from IFLA. Thank you Ellen from helping out. And we'll invite questions from the remote participants and from you as well for the panel.
And then what we're going to do is open up the discussion to the floor. So our panelists have thought about questions in advance that they'd like to ask you. So the conversation becomes yours. And I'm really looking forward to engaging in a conversation with everybody here. The room's not necessarily set up to accommodate that naturally, because anybody who is behind the front row is ‑‑ will be talking to the back of somebody's head, but let that not dissuade us in engaging in an open conversation.
After our discussion on the floor, we'll be returning to the panel's ‑‑ to the panel and I will ask each panelist to give closing remarks summarizing their insights from the session, and then we can all go to lunch.
So let us again, I'd like to introduce our panelists. First we have Konstantinos Komaitis, who is the policy advisor at the Internet society, and he focuses primarily on the field of digital content and intellectual property. Before joining the Internet society in July 2012, he was a senior lecturer at the university of Strathclyde in Glasgow, the UK. He holds a Ph.D. in law and two masters and he is based in Geneva but truly wished he could travel back in time.
Next we have Paolo Lanteri, he is a lawyer specializing in intellectual property and a member of both the Spanish and Italian bar association. He works in the copyright law division of the World Intellectual Property Organization.
Next we have Nick Ashton‑Hart, who is the Geneva representative of the computer and communications industry association.
And last but certainly not least, we have Giacomo Mazzone, who is the head of institutional relations to the EBU, which is the biggest broadcasting union of the world, with members in 58 countries and includes amongst others the BBC, RAI, ARD, RTVE and France TV. In this capacity Giacomo has partnered with the UN systems since WSIS 2003 in Geneva. The EBU is the member of the GAC at ICANN and they're also members of the EBU bank at the IGF. So welcome all to our panel. And I suggest we just proceed with opening remarks and then we'll move into question time.
>> KONSTANTINOS KOMAITIS: Thank you Susan, good morning everybody, I am very happy to be here and thanks for coming to this workshop.
So I think that part of the reason that this workshop was chosen is because it is ‑‑ because of how timely it is discussions on copyright are as you I'm sure you will know have been part of the Internet governance debate for many, many years. Over the years, very this increased and they have intensified and the Internet community as well as the entire content community has been seeking ways to advance the discussions in order to make copyright, fit copyright if you want within the realm of the Internet. The challenge are many, the difficulties are many and the questions are very hard. So choosing a model to proceed on how to advance copyright discussions and how to make sure that copyright actually walks along with the Internet instead of competing with the Internet are becoming more and more crucial.
In this context, we see that those discussions are taking place at the IGF at various organizations, either governmental and non‑governmental and in the beginning at least, but I think increasingly we see this happening less and less. There was the tension between copyright with multi‑stakeholder participation. I really think we're way past that. I think that we are in a stage where the different stakeholders are all sitting down and they're having very substantive discussions and I see those discussions happening. I have seen those discussions where you normally wouldn't expect them to happen and one of the places is the Internet engineering ‑‑ the engineering task force where people were talking about content in relation to standards and I think that this is a very welcoming evolution of the discussions in the way they will help us at least identify better the problems and start looking for answers.
So I will stop here because I don't want to start giving away what I will be discussing, but I think that this is ‑‑ we should see this as the beginning of an ongoing ‑‑ of rationalizing better yet what we want to achieve through these discussions and what we really want to achieve I believe is find mutually agreeable solutions that we can all live with and be able to ensure the content owners are protected, that the public at large is protected and the Internet is secured.
>> PAOLO LANTERI: Good morning, everyone, thank you Konstantinos and thank you Susan for the introduction.
Thanks to the organizer for setting up such an interesting workshop. And for letting us participate in the World Intellectual Property Organization.
I believe this raises a very important question which compares two systems, the multi‑stakeholder and the multisystem approach. This question touches daily life multilateral organizations such as WIPO. Those two approaches are very intertwined and interconnected in my view. And a successful copyright policy would need ‑‑ would require both, both processes.
They need to play a role. This is particularly true in the context of copyright policy, which is ultimately a question also of the viability of culture in the 21st century, which is a question that will concern potentially all the Internet users in the planet so the dialogue must be as broad as possible.
We have some successful story to tell in copyright policy development. Of course I'm referring to the two diplomatic conference. We can talk about those if someone is interested. But one outcome of those two diplomatic conference is the stakeholders played an essential role. Without them those results would not have been possible. And they represent solid and balanced copyright developments, and so rather than looking at those two approaches as alternatives, I suggest to look at them as complementary. They can enhance each other.
So the success we know, we know in looking at previous experiences, that the success of any multilateral process lay down on a broad multi‑stakeholder approach, and I'm looking forward to hear your views and your opinion and suggestion to make this even more effective than what it is now. Thank you.
>> NICK ASHTON‑HART: Yes. I'm also I'd like to thank the organizers of which I was supposed to be a much more active one, but I got involved in organizing of too many other things, including one of the main sessions, and so I'm very glad to be here as almost a free rider on the organizing list.
I should preface my comments by saying that I ‑‑ CCI's members are some of the most financially successful Internet companies. And so tend to be disruptors of established business models. Before that I was actually a music manager. I managed featured artists, so I represented a constituency that was frequently seen as disruptive of the status quo even while being a rights holder representative. So I may be for two reasons slightly disruptive here in terms of the ideas that I put forward, but I think that the two conferences that WIPO ‑‑ were just referred to by Paolo are instructive in what they succeeded in and discussing how the existing frameworks were developed which is we have countries that focus on legal architectures to which the beneficiaries of those protections are largely interested bystanders, and so the outcome is not designed necessarily around the result and the effectiveness of the result. It's designed around a political compromise, and this is standard treaty making, but in an on‑line world which is fundamentally global, where copyright is fundamentally national, you have a sort of a square peg in a round hole problem. And so I think if you ‑‑ if we want to have good laws in this area, and amongst others, I think we're going to have to have some amendments to process that incentivize the outcome, that's the objective outcome that is sought, and focuses on the ‑‑ those immediately concerned with that outcome.
I mention this because I found myself as an observer participating in the treaty for the blind from its very beginning, and which CCI was always very supportive of and I had to intervene at various times and say this is not actually about the technology industry. It's not about the film industry. And in fact it's not actually about publishers of books. It's about a market failure to provide access to the visually impaired. And so what we should be focused on is what do the visually impaired need given a market failure of standard commercial terms to provide books in reasonable quantities, and if that had been the objective, I mean it was the stated objective, but if the negotiating had been set up in a way to focus only on that result, it wouldn't have taken four years. It wouldn't have been so painful for everyone who participated in it.
And so, you know, I think we have to ‑‑ if we're going to change things to work for a globalized world, having simply national governments negotiating amongst themselves, for their national perspective, fundamentally will always be a challenge. I mean I have argued on a number of occasions that I don't think copyright law per se is necessarily such a problem. It's the way it's run. It's the way it's administered, and the fact that it is administered nationally and is terribly complicated in how licensing works is more an impediment to access and use and cost than the actual laws in question, which have a good deal of flexibility and are implemented very differently in different countries.
So I think that would be my question to all of you, is is it possible to imagine a framework for evolving the copyright system in a way that incentivizes the outcome more than the participants.
>> GIACOMO MAZZONE: Thank you. I thanks also the organizer for this interesting initiative and I think that this is a crucial problem. Even if I remember that the beginning of the WSIS, one of the first recommendations was not to talk about the intellectual property in the IGF. This was removed. But just to give you an idea of where we were ten years ago, in Tunis when the IGF was created.
But let's say that as broadcasters, we have a double approach to the problem, because our members are a lot ‑‑ they have a lot of copyright ownership because they produce a lot of contents, or they achieve a lot of contents for the broadcasting use, but also we are licensing a lot of things for our daily activities. I think that in this case, in this panel, what is more important for you is our role as licensing, because this is the main problem we are discussing. So I will treat this aspect, forgetting for a moment the problem of the ownership of rights.
I think that our experience is double fold in the sense that even in licensing, we go through international treaty, so we are part of WIPO negotiation, very active. We ‑‑ since many years we are fighting for obtaining a broadcasting treaty worldwide that is blocked by many different interests, I think for misunderstanding in the real interests and real long term global interests, but this is a reality. But also we are negotiating day by day on our national basis and a regional basis, contract with the other parties' interests, so we practice in the life of every day the two aspects, and the two policies, and as Paolo said correctly, there is not one against the other but they are complementary.
But from our observation of having this twofold approach, I can see one main difference. In the multilateral negotiation, you achieve a certain level of protection that is shared by everybody. So then all members of the European Broadcasting Union are equal. The Slovenian television that has two million viewers, that produce a lot of content and distribute a lot of content in its own language, has the same level of protection as BBC under the treaty. If you go for bilateral negotiation and multi‑stakeholder negotiation then the difference between the two is enormous, because BBC has a legal department of 40 lawyers. They have a standard form and contract for everything. They know they have sublicense agreements in all countries of the world. While in Slovenian television they only have us as a reference for doing so. So the multilateralism is a basic protection for everybody. That means that the basic level of rights and the opportunities are shared by everybody. While if you move in the multi‑stakeholders, then the problem is the size. The size becomes the main factor, and then there's discrimination between different realities, and because for us as a union, I'm talking for you now, of course, for us it's equally important, the Slovenian television, the BBC, the Slovenian television has three times more votes than BBC, because BBC shares with channel 4 and ITV. Slovenian television or Vatican radio, they have 24 votes. So they count three times more than BBC. It's a joke because in reality the weight within the organization is very important, because the practice, the knowledge is relevant and shared by everybody. But let's say from this approach, the multilateralism is a guarantee, so I think that we have not renounced it, because then it will be a disadvantage for the smaller reality, and because for us we believe that in each country it's important what the public service broadcasters does because mainly we represent public service broadcaster, even national broadcaster, they do for national language, national identities we believe is important. We believe that the minimum level that is begin by the treaty is important.
Then of course I realize and I agree with you, the process has to be smoother as possible and give real equal opportunity to access even beyond what the treaty minimal level guarantees.
>> SUSAN CHALMERS: Thank you very much. And thanks to all of our panelists.
I think we're going to move into asking questions now, and just to give you an order, Paolo, I will start with you. Nick, you'll go second, Giacomo, third, and Konstantinos fourth. So Paolo, what are the lessons we can learn from past and present experience of copyright making in multilateral fora?
>> PAOLO LANTERI: Well, thanks for the question. I found very interesting the opening remarks because they touch upon most of the issues that I was ‑‑ I'm going to refer to.
It's interesting, we are all talking the same language at the end of the day.
I believe that we have many recent and present experiences from which we can learn a lot in the context of the actual negotiations in copyright policy at the international level. Not only mentioned the diplomatic conferences but also several sessions on copyright rights, which is possibly the best example of multilateral fora that develops international copyright policies in terms of norm setting.
So what we learn is that in a way or another, multilateralism can deliver under certain conditions, and first of all, we need a political engagement, a commitment, and in this field, it's essential to the life of multi‑stakeholders group to advise and create political attention on important issues we are concerned about. That's the first step.
Then we need defined objective, realistic scope allowing focused negotiation of member states.
Another and possibly is the most important lesson we have learned, we refer to that lesson, is the challenge of consensus. There is a non‑written rule within WIPO of norm setting processes is that no one can disagree on the process. We have 186 member states, almost double number of observers, and it's not to have one member states disagreeing to stop or slow down the process. That is both the main reason for the problem, the lengthiness. I mean the slowness of the response, but at the same time, it's also a guarantee for a balanced solution.
We learn a lot about the role of stakeholders. I already mentioned it. Without stakeholders, nothing is going to happen. Stakeholders have crucial roles to place, not only in raising the political concern, but advising on a technical level member states, instructing them on what are the real concerns, the practical concerns you are facing every day. And we all know, we all know that stakeholders are doing that in the WIPO forum. So the engagement of stakeholder is our founding pillar of the multilateral process as we know it and this is true if we look at policy from a norm setting perspectives. Treaty making. But as was mentioned by all panelists, in this environment, low is only a piece of the puzzle. We have ‑‑ I mean it's not the solution. It's just establishing the general framework within the ecosystem develops every day. We have at least copyright infrastructure of the system. We have the licensing practices. We have the stakeholder agreements that can play at least an equally important role in shaping and developing policies. There is no success in copyright policy if you only limit it to low. And if it was clear looking at the legal making ‑‑ or the treaty making process that the stakeholder had major role to play, if you look at the second part of the puzzle, if you look at the infrastructure and the licensing, I believe multi‑stakeholder is in one way or another already a force, already effective in shaping the copyright policy and I think this is the way we should ‑‑ we can ‑‑ it's one of the ways you can look at the things, how they stand.
Then looking forward they can be certainly be improved. No doubt. But this is what I believe is a sort of an analysis of the recent years in copyright policy making in the multilateral setting of WIPO, which is the one I know the most. So I'm looking forward to further discussion on that, and I guess the next (off microphone).
>> SUSAN CHALMERS: Thank you, Paolo.
Nick, can you please discuss what you believe to be the strengths and the weaknesses of the current status quo for the development of Internet related copyright policy?
>> NICK ASHTON‑HART: Well, that's a broad subject.
Well, I guess there's something that's boast a pro and a con. There are many, many, many venues where you can involve yourself in copyright policy. The national level, in conferences, the international level as an observer to negotiations, at regional, the regional level. Now even in trade policy, we frequently see intellectual property as part of trade negotiations. An area where it's particularly difficult to actually see what's going on. If anything there are more and more venues, many of which overlap, which I guess gives people many chances to affect outcomes, but it requires you to have a great investment in travelling to places and people with expertise. Unaffordable except for a tiny minority, and it I think particularly strains the ability of developing countries and LDCs who simply cannot man ‑‑ they don't have the experts nor do they have the ability to put dozens of people in dozens of places to do this. I mean I'm continually struck by this in Geneva where, you know, me and my colleague are the two full‑time people from the whole tech sector based in Geneva and there are delegations who cover all Geneva based institutions, of which there are like 26 or 36, with two or three people and we only cover a small handful of those agencies and we can't do it. And so it's very hard, especially given that the Internet is global by nature, and you have all these fragmented places where policy is being developed. I guess inherently you have to have some of that because you have to specialize a bit. You don't want to, you know, do in trade things which aren't better done elsewhere. Just like you don't want to do things in human rights which are really trade questions. But I do ‑‑ there's a proliferating number of venues, and at some point it will become really ‑‑ it becomes very difficult to try and reconcile the result. The national legislatures I suspect it must be a really difficult thing to try and keep up with practical developments, with legal norms, when they're coming in from so many different places and yet overlap on the same policy areas.
>> SUSAN CHALMERS: Thank you.
So the proliferation of venues both creates opportunities for people to be able to participate but also creates challenges in terms of resource and tracking all the different conversations.
I'd like to turn to Giacomo now. Could you describe what you think or how you think each stakeholder group in Internet governance, so the government, private sector, civil society, and the technical and academic communities, how they can contribute to the copyright policy development process, and what are the responsibilities of these actors in doing so?
>> GIACOMO MAZZONE: I think that for us, multi‑stakeholder is means something that is in the DNA, because within the EBU, we have members that are state broadcasters. We have members that are private commercial enterprises, and we have members that are foundation and so are related to civil society, and they have a direct link to the citizen. So multi‑stakeholder is something that we are used to.
The essential requisites for progressing and finding solution is the good faith of all the participants, because of course there are some situations in the copyright issue that ‑‑ where there is those that try to stop the process, could take advantages of stopping the processes, because they are all in the situation in which they are gatekeepers or they are in a situation in which they get excessive remuneration or others don't pay nothing so they don't have any interesting to have any kind of remuneration.
So this makes this question very difficult, because simply staying, sitting on a problem and not solving it could bring advantages to everybody.
To at least part of the ‑‑ of the contest. So I think the essential requisites is that we have to look at the long term, because in the long term, I think the interests of everybody is to have a system that works. Only the short term perspective is an advantage, and then I sit on this advantage.
So of course as every negotiation you need to renounce something of your privileges and your advantages of today in order to have a more stable and effective situation for the future. So the first requisite is the good faith.
The second is the will to go to a solution soon, because when we started the process at the IGF in Tunis, we said we need five years more to reflect about the changes that we need to bring to the situation. Then five years later, we said, oh, we need another five years to think about that. And then with the election of the secretary general, that doesn't want to be bothered by this kind of nasty thing, et cetera, et cetera, so we are going around in circles. This doesn't work. You see what the Brazilian initiative I think that is staying that we cannot continue to going in circle without tackling the issue and trying to solve the issues.
I think that we need to have this positive approach. We need to take some risks. We need to negotiate. And this negotiation could be managed by the stakeholders, if not multi‑stakeholders but knowing at the end of the day the copyright laws are national laws. The government role is essential. You need to convince them that they have to keep away part of the ‑‑ they have to give away part of their serenity. In the European Union, this is a very lengthy process, not always successful, but at the end of the day, or at the end of the year, or the end of the decades, or the end of the 50 years, we achieve something, and I think that we have to have the same approach if we want to achieve something in this direction.
>> SUSAN CHALMERS: Thank you.
And we will turn to Konstantinos for the last question.
Konstantinos, please describe what you imagine would be the best model for creating international norms for the development of Internet related copyright policy.
>> KONSTANTINOS KOMAITIS: Thanks, Susan.
So many things that copyright and the Internet, and I think that's where, if you want the debate started many, many years ago on that basis, and we spent a lot of time discussing how incompatible copyright on the Internet is, and first of all, we really need, it's about time we step away a little bit from that rhetoric, because the Internet and copyright are not so incompatible. Copyright is about creativity. The Internet is about creativity. Copyright is about progressing ‑‑ the progress of science and the Internet is about innovation.
So in the context of these discussions, a lot has to do with process.
The Internet society is a strong supporter and advocate of the multi‑stakeholder model, and this is not accidental and the multi‑stakeholder model did not really appear out of a sudden in 2005 in Tunis. If you look back and you speak to the technical community, a lot of the principles that they have applied in setting the standards of the Internet have ‑‑ you can see them being reflected to a certain extent within the multi‑stakeholder policy making model. I'm talking about due process. I'm talking about inclusiveness. I'm talking about voluntary adoption of standards. So it is very ‑‑ it is essential that we start thinking more of process and people for example failed for two very clear reasons. As well as ACTA. ACTA failed because a lot of stakeholders felt that they were not included and their only option at least in Europe was to take on the streets, and also because there were some aspects of the proposals that were touching upon the Internet and a lot of people felt that they could endanger the architecture of the Internet and the way it works. So these are two great lessons, that we need to reflect on and that we need to learn from.
So when it comes to the procedural aspects, multi‑stakeholder participation takes a long time. It's slow. I know. It is arduous, it is tedious if you want. It requires some very difficult discussions and it requires some more difficult compromises. But at the end of the day, it provides also the ability for everybody to sit at the same table and have an exchange ‑‑ and exchange ideas and exchange knowledge and know how and we need that, because we need the technical community on the table because they need to tell us when we're suggesting something that this is really not working for the Internet. We need the industry for the exact same reason. They have the many years of the institutional knowledge of how to do things and we need civil society because through the Internet, civil society has actually found the tool that they feel that they can be heard. So it is very important to make sure that we include them.
Now, what this inclusion means, Paolo said that multi‑stakeholder participation is already in process. Sure, but I don't think it has fully materialized, and for many, many people and we've heard it yesterday, we've heard it days ago where at the high level meetings, we're hearing it if you want directly or indirectly, a lot of people are using the term without fully realizing what it is.
We are in a process of turning multi‑stakeholderism, you know, making it more of a trend than actually trying to figure out how we can all sit down and work and try to figure out what is happening.
The culture is changing, and the culture is changing really, really fast. The culture is being shaped by the Internet. This is definitely.
So if we really want to make sure that we take advantage of this culture and we provide some answers and some forward looking, we really need to adopt to this culture. This is our job.
How we're going to do that is, I don't have an easy answer. If I had the easy answer, I think I wouldn't be sitting here. But one of the things that I'm sure is that if we sit down, we can learn from one another, and then the solution most probably will come, and this is ‑‑ so the idea of actually providing everybody a voice should be really unnegotiable and should be the minimum standard of multi‑stakeholder negotiation.
>> SUSAN CHALMERS: Thank you very much, and thank you to everyone.
Ellen, just wanting to touch base. Do we have any questions from ‑‑ yes, we do.
After we take questions from remote participants or comments, then we'll open it up to the floor for questions for the panelists.
>> ELLEN BROAD: I'll just check that it's still just the two, and do we have the ability to turn the mic on for the remote participants or not? Because one is offering to just say it himself if we can turn the microphone on. If not, it doesn't look like it. So I'll read it out.
So I've got two questions. I'll ask the latter one first because he's still communicating on the remote discussion.
It's in relation to moving from like national based copyright policy making to an international based. And he's asking in reference to ‑‑ it comes out of Konstantinos' comments but I think it relates to quite a few of the comments made. In reference to due price estimates and establishing that at the international level and he's saying it doesn't necessarily exist transnationally as it does nationally and the question is how do we secure our fundamental liberties in a newer context so that copyright policy operates? It seems to me that the problem at the international level is that we rely on legal traditions that are founded on acts of the people that set the rights prior to acts of the government, including statutory rights including copyright to secure fundamental rights. And I think that's the end of the question.
Sorry. There's still some conversations going.
So the question is how do we secure our ‑‑ I think the summary of the question is how do we secure our fundamental liberties in the multi‑stakeholder context if we move to an international ‑‑ away from national based copyright policy making so that copyright ‑‑ to secure fundamental liberties.
>> SUSAN CHALMERS: Crystal. So I think if we were going to ask the question, we're just looking at maybe how to secure these fundamental rights are taken into account and at the international level. So would anybody like to take that question on?
>> KONSTANTINOS KOMAITIS: Okay. So if I understood this right, I don't think it is very difficult to do that. I mean all laws and all legal regimes, including that of copyright come with ingrained, if you want, fundamental rights, I mean we see fair use within copyright. So reflecting those into an international context, first of all it's not an issue. They're already there. The multi‑stakeholder, what it does, and this is the great thing, that by allowing everybody to actually have a voice and provide their input, sort of enhances and secure those fundamental rights and fundamental liberties, and a lot of people do not see because it is not crystal clear, but the question is not whether we can ‑‑ whether we can promote fundamental rights and fundamental liberties within international copyright discussions. The question is how to do that in order to take into consideration a wide spectrum of stakeholders participating in that. And we always tend to forget, for example, many, many times in those discussions, we keep on forgetting, I hear that it's a tension between civil society and the content industry. Why do we forget the technical industry and they have their own values. And if you sit down and take those values separately, you will see that there are more commonalities than differences, and that may be a very good starting point because they also reflect fundamental rights and fundamental liberties. It's just that we use different ‑‑ different stakeholders use different terminologies.
>> NICK ASHTON‑HART: This reminded me of something. So we're using the Internet to be sort of almost persuaded that multi‑stakeholderism is a recent invention that comes from the Internet, and in fact it's very old. There is actually a UN agency called the international labor organization which I believe was founded in 1909. And it had the same fundamental problem. How do you create ‑‑ how can you allow labor standards to be created solely by countries, when the employer and the employed are the actual participants in this, and so the ILO was created with governments, employers, and unions all having a role in making international labor standards. So it is actually possible to reconcile these things, and there are some ‑‑ there's some ‑‑ an interesting analysis that was done because of course in ICANN there's a continuous debate and has on how to involve ICANN structure and make it more international and less like a California company in the view of some, and Hans Corel the jurist did an analysis in 2006 on the different forms that exist, aside from simply treaty based organizations and the ILO is treated in there and so if you want to find some examples of how different communities over time have solved this need to have more voices at the table and more involved in a decision than just one or two, I think that's part of it.
>> SUSAN CHALMERS: Thank you. Paolo and Giacomo, do you have anything to add?
>> GIACOMO MAZZONE: I think a part of the question was not very clear, but I think the essential reflection to be made on that is that we have in the copyright issue different kind of rights that conflict among them. Human rights, I mean. There is the right of the producer. There's the right of the owner that want to have his intellectual property properly remunerated. Others there will be no communication in the world. There is the right of the citizen to have access to this in a fair, easy and possibly cheap way. So the problem is all exactly that. How to bring together all these rights in a hierarchy and being fair all along the process, not forgetting any of that. And I think that multi‑stakeholder process is one of the best way to remember and everybody could claim his own rights, then the problem is that at a certain point of the process, you need to assess who has the right to do what and until which point each interest has to be protected or has to be sacrificed in the same of the general interest. The collective interest is the main point that has to prevail. That is why we have to look in the long term because if we look in the short term, we will never get out of the problem.
>> SUSAN CHALMERS: Paolo.
>> PAOLO LANTERI: I need to make a few comments on this point. First of all, the audience of human rights, there are others in terms of international context. As we focus on copyright as has been pointed out, there are some conflicts in the system, but those conflicts are balanced first of all in the system, within the system and the normative process lead to that regulation as we came out of broad participation and then ultimately the process is led by governments. And in this current context. So I wonder whether the question, how do you sort of guarantee respect of human rights in a process where we don't have a direct word but we have to remember that it's a different layer. But you also have possible multi‑stakeholder participation at the national level and governments are entrusted and they themselves have all the interests in respecting human rights in this process.
On the side, in terms of procedure, a multilateral organization, an organization like WIPO has for instance very solid rules for participation, within the rules of procedure, NGOs can have quite low level of requirement to be member of the ‑‑ of service body, and therefore there is really I don't see human rights at risk in the current multilateral framework. That's my point. And there is quite high level of transparency in the way norm setting is developed in the current setting.
>> SUSAN CHALMERS: Thank you.
So let us all be a bit more multi‑stakeholder ourselves right now, and I'm going to ask the panelists to list their questions to the audience, and I think we'll just list them all at once. If you guys wouldn't mind writing them down and keeping them in your minds, and then electing just ‑‑ electing to respond to whichever one you'd like to, and then we're just going to have a discussion.
So if we could just ‑‑ who would like to start first? I mean Nick, you are the ‑‑ you already asked a question, but would you mind reiterating?
>> NICK ASHTON‑HART: If I can remember what the question was, I would.
>> SUSAN CHALMERS: Did I write it down?
>> NICK ASHTON‑HART: Jet travel and I are not on friendly terms, I'm afraid.
>> SUSAN CHALMERS: Yes.
So I think it was really just relating to the venues. We're looking at the characteristics of each of these different venues for the development of copyright policy, was kind of the gist I think of what you were asking, but maybe we can just go to another panelist.
>> PAOLO LANTERI: So my question was given the current status, what would be a realistic suggestion for improvement, practical suggestion, for improvement of multi‑stakeholder participation in none setting processes at the international level. I would be curious and happy to hear your views and suggestions.
>> SUSAN CHALMERS: Does anyone have a question they would like to ask the audience? Giacomo?
>> GIACOMO MAZZONE: Yes, my question is about the public domain. I think that the next endeavor for the WIPO after the treaty for disabled and blind would be the public domain, because as broadcasters, I think that this is the same problem for all the Internet community, we suffer a very different range of national definition of what is public domain or non‑commercial use or education purposes. All this gray area where there are a lot of abuse.
For public service broadcaster, this is particularly crucial and important because as you know, most of the contents that we produce are remunerated and paid by citizens, so in a certain sense, they belong to citizens. This is different from commercial broadcasters of course or other content provider, but for us the citizens pay for this content. So when they have full right to access to these contents, this is a problem that is larger than us, and I think that may have a certain expectation of the Internet community too.
>> KONSTANTINOS KOMAITIS: Thanks, Susan. So how can we make sure that we find a way to marry the different discussions in the different fora on international law making. And when I say that, I mean discussions here at the IGF, discussions happening at a national and international level, but between governments and also discussions happening through FTAs, free trade agreements, so we see different discussions happening at different levels. How can we make sure that we marry all these discussions in order to achieve essentially what I believe we want to achieve as a common goal.
>> NICK ASHTON‑HART: I'll ask a more specific question than a general one. How can we design discussions about changes to the copyright system such that they are outcomes based and incentivize participation in them, not simply for acquiring rights, but for the responsibilities of exercising them, because I think there's a lot of focus on people want rights of various kinds, but there's less attention paid to. But how are those to be used and for what?
>> SUSAN CHALMERS: Thank you all. Excellent questions.
And now Stuart and I will roam. Please. Please state your name and your background if you'd like.
>> AUDIENCE MEMBER: Hello. I am Janis Karklins, I'm from Finland, and I'm part of an NGO but I'm also a composer and I make school books so I'm pretty much accustomed to copyright issues and things concerning that. So what I wanted to point out is how to improve concrete way the multi‑stakeholder part is as a person who makes materials that are by default copyrighted, I very often find that many of the organizations that say they talk on my behalf on everything, I really don't feel like it as the creator myself, and one of the parts I would really like to rise higher in the multi‑stakeholder discussion is academia, because I keep reading again and again about papers saying that DRM, it didn't help. It made people buy less. It didn't help create things, about copyright extensions. It actually made books less available instead of more available and so on and so on and so on. And I find it pretty cruel that these sort of studies are not really ‑‑ they are not discussed in newspapers. They are not really discussed in parliaments. They seem to be sort of a minority to really be considered, and I find this pretty odd, and slightly disturbing.
>> SUSAN CHALMERS: Thanks. And this is ‑‑
>> STUART HAMILTON: Susan, we have a gentleman over here.
>> SUSAN CHALMERS: Oh, sorry.
>> AUDIENCE MEMBER: My name is Luta Kaiser from the Netherlands. In the last five years I've been a processor for CEOs. So I want to address two questions of the gentlemen actually your question about suggestions for realistic approach for the multi‑stakeholder discussion as well as the design of the discussion actually. I thought that kind of matched up.
Well, having some experience in having multi‑stakeholder discussions in a different type of setting obviously, one thing that I found out is that, and actually my colleagues from the future firm and Oxford leadership academy, is that in most cases, having a discussion in a setting like this will not change anything. Because people are just standing up for what they want to put out, and that's it. So I know it's going to take a lot of effort, and a lot of strength and stuff like that, but we need to get outside of conference halls. We need to start sharing a little bit more of where we come from in a different type of setting, and design a process that will definitely lead to a result. And that's the problem with most of these discussions of multi‑stakeholder, it's just about the discussion. So there's no design that works towards a result and at the end it's up to us, you know, here and on different platforms as well, if we decide that we want to truly make a change, and I mean at the end, we need to make compromises all of us but we can only do that if we understand a little bit more where we come from. And that will never happen in a static situation like we have all these multi‑stakeholder approaches. So we need to get outside these conference rooms, and we need to get inside each other's lives, and really design a process on top of that which will have a, you know, have a result and there will be compromises there. It's up to us, and I've seen a lot of these now, and yeah, we can do this for another 15 years. I'm fine with that, but, yeah, thank you.
>> SUSAN CHALMERS: Thanks very much, and just I had hoped that we could have set the room up in a circle, to be honest, but unfortunately we could not.
>> STUART HAMILTON: Actually I'm going to organize a privilege, because that was kind of interesting, but can you give us an example of something that's been successful like that? I mean I think it is kind of easy to say that we should get out of here and go somewhere else, but can you give us an example?
>> AUDIENCE MEMBER: Well, one example is from a business perspective. I've been working with the CEOs of Arkadis, it's one of the biggest engineering companies in the world. They bought up a couple of very huge engineering companies, for example in the U.K., the biggest one there. So what happens there is there's a multi‑stakeholder approach within the company itself, because there's different companies that they bought up, and they have to get aligned all of them. Well, that will never happen if they stay in their offices. So what happened we designed a journey basically, a journey that will take people on literally a physical journey for a couple of days and in those days, we design a process that will truly get people closer together and focus on the result for Arkadis that's a global strategy that will engage all the different businesses within Arkadis. So again it takes time, and it takes a lot of effort. You have to put in money and stuff like that, where you're not used to put your money, but at the end, Arkadis right now, we will see ‑‑ but I'm sure that Arkadis in the next five to ten years will actually grow a lot more, and, you know, truly get some results done. And we see the tower for example in London which they are building right now. That's one of the big one in London. I can't remember the name right now. But those are multi‑stakeholder approaches within construction and engineering that came out of these processes. So I don't know if that clarified a little bit. And otherwise I'll be happy to show some more stuff, but we need to do that outside of here.
>> STUART HAMILTON: Obviously the panel will come back and respond. Is there anybody else that would like to respond or make a point? We have one over here.
>> AUDIENCE MEMBER: I'm wondering if there's anyone in the room who is familiar with the modernization of the Canadian copyright act and what became the balanced Canadian copyright act and a man named Michael Geist, hands up? That's great. I'm surprised it hasn't come up as a kind of example advocacy led activities and civil society and town hall meetings and public awareness of copyright that thanks in part to Michael Geist and his work led to a lot of activity and eventually a multi‑stakeholder approach to copyright legislation in Canada and I think that's a good example of where activities and advocacy for the general public led to a really positive outcome on behalf of content creators as well as the general public. So I don't want to speak too much on behalf of Michael Geist who I met in Bangkok a few weeks ago. But I thought that's a really good example of how through a more organic and blog based activist based process, a multi‑stakeholder approach was sort of forced on the Canadian government and I think there was quite a good outcome as a result of that.
>> AUDIENCE MEMBER: I'm Angela Daly, I'm a legal academic at the Swinburn institute for social research in Australia and just after that example of a good multi‑stakeholder process for copyright policy and law formation. I'll give you an example of bad multi‑stakeholder process which is the negotiations currently under way for the transpacific partnership agreement which is going to affect the Asia Pacific region and it seems it will bring about some major reforms to copyright law, and similarly there's speculation too that the trans‑Atlantic free trade agreement has negotiations I believe have just started will also include copyright provisions. Like I say this is has been a very un‑multi‑stakeholder friendly process and the negotiations have been in secret. We've only seen what the content of them actually is as a result of various leaks, and even parliamentarians in some of the parliaments of the countries involved don't know what's going on. So I have to say I am pretty pessimistic about the process of multi‑stakeholderism in copyright law and policy formation as a result of what's going on in my part of the world.
>> STUART HAMILTON: I think we have a gentleman with the microphone there. I'm going to go here and then here, but I think first ‑‑ are you ready sir?
>> AUDIENCE MEMBER: Yeah, sure. My name is Nick Hilliard. So I'm in the technical community. And in a previous lifetime I was acting as expert witness in the EMI and others versus Aircom legal suit in Ireland.
This suit resulted or at least was a part of the process of relationships between the copyright holders to the service provider community. And there were a lot of issues, both within and without the lawsuit itself, which exacerbated the problem and which has caused a lot of division between the two sides. And I'm trying to work out how we can get from there to a much more positive multi‑stakeholder approach.
>> AUDIENCE MEMBER: Okay. Hello. I'm from public citizen. I want to ask some comments on the transpacific partnership and we've been speaking here about the multi‑stakeholderism and when we talk, like at my organization has attended all the TPP advance, and we've been going to all of the Pacific countries and we've been attending those negotiations as a stakeholder and when we talk to the guests here, because we are really concerned about the process and it's not transparent, we have no access to tax, obviously the IP tax is there. We know what the U.S. has been asking but the problem is every time we talk to them and we raise our concerns, they were like it's transparent. You know? There's a stakeholder date and we go there and we're with the stakeholders, and with the industry we make presentations to negotiators and we can't make appointments with negotiators, we can't tell our concerns. But the problem is ‑‑ not the problem. The important thing is what happens after the stakeholders stake. Because the thing is stakeholders all around the TPP countries, they come that day, they make their presentations. They meet the negotiators, if they are lucky, and then they leave, but what happens is, the industry people, they stay there and they do lobbying. And when we talk about the multi‑stakeholderism, the important thing is there is another game there which is lobbying. My organization is based in the U.S., based in Washington, D.C. And we know what has been going on in the Congress, so the thing is like it's good to sit on the same table with industry and discuss exchange views, but you know when you go out of that room, they will keep on going ‑‑ doing their own game. And it's all about the lobbying, and unfortunately the copyright policy, international copyright rule making is all about the lobbying powers, and as civil society, we don't have any lobbying power.
>> SUSAN CHALMERS: Thank you. We'll take one more intervention from the court.
>> STUART HAMILTON: Actually we have two more. One here and then down in the front.
>> SUSAN CHALMERS: Sorry.
>> AUDIENCE MEMBER: Thank you. My name is Claudio Ruiz, and I'm from an NGO from Chile. And I would like to support what was recently said, because one of the things that I wanted to share was actually about the TPP, not because I'm obsessed with it, which I am, but especially because when we're talking about multi‑stakeholderism and when we're talking about Internet regulation and such, we need to have our feets on the ground and what is happening right now at this days is there's a couple of people discussing about important things about the copyright into the future of the Internet, in a secrecy way, with no transparency and using the word multi‑stakeholderism or transparency. So I think it's kind of dangerous for me to just having this kind of support about the multi‑stakeholderism when we don't have a very clear idea when we're talking about multi‑stakeholderism, like Paolo mentioned at the beginning.
So this is my first point.
And the second thing, well, we are talking about procedures here, in some part, but I think it's important to just think a little bit about what is wrong with the copyright procedures today. And therefore I think it's quite important to think critically about what is ‑‑ has been happening the last hundred years about how the copyright policies are made. Therefore to think a little bit more about what the copyright of the future should shape, taking into account procedures like multi‑stakeholderism, for instance or taking into account what is happening in reality and what is happening when the Internet becomes something important and it becomes a change and has the practices that we haven't had in the past.
>> AUDIENCE MEMBER: I'm from Nigeria. I think the major solution to all the stuff we are saying is global governance. This is a process whereby we promote equality among nations. That is the only solution. Because when you promote equality among nations, human rights, transboundary, leg up processes and policies will be resolved. One works in another country should be able to be guaranteed in another country. Currently we do not respect bilateral or multilateral agreements. You see nations going into bilateral agreements at the end of the day, everyone takes advantage. So why not we set up a global governance system? Because the Internet of change has globalized us.
>> STUART HAMILTON: So I think we can ask the panelists if they heard anything they like or anything they want to throw back to the room.
>> NICK ASHTON‑HART: Go ahead.
>> KONSTANTINOS KOMAITIS: So very quickly and I will try to cover as many of the interventions as possible.
First of all, I wouldn't really rush to disregard what's happening here and what's been happening over the past eight years in terms of discussions. I believe that we really need to continue these discussions. The IGF may not be having any decision making power but it certainly has the power to be shaping decisions and I would hope that people are taking those ideas that they hear in this space and they take them back and transform them into tangible outcomes.
I am very glad you've mentioned the Canadian experience. It has been a very interesting experience. The same more or less experience, not to the same degree, has been happening in South Africa. For me the question is how we take those national experiences and we transform them into international normative law making. And this is why we really need to ‑‑ and this has been allowed because of the Internet, we really need to start looking at those best practices if you want, and start seeing whether we can actually incorporate them. Some of them will not be able to do so, but for others, we will certainly be able to take and at least try to adopt them within the international scene.
And lastly on the issue of the TPP, which is a bigger issue relating to free trade agreements, this is a very, very tricky area. I mean free trade agreements, well, trade negotiations ‑‑ negotiators are not really doing anything differently than they were doing 20 years ago. FTAs were always conducted behind closed doors and suddenly because we are talking about the Internet, we cannot just automatically clap and open it up. And this is possibly if you want one of the trickiest parts of copyright policy making. ACTA failed because of that, and the TTP, the negotiators, before the negotiations started, promise at least to the European citizens that these discussions will be open to the extent that information would be shared. So far of course the negotiations have not progressed that much, but so far to the extent that they have become more transparent, yes, there is more information provided, but again that information is not enough. A lot of people are depending on leaked texts and in an age of information we should not really be depending on leaked texts. I mean those texts should become available to people because those texts keep on changing all the time.
So in the context of FTAs, we really need to try and find a way to insert the notion of inclusion in a more concrete way. And it's going to take again time. It has taken time in other fora, I'm sure, even within WIPO. But I will tend to agree with the interventions that multi‑stakeholderism is not really manifested through FTAs and if we really pay attention to what's happening, and as I said, it was a waking up call. We suddenly realized that we cannot be doing business the way we used to do in Europe. So this message possibly needs to be taken and become more global, especially as we see multilateral free trade agreements emerging and intellectual property issues being part of those agreements.
>> NICK ASHTON‑HART: Well, just a few things struck me.
As an industry person, I've been bemused by the ‑‑ how much I feel similarly about the trade question to public interests groups, because I don't know of anyone in industry who actually finds the level of secrecy of trade talks anything about frustrating, ironically enough. I actually get more leaked information about negotiations I follow from public interest groups than I do from the countries themselves, which is very funny considering that I ‑‑ there's a major trade talk going on in Geneva, the trade and services agreement. I see all those countries regularly and they're all afraid to give the documents out because some other negotiator on another country will get mad at them. But so I think this is an area of international policy along with peace and security policy that is very secretive, and there is increasingly a demand that both should be more open. And I think that demand will be answered. You saw in ACTA that it caused the failure of an agreement. I think the countries are aware they can't keep going as they are. There are some countries that are more willing to change than others, but I think they all recognize that they must change. They just haven't found a way to balance everything out yet. So I think we all have to push and I think there's actually a common interest. I think there's a lot of industry who are just as interested in improvements as the NGO community is.
On the question of equality of states, I think right now we have a situation which all states have one vote in the UN system, but that is not an equal vote. I think we should think more about equity of participants than votes or equality, because I think if we have systems of decision making which people see as equitable, as producing equity, that will be more durable, and that seems to me to be what is missing in a lot of fora is ‑‑ all across the board, I think many communities see their ‑‑ they're not equitably represented. Or feel unrepresented entirely. I think that's really the challenge.
I should note that while we're talking about the status of the IGF as a negotiating forum, the world summit on the information society's ten year review is of course in 2015, and today in the second committee of the UN general assembly in New York, they are talking about what the review should look like, so by the time we leave here, maybe, we may actually know more about what direction WSIS is heading in and therefore also the IGF.
>> SUSAN CHALMERS: Thanks, Nick. I'm just mindful of time. Paolo and Giacomo, if you could ‑‑ if you'd like to reflect on any of what was just discussed and then let's take a really quick like one minute summary, closing remarks from the panel. Unfortunately I don't think we'll have time to get to the remote questions.
>> PAOLO LANTERI: Okay, very briefly, I was going to comment on the issues raised but we don't have time, so very briefly, the problem for instance of the problem of representation. The certain kind of lobbying, the lack of a common definition of multi‑stakeholders. This is definitely the first step if we want to build something on top of it. How would that work? Would that work on the basis of consensus, like the member states process. So the first comment would be that.
And secondly I wanted ‑‑ it was going to be probably be my first initial remark. I described the situation from the multilateral setting of a United Nations agency. I was not describing the overall setting of international copyright system. So from the WIPO perspective, looking to multilateral and bilateral agreement. We are a member state organization. Member states set our agenda. So in our forum, if you look at what WIPO is currently doing on a day‑to‑day basis, it's actually working towards striking a balance with the copyright system. You can look at the Senate committee on copyright agenda, we have two committees on that. One on libraries and archives and another one for research institutions and on the side we have the development agenda. And we are tackling all these issues that Giacomo just raised. The public domain. Education and research. And I personally devote most of my working time on those issues, but again this is not my boss asked me to do that, but because member states set our agenda, so I think there is a tendency that can be spotted towards the need to strike the balance, and it's clearly ‑‑ it's not my impression. It's clearly ‑‑ the rights are there. In the agenda of the committees, it's in the activities that we are delivering. So I ‑‑ let me end up by agreeing that the question of the public domain, utilizing open licensing and how we reconcile those two great different position is one of the major challenges that we are going to face at the international level.
>> GIACOMO MAZZONE: Thank you. Finally I got an answer.
What I can add to ‑‑ after this ‑‑ all this discussion is that I'm still convinced that the proper place where to discuss copyright issues and intellectual property issues is mainly the WIPO, because the expertise is there. While in the free trade agreement, on the table of negotiation, the priorities are others, and you exchange sometimes the ‑‑ because of the expected results, you step on a certain number of prerogatives that are proper to the arena where the copyright could be debated. So I think I am suspicious of every kind of debate where the main goal is another one, and then just simply forget all the rest of the ‑‑ all the needs, because it's a very delicate ecosystem when we talk about copyrights, because we have too many rights to be contemporary at the same time.
A part of that we all expect that the WSA stand will be a normative process. We will see if there will be any of that. If not, I think that the vacuum cannot stand in nature for so long. Something will happen because the situation is stagnant for so long and I think there will be another way to resolve the thing and to try to find the solution. And of course the identification of best practices as has been mentioned by many people here in the room is one of the paths that we have to follow and to cooperate actively in order to extend the best practices all over our work daily.
>> SUSAN CHALMERS: Thank you.
All right. Now you're going to go very quickly with just kind of some final thoughts, closing remarks. Please limit your intervention to about a minute and then I'll wrap up.
>> KONSTANTINOS KOMAITIS: Thanks. So extremely quickly.
I believe that all of us sitting here and elsewhere having this same discussions are operating under one common value and that common value I really do hope is to sustain the open Internet. So on that basis, I don't think that we are ‑‑ if we share that value, we are not that further apart ‑‑ that far apart. So I would really like to finish with just one thing. Multi‑stakeholderism is actually ‑‑ and I also hate the isms at the end, but it is actually working. Because there are no winners or losers. It's all about compromise. And by the time we stop compromising, then we will get to the solutions that we want to get. So the message that I would like to leave here is compromise, compromise, compromise.
>> PAOLO LANTERI: Thank you Konstantinos. Well my message would be the same of the opening remarks, that multilateralism is actually not an alternative to multilateralists, and the multi‑stakeholders ‑‑ yes, to multi‑stakeholderism, and multi‑stakeholderism is a pillar of success to success. And it can be improved.
>> NICK ASHTON‑HART: I'll yield.
>> GIACOMO MAZZONE: I just can repeat what I said before. We think that we have to identify best practice and work around that and try to extend this best practice to try to give the most appropriate solution. I think that if we are able to deliver a treaty that will define what the public domain is, this will already solve a lot of problems from the field and then we can concentrate on the rest of the other issues.
>> SUSAN CHALMERS: Thank you so much.
And thank you. Thank you panelists. And thank you to everyone who has attended this session.
I just wanted to say that while I think Internet and others are listed as the organizers, we all chipped in in organizing this session, and I want to thank all the organizations that are represented here for contributing to the formation of this session.
Also if ‑‑ I'm sorry we can't have more discussion today with the floor, but I think that we will ‑‑ we will be developing kind of a report, a summation, of what happened here today. If you are interested in following the discussion, please give me your business card, and ‑‑ or otherwise you can send me a tweet at Susan underscore Chalmers, and just let me know if you would be keen to receive that report so we can continue the discussion.
And with that said, everybody have a lovely day and enjoy your lunch.
Thank you very much.
(End of session.)
This text is being provided in a rough draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.