Infosoc2012

TY CIE SO

CON SU M E

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C O N S U M E R S I N T E R N AT I O N A L

CONSUMERS IN T H E I N F O R M AT I O N SOCIETY A CC E S S , FA I R N E S S A N D R E P R E S E N TAT I O N

KUALA LUMPUR

2012

About Consumers International (CI)

Consumers International (CI) is the only independent global campaigning voice for consumers. With over 220 member organisations in 115 countries, we are building a powerful international consumer movement to help protect and empower consumers everywhere. For more information, visit www.consumersinternational.org.

Published and produced by: Consumers International Regional Office for Asia Pacific and the Middle East Lot 5-1 Wisma WIM, 7 Jalan Abang Haji Openg, TTDI, 60000 Kuala Lumpur, Malaysia Tel: (603) 7726 1599

Fax: (603) 7726 8599

Consumers in the Information Society: Access, Fairness and Representation Edited by: Jeremy Malcolm Cover design by: Andrea Carter Production by: R Shanmugam and Jeremy Malcolm Printed by: Makmur Millenium Enterprise

Š Consumers International. Some rights reserved.

Creative Commons Attribution-Share Alike 3.0 Licence creativecommons.org/licences/by-sa/3.0/ ISBN: 978-0-9567403-9-7

Contents

Preface

5

A

9

1

2

B 3

C

Access to knowledge Consumer Protection and IP Abuse Prevention under the WTO Framework Dr George Yijun Tian

11

Introduction to Digital Personal Property Paul Sweazey

53

Broadband Global Consumer Survey on Broadband

By Jeremy Malcolm and Elyse Corless

Consumer Rights and Representation

73 75

91

4

Information and Communication and the Rights of the World’s Consumers in the 21st Century: Updating the UN Guidelines for Consumer Protection Robin Brown and Jeremy Malcolm 93

5

The UN Guidelines For Consumer Protection: Making Them Work in Developing Countries Robin Brown

113

Public Interest Representation in Global IP Policy Institutions Dr Jeremy Malcolm

141

Arresting the Decline of Multi-Stakeholderism in Internet Governance Dr Jeremy Malcolm

159

Public Interest Representation in the Information Society Norbert Bollow

181

Mapping “Public Interest Representation in the Information Society”: A Network Analysis Experiment Dr Elena Pavan

215

6

7

8

9

Preface

The papers in this book cover a variety of very current topics, such as fighting the abuse of intellectual property rights, safeguarding consumer rights online, and expanding consumer representation in bodies making policy for the digital age. Whilst you might suppose that these would be new areas for the consumer movement, they are not that new to Consumers International. CI has in fact been at the forefront of advocacy on many of these issues for more than 30 years, long before they enjoyed broad public awareness: A. CI led other non-governmental organisations (NGOs) in campaigning against patent protection for essential drugs as long ago as 1981, arguing that these were “too important to be left in a monopoly domain.”1 We were also amongst the first global NGOs to speak out against the addition of intellectual property (IP) rules to the global trading system (through what became the TRIPS Agreement).2 Our members, too, were early campaigners against the abuse of intellectual property rights, with the Hong Kong Consumer Council writing in 1999 that “Intellectual property rights and protection, once the tools for technological, industrial and intellectual advancement have now also become the instruments through which unfair market practices are executed”.3 B. CI and its members were also well attuned to emerging issues around consumers online. In 2001, for example – the same year when Wikipedia was launched – CI conducted a research report Privacy@Net,4 which exposed concerns about tracking by online advertisers. These concerns are only now being addressed a decade later, through the development of a “Do Not Track” standard by the World Wide Web Consortium (W3C), in which CI is participating.

C. CI has also been involved for many years in addressing the lack of representation of consumer interests in policy-making bodies, including those most relevant in the digital age. In 1994 we wrote of the World Trade Organisation (WTO) that “the lack of provision for the involvement of other interested parties such as consumer organisations in the working of the WTO . . . is a very serious flaw and one against which NGOs will have to fight against”.5 1 Sim, Foo Gaik. “Partners in the Third System: IOCU and Other Social Movements,” in Sim, Foo Gaik (ed).

IOCU on Record, Yonkers: Consumers Union, 1991, 113, p. 116.

2

Evans, Phillip. Unpacking the GATT: A Step by Step Guide to the Uruguay Round. London: IOCU, 1994, p. 39.

3

Hung-yuk, Anna Wu. “Intellectual Property and the Consumer,” in Rachagan, S Sothi (ed). Consumer Protection in the WTO Era, AIDC-IACL, 1999, 223, pp. 224-5.

4 Privacy@net: An international comparative study of consumer privacy on the internet. London: Consumers International, 2001. URL: http://a2knetwork.org/l/1z.

5 Evans, Phillip. Unpacking the GATT: A Step by Step Guide to the Uruguay Round. London: IOCU, 1994, p. 9.

6 Conveniently enough, the above labels A, B and C are also the acronyms for each of the areas in question, as used on our dedicated website http://A2Knetwork.org and in this book. “A” stands for “access to knowledge” (or A2K), a term which did not even exist when CI first began campaigning in this area, but is now used to describe advocacy for intellectual property reform and other policies that help to democratise access to culture and knowledge. The papers on this topic are collected in Part A of this book: • Dr George Yijun Tian investigates how the consumer movement can tackle intellectual property abuse, within the framework of the WTO TRIPS Agreement. Whilst the TRIPS Agreement is perhaps best known among A2K activists for imposing inflexible IP obligations upon WTO members, in fact it also contains a number of concessions to the public interest. One of these is that it allows member countries to pass laws that restrict the abuse of intellectual property rights (IPRs). Until now this provision has mostly been used as the basis for laws to prevent the anticompetitive use of IPRs. However, Dr Tian notes that its use is potentially much broader, also allowing countries to pass laws that inhibit the use of IPRs to infringe consumer rights. He provides examples of this from the consumer laws of Australia and Brazil, and closes with recommendations for other countries, particularly developing countries, to be more flexible in how they act against IP abuse.

• Paul Sweazey takes an alternative but equally interesting approach to tackling one of the most insidious problems with intellectual property that confronts consumers in the digital age. The problem that he identifies is that consumers expect to be able to use digital copyright works as if they owned those works, just like they could own their analogue equivalents. But whereas a paper book can be lent, scribbled upon, quoted from, gifted, and so on – all without the knowledge or permission of the publisher – an e-book frequently contains restrictions that prevent the consumer from doing some or all of those things. Sweazey’s proposed solution comes not in the form of a law, but rather a technical standard for “Digital Personal Property”.

Digital works that comply with this standard would approximate, as closely as possible in the digital world, their analogue equivalents. So for example, consumers could share them at will with their family and friends – but not with strangers. This intriguing proposal therefore has the potential to appease both consumers who are worried about digital works that they don’t “own”, and also publishers who are concerned about piracy.

“B” stands for Broadband, which is the subject of a major global campaign of CI called “Holding Broadband Service Providers to Account”. This new campaign aims to empower consumer organisations around the world to demand more equitable and accessible broadband service offerings, respecting consumers’ rights and broader human rights, as a necessary condition of achieving a socially-inclusive information society.

The first report of this campaign may be found in Part B of this book, and reveals: • Broadband Internet access at home is by far the preferred way for the consumers that we surveyed to access the Internet. Too many of them had one big problem with their connections: speed. Frequently misadvertised, often unpredictable, and in some regions too slow all around, Internet speed is a great source of frustration for consumers, and therefore will be a focus of our broadband campaign during 2012.

One of the speakers who doesn’t have a paper included here, Benjamin Lennett of the New America Foundation, will be presenting at the meeting that accompanies

7 this volume to describe how a campaign for the adoption of a “broadband nutrition label” could force providers to get straight with their customers about Internet speed.

• Another big problem for consumers in certain areas is pricing, with amongst the worst value for money being reported in regions that – surprise! – have limited competition. Overall, Internet services in North and Latin America were particularly overpriced, and hence we expect to focus on these regions in our upcoming campaigning activities. But even in areas where more competitors are available to provide broadband services, other tactics are used to prevent consumers from shopping around for the cheapest deal; in particular, that consumers are locked in for lengthy minimum terms. We plan to address this problem during 2012 with a campaign theme, “Don’t Lock Me In!”.

• Finally, although consumers were not unhappy with the customer service that they received from their Internet providers overall, one particular area in which we recorded shocking levels of dissatisfaction was complaint handling. In keeping with the finding about consumers’ dissatisfaction with their Internet speed, this was the topic of complaint that was handled most poorly. But complaints about other technical problems with the Internet, and about billing issues, were also badly handled. Our strategy to address this discovery will be to equip members in the most affected countries to campaign for the introduction of an independent dispute resolution service, that can deal with consumer complaints quickly, efficiently and at little or no cost to the consumer.

Finally, “C” stands for “Consumer rights and representation in the information society”, which although something of a mouthful, covers higher-level issues such as how the modern consumer’s interests (as defined in “A” and “B”) can be enshrined as rights, and how consumers can have a seat at the table of the policy-making bodies where these issues are addressed. This is the broadest, and probably the most important of the areas covered, and hence takes up the largest part of this book, with six papers in all: • Robin Brown contributes two papers on CI’s campaign to bring the United Nations (UN) Guidelines for Consumer Protection into the digital age, by adding new provisions on A2K and related issues. In the first paper, co-written with the editor, Robin provides background about the UN Guidelines and about access to knowledge. He identifies how A2K already has a foundation in existing UN human rights instruments, and demonstrates that there are already several UN bodies that have responsibilities in this field. This paper then goes on to reproduce the proposed amendments, and to explain their source and motivation. Robin’s second paper provides a much richer history of the UN Guidelines, and elucidates how consumer policy is not just about consumer protection, but also about consumer empowerment and competition policy. Going beyond the Guidelines, Robin describes what is required for such consumer policy to be effectively implemented, particularly in developing countries.

• The editor Jeremy Malcolm contributes the next two papers, which provide background on the issue of consumer representation in the information society. The first considers the mechanisms that are available for consumer participation in policy development within two particular governance regimes: environmental policy, and

8 Internet governance. Best practices in these regimes respectively derive from the Aarhus Convention and the Tunis Agenda for the Information Society, which set similar norms of transparency and multi-stakeholder participation. The paper goes on to consider how well various institutions for intellectual property policy development stack up against these best practice norms. Particular attention is given to ACTA, the Anti-Counterfeiting Trade Agreement, which rates extremely poorly.

Jeremy’s second paper continues by drawing out other cases in which the best practice of multi-stakeholder participation in policy development seems to be in decline within the IP and Internet governance regimes. He concludes with some suggestions for arresting this decline.

• Norbert Bollow follows on from this background material with a much more practical paper reporting on CI’s 2011 global survey on public interest representation in the information society, which was completed by 134 respondents from civil society organisations (CSOs) both within and outside the consumer movement. He distils the results of this paper into a very concrete series of analyses of no fewer than 41 policy institutions. He reports on which of these institutions are already well covered by consumer representatives, what mechanisms for consumer and broader public interest representation they provide, and which other institutions respondents would like to participate in if they could. Norbert reports that a dominant reason for lack of participation is lack of funding, but also that there are deep deficiencies in certain institutions whereby the framing of issues is manipulated to favour powerful special interests and exclude public interest perspectives. Using a systems engineering perspective, the paper gives recommendations on institutional reforms that could improve public interest representation in the information society.

• A short closing paper by Elena Pavan, which serves as a companion to Norbert’s, examines the same set of survey results using the technique of network analysis.

Particularly interesting is her visual representation of the survey data, showing the connections between institutions and respondents to the survey.

All but one of the contributors to this volume, along with other distinguished speakers from around the world, will be in Kuala Lumpur, Malaysia from 8-9 March 2012 to present at “Consumers in the Information Society: Access, Fairness and Representation” for which this volume serves as the collected proceedings. Whether you are a participant at that meeting, or are a member or friend of CI who has downloaded this volume from our website, we hope that you will find it informative, challenging and inspiring.

A Access to knowledge

1 Consumer Protection and IP Abuse Prevention under the WTO Framework

Dr George Yijun Tian

University of Technology Sydney

A������� In this paper, I will examine the likely effects of the WTO framework and the TRIPS Agreement on consumer protection in the IP and technological market. I will first examine whether provisions to limit IP enforcement measures on consumer protection grounds are permissible under the IP abuse provision of the TRIPS Agreement. I will then use China, Australia and Brazil as examples to examine how noncompetition law approach, particularly consumer laws, can be used to prevent various forms of IP abuse, particularly unfair terms in End Users Licensing Agreements. Some recent cases on IP abuse prevention in high technology market will be discussed by referring to consumer protection laws in Australia and Brazil, such as Sony PSN case, Google and Amazon cloud computing cases. Finally, I will provide some practical advice for individual countries, particularly IP net importing countries, to use consumer law to prevent IP abuse. It is imperative that each country, particularly developing countries, should adopt more flexible approaches at both international and domestic levels to address the IP abuse issues and to protect legitimate rights of their citizens in using new technology products and services. This is not only important for protecting consumers but also important for encouraging competition and supporting innovation.

Introduction

The inclusion of Intellectual Property (IP) law within the World Trade Organisation (WTO) framework is a profound change from the trade law framework that the WTO replaced in 1995, and its impact on developing and developed countries alike has been enormous. As many commentators noted, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is one of the most controversial international IP agreements that has entered into force.1 1 Yijun Tian, Rethinking Intellectual Property, (2009) at 27-35. See also Peter K Yu. (2009), “The objectives and principles of the TRIPS Agreement”, Houston Law Review 46: forthcoming. http://www.peteryu.com/ correa.pdf at 1.

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Its negotiations were “highly contentious”, and the “perspectives of developed and less developed countries on the role of IP and enforcement remain far apart”.2 Particularly in recent years, developing countries are frustrated by the ongoing demands by developed countries for protections and “additional TRIPS-plus demands” imposed by new bilateral and regional trade and investment agreements.3 They believe that the TRIPS and these TRIPS-plus agreements have “ignore[d] their local needs, national interests, technological capabilities, institutional capacities, and public health conditions”4 , and believe that it is necessary for the WTO and WIPO to take into account the development concerns5 and to develop a more effective regulatory framework for achieving the objectives of the TRIPS Agreement in preventing the abuse of IP and enhancing technology transfer.6 Nevertheless, most existing studies on WTO and TRIPS Agreement focus on the balancing issues in IP law and international IP trade and the role of competition law in preventing IP abuse.7 The TRIPS Agreement, in Article 8(2), explicitly allows WTO members to include provisions to prevent the abuse of intellectual property rights in their local law. Pursuant to this provision, a number of jurisdictions do regulate the abuse of intellectual property rights through competition law, such as where a rights holder refuses to negotiate a licence with a third party with the intention and effect of stifling the emergence of a new market. However, few studies have been done on the impacts of the inclusion of IP law within the WTO framework on consumer protection, and how developing countries may use consumer law to prevent IP abuse. Fewer studies have been done on the impacts of developing countries’ access to the WTO on their domestic consumers in IP market.

In this paper, I will examine the likely effects of the WTO framework and the TRIPS Agreement, on consumer protection in the IP and technological market, and whether provisions to limit IP enforcement measures on consumer protection grounds are also permissible under TRIPS. In Part I, I will discuss the limits of the current WTO framework on consumer protection, particularly the protection for the consumers in developing nations. I will examine the democratic negotiation process of the WTO regimes (including the weak bargaining power of developing countries and the absence of voice of NGOs in the formal negotiation process) and its direct impacts on public rights. Some specific examples will be given to demonstrate the potential risks that the WTO disputes resolution mechanism is used to diminish consumer rights or public rights in general. I will also explore the rationale behind these examples and call on future reform. I will use China as an example to explore the difficulties of developing countries to apply the WTO rules and TRIPS Agreement, and potential impacts (including both negative and positive impacts) on consumer protections in these countries.

In Part II, I will discuss the likely effects of the TRIPS Agreement on the protection of consumers and IPR users. I will provide a brief history review of the negotiation 2 3

Peter K Yu, above n 1 at 1.

Yijun Tian, Rethinking Intellectual Property, (2009).

4

Peter K Yu, above n 1.

Peter Yu further stated “these concerns and frustrations eventually led to the establishment of a set of development agendas at the WTO, the World Intellectual Property Organisation (WIPO), and other international fora.[2]”.)

6 Yijun Tian, Rethinking Intellectual Property (2009); Yijun Tian, IP Abuse Prevention – Computer and Security Law Review (2010).

5

7 Okediji, Ruth L. “Back to Bilateralism? Pendulum Swings in International Intellectual Property Protection” (2003-2004) 1 University of Ottawa Law & Technology Journal 125, 127; Peter Yu, above n 1; Yijun Tian, above n 1 and 6.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� process of TRIPS Agreement, and comment on whether the TRIPS negotiation process is a democratic one and how the trade-off between developing and developed countries has been temporarily achieved. I will then examine both possibilities and difficulties for individual countries to use the IP abuse prevention provision in the TRIPS Agreement to balance IP protection and consumer welfare, particularly focusing on Articles 7 and 8 of the TRIPS Agreement (on the Objectives and Principle of the TRIPS Agreement), and examine whether they provide a leeway for individual countries to use consumer laws to prevent IP abuse, particularly preventing IP abuses through unfair terms of IP licensing agreements. Various forms of IP abuse, which may harm consumers and IP users, will be examined. Particular attention will be given to unfair terms of IP licensing agreements.

In Part III, I will focus on the consumer protection laws at the domestic level. I will examine the major forms of IP abuse (including IPR abuse in the online environment) in China, and discuss how the Chinese consumer law addresses IP abuse issues. I will then use Australia and Brazil as examples to explore how to use sophisticated consumer laws to strengthen the protection of consumers and IP users under current digital environment. The recent revision of consumer law sections in Australian Competition and Consumer Act 2010 (CCA, former Trade Practices Act 1974) and Consumer Protection Law in Brazil, particularly unfair contract term provisions, will be examined.

In Part IV, I will examine some recent IP abuse cases in high technology market, such as the Sony PlayStation Network (PSN), Google and Amazon cases. In particular, it will examine how existing Australian and Brazilian consumer protection laws may deal with unfair terms in End User Licensing Agreements, and advise consumers on potential legal remedies against IP abusive conduct of IP licensors or technology service providers.

In Part V, I will provide some practical advice for individual countries, especially IP net importing countries (such as China), to use consumer law to prevent the abuse of IP. I will also discuss the possibility that developing countries, international organisations and NGOs (such as Consumer International) work together in enhancing democracy in TRIPS revision negotiations in the future. Further, I will argue that, like the TRIPS Agreement, the WTO/UN should set up the minimum requirements of consumer protection for member countries.

Part I: WTO Framework and Consumer Protection 1.1 Trade Oriented vs People Oriented

Most discussion of the WTO is focused on trade issues rather than people in the trade.

This is no surprise, because it reflects the WTO’s own philosophy. The preamble of the Agreement Establishing the WTO explicitly indicated that the WTO contributes to its recognised objectives through the “multilateral trading system”.8 Consequently, as some commentators noted, the constitution of the WTO is based on the “principles of

8 Bill Butcher & Mary Ip, “Are Chinese Consumers Winners or Losers under WTO Membership?” (2007) 4 Macquarie Journal of Business Law 71 ; “Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade. . . Determined to preserve the basic principles and to futher the objectives underling this multiateral trading system”.

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trade rather than rules for people”.9 This WTO philosophy has also been articulated in the statement made by the WTO Working Group on the Interaction Between Trade and Competition Policy in 1999: [i]n the case of Article III of the General Agreement on Tariffs and Trade (GATT) the subject matter which must benefit from national treatment is not the persons of other Members but the products of other Members. . . While this is apparent on the face of Article III, it has also been emphasised in various panel decisions. . . In the case of trade in services, the potential beneficiaries of national treatment under the General Agreement on Trade in Services (GATS) are both the services of other Members and the service suppliers of other Members.10

It is clear that the primary focus of the WTO institutional framework is on the trade itself (products and services) rather than the person (consumers).

The trade-oriented approach/organisation philosophy itself is not something to be condemned. But the implementation of such a philosophy may have negative effects on many social issues, including the protection of consumer rights. This has been evidenced by numerous WTO/GATT dispute settlement decisions11 : • In 1990 WTO panels have ruled against the Thai government for its import ban on the United States’ cigarettes;12 • In 2000 WTO panels overrode the European Union’s ban on beef laced with artificial hormones;13 • In 2001 Bolivia, Sri Lanka and Croatia governments abandoned a proposal to ban biotech foods after the United States and Argentina threatened to take WTO action;14 • In 2005 WTO panels have ruled that Japanese quarantine restrictions on apples to protect against introduction of fire blight breached Japan’s WTO obligations;15 and • More recently, in 2009 and 2010 WTO panels have ruled that China violated international trade rules by restricting the exportation of nine raw materials, such as coke, zinc, and bauxite.16 As some commentators observed, it is clear that these decisions have undermined consumer health and safety concerns in favour of commercial interests.17 They “can 9 See also Peter Costantini, What’s wrong with the WTO? (November 2001) http://www.speakeasy.org/ ~peterc/wtow/ at 24 January 2006. Cited by Bill Butcher & Mary Ip, above n 8.

10 Ibid. Also see The Fundamental WTO Principles of National Treatment, Most-Favoured-Nation Treatment and Transparency: Background Note by Secretariat, WT/WGTCP/W/114 (1999) [18-19] (Report by the WTO Working Group on the Interaction Between Trade and Competition Policy, 14 April 1999).

11 12

Butcher & Ip, above n 8. Butcher and Ip provided some fine examples in this vein.

See Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R – 37S/200 (1990) (Report of the Panel adopted on 7 November 1990) at http://www.sice.oas.org/dispute/gatt/90cigart. asp [last visit 10 Jan 2012].

13 Clausen Allan, The World Trade Organisation (September 2000) Oxfam Community Aid Abroad http: //www.oxfam.org.au/campaigns/submissions/wto.pdf at 12 October 2005.

14 Friends of the Earth International, “US and Biotech Corporations Impose Genetically Modified Organisms Worldwide under WTO Threats”, at http://www.foeeurope.org/press/17.12.01.htm [last visited on 10 Jan 2012].

15 “Japan – Measures Affecting the Importation of Apples”, WTO Dispute DS245 (2005) (Report of the Panel Circulated on 2 June 2005) at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds245_e.htm [last visited on 10 Jan 2012].

16 ICTSD “China Flouts Ruling as WTO Rejects Environmental Defence in Raw Materials Case” ICTSD China Programme Volume 11, Number 13, 11 July, 2011 at http://ictsd.org/i/news/biores/110313/ [last visited on 10 Jan 2012].

17 Butcher & Ip, above n 8.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� all be explained as trade barriers masquerading as environmental and health concerns, but they still reflect the primacy of trade and the diminution of national sovereignty that comes with WTO membership, even where questions of consumer health and safety arise.”18

1.2 Rationale Behind: Imbalance of Bargaining Power

Despite recent improvement in its transparency and accountability, the WTO has been criticised for its secrecy. The consensus system under the WTO Marrakesh Agreements may be manipulated by a few of the most developed countries.19 Some commentators criticised that WTO negotiations are “held behind closed doors, contrary to the usual practice of other international organisations such as the United Nations”.20 The reasons for the possibility of the manipulation of democratic negotiation are various. One of the major reasons is the imbalance of bargaining powers between member countries. On the one hand, the WTO is dominated by four largest trading blocs, namely the United States, the European Union, Japan and Canada.

These developed countries share similar commercial goals and interests, and often work collaboratively to push through an agenda at the expense of developing countries (more specific examples, such as the TRIPS Agreement negotiation will be discussed in later sections.).21 Although the developing countries make up more than threequarters of WTO membership,22 developed countries have the capacity to locate large delegations permanently at the WTO Headquarters in Geneva, and to receive ample support from their home country, including sending trade specialist teams to Geneva to assist with complex matters confronted at the WTO.23 On the other hand, while there is increasing unity and power among developing countries to influence WTO directions, most recently at the 2005 Hong Kong Ministerial Conference,24 lack of financial resources and experienced negotiators necessarily limit their impact in WTO negotiations. (More specific examples will be given later).

Although the WTO has a mechanism to provide technical assistance to developing and least-developed countries (“LDCs”), the purpose of the WTO technical assistance is 18 Butcher & Ip, above n 8. Some protection is afforded, but not guaranteed, by Article XX(b) of the GATT, discussed below in the context of the Thai cigarette dispute.

19 Article IX.1 of the Marrakesh Agreement states that, “The WTO shall continue the practice of decisionmaking by consensus followed under GATT 1947. Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting.” For example of WTO consensus manipulation, including “consensus manufacturing”, see Aileen Kwa, “Power Politics in the WTO” (2003) Focus on the Global South http://www.global.ucsb.edu/classes/global_130_f06/reading/Aileen_Kwa_

Power_Politics_in_the_WTO_4-6.pdf.

20

Steve Charnovitz, “Opening the WTO to nongovernmental interests” (2000) 24 Fordham International Law Journal 173, 173.

21 Butcher & IP, above n 8.

22 Colin Galloway, “Making new friends and foes”, South China Morning Post, 12 November 2001 http: //www.scmp.com at 26 December 2005.

23 There are approximately 40-50 meetings a week covering a broad range of issues under the WTO. Sourced from Consumers International, “The Way Forward for the Multilateral Trading System”, Trade and Economics Briefing Paper, No 1, November 2000 http://www.consumersinternational.org at 5 October 2005.

24 The Sixth Hong Kong Ministerial Conference was held in Hong Kong, China, from 13-18 December, 2005. Ministerial conferences are held every two years and are the WTO’s chief decision-making body. The growing strength of member countries outside the “Big Four” is suggested by the progress made at the Hong Kong Ministerial on preserving their interests, particularly on agricultural reform.

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mainly focussed on assisting member countries to understand and implement WTO rules rather than meaningful assistance for strengthening their negotiation capacity.

Another problem is the exclusion of non-government organisations (NGOs) from meaningful participation in WTO policy discussions and law making processes. Under the “close-door policy” of WTO, NGOs were not able to participate in the WTO’s debate. They can only observe WTO’s activities. Although they can present at WTO Ministerial Conferences and take part in various symposia organised by the WTO Secretariat, they cannot be directly involved in the work of the WTO.25 As many commentators have observed, “the significant role played by NGOs in international forums should not be neglected”.26 For example, the expansion of the United Nations Guidelines on Consumer Protection (1999) into the area of sustainable consumption was largely credited to the impetus and contribution of the international consumer groups in the United Nations forum.27

1.3

Different Position of Consumers in Developed and Developing Countries: China as an Example

A direct consequence of trade-oriented organisational philosophy and imbalance of negotiation power is the increased risk of jeopardising the interests of consumers in developing countries. As discussed above, while membership of the WTO enables consumers in developing countries to enjoy greater variety of products with more affordable prices, it also limits the ability of these countries’ government to protect their consumers. The WTO agreement has been deemed as a trade-off between right of free trade and limitation of national sovereignty. Most developed countries have already established strong consumer protection mechanisms, the limitations on national sovereignty under the WTO regime is less damaging for them. By contrast, as most developing countries and LDCs do not have well-developed consumer protection laws and administration, these limitations could have deleterious consequences. Although the consumer protection regimes in many developing countries have improved dramatically over the recent two decades, they are still relatively “less developed” in general.28 Using China as example, on the one hand, China’s consumer protection laws and regulations have been improved remarkably in various aspects in the past two decades.

On the other hand, like many other developing countries, its regulatory and administrative schemes on consumer protection are still subject to further improvement. In terms of regulatory schemes, the market situation in China has undergone tremendous change after its access to the WTO in 2001. However, the Chinese Law for the Protection of Consumers Right and Interests 1993 (CLPC 1993) has not been revised since it was passed in 1993. A review and revision of the current CLPC becomes increasingly necessary in order to ensure that the consumer law can be implemented broadly and 25 26

Butcher & Ip, above n 8.

Ibid.

The United Nations Guidelines for Consumer Protection (As expanded in 1999) http://www.ciroap.org/ apcl/resources.html.

28 Many developing countries did not pass consumer laws until recent decades. In addition to consumer laws, many developing countries, including China, do not have a specialized agency for consumer law enforcement. It is a very loose structure of consumer protection.

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������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� administered effectively to achieve its original legislative purposes. This has been evidenced by numerous post-WTO cases which involved foreign technology companies, including the Sony TV and Toshiba notebook cases.

In each of these cases, technology products produced by foreign companies endangered the safety and interests of Chinese consumers, who have not received efficient and effective protection and compensation, because the Chinese laws on consumer protection and production liability (laws made by the congress) do not contain a “product recall” regime, which most developed countries have, and the scale of monetary compensation in Chinese Product Liability Law is too low.

However, it is noteworthy that China does have “product recall” regimes at ministerial level. Since 2004, China has made impressive progresses in enacting new rules on product recalls, including: Administration Rules on Motor Vehicle Defects and Safety Recalls, Administration Rules on Children Toy Recalls, Administration Rule on Food Recalls, and Administration Rules on Medicine Recalls. They have arguably had great impacts in promoting the protection of consumer interests. Nevertheless, these rules are mainly at the ministerial level, and the administrative monetary penalty is 30,000 RMB only (less than 5,000 USD).29 Again, it seems to be too low to deter rule breakers.

At the administrative and institutional level, it seems that China needs a stronger and more independent body dedicated to enforcing consumer laws to safeguard consumers’ interests, and to address the potential conflict between consumer law enforcement and WTO-imposed obligations. As we know, most developed countries have specialized agencies to address consumer protection issues, such as Federal Trade Commission (FTC) in the United States and the Australian Competition and Consumer Commission (ACCC). China has no real equivalent of the FTC or the ACCC. In China, the nearest to a comparable body overseeing consumer interests is the China Consumers’ Association (CCA).

The CCA, established in 1984, has completed a remarkable job in promoting consumer protection and consumer education in China in the past decades.30 Nevertheless, as some commentators pointed out, the CCA may consider further improvement in at least three areas. Firstly, the CCA may consider expanding its authority on competition-related issues. At present, the CCA’s activities are confined to research, disseminating information, mediating consumer disputes, and advising government on consumer issues. It has no authority to initiate competition investigation or competition litigation. China enacted the Anti-Monopoly Law in 2008, and three government agencies (Ministry of Commerce, National Development and Reform Committee, and the State Administration for Industry and Commerce) are currently enforcing AML.31 The CCA is not one of them and takes no part in safeguarding consumers against market malpractice. In other words, unlike the FTC or ACCC, China has separate agencies to deal with the consumer protection and competition protection issues. As such, it would be desirable for the CCA to work more actively with competition enforcement agencies, and set up a formal connection between competition protection and consumer protection at both legislative and institutional levels (since consumer protection is also one of legislative purposes of the AMLs).32 29 “Long Way to Go: Recall System for Defective Product – Legal Issues on the Toyota Car Recall” [Chinese] at http://f148.cn/web/law22/201031091719421.html at 16 Jan 2012.

30 See CCA website at http://www.cca.org.cn for a fine summary of the achievement of the CCA. See also CCA, “Review of 30th Anniversary of the Chinese Consumer Rights Protection Movement: Leading Cases” [Chinese] http://www.cca.org.cn/web/llyj/newsShow.jsp?id=41450.

31 AML, Arts 9 and 10.

32 AML, Art 1.

17

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Secondly, the CCA, as a quasi-governmental organisation,33 has limited financial resources and insufficient government subsidy. Some CCA local branches rely heavily on monetary contributions from business enterprises.34 It would be desirable if the CCA may seek various ways to finance its operation, particularly through direct funds or subsidy from the central government. China is the country with the biggest consumer population, and its consumer protection agency naturally deserves more subsidies. In doing so, the CCA may function more actively and independently in its objectives.

Thirdly, as Butcher and Ip observed, the CCA may need more qualified and experienced personnel who are competent to deal with complicated post-WTO consumer protection issues, and to protect domestic consumers more strategically. Although, in recent years, new agencies have been created within the Ministry of Commerce to monitor WTO affairs and the WTO Training Centre has been established in the Beijing University, the CCA has not yet established a similar division to particularly deal with post-WTO consumer protection affairs. In terms of the training of professionals, the EU-China Trade Project (governmental projects) has provided a sound platform for professionals in governmental agencies (such as IP agencies and competition law enforcement agencies) in both sides to regularly learn from each other.35 It would be desirable if both side’s governments agree to include consumer protection agencies, such as the CCA, in this project.

1.4 Summary and Remarks: Nexus of Market Economy and Consumer Protection In summary, many developing countries progressed well in consumer protection law making. However, a revolutionary improvement of consumer protection in developing countries cannot be achieved overnight. The WTO framework aims to use WTO agreements to reduce government interference and allow market forces to operate. However, an unfettered market economy is not focused on protecting the consumer but on protecting free trade. Although the “negative impact of a market economy on consumer protection may not pose a significant problem to people in developed countries”, it may pose a significant problem to consumers in developing countries, such as China.

As some commentators criticized, Chinese consumers’ interests have “been jeopardized by the lack of a quality control agency to execute the relevant laws” and such a circumstance “would be exacerbated with the influx of foreign goods upon WTO entry”.36 Similar problems may also be found in other developing countries, particularly in the least developing countries (LDCs).

Part II: TRIPS Agreement: IP Abuse Prevention and Consumer Protection As introduced above, it is clear that the WTO is not a sound forum for protecting the rights of consumers in individual member countries, but a forum for protecting

33 Gao Kun, Controversies Rising Around Local Consumers’ Associations (23 April 2001) China Organisation http://www.china.org.cn/english/2001/Apr/11604.htm at 12 November 2005.

34 Butcher & Ip, above n 8.

35

See EU-China Trade Project, “About Us”, at http://www.euchinawto.org/index.php?option=com_

content&task=view&id=12&Itemid=26.

36

See Butcher & Ip, above n 8.

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19

suppliers of products and services and promoting free trade of products and services.

The TRIPS Agreement, as an important agreement in the WTO framework, has arguably inherited the WTO’s pro-supplier features. Nevertheless, if we examine the provisions of the TRIPS Agreement in detail, we may find that it seems to provide a leeway for developing countries to adjust their domestic laws to protect the interests of consumers.

2.1 TRIPS Agreement and Democratic Negotiation

37

The bargaining process of the TRIPS has been regarded as a typical example of the way in which major stakeholders in developed nations have applied their economic powers and sophisticated negotiation skills to circumvent democratic bargaining processes in pursuit of maximization of their individual economic interests.38 Professor Drahos, in 2002, summarized three fundamental conditions of democratic bargaining: (1) the representation condition: the interests of all parties should be fully represented; (2) the full information condition: all negotiation parties should have full information about the consequences of possible outcomes; and (3) the non-domination condition: negotiation parties should not coerce each other.39 The negotiation process of the TRIPS appears to meet none of them, at least, none completely.

According to Drahos, in order to reduce possible resistance from developing nations, the US and the US big-business community adopted a “forum-shifting” strategy in the 1980s. They shifted the negotiation forum of IP standard-setting from the WIPO, UNCTAD and UNESCO where the developing nations might defeat their proposals to the GATT forum where the US was the “single most influential player”.40 Moreover, the first three circles of consensus in the TRIPS negotiation, which produced draft texts of a possible agreement, were conducted within the Quad States (US, EC, Japan and Canada) without the involvement of any developing nation.41 Under such an arrangement, obviously, the interests of developing nations could not be well represented (lack of the representation condition).42 This also allowed the Quad States to obtain more information than any other negotiating parties.43 Consequently, when the TRIPS was concluded, many countries did not have a clear understanding as to the TRIPS’ possible economic consequences (lack of the full information condition). When, in an interview conducted in Seoul in 1994, Professor Drahos asked a senior official why 37

Acknowledgement: section 2.1 provides a summary of the TRIPS Agreement Negotitation Process. It was mainly extracted from my book, Yijun Tian, Rethinking Intellectual Property, (2009) at Chapter 3, s 3.3.4 (1), which provided a comprehensive discussion on issues of democracy and the IP standard setting process.

38 As introduced above, there are substantive academic literatures discussing the negative impacts of the TRIPS. In this section, the author focuses on the negotiation process of the TRIPS. 39 Peter Drahos, “Negotiating Intellectual Property Rights: Between Coercion and Dialogue” in Drahos, Peter and Mayne, Ruth (ed) Global Intellectual Property Rights: Knowledge, Access and Development (2002), 161, 163-4.

40 Ibid, 166.

41 As Professor Drahos observed, the whole negotiation process involved a strategy in which “a nonrepresentational inner circle of consensus was expanded to create larger circles until the goals of those in the inner circle had been met”, and consequently, it “became one of hierarchical rather than democratic management”. Ibid, 167-8.

42

Art 66.1 of TRIPS provides some transitional treatment for LDCs, but generally speaking, the opinions of LDCs had not been fully represented in the TRIPS negotiation process. According to a recent joint study conducted by the United Nations Conference on Trade and Development (UNCTAD) and the International Centre for Trade and Sustainable Development (ICTSD), “only one LDC at the time [WTO negotiation process], i.e., Tanzania participated actively in the TRIPS negotiations”. See UNCTAD-ICTSD, Resource Book on TRIPS and Development (hereinafter “Source Book”) (2005), 715.

43

See Drahos, above n 39, 167,169.

20

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Korea had agreed to TRIPS, the reply was “because we were ignorant”.44 Later, although the proposal of the Quad States incurred stronger resistance from developing nations, particularly from India and Brazil, the threats of the US Special 301 sanctions finally broke the loose alliances of developing nations.45 US bilateralism and potential trade sanctions put developing nations in a very passive situation – either negotiate multilaterally under the framework of the TRIPS or face the US alone (lack of the nondomination condition).46 “Forum-shifting”, “hierarchical consensus”, “trade sanction threats” and all other bargaining strategies worked collectively to enable the Quad States to win the “first round IP war”: The passage of the TRIPS has formally linked IP protection to the trade regime, and enables trade laws to serve as a weapon by use of which developed nations can control “a resource even more important than oil – knowledge.”47 As Drahos criticized, “the reality of IP standard-setting has been that of an insider’s game dominated by a few producers of IP supported by states with the most to gain.”48 It is clear that the TRIPS negotiations are a typical example of the imbalance of negotiation powers between developing and developed countries in the WTO negotiations (introduced above).

Although the Quad States were to win the “first round IP war”, the efforts of developing countries in the TRIPS negotiations are not completely meaningless. One important outcome of their efforts is to successfully incorporate the IP abuse prevention provision into the Objectives and Principles of the TRIPS Agreement.

2.2 Objective and Principle Provisions of TRIPS: IP Abuse Prevention Regulation beyond Antitrust Law The TRIPS has been the most significant development in the international IP arena in the twentieth century and an “ineluctable consequence of increased global economic interdependence”.49 It is often deemed a compromise between developing and developed nations in international trade negotiation. Developing nations promise to provide strong IP protection to foreign IP products. In return, developed nations promise to provide concessions to developing nations in labour-intensive industries, such as agri-

44 Drahos, Peter, “Cities of Planning and Cities of Non-Planning: A Geography of Intellectual Property”, Cultural Intelligence (2006) http://world-information.org/wio/readme/992003309/1154965104 at 12 October 2006.

45 In 1989, five of the ten developing nations opposing the US agenda were placed on the US list for bilateral attention. Brazil and India were placed in the more serious priority watch list. Trade sanctions finally pushed Brazil to agree to seek the legislation that the US wanted in 1990. Consequently, India could not find much support coming from Brazil any more. See generally Drahos, above n 39, 170-171 (introducing how the US apply bilateral trade to force developing nations, such as Brazil, to reform IP law). See also UNCTADICTSD, above n 114 (providing a specific introduction about the TRIPS negotiation process and the debates between developed and developing nations.

46

See general Drahos, above n 39, 170-171.

47

See Drahos, above n 44 (pointing out: “[t]rade laws get amended to make them a weapon of economic war in the fight to control a resource even more important than oil – knowledge.”)

48

See Drahos, above n 39, 174.

See Okediji, Ruth L, above n 7. Many commentators regarded the TRIPS Agreement as “the highest expression to date of binding IP law in the international arena”. See Lovoi, Jeanmarie, “Note: Competing Interests: Anti-Piracy Efforts Triumph Under TRIPS But New Copying Technology Undermines The Success” (1999) 25 Brooklyn Journal of International Law 445, 461.

49

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� culture and textiles.50 In response to development concerns, Articles 7 and 8 of the TRIPS lay down the important principles and objectives of the Agreement. Article 7 requires that the protection and enforcement of IPRs should “contribute to the promotion of technological innovation and to the transfer and dissemination of technology”, the enhancement of “social and economic welfare”, as well as a sound balance of rights and obligations of producers and users of technological knowledge.51 Moreover, Article 8 of the TRIPS explicitly provides: Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

It is clear that this article allows member states to adopt any measures they think appropriate to prohibit IPR abuse and any other conduct that may unreasonably restrain trade or international technology transfer.52 As a United Nations study has pointed out, this article to a large extent reflects the view of many developing countries, such as India, during the Uruguay Round negotiations, that a “main objective of TRIPS should be to provide mechanisms to restrain competitive abuses brought about by reliance on IPR protection”.53 This may be the first time that the term “abuse of Intellectual Property Rights” appears in an international agreement.54 It is also the first time that the international community put “IP abuse”, “innovation promotion”, “restrictive trade practice (anticompetition)” and “technology transfer” issues altogether in one international document.

The TRIPS Agreement also includes specific provisions on anti-competitive matters. For instance, Article 31 specified the conditions for compulsory licensing of patents as parts of measures to remedy anticompetitive practices. Moreover, TRIPS includes a special section on the “control of anti-competitive practices in contractual licences”, which focuses on anticompetitive licensing practices and conditions that restrain trade.55 Article 40 of TRIPS imposes an obligation on member states to act on “licensing practices or conditions pertaining to IPRs, which restrain competition” if they “have adverse effects on trade and may impede the transfer and dissemination of technology”.56 50 See Schiappacasse, Mikhaelle. “Intellectual Property Rights in China: Technology Transfers and Economic Development” (2004) 2 Buffalo Intellectual Property Law Journal 164, 171.

51

See TRIPS Agreement, Art 7.

52

See TRIPS Agreement, Art 8.2.

53

UNCTAD-ICTSD, Resource Book on TRIPS and Development, at page 127 at http://www.iprsonline.org/ unctadictsd/ResourceBookIndex.htm at 16 June 2011.

54 Paris Convention for the Protection of Industrial Propert 1883, Article 5, for the first time use of the term “abuse”, but mainly foucsing on “abuse” of “patent” rather than “abuse” of IPR in general. See http: //www.wipo.int/export/sites/www/treaties/en/ip/paris/pdf/trtdocs_ wo020.pdf.

55

TRIPS Agreement, Sec 8, Art 40.

56

TRIPS Agreement, Sec 8, Art 40.1. See also TRIPS Resource Book, at 554.

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2.3 Leeway for Member Countries – Consumer Law Remedies against IP Abuse

It is clear that these provisions have a narrower scope of application than Article 8.

They contain rules which, with have regard to only some of the conduct of IPR-holders that is listed in Article 8, and may establish obligations on member states that are not mandated by Article 8. As some commentators have observed, the TRIPS Agreement has not placed significant limitations on the authority of WTO member states to “take steps to control anticompetitive practices”.57 For example, the TRIPS Agreement does not limit the remedial measures that each member state may impose. In addition to “compulsory licensing”, member states may apply other remedies against antitrust infringement, such as injunction, damages and fines.58 Since the TRIPS Agreement only sets up general principles for dealing with IP abuse, restrictive trade activities and technology transfer issues, it mainly relies on member states themselves to make specific law and policies to “define the concept of abuses through appropriate domestic measures”59 and to regulate the activities of IPR holders when commercialising their IP products/services.

It is clear that the scope of IP abuse under Article 8 of the TRIPS Agreement is very broad. As the United Nations TRIPS and Development Resources Book has recognised, member states may consider conduct of IPR holders to be abusive “regardless of whether the enterprise in question dominates the market or not, and regardless of whether there is an anticompetitive use or simply a use of an IPR which defeats its purpose, eg, the purpose of innovation or of dissemination of technology”.60 In other words, it is not limited to prohibitions under the antitrust law (i.e. abuse of dominant market position), but may cover any “illegitimate use of IP” which is “contrary to the basis and/or the objectives of IPR protection”.61 As such, although the existing TRIPS Agreement mainly uses competition law approach as a main legal instrument to prevent and provide remedies for IP abuse activities, it is clear that the TRIPS provides sufficient space for member countries to adopt any other appropriate domestic measures to define the concept of IP abuses, to prevent IP abuse and restrictive trade practice and to enhance technology transfer. In addition to the competition law approach specified in Articles 31 and 40 of the TRIPS, member states can use any other legislation to prevent IP abuse, including consumer protection law and contract law.

Next I will examine how different countries adopt domestic laws to prevent IP abuse and enhance innovation and technology transfer, and particularly focus on the non-competition law approach – consumer law in China, Australia and Brazil.

57

UNCTAD-ICTSD, Resource Book, above n 15, 128.

Frederick M. Abbott, Are the Competition Rules in the WTO TRIPS Agreement Adequate?, 7 J Int’l Econ. L No. 3, 2004, at 693.

59 UNCTAD-ICTSD, Resource Book, above n 15, 548.

60 Ibid.

61 Ibid.

58

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Part III: IP Abuse Prevention and Consumer Law at the Domestic Level 62

3.1 Existing Mainstream Approach for IP Abuse Prevention – Competition Law Approach and Its Limits

Competition law is often deemed as one of most popular and effective legal instruments to prevent IP abuse.63 Although it is the idea of developing countries’ to include provisions for prohibiting IPR abuse and promoting technology transfer as part of the objectives and principles of TRIPS,64 regulators in most developing countries have not developed sophisticated laws and policies to enforce antitrust law in IP areas. In fact, some countries, such as China, have only set up their antitrust laws recently. By contrast, in developed countries, particularly in the US and the EU, sophisticated laws and policies on coordinating the relationship between IP and antitrust laws and enhancing technology transfer have developed over the past two decades.

For example, in Europe, the European Commission (EC) issued its first united Technology Transfer Block Exemption Regulation – Commission Regulation 240/1996 (“TTBER 1996”) – in 1996 which provide a general guideline on how to apply anti-competition provisions of the Treaty of Rome to certain categories of technology transfer agreements.65 The EC conducted a regulatory review on the application effects of the TTBER 1996 and enacted its New Technology Transfer Block Exemption Regulation (“TTBER 2004”) – Commission Regulation 123/2004 – in April 2004,66 in order to simplify the TTBER 1996 and to improve the certainty of application of IP licensing agreements. In the US, the US Department of Justice (DOJ) issued a “watch list” for prohibiting anticompetitive restraints in patent licensing agreements in the 1970s.67 Moreover, in April 1995, the DOJ and the Federal Trade Commission (FTC) enacted a joint document Antitrust Guidelines for the Licensing of Intellectual Property (the Guidelines 1995), which provides some general approaches (such as Rule of Reason Approach) and principles for determining IP-related monopolistic activities.68 In 2007, the DOJ and FTC issued

62 Acknowledgement: sections 3.1 and 3.2 provides a summary or list of existing IP abuse laws in EU and in China in particular. It was mainly extracted from an article the author has published in 2009. Yijun Tian, “IP Protection vs IP Abuses: The Recent Development of Chinese IP Abuse Rules & Recommendations for Foreign Technology-driven Companies” in Computer Law & Security Review (CLSR), Vol 25, Issue 4, Elsevier Ltd, Oxford, UK (2009) at 252-366 – footnote 6.

63 There are various types of IP abuse, such as using IP lawsuits as a tool against competitors, using IP licensing agreements against new entrants to the market, and using contract law to expand the scope or term of IPR protection. However, most existing legislation and legal guidelines mainly focuses on restraints of IP licensing arrangements, and technology transfer issues.

64

UNCTAD-ICTSD, Resource Book, above n 42, 543 (introducing negotiation history of article 8).

65

Commission Regulation (EC) No 240/96 of 31 January 1996 on the application of Article 85(3) of the Treaty to certain categories of technology transfer agreements (OJ L 31, 9.2.1996, p. 2), (TTBER 1996).

66 See European Union’s new Technology Transfer Block Exemption Regulation (“TTBER 2004”) (Commission Regulation (EC) No. 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements, OJ No. 123, 27.04.2004) OJ L 123, 27.4.2004, at 11-17. http://europa.eu/scadplus/leg/ en/lvb/l26108.htm. The TTBER 2004 replaces Commission Regulation (EC) No 240/96 of 31 January 1996 on the application of Article 85(3) of the Treaty to certain categories of technology transfer agreements (OJ L 31, 9.2.1996, p.

2).

67 See Robert C. Lind, Anya V. Kleymenova, Marie Miauton and Paul Muysert, Report on Multiparty Licensing, Charles River Associates Ltd. 22 April, 2003, at page 23.

68

US Department of Justice (DOJ) & the Federal Trade Commission (FTC), Antitrust Guidelines for the

23

24

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a more detailed document – Antitrust Enforcement & IPRs: Promoting Innovation and Competition (hereinafter “the Report 2007”) in order to facilitate the understanding and application of the 1995 Guidelines and to improve the degree of certainty involved in IP licensing arrangements.

The legislative experiences of the US and EC are arguably very valuable for developing countries that do not have sophisticated legal experiences in enforcing antitrust laws in IPR areas. However, given that most developing countries only have a short history of competition law enforcement (eg three-year experiences in China), competition law may not be the most effective way for them to prevent IP abuse in a short timeframe. This is particularly true for new market economy countries. As introduced above, the legislative foundation of the competition law is market economy, and the purpose of the competition law is to create and maintain fair competition in the market. Thus, it would not be an easy job for most former social plan-orientated economies (such as China) to develop an effective competition law enforcement mechanism within a short time period. By contrast, it may be more feasible for developing countries to explore how to apply other non-competition law approach, which they are familiar with, to prevent IP abuse (such as consumer law approach).

I will next examine how the existing laws (non-competition law, particularly consumer law) prevent IP abuse in China and its limits by referring to similar laws in the US and the EU. I will then examine how other countries, such as Australia and Brazil, address similar issues in their consumer laws, and what lessons other developing countries may learn from them.

3.2 Forms of IP Abuse and Non-Competition Law Approach for IP Abuse Prevention in China China is the second-largest economy in the world and has nearly one-quarter of the world’s population. China, as a new rising economy, does not need to worry about the issue – “locked by old technology”. Thus, any international enterprises, particularly technology-driving companies, cannot afford to simply ignore a nation with such a big market. It is important for foreign IPR holders and technology-driven companies to have a sound understanding of the Chinese laws on technology transfer and IP abuse in order that they can avoid potential legal risk and commercialize their IPRs in an appropriate way.

After China entered the WTO in 2001 it sped up its efforts to become a part of the international IPR community, and enacted a number of laws and other regulations on technology transfer, anti-competition and IP abuse prevention. In particular, the last few years have seen China enact its first antitrust law – Anti-Monopoly Law 2008 (AML).

In line with the requirements of Article 8 of the TRIPS Agreement, the AML includes a special article on IP protection and IP abuse prevention (Article 55). It is the first time that China has explicitly included the term – “the abuse of intellectual property rights” – in its domestic law. Nevertheless, even before AML, China already has relevant laws to address IP abuse issues. Both the AML and non-AML laws are currently valid, and serve as important components of the current Chinese IP Abuse regime.

Licensing of Intellectual Property, April 6, 1995, at http://www.usdoj.gov/atr/public/guidelines/0558.htm at 10 December 2008.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� Before the AML came into effect, a small range of domestic laws in China contained certain provisions on technology transfer and various forms of “IP abuse”.69 Generally speaking, prior to the AML, provisions focused on IP abuse could be found in four groups of laws and regulations. These were contract law, foreign trade law, anti-unfair competition law, and intellectual property law. They are not consumer law codes, but they all have provisions which are designated to protect consumer benefits. As such, they follow into a broad definition of consumer law.

3.2.1

Contract Laws 1999 and Interpretation 2005 vs Nine No-Nos

The legal group of laws involve the laws on contract. The Contract Law 1999 contained some specific provisions on IP abuse caused by technology/technology transfer contracts. It explicitly provided that any technology contract, which “illegally monopolizes technology, impairs technological progress/advancement or infringes on the technology of a third party, would be invalid”.70 It further provided that the scope of the patent exploration or the use of the technical secret by the transferor and the transferee, which is set forth in technology transfer contracts, should not “restrict technological competition and technological development”.71 The Contract Law 1999 arguably reflected the concerns on IP abuse caused by technology contracts, but it was too general and has not provided specific provision or standards for determining whether a technological contract has “illegally monopolized technology or impaired technological progress”.

Six years later, in the Interpretation of the Supreme People’s Court Concerning Some Issues on Application of Law for the Trial of Cases on Disputes over Technology Contracts, which came into force in January 2005 (hereinafter the “Interpretation 2005”),72 the Supreme People’s Court listed six specific circumstances/situations which would be deemed as “illegally monopolising technology and impairing technological progress” in Article 329 of the Contract Law 1999, including:73 1. Restricting one party from making new research and development on the basis of the contractual subject technology.

2. Restricting one party from obtaining similar technology from competitors of the technology provider in the contract.

3. Restricting the technology accepter from reasonably exploring/commercialising the contractual subject technology (including unreasonable restrictions on the quantity, varieties, price, sales channel or export market of the contractual subject technology).

4. Restricting the technology accepter to accept attached conditions dispensable for exploiting the technology (including purchasing dispensable technologies, raw materials, products, equipment, services or accepting dispensable persons).

69 Zhang Hui, Gao Guozheng and Guo Bingna, “Impacts of the Chinese Anti-Monopoly Law on Intellectual Property: More Expectation?” In China IP Law Website at http://www.chinaiprlaw.cn/file/2008080213416. html at 12 December 2008.

70 Contract Law of the People’s Republic of China 1999 (Contract Law 1999), see section 329, at http://www. lehmanlaw.com/resource-centre/laws-and-regulations/contract.html at 12 January 2009.

71

Contract Law 1999, section 343.

Chinese title of the document: Interpretation of the Supreme People’s Court Concerning the Application of Laws in the Trial of Civil Disputes over Technology Contract.

72

73 See the Interpretation of the Supreme People’s Court concerning Some Issues on Application of Law for the Trial of Cases on Disputes over Technology Contracts 2005 (“Interpretation 2005”), section 10.

25

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5. Unreasonably restricting the channels or origins for the technology accepter to purchase raw materials, parts and components, products or equipment, and so forth.

6. Prohibiting the technology accepter from making objections to the effectiveness of the IP of the contractual subject technology, or attaching conditions to the objections made.

It is clear that the approach of the list adopted in the Interpretation 2005 is quite similar with the approach that the US adopted in its Patent Licensing regulation in the 1970s.

In order to better facilitate the application of the antitrust law in IP areas, in the 1970s the US Antitrust Division of the Department of Justice announced a “watch list” of nine specified licensing practices that would be viewed as anticompetitive restraints of trade in licensing agreements, including patent pools. They are often referred to as the “Nine No-Nos”:74 1. Royalties not reasonably related to sales of patented products.

2. Restraints on licensees’ commerce outside the scope of the patent (tie-outs).

3. Requiring the licensee to purchase unpatented material from the licensor (tie-ins).

4. Mandatory package licensing.

5. Requiring the licensee to assign to the patentee patents that may be issued to the licensee after the licensing arrangement is executed (exclusive grant backs).

6. Licensee veto power over grants of further licences.

7. Restraints on sales of unpatented products made with a patented process.

8. Post-sale restraints on resale.

9. Setting minimum prices on resale of the patent products.

The DOJ intended to apply specific regulations to prevent patent holders from “extending their patent monopolies to unpatented supplies”, such as the control over further improvements of their innovations, price determination, and the control over market allocations.75 This “specific listing” approach was easy to understand and enforce. But many commentators criticized that the list was overly “specific” and unnecessary, and some provisions on the list have never been used.76 They argued that most patent licensing arrangements have pro-competitive effects and claimed that “unconstrained patent licensing increases the value of patents and encourages licensing and innovation”.77 Since the Interpretation 2005 adopted a listing approach which is similar with that of the US Nine No-Nos regulation, it would arguably import both advantages and disadvantages of this approach. Like the US regulation, the provisions in the Interpretation 74

See Lind, Kleymenova, et al, above n 27, 23.

75

Gilbert & Shapiro, “Antitrust Issues in the Licensing of Intellectual Property: The Nine No-No’s Meet the Nineties” (1997) Brookings Papers on Economic Activity 283.

76 Ibid, 286. Gilbert and Shapiro further state: “In actuality, of the sixteen cases filed by the division’s Intellectual Property Section between the late 1960s and the late 1970s, only half specifically addressed any of the nine practices. Moreover, almost all of these cases were litigated under a rule of reason rather than per se illegality”.

77

Ibid.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� 2005 are relatively specific and easy to apply, but they mainly focus on the rights and obligations of the parties within technology contracts, particularly the protection of the technology accepters (assignees/licensees). They have not paid much attention to the impacts of the technology owners’ behaviour on other competitors (non-licensees), and how these competitors’ rights in the market can be protected. Neither the Nine NoNos regulation nor the Interpretation 2005 has provided any exemptions or immunity for reasonable licensing arrangements, which have been included in the prohibition lists but may have pro-competitive effects. Moreover, none of them provided a detailed guideline on how to determine whether an act of an IPR holder has “restrict[ed] technological competition and technological development”, or provided a general approach for their agencies to evaluate or determine the IP abuse conducts. Thus, they have failed to strike a sound balance between preventing monopolistic activities and improving the legal certainty for the use of IP licenses.

3.2.2

Foreign trade law vs EU regulation 2004

The second group is the law and regulation related to foreign trade. Trading with foreign countries has provided an important opportunity for China to engage with the broader international community, and to better understand international legal practices. Thus, it is not surprising that many important legislative attempts often initiate from foreign trade law areas. This includes legislative attempts addressing technology transfers and IP licensing issues. In particular, after China’s access to the WTO in 2001, remarkable progress was made in improving its legal regime, including its laws on foreign trade, technology transfers, and competition.78 The Regulations on Technology Import and Export Administration of the People’s Republic of China 2002 (hereinafter the Regulations 2002)79 may be the first regulation in China which deals with illegitimate restraints in technology contracts. Article 29 of the Regulation 2002 explicitly lists seven types of restrictive clauses that a technology import contract shall not contain.80 Most of these clauses have been adopted by the later Inter78 These legislative efforts have also been recognized by the US government. The USTR, in its 2004 Report to Congress on China’s WTO Compliance, stated: “China has undertaken substantial efforts in this regard, as it has revised or adopted a wide range of laws, regulations and other measures. While some problems remain, China did a relatively good job of overhauling its legal regime.” See USTR, 2004 USTR Report to Congress on China’s WTO Compliance, 4, http://www.ustr.gov/assets/Document_Library/Reports_ Publications/2004/asset_upload_file281_6986.pdf at 10 January 2009, at 5.

79

The Regulations of the People’s Republic of China on Administration of Import and Export of Technologies have been adopted by the 46th Regular Meeting of the State Council and are hereby published. These Regulations shall be implemented starting from January 1, 2002 (“Regulation 2002”), at http://www.lehmanlaw.com/ resource-centre/laws-and-regulations/contract/regulations-on-technology-import-and-exportadministration-of-the-peoples -republic-of-china-2002.html at 12 January 2009.

80

Article 29 of the Regulation 2002 provides: A technology import contract shall not contain any of the following restrictive clauses:

(1) requiring the receiving party to accept any additional condition unnecessary for the technology import, including buying any unnecessary technology, raw material, product, equipment or service; (2) requiring the receiving party to pay exploitation fee for a technology when the term of validity of the patent right in which has expired or the patent right of which has been invalidated, or to undertake other relevant obligations; (3) restricting the receiving party from improving the technology supplied by the supplying party, or restricting the receiving party from using the improved technology; (4) restricting the receiving party from obtaining technology similar to that supplied by the supplying party from other sources or from obtaining a competing technology; (5) unduly restricting the receiving party from purchasing raw material, parts and components, products or equipment from other channels or sources; (6) unduly restricting the quantity, variety, or sales price of the products the receiving party produces; or

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pretation 2005 (introduced above) to interpret the specific circumstances/situations of “illegally monopolising technology and impairing technological progress” under Article 329 of the Contract Law 1999.81 Moreover, in compliance with the TRIPS Agreement, the amended Foreign Trade Law 2004 includes a special chapter on “Foreign-trade-related IP protection”.82 Article 30 of the law explicitly prohibited any of three acts committed by IPR holders: (1) hindering the licensee from questioning the validity of the IPR involved in the license agreement; (2) conducting forced package licensing; or (3) providing exclusive sale back conditions in the license agreement, etc. and, at the same time, endangering the fair competition order of foreign trade.83 Generally speaking, these provisions84 are similar with the counterparts of the EC’s new Technology Transfer Block Exemption Regulation of April 2004 (“TTBER 2004”).

85 The TTBER 2004 set up its strict restrictions prohibiting: (1) exclusive grant-back obligations of a licensee’s own severable improvements; (2) no-challenge clauses in respect of the validity of the IPRs and (3) restrictions on the licensee’s ability to exploit its own technology or on its ability to develop new technology (where the license is granted to a non-competitor).86 Moreover, the EC has noted that, in most cases, technology licensing agreements “have positive effects that outweigh their restrictive effects on competition”.87 Thus, the TTBER 2004 sets up new “block exemption” provisions in order to strike a sound balance between the IPR protection and the protection of competition and to create “an area of certainty for most licensing agreements”.88 The EC also enacted a very detailed TTBER Guideline 2004 to facilitate the implementation the TTBER 2004, which includes both general approaches and specific examples for helping agencies to determine IP abuse and monopolistic activities.89 By contrast, neither the Regulation 2002 nor the Foreign Trade Law 2004 has provided any useful exemptions for activities on their licensing practice prohibition lists. It does (7) unduly restricting the receiving party from utilising the channel for exporting products manufactured using the imported technology.

81

See Interpretation 2005, section 10.

82

See Foreign Trade Law 2004, Chapter V Foreign-trade-related Intellectual Property Protection.

83 Foreign Trade Law, article 30, [Chinese and English] at http://www.seabay.cn/freightknowledge/ 20050615/1968347.html at 12 January 2009. See also English version at http://www.lehmanlaw.com/ resource-centre/laws-and-regulations/foreign-investment/foreign-trade-law-2004.html at 12

January 2009.

84

Provisions in the Foreign Trade Law 2004, the Regulations 2002 and the Interpretation 2005

85

See European Union’s new Technology Transfer Block Exemption Regulation (“TTBER 2004”) (Commission Regulation (EC) No. 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements, OJ No. 123, 27.04.2004) OJ L 123, 27.4.2004, at 11-17. http://europa.eu/scadplus/leg/ en/lvb/l26108.htm at 12 January 2009. The TTBER 2004 replaces Commission Regulation (EC) No 240/96 of 31 January 1996 on the application of Article 85(3) of the Treaty to certain categories of technology transfer agreements (OJ L 31, 9.2.1996, p. 2).

86 See TTBER 2004, Article 5, Section 1(a) (b) (c) and Section 2. See also Jones, “Licensing in China”, above n 9 at 14 (providing a summary of core prohibition provisions in the TTBER 2004).

87 The EC official website explicitly states: “Such agreements will usually improve economic efficiency and be pro-competitive as they can reduce duplication of research and development, strengthen the incentive for the initial research and development, spur incremental innovation, facilitate diffusion and generate product market competition.” See EUROPA, Technology transfer agreements at http://europa.eu/scadplus/leg/en/ lvb/l26108.htm at 12 January 2009.

88 Ibid. See also TTBER 2004, Arts 4, Ss 1(c) and 2 (b). See also Commission Notice - Guidelines on the application of Article 81 of the EC Treaty to technology transfer agreements [Official Journal C 101 of 27.04.2004] (TTBER Guideline 2004 2004 2004). http://europa.eu/scadplus/leg/en/lvb/l26108.htm at 12 January 2009.

89 See TTBER Guideline 2004 at 2-42. The TTBER Guideline 2004 provides very detailed instructions on applications of the TTBER 2004 and Art 81 of the EC Treaty in general.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� not seem that the pro-competitive effects of certain restraint arrangements in technology licensing agreements has been recognized and reflected in these legislations.

Moreover, none of them provided any EC-style detailed guidelines for facilitating the understanding and application of these prohibitions either.

3.2.3

Anti-unfair competition vs antitrust law

3.2.4

Patent misuse

The third group is anti-unfair competition law. The Anti-unfair Competition Law of the People’s Republic of China 1993 includes some general provisions on “tying” arrangement. It explicitly prohibits sellers from selling products to consumers by forcing them to purchase additional products that they are unwilling to purchase, or by imposing unreasonable conditions.90 It is noteworthy that, as some have commentators pointed out, the Anti-Unfair Competition Law in China does “not deal with matters pertaining to anti-trust issues” (such as the abuse of dominant position),91 but mainly focuses on maintaining a sound market order and protecting the rights of managers and consumers.92 More details on China’s recent development in antitrust laws – i.e.

Anti-Monopoly Law 2008 – will be discussed later.

The last group is IP law. Like patent laws in other countries, the Chinese Patent Law 2000 contains some general provisions on “compulsory licensing” as one of the possible remedies for IP abuse.93 The Patent Law 2000 allows any applicant, which is qualified to exploit the invention or utility model, to make requests for “authorization from the patentee of an invention or utility model to exploit its or his patent on reasonable terms”.94 If an applicant has not been successful in obtaining the relevant authorization within a reasonable period of time, upon the application of the applicant, the patent administrative department of the State Council may grant the applicant a compulsory license to exploit the patent for invention or utility model.95 It is also noteworthy that the Patent Law 2000 was recently amended, and the Patent Law 2009 further clarifies and revised the requirements on compulsory licensing. Article 50 of the Patent Law 2009 entitles the State Intellectual Property Office (SIPO) to grant a compulsory license in three circumstances: 90 It is noteworthy that, as some foreign practitioners have observed, “the Anti-Unfair Competition Law in China does not deal with matters pertaining to anti-trust issues, but as the market develops in China, it is likely to gain importance”. See LEHMAN, What is the situation between IPRs and unfair competition in China? at http://www.lehmanlaw.com/resource-centre/faqs/intellectual-property/general-ip/what-is-thesituation-between-iprs-and-unfair-competition-in-china.html at 12 December 2008.

91 Ibid.

92 See Anti-unfair Competition Law of the People’s Republic of China 1993, Article 1. (Providing “This law is drawn up in order to safeguard the healthy development of the socialist market economy, encourage and protect fair market competition, prohibit unfair competition, safeguard the legal rights and interests of managers and consumers.”)

93 See Patent Law of the People’s Republic of China (2000 Revision) (Adopted at the 4th Session of the Standing Committee of the Sixth National People’s Congress on March 12, 1984, Articles 48 and 49.)

Article 48: Where any entity which is qualified to exploit the invention or utility model has made requests for authorization from the patentee of an invention or utility model to exploit its or his patent on reasonable terms and such efforts have not been successful within a reasonable period of time, the patent administrative department of the State Council may, upon the application of that entity, grant a compulsory license to exploit the patent for invention or utility model.

Article 49: Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative department of the State Council may grant a compulsory license to exploit the patent for invention or utility model.

94 95

Patent Law 2000, Article 48.

Patent Law 2000, Article 48.

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1. The patentee’s exploitation of the patented technology is found to be insufficient within a prescribed timeframe; 2. The patentee’s exploitation of the patented technology is found to be eliminating or restricting competition; or 3. The application is for the making and exportation of a patented medicine to certain countries and regions for the benefit of public health in accordance with international treaties.96 However, like other regulations introduced above, the new patent law has not provided specific guidelines on the application of “compulsory licensing” provisions, such as how to determine “elimination or restriction of competition”.

3.2.5

Summary: Achievements and Limitations

In summary, the provisions in the existing Chinese laws (prior-AML laws) have covered some major forms of IP abuse activities, such as monopoly pricing, restrictions on the number of products, market division, cross-licensing and patent cooperation agreements, exclusive provisions (i.e. provisions to prevent licensees from questioning the validity of the IP in licensing agreements, and provisions to prohibit compulsory licensing), tying sales and so forth.97 However, they do have their limitations. Firstly, the legislation is either too general or too narrow. Some only provide general requirements on prohibited IP licensing arrangements, such as Foreign Trade Law and Patent Law, but fail to provide detailed guidelines to explain how to apply these requirements in practice. Some only focus on very narrow subject matter or single forms of IP abuse. For example, the Contract Law 1999 and the Regulation 2002 mainly focus on the protection of technology accepters in technology contracts or technology importing contracts. The Anti-Unfair Competition Law only focuses on tying sale. Unlike the counterparts in the US and EU laws, they have distinguished licensing transactions that occur between competing and noncompeting undertakings.98 Secondly, they have failed to explain the general approach that the competent agencies employ in their evaluations of licensing agreements under the applicable antitrust law, and the way that they determine IP abuses.

Thirdly, none of them provides the immunity for the licensing arrangements that are on the prohibition lists but have pro-competitive overweight anti-competitive effects.

Consequently, they have arguably not struck a sound balance between IP licensees and licensors, and have not created sufficient legal certainty for the application of IP licensing arrangements.

96 Patent Law 2009, Article 50. Granting a compulsory license “for the making and exportation of a patented medicine to certain countries and regions for the benefit of public health in accordance with international treaties” is a newly introduced circumstance, which the old law does not have. See also, Zeldin, Wendy. “China: Major Amendment of Patent Law”, in Law Library of Congress: News and Events, 27 Feb 2009, at http://www.loc.gov/lawweb/servlet/lloc_news?disp3_1059_textat12March2009.

97 Zhang, Gao and Guo, above n 29.

98 For example, the TTBER 2004 distinguished licensing transactions that occur between competing and non-competing undertakings. It provides the immunity for licensing arraignments that do not contain “certain ‘hardcore’ restrictions between non-competitors with market shares below 30% and between competitors with market shares below 20%” See Gilbert, Richard. “Converging Doctrines? US and EU Antitrust Policy for the Licensing of Intellectual Property” 2004, at 3, at http://works.bepress.com/richard_gilbert/3, at 12 January 2009.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� Lastly, as introduced above, these provisions spread across various types of laws.

This loose structure renders it difficult for foreign investors and technology companies to get a clear picture of China’s requirements on technology transfer and IP abuse.

This has arguably increased the uncertainties of law applications and the operations of foreign undertakings in China.

3.3 IP Abuse on Unfair Terms of Contracts: Consumer Law in Australia I will next focus on some more specific issues on IP abuse, particularly on the potential risks and consumer law remedies for unfair terms of contracts. Among various IP abuse activities mentioned above, one of most typical and popular ones may be the IPrelated unfair contracts, particularly software-related contracts/licensing agreements.

Under the current digital economy environment, consumers use software every day. In order to install and use the software they have to “agree” and “sign” online licensing agreements. But many consumers/software users may not fully understand these e-contracts they have signed, and the potential legal risks these agreements may bring to them, and possible legal remedies they may have when disputes occurred.

I will use the Australian consumer law as an example to demonstrate how member countries may use consumer law to prevent IP abuse on unfair contracts, particularly IP abuse in standard-term of e-contract for IP products.

3.3.1 Different Types of the E-contract

As we know, generally speaking there are three main forms of software licensing methods: (1) Shrink-wrap; (2) Clickwrap; and (3) Browsewrap.

The “Shrinkwrap” method started from the early 1980’s. At that time, software vendors were constrained to deliver their software products in physical form. They normally put their products in a cardboard box package, including a computer disk, manuals and a printed licence agreement. The licence agreement usually provided that opening the sealed (shrink-wrapped) package containing the computer disks signified the user’s assent to the terms of the licence.

The “Click-wrap” method became increasingly popular with the wide use of PCs and the Internet. Through this method, the terms of the “clickwrap” licence are presented to the user electronically. In order to agree to the terms of the licence and “sign” the licensing agreement, the user usually needs to click on a button or ticking a box labelled “I agree”.

The “Browse-wrap” method is another common phenomenon today, and emerges with the wide application of the Internet. With this method, the operator of a website purports to make all use of that website subject to a “terms and conditions” agreement. The user is “said to assent by merely using the website”.99 Usually, the terms of that agreement are never actually presented to the website user. Instead there will be a small hyperlink to a separate “Terms and Conditions” page, in the small print at the bottom of the website. For example, when visiting your favourite news websites and scrolling to the bottom of the page, we will commonly find a link labelled “terms and 99

Dale Clapperton & Stephen Corones, “Unfair Terms in ‘Clickwrap’ and other electronic contracts” (2007) 35 Australian Business Law Review 152, http://eprints.qut.edu.au/7650/ at 6 of 35, eg “By using this site, you acknowledge your agreement to be bound by these terms of use”.

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conditions” along with other seldom-read links to things such as the website’s privacy policy.100 For the purposes of this paper, we mainly focus on the click-wrap “electronic contracts” since it is the most common method for software licensing arrangements at the present.101

3.3.2 3.3.2.1

IP abuse: Unfair Contract

Overview

Generally speaking, most software licensing agreements do not have a consumerfriendly interface. As some commentators criticized: “Electronic contracts are typically quite lengthy, often running to several thousand words, and written with little regard for the principles of plain English drafting or concern for comprehension by a lay audience”.102 As examples, the Microsoft Software License Terms for Windows Vista is 5,701 words.103 . The EULA for Microsoft Windows XP Pro SP2 is 5,623, which contains a 1,013 word limitation of liability written entirely in French.104 The longest English sentence in agreement is 178 words and was written entirely in capital letters.105 EULAs are often displayed in a small window and consumers can only view a small portion of the agreement at any one time. Reading the entire EULA may require viewing more than 100 separate “pages” of text, and many EULAs cannot be printed, or save for later viewing by the end-user.106 As a direct consequence, the vast majority of software users do not read EULAs but simply agree it. This is evidenced by a test completed by software vendor PC Pitstop.

PC Pitstop inserted a special clause in the EULA in order to encourage users to read EULA: SPECIAL CONSIDERATION A special consideration which may include financial compensation will be awarded to a limited number of authorize licensee [sic] to read this section of the license agreement and contact PC Pitstop at consideration@pcpitstop.com.107

However, after four months and more than 3,000 downloads, only one person wrote in.

Given that many consumers (software users) do not read and are not aware of the licensing terms, licensors normally have no incentive to compete on the terms offered.108 By contrast, they may misuse their advantageous negotiation position, and include some terms which may be unfair to consumers, such as the provisions of limiting the consumer rights.

100 For example: http://www.shm.com.au ; see also the defintion in http://www.obj.ca/Blog-Article/b/ 12102/The-Enforceability-of-ClickWrap-and-BrowseWrap-Agreements.

101

“Clickwrap contracts are ubiquitous in markets for software and digitally distributed copyright content (such as music and movies), and are increasingly used to set terms for access to services such as everyday websites.”

102 Corones, above n 99, Part II. 103 http://download.microsoft.com/documents/useterms/windows{%}20vista_{ultimate}_english_ 36d0fe99-75e4-4875-8153-889cf5105718.pdf 104

Corones, above n 99 at 9 of 35.

Ibid.

106 Ibid.

107 Ibid at 11. For more details, see PC Pitstop, It Pays to Read License Agreements, http://pcpitstop.com/ spycheck/eula.asp.

108 Corones, above n 99 at 11 of 35.

105

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� 3.3.2.2

Two legal issues

Generally speaking, the legal issues on click-wrap electronic contracts mainly include two aspects: (1) unfairness issue/unconscionability issue on the “formation of contracts”; and (2) unfairness issue on the “terms of contracts”.

Regarding the first aspect, a key question is whether a “money now, terms later” approach is permissible. The most common form of click-wrap software licence is the “End User License Agreement” (EULA). The EULA is a contractual agreement between a software licensor and software licensee (end-users of software product). The licensee (end-user) agrees to pay required licensing fee and observe all terms of the EULA. In return, the licensor (software vendor) authorize the licensee (end-user) to use the software.

The terms of the EULA is typically presented to licensee/end-user as part of the software installation process. In order to install the software successfully, end-user must signify their assent to the terms of the agreement first.109 However, in order to view the terms of the EULA, the end-user needs to the buy the software from retail outlets in the first place. Although the EULA often states that consumers may return the software to the place of purchase for a full refund if they do not agree to the terms of the EULA, retail outlets may often refuse to refund the software if the packaging has been opened.110 As such, as some commentator noted, if the consumers already purchased software, they may “have little choice but to accept whatever terms are presented to them”, and consumers (end-users) have no opportunity for the negotiation of terms. This seems to be unfair to consumers.111 Regarding the second aspect, the issue of unfair terms in relation to software EULAs is one of long-standing. Professor Corones in 2007 listed a number of common ways to introduce unfair provisions into software licensing agreements: • Through provisions that allow the licensor to unilaterally vary the terms of the contract, such as the provisions specifically allowing for unilateral variation by the licensor.

• Through software patches, updates, or new versions to allow the licensor to amend the EULA.112 • Through Notice Clauses, such as provisions that allow the licensor to give notice of contract amendments to the licensee in ways that are not likely to come to the actual notice of the licensor (eg giving notices by simply publishing amended version of the contract online).113 • Through Digital Rights Management (DRM) technologies, which allow a licensor to change the rules governing how a consumer may use digital content, without 109

In the other words, the terms of EULA are presented on a “take it or leave it” basis.

110

Corones, above n 99 at 5 of 35.

Ibid.

112 It looks like licensees have been given a chance to choose whether they agree to the terms of the new EULA or to continue to use the existing version of the software. However, in reality, most software patches or updates are designed to address crucial security problems of original programs. Thus, this often leaves the licensees with little or no choice but to agree to the terms of the new EULA. 111

113

The Apple iTunes Music Store “Terms of Sale” agreement states: iTunes reserves the right to change the terms and conditions of sale at the iTunes Store at any time. Revised Terms of Sale will be made available on our website. Customers are encouraged to review the Terms of Sale on a periodic basis for modifications

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changing the contract, and even where the contract makes no provision for the licensor to change the “usage rules”.114

3.3.3

Current law in Australia on This Issue

At the national level, Australian courts have traditionally not recognised the substantive unfairness of a term of a contract as basis for intervention.115 The former TPA at the Commonwealth level only provides some limited relief in relation to unfair terms in e-contracts, and it is mainly through the provision on unconscionability under ss 51AA or 51AB. Section 51AA of the TPA provides that: (1) A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.

(2) This section does not apply to conduct that is prohibited by section 51AB or 51AC. Section 51AB of the TPA provides in part: (1) A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person, engage in conduct that is, in all the circumstances, unconscionable.

(2) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a corporation has contravened subsection (1) in connection with the supply or possible supply of goods or services to a person (in this subsection referred to as the consumer), the Court may have regard to: (a) the relative strengths of the bargaining positions of the corporation and the consumer; (b) whether, as a result of conduct engaged in by the corporation, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the corporation; (c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services; (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the corporation or a person acting on behalf of the corporation in relation to the supply or possible supply of the goods or services; and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the corporation.

Although the provisions in the former TPA (ss51 AA and AB) seem to cover both substantive and procedural unfairness, in practice, Courts mainly focus on procedural unfairness of the formation of a contract.116 For example, in Hurley v McDonald’s Australia Ltd (2000) the Full Federal Court held: 114 Using online purchased DRM-protected music as example, the DRM restricts buyer’s ability to use and copy the music. When a buyer purchases the music, the vendor of the music permits the buyer to copy (“burn”) a “playlist” of music to an audio CD only 10 times. Through the DRM system of the vendor, once the buyer has copied the music the permitted 10 times, the DRM prevents him/her from making further copies. However, technically, the vendor can unilaterally change the number of copies the buyer is permitted to make from 10 to 7. This change affects not only music that the buyer purchases after the change, but the music the buyer purchased before the change (when the buyer was permitted 10 copies).

115 See High Court cases: ACCC vs CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447.

116 See High Court cases: ACCC vs CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� There is no allegation of any circumstance that renders reliance upon the terms of the contracts unconscionable. For example, it might be that, having regard to particular circumstances it would be unconscionable for one party to insist upon the strict enforcement of the terms of a contract. One such circumstance might be that an obligation under a contract arises as a result of a mistake by one party. The mistake is an additional circumstance that might render strict reliance upon the terms of the contract unconscionable. Mere reliance on the terms of a contract cannot, without something more, constitute unconscionable conduct. . . . Before sections 51AA, 51AB or 51AC will be applicable, there must be some circumstance other than the mere terms of the contract itself that would render reliance on the terms of the contract “unfair” or “unreasonable” or “immoral” or “wrong”. (Emphasis added).117

It is clear that, despite the substantive unconscionability or unfairness of a contractual term, it seems that s51AA and AB will not apply if there is no “procedural unconscionability”.

At the state level, given the limited relief on unfair terms of contract, New South Wales and Victoria followed international developments in UK and EU and enacted/amended their laws to regulate the use of unfair terms in consumer contracts. NSW Contracts Review Act 1980 and Victorian Fair Trading Act 1999 cover both substantive and procedural unfairness. Particularly, the Victorian Act provides detailed provisions on the definition of “unfair term” (s32W)118 and a list of factors (s32X) to determine the unfair term.119 But in practice, as Zumbo pointed out, while NSW courts are able to consider substantive unconscionability under the NSW Contracts Review Act 1980, they “rarely do so without also considering the impact of procedural unconscionability”.120 It seems that 117

ATPR 41-741; [1999] FCA 1728.

Section 32W of the FTA defines “unfair term” as: A term in a consumer contract is to be regarded as unfair if, contrary to the requirements of good faith and in all the circumstances, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer.

119 Section 32X of the FTA provides: Without limiting section 32W, in determining whether a term of a consumer contract is unfair, a court or the Tribunal may take into account, among other matters, whether the term was individually negotiated, whether the term is a prescribed unfair term and whether the term has the object or effect of: 118

(a) permitting the supplier but not the consumer to avoid or limit performance of the contract; (b) permitting the supplier but not the consumer to terminate the contract; (c) penalising the consumer but not the supplier for a breach or termination of the contract; (d) permitting the supplier but not the consumer to vary the terms of the contract; (e) permitting the supplier but not the consumer to renew or not renew the contract; (f) permitting the supplier to determine the price without the right of the consumer to terminate the contract; (g) permitting the supplier unilaterally to vary the characteristics of the goods or services to be supplied under the contract; (h) permitting the supplier unilaterally to determine whether the contract had been breached or to interpret its meaning; (i) limiting the supplier’s vicarious liability for its agents; (j) permitting the supplier to assign the contract to the consumer’s detriment without the consumer’s consent; (k) limiting the consumer’s right to sue the supplier; (l) limiting the evidence the consumer can lead in proceedings on the contract; (m) imposing the evidential burden on the consumer in proceedings on the contract.

120 Zumbo, F. “Dealing with Unfair Terms in Consumer Contracts: Is Australia Falling Behind?” (2005) 13 TPLJ 70 at 82. Zumbo observes that this residual reliance upon procedural unconscionability severely limits the ability of the Act to deal directly with unfair terms in consumer contracts.

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only Victorian courts directly intervened against substantive unfair conduct.121 3.3.3.1

New Consumer Laws

The new Australian Competition and Consumer Act 2010 took effect last year. s51AA “Unconsionable conduct within the meaning of the unwritten law of the States and Territories” has been repealed and replaced by Sch 2 s20 under the title “Unconscionable conduct within the meaning of the unwritten law”; and s51AB has been repealed and replaced by Sch 2 s21 under the same title “Unconscionable conduct”122 The former provisions and new provisions are identical. A main difference is the former TPA only focused on the unconscionable conduct of corporations.123 The new CCA focuses on the unconscionable conduct of a person. Thus, it seems that the new CCA has a broader coverage and includes both conducts of “corporations”, other forms of incorporated entities, and individuals.

The CCA 2010 explicitly includes a statutory remedy for unfair terms of contract (mainly following the Victorian model and drawing on lessons from EC Directive on Unfair Terms in Consumer Contracts 1993/UK Unfair Contract Term Act 1977/ The UK Unfair Terms in Consumer Contracts Regulations 1999).124 According to Section 23 of the CCA 2010, in order to receive the remedies, the contract must be (1) a consumer contract, (2) a standard form contract, and (3) contain a term that is unfair.125 Further, 121 For example, in Director of Consumer Affairs Victoria v AAPT [2006] VCAT 1493 at [50], the Victorian Civil and Administrative Tribunal held that a similar term “in a mobile telephone contract was an unfair term because it had the effect of permitting AAPT, but not the consumer, to avoid or limit the performance of the contract – a relevant factor under s 32X(a) of the FTA”.

122 Competition and Consumer Act 2010 - Schedule 2 – The Australian Consumer Law at http://www. austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html.

20 Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

(2) This section does not apply to conduct that is prohibited by section 21 or 22.

21 Unconscionable conduct A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engage in conduct that is, in all the circumstances, unconscionable.

Without in any way limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened subsection (1) in connection with the supply or possible supply of goods or services to another person (the consumer), the court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the consumer; and (b) whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the supplier.

123

“corporation” means a body corporate that:

(a) is a foreign corporation; (b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed; (c) is incorporated in a Territory; or (d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c); 124

http://www.legislation.gov.uk/uksi/1999/2083/contents/made.

125

CCA 2010, s 23(1)(2).

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� CCA introduces some detailed provision on the definition of consumer contract,126 the meaning of unfair127 and examples of unfair terms.128 It seems that major forms of unfair provisions in software licensing agreements, which were summarized by Professor Corones in 2007 (as above), all fall into the unfair terms provisions under the new CCA 2010. For example, Section 25 (d) explicitly prohibited a term “that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract”. Thus, if a software licensing agreement contains a provision that allows a licensor to use software patches, updates, or new versions to amend the EULA, it seems that such a provision should be held unfair under the new CCA. Section 25 (a) explicitly prohibit unfair terms of a consumer contract, such as “a term that permits, or has the effect of permitting, one party (but not another party) to avoid or limit performance of the contract”. Thus, if a software licensing agreement contains a provision that allows a licensor use Digital Rights Management (DRM) technologies to change the rules governing how a consumer may use digital content, it seems that such a provision should be held unfair under the new CCA. Moreover, if a software licensing agreement contains a provision that allows the licensor to unilaterally vary the terms of the contract, such a provision may also be held unfair under the new CCA. Section 25 explicitly prohibits a term that permits, or has the effect of permitting, one party (but not another party) to vary the terms of the contract; 129 to renew or not renew the contract;130 to vary the upfront price payable 126

(3) A consumer contract is a contract for:

(a) a supply of goods or services; or (b) a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

127

24 Meaning of unfair

(1) A term of a consumer contract is unfair if: (a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and (b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and (c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following: (a) the extent to which the term is transparent; (b) the contract as a whole.

(3) A term is transparent if the term is: (a) expressed in reasonably plain language; and (b) legible; and (c) presented clearly; and (d) readily available to any party affected by the term.

(4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.

128

s25 CCA 2010.

S35(d) CCA 2010.

130 s25(e) CCA 2010.

129

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under the contract without the right of another party to terminate the contract; 131 to vary the characteristics of the goods or services to be supplied,132 and to unilaterally determine whether the contract has been breached or to interpret its meaning.133 For a consumer contract which contains an unfair term, a basic remedy for consumers is that such a term is void.134 The CCA 2011 (Part 5-2, Sch 2 The Australian Consumer Law) further provides broad remedies for the breach of the law, such as pecuniary penalties,135 injunctions,136 damages,137 compensation orders etc for injured persons and orders for non-party consumers,138 and other remedies.139 In summary, the inclusion of the unfair term section into the ACL improves Australian laws on consumer protection. It has codified many important common principles on unfair term issues, mainly common law principles established by Victorian courts. Nevertheless, it may be still too early to say whether and how all these remedies apply to unfair term of consumer contract since the CCA has just taken effect. It would be desirable if Australia can have more detailed regulations on unfair terms in consumer contracts in the future – ie the UK style regulation – the UK Unfair Terms in Consumer Contracts Regulations 1999.

3.4 Consumer Laws in Brazil

3.4.1 Overview of Consumer Protection Code (CPC) in Brazil

Brazil has a tradition of strong consumer protection supported by its Federal Constitution. The Brazilian Consumer Protection Code (CPC) was enacted on 11 September 1990.

Unlike consumer laws in many other countries, which were motivated by social movements on consumer protection, the CPC was created by a legal order – a constitutional commandment.

It is in Article 5 of the 1988 Federal Constitution, where we find the first reference to consumer rights.140 And when treating the economical and financial order, Article 170 explicitly lists “consumer protection” as a basic principle.141 As one commentator noted, “the Constitution does not leave any doubts as to the responsibility of the State to promote consumer rights”.142 131 132

s25(f) CCA 2010. s25(g) CCA 2010.

133

s25(h) CCA 2010. s23(3) CCA 2010.

135 Div 1, Part 5-2 Remedies, Sch 2, CCA 2010.

136 Div 2, Part 5-2 Remedies, Sch 2, CCA 2010.

137 Div 3, Part 5-2 Remedies, Sch 2, CCA 2010.

138 Div 4, Part 5-2 Remedies, Sch 2, CCA 2010.

139 Div 5, Part 5-2 Remedies, Sch 2, CCA 2010; other remedies include: s246 Non-punitive orders, s247 Adverse publicity orders, s248 Order disqualifying a person from managing corporations, s249 Privilege against exposure to penalty or forfeiture – disqualification from managing corporations, and s250 Declarations relating to consumer contracts.

134

140 Luciano Rodrigues Maia Pinto, “Consumer Protection in Brazil – A General View”, Prof. Ernie Englander, School of Business and Public Management, Institute of Brazilian Business and Public Management Issue, at page 3.

141 1988 Federal Constitution, Chapter I, on the General Principles of the Economic activity of Title VII, that is on the Economical and Financial Order, the Great Letter, in Article 170.

142 Ibid at 3.

3.4.2

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ���

Abusive Clause Provision in CPC

Article 25 of CPC explicitly states: “It shall be banned the establishment of any contractual clause that makes it impossible, or exempts or diminishes the obligation of indemnity provided for in this and in the foregoing sections”. It is clear that any contractual clause, which allows the licensor to unilaterally vary the terms of the contract, may be prohibited under the CPC. Furthermore, the CPC has a special session on the use of abusive or deceptive clauses in adhesion contracts.143 Like the ACL 2010, the CPC 1990 the CPC provides a non-exhaustive list of abusive clauses, including the clauses that:144 • prevent, exempt or reduce suppliers’ liability for defects of any nature in products and services or imply a renouncement or a waiver of rights (I).

• take from the consumer the option for reimbursement of an amount already paid, in the cases provided for in this Code (II); • transfer responsibility to third parties (III); • establish obligations understood as unfair, abusive, or that lead the consumer to an unreasonable disadvantage or those that are not consistent with good faith or equity (IV); • N/A (V) • establish the reversion of the burden of proof against consumers (VI); • determine a compulsory use of arbitration (VII); • impose a representative to conclude or carry out another legal negotiation by consumer (VIII); • leave to the supplier alone the option to conclude or not the contract, though obliging the consumer (IX); • make possible for the supplier to directly or indirectly change the price unilaterally (X); • authorize the supplier to unilaterally cancel the contract without giving the same right to the Consumer (XI); • require from the consumer the reimbursement for expenses related to the collection of his debts, without giving the same right to the consumer against the supplier (XII); • infringe or make it possible to violate environmental rules (XIII); • are in disagreement with the consumer protection system (XIV); • make it possible a waiver of the indemnity right related to necessary improvements (XVI).

143

Chapter VI: Contractual Protection: Abusive Clauses, Article 51

144

Like the ACL 2010, Article 51 of the CPC 1990 (Chapter VI: Contractual Protection – Abusive Clauses).

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It seems that main forms of unfair terms in software licensing agreements, which were summarized by Professor Corones in 2007 (as above), all fall into the abusive clause prohibition provisions the CPC 1990. For example, Article 51, clause IV of the CPC explicitly prohibits abusive clauses that “establish obligations understood as unfair, abusive, or that lead the consumer to an unreasonable disadvantage or those that are not consistent with good faith or equity”. Article 51, Clause XIII, further prohibits abusive clauses that “authorize the supplier to unilaterally modify the contents or the quality of the contract after it having been entered into” (XIII).

As such, it seems that any provision in a software licensing agreement, which allows a licensor to use DRM technologies to change the rules governing how a consumer may use digital content, or allows the licensor to unilaterally vary the terms of the contract, will be held to be an abusive clause under the CPC. Any provision that allows a licensor to use software patches, updates, or new versions to amend the EULA, may be held as an abusive clause under the CPC also.

3.4.3 Remedies and Remarks

The “Consumer’s Basic Rights” Chapter of CPC provides some basic remedies for consumers against unfair terms of contract. It explicitly provides that consumers have a right to modify “the contractual clauses that establish unreasonable instalments”.145 In other words, the consumers have a right to modify the unfair terms/abusive clause of contract.

Article 51 provides that abusive “contractual clauses concerning products and services supply shall be deemed lawfully void”.146 In other words, any abusive contractual clauses under CPC should be deemed lawfully void.

In comparison with Australian Consumer Law, which only provides legal remedies to consumer contract and standard contract, the application of the remedies under the Brazil CPC seems to be wider. It covers both standard form contract and non-standard form contract. The Brazil CPC arguably provided a stronger protection for consumers against abusive clause/unfair terms in consumer contracts.

However, it seems that the abusive clause prohibition provisions in the CPC are a bit too general than unfair term provisions under the ACL. Although Art 51 of the CPC also provides a list of abusive clauses (like section 25 of the ACL – examples of unfair terms), the CPC has provided some specific principles for the courts to determine whether a term/clause is “unfair” or “abusive”, which ACL has provided. Thus, it seems that the ACL is more ready to follow and apply by the court.

Nevertheless, Brazil has a good tradition on consumer protection – consumer protection culture, and strong constitutional support. It creates a possibility for Brazilian courts to apply and interpret Article 51 broadly and better protect consumers against unfair terms/abusive clauses in a contract.

145

Section V, Title I, Chapter 3 Consumer’s Basic Rights

146

Article 51, CPC.

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Part IV: IP Abuse and Potential Remedy from Consumer Law – Sony as a Case Study 4.1 Introduction

In this part, I will examine another important aspect of consumer protection on the online environment – consumer privacy and data security. I will examine some recent cases (Sony PSN case and Google cloud case) on IP abuses/misuses against consumers, and examine how Chinese, Australian and Brazilian consumer laws may cope with these issues.

In order to become an eligible licensee (eligible software/computer game user), in addition to purchasing software, a customer normally has to provide detailed personal information to the IP licensor, such as name, address, date of birth and other information, IP holders (licensors) normally promise they will protect the safety of customers’ personal data and will not make them available for any third party without permission from consumers. This seems to be a general practice for many years. However, the recent hacker-attack to the Sony’s global PlayStation network and the Amazon’s Cloud crash push us to rethink the legitimacy of such a general practice and legal questions raised, such as the balance of rights in a licensing agreement.

4.2 Imbalance of Rights in the Agreement

Sony’s global PlayStation network (PSN) was hacked and user account information was compromised between 17 and 19 April 2011.147 Sony immediately took PSN offline on 20 April.148 This led to the exposure of unencrypted personal information of 77 million users, including names, addresses and possibly credit card data.149 This is “one of the largest-ever Internet security break-ins”.150 This attack makes regulators in different countries rethink the effectiveness of the existing legal system in protecting consumers against potential online risks. As we know, most software licensing agreements contain provisions that permit IP holders/licensors to collect consumer personal information.151 However, these agreements have not imposed strong obligations on licensors to protect the safety of consumer per147

Liana B. Baker & Jim Finkle, “Sony PlayStation suffers massive data breach” in Reuters, Apr 26, 2011 at

http://www.reuters.com/article/2011/04/26/us-sony-stoldendata-idUSTRE73P6WB20110426 (last visited

on 30 November 2011).

148 Keir Thomas, “Sony Makes it Official: PlayStation Network Hacked” in PCWorld, Apr 23, 2011 at http: //www.pcworld.com/article/226128/sony_makes_it_official_playstation_ network_hacked.html (last visited on 30 November 2011).

149 Peter Lloyd, “PlayStation Network hacked: 77m users at risk” in Laterline, Australian Broadcasting Corporation, 27/04/2011 at http://www.abc.net.au/lateline/content/2011/s3201906.htm (last visited on 30 November 2011).

150 Liana B. Baker & Jim Finkle, “Sony PlayStation suffers massive data breach” in Reuters, Apr 26, 2011 at http://www.reuters.com/article/2011/04/26/us-sony-stoldendata-idUSTRE73P6WB20110426 (last visited on 30 November 2011); see also Fran Foo & Chris Griffith “Sony PlayStation hack hits over 700,000 Australians” in The Australian, April 27, 2011 at http://www.theaustralian.com.au/australian-it/sonyplaystation-hack-hits-700000-australians/story-e6frgakx-1226045764154 (‘According to a local Sony spokeswoman, there are over 1.1 million PlayStation 3 devices in Australia – approximately 715,000 people are connected to the PlayStation Network, which gamers use to spar online and purchase services like movie downloads.”)

151 “Except as stated otherwise, collection and use of consumer data are subject to the PSN Privacy Policy, which can be found at eu.playstation.com/terms”. http://au.playstation.com/legal/detail/item235615/ PlayStation-Network-Cards-Terms-Conditions/.

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sonal data, nor contain detailed provisions on how to compensate consumers if their personal data has been stolen or misused.

We next use the Sony PSN as an example. According to the PSN Privacy Policy, Sony not only can collect users’ personal information, such as “name, email address, postal address, date of birth, gender and language, password and any parental control options”, but also can collect information on users’ IP address and console MAC address, system ID and hardware information,152 information about how users use PSN153 and users’ gamer profile. 154 For PSN wallet users, Sony will also collect their payment details, “such as credit card numbers, cardholder name, expiry date and security code”, and store this information for future purchases.155 This is why after the hacker-attack many users felt panic and Sony also warned users that their credit card information may have been compromised.

However, in terms of Sony’s obligations of protecting consumers, these documents impose loose obligation on Sony to protect the safety of consumer information. For example, the PSN Privacy Policy explicitly states: We cannot monitor the whole of Sony Online Network and make no commitment to do so. However, we reserve the right in our sole discretion to monitor and record your online activity and communication throughout Sony Online Network and to remove any content from Sony Online Network at our sole discretion, without further notice to you. . . .”

In the other words, it seems that Sony does not commit to monitor its Online Network and protect personal data safety of its customers. And the main reasons for them to monitor the network is not for protecting customers but for stopping any inappropriate activities of customers/users of Sony. It is clear that a sound balance of rights for both parties does not seem to be stricken. According to Reuters, by June 2011, in the US alone, Sony was facing a whopping 55 lawsuits, “each one related to the massive PlayStation Network data breach that initiated a service blackout that lasted for nearly a month.”156 The Terms of User Agreement further states: Whenever you participate in online communities via, or in connection with, Sony Online Network (including forums, games and social networks), you must act reasonably and with common sense; respect the rights and privacy of other members of the communities; and follow any particular rules applying to those communities. You must not do, attempt or threaten to do, any of the actions set out below. Breach of these Conditions may result in suspension or termination of your account and/or access to Sony Online Network. . . . You must not stalk, bully or otherwise abuse or harass other users or our staff or invade their privacy.157

It seems that these clauses are abusive clauses under the Brazilian Consumer Law. As introduced above, the CPC explicitly prohibits clauses that “establish obligations understood as unfair, abusive, or that lead the consumer to an unreasonable disadvantage or those that are not consistent with good faith or equity (IV)”. It is clear that, 152 Eg model and serial number, parental control settings, photograph and music settings, remote play settings.

153

Eg content users download, services users access and for how long.

154

See “What information do we collect?” session, at http://legaldoc.dl.playstation.net/ps3-eula/

psn/h/h_privacy_en.html 155

Ibid.

Matt Peckham, “Sony Grappling with 55 US Lawsuits After PSN Hack” in PC World, on July 21, 2011 http://www.pcworld.com/article/236330/sony_grappling_with_55_us_lawsuits_after_psn_hack.

156

html{#}tk.mod_rel 157

Terms of User Agreement. http://legaldoc.dl.playstation.net/ps3-eula/psn/e/e_tosua_en.html

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� under the current agreement, Sony is able to collect required personal information from its end users, but Sony does not seem to provide adequate protection for the safety of personal information it collects from its customers and remedies for personal information loss. It is clear that these provisions have not struck a sound balance of benefits between Sony PSN and its users, and are not “consistent with good faith or equity”. They arguably place end users in an “unreasonable disadvantage” situation.

4.3 Limiting the Right to Sue

It is noteworthy that Sony recently updated its terms of service agreement and included a “Binding Individual Arbitration and Class Action Waiver Provision”.

NOTE: THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 15 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY “DISPUTE” (AS DEFINED BELOW) BETWEEN YOU AND SNEI, SONY COMPUTER ENTERTAINMENT INC., SONY COMPUTER ENTERTAINMENT AMERICA LLC, THEIR AFFILIATES, PARENTS OR SUBSIDIARIES (ALL ENTITIES COLLECTIVELY REFERRED TO BELOW AS “SONY ENTITIES”). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN SECTION 15.158

On the one hand, in order to use the PlayStation Network, a consumer must agree to settle any dispute with Sony outside of court. In section 15 of the document: Other than those matters listed in the Exclusions from Arbitration clause (small claims), you and the Sony Entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 15, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.

The arbitration clause may arguably breach the Brazilian Consumer Protection Law 1990, which explicitly prohibits clauses that “determine a compulsory use of arbitration” (VII). The Sony’s Arbitration and Class Action Waiver provisions arguably place consumers in an “unreasonable disadvantage” situation.

Section 15 also contains a class action waiver clause, which states that: Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGALACTION, UNLESS BOTH YOU AND THE SONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A CLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011.

In other words, consumers cannot participate in a group action, unless that group action was set in motion before August 20, 2011. Those agreeing to the new terms of service are also agreeing to settle their disputes with Sony on one-on-one basis.159 This 158

For a comparison of the new version and former version of the user agreement, please see

http://www.sonyentertainmentnetwork.com/SEN-legal-docs/TERMS_OF_SERVICE_AGREEMENT-EN.pdf 159 Mike Fahey, “New PlayStation Network Terms of Service Include a No Suing Sony Clause”, Sep 15, 2011, Kotaku.com, at http://kotaku.com/5840517/new-playstation-network-terms-of-service-includea-no-suing-sony-clause.

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would arguably increase the cost of litigation and dispute resolution for individual consumers.

New TOS also includes a clause that may cause undue deferral of the litigation process, and provides: INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If the Sony Entity you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you or the Sony Entity you have a Dispute with may pursue your claim in arbitration pursuant to the terms in this Section 15.

This clause arguably limits the rights of consumers to seek possible legal remedies in a timely fashion. It seems that this provision may have violated the new Australian Consumer Law 2010. s25 (k) of Australian Consumer Law 2010 explicitly provides that “a term that limits, or has the effect of limiting, one party’s right to sue another party” is an unfair term of contract. It is clear that the section 15 may have effects of limiting consumer group actions and causing undue delay of legal proceeding (through the “informally through negotiation” provision). As such it may breach s25(K).

The arbitration clause may also breach the Brazilian Consumer Protection Law 1990.

As introduced above, the CPC provides a non-exhaustive list of abusive clauses.160 It explicitly prohibits clauses that “establish obligations understood as unfair, abusive, or that lead the consumer to an unreasonable disadvantage or those that are not consistent with good faith or equity”. The Sony’s Arbitration and Class Action Waiver provisions arguably place consumers in an “unreasonable disadvantage” situation.

Moreover, as some commentators have pointed out, such arbitration clauses featuring class action waivers “could be and were invalidated by the US courts on the grounds that they were “unconscionable”. (Chalk vs T-Mobile; Omsted vs Dell; Laster vs ATT Mobility; Discover Bank vs Superior Court).161 Nevertheless, it is noteworthy that the TOS has been written in a very “technical” way to avoid the possible challenges under the ACL 2010. It did give consumers a way to opt-out of the agreement. The TOS agreement also contains a provision on “RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS” and stated that: IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10TH FLOOR, LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER, IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.

It seems that this provision does provide consumers with a possibility to “opt-out” the Binding Arbitration and Class Action Waive provision. However, as we know, few consumers may really have patience and skills to read such a sophistic legal document (as discussed above), and spend time in writing and mailing a formal statement letter to Sony to opt-out of such a provision. In the other words, it may be another “unenforceable” provision for consumers. As one commentator noted, “[i]t’s a rather sneaky move on the part of Sony’s legal department, though it isn’t quite as nasty as it 160 Like the ACL 2010, Article 51 of the CPC 1990 (Chapter VI: Contractual Protection – Abusive Clauses) also provides a non-exhaustive list of abuse clauses: see section 3.4.2 above.

161

http://www.reddit.com/r/technology/comments/nk5r7/sony_sued_over_psn_cant_sue_us_clause/.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� sounds”, and it may take too long for a judge to conclude this illegal, unenforceable or unconscionable.

4.4 Non-Sue Provision

Most recently, it is reported that Sony was sued over a term in its PlayStation Network’s End User Licensing Agreement (EULA) amended in September 2011, which forced PSN users to agree not to sue the company.162 This is a class action suit for all of those who purchased a PS3 and signed up for the PSN before the September amendment to the EULA. The suit alleges that Sony hid the new clauses down in the long document. Sony failed to make an easily accessible version of the agreement available online as it had for former terms of service changes, and the EULA can only be read on the device itself.163 Again, such a term and the way that Sony disclosed the term to end users consists of a breach of the provision on limiting right to sue (s25 (k)) and the provision on substantive unconscionability (s21, Sch2) in Australian Consumer Law 2010.

4.5

Amazon and Google – Internal Breach

There are various reasons for consumer data losses. The consumer personal information losses in Sony cases were mainly caused by external reasons – hacker attacks.

However, recent data losses with cloud services provided by Amazon and Google were mainly caused by internal reasons.

Amazon controls about 60% of the cloud computing market, which is expected to balloon to $148.8B in revenue by 2014, worldwide.164 In April 2011, a major flaw in Amazon cloud computing was exposed. Amazon cloud computing service has been so successful but it could not expand its Elastic Block Storage (EBS) architecture fast enough to meet demand. Consequently, this resulted in a “catastrophic cascading failure, and permanent loss of 0.7% of customer data”.165 A cloud computing crash of the type Amazon recently experienced sent ripples through the industry. As one commentator noted, “when a busy cloud computing platform crashes, the impact is felt widely” and “the problems are rippling through to customers, causing downtime for many services that use Amazon’s cloud to run their web services”.166 Amazon is not alone. Other major cloud computing service providers, such as

162 Josh Wretlind, “Sony sued over PSN ’no suing’ provision” in Castle Rock Computers Examiner, December 20, 2011, at http://www.examiner.com/computers-in-denver/sony-sued-over-psn-no-suingprovision; see also Daniel Terdiman, “Sony sued over PlayStation no-sue clause”, CNET News.com on December 21, 2011, at http://www.zdnet.com.au/sony-sued-over-playstation-no-sue-clause-339328409. htm.

163 Josh Wretlind, Ibid.; stating: “The PS3 EULA is a 21 page document, that is not available online, and The ‘No Suing’ provision, is placed toward the end of the document, where users are likely not to see it, and thus catch the end users in a trap”.

164 M. James Daley, “Information Age Catch 22: The Challenge of Technology to Cross-Border Disclosure & Data Privacy” in 12 Sedona Conference Journal 121, Fall, 2011 165

Kevin Fogarty, “In English this Time: How Amazon let its Cloud Crash and Why it Should have Known Better”, ITWORLD, May 2, 2011, http://www.itworld.com/cloud-computing/161203/english-time-howamazon-let-its-cloud-crash-and-why-itshould-have-known-bett.

166 Rich Miller, “Major Amazon Outage Ripples Across Web” in Amazon, Cloud Computing, on April 21, 2011 at http://www.datacenterknowledge.com/archives/2011/04/21/major-amazon-outage-ripplesacross-web/.

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Google and Microsoft, have not experienced similar problems. For example, in December 2010, the Microsoft Business Productivity Online Suite (BPOS) was breached in North America, Europe, and Asia.167 In September 2011, a software upgrade that went wrong caused parts of the Google Docs cloud-hosted office productivity suite were not available online for an hour.168 One important issue here is whether the consumers, who have been affected by the cloud computing crash, are able to obtain adequate remedies to recover their losses.

Again, this raised the unfair term issues.

It is clear that “if there is an outage or a security breach, a user of cloud services could be in breach of its contract with its own customers or of applicable laws, even if this is caused by the provider of services”.169 Not surprising, lawyers of these major computing service providers will try to minimize their legal risks through Term of Service or User agreements.

This is reinforced by a reading of some standard disclaimers on cloud computing sites. As of September 2010, Google Apps Premier Edition’s online disclaimer, for example, noted: Google and its licensors make no warranty of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use and/or non-infringement. Google assumes no responsibility for the use of the service(s). Google and its licensors make no representations about any content or information made accessible by or through the service. Google makes no representation that Google (or any third party) will issue updates or an enhancement to the service, Google does not warrant that the functions contained in the service will be uninterrupted or error-free. 170

As some commentators point out, many consumers “consider that providers of IT services often tend to offer their services “as is”, without assuming any risk – and with an exclusion for all liability where permitted by law”.171 However, through various licensing agreement or Term of Service, IT service providers often unilaterally exclude their responsibilities for not being able to provide consumers with the services as they have described.

Google Apps Premier Edition’s online disclaimer may arguably have breached the Brazilian consumer protection law. As introduced above, Article 51 of CPC 1990 (Chapter VI: Contractual Protection – Abusive Clauses) explicitly prohibits abusive clauses that “prevent, exempt or reduce suppliers’ liability for defects of any nature in products and services or imply a renouncement or a waiver of rights”.

4.6 Summary and Remarks

A clear line is always hard to draw and a sound balance of consumers and IP holders is always hard to strike. Sony, Google and many other high technology companies 167 See M James Daley, above n 164; see also Andreas Udo de Haes, Microsoft BPOS Cloud Service Hit with Data Breach, COMPUTERWORLD, Dec. 22, 2010, http://www.computerworld.com/s/article/9202078/

Microsoft_BPOS_cloud_service_hit_with_data_breach.

168

Juan Carlos Perez, “Google apologizes for Docs outage”, in PC World, September 10, 2011 at http:

//www.goodgearguide.com.au/article/400363/google_apologizes_docs_outage/.

169 Nick Hart & Mark Vincent “Law in the cloud”. [online]. Law Society Journal; 49 (5) June 2011: 51-53,55.

Availability: http://search.informit.com.au.ezproxy.lib.uts.edu.au/fullText;dn=20112994;res=AGISPT ISSN: 0810-5263. [Cited 07 Jan 12].

170 Ibid.

171 Ibid.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� surely can find some persuasive arguments to justify their current practices – such as for enhancing innovation or for improving user security.

For example, when a Sony staff responded to inquiry on the recent changes of TOS, he said: This language in our TOS is common and similar to that of many other service related Terms of Service Agreements. It is designed to benefit both the consumer and the company by ensuring that there is adequate time and procedures to resolve disputes.172

As some commentators pointed out, each country has its own set of laws regarding data protection and privacy. Some are dramatically more stringent than others. For example, in 2010, in the UK, HSBC (in one of a series of security breaches relating to its customer data) was fined £3 million “for failing to have adequate safeguards in place for its customer’s confidential details.”173 The aim of this paper is not to advise on how a right balance can be achieved between licensees and licensors, but to identify potential legal instruments that consumers may seek remedies from. In comparison with global IT giants armed with in house lawyers, consumers normally lack sophisticated legal knowledge and are not quite familiar with potential legal remedies they may have. In the next section, I will provide some recommendations for future law reform at both international and domestic level.

Part V: Conclusion and Recommendations

As some commentators pointed out, “any global technology solution will be impacted by the laws of a large number of nation states.”174 However, as introduced above, IP related consumer laws in each country are various. As such, it is necessary to explore some practical strategies to harmonize laws in various countries and improve the enforceability of consumer protection laws at both domestic and international level.

5.1 Recommendations at the Domestic Level 5.1.1

Recommendation I: Strong Consumer Laws for IP Abuse Prevention

Individual countries may consider using more detailed consumer laws to protect consumers from IP abusive conduct, including unfair terms or abusive clauses in End User Licensing Agreements. They may draw on lessons from both Australia and Brazil. For example, as introduced above, the Brazilian CPC 1990 provides a non-exhaustive list of abusive clauses that may harm the interests of consumers. Australian consumer law contains similar provisions on unfair terms of contract and provide some general standards to assess “unfairness”. They may serve as model laws for others countries to reform their laws against IP abuse.

Future consumer laws should explicitly prohibit the conduct of IP holders in unilaterally revising the term of service or rule of usage. The proposed A2K amendments to the United Nations Guidelines for Consumer Protection (amended Guidelines) provide some sound guidelines on how individual countries may address the said issues.

172

Mike Fahey, above n 159.

173

Nick Hart & Mark Vincent, above n 169.

Nick Hart & Mark Vincent, above n 169.

174

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For example, future regulation may explicitly “restrict suppliers of digital products and services from employing technologies that have a significant effect of preventing consumers from using those products or services in ways or for purposes that would otherwise be reasonable and safe”.175 Article 23A of the amended Guidelines further provide: Suppliers of consumer electronic devices, or of proprietary software for such devices, may not issue a software or firmware update that would disable the consumer’s access to functionality that the device or software possessed at the time of purchase, unless: (a) the update is essential to protect the safety of the consumer or the consumer’s data; (b) the consumer is fully and clearly informed of the effects of the update; and (c) the consumer is given the opportunity to accept or reject the update, unconditionally upon the acceptance of any other update that improves or corrects functionality of the device or software.

There provisions arguably provide a clear example on how individual countries may prohibit IP holders’ unilateral conduct which may harm consumers. It would be desirable if individual countries can incorporate these prohibition provisions into their domestic consumer laws. In doing so, adoption in national law can extend consumer protection provisions relating to IP.

5.1.2 Recommendation II: ACCC-Style Strong and Specialized Enforcement Agency on Consumer Protection Each country needs to set up a specialized consumer right enforcement agency, and strengthen the coordination between consumer right enforcement and competition law enforcement. In this regard, the Australian ACCC model may serve as a sound model.

As discussed above, many developing countries, including China, do not have a strong and effective consumer protection enforcement agency.

As such, China and many other developing countries may consider drawing on lessons from the experiences of Australia, and give its Consumer Protection Association “greater power”, including the power to initiate litigation against conduct that harms consumers, the power of investigation, the power to make administrative resolutions and the power to issue infringement notices.176 Unlike Australia, the Consumer Protection Association and Anti-Monopoly Enforcement Agency are two different agencies. Thus, it is important to strengthen the coordination of these two enforcement mechanisms. As introduced above, competition law alone may not be sufficient to prevent all forms of IP abuse and to protect consumers under the current online environment.

5.1.3 Recommendation III: One Way IP Education vs Consumer Education

As noted in the United Nations Guidelines for Consumer Protection, consumer education is an important component of the consumer protection regime. However, existing IP education mainly focuses on how to enforce IP law and prevent IP infringement and how to teach IP users/consumers to follow IP laws, rather than how to protect 175

A2K amendments to the United Nations Guidelines for Consumer Protection, Article 21A.

176

S G Corones, The Australian Consumer Law (2011) Thomason at 450-451

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� consumers from IP abuse or how to teach IP holders to explore IPRs in properly.177 Same holds true in the US. For example, a US scholar commentated: . . . the IP exposures US citizens receive is dichotomous. One exposure is consumer IP education. Here, limited information is disseminated to those who purchase the IP of others. Consumer IP education focuses upon purchasers, or future purchasers, of software, technology, and media. Consumer IP education is directed at explaining how the *146 products are protected by IPRs, how to abide by said rights, and proper purchasing rather than downloading or sharing.[FN14] The second exposure is producer IP education. Producer IP education informs the public of the rights and benefits IP laws bestow upon their conceptions and works of authorship. Producer IP education encourages innovation and enhances a public familiarity with the basic steps in obtaining IP protection.[FN15] Despite the recognized need of an all-encompassing public exposure to IP laws,[FN16] IP education in the *147 US has a disproportionately greater emphasis on consumer IP education, as opposed to producer IP education.[FN17]178

Indeed, the current IP education model is mainly focused on teaching consumers to follow IP laws rather than teaching IP holders to exploit their IPRs properly. In addition, current legal studies on IP abuse prevention are mainly focusing on the competition law approach. The major parties who can benefit from these types of studies are companies rather than individual consumers. As such, it is necessary to identify some new ways to help consumers to readily learn to understand and use the current legal infrastructure against IP abusive activities.

For example, the ACCC website provides a list of authorized agencies for Ombudsman and dispute resolution. Many consumers, who have not taken action against IP abuse, have simply been scared by the high cost of litigation and arbitration proceeding processes. They do not know there are so many low cost or free dispute resolution mechanisms available for them. Particularly in many developing countries, civil Ombudsman and dispute resolution mechanisms are not well developed. Most consumers rely on national consumer protection associations, and they are not very familiar with many other specialized and cheap/free dispute resolution mechanisms. For example, in Australia, the Telecommunications Industry Ombudsman (TIO) is “a fast, free and fair dispute resolution service for small business and residential customers who have a complaint about their telephone or internet service”.179 However, not every consumer, who suffers with “legal traps” in sophisticated Terms of Service and EULA (eg no suing provision), knows about this free legal service.

As such, future IP education should strike a better balance between consumer IP education and producer IP education. It should focus on both IP infringement prevention and IP abuse prevention. Future consumer IP education should not only focus on teaching consumers to respect IPRs, but also arm consumers with effective legal instruments against IP abuse. Consumers and IP users should be well informed about their rights under IP laws, consumer laws, and other consumer-related legislation. They should also be able to locate suitable dispute resolution mechanisms to defend their legitimate rights.

177 For example, most WIPO IP education projects in China and other developing countries are focusing on the “protection of IP” rather than “the prevention of IP abuse.”

178 Monisha Deka, “Notes: Pre-Professional Intellectual Property Education” in 46 IDEA: The Intellectual Property Law Review 143 (2005) at 145-147.

179

http://www.tio.com.au/about-us

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5.2 Recommendations at the International Level 5.2.1

Recommendation I: TRIPS Amendment and Minimum Requirement of Consumer Protection

5.2.2

Recommendation II: “Reverse Nation Treatment” Principle for Consumer Protection

IP Abuse provision in TRIPS should be amended. Firstly, the WTO needs to provide a clearer and more operational definition of IP abuse to protect the interests of IP users and consumers. Alternatively, it may explicitly authorise member states to adopt any measure to define “IP abuse” under their domestic laws against harming consumers.

Secondly, the WTO or the UN may consider setting up minimum requirements for consumer protections for member countries – either through TRIPS (IP related consumer rights) or through an independent International Treaty. As we know, the TRIPS Agreement has set up minimum requirement of member countries to amend their domestic IP laws to protect the benefit of IP holders. A similar strategy may also be applied to protect the benefits to IP users and consumers in general.

The United Nations Guidelines for Consumer Protection has provided a fine guideline for individual countries, particularly developing countries to amend their consumer laws. However, it is an only a guideline and not a binding law. It would be desirable if more detailed model laws (eg model law on unfair term of contract) or international consumer protection treaties with binding effects can be made in order to harmonize consumer protection laws at the international level.

As discussed above, under the current knowledge economy environment, “any global technology solution will be impacted by the laws of a large number of nation states.”180 Any global technology failure may also affect consumers in a number of countries.

Moreover, consumer protection levels in different countries are various. Consumers, particularly consumers in developing countries, often face “imbalances in economic terms, educational levels, and bargaining power”.181 However, the reform of consumer law and improvement of consumer protection level cannot be achieved overnight.

Thus, I would suggest that it may be necessary to set up a “reverse nation treatment” principle at both domestic and international levels to strengthen the consumer protection in different countries. Under this proposed principle, when a multinational/foreign company has conducted any conduct that may harm consumers, a court in the hosting country may apply either hosting country law or the consumer laws in the country where foreign company was incorporated to provide remedies for consumers. For example, although there is no Australia-style unfair term of contract law in China, if an Australia IP company uses unfair terms in EULA to harm the interests of consumers, the Chinese court can then apply the Australian unfair term of contract laws to prevent the conduct of the Australian IP companies.

In doing so, a foreign company will not be able to use the flaw of the consumer law in the hosting country to harm consumers in that country. This will not create an extra burden for foreign IP companies. It simply requests these companies not to 180 181

Nick Hart & Mark Vincent, above n 169.

United Nations Guidelines for Consumer Protection, I. Objectives.

������ ����� ����: �������� ���������� ��� �� ����� ���������� ����� ��� ��� harm consumers in a way which has been prohibited by consumer laws in their home countries.

However, one of the problems of applying this principle is that it may conflict with the national treatment principle under the WTO framework. It creates a possibility that foreign companies who were incorporated in a country without strict consumer laws may be treated differently with the foreign companies who were incorporated in a country with strict consumer laws.

In order to comply with the WTO rule, before a court decides to apply the consumer laws in foreign countries, regulators must announce that their consumer laws will be amended accordingly and make sure all companies in the hosting countries will be treated equally under the new laws.

In doing so, it will push hosting countries (who do not have strong consumer laws) to speed up the consumer law reform process. It will also force regulators and courts in the hosting countries to be more cautious when they decide to apply a stricter consumer protection law in foreign country.

5.2.3

Recommendation III: UN Compliance Regime and Involvement of NGOs

In addition to law making and law reform, the United Nations should set up a special agency or work closely with NGOs to set up an effective mechanism to assess the effectiveness of the laws on consumer protection and IP abuse prevention in individual countries.

Like the USTR, which issues Special 301 IP watch list every year, the UN or authorized NGOs should issue similar watch list or reports to assess the consumer protection status in each country, including their compliance with the UN Consumer Protection Guidelines, the effectiveness of their domestic laws in preventing IP abuse and consumer protection and the enforcement of their consumer laws. Upon request, the UN special agency or NGOs may provide detailed recommendations for law reforms in individual countries, particularly developing countries.

As introduced above, given that many developing countries lack well qualified legal experts in consumer and IP protection areas, it is necessary to encourage the involvement of NGOs in the WTO negotiation process. For example, the WTO may consider setting up a “member country invitation mechanism” which allows member countries to invite NGOs to directly participate in the WTO negotiation process.

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Conclusion

In conclusion, under the current knowledge economy environment, an increasing number of countries have noticed that governments “need to ensure that consumer law not only protects consumers, but also encourages competition and supports innovation”.182 In response to the challenges brought by “global technology solution” and in order to better prohibit various forms of IP abusive conduct worldwide, it may be necessary to get the TRIPS agreement, particularly its IP abuse provision, amended. As introduced above, the TRIPS Agreement provides a leeway for countries to make any laws to prevent the abuse of IP and to enhance technology transfer and innovation. In addition to a traditional competition law approach, consumer laws may serve as an important supplement for preventing IP abuse and enhance innovation in a long run.

In addition to the TRIPS Agreement, the United Nations Guidelines for Consumer Protection, particularly the A2K proposed amendments to the Guideline (as introduced above), may serve as an example of a possible instrument that could facilitate the resolution of the IP abuse problems and defend consumer rights under the current digital environment. In addition to soft laws, individual countries should learn from each other and consider using “binding” laws or treaties to strengthen the protection of consumers under the current digital environment, such as unfair term provisions in Australian consumer law and abusive clause provision in the Brazilian consumer law.

In order to speed up the process of law reform, some more creative legislative strategies may be adopted, such as “reverse national treatment” principle.

It is imperative that each country, particularly developing countries, should adopt more flexible approaches at both international and domestic levels to address IP abuse issues and to protect legitimate rights of their citizens in using new technology products and services. This is not only important for protecting consumers but also important for encouraging competition and supporting innovation.

182

Christian Twigg-Flesner, “Innovation and EU Consumer Law” Journal of Consumer Policy, Vol 28, Issue 4, December 2005, at http://www.springerlink.com/content/y343nu668102271r/ at 409-432 (stated: “Recent consumer policy initiatives, primarily at the domestic, but also at the European, level have emphasised the need to ensure that consumer law not only protects consumers, but also encourages competition and supports innovation). See also Australian Government, Attorney-General’s Department, “The Australian Consumer Law – An introduction” at 15 at http://www.consumerlaw.gov.au/content/the_acl/downloads/ ACL_an_introduction_November_2010.pdf (stating: “The ACL simplifies the law and makes it clearer to understand for both consumers and businesses. More informed consumers make better choices, driving competition and innovation in markets and the development of a seamless national economy”.)

2 Introduction to Digital Personal Property

Paul Sweazey

Chair, P1817 Standard for Consumer-ownable Digital Personal Property, IEEE A������� Personal property ownership rights are a basic human need. The absence of legal ownership distorts and hobbles economic systems by leaving demand for ownable products unfulfilled and by stimulating extra-legal, de facto ownership through so-called pirated products. Copyright-respectful consumer ownership of downloadable movies, music, books, games and other digital products is entirely practical, but such ownership requires an object type called digital personal property or DPP, which is neither a plain, unprotected file nor a usage-restricted file.

Introduction

It is unhealthy to allow the laws that govern the people to diverge too widely from the reasonable desires of those people. So far, digital content providers have focused on asserting copyright law with greater force so as to bridle the people’s desires for digital content until they restrict themselves to the limited forms that businesses are willing to provide them. (The beatings will continue until morality improves.)

However, when individuals are faced with a choice between what they consider to be their personal rights and what appears to be an abstract ruling of law, personal rights drive their decisions and behaviour. The specifics of copyright law are no match for the consumer notion of personal ownership. Thus, people opt for the nearest approximation to digital personal property ownership that is available to them; they rip plain file content from the protective wrapper of digital rights management (DRM) systems, and they store it away so that they know it is there whenever they want it, untethered to any big brother, as if they really owned it.

Good news: there is a way to provide consumer-ownable digital content that imposes no restrictions on usage or sharing, yet is as fully consistent with the consumer notion of copyright as it is with the consumer notion of personal ownership. You will be introduced to that mutually respectful way. Hopefully then, you will ask the questions, “Is it real, do I care, and what should I do about it?”

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Safety Over Liberty Imagine this:

Consumer-oriented legislators of your nation decide that they must intervene to protect their consumer-citizens from the shoddy quality of products sold to them. Their probusiness colleagues surprisingly agree, and together they propose legislation to make sure that businesses remain responsible for function and quality for the lifetime of their products. They pass laws declaring that, since they must remain responsible, suppliers shall retain ownership of durable goods and may only deliver them to customers through licensed services including rental and leasing. In exchange for not having to worry so much about products that break, get lost, or wear out, people’s rights to lend and share are curtailed, and they can’t resell what they never owned. Other nations follow suit, resulting in a global marketplace that delivers the same goods as before, but no longer delivers tangible personal property. And what is the response of the public? First, reports of lost and stolen goods rise dramatically. Second, a huge black market of counterfeited and off-therecord goods, both new and used, emerges and is widely embraced by the public. Why do consumers seem to lose their moral compass and embrace cheating, deception, fraud, and illegal goods? Because if everything they have is tethered to a big brother, then so are they, and they don’t feel free.

That is a ludicrous vision of the world, of course. How could people so demand safety that they would give up so much liberty. But is it so ludicrous as to be impossible in practice?

Consider today’s cyberspace economy, our marketplace of downloadable digital products. All products are delivered as licensed services. There are no consumerownable products; instead, products are tethered to some company, most by DRM technologies, and all by license agreements. And how do consumers react? People embrace any and all available sources of untethered, de facto ownable content. They break DRM protections to create untethered plain files that they can store away and use however they please, whenever they please, and without being observed or monitored. Consumers come to think of violating a license agreement or defeating DRM as trivial compared to the immorality of an always-tethered world – a world in which full personal freedom is not an option.

Sometimes, even with the best of intentions, ludicrous visions become reality.

The Digital Marketplace as it Should Be

Now consider a healthier vision of how the digital marketplace for downloadable movies, music, books, and games could be: A consumer goes to his preferred online store to find a downloadable movie, song, book, or game. He finds the title that interests him and sees that it is available in a number of forms for a range of prices, including a variety of features, and subject to various combinations of usage and sharing restrictions. The consumer weighs his needs and desires against the available offerings. Among his choices are content streaming services, rental services, and even services that offer “permanent” downloads. Those “permanent” downloads may employ digital rights management (DRM) to enforce usage restrictions, or they may consist of plain, unprotected files. All of these options are offered to the consumer with the clear understanding that they are indeed licensed services, not consumer-ownable products.

So far, the only difference between this vision and today’s reality is the “clear understanding” that everything is a service. Currently, suppliers commonly present their services as if the customer were buying a product to own. The license agreements say otherwise. But there’s more to this future vision:

���� �������: ������������ �� ������� �������� �������� Besides all of those services, the shopper sees some choices labelled “DPP”. DPP stands for digital personal property, and it signals to the shopper that, if he buys it, then he really does own it.

If that last paragraph sounds reasonable to you, then you are in the majority. Most people think of digital products as practically, feasibly, ownable things. Most people are woefully unaware of the quagmire of legal and technical issues that make consumer ownership of digital products so problematic.

Security for Consumers

Digital personal property, or DPP, can be thought of as a wrapper around a media file that turns it into a singular, ownable object. The components of the product item are: (1) an encrypted media file, (2) a decryption key, and (3) a URL that points to (4) an online authenticity certificate. The file, the key, and the URL are downloaded directly to the consumer’s media player, whereas the certificate is deposited in a secure online repository.

But wait! Encrypted files? Keys? Certificates held by some online Big Brother? If you know anything about digital rights management (DRM) systems, then you’ll note that DPP has all of the ingredients that DRM might use to burden the consumer with usage restrictions and behaviour monitoring. That doesn’t sound like ownership at all, and you would be right to be suspicious because restrictions and monitoring are antithetical to personal, private ownership. DRM applies technology to the monitoring and constraint of customer behaviour, but as you will see, DPP applies its technology instead to preserving the attributes that make products ownable, freely usable and sharable, and even resellable.

The Nature of Ownership

In this discussion, the word “ownership” refers to the non-commercial personal property rights of individuals, distinct from commercial intellectual property rights that consumers think of as the purpose of copyright law. Think of ownership as the property right of a private citizen as the result of, say, purchasing a printed book. The experience delivered to the consumer-owner is the aesthetic appreciation of a copyrighted work by possessing a physical book, including the ability to share that experience with others within the natural limits imposed by the physical nature of the printed book.

Not only does the consumer understand that republication is not his right, but the physical nature of the book reminds the consumer by making republication inconvenient.

The Bicycle Test

Now consider this simple example that illustrates what ownership means to consumers: Say that you have a son and that he owns a bicycle. He can ride it, do acrobatics with it, or block the front door with it (use). He can let anyone else use it (inclusion) or refuse to share it (exclusion). He can add a headlamp, remove the fenders, or grow rust on it (customisation). He can sell it to a neighbor or give it to a younger sibling (transfer). If he leaves it unguarded or lends it to the friend of a friend he may lose it (responsibility).

Once he grows up he will be able to do these things without your supervision (privacy) or your permission (autonomy).

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True ownership includes fundamental rights. It also implies responsibilities, since freedom from Big Brothers necessarily means that it is your loss if you fail to properly care for your property. The attributes of use, inclusion, exclusion, customisation, transfer, responsibility, privacy, and autonomy are not just intuitively understood characteristics of ownership, they are essential to the social contract upon which the commerce of copyrighted products is based, “You respect my right to private freedom, and I grant your right to profitable public distribution”.

These consumer notions of ownership and copyright are not the law, but they are more fundamental and universal than law. They are the basis for public respect of copyright law.

The Role of Media Players

A media file requires a media player for its use. The player is an electronic device with appropriate software to enable you to use digital content. When handling a plain, unprotected media file, a player can support the user by playing, editing, mixing, copying, or performing any other function that the player maker might think to provide, but when playing DRM-protected content the player conforms to rules that limit what the user is allowed to do. The same player can play plain files or DRM files, but it only applies restrictions for DRM files and streams.

A DPP media player is one that understands the difference between a plain file, a DRM file, and a DPP file, and behaves accordingly. Among other things, the job of a DPP media player is to make sure that you never even notice that the DPP media file is encrypted. The DPP player enables for DPP everything that is possible with plain files.

Digital Dysfunction

The fact is that all legitimate, for-profit, media delivery services on the Internet are just that. . . services. They grant limited access and usage of the media they deliver under end-user license agreements and terms of service, and even if they wanted to sell content to own, there is no legally blessed definition of what such consumer ownership means. Specifically: • Content protected by DRM is too restrictive to satisfy the consumer notion of ownership.

• Plain, unprotected files are effectively public goods, not ownable private goods.

They are so easily copied and distributed as to guarantee both for-profit counterfeiting and for-fun distribution to strangers.

• Suppliers intentionally present unownable services as if they were ownable products, and in response consumers see those pseudo-products as unfairly and unreasonably restricted.

• Today’s so-called buy-to-own downloads are licensed but not owned, whereas both suppliers and consumers are generally unaware that consumer-ownable downloads could be made technologically feasible and commercially practical.

���� �������: ������������ �� ������� �������� ��������

Plain Files: Unownable Public Goods

Basic economic theory describes private goods as products and resources that are both excludable and rivalrous. “Excludable” means that a good can be kept from those who do not have a right to it, eg, who have not paid for it. “Rivalrous” means that a good is a limited resource, so access to the good by some people makes it inaccessible by others. The term “ownership” makes perfect sense when speaking of a private good.

Public goods are products and resources that are neither excludable nor rivalrous. It makes little sense to claim ownership of a public good – like trying to own air. With transmission and storage of digital data so cheap as to be essentially free, a plain media file is a de facto public good for a large fraction of the world population.

A public good is a boon to global society. Producing and distributing plain-file content to the planet enriches all of those who are blessed with access to the electronic devices that can play them. Yet there is a balance to be achieved; if all goods were public goods, then the commerce by which we earn our daily living would be far more difficult. We will never have the problem of public goods supplanting private goods for physical products that provide us with basics like food and shelter, but that problem is real for many who would like to build their lives and livelihoods around the creation and delivery of digital goods. Copyright is especially important for our cyber-economy because it empowers creators of digital goods to be rewarded for their creative efforts.

DRM Files: Unownable Private Goods

Digital rights management (DRM) is content protection technology, and we use it to impose exclusion and rivalry upon digital objects. The effect is to make each delivered, DRM-protected, digital object into a private good. Private goods can be ownable, but so far, DRM has always been used only to protect the ownership of the intellectual property owner, making them unownable by the consumer. Even the name, “digital rights management” implies that there is something to be managed, turned on or off, and selectively controlled under particular circumstances. DRM manages the limited subset of rights (ie, privileges) that the supplier chooses to grant to the consumer under a particular end user license. The focus of DRM is entirely on the intellectual property rights of the copyright holder.

It is extremely important to emphasise that DRM is not an inherent evil, but rather an important and even necessary component of the business of offering content delivery services to the public. To fail to make a digital object excludable and rivalrous is to implicitly acknowledge that a public good is being delivered. There is nothing wrong with providing a service that does not deliver consumer ownership. It is only in the context of an ecosystem in which consumer ownership is a practical and legal impossibility that DRM earns its reputation for denying fundamental rights to consumers.

We are not talking about moral absolutes by declaring ownership to be necessary; rather, we are simply deducing from observations of common human behaviour. If you do not offer the option to own, then people create their own approximation. They rip content to plain files, and they find their freedom, independence, and sense of ownership in the resulting public goods.

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DPP: Ownable Private Goods

If plain files aren’t consumer ownable, and if DRM files aren’t consumer ownable, then what digital object is consumer ownable? Keep in mind the intuitive definition of a kid and his bicycle; it is the kind of ownership that regular humans can relate to. If DPP is to be consumer-ownable, it had better meet the bicycle test. Think use, inclusion, exclusion, customisation, transfer, responsibility, privacy, and autonomy. The concept of a private good is implicated in these ownership attributes. Responsibility (to care for and protect your property) is related to being rivalrous, because your property sometimes disappears when others want for themselves what is yours. Exclusion is precisely related to being excludable, but ownership also implies the complement of exclusion, inclusion, or the right to share with others.

Everything that you can do with a plain file should be doable with digital personal property. You should be able to copy it, make backups, give copies to others to share, modify it as you choose, and use it as you see fit. But unlike a plain file, once you give or sell it to someone else it should cease to be available to you; otherwise, you need a public good, not a private one, and the price to be paid for that luxury is the loss of profitability in trying to sell such a good to the public. People see that profitability as the intent of copyright, as stimulus to reward creativity and fuel the economy for us all.

Public vs Private

What is the essential difference between the reasonable rights of the consumer-owner and of the copyright owner? Legally, this is a complex and unsettled question, but for consumers it is fairly simple. The consumer’s rights are of private use of one product item (including reproduction, without which digital goods are completely useless).

The copyright holders rights are of reproduction for public distribution and commercial profit. The key distinction is the boundary between public and private. Only private individuals can draw that line, not a government agency or corporation or software application. DPP must provide a means for consumers to specify the separation of private from public. It does so through two features of media players, one expressing generosity, and the other expressing selfishness.

GIVE: The Generosity Button

If your movie, song, book, or game is a plain file or a DRM file, then everything works just as your media players work today, but if the content item is DPP, then a new button appears on your media player, the GENEROSITY button. Of course, it will have some other label like GIVE or SHARE or COPY or SEND, but by pressing the GENEROSITY button you share your DPP with others.

Everyone who shares your content can play it, simultaneously or independently as they choose. Every one of them also has a GENEROSITY button; they can share your DPP item too, with anyone they may choose, and without asking your permission first. If you shared with them, you did so with the knowledge that they would become empowered to share also. Your generosity is an act of personal trust.

There is no limit to generosity. I can share with you , you can share with others, they can share with others. You and I are only sure to know the identities of those with whom we directly share. The GENEROSITY button makes DPP as freely sharable

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While acknowledging that there is no single name that labels the GENEROSITY buttons for all circumstances, we’ll call it the GIVE button.

TAKE: The Selfishness Button

Whenever a DPP media player’s PLAY button is enabled, its GENEROSITY button is enabled too. And likewise, a SELFISHNESS button is enabled. The SELFISHNESS button is the means by which you stake your claim to ownership of a DPP item.

If you buy a DPP item, and if you never press the GENEROSITY button, then the SELFISHNESS button does nothing; however, once you share your DPP with someone else, you have effectively shared ownership with any and all future sharers. Any number of copies of your DPP item may be in the possession of any number of other sharers. When you click the SELFISHNESS button you assert your position as owner by disabling for a given DPP item the PLAY, GENEROSITY, and SELFISHNESS buttons for every other player except yours.

The SELFISHNESS label is a rather abstract name for a button, and burdened with negative social implications. Depending on the context, the button might be named TAKE, ERASE, COLLAPSE, RECLAIM, RETURN, OWN, etc. We’ll call it the TAKE button.

Lots of Other Buttons

Any DPP play, manipulation, or editing feature that the player maker can think of is encouraged, as long as such features do not defeat the efficacy of the GIVE and TAKE buttons. GIVE and TAKE are the risky powers that make DPP useless in the exchange economy of public distribution, while making DPP highly valued in the gift economy of private, personal relationships. Once DPP enters the gift economy of friends and family, the dangers of leaving all other usage functions unrestricted vanish.

People equate the absence of restrictions with personal liberty, which is the essence of personal property ownership.

Understanding GIVE and TAKE

The game of chess is based on a simple set of rules about the movement of various chess pieces, with very few special cases to consider, yet those simple rules lead to a very complex game whose mastery challenges the limits of human intellect. Similarly, the game of DPP sharing is based on two very simple functions – GIVE and TAKE – yet their implications lead humans to make highly subtle and nuanced judgments, tradeoffs, and decisions about when to share and with whom they ought to share. We often fail to understand GIVE and TAKE when first introduced to them because of familiarity with how content protection has worked so far, because we can’t imagine protection without restrictions, and because our own limited vocabularies mislead us.

GIVE and TAKE are actually pretty simple concepts.It is not the subtlety or complexity of GIVE and TAKE that confuses us, but the dissonance that we feel if we have particular knowledge or expertise in the technology of DRM or the legal issues of copyright. A defender of DRM and copyright, upon hearing what the GIVE button does, is likely to be upset by the implications of encouraging people to make and distribute copies without limit. Meanwhile, a defender of the rights of consumers, upon

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hearing what the TAKE button does, is likely to object to a content protection technology that doesn’t take measures to protect the rightful owner from malicious behaviour by sharers. After all, if DRM can overtly protect suppliers, why can’t DPP overtly protect consumers?

Sometimes you can’t believe your own ears. You are told that there are no restrictions, but you are likely to assume that this is just a semantic trick that calls a restriction by a different name. Before DPP, every alternative to the plain file that you have ever heard of has imposed some kind of restriction on the consumer, yet GIVE and TAKE impose no restrictions; instead, they endow consumers with new powers. . . risky powers. In the real world of tangible personal property, you restrain your own behaviour, not because you are forced by restrictions, but because unwise behaviour leads to negative consequences. Through consequences, not restrictions, consumers learn to exercise GIVE and TAKE judiciously, because of the potential to lose that which is shared with the untrustworthy, and because of the chess-like array of social consequences, both positive and negative. GIVE and TAKE make digital life like real life.

Sometimes language is inadequate. There is no single, simple word (at least in English) that unambiguously describes the functions of the GENEROSITY and SELFISHNESS buttons, now called GIVE and TAKE. The actual effect of the GIVE button is to give a playable copy of the encrypted file to another player, enabling both players to play the content simultaneously, concurrently, or independently. The word “give” implies that the giver may not be able to play it. SHARE implies that the two players have to use the same encrypted file. The word “copy” implies that the receiver’s copy is no longer coupled in any way to the original DPP item as a whole. The word “send” leaves open the question of what was sent and what remains behind. The word “generosity” expresses the perfect emotional intent, but provides no hint at all about what ends up where. All of the names for TAKE have similar shortcomings. There simply is no single, perfect word to describe either button, yet once you learn what the buttons do, you realise that they are very simple functions.

You would be wise to revisit what the GIVE and TAKE buttons actually do because it takes everybody more than one look to grok them. It is important to understand them, and to recognise why they might make content suppliers nervous or give consumers cause for concern. You will see the balance of upsides and downsides for both suppliers and consumers. You will recognise that they are the same upsides and downsides that define a balance of fairness for tangible personal property ownership.

You will understand how one can expect that same fairness to be preservable for digital personal property.

The Role of DPP in the Marketplace

The purpose of DPP is to fulfill the consumer demand to buy and own digital products. It is not intended to replace DRM files, nor to supplant any of the great variety of content delivery services available today or destined to be introduced in the future.

DPP is meant to replace plain files wherever plain-file distribution has the effect of devaluing the perceived worth of a product or eroding respect for copyright in the eyes of consumers.

Some have suggested that DPP should not exist because there is no real demand for it. Others feel that DPP should not exist because there might be great demand for an open standard that is so user-friendly that it would unfairly compete with DRM-based

���� �������: ������������ �� ������� �������� �������� content services. (These are often the same people.) Still others oppose DPP because it might flood the world with unprotected content after pirates compromised its security (although no basis for a DPP-unique security weakness has ever been identified). Basically, those who have figured out how to profit from today’s marketplace naturally tend to fear any major disruption to the status quo, and to be sure, DPP is a major change. Luckily, the nature of the change is that the digital marketplace will be bigger, more varied, and more healthy than it is today – the inevitable result of introducing real ownership to consumers.

The role of DPP is not just to migrate existing revenues into DPP-based ones, but to add revenues. It will do so, not just with a new product category, but by validating existing services and business approaches. People are smart; they intuitively know that you are wrong to claim that usage restrictions are the only way to preserve your bottom line. They weren’t necessary before; why should they be so impossible to avoid in cyberspace. People also recognise when trading a bit of liberty for increased safety is in their interest. Sometimes people would prefer to avoid the burdens of ownership, and the convenience of services provides exactly what they really desire.

The Special Value of DPP

DPP is like a balloon on a pump. Each click of the GIVE button is a push on the handle of the pump that expands the DPP item balloon. But one click of a TAKE button pulls the balloon off of the pump, collapsing it quickly to the size it was when it was first purchased – just big enough for a single player to use. An item of digital personal property can always expand to fill any private need for any number of people, but every one of those people can pull the balloon off and walk away with it.

Without going into technical detail, let us explore the ways in which digital personal property provides unique value.

No Supplier Tethers

A consumer buys a DPP item from an agent authorised by the holder of the copyright for the content item. Just as with a physical instance of a copyrighted work (think DVD or printed book), a single purchase and payment results in a single legitimately owned item among consumers. As with physical product items, the creator, manufacturer, distributor, or seller of the product item loses the capacity to monitor or control access to it after the sale, and the purchaser of the item has full control over who can access it and who shares knowledge of its existence.

Digital Advantages

The reason to prefer an electronically distributable, purely digital product over a physical instance of it is to be able to benefit from the digital advantages that naturally accompany digital objects. That is, obstacles of time and space are largely irrelevant, so copies can be created, transmitted, stored, and used independently of each other, at any time, and in any location.

Untitled Property

Few items of personal property are titled. Examples include real estate and automobiles, whose ownership is typically recorded and maintained by a government agency.

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The vast majority of our personal property is untitled. The purchaser often has a receipt, which can serve as a proof of purchase, but the receipt is not an ownership record. Ownership of untitled property is governed by individual behaviour and personal relationships. When an untitled property item is made accessible to more than one person, then those people involved operate on a shared consensus about who among them is the true owner. Disputes about ownership of untitled personal property are almost always settled privately, without the intervention of government agencies, business entities, or automated arbitration services.

DPP is untitled personal property. Associated with each sold DPP item is a unique certificate of authenticity, but it is not a certificate of ownership. It is more like a purchase receipt than a title document. It exists, not to identify the owner, but to thwart counterfeiting and fraud. It contains information about the source of the item, but contains no record of who owns or has owned the DPP item.

Resale Value

Benjamin Franklin said, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” Franklin might have been rather enthused about DPP because it certainly does err on the side of liberty over safety. Specifically, since DPP is untitled, no formal transactional record is required in order to transfer ownership from one person to another. Individuals are free to give and take, sell and buy, bequeath and inherit, and even to steal DPP without having to worry about any title or certificate of ownership. The transfer is not recorded with an ownership registry, and in particular, the suppliers of the content cannot monitor or prevent transfers. An ownership license agreement must make content exchange and resale legal; otherwise, it wouldn’t be ownership.

When you own something with resale value, you treasure it more than if it had no ongoing monetary value. DPP retains both the functional, aesthetic value of a creative work and the monetary value that derives from the potential to resell it.

World’s Strongest Security

A digital product’s persistent resale value benefits suppliers as well as consumers, and in a way that is not true of physical products. All digital products are particularly vulnerable to for-profit counterfeiting and for-fun public redistribution. Cryptographic techniques and key protection features are used to defend against counterfeiting and public distribution of both DRM files and DPP files. Given sufficient effort and resources, security features can always be defeated. We can certainly design DPP security to attain the same state of the art as DRM security, but it is not possible to guarantee that it will be more secure than any DRM system. Nevertheless, DPP has a distinct and powerful advantage over any DRM scheme: DPP is designed primarily to protect the interests of the consumer and is specifically designed to avoid any restrictions on consumer behaviour. Therefore, consumers have no motivation for defeating DPP security; moreover, they have a vested interest in maximizing the security of DPP. Why is strong DPP security important to users? Because DPP security protects the real monetary value of the DPP that they own. That value is explicit and measurable simply by checking the going price on the used DPP market.

Those who fear the existence of a used digital content market should consider which is worse: a world in which all new and used content was legitimately bought from original vendors, or a world without used content in which only a small fraction

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The safest are those with the least enemies. To avoid enemies, make only friends.

If you want customers to accept your security, ally with them by making sure that it protects them too.

DPP Structure and Infrastructure

DPP is composed of encrypted files, keys, certificates, and URLs to locate those certificates. For consumers to have and own DPP there must exist the following elements of DPP infrastructure: (1) a DPP standard, (2) media players, (3) product items (4) certificate banks, (5) certificate mints, (6) DPP ownership license agreements, and (7) DPP governance. We will examine each of these components in some detail, but first we will look at the role of two more ownership attributes – privacy and autonomy.

Design Foundation of Privacy and Autonomy

Nothing more vividly separates DPP from DRM than how DPP protects the privacy and autonomy of the customer. They play a central role in shaping the implementation of DPP and its infrastructure. The philosophy of DPP is a rather libertarian one, because DPP needs to operate with the least possible coordination of central authorities.

• Private individuals define the boundary between public and private, based on who they trust to honour their personal property rights. Private sharing depends upon inter-personal trust rather than monetary accounting, whereas public distribution is distribution to strangers, typically based on monetary exchange.

• Any private use that could be made of a plain-file content item can also be supported for DPP items by a DPP media player.

• Whenever multiple media players share the same DPP item, they do not discriminate sharers from the owner.

• When multiple users share the same media player, the player may implement security features that selectively disable access or usage features based on who is using the player.

• When a DPP item is shared from one media player to another, the DPP item is shared without discrimination; the giver may not impose any usage or sharing restriction upon the receiver. In particular the GIVE and TAKE buttons of the receiver are fully functional.

• No feature of the DPP infrastructure shall attempt to track or record the GIVE, TAKE, or other functions of any player, nor provide to any sharing player forensic information intended to identify who might issue or receive a GIVE or a TAKE, beyond that which is required for the secure and successful completion of GIVE and TAKE functions.

• GIVE and TAKE functions between locally-connected players do not require Internet access to complete. Multiple simultaneous TAKEs (ultimately resolved by Internet access) err by leaving the DPP item playable in the interim.

This same list can be abbreviated with slightly less precision but much greater clarity:

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• People define “private” for themselves.

• DPP is as flexible as a plain file, but more valuable.

• DPP is untitled property; ownership is a social judgment.

• You control your own player.

• You can’t restrict other peoples’ players.

• DPP is not a policeman, spy, or big brother.

• DPP works without Internet access.

IEEE P1817 Standard for Consumer-ownable Digital Personal Property

The IEEE P1817 Working Group is a committee of volunteers that was formed in July of 2010. They are creating the P1817 Standard for Consumer-ownable Digital Personal Property. The Working Group has neither the resources nor the authority to implement and deploy DPP; rather, its job is to define DPP and publish that definition as an open, global standard. It’s mission is well expressed by its Project Authorisation Request (PAR), which was approved by the IEEE in May of 2010. The answers below are taken directly from the PAR: Q: What is the purpose of the Standard?

A: The purpose of the DPP standard is to create a supplier- and platform-independent form for copyrighted works for sale to consumers as the digital equivalent of tangible personal property; providing significant barriers to counterfeiting or to ripping and illegal file sharing, while enabling consumers to privately own, use, and share their purchases without sacrificing the autonomy and privacy that they associate with personal property ownership.

Q: What will the Standard specify?

A: This standard describes methods, algorithms, protocols, and governance mechanisms involved in the cryptographic protection of copyrighted works from public redistribution and in the preservation of consumer autonomy and privacy.

Q: Why is the Standard needed?

A: Consumers need a purchasable form of copyrighted works that is consumerownable in the same sense that printed books are ownable. They want their digital property to be privately usable, sharable, and transferable without restrictions, and to be vendor-independent and de-tethered from suppliers. Suppliers need an alternative to unprotected files when they choose to sell copyrighted works without usage restrictions. They need a consumer-ownable form that protects the singular nature of each sold item and that prevents those items from being shared with the public. The standard will resolve the problem of simultaneously satisfying these consumer and supplier needs.

Q: Who are the stakeholders in the Standard?

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Visit http://standards.ieee.org/develop/project/1817.html for more information about the P1817 Working Group.

Media Players

The most visible requirement for consumers is the DPP-aware media player. It is through media players that all digital content is experienced by consumers. Users will discover that they have the right and the means to share their DPP because their media players will present them with a GIVE button and will help them to designate the media players of others as sharers. They will discover that they can terminate sharing and claim or reclaim ownership because they will see a functioning TAKE button. They will learn to exchange content using the GIVE and TAKE buttons. They will quickly realise that sharing with the untrustworthy will put their property at risk. Through the player they will come to value DPP above all other types of content for its value as social currency, enabling the communication of things more valuable than money such as kindness, generosity, trust, and respect.

New DPP content uses, which “service” license agreements have not allowed, will be made possible by the continual evolution of media players with new features and functions. The media player business, including both the hardware platforms and the software applications and interfaces, will find unlimited opportunities to innovate and compete once high-value DPP content becomes available, unfettered by license agreements written to explicitly forbid any new features or usage scenarios.

The promise of meaningfully ownable DPP can only be fulfilled by the broad adoption of DPP compatibility across all market segments in support of all media types. A narrow, limited deployment of DPP players will not do. In other words, DPP media players will not be a new wave of players that compete with existing ones, but will be upgrades of existing players so that they understand the structure and function of DPP, just as suppliers normally upgrade their player products when new media types and formats emerge and gain popularity.

The DPP media player will be designed to conform to the eventual IEEE 1817 standard, and to the security conformance and robustness requirements of the eventual DPP governing body.

We can call the DPP-compatible media player the GIVE & TAKE player, with at least two new buttons. Use is the PLAY button. Inclusion is the GIVE button. Exclusion is the TAKE button. Unfettered use and customisation are any new functions or features that player makers can think of. Transfer, whether a resale or gift, is just a GIVE followed by a TAKE. Responsibility derives from the shared, risky power to TAKE valuable, resellable content. Privacy and autonomy are protected by the design of the overall DPP ecosystem, including the security features of the GIVE & TAKE player.

DPP Items

A DPP item consists of (1) an encrypted file, (2) a decryption key, and (3) a URL pointing to (4) a DPP certificate of authenticity that resides in an online DPP bank account.

All but the DPP certificate are delivered to a consumer upon first sale by the origi-

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nal content vendor, whereas the certificate is delivered instead to an online DPP bank account designated by the content purchaser.

Encrypted File

The encrypted file contains the data which, if it were not encrypted, would constitute a freely playable, plain-file content item. The creative work is fully embodied in this file.

There is no technological or legal constraint on the copying, storage, or transmission of the encrypted file. The absence of restrictions on encrypted file copies is what empowers people to make their own backups. Such backups are necessary whenever the owner opts not to employ a service to store and maintain backups for him. The option to provide such services and to take advantage of them is allowed and encouraged.

When a GIVE button is depressed, the source player may either deliver a copy of the encrypted file to the receivers or may provide them with a URL from which the content can be downloaded. When a TAKE button is clicked, copies held by former sharer players remain; they become unusable because former sharers erase their copies of the decryption key. Thus, restoration of sharing by a GIVE after a TAKE does not necessitate that the encrypted content be refetched by the restored sharers.

Decryption key

The decryption key is the unguessable quantity that must be known in order to decrypt and use the encrypted file. The key is delivered by secure means to the media player of the purchaser. The media player is designed to protect the key from discovery. The player applies the key to the encrypted file in order to make use of the content on behalf of the player user.

When a user selects players to share with and clicks the GIVE button, GIVE messages containing the decryption key and the DPP certificate URL are transmitted to those players. Decryption keys may be erased in order to thwart attacks by malicious agents who might try to discover them. Keys are also erased whenever a player receives a TAKE message from another DPP player for the corresponding DPP item.

The key is never used by content suppliers to control behaviour or impose restrictions on users, suppliers cannot revoke or erase it from media players, it remains entirely in the possession and under the control of DPP users, and users can create a new copy of the key for every player that shares the DPP item.

Certificate URL

The DPP player may request a new copy of the decryption key by sending a key request to the bank account holding the DPP certificate. If the certificate URL is valid, then the key is provided to the player. An invalid URL indicates that a TAKE was successfully executed. Whenever a user activates the TAKE button, the player sends a certificate MOVE request message to the DPP bank where the certificate is stored. If the message indicates that the certificate belongs in the same bank account, then the URL is changed to a new, unguessable value; otherwise, the certificate is transferred to the new bank account designated by the MOVE message. In either case a new URL is returned to the player that issued the certificate MOVE request (the one that issued the TAKE), and only a single DPP certificate survives the transaction.

DPP media players periodically check to see if their certificate URLs are still valid; in particular, the URL is verified as soon as possible after a player receives it from

���� �������: ������������ �� ������� �������� �������� a GIVE message issued by another player, or as soon as is convenient after a DPP item is selected or queued for play. Whenever a URL is determined to have become invalid, the player immediately erases its securely-stored copy of the corresponding decryption key, making the content item unplayable by that player and de-activating the corresponding GIVE and TAKE buttons.

If a player receives a TAKE message from another player after issuing its own TAKE messages for the same content item, then it delays erasure of its copy of the decryption key until it can verify whether its MOVE message to the online bank was successful or not; otherwise, receipt of a TAKE message from another player disables the content item immediately.

DPP Certificate

A DPP certificate is always and only created and issued by a secure DPP mint, as authorised by the DPP governing body. Every DPP certificate is unique. It contains information about the content item including identifying information about the copyright holder, the copyrighted work, and the DPP mint, while containing little or no information about the original purchaser or subsequent takers. It also contains the decryption key that is unique to the particular DPP item of which it is a part.

A DPP certificate exists to establish and preserve the authenticity and singularness of a particular DPP product item. As the basis for the economic integrity of the entire DPP ecosystem, DPP certificates always reside within user accounts in online DPP banks. Certificates may be renamed within an account (ie, given a new, unguessable URL), or they may be moved from account to account or from bank to bank in response to TAKE button clicks by users, but they are never replicated and never exist outside of the DPP banking system.

DPP Certificate Banks

DPP banks are online services. They are responsible for defending the integrity of the DPP ecosystem, and must prevent the injection of forged certificates into user accounts or the duplication of DPP certificates. Users select the DPP bank of their choice and establish an account.

The DPP ecosystem works equally well whether or not people keep their certificates in their own account or in the account of a family member, of a friend, or even of a business entity such as a vendor of DPP content items. However, the holder of the account can look inside it, and can see which certificates are held within it. If a user’s player or players are lost, damaged, or somehow corrupted, only an account holder can rediscover the valid certificate URLs by accessing his online account.

In addition, and for protection of one’s personal privacy from observation by content suppliers or others, establishing and using a personal DPP bank account protects the privacy of the consumer. This eliminates the possibility of monitoring of certificate interactions and movement by anyone other than the account holder. For those interested in trading private information for services, content vendors might offer to provide certificate accounts to their customers for free in exchange for the power they would have to observe certificate use.

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DPP Certificate Mints

How does a DPP item come to exist? The content vendor can create files, keys, and URLs, but the vendor cannot create its own certificates; an authorised and secure DPP certificate mint must issue the certificate to the vendor. Why? DPP certificates are analogous to money. Each certificate represents a unique and singular product item, legitimately produced and sold by the rightful holder of the copyright. The certificate (and therefore the content item) must remain singular even after the vendor and copyright holder lose the ability to control or observe its location and usage, and even after the vendor and/or copyright holder cease to exist. Counterfeiting a certificate should be very, very hard, injecting it into a DPP bank should be even harder, and avoiding detection of duplicates and forgeries should be harder still.

Content owners purchase certificates from a DPP mint and have them deposited into the bank account of a DPP vendor. Content purchasers (consumers) transfer certificates from the account of the vendor into their own account as part of the purchase transaction. Once created, DPP certificates continue to exist until and unless an authorised account holder accesses the account and instructs the bank to destroy the certificate.

Ownership License Agreement

The ownership license agreement is a boilerplate end-user license agreement intended to apply to any and all sold DPP products. It is the legal contract that grants to consumers the rights of personal ownership, which go beyond what could be inferred from copyright law. The P1817 Working Group is considering whether the ownership license should be a formal component of the eventual IEEE 1817 standard, or whether it should come from a separate governance organisation.

Since there is no generally agreed upon legal definition of digital personal property ownership, how can anyone claim that DPP is legally ownable? We face a sort of “chicken and egg” problem in that the law cannot create formal protections of digital product ownership without a legal definition of that ownership, any more than traffic laws could have been written before there were automobiles and systems of streets and highways to support them. Digital content services have faced a similar problem with copyright law. Taken literally, copyright law would label virtually all digital content transmission, storage, processing, and presentation as acts and instances of infringement. The standard escape mechanism is achieved through contract law; terms of use and end user license agreements call out exceptions under which copyright holders grant rights that copyright does not. Copyright holders, through license agreements, can permit whatever digital content usage that they may choose. In other words, DPP does not need copyright law to catch up to it; practical, de facto consumer ownership can be enabled by employing a boilerplate “ownership” license agreement, voluntarily applied by vendors to the sale of DPP in exchange for the powerful claim that their products are truly consumer-owned.

It will be some time before it will be possible for legal systems to arrive at a shared definition for consumer ownership of digital products. Meanwhile, a de facto state of ownership that satisfies consumer desires can be achieved using the ownership license agreement. Legally, DPP is licensed; practically, it is owned.

Governance Organisation

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The DPP ecosystem requires that copyright holders, content vendors, media player producers, mints and banks adhere strictly to a set of rules and requirements. Multivendor, widely deployed, de facto standard content protection systems (eg, DVD CCA) accomplish this by forming consortia, alliances, and other governing bodies, then requiring that participants sign legal contracts with those bodies, obligating each other to conformance. For this consumer-focused effort to enable ubiquitous consumer ownership, the board of directors for the governing body or bodies should be required to include representation by organisations committed to the interests of consumers.

Challenges to DPP Deployment

The formation of a standards committee is no guarantee that DPP will come to exist.

Before DPP can happen, many different groups and stakeholders must achieve certain milestones: They must become aware that consumer ownership of digital products is currently unavailable and that such ownership is feasible. They must determine that DPP is in their best interest and in the best interest of society. They must recognise their role in enabling consumer ownership, and they must take action to bring it to fruition. Emergence of DPP may be likely over the long run, simply because the absence of ownership is at the root of so much dysfunction in the digital marketplace, but in the short run the odds are against it. Still, that is no reason not to try. Meanwhile, let’s consider a couple of sources of obstacles to the birth of digital personal property.

Dangerously Disruptive Ideas

Upton Sinclair said, “It is difficult to get a man to understand something, when his salary depends upon his not understanding it.” Existing, profitable companies are poorly equipped to recognise and exploit disruptive new technologies, even companies that were founded on revolutionary ideas. Established, successful companies know what they are doing. They plan out their future and know where they are going. Unavoidably, their plans cannot account for unanticipated breakthroughs. Almost everyone in the company is paid to make sure that the plan is carried out – a plan unperturbed by new insights. Therefore, when a disruptive idea appears – an idea that could invalidate the current plan – the natural reaction of executors of the plan is to ignore the new idea, to doubt it, to fear it, and to silence it. Generally speaking, only company leaders, and only the best of them, are both immune to the mythology that the plan is perfect and brave enough to explore the possibility that the new idea could lead to a better plan.

In spite of our millennia of experience and success with markets and economies based upon tangible personal property, the idea of digital personal property is very hard for businesses to embrace because it is new, revolutionary, and disruptive. To embrace DPP is to rewrite and rework business plans and market strategies. DPP is therefore hard to sell to established companies.

One way to overcome the fear of disruption is to demonstrate and prove viability and profitability through a small-scale deployment, perhaps executed by an independent group within a larger company, by a separate and smaller company, or by a startup venture. A second way is to sell directly to visionary leaders, but this requires

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that the promoters gain access to those leaders. A third way is to publicize the idea widely enough to establish a public consensus of the value and desirability of the idea so as to attract the attention of the visionaries who have the power and the courage to pursue it. Any of these approaches could result in successful DPP deployment.

The Peacemaker’s Dilemma

Another similar obstacle to popularizing and deploying DPP is what could be called the “peacemaker’s dilemma”. A cyberspace struggle is in progress – a sort of digital war – between defenders of copyright and defenders of consumer rights. You may be a warrior in that struggle. DRM, for better or worse, is presently the first line of defense against digital copyright infringement. Elimination of DRM is the primary mission of many who seek to defend consumer rights. On both sides, warriors like yourselves contribute to the war machine with their technical, legal, political, managerial, and leadership skills. Some of you have become deeply committed to the effort and comfortable in your positions. On the other hand, some defenders of copyright have serious reservations about a war whose rhetoric tends to characterise many or most of our fellow humans as amoral or immoral adversaries. Some defenders of consumer rights are uncomfortable with rhetoric that not only resists draconian expansion of copyright but advocates its weakening or even suggests its elimination.

The peacemaker’s dilemma is that it is extremely difficult to sell peace to warriors and combatants. The job of warriors is to win the war. All of their efforts are concentrated on winning, and on defeating their opponents. When your job is to win rather than to find peace, objectivity and empathy are counterproductive to your goal and tend to be ignored.

The establishment of digital personal property rights is a middle ground that disrespects neither the freedom of individuals nor the value of copyright. DPP is a plea for peace. The most common reaction by warriors on either side of the struggle is to reject DPP, even though the common reaction by consumers has so far been positive and supportive. Civilians are far more likely to plead for peace than combatants. This leads us to the conclusion that the audience most likely to call for DPP is the public. The problem is that the public is largely unrepresented in relevant discussions. Is it reasonable to hope that consumer advocates might be in a position to make DPP a reality? Is there a way for consumer advocates to hear the message of DPP from the perspective of the civilian or the peacemaker, or are they fixed as warriors in the struggle?

Conclusion – A Causal Connection to Piracy Consider this thesis: The absence of consumer-ownable digital personal property is a primary cause of unauthorised content usage – so-called content piracy. The proliferation of ripped, DRM-stripped media files among the public, and their casual acceptance of it, is not the result of some global decline in morality as some have suggested.

It is a result of a cyberspace marketplace that denies the fulfillment of basic human needs (the autonomy and privacy of personal property). And that unfulfilled need exists in the same cyberspace where it can be trivially easy for those unsatisfied people to satisfy themselves by converting DRM files into plain files. That self-satisfaction is fed by resentment against content owners because they seem too greedy and untrusting, and those suppliers react by ever more draconian attempts to thwart not-for-profit content sharing. The solution feeds the problem. There is no end in sight.

���� �������: ������������ �� ������� �������� �������� This leads us to a second thesis: Introducing digital personal property to the cybermarketplace will slow, halt, or reverse the growth in unauthorised content usage. We can’t know for sure whether the answer is “slow”, “halt”, or “reverse”, but certainly DPP can’t be any worse for the marketplace than today’s non-solution.

DPP represents a rare opportunity for consumer advocates to promote a technological solution to content piracy, rather than to just plead for content owners to quit fighting so hard. We can’t know until we try, but increased public awareness of a potential solution might inspire some visionaries to take the leap of faith and give the public what they have wanted all along.

All we need is a little GIVE and TAKE.

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B Broadband

3 Global Consumer Survey on Broadband

By Jeremy Malcolm and Elyse Corless

A������� A global survey on broadband Internet was administered to consumers in 40 countries, in 5 languages, drawing over 9,000 responses. The survey sought to elicit information about the biggest problems that faced consumers of broadband Internet services. This would guide the development of a global campaign to hold broadband service providers to account for their observance of consumer rights and broader human rights online.

The results of the survey indicate that home broadband Internet access has become by far the dominant method of Internet access for respondents to the survey, but three broad areas of concern stand out.

First, is that Internet speeds are often slower than advertised, and in many cases unpredictable.

Second, is the excessive cost of Internet access in locations that are not well served by a number of competing broadband providers. Even in locations where competition does exist, consumers are kept from taking advantage of it by lock-in provisions in their service contracts.

Finally, when consumers complain to their Internet providers about speed or service problems, a majority are unsatisfied with the handling of their complaints.

This paper presents highlights of the research, and concludes by outlining a possible global campaign through which Consumers International would lead its members in addressing each of the three problems that the research has uncovered.

1 Introduction

Broadband network access is a technology that has already had far-reaching effects, but is likely to be even more significant for consumers into the future as it becomes ubiquitous. Broadband is indeed becoming not simply a communications tool, but a prerequisite for consumers’ full participation in civic and cultural life.

For example, in many countries, a range of government services are geared primarily towards those with Internet access, and are relatively inaccessible or inconvenient for those without. In commerce, often the lowest prices for items such as airline tickets are only available for online purchases. Telephone call centres and counter staff are

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being replaced by online support centres. Students are assumed to have broadband at home for completion of school assignments. And new forms of cultural dissemination such as streaming video are accessible only through broadband Internet.

In the future, we cannot even predict how much more intrinsic broadband access will be to everyday life. It is fast becoming an essential service, like access to electricity and water. Consumers worldwide are even coming to regard broadband access as a fundamental right.1 Accordingly in 2011, Consumers International commenced a new global programme titled “Holding Broadband Service Providers to Account,” aiming to empower consumer organisations around the world to demand more equitable and accessible broadband service offerings, respecting consumers’ rights and broader human rights, as a necessary condition of achieving a socially-inclusive information society.

The first phase of this programme, conducted during 2011, was aimed at discovering exactly what are the most problematic issues that confront consumers in their access to and use of broadband networks. The results of this research will feed into the second phase of the programme in 2012, when Consumers International will develop and pilot a global campaign to address the issues that we had uncovered.

Drawing from CI’s experience in conducting a global survey on access to knowledge in 2009-2010,2 a hybrid method for conducting the research was adopted. This gave members a choice of gathering data using an online survey of broadband users, or face-to-face interviews or focus group meetings with users, or by compiling existing survey data on broadband issues from third-party sources. Each member was required to use at least two of these approaches, and some used all three. In addition, all members were asked to provide a research report on the legal and regulatory environment around broadband in their country.

This interim report covers the results of the online survey only. The results of the interviews, focus group meetings and research reports will be presented at the meeting “Consumers in the Information Society” at which this report is launched, as well as being incorporated into later outputs of the broadband programme, including a forthcoming broadband advocacy manual.

As such, the results of this report are biased towards those countries that emphasised the online survey in their research plans: in particular, the United States, Brazil and the United Kingdom. They are also biased towards those countries in whose languages the online survey was available (English, French, Spanish, Portuguese and Indonesian). Even so, enough responses were obtained from all world regions, including developing countries such as India, Kenya and Indonesia, and least developed countries such as Bangladesh and Nepal, to provide a sound preliminary indication of the appropriate focus areas for our upcoming global campaign.

Whilst this interim report is not intended, and should not be taken, as a reliable statistical picture of broadband access and usage worldwide, there are nevertheless already some very clear findings that deserve attention. An outline of some of these, emphasising global and regional trends, is presented below.

1 British Broadcasting Corporation. “Four in five regard internet access as a fundamental right: Global poll, 2010” (2010), http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/08_03_10_BBC_internet_poll.pdf.

2 Consumers International. Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010.

Kuala Lumpur, 2010, part I, available from http://A2Knetwork.org/survey.

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2 Highlights

All around the world, more consumers connect to the Internet at home than anywhere else, and most of those connections are broadband. As many as 97% of our respondents had access to the Internet at home, and 83% of those home connections were at broadband speeds. These consumers are also remarkably well-informed, with only 2% of them uncertain about whether their home connection was broadband or not.

The biggest complaint that consumers have with their broadband providers is that the speed of their connection is either consistently or inconsistently slow – and often they were not clearly informed of the real speed of their connection when they signed up. The most vociferous complaints come from the customers of two of Brazil’s largest ISPs, Telefônica and Oi Velox, who were also reported as providing the world’s most unreliable Internet connections.

Moreover, lack of competition has driven up the prices of Internet services, particularly in North and Latin America, where users pay almost 50% more for their monthly Internet access than those in the other regions. Even where adequate competition does exist, users are often impeded from switching to a more affordable broadband plan because they are locked in to their current provider by contract. Over 40% of consumers are prevented from switching providers either by lack of competition or lock-in.

Our survey shows that consumers are not shy to complain when their Internet connection is not up to scratch. But unfortunately, those complaints are very badly handled on average. No less than three quarters of those who complained about speed ended up dissatisfied or very dissatisfied with how their complaints were dealt with.

Almost as badly handled were complaints about technical problems and billing.

3

Detailed results

As at close of the online survey on 31 December 2011, there were 9,092 total responses, 6,995 of which had been completed in full, and the remainder of which only partially completed. Typically, those who did not finish the survey completed about half of it before giving up, which suggests that it was too long to sustain their attention.

Nonetheless, over three-quarters of respondents did perservere to the end, and this was more than sufficient to provide some useful results.

Except where otherwise noted, we have omitted incomplete results from the statistics reported here. Some additional questions were asked of UK-based respondents only, at the request of our participating UK member, but these are not analysed here either. We have also omitted “outlying” or implausibly extreme responses. In some cases – such as the respondent who claimed to be 0 years of age, and another who claimed to be 89,770,000 – these outlying responses were probably given to protect their privacy. Others – such as those who claimed to be paying thousands of dollars per month for their Internet access – likely misunderstood the question (in that case, that we had asked for the amount to be expressed in US currency).

The results were analysed using R, which is an open source statistical environment and programming language. The source data is available from CI on request to facilitate further analysis.

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3.1

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Demographics

23 CI members agreed to participate in the first phase of the project. In the end due to the general availability of this survey online, responses were received from consumers in 40 countries, though only 14 of these drew more than a hundred responses. Overseeing the work across the world were three regional coordinators drawn from across CI’s membership: Veridiana Alimonti of IDEC for the Americas, Marzena KisielowskaLipman of Consumer Focus for Europe and Africa, and Jonathan Gadir from ACCAN for the Asia Pacific and Middle East region.

The results were reasonably evenly spread across those regions, except that there were so many results from the Americas that we have split that region back into two for analysis. Amongst those who specified their location, 32% of the completed responses were from North America, 31% from Latin America and the Carribean, 16% from Europe and Africa, and the remaining 21% from Asia Pacific and the Middle East.

Most respondents chose to reveal their gender: 70% were male, 30% female. Their average age was 45 years. From this it can be seen that the survey was not, nor was expected to be, a representative sample of the general population. As with our 2009-2010 survey on access to knowledge, the survey was undertaken by our member organisations, most of them without the assistance of a specialised survey firm. Participants were gathered by a variety of means: some drew from their own mailing lists, while others used the Web, Twitter or word of mouth.

But despite the limitations of this method of surveying, the main counterveiling benefit is that it simultaneously builds the capacity of our members on broadband issues, particularly for those who also engaged in face-to-face interviews and focus groups with consumers. This will stand these members in better stead to contribute to our our global campaign when it is pilotted at a national level in 2012.

3.2

Internet access

As noted above, one of the clearest findings from the survey was that for the members we surveyed, there is no substitute for broadband Internet access at home. As the figure overleaf shows, for the consumers surveyed, substantially more – about 97% – access the Internet at home rather than at work (64%), on a mobile device (57%) or at a public access point such as an Internet café, library, telecentre or the like (50%).

Furthermore, from amongst the consumers who had access to the Internet by more than one means (for example, both at home and at work), 72% reported that their primary access was at home.

Tellingly, although half of respondents had access to the Internet through a public access point, less than 2% of those who also had the ability to access the Internet by any other method chose the public access point as their primary Internet access. This illustrates that although public access points are a vital lifeline for those without any other means of accessing the Internet, for most consumers they are exactly that – a last resort. Nonetheless, they are the cheapest way of connecting to the Internet, at only about 30% of the average monthly cost ($15) of access at home ($49).

Another striking result illustrated by the figure is the extent to which broadband connections are now the dominant class of Internet access for consumers in whatever setting. The proportion of broadband connections is the highest at home – in fact 83% of those who accessed the Internet at home did so over broadband, averaged over all regions. But even amongst those who accessed the Internet on mobile devices, well

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over twice as many did so at broadband speeds than at lesser speeds.

Also importantly, consumers in general seem to be well informed about whether their home Internet connections are broadband or not; only 2% of home Internet users were in any doubt about this. For users of mobile devices however, this figure rose substantially to 14%, perhaps indicating that mobile phone companies are not advertising the properties of their Internet packages as well as home Internet Service Providers (ISPs) are.

When we focus on developing countries rather than the global set of respondents, the picture is a little different. For example, the proportion of respondents who depended upon mobile devices or public access points as their primary Internet access were highest respectively in Kenya (at 25%) and Vietnam (at 21%). The region with the lowest penetration of home Internet access (81%) was also that with the highest proportion of responses from developing countries, namely Asia Pacific and the Middle East. Additionally, Internet connections were shared amongst more people in that region than any other. For example in North America, only 8% of connections are shared with more than four people, but 21% in Asia Pacific and the Middle East. Nonetheless even in this region – where the proportion of home broadband access is lowest at 73% – this still amounts to a sizeable margin over slower forms of access.

Overall, then, it can be concluded from this section of the survey that the dominance of home broadband as a method of Internet access validates Consumers International’s choice of focus for our campaign, “Holding broadband service providers to account.”

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Competition and choice

Overall, users in North and Latin America paid almost 50% more for their monthly Internet access than those in the other regions. For example, an average United States Internet user paid about $62 per month, and an Argentinian $39, whilst a Briton paid $29, and an Indian only $21. The figure below shows only the ten most popular ISPs recorded in our survey, along with the respondents’ ratings of how much value for money they provided, ranging from “very poor” (on the left) to “excellent” (on the right). There is also an “other” result that aggregates the ratings given to all other ISPs. Consistently with the survey’s quantitative results, all of the ISPs rated as providing poorer value for money than “other” are North or Latin American. All those rated better are European. (Although not shown on the chart, major Asian and African ISPs such as Airtel (India), SK Broadband (Korea) and Access Kenya also fared somewhat better than their American counterparts.)

This seems to be attributable in part to a serious lack of effective competition in many American broadband markets. Over a third of North American and Latin American users reported that they were impeded from changing their Internet provider because of a lack of competitors offering equivalent services. This compares to only 14% who made the same complaint in Europe and Africa, and 19% in Asia Pacific and

������ ������� ��� ����� �������: ������ �������� ������ �� ��������� the Middle East. Although not reported here, the preliminary results of our member survey on broadband will bear out this observation of lack of effective competition, particularly outside of urban areas.

Offsetting this however, consumers in Europe and Africa, and Asia Pacific and the Middle East, were more likely than their American counterparts to be locked in to their Internet provider by a fixed-term contract. 30% of consumers in the former regions reported that fixed contract terms prevented them from shifting ISPs, which is almost twice as many as those from the Americas who made such a complaint. Interestingly, only 7% of consumers were affected by both lack of competition and contractual lock-in, indicating that most ISPs will only bother locking their customers in to long-term contracts if competitors exist to tempt those customers away. Together, these two factors affected over 40% of consumers.

The next most important factor that impeded consumers from switching Internet provider, quite consistently across all regions, was the bundling of several services together. Easily the most common bundle worldwide is phone line rental, which about 30% of consumers pay together with their Internet service; unsurprisingly, given that Internet services were traditionally delivered over telephone lines. Also very popular in Latin America is the inclusion of a pay television service – with more than one in five consumers subscribing to such a bundle, which is almost twice as many as in the other regions. In Asia Pacific and the Middle East, almost 16% of consumers were renting or paying off an access device such as a handset as part of their subscription, which is again almost twice as many as in the other regions.

Fewer than one in ten consumers was affected by the locking of their access device to a single provider, but more than half of those who were affected were those who accessed the Internet through a mobile device, and North America was the region most affected by this practice. One consumer burned by this made the very apt comment, “The vendor locked device works only with their network whereas they charged full cost of the device while purchasing the connection”.

3.4 Information and service quality

Our survey next asked respondents about what information they received when signing up for their Internet service, and how accurate that information was in the light of their subsequent experience using the service. As might have been expected, most consumers who answered this question had received information about the cost of the service (70%) and its speed (54%), with little variation from one region to another. A decreasing minority of consumers were notified about other issues concerning their Internet service, such as any applicable minimum contract term (28%), any usage caps or excess charges (17%), how changes could be made to their terms and conditions of service (14%), how their personal data would be used by the company (10%), and finally about any Internet services that would be subject to differential treatment by the ISP (4%).

As can be seen from the figure overleaf, the information given about the speed of the service tended to be less accurate than that about the other topics, though only 16% described it as “very inaccurate”. However this did vary by region, with about 20% of consumers from the largely developing regions of Latin America and Asia Pacific and the Middle East complaining of very inaccurate claims about speed. This is as against only 7% of consumers across Europe and Africa who were dissatisfied for the same reason.

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Corresponding to this result, the survey also found slow Internet speeds to be one of the major problems suffered by Internet users from the affected regions. Looking at the major ISPs that were earlier listed in our figure, extremely high levels of dissatisfaction exist with the speeds provided by the Brazilian broadband ISPs Telefônica and Oi Velox – reported as a “serious problem” by no fewer than 39% of Telefônica’s subscriber respondents, and 44% of Oi’s. A separate question asking for respondents to rate their ISP on the speed of their connection returned a similar result, with 36% and 41% respectively rating Telefônica and Oi Velox “very poor”. No other ISPs in our survey, small or large, received such strong condemnation as these.

The travails of Telefônica and Oi Velox customers don’t end with their complaints about speed. These two ISPs also stand out as giving their customers the most trouble in establishing a connection to the Internet in the first place (respectively for 30% and 34% of respondents, against an industry average of only 13%). With surprising restraint, only 21% and 27% of their long-suffering customers gave Telefônica and Oi Velox a “very poor” rating for “reliability of connection” in response to this, but that was still 2.7 times worse than the industry average!

Other than speed and connection issues, most other technical problems created less concern for most. A majority reported few or no problems in accessing particular sites and services – which was a question intended to cover the mysterious failures caused by blocking or filtering (discussed in section 3.7). Fewer still had trouble using Internet software (though some complained that their ISPs did not support software for operating systems besides Microsoft Windows, such as Linux and Mac OS X).

From this section of the survey, then, we drew a very clear message that customers are concerned that the speed of their Internet connection is described accurately, and that it is delivered reliably. Consumers can be very unforgiving to ISPs who do not deliver on this basic promise.

3.5

Complaint handling

Consumers were not taking these problems with speed and reliability lying down.

In the first instance, more than two-thirds of consumers who encountered problems

������ ������� ��� ����� �������: ������ �������� ������ �� ��������� sought technical support from their Internet provider. When this failed – only a quarter of consumers were completely or substantially satisfied with the technical support they received – many went further and lodged a complaint.

The top ground of complaint was about slow speed – either in general, for 28% of those who complained, or for another 13% the slowing of access at certain times or where the user’s download allowance had been exceeded. The second most common ground of complaint, made by 20%, was over other technical problems that could not be resolved through technical support. In fact, more than half of those who reported a problem or a serious problem with Internet speed or in connecting to the Internet followed up with a complaint to their ISP. Typical comments included: • “Installation of my ADSL connection was a nightmare, and I was provided contradictory information on several occasions, had to wait on several occasions for workmen, and could not get reasonable answers from service staff”.

• “They tried troubleshooting my computer settings, rather than admitting that many customers in our area had also lost connections”.

• “It seems about useless to talk to their technical support staff. They aren’t given the tools that real technicians would be given to resolve issues. And customers are not given access to real technicians so that we could adequately describe the issues”.

The third main area of complaint, affecting 16% of respondents, was billing. Typical complaints were as to the calculation of usage charges. One respondent complained of “charges for use of ‘excessive’ data consumption (I had no idea that was their policy, much less how it worked)”. Another very reasonably asked, “My connection is a volume based connection hence I want to know and check how my balance is being consumed”. It is surprising how few ISPs offer such information to their customers.

Smaller numbers of complaints were recorded about changes to terms and conditions (8%), blocking access to content or services (4%) and a variety of other issues including Internet call quality, “ping times” for gamers, difficulties in understanding foreign support staff, and the ISP’s refusal to suspend service during a vacation.

Whilst it is heartening to see consumers exercising their rights, it is disappointing to see how poorly those complaints were dealt with. Across all regions and ISPs, three quarters of those who complained about speed ended up dissatisfied or very dissatisfied with how their complaints were dealt with. For those who complained about technical problems, 62% remained dissatisfied or very dissatisfied with how these complaints were resolved. For billing complaints, the figure was 54%.

This does not mean that consumers are unhappy with customer service in general.

Overall, their satisfaction is actually rather evenly distributed, with as many rating it badly as rated it well, and most rating it in the middle (this notwithstanding the dreadful results for the two large ISPs from Brazil, where 27% of consumers rated their ISP’s customer service as very poor). Rather, the customer service problems seems to be fairly specific to complaint handling.

In some countries, it is possible to take complaints further, for example to a government regulator (which was the most popular option for our survey respondents), an independent ombudsman, or some other dispute resolution body. But the majority of consumers, asked where they took their complaint further, gave an answer such as “do not know where to complain”, or “no redress avenues, one reaches a dead end”. A minority of consumers were even forced to take the costly option of going to court.

Amongst those respondents with a happier story to tell were those from Australia,

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where most who took their complaint further did so to the independent Telecommunications Industry Ombudsman. CI believes that this kind of mechanism for quick, inexpensive resolution of Internet service disputes should be available to consumers around the world.

In any case, something we can easily take-away from this section of the survey is that complaint handling is an area that ISPs in general need to improve.

3.6

Use of the Internet

What are the main uses that consumers make of the Internet? Knowing the answer to this question was important so that we could tailor the objectives of our broadband campaign to meet consumers’ real needs. A summary of the results is presented in the next figure. It is little surprise that email and general Internet browsing were respectively the most and second-most popular applications of the Internet. Interestingly, online banking and shopping came third, which shows that consumers are justified in their concern about access difficulties, as these can significantly disrupt their daily lives. Least common was publishing one’s own content to the Internet, for example through a blog or by sharing personal photos and videos.

There were few significant differences between males and females for any of these uses; the biggest being that the number of males who used the Internet for downloading music, videos or software was eight percentage points higher than for females.

Age was a much more significant determinant of use, with younger users (under 30s) more likely than older users to use the Internet for chat, streaming, downloading, social networking and blogging. Remembering that the average age of our respondents was 45, most likely the prevalence of these activities amongst the general population is understated by our survey. For older users, the Internet was a functional way of communicating and accessing information, rather than a leisure or social activity.

We also find some differences between regions. For example, online shopping and banking is very popular in Europe and Latin America, with almost three-quarters of consumers in those regions participating, but only 43% in Asia. The reason is not immediately clear: perhaps fewer online retailers ship to Asia? This deserves further study. North Americans are the world’s most avid contributors of their own content to the Internet, according to our survey: more than one in five uses the Internet in

������ ������� ��� ����� �������: ������ �������� ������ �� ��������� this way, almost twice as many as in Europe or Latin America. Equally interesting are some of the areas in which no significant differences between regions were found: most notably, all regions reported a similar incidence of downloading music, videos and software online, by between 40-50% of online users.

Those who reported that their home Internet connections were not up to broadband speed were about 10% less likely to use the Internet for low-bandwidth applications such as email, and even less likely to make use of high-bandwidth applications such as making voice or video calls (13% less likely), and streaming music or video (15% less likely). Whilst in some cases this may be by choice, it is important that broadband is made available at an affordable price for all, in order that the inequalities of the offline world are not simply replicated online.

Most users reported little difficulty in using the Internet effectively, though 11% said that they could do with more training, and 6% wanted to see more content available in their native languages, including Kiswahili and Bangla. Only 3% were impeded in their use of the Internet by a disability, ranging from vision problems which make it difficult to read, to lack of dexterity that impedes typing, and physical weakness that prevents the user from diagnosing connection problems by checking cable connections and the like.

3.7

Net neutrality

One of the emerging issues on which our survey focussed was on net neutrality – the general principle that ISPs should not interfere with the content that they deliver over the Internet, by giving some types or uses of content priority over others for commercial reasons. After all, the success of the Internet has largely arisen from its capacity to democratise communications, allowing anyone to publish and receive information at low cost. Closely related to the preservation of net neutrality is the need to ensure that ISPs do not engage in unjustified blocking or filtering of Internet content, unless required by law or consented to by the consumer.

Only 4% of users were informed that some content could be blocked, filtered, prioritised, or slowed down by their Internet Service Providers. Another 7% believed that content or services had in fact been blocked or filtered, and another 8% felt that it had been slowed down or prioritised. Another 40% weren’t sure. But only 9% of users reported that the lack of access to particular sites and services – a symptom of blocking and filtering – was a serious problem for them. ISPs were rated well on “access to services and content of your choice” by 32% more respondents than rated them poorly.

This suggests that network neutrality, blocking and filtering issues are not yet strongly impacting most of the consumers who responded to our survey.

Nevertheless, some respondents did report that blocking (which is a blanket ban on certain content, applications or services) was being conducted by some ISPs to prevent: • The use of peer-to-peer filesharing software (in Argentina, Brazil, the Philippines and the United Kingdom); • Access to Usenet news groups (in the United States); • Use of Internet phone services (in South Korea and the United States); • Access to pornography (in Indonesia, Malaysia and Nepal); and even • Access to certain news and political sites (in Fiji and Nepal).

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As for filtering, which is the more selective removal of content based on keywords or patterns, there were reports from several countries that this was being used to weed out spam email. So long as the consumer is informed of such filtering, and preferably given the capacity to opt out from it, this particular application of filtering can be benign and even beneficial to the consumer. By the same token, an Australian respondent reported that his ISP prevents his connection being used to send email through thirdparty servers, as compromised computers are often used to send spam in this way – but that the block will be removed on request.

Finally, we asked about consumers’ experiences of certain Internet content or services being either slowed down, or conversely, prioritised so as to deliver it faster or more cheaply than other such content or services. Although this question was directed at the selective slowing of particular content or services, some consumers took the opportunity to complain about their entire Internet connection being slowed down once they had reached a usage limit. One said, “I unknowingly went over my bandwidth limit. I’d no idea there was a limit. They stopped all access and sent me an email entitled ‘Wildblue Abuse”.’ Others reported that this practice was being used selectively against the use of peer-to-peer filesharing software – most notoriously by US ISP Comcast, which was sued by the US Federal Communications Commission in 2008 for doing exactly this.

As to the prioritisation of content, it was reported that ISPs were providing preferential access to their own FTP and gaming servers and their own branded IPTV services (such as British Telecom’s BT Vision TV Service). Debate exists as to how much of a concern this practice is, but proponents of net neutrality argue that it creates a “walled garden” in which users are discouraged from accessing content other than the provider’s own, thereby raising barriers for other content providers. In some cases ISPs were also prioritising particular third-party services – including social networking services such as Facebook, LinkedIn, Hi-5 and Twitter, and catch-up TV services such as Australia’s ABC iView. The commercial terms, if any, behind these preferential arrangements are not revealed to the consumer, which raises potential competition issues.

From this section of the survey we must conclude that net neutrality, blocking and filtering are not yet areas of prime concern to most consumers and will therefore not be a focus of our upcoming campaigning activities. However, they do remain areas for us to monitor carefully going forward.

3.8 Internet content

Some of the content users encounter on the Internet is annoying, offensive, or even dangerous. Whilst it can be persuasively argued that dangerous content or content that transgresses international legal norms should be removed from the Internet at source, for content about which values or preferences may reasonably differ, the better approach is to allow individual users and their families to control what content they do or do not encounter online.

The table summarises some of the types of content that users found most problematic, and how they dealt with it: • The left column describes the types of content about which the survey asked: advertising (including both Web and email-based), frauds and scams, offensive content (however defined by the respondent), and malware such as viruses and spyware.

������ ������� ��� ����� �������: ������ �������� ������ �� ���������

How serious a problem?

User filtering

Provider filtering

SP

2

3

4

NP

I do

I can’t

I don’t want

Advertising

20%

25%

25%

14%

15%

36%

28%

12%

15%

Frauds and scams

24%

20%

20%

16%

19%

46%

28%

12%

15%

Offensive content

14%

15%

19%

20%

30%

33%

28%

25%

13%

Malware

27%

19%

19%

18%

15%

62%

19%

8%

14%

• The next major column shows how many respondents described the content in question as a serious problem (SP), no problem (NP), or somewhere in between (most of these total slightly under 100%, due to rounding).

• The next major column shows what percentage of users filter out this content with their own software or device, those who don’t know how to filter it out, and those who may know how but choose not to do so.

• The final column indicates the respondents whose ISPs offer filtering of the content in question – this is not exclusive with the previous column, as some users filter out unwanted content that their provider also filters.

The results reveal that with one exception, most Internet content is not filtered, either by users or by their providers. That one important exception is malware, which 62% of consumers do filter out using their own Internet security software. This class of unwanted content also poses a serious problem for more consumers than any other, and is the type of content that fewest consumers claim not to want filtered.

Offensive content was a problem for the fewest users, with half of all users claiming that it presented them with little or no problem at all, and a quarter explicitly stating that they had chosen not to filter it – more than twice the number who had chosen not to filter any other class of problem content. Nonetheless, a third of users did voluntarily filter offensive content out from their Internet connections, perhaps because their connection was shared by younger family members.

3.9

Monitoring and enforcement

Our consumer survey on broadband mainly concerns the behaviour of Internet Service Providers, rather than that of third-party content hosts or advertisers, or the policies of governments, both of which lie outside the scope of our campaign. But there is one area in which all three of these actors have a major part to play, and that is in monitoring of Internet users’ behaviour online. The Internet Service Provider is an important intermediary in monitoring Internet users for law enforcement purposes in particular, so it is on this that our survey focussed.

Only 17% of consumers surveyed believed that their communications over the Internet were being monitored by their service provider, the government, or a third party.

28% didn’t think so, and the remainder weren’t sure. A typical comment made by one of those who believed they were being monitored was “I simply live under the assumption that I’m being monitored. And I don’t like that!”

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This result varied by country and region: most notably, in communist Vietnam, 38% of users believed their communications to be monitored. In Fiji, which is currently under an interim military government, one respondent wrote “There was one time when instead of loading the website I had clicked, a page loaded with a message from my provider informing me that my internet activity is being monitored”. A number of US-based respondents were concerned about their communications being intercepted by the NSA’s signals intelligence programme, ECHELON, or by the FBI’s Carnivore software.

Others were worried not so much about government surveillance as about tracking by advertisers. One wrote, “Many of the ads that appear on random pages seem to be targeted based on other pages I’ve navigated to. So if I’m shopping for mower parts, suddenly riding mower ads populate the Yahoo Sports pages”. This respondent blamed his service provider for passing on his browsing details, but most likely the ISP is innocent, and it is third-party websites that are to blame for leaking his browsing habits. Whilst this takes the problem outside the scope of our broadband campaign, CI is separately working with the World Wide Web Consortium (W3C) on a new standard called “Do Not Track” to regulate the intrusive tracking of consumers by online advertisers.

Consumers are also being monitored online by copyright owners seeking evidence of copyright infringement, and in some countries through a cooperative or co-regulatory arrangement with ISPs, the latter will pass allegations of infringement onto their users. In our survey, as many as 12% of respondents declared that they had received a warning about having accessed copyright-infringing content online. One of them wrote, “I was sent a letter informing me that ‘someone’ at my IP address had seeded a torrent. Apparently one of my children downloaded an old TV show”.

In some countries that participated in this survey, such as South Korea and New Zealand, users’ Internet connections can be suspended as a penalty for repeated alleged copyright infringement, though thankfully none of our respondents reported having yet suffered that fate.

Similarly, 7% of respondents had received a take-down notice for allegedly hosting copyright-infringing content online. Typically this was something as innocent as uploading a YouTube home movie, or even in one case a slide presentation, with copyrighted background music. In a few more cases (6%), content was taken down for infringing other laws or policies. One respondent wrote, “I once posted on Photobucket a rear view of a 3D nude figure I’d done. Didn’t know rear-views were a big no-no”.

Once again, nobody reported actually having had their Internet connection suspended as a penalty for their alleged misuse.

Whilst laws and policies that allow intermediaries such as ISPs to monitor and act upon consumers’ behaviour online are potentially worrying, the evidence from our survey does not reveal the impacts of those policies to be so serious or widespread that they should be a focus of our global broadband campaign. Nonetheless, we will continue to assess the effect of these laws and policies as time goes on, and collaborate with other public interest voices in bringing to light any instances of their abuse.

4 Conclusions

CI’s global consumer survey on broadband was a broad-ranging investigation of a large number of areas of potential concern for consumers of Internet access services.

������ ������� ��� ����� �������: ������ �������� ������ �� ��������� These included traditional consumer protection issues such as misleading advertising and complaint handling, human rights issues such as freedom of expression and privacy, security issues such as spam and cybercrime, accessibility issues such as multilingualism and disability, and infrastructure issues such as access to broadband and network neutrality.

The aim of this research was to identify which of these issues affected consumers around the world the most acutely, in order to inform the development of a global campaign targetted at broadband service providers, that would focus on these problem issues. Additionally, our research would reveal which countries suffered most seriously from the identified issues, so that our global campaign could be piloted in these countries at first.

Based on the results of our online consumer survey, we can be confident that we have achieved those aims. The research clearly lays out three main issues around which our future campaign could be based: 1. Internet connection speeds are unreliable, and claims made about speed are frequently inaccurate.

2. Consumers are forced into paying excessive prices, by lack of effective competition or by contractual lock-in.

3. Broadband providers do not provide a satisfactory complaint handling mechanism for consumers.

From these three points, we can identify the possible themes of a global campaign to be developed by CI and its members to be piloted by selected members during 2012.

To address the speed complaints, at our meeting “Consumers in the Information Society” we will be promoting the idea of a “broadband nutrition label”, based on the New America Foundation’s “Broadband Truth-in-Labeling” campaign of 2009.

This label, which, as the name implies, somewhat resembles the nutrition label on prepacked foods, would disclose the actual Internet speeds that broadband users can expect in a simple, hype-free format, and would encourage ISPs to back this up with a service guarantee. Based on feedback from our members at the meeting, and drawing from other best practices such as Ofcom’s Voluntary Code of Practice on Broadband Speeds, Consumers International plans to present a template broadband nutrition label as a cornerstone of our global broadband campaign later in 2012.

The broadband nutrition label will address the pricing problem too, by increasing pricing transparency. The underlying lack of competition will be more difficult to address, but thankfully there is a well-resourced UN Broadband Commission whose mandate is to stimulate private-sector investment and to encourage governments to provide an enabling environment for investment in broadband infrastructure.3 CI will not attempt to duplicate the Commission’s important work. What we can do, however, is to focus this part of our campaign upon the other main issue that prevents consumers from shopping around for the most competitive broadband deal: contractual lock-in. We plan to develop a series of online and off-line campaigning materials on the theme, “Don’t Lock Me In!” to express consumers’ desire to freely choose between competing broadband providers, without being tied into long-term contracts.

Finally, to address the grave deficiencies of the industry’s complaint handling procedures, we plan to support selected members in countries that are badly affected by 3

See http://www.broadbandcommission.org/.

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Internet service complaints, and that do not already have an accessible venue for alternative dispute resolution of broadband complaints, to campaign for the introduction of an ombudsman service for their Internet industry, such as those that operate in the United Kingdom and Australia. This will provide an independent, low or no-cost method for the resolution of complaints against broadband service providers; a task that the providers themselves have proven incapable of adequately fulfilling.

C Consumer Rights and Representation in the Information Society

4 Information and Communication and the Rights of the World’s Consumers in the 21st Century: Updating the UN Guidelines for Consumer Protection

Robin Brown and Jeremy Malcolm

A������� This paper provides background to the proposed amendments to update the United Nations Guidelines for Consumer Protection for the digital age. A soft-law instrument, the Guidelines provide an influential standard for the dissemination of good practices in consumer protection, as a mechanism to foster and promote social and economic development. They outline eight areas for developing policies for consumer protection, which are reflected by the eight consumer rights declared by the global consumer movement: rights to satisfaction of basic needs, safety, choice, information, consumer education, redress, representation and a health environment.

The paper outlines the current global regime of public policy developmment and regualtion relating to access to knowledge. Indicating that many of the issues of concern in terms of access to knowledge are essentially consumer issues it argues that amendments to the Guidelines would form the basis for progress. The paper then details the proposed amendments explaining the basis for each one.

Introduction

In 1985 the UN General Assembly adopted the United Nations Guidelines for Consumer Protection. These Guidelines have had significant impact on public policy and law for the protection and empowerment of consumers across the world. There is now good policy and sound legislation based on the Guidelines in most countries.

In his 1993 report on progress in implementation of the Guidelines the UN SecretaryGeneral notes that both developing and developed country governments “reported that the guidelines had had a significant impact on their work” on consumer policy.

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It remains the case though that in many countries much is yet to be done to achieve effective administration of regulation to make markets work efficiently and equitably to promote social and economic development.

The Guidelines outline measures to assist governments in dealing with eight issues: economic interests, standards, essential goods and services, redress, education and information, health and sustainable consumption. Complementing the Guidelines are eight rights of people everywhere as consumers of goods and services: to satisfaction of basic needs, to safety, to choice, to information, to consumer education, to redress, to representation and to a healthy environment.

Provisions on sustainable consumption were absent from the 1985 Guidelines and were added on the motion of Argentina in 1999. This had its origins in the Rio Earth Summit and came to fruition after years of work coordinated by Consumers International. These amendments were always understood to be “a first step”; the UN Secretary-General noting that in order to ensure “the relevance of the guidelines in the light of new economic trends”, the Guidelines might also have to be expanded into “other areas, such as new information systems [and] telecommunication[s]”.1 This is exactly what Consumers International (CI) now proposes: updating the Guidelines for the digital age.

The Wider Context

There has long been world wide advocacy for more equitable access to humanity’s creative and scientific output. A substantial global movement, the Access to Knowledge Movement, has now been pressing for some years for reforms to rules at all levels governing access to knowledge and information of all kinds and in all forms. The movement has a wide and diverse membership including civil society groups, governments, progressive business, academics and many, many ordinary citizens of the world. The central idea is that fundamental principles of justice, freedom, and economic development particularly as enunciated in the 1948 Universal Declaration of Human Rights and the subsequent Covenants cannot be realised without equitable access to knowledge. The need to reform of copyright and patent law is argued, but also promoted are options other than intellectual property rights for the protection of creativity and innovation – for example, Creative Commons licensing and innovation prizes. Unlike most products, knowledge and information is today generally reproducible at minimal material and energy cost and is not scarce in the normal economic sense. There should be no significant barriers to prevent all people, rich and poor alike, from having virtually equal access.

There are a number of regulatory instruments of various kinds that can and should be reformed to ensure equitable access to knowledge. While it is not an instrument with regulatory force the UN Guidelines for Consumer Protection has had significant impact as a benchmark for rule-making globally and CI, together with a number of collaborating organisations, believes adding access to knowledge provisions to the Guidelines would help significantly to carry forward reforms needed at global, regional and state levels. This paper provides some background on the relevant instruments and agencies and on the Guidelines. The following paper The UN Guidelines for Consumer Protection: Making them work in developing countries gives additional back1

ECOSOC report E/1997/61, available at http://www.un.org/documents/ecosoc/docs/1997/e1997-61.

htm, paras 59 and 3.

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� ground on the Guidelines and what is needed to make them more effective.

The Guidelines and Access to Knowledge

The position of the consumer has changed considerably since the Guidelines were first passed in 1985. In particular, consumers in the online and digital environment are faced with both new opportunities (such as the rise of the consumer-creator), and new threats to their rights to participate in cultural, civic and educational affairs (such as the use of digital locks to limit fair use rights and access to the public domain). Such important issues of access to knowledge (A2K) are not covered by the UN Guidelines, nor by any other international instrument.

The Guidelines have the potential to bring progress in many areas of concern.

Though they are “Guidelines for Consumer Protection” they are guidelines for consumer policy more broadly. Consumer policy can be divided into three main subsets: 1. Policy to empower consumers to act in their own interests – Consumer empowerment policy; 2. Policy to provide for protection of consumers and action on their behalf in circumstances where, for one reason or another they are not able to fully able prosecute their interests – Consumer protection policy; and 3. Policy to ensure, as far as possible, consumers benefit from competition so that efficiency gains make standards as high as possible and prices as low as possible – Competition policy.

As the Declaration of Human Rights and the Covenant on Economic, Social and Cultural Rights make clear, equitable access to knowledge represents a general set of rights of people which go beyond their rights as consumers of goods and services. However, a great many of access to knowledge rights can be construed as consumer rights.

These fall into the following categories: • Rights to knowledge so that consumers’ decisions about goods and services can be as fully informed as possible; • Rights to knowledge so that consumers have access to goods and services necessary to realise their general right “To enjoy the benefits of scientific progress and its applications” (Article 15 1 (b) of the International Covenant on Economic, Social and Cultural Rights). For example intellectual property rights should operate so that essential pharmaceuticals are available to all people. Articles 11 and 12 of the Covenant apply: 11.1 The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

12.1 The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

• Rights to obtain freely, or if appropriate/necessary at a fair price, knowledge, available anywhere globally, of any kind (verbal, visual, aural), in any form (books, journals, films, music) and in any medium; and

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• Rights to obtain, available anywhere globally, at a fair price information processing and communication products and use them without unfair/unreasonable constraints by neither states nor producers.

Basis of Consumer Rights to Access to Knowledge in Human Rights

Article 27 of the Universal Declaration of Human Rights provides an underpinning for equitable Access to knowledge and for intellectual property rights: Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

This Article is elaborated by Article 15 of the International Covenant on Economic, Social and Cultural Rights as follows: 1. The States Parties to the present Covenant recognise the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

The States Parties to the present Covenant recognise the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

The Covenant, a multilateral treaty, was adopted by the United Nations General Assembly in 1966 and came into force in 1976. It now has 160 parties (member states – the UN has 193) and six more have signed, but are yet to ratify it.

The Berne Convention and TRIPS Agreement go toward realisation of these provisions of the Covenant. While CI is not proposing revision of these instruments, the scheme of intellectual property rights operating globally at present arguably could be more balanced in terms of the protection of the intellectual property interests of corporations (corporate persons) as against equitably serving the interests of individuals (natural persons). Moreover, the scheme is seen by many as less than satisfactory in terms of paragraphs 1 (a) and (b) and in terms of “the diffusion of science and culture”. Arguably the Covenant itself does not fully realise the first part of Article 27 of the Universal Declaration of Human Rights. The particular need for amendment of the Guidelines for Consumer Protection is that international IP law is, for the most part, oriented to uphold the rights of creators, but safeguarding the corresponding consumer rights is largely left to national law. Although they have implications for international rules, the Guidelines are very much intended to assist states to develop effective domestic consumer policy, regulation and administration.

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� The proposed amendments to the Guidelines reflect general rights to access to knowledge and information enunciated in the Covenant and in other texts. More particularly, key proposed amendments would assist to: • Ensure that suppliers of digital content inform consumers of the effect of any applicable technical protection measures and information on interoperability with hardware and software.

• Set minimum standards for essential copyright limitations and exceptions for consumers.

• Stop suppliers from using technology to cripple digital products or unreasonably limit the ways in which consumers can use them.

• Promote a permissive approach to copyright to facilitate non-commercial creativity by consumers.

• Require that the dissemination of consumer safety information, and codes and standards that impact consumers, are free of copyright constraints.

• Prohibit IP rights from being enforced in ways that trample on consumers’ human rights.

• Ensure that consumers retain access to their own data in formats that they can use, and that such data is protected against misuse.

The proposed amendments have been drawn from best practices from around the world. For example, the provision that requires consumers to be notified of technical protection mechanisms and interoperability limitations is drawn from new provisions in European consumer law.2 Other provisions are based closely on current legislative developments in Canada and Brazil. The amendments also make reference to relevant UNESCO documents and recommendations. CI and its partners are in the process of conducting research for a detailed background paper which will illustrate the case for the amendments, with case studies from India, Brazil and South Africa.

A2K in the UN system and the Process for Having the Amendments Passed The draft amendments were developed by CI and its members over a process of several months, then released for broader public comment for a further three months.

However, they are still only a starting point for intergovernmental discussion. CI now seeks to actively engage governments and international organisations in discussions within all appropriate fora towards settling amendments to the Guidelines and eventually having them agreed at the General Assembly.

UNCTAD is the agency with carriage of the Guidelines, but the United Nations Educational, Scientific and Cultural Organisation (UNESCO), the World Intellectual Property Organisation (WIPO) and the Commission on Science and Technology for Development (CSTD) are the agencies with particular responsibilities for access to knowledge and information issues.

2

Helberger Natali, Parliament adopts new directive to improve digital consumer rights(2011), available at http: //kluwercopyrightblog.com/2011/07/01/parliament-adopts-new-directive-to-improve-digitalconsumer-rights/.

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United Nations Educational, Scientific and Cultural Organisation (UNESCO)

UNESCO is the main body charged with the task of making knowledge accessible to humanity at large. It was established soon after the UN officially came into existence on 24 October 1945 and even before the adoption of the Universal Declaration of Human Rights. The Constitution of UNESCO came into force on 4 November 1946 after ratification by twenty countries: Australia, Brazil, Canada, China, Czechoslovakia, Denmark, Dominican Republic, Egypt, France, Greece, India, Lebanon, Mexico, New Zealand, Norway, Saudi Arabia, South Africa, Turkey, United Kingdom and United States.

UNESCO’s constitution states: Article I Purposes and functions 2. To realise this purpose the Organisation will: Maintain, increase and diffuse knowledge: By encouraging cooperation among the nations in all branches of intellectual activity, including the international exchange of persons active in the fields of education, science and culture and the exchange of publications, objects of artistic and scientific interest and other materials of information; By initiating methods of international cooperation calculated to give the people of all countries access to the printed and published materials produced by any of them.

World Intellectual Property Organisation (WIPO) In 1970 the Convention Establishing the World Intellectual Property Organisation came into force. WIPO succeeded the United International Bureaux for the Protection of Intellectual Property (BIRPI) and inherited its role under Article 3 of this Convention to “promote the protection of intellectual property throughout the world.” When WIPO became a specialised agency of the UN in 1974 the agreement indicated a somewhat wider remit to that of facilitating technology transfer for development. Article 1 of the agreement says that WIPO is responsible for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs, particularly the United Nations Conference on Trade and Development, the United Nations Development Programme and the United Nations Industrial Development Organisation, as well as of the United Nations Educational, Scientific and Cultural Organisation and of other agencies within the United Nations system.

In 2004, Brazil and Argentina pushed WIPO to focus more on its technology (knowledge) transfer role and proposed a development agenda which has subsequently been accepted.

A response to this was the the preparation of a draft Treaty on Access to Knowledge by an informal international committee. The draft was released in 2005 following an extensive process involving academics, government officials, NGOs, businesses and individuals and meetings in Geneva and London. This draft broadly comprehends

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the goals of the Access to Knowledge movement, particularly the facilitation of transfer of knowledge to developing nations and liberation of innovation systems globally.

Notwithstanding WIPO’s clear mandate, little progress has been achieved under its auspices and seems unlikely to be achieved in the near future given the interests involved. A focussing on certain more limited areas has resulted in a welcome draft treaty for the blind. The “soft law” UN Guidelines have the potential to progressivly make advances in relation to the consumers rights areas and a number of these are strongly relevant to the development agenda.

United Nations Conference on Trade and Development (UNCTAD) Established in 1964, UNCTAD is the main UN agency responsible for the operation of markets globally, particularly as they relate to development. (Other agencies with responsibilities which overlap to some extent include the World Trade Organisation (WTO) the United Nations Industrial Development Organisation (UNIDO)).

UNCTAD is the agency with responsibility for the Guidelines. The theme of its next conference (UNCTAD XIII Qatar April 2012) is “Development Centred globalisation”.

Amongst other things the access to knowledge issue of transfer of technology is on the agenda. Getting consideration of amendments to the Guidelines to include access to knowledge provisions would not be practical until UNCTAD XIV in 2016. However, CI will be proposing an addition to the negotiating text for UNCTAD to note that amendments to the Guidelines are appropriate to help ensure that information and communication technologies can be used optimally in the interests of consumers, especially those in developing countries.

Another proposed addition would draw attention to the effect of some bilateral preferential trade agreements between developed and developing countries. In a number of cases these have meant that the scarce public resources of the developing country have had to be diverted towards the enforcement of the developed country’s intellectual property rights. A more general effect of such agreements has been an increase in the trade imbalance in knowledge goods and services between developing and advanced countries, and a reduction in public access to cultural, educational and scientific works.

CI will also take the opportunity to point out the merit in reviewing the Guidelines generally to account for the effects of technological change.

UNCTAD is also the auspice for the Commission on Science & Technology for Development (CSTD), a commission of the Economic and Social Council (ECOSOC), which has a clear mandate for technology transfer issues. CI will be participating in its processes as appropriate.

World Summit on the Information Society (WSIS)

The WSIS was held pursuant to Resolution 56/183 (21 December 2001) of the UN General Assembly. It had two sessions in Geneva in 2003 and in Tunis in 2005. It resulted in a Declaration of Principles – Building the Information Society: a global challenge in the new Millennium, The Geneva Plan of Action and The Tunis Agenda for the Information Society. In broad terms the WSIS reaffirmed articles of the Universal Declaration of Human Rights

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relevant to access to knowledge and information and laid out a comprehensive agenda for member states and the relevant international agencies. The amendments to the UN Guidelines for Consumer Protection CI proposes are entirely consistent with the outcomes of the WSIS.

The Proposed Amendments

This section sets out the proposed amendments to the Guidelines. The amendments are laid out here following the existing structure of the Guidelines, which has not been amended other than by the addition of a new sub-section labelled Access to knowledge: I. Objectives II. General principles III. Guidelines A. Physical safety B. Promotion and protection of consumers’ economic interests C. Standards for the safety and quality of consumer goods and services D. Distribution facilities for essential consumer goods and services E. Measures enabling consumers to obtain redress F. Education and information programmes G. Promotion of sustainable consumption H. Access to knowledge I. Measures relating to specific areas IV. International cooperation Except in the case of the Access to knowledge sub-section, which being entirely new is not emphasised, the amendments are emphasised here using boldface text.

To save space, provisions of the Guidelines that have not been amended are not reproduced here. However the full text of the Guidelines with the proposed amendments highlighted is available for download on CI’s website at http://A2Knetwork. org/guidelines.

I. Objectives

1. Taking into account the interests and needs of consumers in all countries, particularly those in developing countries; recognizing that consumers often face imbalances in economic terms, educational levels, and bargaining power; and bearing in mind that consumers should have the right of access to non-hazardous products, the rights to participate in cultural, civic and educational affairs, as well as the right to promote just, equitable and sustainable economic and social development and environmental protection, these guidelines for consumer protection have the following objectives: This amendment to the preamble paragraph of the Objectives echoes the relevant provisions of the Universal Declaration of Human Rights and the Covenant on Economic, Social and Cultural Rights that underlie the subsequent amendments. These words are also found in the Draft A2K Treaty.

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� (i) To promote and enhance access to knowledge for consumers; that is, more equitable public access to the products and tools of human culture and learning.

This would add a ninth objective to the guidelines. It incorporates a short definition of the phrase “access to knowledge” that was developed by CI as part of its global programme on A2K, and first published in its book “Access to Knowledge: A Guide for Everyone” in 2010.

II. General principles

(h) Access to knowledge, as a precondition of consumers’ full participation in cultural, civic and educational affairs.

This would add an eighth statement of the legitimate needs which the guidelines are intended to meet. It mirrors statement of principle (b) The promotion and protection of the economic interests of consumers and is implied by the proposed amendments in the objectives.

5A. Policies for promoting access to knowledge should seek to strike a fair balance between the object of rewarding creativity and investment in the provision of knowledge resources, with the cultural, civic and educational rights of consumers and their needs for economic and social development.

This proposed amendment adds an eighth statement of principle to the seven current statements. The principle of balance between creator and consumer rights is a well accepted principle in intellectual property regulation and is enunciated in most instruments.

Adam Smith famously stated “Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to, only so far as it may be necessary for promoting that of the consumer.” It follows that the balance required is that which best serves consumers, but what is in contention is setting and resetting a balance that results in equity as between consumers of differing levels of wealth and in different parts of the world and between present and future consumers.

8A. All laws, regulations and non-statutory instruments such as codes and standards which are related to the protection and advancement of the interests of consumers or the public at large should be freely, accessibly and publicly available.

This proposed amendment adds a ninth statement of principle to the seven current statements. Such a statement of principle is unexceptional in relation to laws and regulations of a state and should be accepted without contest. Non-statutory instruments are becoming more and more important in regulating markets, but often they are privy to an industry or profession. Regulation to protect consumers or the public at large is less effective than it might be when consumers or citizens in general cannot measure the conduct of a business or an industry or profession they observe or suffer against the rules that business, industry or profession has set for itself. At present, for example, important standards adopted by the International Standards Organisation, such as ISO 26000 which sets a benchmark for social responsibility for organisations, are only available at a price.

III. Guidelines

10. In applying any procedures or regulations for consumer protection, due regard should be given to ensuring that they do not become barriers to international trade and that they are consistent with international trade obligations, as well with international principles that protect human rights and social, cultural and economic rights of all people.

This proposed amendment follows from the proposed amendments to the objectives and principles. It redresses an imbalance in the provision as it now exists, which implicitly

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elevates trade obligations above other fundamental underlying principles, such as human rights.

A. Physical safety 12. Appropriate policies should ensure that goods produced by manufacturers are safe for either intended or normally foreseeable use. Those responsible for bringing goods to the market, in particular suppliers, exporters, importers, retailers and the like (hereinafter referred to as “distributors”), should ensure that while in their care these goods are not rendered unsafe through improper handling or storage and that while in their care they do not become hazardous through improper handling or storage. Consumers should be instructed in the proper use of goods and should be informed of the risks involved in intended or normally foreseeable use. Vital safety information should be conveyed to consumers, including by internationally understandable symbols wherever possible, at time of purchase, and thereafter made readily available to consumers.

This amendment broadens the existing provision, principally to address the situation where safety information that was conveyed to the consumer at the time of purchase is no longer readily available, perhaps because the item was purchased second-hand or because the original safety instructions were lost. This amendment reflects the existing widespread best practice whereby suppliers will make safety information available online on an ongoing basis, so that even consumers of second-hand goods can operate them safely.

B. Promotion and protection of consumers’ economic interests 21. Consumers should be protected from such contractual abuses as one-sided standard contracts, exclusion of essential rights in contracts, the use of unnecessarily long or complex wording in contracts, variations or additions to the terms of use of a product or service to which the consumer does not freely agree, and unconscionable conditions of credit by sellers.

Whilst the focus of the present amendments is on those required to bring the Guidelines into the digital age, we are justified in adding the new bold text to this paragraph because the practices referred to are much more prevalent in contracts for online services and software than in other contexts. For example, whereas a consumer who purchases a compact disk in a music store does not have to agree to any conditions of use other than those printed on the label, the consumer seeking to purchase the same music from the Apple iTunes store must first agree to a full 56 pages of small text! Other suppliers reserve the right to modify their terms and conditions of use without the consumer’s consent, or else procure that consent under duress: see the commentary to article 23A below. This amendment would deprecate these practices.

21A. Governments should restrict suppliers of digital products and services from employing technologies that have a significant effect of preventing consumers from using those products or services in ways or for purposes that would otherwise be reasonable and safe.

Suppliers of digital goods too often assert the need to lock up digital technologies to prevent consumers from using them in new and innovative ways. These restrictions are frequently anti-competitive, unnecessary to protect the supplier’s legitimate interests, and abusive of consumer rights. An example which was recognised by the United States Copyright Office in 2010 was the right for consumer to “jailbreak” mobile phone handsets, bypassing restrictions that prevent them from installing applications other than those approved by the vendor.

This point is well argued in the Consumer Digital Rights Declaration promulgated by the Bureau Européen des Unions de Consommateurs/the European Bureau of Consumers Unions (BEUC), which asserts that:

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� “Consumers are entitled to “technical neutrality”. They should have the same rights online as offline. Digital technology must not be used to take away established consumer rights.”

And that “Consumers should benefit from new technologies. – Policies must ensure that consumers and creators benefit fully from technological development – industry must not have the power to impose excessive control over digital content.”

This amendment reflects these principles.

23. Governments should encourage all concerned to participate in the free flow of accurate information on all aspects of consumer products, including in the case of digital content, the effect of any applicable technical protection measures and information on interoperability with hardware and software.

This amendment is based on Article 5 of the EU Consumer Rights Directive (Directive 2011/83/EU) that requires consumers of digital content to be provided with information about its functionality, including any applicable technical protection measures, and interoperability information.

23A. Suppliers of consumer electronic devices, or of proprietary software for such devices, may not issue a software or firmware update that would disable the consumer’s access to functionality that the device or software possessed at the time of purchase, unless: (a) the update is essential to protect the safety of the consumer or the consumer’s data; (b) the consumer is fully and clearly informed of the effects of the update; and (c) the consumer is given the opportunity to accept or reject the update, unconditionally upon the acceptance of any other update that improves or corrects functionality of the device or software.

An example of supplier conduct infringing these principles is when in 2010 Sony remotely updated previously-purchased Playstation 3 consoles to remove their ability to run other operating systems, which had been a key feature with which the consoles were advertised.

Any consumer who declined to accept this update would be barred from accessing Sony’s Playstation Network to play multiplayer games. Similarly, in 2011 US phone company Verizon remotely updated previously-purchased phones to remove their ability to operate as wireless Internet hotspots. George Tian’s paper in this volume explains how such practices are an abuse of intellectual property rights, which infringe consumer law in countries such as Australia and Brazil.

C. Standards for the safety and quality of consumer goods and services No amendments D. Distribution facilities for essential consumer goods and services No amendments E. Measures enabling consumers to obtain redress No amendments F. Education and information programmes

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40A. Bearing in mind the value of the Internet as a channel for consumer education, including long distance learning and knowledge sharing between consumers, governments should facilitate universal access to the Internet through affordable telecommunications and Internet costs with special consideration given to the needs of public service and educational institutions, and of disadvantaged and disabled population groups.

The importance of broadband Internet access as a vehicle for the empowerment of consumers has been recognised by the global consumer movement with the adoption of the Consumers International campaign, Holding Broadband Service Providers to Account, reported elsewhere in this volume.

This proposed amendment draws from the UNESCO Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace. It also complements the mission of the Broadband Commission for Digital Development, a joint initiative by the International Telecommunication Union (ITU) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO), which was established in May 2010 to promote the adoption of broadband-friendly practices and policies as a way of advancing the Millennium Development Goals (MDGs).

G. Promotion of sustainable consumption No amendments H. Access to knowledge The following proposed amendments would make up a new section H of the Guidelines.

55A. Access to knowledge for consumers should be promoted and protected by governments as part of their duty to uphold their citizens’ rights to seek, receive and impart information and ideas through any media and regardless of frontiers; to receive an education directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms; and freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

This proposed amendment reflects Articles 19, 26 and 27 of the Universal Declaration of Human Rights and fleshes out the amendments made to the objectives and general principles of the Guidelines.

55B. Governments should work to actively maintain a rich and accessible public domain. No expansion of the scope or extension of the duration of copyright protection should be made without wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments. Rights holders should be permitted to voluntarily relinquish copyright in their own works. It should not be possible to re-appropriate exclusive rights over public domain works by technological, contractual or other legal means, or by making technical reproductions of such works.

This summarises the main points of the Public Domain Manifesto, as well as drawing from the Adelphi Charter. It is also consistent with Professor Séverine Dusollier’s 2011 Scoping Study on Copyright and Related Rights and the Public Domain, which was commissioned in furtherance of recommendations 16 and 20 of the WIPO Development Agenda. All of these sources are listed in the bibliography to this paper.

55C. Governments should limit or exclude copyright protection for works that they have produced or funded, should endeavour to provide universal online access to such works including all official public documents, and should support the preservation, digitisation and online dissemination of other public domain works. Governments should be further guided by the UNESCO Charter on the Preservation of Digital Heritage of 15 October 2003, and the UNESCO

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace of 21 November 2003.

The main bases for the principle that works of the government should be made freely available are twofold: firstly this supports the democratic principle of open government, by allowing a country’s citizens to effectively exercise public oversight of their representatives, and secondly it recognises that citizens have already paid for the production of these works through taxes, and should therefore not be limited in their access to or use of these works by copyright law. It reflects the practice of countries such as the United States that exclude copyright in such works, and others that have adopted policies to release their works under liberal copyright licenses.3

55D. Governments have a responsibility to fund public libraries and archives, and to facilitate their operation through appropriate limitations in copyright law to allow archival and preservation, lending, and copying for education and research. Libraries should be permitted to circumvent technological protection mechanisms on digital works for the above purposes.

The UNESCO documents referenced in article 55C are also important references for this amendment, which is more specific in its focus on public libraries and archives. The provision permitting libraries to circumvent technological protection mechanisms on works is compatible with Article 14 of the Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives, prepared by IFLA, EIFL, ICA and Innovarte, that was presented to WIPO at a November 2011 standing committee session.

55E. Governments, in partnership with the private sector and other relevant organisations, should encourage the development and use of more inclusive models for the production and distribution of knowledge and culture, including the use of free and open licenses that allow works to be freely studied, applied, copied and/or modified, by anyone, for any purpose. Open collaborative projects that utilise such licenses should be supported as incubators of creativity and innovation.

This amendment acknowledges the revolutionary benefits that open collaborative projects utilising open licences have brought to consumers, and recommends that all stakeholders support such initiatives. Amongst the best-known examples are the free encyclopaedia Wikipedia, open access journals and textbooks, and free computer software such as Linuxbased operating systems, the Firefox web browser and the OpenOffice office suite. Sources for the wording of this provision include the Definition of Free Cultural Works and recommendation 36 of the WIPO Development Agenda.

55F. Governments must protect the rights of consumers of knowledge goods over the underlying copyright works in those goods. The rights that should be recognised by law and protected from derogation by contract include: One of the core amendments put forward is this provision, which suggests a set of basic copyright limitations and exceptions that ought to be made available to consumers in order to balance their legitimate interests in access to knowledge against the exclusive rights of authors protected by copyright law. The formulations of these points (a) to (h) are new, but similar rights are covered in the sources referenced below.

(a) To make use of such works for private research and study purposes, including distance education; This or something like it is one of the most common copyright flexibilities in national law.

It is to be distinguished from a right for teachers to copy works for purposes of classroom education, which is not a right directly exercised by consumers and hence not included here.

3

See http://wiki.creativecommons.org/Government_use_of_Creative_Commons.

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(b) To make use of such works in criticism, commentary or parody; In response to recommendations in the 2011 Hargreaves Report, the United Kingdom is currently proposing the introduction of a copyright limitation to cover parody. One of the justifications given is that many of today’s consumers express themselves through new media and online social networks by parodying elements from popular culture, and that it is appropriate to facilitate such expression through a copyright limitation. Parody is already permitted by the copyright laws of other countries such as Australia, France, the Netherlands and the United States.

(c) To make copies for backup purposes; A copyright limitation for backup protects consumers against the loss of original copies of copyright works. Such a provision is often explicitly included for specific cases such as computer software, as in the copyright laws of the United Kingdom, Japan and Kenya, and music, as in Australia. Elsewhere, the more general case is covered by a personal use exception, as in India, South Korea and continental Europe.

(d) To time, space and format shift the works so that they can be accessed at a convenient time and place; Time shifting is the practice of recording broadcasts so that they can be enjoyed at a more convenient time. Space shifting is when a user copies a work to use it in more than one place, for example at home and in the car. Format shifting is converting a work into a format that enables it to be used with a certain device or software, eg. copying music from CD to a personal music player. None of these practices result in significant lost revenue to the copyright owner, hence an emerging global best practice is to explicitly allow them, without right of remuneration, as limitations to copyright. Australia and New Zealand are amongst the countries with provisions covering all of these practices, and the United Kingdom, which currently only has a time-shifting provision, now proposes to broaden this to cover other acts of personal copying.

(e) To use works in digital form, or works that the consumer has shifted into digital form, on any compatible device, and to make any temporary copies that may be required to enjoy such use; This amendment flows naturally from the previous one, but goes further in explicitly recognising that the enjoyment of digital works often involves the automatic creation of temporary copies as an adjunct to the act of playback. Such copies, having no independent economic value, are properly allowed under a limitation to copyright. This is in fact the only compulsory copyright limitation under the EU Copyright Directive.

(f) To copy, lend or perform the works for personal use, family use or similar uses within a limited circle; Copying within a private or domestic sphere, such as a family, household or social circle is permitted by the copyright laws of countries such as France, Spain, and South Korea.

Much as a household will traditionally watch television or listen to music together, and freely share books and magazines with each other, so too the modern household reasonably expects to be able to share digital works without thereby committing an act of copyright infringement.

(g) To adapt works, or to make use of adaptations made non-commercially by others, to overcome a disability suffered by the consumer or by a member of the consumer’s family or household that would otherwise interfere with their enjoyment of the works; and This provision seeks to ensure that copyright law remains consistent with the Convention on the Rights of Persons with Disabilities, which reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms.

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� (h) To resell knowledge goods together with all of the rights with which they were first sold, provided that they destroy any personal copies they may have made.

This provision would ensure technological neutrality, by specifying that consumers have the same resale rights over digital goods as they possess over physical goods. It is targetted at the practice of selling digital works with rights that enure only to the benefit of the original purchaser, by which the supplier aims to eliminate competition from the legitimate second-hand market.

55G. Recognising that much creative expression in the digital age is produced by consumers drawing on elements from their surrounding culture, governments should recognise consumers’ right to quote or otherwise make reasonable use of a copyright work in the creation of a new work, and to distribute that new work non-commercially, provided that: (a) The source is not an obviously infringing copy; (b) The use does not conflict with the normal exploitation of the existing work and does not unreasonably prejudice the legitimate interests of the author; and (c) The source is acknowledged where it is reasonable in the circumstances to do so.

This text is based loosely on section 29.21 of the Canadian Bill C-11 (formerly C32, which will become the Copyright Modernisation Act), and section 46(VIII) of the Brazilian Draft Law on Copyright and Neighbouring Rights. It is a narrowly-crafted exception, compliant with the Berne and TRIPS three-step test, to ensure that the millions of consumers who express themselves online through the production and sharing of new creative works based on existing works from popular culture, are not thereby committing copyright infringement.

55H. To the extent necessary to enable a consumer to exercise the rights over a work described in paragraphs 55E or 55F above, the consumer must be afforded the right to circumvent technological protection measures applied to that work, or to modify a device to enable it to be used for accessing the work, provided in the latter case that the consumer owns that device or has permission from its owner to do so. Governments should apply similar penalties against those who hinder or prevent consumers from exercising the rights described in paragraphs 55F or 55G above as are applied to the infringement of copyright in the work.

The two related provisions in this paragraph are respectively based on section 22 of the EIFL-IP Model Copyright Law and section 107 of the Draft Law on Copyright and Neighbouring Rights of Brazil. Their intent is to prevent technological protection mechanisms from being used to nullify the effect of copyright limitations and exceptions for consumers. For example, although the law may allow consumers to use an extract from a DVD in an educational project, this right is useless unless the consumer can overcome copy protection technology applied to the DVD. Recognising this, the right for consumers to bypass DVD copy protection for such purposes was granted by the US Copyright Office in 2010.

55I. Acts of copyright infringement committed by consumers for non-commercial purposes, or possession of copyright-infringing goods in non-commercial quantities, should not be punishable by criminal sanctions, nor by the suspension or termination of the consumer’s access to essential communication networks such as the Internet, Whilst copyright enforcement is important, there is a need for proportionality. The TRIPS agreement sets out the appropriate balance, by only requiring criminal penalties to be made available for commercial-scale infringements. That consumers should not be made into criminals over infringement of copyright law is a precept of the BEUC Consumer Digital Rights Declaration. That their Internet connections should not be terminated a penalty for infringement was highlighted by the UN Rapporteur on Freedom of Expression, in his 2011 report to the UN Human Rights Council.

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55J. Governments and industry should support, use and contribute to the development of open and interoperable standards for works supplied to or hosted for consumers in digital formats.

Suppliers who provide a service to host such works online (other than a content streaming service) should also provide the means for consumers to extract those works from online storage by that supplier, using open formats and protocols.

The purpose of this provision is to ensure that the documents, photographs, and creative works that consumers either create themselves and host online, or purchase for consumption, are supplied and stored in formats that they can use, without tying them to a single proprietary vendor. This is particularly important for online (“cloud”) services in which consumers store their content, so that if the service provider terminates its service, they will be able to extract their content and move it elsewhere. Some of the language of this provision is derived from the Paris Accord, which is referenced in the bibliography.

55K. Government policy should promote the creation, dissemination and preservation of content in diverse languages and formats, including local content suited to domestic or regional needs.

Governments should be further guided by the UNESCO Universal Declaration on Cultural Diversity of 2 November 2001, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 20 October 2005, and the UNESCO Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace of 21 November 2003.

Apart from the UNESCO instruments referenced here, this text is also based closely on paragraph 53 of the Geneva Declaration of Principles at the World Summit on the Information Society (WSIS).

55L. The Internet has become a basic means of communication for individuals and their most important means of access to knowledge and general information, as well as a platform for consumers’ access to participate in public, democratic debate. Considering this, governments and business should afford consumers the right to access neutral networks. That means that consumers have the right to attach devices of their choice, the right to access or provide content, services and applications of their choice, and the right for this access to be free from discrimination according to source, destination, content and type of application.

This provision is taken almost directly from the TACD Charter of Consumer Rights in the Digital World. It complements the earlier amendment 40A, and specifies that not only should the Internet be accessible to consumers, but its open and neutral character should also be preserved.

55M. Consumers who access information and knowledge in digital form should not thereby sacrifice their personal privacy. Governments and businesses should ensure effective consumer control of personal data, through collection of personal data (including internet usage information and IP addresses) only when strictly necessary and in an open and transparent way, and wherever practicable and lawful, through free, informed and positive consent (opt-in).

55N. Business and governments should apply data minimisation practices and use effective and updated technology to protect confidential personal data against unauthorized use. Those affected by any personal data breach must be promptly notified of the details of the breach and of the available means of redress. The content of consumers’ communications online must not be intercepted by governments or third parties without a valid court order.

These two provisions have been included to protect consumer privacy. Both are intended to address consumers’ loss of control over their personal information online, but the first focuses on the preventative measure of limiting the information that is collected about consumers to begin with, and the second concerns safeguards and remedies against the loss or misuse of that information. The main sources for these provisions are the OECD Civil Society Background Paper and the TACD Charter of Consumer Rights in the Digital World.

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� I (currently H) Measures relating to specific areas 61. Pharmaceuticals. Governments should develop or maintain adequate standards, provisions and appropriate regulatory systems for ensuring the quality and appropriate use of pharmaceuticals through integrated national drug policies which could address, inter alia, procurement, distribution, production, licensing arrangements, registration systems and the availability of reliable information on pharmaceuticals. In so doing, Governments should take special account of the work and recommendations of the World Health Organisation on pharmaceuticals. For relevant products, the use of that Organisation’s Certification Scheme on the Quality of Pharmaceutical Products Moving in International Commerce and other international information systems on pharmaceuticals should be encouraged. Measures should also be taken, as appropriate, to promote the use of international non-proprietary names (INNs) for drugs, drawing on the work done by the World Health Organisation. Governments should also provide an enabling environment for generic competition in the market for pharmaceutical products, in order to improve consumers’ access to affordable healthcare.

Although this amendment addresses a somewhat different issue than the balance of the amendments, it is included because it likewise concerns the balancing of intellectual property rights with consumer rights. The right to health, like the right of access to knowledge, is threatened by excessive pricing of branded products, especially those protected by pharmaceutical patents. However, after such patents expire, legal generic drugs can help to dramatically improve affordability.

IV. International cooperation 65A. Governments should work to eliminate unnecessary barriers to the export of legally produced knowledge goods, including those that have been adapted for the use of consumers who are blind, visually impaired or reading disabled.

WIPO is currently discussing a proposed international instrument on limitations and exceptions for persons with print disabilities, which would overcome an anomaly whereby it is a copyright infringement for a legally-produced work adapted for blind readers to be exported from one country to another, even if the work would also have been legal to produce in the importing country. This provision addresses that problem, but also more broadly encourages international trade in legally produced knowledge goods, to improve affordability for consumers.

References

Adelphi Charter on Creativity, Innovation and Intellectual Property (2005), available from http://www.sitoc.biz/adelphicharter/pdfs/adelphi_charter2.pdf.

BEUC. Digital Rights Declaration (2007), available from http://web.archive.org/web/ 20070816145505/http://www.consumersdigitalrights.org/cms/full_decla_en.php.

Brazil. Draft Law on Copyright and Neighbouring Rights (2010), available from http:// www.gpopai.usp.br/blogs/files/2010/08/brazilian_copyright_bill_consolidated_ june_2010.pdf.

Canada. Copyright Modernisation Act (Bill C-11) (2011), available from http://www. parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851.

Charter of Human Rights and Principles for the Internet (2010), available from http:// internetrightsandprinciples.org/node/367.

COMMUNIA. Public Domain Manifesto (2010), available from http://www.publicdomainmanifesto. org/.

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Consumers International. Access to Knowledge: A Guide for Everyone (2010), available from http://a2knetwork.org/handbook.

Convention on the Rights of Persons with Disabilities (2007), available from http://www. un.org/disabilities/convention/conventionfull.shtml.

Copyright for Creativity – A Declaration for Europe (2010), available from http://www. copyright4creativity.eu/.

Definition of Free Cultural Works (2010), available from http://freedomdefined.org/ Definition.

DigitalConsumer. Consumer Technology Bill of Rights (2002), available from http://www. digitalconsumer.org/bill.html.

Draft Access to Knowledge Treaty (2007), available from http://www.cptech.org/a2k/ a2k_treaty_may9.pdf.

Dusollier, Séverine. Scoping Study on Copyright and Related Rights and the Public Domain (2011), available from http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_7/cdip_ 7inf_2.pdf.

EIFL-IP. Draft Law on Copyright (2009), available fromhttp://www.eifl.net/system/ files/201101/modellaw_v16.pdf.

EU. Consumer Rights Directive (Directive 2011/83/EU) (2011), available from http: //eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:304:0064:0088:EN: PDF.

Free Culture Forum. Charter for Innovation, Creativity and Access to Knowledge (20092010), available from http://fcforum.net/.

Hargreaves, Ian. Digital Opportunity: A review of Intellectual Property and Growth (2011), available from http://www.ipo.gov.uk/ipreview-finalreport.pdf.

IFLA, EIFL, ICA and Innovarte. Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives (2011), available athttp://www.wipo.int/edocs/mdocs/ copyright/en/sccr_23/sccr_23_5.pdf.

La Rue, Frank. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (2011), available fromhttp://www2.ohchr.org/ english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

MPI. Munich Declaration on copyright limitations and exceptions (2008), available from http://www.ip.mpg.de/shared/data/pdf/declaration_three_step_test_final_ english.pdf.

Public Voice. OECD Civil Society Background Paper (2008), available from http://www. oecd.org/dataoecd/45/47/44686738.pdf.

TACD. Paris Accord – an agreement between creative communities and the public (2009), available from http://www.tacdip.org/files2/paris_accord_2009_oct20.pdf.

TACD. Resolution on Copyright Terms (2009), available from http://tacd.org/index. php?option=com_docman&task=cat_view&gid=76&Itemid=40.

����� ����� ��� ������ �������: �������� ��� �� ���������� ��� �������� ���������� Trans-Atlantic Consumer Dialogue. Charter of Consumer Rights in the Digital World (2008), available from http://tacd.org/index2.php?option=com_docman&task=doc_ view&gid=43&Itemid=.

UK Intellectual Property Office. Consultation on Copyright (2011), available from http: //www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm

UNESCO. Charter on the Preservation of Digital Heritage (2003), available from http: //unesdoc.unesco.org/images/0013/001331/133171e.pdf.

UNESCO. Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), available from http://unesdoc.unesco.org/images/0014/001429/ 142919e.pdf.

UNESCO. Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace (2003), available from http://portal.unesco.org/ci/en/ files/13475/10697584791RecommendationEng.pdf/Recommendation-Eng.pdf.

UNESCO. Universal Declaration on Cultural Diversity (2001), available from http:// unesdoc.unesco.org/images/0012/001271/127160m.pdf.

Universal Declaration of Human Rights (1948), available from http://www.un.org/en/ documents/udhr/index.shtml.

WIPO. Development Agenda (2007), available from http://www.wipo.int/export/ sites/www/ipdevelopment/en/agenda/recommendations.pdf.

WSIS. Geneva Declaration of Principles (2003), available from http://www.itu.int/wsis/ docs/geneva/official/dop.html.

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5 The UN Guidelines For Consumer Protection: Making Them Work in Developing Countries

Robin Brown

A������� This paper outlines the background to the adoption of the UN Guidelines for Consumer Protection by the UN General Assembly in 1985 and developments since then. It notes that the Guidelines call upon governments to develop, strengthen and maintain a strong consumer policy and regulatory system to protect consumers in relation to physical safety, economic interests, standards, essential goods and services, redress, education and information, specific areas concerning health and sustainable consumption.

It observes that the Guidelines have two kinds of provisions: those concerning assistance people need to advance and protect their interests as consumers and the rules required to protect them where they cannot protect themselves and those concerning how governments might best provide assistance and make needed rules and how governments should cooperate with each other.

The paper goes on to discuss some of the realities of policy and regulatory development to achieve implementation of the Guidelines noting that there are four key elements: research, advocacy, policy and rule making, compliance action and consumer support. The challenge of ensuring adequate advocacy by civil society consumer organisations is considered. The conclusion is that, while there is much still to achieve, the Guidelines have made a major contribution to the advancement of the position of consumers around the world.

1

Introduction

The UN Guidelines for Consumer Protection were in the UN process at the same time as the Code of Conduct for Transnational Corporations. The Code had started out as a proposed instrument to contain excesses of TNCs in the developing world. However, provisions to protect business interests, especially from nationalisation, were added and provisions to protect the interests of developing countries and

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their citizens were watered down. The Guidelines emerged and, in part, became the vehicle for some of the business regulatory elements lost from the Code. Not surprisingly they were opposed by certain business interests. The International Chamber of Commerce (ICC), not exactly a group balancing the interests of the north and south, pushed for the Code and strongly against the Guidelines. Nations lined, up with the USA, Japan and Germany echoing the ICC and the G77 on the other side.

Consumers International (then called the International Organisation of Consumers’ Unions) was represented at the UN by the indefatigable Esther Peterson. Esther, who had been consumer policy adviser to Presidents Johnson and Carter, commented at the time “It’s amusing that opposition comes more strongly from business interests in countries where these guidelines already exist as laws or regulations.”

In spite of strong opposition by the Reagan administration, on 16 April 1985 the UN General Assembly, by resolution 39/248, adopted the UN Guidelines for Consumer Protection by consensus.

The Code of Conduct for Transnational Corporations ultimately did not itself get anywhere. Another go was later had by business interests via the proposed OECD Multi-lateral Agreement on Investment. This failed too, but TRIPS and TRIMS Agreements (TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights.

TRIMS – Agreement on Trade Related Investment Measures) and bilateral trade agreements now give business many of the protections it was seeking.

It is important to note that the OECD was not one sided. Its Committee on Consumer Policy was a supporter of the Guidelines and contributed some of the thinking.

Apart from opposition to the Guidelines as a restriction on business activity they were opposed as being “Global Paternalism” (Jeane J. Kirkpatrick, President Reagan’s UN representative). And Murray L. Weidenbaum, (former economic advisor to Reagan) wrote that the UN should not assume the role of global “nanny” and international consumer “cop”. The line was essentially that northern countries should not be telling southern countries how to regulate their markets. This thinking seems to have been conveniently set aside over the decades in which neoliberal policies (the Washington Consensus) have been pushed on to developing countries including through such institutions as the IMF and the World Bank.

It is interesting that in his 1993 report on progress in implementation of the Guidelines the UN Secretary-General notes that both developing and developed country governments ”reported that the guidelines had had a significant impact on their work” on consumer policy. Today, a Google search on the guidelines produces more than 20,000 entries. A sampling of these entries indicates as much interest in developed as developing countries. It would seem that suggestions that the guidelines are condescending toward developing countries were quite ill-founded.

The UN Secretary-General’s 1993 report indicates a significant global take-up of the guidelines in national legislation by that time. There does not appear to be an up to date survey of the extent of implementation, but indications are but a minority of nations have not yet enacted reasonably comprehensive consumer protection legislation.

Amongst ASEAN member states, for example, all but one either have such legislation or are in the process of finalising it.

The UN Guidelines call upon governments to develop, strengthen and maintain a strong consumer policy, and provide for enhanced protection of consumers by enunciating various steps and measures around the following eight issues:

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� • Physical safety • Economic interests • Standards • Essential goods and services • Redress • Education and information • Specific areas concerning health • Sustainable consumption In the 25 years since the Guidelines were first agreed, commentators and policymakers have come to describe the principles in the language of consumer “rights”. In this regard a common restatement of the Guidelines can be found in the Charter of Consumers International which renders the Guideline as eight consumer rights. They are the: 1. Right to satisfaction of basic needs 2. Right to safety 3. Right to choice 4. Right to redress 5. Right to information 6. Right to consumer education 7. Right to representation 8. Right to healthy environment The Guidelines have two kinds of provisions. The first kind set out the assistance people everywhere should be given to advance and protect their interests as consumers of goods and services and the rules that should apply to protect them in circumstances where they cannot be expected to protect themselves. The second kind of provisions in the Guidelines indicate how governments might best go about providing such assistance and making such rules including how they should cooperate with each other.

The provisions of the first kind, particularly with the additions on sustainable consumption in 1999 which originated at the 1992 Earth Summit in Rio, are quite comprehensive. The proposed additions on access to knowledge would take the guidelines a major step further.

When national laws fully reflect the Guidelines they provide the legal basis for upholding the eight consumer rights that the international consumer movement has adopted. A very useful guide on what consumer protection laws need to cover to realise these rights was prepared by John Wood (Wood 1996). This is at Appendix 1.

No doubt both the first kind of provisions and the second kind and their implementation should, at least for the foreseeable future if not beyond, be seen as works in progress. Social, economic and technological change mean that consumer laws need continual updating and the same is likely to apply to the Guidelines. In my view though, there is rather more work to be done in relation to the guidelines’ second kind of provisions than the first and this paper concentrates on these.

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The Policy and Regulatory Realities the Guidelines and Their Implementation Must Recognise There are some who hold to the view that markets, or most of them, work entirely satisfactorily without regulation. I suggest that most participants in markets, both consumers and producers, accept that rules are necessary for their efficient and equitable functioning. But the soundest rules, both consumer protection and competition, are not sufficient for effective protection of consumers, advancement of their interests and the achievement of sustainable consumption and efficient allocation of resources.

Three additional conditions are critical:

• Each type of market, for its efficient and equitable operation, needs to be disciplined by a proportion of educated and informed consumers. The proportion needed will vary depending on the characteristics of the market in question.

• The institutions administering the rules need to be well designed and well resourced.

• The people responsible for complaint resolution and regulatory enforcement must be not only well trained, but be able to act uninfluenced and be prepared to take some risks.

The underpinning of all four conditions is of course sound public policy -in this discussion, consumer policy. Consumer policy is aimed at achieving equity and efficiency for consumers and the public interest by means of the most efficacious mix of market forces and regulatory or other intervention.

Consumer policy can be divided into three main subsets: 1. Policy to empower consumers to act in their own interests – Consumer empowerment policy; 2. Policy to provide for protection of consumers and action on their behalf in circumstances where, for one reason or another they are not able to fully prosecute their interests – Consumer protection policy; and 3. Policy to ensure, as far as possible, consumers benefit from competition so that efficiency gains make standards as high as possible and prices as low as possible – Competition policy.

While all three areas of policy relate to some extent to all the consumer rights there is a closer nexus between certain of the rights and one or other of these policy areas as follows: Consumer empowerment policy relates mainly to: • Right to redress • Right to information • Right to consumer education • Right to representation Consumer protection policy, which in broad terms is policy concerning the standards of goods and services and the conditions directly affecting the trade between buyer and seller relates mainly to:

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� • Right to basic needs • Right to safety • Right to redress • Right to information • Right to a healthy environment Competition policy, though it affects most other rights, relates mainly to the right to choice.

Consumer Policy and the Compliance Pyramid Development and implementation of consumer policy should be informed by the compliance pyramid model. The diagram below depicts a typical pyramid. The number of levels and the activities at each level will vary from regulatory regime to regulatory regime. The idea is that the bulk of effort and activity occurs at the base of the pyramid and this diminishes towards the top.

Under all regulatory regimes there is considerable scope for both consumer actors and industry actors to contribute at the base level. Individual consumers can contribute by drawing a company’s attention to marketplace problems. Industry associations and companies can do much in the way of compliance programmes and complaint handling. Consumer organisations work with industries and companies and can distribute information to consumers.

In some regulatory regimes there is scope for both consumer and industry actors to contribute right up to the top level. The effect of this contribution from consumer and industry actors is of course to broaden the pyramid, to increase the activity at the

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lower levels, thus reducing the need for activity at the higher levels and making the regulatory regime more effective and efficient.

For regulatory regimes to be fully effective the top level has to be, and be seen to be, real. This does not mean it always has to be utilised, but a real potential for utilisation is necessary. In the end, the government of the day must make it clear that it is prepared to back up the regulatory agency involved.

The stronger the commitment and support from government, industry and consumers (or citizens in respect of public interest issues or workers in respect of worker protection), the broader the regulatory/compliance pyramid can be at its base and thus most effective and efficient as depicted in the diagram below.

Where tripartite commitment is weak or lacking the pyramid structure collapses and the regulatory agency is limited to relatively ineffectual activity in the middle levels as represented in the diagram below.

Consumer Policy Implementation – Four Elements Sound consumer policy and its effective implementation will only be achieved with the four following interdependent activities well undertaken: • Research

• Advocacy • Policy and rule making • Compliance action and consumer support.

The Guidelines either explicitly or implicitly have quite a lot to say about each of these.

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� There must be two-way interaction between all four and the process must be continual and continuous (as depicted in the diagram below) as the process of change in the characteristics of markets rarely pauses.

The main functions that need to be performed in respect of these four areas of activity are as follows: Research • Research and analysis of market sectors – both supply and demand sides • Collection of data on the performance of market sectors Advocacy • Public interest advocacy for sustainability • Producer advocacy • Consumer advocacy for • Policy and/or regulatory reform • Regulatory decisions – tariff approvals etc • Improved administration of regulation • Individual cases • Improvements in companies’ services for consumers in general or for disadvantaged or vulnerable consumers Policy and rule making • Policy development

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• General rule/regulatory instrument development and review • Review and reform of regulation of a market sector.

Compliance action and consumer support – education, information, compliance programmes, rule enforcement, dispute resolution • Education and dissemination of information to consumers • Education and dissemination of information to suppliers • Industry association and company level programmes for compliance with regulation and for continuing consumer service improvement • Administration of general regulation for consumer protection and competition and for worker protection and environment protection • Administration of market sector regulation • Collection of complaints/disputes • Independent mediation/conciliation and arbitration of complaints/disputes and • Management of particular cases (eg. hardship cases).

There are many options for allocation of performance of these functions to different agents and many may be undertaken by more than one stakeholder. All these functions are integral to the effective operation of a market.

Research

II 8 of the UN Guidelines states: The potential positive role of universities and public and private enterprises in research should be considered when developing consumer protection policies.

Promotion of sustainable consumption is a very important and large part of the UN Guidelines and in relation to this there are a number of references relevant to research needs including: 45. Governments should encourage the design, development and use of products and services that are safe and energy and resource efficient, considering their full life-cycle impacts. Governments should encourage recycling programmes that encourage consumers to both recycle wastes and purchase recycled products. and 55. Governments and other relevant organisations should promote research on consumer behaviour related to environmental damage in order to identify ways to make consumption patterns more sustainable.

In many countries there is an inadequate capacity in this area, particularly in terms of knowledge of how consumers are coping with changing markets. For example we do not know for a number of markets whether sufficient consumers are undertaking information searches so that the demand side is making competition work adequately.

Frequently advantage is not taken of the large amount of data that many community based organisations have to inform policy development. Research is needed in all countries in this area. In many developing countries where there are high levels of extreme poverty and low levels of literacy and education, it is especially important to

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� know how well ordinary consumers are coping with markets for basic needs and how well those markets are delivering.

On the matter of research on consumer behaviour related to environmental damage, while there is need for this in developing countries, the larger responsibility is with developed countries where the environmental footprint of the individual consumer is many times larger.

Funding from international donors should be sought to support research and all opportunities to undertake collaborative research internationally should be taken.

Advocacy

While broad agreement can usually be achieved amongst a range of views on the other three elements, the resources they consume and the manner in which they should be performed, there is often controversy on advocacy. However there is no denying that advocacy plays a very significant part in public policy formulation and implementation.

While the research on a market might be comprehensive, policy and rule makers and regulators are likely to hear more about aspects and perspectives relevant to the interests of those whose livelihoods are involved in the market than about aspects and perspectives relevant to the interests of consumers or to the public interest. It is the costs and benefits of advocacy that determine this. In the extreme, policy and rule makers and regulators can be captured by producer interests. This becomes a particularly complex issue when the producers themselves may also be struggling to maintain financial security, and the temptation to ‘cut corners’ can mean the difference between surviving or not.

Getting citizens in general to advocate their interests or pay up to have their interests represented as consumers of a good or service or beneficiaries of a clean environment is much harder. The benefits of participation in advocacy are often seen to fall well below the costs. This is largely due to the “collective action problem” described in 1965 by Mancur Olson So, where public policy and regulation should reflect a diffuse public interest, members of the community at large will, not unreasonably, question why they should devote a lot of time and energy with everyone else “free riding” on their efforts.

Of further concern is the fact that many people in disadvantaged groups in the community are, in any case, disempowered in advocacy. For a range of reasons they are unable, or find it very difficult, to engage in participation processes available.

Regulatory arrangements need to be adaptable. This means that care must be taken to provide for the weakest voices to be heard in the adaptation process.

The increasing globalisation of public policy formation is problematical. Compromises from national positions often occur at international forums. Such compromises are more likely to be in favour of producer interests because members of national delegations to these forums are rather more likely to be exposed to the advocates of producer interests than consumer movement advocates.

Advocacy can be seen as occurring both extra and intra state. Intra state advocacy is provided by the agency charged with consumer policy development and other interested agencies and by members of parliament. In many countries it is also provided by consumer advisory committees in various forms. When such committees have statutory independence they can be more effective.

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Extra state advocacy is provided by: 1. The consumer movement and other community sector interests 2. Industry and industry organisations 3. Academics 4. Professional bodies A number of countries have industry ombudsman and other external dispute resolution administrators. Because these agencies have so much information on what is really happening in a market they can make important contributions to advocacy.

However, it is somewhat constrained, as they must be careful to maintain their status as impartial umpires between producers and consumers.

Consumer Movement Advocacy

The UN guidelines on consumer protection deal with the issue of consumer representation or advocacy in a number of different ways. Objective 1 (e) of the UN guidelines calls for “Government action to facilitate the development of independent consumer groups.”

The guidelines also say that opportunities are to be provided to consumer groups for presenting their views in the decision-making process or to speak up on behalf of consumers and, in particular, measures are to be put in place to represent the interests of disadvantaged consumers.

Laws and policies which are designed to protect the interests of consumers are almost certain to fail in their objective unless there is a systematic opportunity for consumers and their representatives to influence the policy, its expression in legislation and the administration of that legislation or regulation. In his keynote speech to a 2009 conference on Consumer Protection in Bangladesh, for these reasons Doctor Atiur Rahman, Governor of the Bangladesh Bank, regretted the lack of civil society organisations in his country involved in representing consumers’ interests within that country.

In a number of developed countries, consumer organisations have been successful in building membership or supporter groups by essentially selling the results of their product testing. However, this has been largely restricted to middle class consumers able to afford the price of the information. This means that products or markets dealt with are largely those related to middle class consumption patterns. In addition there is a limit to the extent that income from information selling can cross-subsidise public interest advocacy. The structure of the movement in most developed countries, therefore, comprises a single large product-testing organisation and a large number of relatively small or poorly resourced groups either geographically or issues based.

It would seem that product-testing organisations have been generally able to secure national monopolies for their services to consumers.

In some countries, notably the USA, significant extra resources have been available from donations from charitable foundations for example. The personal contribution of Ralph Nader from the earnings of his books and lectures is not inconsiderable. This sort of support has been rather limited in other countries.

Developed country governments though, have recognised the resource constraints of consumer organisations and provided state financial assistance. Referring particularly

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� to consumer policy issues, William Gormley shows that even in the USA, where consumer organisations are better resourced from their own efforts than anywhere else, there is still a need for state assistance: Without such support, citizens must often choose between passive acquiescence and hysterical appeals to the mass media for publicity. With government support, citizens can sharpen their own understanding of complex issues before they make a case to the bureaucracy. The playing field (between producer and consumer interests) may not be equalized, but it does become more equal. (Gormley 1991)

Decades ago in Australia the argument for state assistance being provided to public interest groups was well articulated in the report of the Royal Commission into Australian Government Administration (1976). Appendix 2D of the Report specified that to receive such assistance: citizens’ groups should meet the following criteria: • they represent certain interests deemed worthy of support; especially of the economically and socially deprived and the public at large; • they are properly constituted; • the funds are used for specified purposes; • the group’s accounts are audited; • the group report on how the funds were spent.

The Commission recommended (R90) that a special neutral agency be established to provide this assistance. This has not been implemented, but all governments since then have given financial assistance to consumer organisations amongst others. It is critical that while some of this assistance has been given in response to particular project proposals, organisations have received grants-in-aid to provide general support for their operations and activities that they independently decide to undertake from time to time. This has meant, for example, that they have been able to advocate policy positions not favoured by the government of the day.

Pursuant to Objective 1 (e) of the Guidelines governments of all countries should satisfy themselves consumers’ associations have the resources needed to perform a strong advocacy role. It would be useful if there were some elaboration of Objective 1(e) on the question of resourcing. There has always been some reservation amongst CI (IOCU) members on the question of state support for consumer organisations.

When the guidelines were written the influence of the large product testing, information selling consumer organisations of the north, which were very jealous of their independence from government, may well have been the reason why the Guidelines are silent on the matter of government funding. If the Guidelines had tackled the question, and had set out some principles on government funding to limit influence on consumer organisations, the consumer movement might well be a larger global force today than it is.

Especially in developing countries there are many demands on government funding. But the improvements on efficiency and equity of markets that a strong national consumer movement can achieve multiply many times the value to the community of providing such funding.

Having said this it is also appropriate for funding from international donors to be sought. A 2000 CI paper The management and funding of consumer organisations was not very optimistic about funding of indigenous consumer organisations from donor

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countries. The paper foresaw some constraint on the growth of development assistance (DA) funding globally. In the event, the last decade has actually seen substantial increases. The immediate future will likely see a pause in growth in DA from some countries due to the “Great Recession”, but it is noteworthy that the UK has quarantined this funding from its budget cuts and that Australia is doubling its DA budget over the next couple of years.

Although there had been a general increase in funding to NGOs up to 2000 the paper warned that this might not continue. The last decade has seen some greater caution in NGO funding due to some practical problems, but DA through NGO continues to be seen as potentially efficient and effective especially to avoid corrupt misallocation of funds. The paper probably correctly suggested “Donors will tend to concentrate their limited resources towards NGOs in their own country where they have greater control and visibility to their publics.” and are “likely to reduce the percentage of NGO project costs they will fund.” A result of this approach is the growth of partnerships between donor country NGOs and those indigenous to developing countries.

This is the mechanism that developing country consumer organisations should pursue and a number are.

The UK White Paper on International Development – Eliminating World Poverty: Making Globalisation Work for the Poor (DFID, 2000) stated: “While the market fundamentalism of the 1980s and early 1990s has been thoroughly discredited, it is now almost universally accepted that efficient markets are indispensable for effective development.”

The consumer movement may well not have promoted effectively enough the contribution it has made and can make to optimising the contribution of efficient markets to development. The potential for northern financial support for southern consumer organisations may be very under realised though CI has had some success in getting such support as have some national organisations notably the Consumers’ Unity and Trust Society of India.

In 2002 I wrote: In their extensive survey of the way markets are regulated at the global level, Braithwaite and Drahos (2000) find that key actors include governments, transnational corporations, labour organisations, international institutions and civil society organisations. They conclude that the rules adopted reflect the interests of the most powerful actors – “the global law-makers”, that civil society organisations have been the weakest actors and that “Women, excluded national minorities and citizens of developing countries are the lawtakers”, thus the rules adopted do not operate in their interests. Of the actors involved, they decide that civil society organisations have the greatest potential to enhance the position of the law-takers. Amongst CSOs they see the international consumer movement, given its purposes and expertise in making the most of markets, as being in a very special position, indeed potentially “an NGO powerhouse of the next (21st) century.

They advance a demanding programme for the movement, which, inter alia, requires it to “globalise to consumer organisations in developing countries”. They say, though, that for the movement to do all they ask “would require the funding leverage of a visionary foundation. (Brown 2002)

Efforts should grow to recruit that visionary foundation and to increase national and international government funding, but other mechanisms should be explored. One such that has worked in the USA, should work in other developed countries and might be appropriate in some developing countries, involves requiring utility services to provide for their customers to make a very small donation to a consumer organisation as part of the bills that they pay. Growing organisation membership, on which the 2000 CI paper places some emphasis, should always be a priority, but in most countries

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� members of consumer organisations are not likely to be numerous especially amongst lower income consumers who are the most vulnerable and in need of protection reforms.

Policy and Rule Making The UN Guidelines state: II. General principles

2. Governments should develop or maintain a strong consumer protection policy, taking into account the guidelines set out below and relevant international agreements. In so doing, each Government should set its own priorities for the protection of consumers in accordance with the economic, social and environmental circumstances of the country and the needs of its population, bearing in mind the costs and benefits of proposed measures.

3. The legitimate needs which the guidelines are intended to meet are the following: (a) The protection of consumers from hazards to their health and safety; (b) The promotion and protection of the economic interests of consumers; (c) Access of consumers to adequate information to enable them to make informed choices according to individual wishes and needs; (d) Consumer education, including education on the environmental, social and economic impacts of consumer choice; (e) Availability of effective consumer redress; (f) Freedom to form consumer and other relevant groups or organisations and the opportunity of such organisations to present their views in decision-making processes affecting them; (g) The promotion of sustainable consumption patterns.

4. Unsustainable patterns of production and consumption, particularly in industrialized countries, are the major cause of the continued deterioration of the global environment.

All countries should strive to promote sustainable consumption patterns; developed countries should take the lead in achieving sustainable consumption patterns; developing countries should seek to achieve sustainable consumption patterns in their development process, having due regard to the principle of common but differentiated responsibilities. The special situation and needs of developing countries in this regard should be fully taken into account.

5. Policies for promoting sustainable consumption should take into account the goals of eradicating poverty, satisfying the basic human needs of all members of society, and reducing inequality within and between countries.

6. Governments should provide or maintain adequate infrastructure to develop, implement and monitor consumer protection policies. Special care should be taken to ensure that measures for consumer protection are implemented for the benefit of all sectors of the population, particularly the rural population and people living in poverty.

7. All enterprises should obey the relevant laws and regulations of the countries in which they do business. They should also conform to the appropriate provisions of international standards for consumer protection to which the competent authorities of the country in question have agreed. (Hereinafter references to international standards in the guidelines should be viewed in the context of this paragraph.)

8. The potential positive role of universities and public and private enterprises in research should be considered when developing consumer protection policies.

Consumer policy is clearly at least as complex as any other area of public policy and requires perhaps even more extensive whole of government approach. There is always

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large overlap between areas of public policy, which of course is why interdepartmental committees, Cabinet coordination processes and whole of government approaches are frequently needed to make sound public policy. Consumer policy has more overlaps than most policy areas. Perhaps only defence policy is outside its circle. The diagram below illustrates this. Clearly a large part of the consumer policy role in government is informing other policy makers about the consumer interest, eg. through consumer advisory bodies or consumer impact statements.

Compliance Action and Consumer Support In many countries consumer regulation enforcement is undertaken by a statutory agency which is not directly answerable to the government of the day. In some countries consumer protection and competition regulation are administered by a single agency and this model can be very effective. However, there is a problem of giving balanced attention to: • big issues involving big powerful players – mergers, takeovers, cartels etc • issues that are small, but affect many small players • issues that affect few small players, but severely.

This can be a difficult management task perhaps in part because big powerful players can make more noise than small players. Some suggest that the only way it can be achieved is by having separate agencies. On balance, the advantages of a fused agency in terms of synergies and the value of understanding competition, consumer protection and empowerment issues in a particular market, outweigh the disadvantages.

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� A separation of responsibilities for consumer protection and competition regulation between the statutory officers of the agency is a possible way to ensure balance.

Community support for competition policy and regulation is sometimes weak as the benefits are not well understood making it politically difficult for governments to make the needed reforms and for laws to be effectively enforced. Where a single act of parliament provides for both consumer protection and competition regulation and where a single agency is responsible for enforcement of both kinds of regulation it is easier to build community understanding of the benefits of competition and thus support. The Australian Competition and Consumer Commission, for example, is invariably described in the media as the “consumer watchdog” whether its consumer or competition actions are being reported.

A Compliance Role for Consumer Organisations

In some countries, the UK for example, citizens’ consumer organisations have been given special legislated roles to bring complaints before regulatory agencies on behalf of numbers of consumers (in the UK these are called “Super complaints”) and this can be very effective in ensuring that agencies are dealing effectively with market place abuses. Another mechanism is to provide for consumer associations to have standing in litigation on behalf of classes of consumers. Such mechanisms need to be accompanied by a means of providing financial support to cover legal costs.

Non-statutory regulation The UN Guidelines state:

B 26: Governments should, within their own national context, encourage the formulation and implementation by business, in cooperation with consumer organisations, of codes of marketing and other business practices to ensure adequate consumer protection. Voluntary agreements may also be established jointly by business, consumer organisations and other interested parties. These codes should receive adequate publicity.

and E. Measures enabling consumers to obtain redress 32. Governments should establish or maintain legal and/or administrative measures to enable consumers or, as appropriate, relevant organisations to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.

Such procedures should take particular account of the needs of low-income consumers.

33. Governments should encourage all enterprises to resolve consumer disputes in a fair, expeditious and informal manner, and to establish voluntary mechanisms, including advisory services and informal complaints procedures, which can provide assistance to consumers.

34. Information on available redress and other dispute-resolving procedures should be made available to consumers.

In a number of countries non-statutory codes of conduct regulate industry sectors and often result in higher standards than are required by black letter law. These may be initiated by government or industry or citizens organisations. They are ideally administered by independent agencies. Some are governed by bodies with balanced industry and consumer representation. In other cases they can be administered by government officials. In Australia, for example, the national government ombudsman is commissioned to administer the code and deal with disputes for the postal and courier

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industry and recently has been given a similar role in relation to private companies supplying education services to overseas students.

Such schemes are usually established by a deed amongst the companies involved.

The great advantage to a complainant is that a complaint can be speedily adjudicated and remedial action and/or compensation, up to an amount specified in the deed, ordered by the administrator of the scheme.

Of particular importance is that these schemes are funded by the industries involved and thus are not a demand on the public purse. Industries covered usually include financial services, electricity and communications. In the context of developing countries such industries would tend to be those the products of which are mainly consumed by better off consumers. This means the cost of consumer protection in the markets of those industries can be contained to the participants in the markets.

Therefore government funded consumer protection agencies can devote more of their resources to protecting lower income consumers.

Consumer Support through Education and Information General Principle 3 of the Guidelines provides:

The legitimate needs which the guidelines are intended to meet are the following: (c) Access of consumers to adequate information to enable them to make informed choices according to individual wishes and needs; (d) Consumer education, including education on the environmental, social and economic impacts of consumer choice.

According to the Guidelines, government should encourage the development of general consumer education programmes, bearing in mind the cultural traditions of the people concerned. The aim of such programmes should be to enable people to act as discriminating consumers, capable of making informed choices of goods and services and conscious of their rights and responsibilities. In developing such programmes special attention should be given to the needs of disadvantaged consumers.

The UN Guidelines have some specific provisions relating to consumer education.

They are: • the introduction of consumer education in basic school curricula, • consumer education programmes should be delivered in the mass media and • that government should pay specific attention to problems of consumers in rural areas and the illiterate.

In F 35 of the UN Guidelines it is stated, inter alia “Consumer groups, business and other relevant organisations of civil society should be involved in these educational efforts.”

In many countries, particularly developing countries there is no clear-cut policy with respect to consumer education. Many individual government ministries or agencies might undertake small though typically uncoordinated exercises in education but these are rare and limited. The majority of consumers in developing countries are not fully aware of the rights they possess or the nature of consumer protection legislation or its implementation mechanisms.

There are very large obstacles to overcoming the problems of inadequate consumer education. These include a low ratio of literacy particularly in rural communities

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� together with the high incidence of poverty. A critical issue is the lingering lack of awareness about consumer issues which prevent consumers acting in their own interests. It should also be noted that the most effective forms of consumer education are provided on the subject matter and at the time when issues are of concern to consumers. In this regard consumer education should be needs-based and should attempt to teach skills which go beyond dealing with issues immediately apparent.

Intergovernmental Cooperation – Regional and International Part IV, International Cooperation, of the Guidelines is extensive. The UN SecretaryGeneral’s 1993 report noted a number of activities undertaken to develop regional and international cooperation to that date though mostly these were somewhat transient in character and such activities have continued to the present.

A significant cooperation mechanism, established 1992, is the International Consumer Protection and Enforcement Network (ICPEN) (Formerly called the International Marketing Supervision Network (IMSN)). This is an organisation composed of consumer protection authorities from almost 40 countries. The aims of ICPEN are: • Protect consumers’ economic interests around the world; • Share information about cross-border commercial activities that may affect consumer welfare; • Encourage global cooperation among law enforcement agencies.

ICPEN so far has only a few developing country authorities in its membership, but it is moving to bring more in. Mongolia, Papua New Guinea, Vietnam and Nigeria, for example, are in the process of joining. Its presidency, which is currently the Netherlands authority, will next go to the authority in Costa Rica. It is focussing on the following three work streams which all will result in benefit to developing country authorities: • Gathering and analysing intelligence on regulation – what works and what does not work so well; • Developing best practice on analysis of regulation; and • Practical international enforcement cooperation.

ICPEN will produce best practice guides and run best practiced workshops in conjunction with its conferences, which are likely to be particularly useful to authorities in developing countries. (Kell 2011) A limitation on ICPEN is that it operates on the basis of member authorities funding their own participation though the USA additionally contributes secretariat services. It would be useful for donor countries to contribute to a fund to support developing country participation.

Over the years CI itself has been active in various ways in facilitating intergovernmental activities. One such was the government group meetings at CI Congresses initiated at the 1987 Congress by John Wood, then Director of the Australian Federal Bureau of Consumer Affairs. This proved a useful mechanism, especially for organising twinning arrangements between north and south consumer affairs agencies, and should be re-established for future Congresses.

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Establishment of facilities for cooperation and collaboration at the regional level would significantly accelerate building consumer policy and regulation capacity in developing countries. A proposal for an Asia Pacific Institute for Consumer Training, Information and Education was prepared in 1992 by Anwar Fazal (Fazal 1992).

At Appendix 2 is an outline for an Asia Pacific Consumer and Competition Facility I proposed in a paper a decade ago. (Brown 2002) I have made a similar proposal, but limited to consumer policy and regulation and to ASEAN Member States, in connection with a current ASEAN project – Road-Mapping Capacity Building needs in consumer protection in ASEAN – ASEAN-Australia Development Cooperation Program II (AADCP II).

Some funding for such regional facilities would come from participating countries, but where some participating countries are less developed donor funding would be appropriate. In the ASEAN case Australia should be a major contributor.

Conclusion

While there is much still to achieve the Guidelines have made a major contribution to the advancement of the position of consumers around the world. The addition of the proposed provisions on access to knowledge would take the Guidelines a major step further. It is to be hoped that CI can soon recruit two or three UN member nations to sponsor these amendments.

2015 will be the thirtieth anniversary of the adoption of the Guidelines. CI should advocate a full review of the Guidelines, and the progress each member nation has made in their implementation, to be completed by that date. The process to add the access to knowledge provisions, however, should not be delayed due to this. Again, it would be necessary to get two or three member nations to champion such a review. A first step would be to seek funding for a scoping study. A number of countries and/or their citizens were instrumental in the Guidelines coming into being. Australia and a number of its citizens, especially the late David Harland, played a significant role and it should be one country prepared to contribute again.

References

Anonymous 1993 Consumer protection report of the Secretary-General of the United Nations Journal of Consumer Policy; 1993; 16, 1.

Asher, Allan; John T. D. Wood 1995 Government and the Guidelines, in Ten Years of the UN Guidelines for Consumer Protection. International Organisation of Consumers Unions.

IOCU, London 1995.

Braithwaite John and Peter Drahos 2000 – Global Business Regulation Cambridge [England]; New York: Cambridge University Press.

Brown, Robin 2002 Developing Countries and the Market System – Toward Better Policy for Aiding the Contribution of Civil Society Consumer Organisations – a discussion paper published by the Australian National University Public Policy Program 2002.

Brown, Robin 2002 International Effective Markets Regulation: Collaboration Amongst Asia Pacific Countries in Consumer and Competition Regulation – a paper for General Policy Workshop, Manila 2002 of the Consumer Protection & Competition Law Development

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� Project under the APEC Support Program (Australian Agency for International Development).

DFID – Department for International Development UK 2000 – White Paper on International Development -Eliminating World Poverty: Making Globalisation Work for the Poor.

Edwards, Julian 2004 a CI/UNEP Report.

Fazal, Anwar 1992 Towards the Development of an Asia Pacific Institute for Consumer Training, Information and Education – A Concept Paper Gormley, William T, 1991 – “The Bureaucracy and its Masters: The New Madisonian System in the US”, Governance: An International Journal of Policy and Administration Vol 4 No 1 January.

Harland, David 1987 “The United Nations Guidelines for Consumer Protection. Reply to the comment by Weidenbaum”, Journal of CP in JCP, 10, 1987/4 Journal of Consumer Policy Volume 11, Number 1, 111-115, DOI: 10.1007/BF00411523.

Kell, Peter (immediate past president of ICPEN and Deputy Chair, Australian Competition and Consumer Commission) 2011 Personal communication.

Martin, Josh 1984 Consumer and Corporate Codes Widen North-South Spilt, NEWS MONITOR, February 1984 -VOLUME 5-NUMBER 2 http://multinationalmonitor.org/ hyper/issues/1984/02/martin.html.

Royal Commission into Australian Government Administration 1976 Report and “Appendix 2.D Interest Group Access to the Australian Government Bureaucracy – Consultants Report” Canberra: AGPS. Wood, John T D. 1996 What Consumer Laws Should Do (Based upon Consumer International’s Eight Consumer Rights). Consumers International, 1996.

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Appendix 1

What Consumer Laws Should Do

(Based upon Consumers International’s Eight Consumer Rights) Note: Reference to consumer laws includes related laws

The Right to Safety Consumer laws should:

1. Protect consumers from products or services which are dangerous or unsafe, or whose use might cause injury to others, by: • Establishing a general duty of safety upon suppliers.

• Banning the supply of unsafe goods.

• Prescribing safety and information standards with which goods or services must comply.

• Establishing procedures to examine products and services alleged to be unsafe.

• Monitoring the market place for unsafe goods and services.

• Warning consumers of the possible risks involved in the use of certain goods or services.

2. Ensure that information about unsafe products and services is collected and made available to consumers, by: • Establishing procedures to collect and disseminate information on particular goods and services identified as being unsafe.

• Establishing procedures for the notification to authorities by consumers of alleged hazardous goods and services.

• Requiring suppliers who become aware that their goods or services are unsafe to advertise any dangers.

3. Ensure that dangerous products are recalled from suppliers, by: • Requiring any manufacturer who recalls goods for safety reasons to notify relevant authorities of the recall.

• Establishing procedures for the monitoring of voluntary recalls to ensure they are effective.

• Allowing relevant authorities to order a manufacturer to recall goods, and to specify how those goods are to be recalled.

• Giving relevant authorities power to investigate the actions of manufacturers to determine whether they have complied with laws relating to recalls.

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The Right to be Informed Consumer laws should:

1. Require all necessary information to be given to consumers about the goods and services they acquire, especially in relation to therapeutic goods and toxic products, by: • Requiring appropriate statements and warnings to accompany toxic products.

• Regulating the supply of therapeutic goods and toxic products to ensure information is disclosed in a manner consistent with international best practice.

• Establishing procedures to monitor national and international developments relating to therapeutic goods and toxic products.

• Prescribing mandatory information standards to require particular information to be disclosed about particular goods not otherwise regulated.

2. Ensure consumers are able to compare different products, by: • Prohibiting deceptive packaging.

• Requiring packages to clearly identify their price and their contents.

3. Protect consumers from conduct which is false or misleading, by: • Prohibiting conduct, in relation to the supply of goods or services to a consumer, that is misleading or deceptive, or likely to mislead or deceive, or which is unfair.

• Prohibiting representations about goods or manufacturers and suppliers which are not true or which could mislead consumers.

• Prohibiting any particular sales or marketing practices which act to the detriment of consumers.

4. Require all necessary information to be given to consumers about food and drinks in order to enable them to make informed decisions regarding health and nutrition.

5. Ensure that necessary information about goods and services is required to be accurate and comprehensible.

The Right to Choose Consumer laws should:

1. Encourage consumers to acquire only the things they need, by: • Establishing procedures for community and consumer education about products.

2. Protect consumers from anti-competitive conduct and exploitation, by: • Ensuring manufacturers and suppliers do not abuse their powers.

• Giving consumers rights to obtain redress for goods which are unsafe, unsuitable, defective or of poor quality.

3. Protect consumers by ensuring effective trade measurement practices and standards are adopted and enforced.

4. Prohibit direct sales and marketing practices without appropriate ’cooling off’ periods.

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The Right to be Heard Consumer laws should:

1. Ensure consumers can participate in the development of policies which affect them, including giving consumer representatives access to the media, by: • Requiring administrative and political bodies responsible for matters affecting consumers to include members representing consumers.

• Requiring laws and policies which affect consumers to be publicised before they are introduced to allow consumers to comment on them.

• Establishing procedures to channel any comments or complaints made by consumers to appropriate authorities, and to monitor the response to those comments or complaints.

2. Facilitate the establishment of complaints handling systems in both the government and non-government sectors, including the involvement of consumer representatives in the process -ensure consumers have standing to take action in courts and tribunals, including as third parties, to protect consumer interests.

3. Enable consumers to take collective action before courts and tribunals.

4. Enable indigent consumers to enforce their rights by providing access to legal and financial assistance.

The Right to Redress Consumer laws should:

1. Provide consumers with cost-effective, speedy and accessible means to enforce their legal rights, by: • Establishing a court or tribunal, with a simple procedure, to hear consumer complaints.

• Prescribing procedures to ensure consumers know their rights and how to enforce them, particularly in relation to disadvantaged groups.

• Ensuring that consumers are allowed to play an equal role in the resolution of their disputes.

• Providing consumers with effective remedies and reasonable compensation if their complaints are found to be justified.

2. Provide consumers with a right to compensation if they are injured as a result of unsafe goods or faulty services.

3. Provide a mechanism through which consumers can channel their complaints and grievances to government, by: • Establishing mechanisms to collect and register consumer complaints and grievances.

• Prescribing procedures to investigate complaints.

• Prescribing procedures to monitor the number of complaints and grievances, and to report any results back to the consumer.

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� 4. Ensure that consumers are properly compensated for any loss suffered if their consumer rights are contravened, by: • Ensuring any court or tribunal can provide a consumer with an appropriate remedy if it is established that the consumer’s rights have been contravened.

5. Protect consumers from intimidation or harassment if they seek to enforce their rights.

6. Establish effective post-sale consumer protection, by: • Implying into contracts for the supply of goods and services, non-excludable warranties governing acceptable quality, fitness for known purpose, and, in relation to services, that they are rendered with due care and skill.

The Right to Consumer Education Consumer laws should:

1. Be written in language which can be easily understood.

2. Establish procedures which ensure consumers are informed about their consumer rights, particularly consumers with special needs, by: • Prescribing mechanisms to monitor consumer awareness and use of their rights.

• Introducing laws to protect particular groups with special needs as required.

3. Set in place mechanisms to inform consumers about how to enforce their rights.

4. Ensure consumers are aware of their consumer responsibilities.

The Right to a Healthy Environment Consumer laws should:

1. Protect consumers from pollution of the environment, by: • Promoting the use of products which are environmentally friendly.

• Encouraging recycling of consumer goods.

• Requiring environmentally dangerous products to carry appropriate warnings and instructions for the safe use and disposal of the product.

2. Promote the use of non-toxic products where available, by: • Promoting consumer awareness of safer alternatives to toxic products.

• Establishing procedures to monitor international developments and ensure products which are banned overseas do not find their way into national markets.

3. Ensure the social costs of pollution are minimised.

4. Encourage the promotion of ethical and socially responsible practices by the producers and suppliers of goods and services.

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The Right to the Satisfaction of Basic Needs Consumer laws should:

1. Promote the provision of information to consumers about products and substances which may adversely affect them, by: • Requiring therapeutic goods to carry information about safety, efficacy, and side effects.

• Requiring any products containing hazardous substances to clearly list all its ingredients and to display appropriate warnings.

2. Protect consumers from unethical, unconscionable, and illegal practices especially in the supply or provision of: healthcare; housing and accommodation; education; water; energy; financial services; employment; retirement services; children’s services; insurance; investment services; and food.

3. Protect the privacy of consumers, by: • Ensuring telecommunications and other communications are secure from unauthorised interference and are not used to provide or promote unsolicited commercial communications.

• Ensuring personal information about consumers is used only for the purposes for which it is collected and with their knowledge and approval.

• Ensuring that consumers have the right to access, amend and correct their personal information held by government or non-government entities. © John T D Wood Any material may be used with proper attribution.

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Appendix 2

Asia Pacific Consumer and Competition Facility APCCF Background

There is a growing international consensus and recognition of the important role of consumer and competition policy and regulation in making markets work efficiently and equitably.

The mission of the APCCF would be to strengthen the institutional, organisational and technical capacity of countries in the region to implement effective consumer protection and competition regulatory regimes that are compatible where possible, with the overarching goal of achieving economic welfare, efficiency and social stability, but which also meet the specific requirements of individual economies.

The APCCF would provide focus for development activities, reinforce networks, exchange information on best practice and build technical and organisational capacity.

The need for such a facility is highlighted by the following factors: • Resources in the region generally tend to be insufficient to attack problems independently, which may result in the development of barriers to trade and investment between countries.

• Resulting need for deeper cooperation in the region.

• Existence of a large number of inconsistent, poorly framed laws across the region.

• There is currently considerable scope for increased coordination of technical assistance activities in the region. Assistance is being provided by a range of sources and duplication of efforts appears to be occurring. Such a facility could ensure that development and technical assistance efforts are not duplicated or wasted.

• Scepticism about the benefits of competition and unfounded fears about the effects of competition law and policy, particularly in relation to the implications of foreign ownership.

Goals The goals of the facility would be to: • Assist in sharing of specific technical skills for enforcement.

• Assist in education and technical training of people in policy development and regulatory agencies, business, the legal and other professions, academia and, most importantly civil society organisations – especially consumer organisations.

• Assist in development of effective national frameworks for consumer protection and competition regulation which, while not necessarily the same’ are broadly compatible with each other.

• Assist in implementation or revision of consumer protection and competition regimes, as appropriate, so that they cover conduct such as: 1. Monopolies, mergers, price fixing, horizontal and vertical restraints.

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2. Food and product safety, scams such as pyramid selling and multilevel marketing schemes, misleading and deceptive conduct, including in relation to the misleading promotion of drugs.

• Assist in the process of deregulation and privatisation.

• Develop mechanisms to facilitate access to information in the region about consumer protection and competition regulation.

• Provide guidance on best practice policy development and administrative structures and processes in consumer protection and competition regulation and related governance areas.

• Assist in capacity building of civil society consumer organisations.

The scope of operations of the resource centre could be expanded over time to include other areas of responsibility and to cover other economic activities that are being subject to privatisation or structural reform, including for example: • Strategies to facilitate the detection and control of corruption.

• Consideration of economic governance issues.

• Economic reform of natural monopolies such as in gas and electricity distribution, telecommunications, ports, airports and railways.

In the longer term this facility could evolve into a body with a role similar to that of the European Directorate-General for Competition and could deal with regional, cross border problems.

Outputs

The functions of the facility would be to: • Coordinate and implement meetings • Provide education and training programs and skill development and augmentation directed at government officials responsible for both policy and administration, members of the judiciary, academics, business associations and civil society consumer groups such as: 1. Scholarships for university study.

2. Training courses.

3. Staff exchange programs between agencies.

4. Study visits to other countries.

5. Work attachments with other agencies.

6. Short term technical assistance programs.

• Collect information and maintain of a central register of laws and regimes applying in countries in the region and of laws of other countries and of relevant scholarly material.

• Provide short term consultancies for specific work requirements.

����� �����: ��� �� ����������: ������ ���� ���� �� ���������� ��������� • On request, assist in development of bilateral or multilateral cooperation arrangements.

• Provide a forum for legislation review and assessment processes, with the overarching goal of promoting harmonisation of laws and practices in competition, consumer protection and utility regulation; and the promotion of market access and reduced barriers to trade.

• Research into common marketplace problems to implement market focused solutions.

Membership and Governance

Membership could be open, but it would seem appropriate to focus on the East Asia and western Pacific region.

It would seem appropriate for the facility to be governed by a board comprised of representatives of the participating countries plus some representatives of business and civil society consumer organisations.

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6 Public Interest Representation in Global IP Policy Institutions

Dr Jeremy Malcolm

Consumers International

A������� This paper compares the institutional and procedural arrangements that a range of global institutions make for civil society representation and input into policy development processes on intellectual property issues.

The context for this analysis comes from two sets of norms for multi-stakeholder public policy development that exist in other regimes of governance: those of the Aarhus Convention (for environmental matters), and those of the Tunis Agenda for the Information Society (for Internet governance).

These global norms, along with the actual practices of the institutions involved in global governance of intellectual property rights, are then contrasted with the proposed new institutional mechanisms for ACTA, the Anti-Counterfeiting Trade Agreement.

It is found that ACTA falls short even of the practices of the other institutions analysed, but far shorter of the ideals promulgated in the Aarhus Convention and the Tunis Agenda. Whilst the shortcomings of the ACTA negotiation process are largely to blame for this, an underlying problem is the lack of a normative framework for civil society representation and participation in intellectual property policy development.

1

Introduction

One of the most persistent complaints ⇤ that activists and scholars have brought against the process of negotiations for an Anti-Counterfeiting Trade Agreement (ACTA) is that there has been insufficient openness to civil society, by way of transparency1 or ⇤ This paper was first published online in the PIJIP Research Paper series of the American University Washington College of Law in 2010, where it is available at http://digitalcommons.wcl.american.edu/research/6/.

It appears here in print for the first time.

1 Emily Ayoob. Recent Development: The Anti-Counterfeiting Trade Agreement, Cardozo Arts & Ent. L. J., 28:175, 2010.

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public consultation.2 The negotiators have repeatedly denied these charges,3 but in doing have sometimes appeared surprised that broader civil society even expects to be consulted on this agreement. After all, they suggest, ACTA “is not about limiting civil liberties or harassing consumers”.4 In other contexts, this would seem a rather naïve attitude. For example, as this paper will show, the importance of accountability of and transparency in decisionmaking, and the public’s right to be consulted during the preparation of normative instruments, are quite rudimentary concepts in both environmental law and in Internet governance.

However, having been raised, the question should be squarely addressed: since governments (or at least those that are negotiating ACTA) are the democratically elected representatives of their citizens, what need is there for civil society to be directly involved in the negotiation and implementation of an international agreement at all?

The simplest answer is that at the international level, policy-making suffers from serious democratic deficits. That is to say, with each layer that representatives are removed from the citizens they represent, their democratic legitimacy is reduced. The diplomats who represent nation states in intergovernmental organisations are not directly accountable to their electorates at home, and nor does their national parliament necessarily have any opportunity to ratify the decisions they make.5 Indeed, this has been a positive selling point for the countries negotiating ACTA, in that according to many commentators ACTA has been used as a vehicle for “policy laundering”, by allowing controversial policy changes to be negotiated away from domestic venues, until an international obligation to implement those changes is in place, at which time any domestic opposition will come too late.6 Lacking adequate accountability to their citizens through domestic democratic processes, the policy-making activities of governments within international institutions can only be legitimised through additional public accountability at that level. As one scholar puts it, 2 This has been treated as a “the responsibility of each ACTA country itself”: Mike Masnick, ACTA Negotiators Respond to Questions About ACTA; More of the Same, June 29, 2010, http://www.techdirt.com/ articles/20100629/10381810004.shtml. However some of the negotiating countries that have held their own public consultation meetings (and not all have) have done so under conditions unfavourable to civil society: see Issa Villarreal, Concerns About Anti-Counterfeiting Trade Agreement (ACTA), February 25, 2010, http://globalvoicesonline.org/2010/02/25/global-concerns-about-anti-counterfeiting-tradeagreement-acta/.

3 Masnick, supra note 2; Monika Emert, European Commission On ACTA: TRIPS Is Floor Not Ceiling, Intellectual Property Watch, 2009, available at http://www.ip-watch.org/weblog/2009/04/22/europeancommission-on-acta-trips-is-floor-not-ceiling/.

4 Benita Ferrero-Waldner, Answer to a Written Question – ACTA Negotiations and Telecoms Package Principles, 4 February 2010, http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-20096094&language=EN. 5 This varies from one country to another, but the United States, for example, is negotiating ACTA as an “Executive Agreement” that requires only the consent of the President, not the Congress: Eddan Katz and Gwen Hinze, The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements, Yale J. Int’l. Law, 35:24, 2009.

6

David Kravets, Copyright Treaty is Policy Laundering at its Finest, November 4, 2009, http://www.wired.

com/threatlevel/2009/11/policy-laundering.

������ �������: ������ �������� �������������� �� ������ �� ������ ������������ The reliance on democratic principles and the consent of the governed, which legitimise political decisions in the Western tradition, are of little help in international affairs. The “democratic deficit” of international organisations is a commonplace. Rather, the international lawyer must justify his authority by the acceptance of the results of his activity by his audience and addressees, in particular states, and increasingly non-governmental actors. 7

Thus it is here that the place of civil society comes in. Even the United Nations has acknowledged the importance of civil society’s role in legitimizing policy-making within international institutions. The Cardoso report on civil society presented to the UN General Assembly in 2004 recommended that the United Nations can make an important contribution to strengthening democracy and widening its reach by helping to connect national democratic processes with international issues and by expanding roles for civil society in deliberative processes. 8

It is in this context that institutions in several global governance domains (or regimes, as they will be termed here)9 have begun to reform their structures and processes to increase their transparency and accountability to civil society, and to allow NGOs – that is, the actors who constitute organised global civil society – greater levels of participation in policy development.

The next section will briefly describe two sets of norms or principles that have guided this ongoing process, respectively within the regimes of international environmental law and Internet governance.

2

Other Regimes

2.1 Environmental Law

The 1992 United Nations Conference on Environment and Development (or Earth Summit) was a major event in which the governments of 172 countries joined with 2,400 NGO representatives to develop several agreements addressing issues of environmental conservation and climate change.10 One of these agreements was the Rio Declaration on Environment and Development,11 which relevantly provides: Principle 10. Public participation Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities . . . and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available.

Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

7 Andreas L. Paulus, From Territoriality to Functionality? Towards a Legal Methodology of Globalization, in Governance and International Legal Theory 59, 61 (Ige F. Dekker, et al. ed., 2004).

8

Fernando H. Cardoso, Cardoso Report on United Nations-Civil Society Relations, June 11, 2004, 24,

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/376/41/PDF/N0437641.pdf?OpenElement.

9 Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, International organisation, 36:1 (1982).

10 Stanley Johnson, The Earth Summit: The United Nations Conference on Environment and Development (UNCED) (1993) 11 UN Doc. A/CONF.151/26 (vol. I); 31 I.L.M. 874, June 13, 1992, available at http://www.unep.org/ Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163.

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Although non-binding in itself, this declaration formed the basis for the subsequent binding UNECE Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, otherwise known as the Aarhus Convention.12 The parties to the Aarhus Convention are over 40 European and Central Asian members of the United Nations Economic Commission for Europe (UNECE), including the European Union. The United States, although a member of the UNECE, is not a party to the Convention. It did however attend the first conference of the parties in 1992 to voice its exception to the significant role that the Convention accorded to NGOs, stating that it would “not regard this regime as precedent”.13 That said, the Convention is indeed somewhat remarkable. Whereas most international agreements grant rights only to states,14 the Aarhus Convention provides significant rights to the public, including: 1. The right to access environmental information (Article 4), coupled with a duty upon each party to collect and disseminate such information (Article 5).

2. The right to public participation in decisions with environmental impact: (a) relating to specific environmentally-sensitive activities such as mineral extraction or refinement (Article 6); (b) concerning plans, programmes and policies relating to the environment (Article 7); and (c) during the preparation of executive regulations and/or generally applicable legally binding normative instruments (Article 8).

3. Access to justice – that is, to independent review of a party’s decisions (Article 9).

In the case of non-compliance by a state party, any member of the public may make a communication about this to the Convention’s Compliance Committee, which will make a recommendation on the merits of the case to a full Meeting of the Parties.

Meetings of the Compliance Committee are completely open to the public, and NGOs are readily accredited to attend Meetings of the Parties.

Article 8 is worth setting out in full. It provides: Public Participation During the Preparation of . . . Binding Normative Instruments Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. To this end, the following steps should be taken: (a) Time-frames sufficient for effective participation should be fixed; (b) Draft rules should be published or otherwise made publicly available; and (c) The public should be given the opportunity to comment, directly or through representative consultative bodies.

12

Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, June 25, 1998, 38 I.L.M. 517 (entered into force Oct. 30, 2001).

13 Svitlana Kravchenko, The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements, Colo. J. Int’l Envtl. L. & Pol’y, 18:1, 3, 2007.

14

However, the first Optional Protocol to the International Covenant on Civil and Political Rights (Dec. 16, 1966, 999 U.N.T.S 171) grants individuals direct rights of audience before the Human Rights Committee of the United Nations in respect of alleged infringements of their rights. The United States is not a party to this instrument, either.

������ �������: ������ �������� �������������� �� ������ �� ������ ������������ The result of the public participation shall be taken into account as far as possible.

Substituting “access to knowledge” for “the environment”, the most ardent opponent of ACTA could hardly ask for more than already exists as binding international law in the environmental governance regime.

2.2 Internet Governance

The World Summit on the Information Society (WSIS), like the Earth Summit, was a large scale United Nations summit meeting, attended by 175 governments and over 12,000 participants, which resulted in the development of several agreements: two at the first phase of the meeting held in Geneva in 2003, and another two at the second phase held in Tunisia in 2005.

These documents are not treaties, and do not bind the governments that agreed to them, still less the private sector and civil society delegates who contributed their own submissions during the WSIS preparatory conferences at which the texts were drafted.

They are, in other words, instruments of “soft” rather than “hard” international law.15 Even so, supported by the large majority of the world’s governments, they carry considerable normative weight within the Internet governance regime.

Of these agreements, those which call for attention here are the Geneva Declaration of Principles16 from the first phase, and the Tunis Agenda for the Information Society17 from the second. The Declaration of Principles is based around eleven “key principles for building an inclusive Information Society.” The first of these concerns the role of governments and all stakeholders in the promotion of ICTs for development, and provides: Governments, as well as private sector, civil society and the United Nations and other international organisations have an important role and responsibility in the development of the Information Society and, as appropriate, in decision-making processes. Building a people-centred Information Society is a joint effort which requires cooperation and partnership among all stakeholders.18 The Declaration goes on to provide that “international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organisations,”19 but – significantly – conditions this with the proviso that “Policy authority for Internetrelated public policy issues is the sovereign right of States”.20 In between the first and second phases of WSIS, a Working Group on Internet Governance (WGIG) was convened. In its report, it clarified the content of the regime of governance in which all stakeholders were to cooperate in partnership, settling on this definition: Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the 15

Anthony Clark Arend, Legal Rules and International Society 24 (1999).

Geneva Declaration of Principles, Dec. 12, 2003, UN Doc. WSIS-03/GENEVA/DOC/4-E, available at http://www.itu.int/wsis/docs/geneva/official/dop.html.

17 Tunis Agenda for the Information Society, Nov. 18, 2005, UN Doc. WSIS-05/TUNIS/DOC/6(Rev. 1)-E, available at http://www.itu.int/wsis/docs2/tunis/off/6rev1.html.

18 Geneva Declaration, supra note 16, art. 20.

16

19 20

Id. art. 48.

Id. art. 49(a).

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Internet.21 With this groundwork laid, it fell to the second agreement, the Tunis Agenda, to address how governments, the private sector and civil society were to exercise their respective roles in Internet governance. This topic is addressed in two ways. The first is by calling for the establishment of “a process of enhanced cooperation” by which governments are to lead the development of globally applicable public policy principles for the Internet, in consultation with other stakeholders.22 Since 2005 very little concrete progress had been made towards establishing this process of enhanced cooperation. But this changed in May 2010 when the Commission for Science and Technology for Development (CSTD), a committee of the UN’s Economic and Social Council (ECOSOC) tasked with responsibility for following up on the implementation of WSIS, called upon the Secretary-General to convene open and inclusive consultations involving all member states and all other stakeholders to proceed with the process towards the implementation of enhanced cooperation in order to enable governments, on an equal footing to carry out their roles and responsibilities in international public policy issues pertaining to the Internet . . . through a balanced participation of all stakeholders in their respective roles . . . before the end of 2010.

The second mechanism established at Tunis, which is a part of the broader process of enhanced cooperation, was the establishment of an Internet Governance Forum (IGF), as a new venue for multi-stakeholder policy dialogue in which governments could take an equal role and responsibility for Internet governance and policy making in consultation with all other stakeholders.23 The Tunis Agenda states that the IGF should be multilateral, multi-stakeholder, democratic and transparent in its working and function, with a lightweight and decentralised structure that is subject to periodic review. It is not to replace other relevant fora in which Internet governance issues are discussed or to exercise oversight over them or have any binding decision making power. In particular, it is to have no involvement in day-to-day or technical operations of the Internet, but should work in parallel with those organisations that do, taking advantage of their expertise.24 Its mandate, inter alia, is to: (a) Discuss public policy issues related to key elements of Internet governance in order to foster the sustainability, robustness, security, stability and development of the Internet. (b) Facilitate discourse between bodies dealing with different cross-cutting international public policies regarding the Internet and discuss issues that do not fall within the scope of any existing body. (c) Interface with appropriate intergovernmental organisations and other institutions on matters under their purview. ... (g) Identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations.25

The initial five-year term of the IGF wound up in 2010. In his review of the desirability of the continuation of the IGF, the Secretary-General observed some deficiencies 21 Report of the Working Group on Internet Governance, Aug. 3, 2005, UN Doc. WSIS-II/PC-3/DOC/5-E, available at http://www.itu.int/wsis/docs2/pc3/html/off5/index.html.

22 Tunis Agenda, supra note 17, arts. 61 and 69-71.

23

Id. arts. 67-68.

Id. arts. 73, 77 and 79.

25 Id. art. 72.

24

������ �������: ������ �������� �������������� �� ������ �� ������ ������������ in its performance to date, as the CSTD had noted deficiencies in the realisation of the process of enhanced cooperation. He acknowledged both “a perception among some civil society stakeholders that the agenda-setting process of the MAG is not sufficiently inclusive or transparent,” as well as the assessment of many “that the contribution of the IGF to public policy-making is difficult to assess and appears to be weak,” and made recommendations to address these and other problems.26 Even so, the principles of multi-stakeholder governance laid down in the Geneva Declaration, and the progress made towards implementing them through the Internet Governance Forum and the process towards enhanced cooperation, mark a revolutionary shift away from the hierarchical mode of intergovernmental rule-making that is still taken for granted in the global regime for intellectual property rights.

2.3 Summary of Principles

Two sets of norms have been established, respectively for the regimes of environmental and Internet governance, prescribing institutional principles for civil society access to and participation in policy development processes. Relevantly, the Aarhus Convention requires policy makers to provide the public with: • Transparency – or access to information, including draft rules.

• Participation – in decision-making processes at a time when options are still open.

• Recourse – or access to justice in the event that either of the first two norms is not observed.

The requirements of the Geneva Declaration and the Tunis Agenda of WSIS are broadly similar, though at a higher level of principle. They require Internet governance processes to comply with the process criteria of: • Transparency.

• Participation – that is multilateral, democratic and inclusive of all stakeholders in their respective roles.27 Notably there is no provision in the WSIS process criteria for the public to take recourse in the event that their rights to transparency and participation are not met; instead, the IGF is directed as part of its mandate to “Promote and assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes”.28 The norm of recourse will therefore be set aside for now, both because it is not common to each of the above regimes, and because in the short term its proposal as a norm for the intellectual property regime seems over-ambitious – not least because the United States has made clear that it will not abide the public having right of action against a state for non-compliance with international law.29 What remains, then, are the norms of transparency and participation (which could also be called “access”).30 On the positive side, these are general enough to be posited 26 United Nations Secretary-General, Continuation of the Internet Governance Forum: Note by the Secretary-General, May 7, 2010, 8-9, http://unpan1.un.org/intradoc/groups/public/documents/un/ unpan039400.pdf.

27 Geneva Declaration, supra note 16, art. 48 and Tunis Agenda, supra note 17, arts. 61, 68 and 73.

28

Tunis Agenda, supra note 17, art. 72.

29

Kravchenko, supra note 13.

30 Jens Steffek and Patrizia Nanz. Emergent Patterns of Civil Society Participation in European and Global Governance in Civil Society Participation in European and Global Governance, 1, 10 (Jens Steffek, et al. ed., 2008).

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as appropriate guiding principles for global intellectual property policy development, drawing on the model of the environmental and Internet governance regimes. However, they lack sufficient substantive content to be of much use as standards for assessing the democratic legitimacy of the negotiation (and later operation) of ACTA. After all, the ACTA negotiators, implausible as it may sound, have claimed that they already satisfy or even exceed all appropriate standards of transparency and participation; stating “for international trade negotiations we normally do not have such a democracy [sic] exercise where everybody can raise their concern”,31 and even “This has been an extremely transparent process”.32 What is needed therefore are some appropriate metrics of transparency and participation, that can be used for comparison.

3

Metrics of Transparency and Participation

This is easier said than done, in that there is no cookie-cutter template of structures and procedures that policy-making institutions can apply to support transparency and participation. So much depends on the purpose of the organisation, its composition, and the type of role it plays in governance; for example, does it have a policy setting role in its own right, or a role of advocacy directed towards policy makers elsewhere, or does it simply coordinate the activities of its constituents – or some combination?33 Despite the difficulty of applying absolute standards to such diverse governance institutions, there have been scholarly efforts to develop checklists of criteria that can be applied to rate transparency and the openness to participation in a quantitative fashion. One such study of transparency and the democratic deficit of global institutions identified no fewer than 27 criteria, grouped into four categories – public access, internal governance, member conduct and accountability.34 Another study, looking at civil society participation in global governance institutions, found that such participation could be facilitated in at least five ways: 1. Making special institutional arrangements for civil society consultation; such as joint workshops, seminars or public symposia.

2. Allowing NGOs to submit their own documentation to the international organisation.

3. Allowing NGOs to attend their intergovernmental political meetings as observers.

4. Allowing NGOs to intervene actively in the intergovernmental process of policy deliberation and address delegates directly.

5. Allowing NGOs to put topics for future deliberation onto the organisation’s agenda.35 The present paper will take a simpler approach, similar to that already taken above when drawing out the two broad principles of transparency and participation from the regimes of environmental and Internet governance. In this case, however, we will look 31

Emert, supra note 3.

32

Masnick, supra note 2.

33

Jens Martens, Multistakeholder Partnerships: Future Models of Multilateralism?, Dialogue on Globalization 29, 21 (2007), available at http://library.fes.de/pdf-files/iez/04244.pdf.

34 Chris Skelcher, Navdeep Mathur and Mike Smith, The Public Governance of Collaborative Spaces: Discourse, Design and Democracy, Public Administration 83:3 (2005), 584 35

Steffek, supra note 30, p. 13.

������ �������: ������ �������� �������������� �� ������ �� ������ ������������ within the regime of intellectual property policy making, to draw out some specific best practices related to transparency and participation, from other institutions in that regime.

3.1 Intellectual Property Policy Institutions The institutions selected for analysis here36 are:

• WIPO (World Intellectual Property organisation). As the intergovernmental organisation that administers the major global treaties on copyright and related rights (the Berne and Rome Conventions37 and the WIPO Internet Treaties38 ) as well as on patents and trade marks (the Paris Convention),39 WIPO is perhaps the central international actor in the regime.

• WTO (World Trade organisation). The WTO administers the TRIPS agreement,40 which largely incorporates the substantive content of the WIPO-administered conventions, except that it allows signatories to seek redress against each other for the breach of the agreement through the WTO’s dispute resolution process.

• OECD (organisation for Economic Cooperation and Development). The OECD differs from WIPO and the WTO in that it concludes few “hard law” treaties amongst its 32 member countries, but more “soft law” instruments such as recommendations and standards. Its work on intellectual property rights is of this kind.41 • CSTD (Commission on Science and Technology for Development). The CSTD has already been mentioned with respect to its role of coordinating the system-wide follow-up on WSIS, including action lines on intellectual property issues.42 It also does not have a role in producing “hard law”, but simply advises the UN General Assembly and ECOSOC. • IGF (Internet Governance Forum). Although formed under the auspices of the United Nations pursuant to an intergovernmental compact at WSIS, the IGF is a multi-stakeholder body, with governments and civil society participants possessing equal formal status. It is not specifically mandated to deal with intellectual property issues,43 but has done so in practice.

36

Of course, this list is not complete. Amongst the other institutions that could have been included are ICANN (Internet Corporation for Assigned Names and Numbers, which sets domain name policy and has a large contingent of trade mark owners amongst its stakeholders), the Council of Europe (whose work in promoting human rights is relevant to issues of intellectual property enforcement), the WHO (World Health organisation, which is required to deal with pharmaceutical patent issues), UNESCO (United Nations Educational, Scientific and Cultural organisation, which has been a venue for debates over “communications rights”) and the UNDP (United Nations Development Programme, which promotes the use of open source software for development).

37 Berne Convention for the Protection of Literary and Artistic Works, Sep. 9, 1886, 1161 U.N.T.S. 30 and Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting organisations, 26 Oct. 1961, 496 U.N.T.S. 43.

38 WIPO Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76 and WIPO Copyright Treaty, Dec. 20, 1996, 36 I.L.M. 65.

39 Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 21 UST 1583, 828 UNTS 305.

40 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 U.N.T.S. 299; 33 I.L.M. 1197.

41 OECD, Compendium of OECD Work on Intellectual Property (IP), 2007, http://www.oecd.org/dataoecd/ 60/61/34305040.pdf.

42 Notably under the third action line on “Access to information and knowledge”: Geneva Plan of Action, Dec. 12, 2003, UN Doc. WSIS-04/GENEVA/DOC/5-E, http://www.itu.int/wsis/docs/geneva/official/ poa.html.

43 Jeremy Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum 71 (2008).

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The following table summarizes some of the most significant strengths and weaknesses of each of these institutions with respect to their transparency and the opportunities that they provide for civil society to participate in their processes.44 A few words about each of the institutions in this table are in order. Probably the least transparent and participatory body shown here is the WTO, which although having improved its documentary transparency in recent years, remains notorious for its limited engagement with civil society,45 and for its exclusion of developing countries from the closed-door “green room” negotiations it hosts.

WIPO fares better, in that it allows accredited NGO representatives into all its plenary negotiating sessions (though there are, as in the WTO, also closed-door sessions between country blocs). However the interaction between NGOs and governments is stilted at best, because civil society interventions are left until last and the time given for them is strictly limited. Moreover, that time must be shared with interventions from business groups, which WIPO also classes as “NGOs”.

The OECD takes a different approach to WIPO, in that rather than granting NGOs observer status at intergovernmental meetings, it has established a dedicated body, the CSISAC (Civil Society Information Society Advisory Council) to contribute to its policy work.46 On the other hand, when the OECD has negotiated hard law agreements, notably a failed Multilateral Agreement on Investment, its transparency and openness to participation have been much poorer.47 The CSTD, like the other organisations considered so far, is intergovernmental in structure. However, it was mandated at WSIS to conduct its follow-up activities using a “multi-stakeholder approach”,48 and as such, has followed a practice of allowing NGOs to actively observe its proceedings. Whilst it is similar in this respect to WIPO, it does not have the same “hard power” that WIPO does, being limited to a role of making recommendations only.

Finally the IGF is the most open of any of the bodies considered here, in that civil society participates at IGF meetings in a position of equality with governmental and private sector representatives. It is at least as transparent as any of the other institutions considered – though not completely so, as its Multi-stakeholder Advisory Group (MAG) meets in private. Even so, for all its formal openness, the civil society’s actual influence at the IGF on the development of intellectual property policy is very limited, largely because the IGF has yet shied away from its mandate to produce recommendations,49 and failed to develop links to other institutions that would allow policy makers to take such recommendations into account.50 44 More information can be found in a study published by Knowledge Ecology International, covering a slightly different set of organisations – the WTO, WIPO, WHO, UNCITRAL (United Nations Commission on International Trade Law), Unidroit (International Institute for the Unification of Private Law), UNCTAD (United Nations Conference on Trade and Development), OECD and Hague Conference on Private International Law. The negotiations of five international treaties, within and outside the UN system are also considered. Knowledge Ecology International, ACTA is Secret. How Transparent are Other Global Norm Setting Exercises?, July 21, 2009, http://www.keionline.org/misc-docs/4/attachment1_ transparency_ustr.pdf, http://www.keionline.org/misc-docs/4/attachment2_transparency_ustr.pdf and http://www.keionline.org/misc-docs/4/attachment3_transparency_ustr.pdf.

45 Ngaire Woods and Amrita Narlikar, Governance and the Limits of Accountability: The WTO, the IMF, and the World Bank, International Social Science Journal 53:170, 580 (2001).

46 See its website at http://csisac.org/.

47 Katia Tieleman, The Failure of the Multilateral Agreement on Investment (MAI) and the Absence of a Global Policy Policy Network, April 10, 2000, http://www.gppi.net/fileadmin/gppi/Tieleman_MAI_GPP_ Network.pdf.

48 Tunis Agenda, supra note 17, art.105.

49

Id. art. 72(g).

50

Malcolm, supra note 43, pp.513-521.

������ �������: ������ �������� �������������� �� ������ �� ������ ������������

Organisation WIPO

Strengths

Transparency

Distributes both official documents and negotiating texts

Participation

Weaknesses

Strengths

Not pro-active in disseminating such information

Ready accreditation of NGOs

Distributes academic studies and reports

151

Weaknesses

NGO input comes last after all governments have spoken

NGOs have speaking and submission rights NGO side meetings facilitated

WTO

OECD

Distributes official documents

Most documents published openly

Most negotiating texts not formally released

Poor transparency of hard law negotiations

Ministerial Conference open to NGO observers

No NGO access to TRIPS Council meetings

NGO position papers posted online

No distribution of NGO documents at meetings

NGO side meetings at Ministerial Conference

Generally no speaking rights for NGOs

Permanent advisory committee, CSISAC

Structure excludes developing countries

Ministerial Meeting open to NGO observers CSTD

All documents published openly

Negotiation texts made available, but not online

Ready accreditation of NGOs

NGO input comes last after all governments have spoken

NGOs have speaking and submission rights IGF

All documents published openly

MAG mailing list is private, with anonymised summaries

Open forum, all participants formally equal

No official outputs

NGO side meetings facilitated

Weak links between NGO input and policy makers

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In this context, recall that the Aarhus Convention requires not only that policy development processes be open to participation, but also that “[t]he result of the public participation . . . be taken into account as far as possible”. As even the UN SecretaryGeneral has observed, the IGF has not yet developed the structures or processes by which for this to occur.51

3.2 Summary of Best Practices

Having progressed from the generality of the Aarhus and WSIS principles on transparency and public participation in governance, to the more specific structures and processes of the existing institutions of the intellectual property regime, it is possible to draw out some best practices.

This does not mean that the existing institutions are the best they could be. On the contrary, if the institutions of the intellectual property regime are to be assessed against the principles of transparency and participation we derived earlier, each such institution has considerable room for improvement. (This even extends to the IGF, notwithstanding that it was an outcome of the WSIS process.)

Having said this, some best practices are already in place. Taking transparency, there is no longer much room for argument about the appropriate content of this norm. Even the WTO, the least participatory of the organisations studied, posts all of its official documents online, and most of the other institutions also make available negotiating texts.

Adding to this, most of those institutions (especially WIPO, the OECD and the IGF) also freely provide background materials and studies, as well as briefing sessions on their policy activities. Thus, it can be confidently posited that these are the basic best practices for transparency of governance in the intellectual property regime.

As for participation, more variance can be seen, but there are four main options amongst the institutions considered here: 1. A “passive” observer role, in which opportunities for speaking with delegates and distributing documents are limited (as at the WTO Ministerial Conference).

2. An “active” observer role, in which NGO representatives can more directly interact with delegates and distribute documents (as at WIPO and the CSTD).

3. Formal permanent advisory groups, providing a defined pathway for input from civil society on all policy proposals (such as the OECD’s CSISAC).

4. A multi-stakeholder governance structure that affords governmental and civil society delegates a position of equality (as at the IGF).

An important observation to be made here is that in general, an inverse relationship exists between the openness to participation of an organisation, and the degree of “legalisation”52 or “hardness” of its output. In other words, the institutions that produce hard law (the WTO and WIPO) tend to be more closed than those that produce soft law (the OECD and CSTD), with the IGF – which doesn’t even yet produce recommendations – being the most open of all, but to the least advantage of civil society.

Therefore, in considering best practices on participation, we must make practical allowance for the fact that governments will not be inclined to grant civil society free 51

United Nations Secretary-General, supra note 26.

52

Kenneth W Abbot, et al., The Concept of legalisation, International organisation, 54:3, 401 (2000)

������ �������: ������ �������� �������������� �� ������ �� ������ ������������ rein within institutions that have the power to conclude hard or binding law. Even so, option 2 and 3 above can still be considered possible best practices for institutions of any character within the intellectual property regime.

This leads to the question, how does ACTA stack up against these principles and best practices?

4

ACTA

Before attempting to answer this, it must be understood that ACTA actually represents two, quite separate, institutions. The first is the group of countries that is (at the time of writing) negotiating the text of the Anti-Counterfeiting Trade Agreement itself, at a series of closed meetings around the world.

The second, and perhaps ultimately more important institution is the multilateral treaty organisation that will come into being once the ACTA negotiations are concluded and the agreement is signed.53 This organisation will comprise of an ACTA Committee constituted by each of the signatories, and possibly further ad hoc committees and working groups that the Committee may establish.54 The transparency and participatory openness of ACTA will therefore be considered first in relation to the negotiation phase of ACTA, and then with respect to the ACTA Committee and any sub-groups.

4.1 Negotiation Phase

Beginning with the transparency of the negotiation phase, the best practices established above would require: • Access to the negotiation texts, before and after each round of negotiation, as is the practice at WIPO. Instead, there has only been one official release of text in April 2010,55 following the Wellington round of talks, which occurred only after five years of closed-door negotiations and in the wake of the full text being leaked in March.56 • Institutionalised and regular briefing sessions to civil society, such as those conducted by WIPO57 and the OECD.58 Instead, the only briefing sessions held have been those that some of the negotiating parties have chosen to hold in their own countries, on an irregular and ad hoc basis.

• Coordinated and regular release of background materials on the negotiations, such as those released by the IGF before each of its meetings.59 In fact only one joint 53 These comments are based on the latest full text of ACTA available at the time of writing (August 17, 2010), which is the leaked version from the July 2010 round of negotiations in Lucerne, available at http: //www.laquadrature.net/files/ACTA_consolidatedtext_EUrestricted130710.pdf.

54 ACTA, supra note 53, arts.5.1(1) and (3)(a).

55

Anti-Counterfeiting Trade Agreement (Consolidated Text Prepared for Public Release), April 21, 2010, available at http://www.ustr.gov/webfm_send/1883.

56 La Quadrature du Net, New ACTA Leak: 01/18 Version of Consolidated Text, March 23, 2010, http: //www.laquadrature.net/en/0118-version-of-acta-consolidated-text-leaks.

57 For example, a recent open informational meeting on intellectual property financing is described at http://www.wipo.int/meetings/en/2009/ip_fin_ge_09/index.html.

58 An OECD Forum, open to the public, is held in conjunction with the annual Ministerial Meeting: see http://www.oecd.org/department/0,3355,en_2649_34493_1_1_1_1_1,00.html.

59 The latest is IGF, Programme for the 2010 Meeting, July 15, 2010, http://www.intgovforum.org/cms/ 2010/ProgrammePaper.15.07.2010.v2.doc.

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fact sheet has been produced, in March 2010, with some of the negotiating parties having sporadically released other materials.60 • Such materials must also be disseminated to the public. Short of doing so actively through a public relations office, a minimum requirement met by all the other institutions analyzed is the use of a central institutional website. No such thing exists for ACTA. Rather, what few materials have been released have been disseminated mainly by civil society, and through websites of some of the negotiating governments.61 Thus ACTA meets none of the basic best practices for transparency of the existing institutions of the intellectual property policy regime.

The provision made for public participation in the ACTA negotiations is no better.

Based on the model established by the other institutions examined here, civil society is entitled to expect: • Access to the negotiation venue, through a lightweight accreditation process, and the ability to observe the proceedings. No such provision has been made for any of the ACTA negotiation rounds. Indeed, even the location of the venue of most of the rounds has been kept secret.

• Rights for NGO representatives to speak to the negotiating assembly and to submit documents, as for example is the case at WIPO. Needless to say, in view of the failure to even grant access to the negotiation venue, these rights have not been afforded. Some of the negotiating parties have conducted their own consultation processes at a national or regional level.62

4.2 Implementation phase

Once ACTA has been concluded and signed, amongst the powers of the ACTA Committee will be: • To set its own rules and procedures.63 • To consider any amendments to the Agreement.64 • To make recommendations regarding implementation and operation of the Agreement, including endorsing best practice guidelines relating thereto.65 • To share information and best practices on reducing intellectual property rights infringements, including techniques for identifying and monitoring piracy and counterfeiting.66 Transparency and participation are no less important to civil society in respect of these ongoing policy setting and coordination activities as they have been in respect of the negotiation of the original Agreement.

60 As distributed in South Korea, see Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet, March 25, 2010, http://www.mofat.go.kr/webmodule/htsboard/hbd/hbdread.jsp?typeID=6&boardid=10252&seqno= 327174.

61 For example, the Australian government’s site is at http://www.dfat.gov.au/trade/acta/.

62

A 2009 European consultation meeting is described by Monika Ermert, supra note 3.

63

ACTA, supra note 53, art.5.1(4).

64

Id. arts.5.1(2)(c) 6.4.

Id. art.5.1(3)(c).

66 Id. art.5.1(3)(d).

65

������ �������: ������ �������� �������������� �� ������ �� ������ ������������ In this context, the following points describe the transparency that civil society is entitled to expect from ACTA, based on the best practices identified from other institutions in the intellectual property policy regime: • All official documents of the ACTA Committee should be openly published, as are similar documents from all the other institutions studied in this paper. These will include the rules, procedures, recommendations and best practice guidelines described above, as well as proposed amendments to the Agreement. Whether such documents will in fact be openly released is yet unknown, as the ACTA text is silent on this point.

• Additionally, negotiating drafts of the above should be released, to borrow a phrase from the Aarhus Convention, “at an appropriate stage, and while options are still open.”67 Again, we do not know whether this will be the case (but might reasonably guess, from the conduct of the ACTA negotiations to date, that it will not be).

• The domestic implementation of ACTA by its members should also be transparent.

On this count, the draft ACTA text does actually have something to say – though we do not yet know exactly what, as the current draft of the agreement contains two alternative sets of provisions.68 In general however, it will probably require national laws, procedures and judicial decisions on IP enforcement to be published openly.

Thus, the standard of transparency that civil society can expect from ACTA into the future can best be described as unknown. As to its expectations of participation in the operation of ACTA: • If it is too much to expect that NGOs should be able to join the ACTA Committee as members, following the model of the IGF, then it should at least be possible for delegations to appoint NGO advisors to attend Committee meetings with them. In fact, wording in the officially released draft text did accommodate this.69 However, this has been removed from the current draft.

• There should be a simple and accessible procedure for NGOs to seek accreditation to attend the meetings of the ACTA Committee as active observers. At present, this is not guaranteed. A specific provision of the earlier public draft that would have allowed the Committee to invite “international organisations active in the field of intellectual property and . . . non-governmental groups of intellectual property stakeholders” to attend sessions “or parts thereof.”70 Whilst this provision was inadequate, in that it arguably left it for the Committee to take the initiative to extend such an invitation, even this weak provision has since been removed.

• Civil society should be consulted by the Committee in discussions over the amendment and development of the Agreement, the drafting of rules, procedures, recommendations and best practice guidelines, and “any other matter that may affect the implementation and operation of this Agreement.”71 This could best be done through a permanent civil society advisory committee such as the OECD’s CSISAC, or the IGF’s (multi-stakeholder, in that case) MAG. Another option is the establishment of a dedicated civil society liaison office similar to the External Relations 67

Aarhus convention, supra note 12, art.8.

68

ACTA, supra note 53, art.4.3.

69

ACTA, supra note 55, art 5.5(1).

70

Id. art 5.6.

ACTA, supra note 53, art.5.1(2)(3).

71

155

156

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offices of WIPO and the WTO. However, in either case, no such provisions exist.

The draft only specifies that the Committee may (not shall) “seek the advice of nongovernmental persons or groups.”72 The future scope for civil society participation in the activities of ACTA is therefore unknown at best, and nonexistent at worst. Certainly, civil society can gain no comfort from the current draft text that its interests will be observed, and has every reason to suspect otherwise from the conduct of the present ACTA negotiations.

Thus in sum, considering both the negotiation and implementation stages, ACTA fails to comply with the basic norms and best practices of transparency and participation that have been established by other institutions in the intellectual property policy regime. Such an institution lacks democratic legitimacy as an actor in the regime, and this will inevitably impact upon its perceived authority by other actors and upon compliance with the norms it promulgates.73

5

Conclusion

Strict intergovernmentalism remains unchallenged as the model for development of global public policy on intellectual property issues. But in other regimes of governance, this is no longer the case. This paper described the regime of international environmental law, in which the Aarhus Convention requires its members to uphold the principles of transparency of information, public participation in decision-making, and the provision of access to justice.

It also described the Internet governance regime, in which the process criteria established at WSIS call upon institutions of Internet governance to act in a manner that is multilateral, transparent and democratic, with the full involvement of all stakeholders in their respective roles.

The global regime for intellectual property rights raises transnational public policy issues of no lesser importance than those raised by the environmental and Internet governance regimes, yet it lacks similar broad principles to guide its institutions in designing structures and processes that support public interest representation.

There are signs that this is changing. For example, the WIPO Development Agenda directs that the organisation’s norm-setting activities “be a participatory process, which takes into consideration the interests and priorities of all WIPO Member States and the viewpoints of other stakeholders, including accredited inter-governmental organisations (IGOs) and NGOs”,74 and pledges “[t]o enhance measures that ensure wide participation of civil society at large in WIPO activities in accordance with its criteria regarding NGO acceptance and accreditation, keeping the issue under review”.

But more is needed, and the principles established must apply to all actors in the regime, not only one. Ultimately, such principles should come in the shape of a framework convention,75 or at least an intergovernmental summit document such as the Geneva Statement of Principles from WSIS. But in the meantime, civil society including academia, and perhaps in cooperation with supportive private sector actors and governments, could begin to develop a statement of such principles independently.

72 73 74

Id. art.5.1(3)(b).

See generally Thomas M Franck, The Power of Legitimacy Among Nations 16 (1990).

The 45 Adopted Recommendations under the WIPO Development Agenda, arts.15 and 42, Oct. 3 2007, available at http://www.wipo.int/export/sites/www/ip-development/en/agenda/recommendations.pdf.

75 John Mathiason, A Framework Convention: An Institutional Option for Internet Governance (Dec. 20, 2004), http://www.internetgovernance.org/pdf/igp-fc.pdf.

������ �������: ������ �������� �������������� �� ������ �� ������ ������������ For the Internet governance regime (which already starts from a stronger base, in the WSIS process criteria), there exists such a project to develop a code of good practice on information, participation and transparency.76 The code is a joint project of the Council of Europe, Association for Progressive Communications (APC) and the UNECE (not coincidentally, the host body of the Aarhus Convention).

The absence of anything similar for the global intellectual property rights regime makes it more difficult for civil society to normatively challenge the legitimacy of the Anti-Counterfeiting Trade Agreement, which has failed to meet the public’s expectations during its negotiation phase, and seems unlikely to do better once it has been agreed.

Even so, it has been possible in this short paper to demonstrate ACTA’s flagrant neglect of basic principles of transparency and public participation, which were drawn from other regimes but which are supported by best practices in existing intellectual property policy institutions.

It now falls to civil society, in the short term, to continue to lobby for the inclusion of better structures and processes for public interest representation in ACTA, both during its negotiation phase and in the institution that is formed once it is agreed.

These will include the institutionalization of access to information, and measures for public representation through active observation and/or a permanent civil society advisory committee.

In the longer term, it is necessary to advocate for the development and promulgation of general principles of transparency and participation against which not only ACTA, but all other actors in the intellectual property regime can be judged.

76 Council of Europe et al., Code of Good Practice on Information, Participation and Transparency in Internet Governance (Version 1.1, June 2010), http://www.intgovcode.org/.

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7 Arresting the Decline of Multi-Stakeholderism in Internet Governance

Dr Jeremy Malcolm

Consumers International

A������� The last decade was marked by significant new opportunities for civil society to represent the public interest within existing public institutions involved in information and communications policy development, such as the OECD and WIPO, as well as within new public and private institutions such as the Internet Governance Forum and ICANN. But the turn of the decade has seen regression, as governments have begun to push back against civil society claims for equal representation in policy fora, have shifted key discussions to less inclusive fora, and raised questions over whether the multistakeholder model is “working” if it does not give primacy to governmental interests.

Concurrently, some activists too have given up hope of having their interests represented within public policy institutions, and have resorted to unilateral and extra-legal methods of voicing dissent, as seen in the campaigns of groups like Anonymous. As for the private sector, its support for the multi-stakeholder governance model remains as tentative as it has always been.

Does the retreat of all stakeholder groups from multi-stakeholder engagement with each other suggest the failure of the multi-stakeholder experiment, or just a temporary roadbump? This paper addresses this question by mapping the decline of the multi-stakeholder model over the past several years within the specific context of the Internet governance regime, and considering options for civil society to intervene to prevent its disintegration.

1

Introduction

The last decade promised ⇤ significant strengthening of institutional support for public interest representation in information and communications policy development.

As the decade opened, the United Nations General Assembly had just endorsed the ⇤ This paper was first presented at the sixth annual GIGANET Symposium held in Nairobi, Kenya on 26 September 2011. It appears here in print for the first time.

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proposal of the ITU (International Telecommunications Union) for a World Summit on the Information Society (WSIS), encouraging “non-governmental organizations, civil society and the private sector to contribute to, and actively participate in, the intergovernmental preparatory process of the Summit and the Summit itself”.1 At around the same time, ICANN (the Internet Corporation for Assigned Names and Numbers) undertook the most significant reforms of its own representative structures to date.2 So too at this time WIPO (the World Intellectual Property Organisation) expanded the criteria by which NGOs could be accredited to participate in its activities as observers, having six years earlier opened its doors to the general public to participate in intergovernmental negotiations on a major new pair of Internet-related copyright treaties.3 Certainly, none of the above initiatives were perfectly executed; WSIS in the end was not particularly participatory,4 ICANN’s reforms actually decreased the direct representation of end user interests,5 and complaints about the difficulty for NGOs seeking to become accredited at WIPO continued.6 Even so, it is important that by mid-decade each of the core institutions of information and communications policy had publicly committed to the fuller implementation of participatory structures and processes for public interest representation. WSIS, having established at the level of principle that governance of the Internet should be “a transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organisations, in their respective roles,”7 formed the Internet Governance Forum (IGF) in 2006 to allow for such participation in an open, non-binding forum.

In the same year, ICANN began to describe its own developing participatory processes as “multi-stakeholder” rather than just “private sector management”.8 As for WIPO, in September 2007 it adopted a “Development Agenda”, which committed the organisation to “enhance measures that ensure wide participation of civil society at large in WIPO activities in accordance with its criteria regarding NGO acceptance and accreditation, keeping the issue under review”.9 Thus it least it can be said that by the second half of the last decade, signs were promising for the continued broadening and deepening of multi-stakeholder participation in the major institutions of information and communications policy governance.

But more recently, there are significant indications of backsliding towards an earlier state of unilateralism in the public policy engagement of stakeholders in public policy processes. This includes both a return to governmentalism by powerful states, as well as the disengagement of the private sector and civil society activists from multi1

General Assembly of the United Nations. World Summit on the Information Society. 2001. url: http :

//www.itu.int/wsis/docs/background/resolutions/56_183_unga_2002.pdf.

2

ICANN. Evolution and Reform Committee’s Final Implementation Report and Recommendations. 2002. url:

http://www.icann.org/committees/evol-reform/final-implementation-report-02oct02.htm.

3

WIPO. Four National NGOs Gain Observer Status at WIPO. en. Nov. 2002. url: http://www.wipo.int/press

room/en/prdocs/2002/wipo_pr_2002_328.html.

4 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, pp. 324-326.

5 John G Palfrey Jr. The End of the Experiment: How ICANN’s Foray into Global Internet Democracy Failed. 2004. url: http://cyber.law.harvard.edu/publications/2004/The_End_of_the_Experiment.

6 William New. WIPO Asked To Explain NGO Accreditation Process. 2005. url: http://www.ip-watch.org/we blog/2005/02/23/wipo-asked-to-explain-ngo-accreditation-process/.

7 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/ 6rev1.html, paragraph 61.

8

ICANN. Affirmation of Responsibilities for ICANN’s Private Sector Management. 2006. url: http://www.ican

n.org/en/announcements/responsibilities-affirmation-28sep06.htm.

9

WIPO. The 45 Adopted Recommendations under the WIPO Development Agenda. 2007. url: http://www.wipo.

int/export/sites/www/ip-development/en/agenda/recommendations.pdf, article 42.

������ �������: ��������� ��� ������� �� �����-�������������� stakeholder processes that are perceived as weak or failing. This is evidenced in the use of techniques such as forum-shifting by powerful governments and private sector actors, in the active obstruction by such actors of the development of effective fora for multi-stakeholder policy development, and in the recourse of all stakeholders (including civil society) to extra-legal methods for advancing their policy goals.

This short paper will describe the signs of this shift, beginning with the WSIS outcome processes including the IGF, and then considering other institutions and processes inside and outside the United Nations system. The underlying causes of this apparent retreat of stakeholders from multi-stakeholder participatory institutions and processes are next considered. Finally some suggestions will be made for some strategies that could address this decline. Throughout, the focus of the paper will be on public policy institutions for the information society: that is, Internet governance in the broadest sense, or information and communications policy. Whilst the evolution of participatory governance models in other regimes such as that of environmental governance are also notable and potentially instructive, there has so far been little cross-fertilisation of practices between governance regimes.10

2 The Shaky Foundations of UN Multi-Stakeholderism

The recent decline of multi-stakeholderism is exemplified by the case of its poster child, the IGF. Whilst established as a multi-stakeholder body, the capacity of its stakeholders to actually influence policy development processes has been circumscribed by the very narrow interpretation of its mandate made by its Secretariat and by the most powerful voices within its Multistakeholder Advisory Group (MAG). Opportunities to address this deficiency, such as by placing conditions on the renewal of the IGF’s mandate for a second term, or once that had been decided, to recommend how it should improve its format, functions and operations during that second term, have also been systematically withdrawn from multi-stakeholder bodies and processes, and reserved to those that favour governments. This section will recount and provide some background to these events.

In doing so, the intent of this section is not to overlook that certain parallel multistakeholder processes have developed elsewhere in the Internet governance regime, alongside those that had their genesis at WSIS (notably those of ICANN, which will be briefly mentioned in the following section), and indeed outside that regime altogether (such as under the Aarhus Convention in the regime of environmental governance).11 The current status of those multi-stakeholder processes may or may not be so dire, but they are not the focus of this paper.

2.1 The Internet Governance Forum

At the time that the Internet Governance Forum was first proposed by the Working Group on Internet Governance (WGIG) in 2004, it was expected to be able to discuss international public policies regarding the Internet that fell outside the scope of existing bodies, and to make recommendations on such emerging issues where appro10

Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010.

11

Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010.

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priate, in accordance with what would become its mandate in the Tunis Agenda.12 It did not seem at all outlandish at the time to suggest that “The Forum should be able to pass recommendations on to the concerned parties, and may also invite – or recommend that the United Nations invites – member states to discuss a certain issue in an official capacity, or via a vote in the United Nations General Assembly”.13 In practice the IGF never took on such a role, due to early decisions made by its Secretariat and Multistakeholder Advisory Group (MAG) that limited its capacity to engage in the process of developing such policy recommendations. In particular, the IGF was constituted as an atomistic annual conference, without an agenda of specific issues to address, suitable processeses for addressing them, or institutional structures to support such an exercise.14 At every turn when reforms to the IGF’s structures and processes were proposed within the MAG or at open consultation meetings that would render it better suited to the fulfilment of its mandate, these were strongly opposed by those same stakeholders who had originally spoken against the IGF’s formation at WSIS (rich countries such as the USA, technical community groups such as ISOC and business groups such as the ICC),15 and often also by its incumbent Secretariat. 16 However as the IGF’s initial five year mandate neared an end, a more independent review of the IGF’s strengths and shortcomings was called for by the Tunis Agenda.17 This review was conducted by the Secretary-General, drawing upon responses to a questionnaire that had been prepared by the IGF Secretariat and comments made at a special session held for this purpose at the fourth meeting of the IGF at Sharm el Sheikh, Egypt in September 2009.

In May 2010, the Secretary-General of the United Nations accordingly issued a note on the renewal of the IGF’s mandate.18 The United Nations Department of Economic and Social Affairs (DESA), which hosts the IGF Secretariat and drafted the note, had been criticised in February for its decision to issue it directly to ECOSOC, rather than first forwarding it to the May meeting of the Commission on Science and Technology for Development (CSTD) for its comment. 19 The CSTD advises ECOSOC and the 12

WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/

6rev1.html, paras 72(b) and (g).

13 Charles Sha’aban. “Reforming Internet Governance: Perspectives from the Working Group on Internet Governance (WGIG)”. In: ed. by William J Drake. New York: UNICTTF, 2005. Chap. Proposal for the Establishment of an Internet Governance Forum, p. 235. url: http://www.wgig.org/docs/book/WGIG _ book.pdf, p. 236.

14

Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, pp. 442-444.

15 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, pp. 350, 356, 372, 381, 387. At one point, an Internet technical community leader, Chris Disspain of auDA, even suggested that the community would withdraw its financial support for the IGF if it were to begin to issue recommendations as its mandate required: Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, p. 387.

16 Nitin Desai, Special Advisor to the Secretary-General on WSIS and MAG Chair until 2010, had from the IGF’s inception cautioned that “there’s no way it can ever become a decision-making body,” and maintained this firm position during his tenure: see Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, pp. 289, 363, 423, 446. Similarly, Markus Kummer, Executive Coordinator of the IGF from 2006 to 2010 – and who took up a position with ISOC in early 2011 – intervened on the MAG mailing list in March 2010 to forestall further discussion on reforms to the IGF that could allow it to issue “messages” – which had been proposed as a lesser form of recommendation: Jeremy Malcolm. My take away from Vilnius – if the IGF won’t change itself, others will. 2010. url: http://igfwatch.org/discussionboard/my-take-away-from-vilnius---if-the-igf-wont-change-itself-others-will.

17 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/ 6rev1.html, para 76.

18

United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan

1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf.

19

Such criticisms were made at the February 2010 open consultation meeting of the IGF, and in a sub-

������ �������: ��������� ��� ������� �� �����-�������������� General Assembly on technology issues and was tasked with responsibility for systemwide follow-up of the WSIS outcomes, using a multi-stakeholder approach.20 That is, whilst the CSTD is still an intergovernmental body, it has until now maintained a relatively liberal policy of allowing civil society and business representatives as active observers of its meetings. 21 Thus the exclusion of the CSTD from substantively considering the continuation of the IGF was one of the first signs of the tide turning against multi-stakeholderism in Internet governance in the new decade.

This controversy aside, the Secretary-General’s note acknowledged criticisms that “that the IGF had not provided concrete advice to intergovernmental bodies and other entities involved in Internet governance”, and “that the contribution of the IGF to public policy-making is difficult to assess and appears to be weak”. Suggesting that such criticisms may point “to a desire for more tangible progress on the issues at hand”, the note recommended that “improvements to the format, functions and operations of the Forum be considered at the Forum’s sixth meeting, in 2011”. A press release accompanying the note also suggested that the MAG “make proposals with regard to its own future, should the mandate be renewed”.22 In response, and pending a formal decision on the continuation of the IGF by the General Assembly, processes to consider improvements to the IGF and its MAG were put in place during 2010. As to the MAG, it issued a questionnaire on its own performance and possible improvement following its May 2010 meeting, and considered (though in general did not recommend implementing) the suggestions given at its subsequent meeting in November.23 As to the IGF as a whole, on 29 July the Economic and Social Council (ECOSOC) invited the Chair of the CSTD to form in an open and inclusive manner, a working group which would seek, compile and review inputs from all Member States and all other stakeholders on improvements to the Internet Governance Forum . . . 24

Following on from the Secretary-General’s note and pending the CSTD working group’s report, the General Assembly issued a resolution in December that extended the IGF’s mandate for a further term of five years, noting “the importance of the Internet Governance Forum . . . while recognizing at the same time the need to improve it, with a view to linking it to the broader dialogue on global Internet governance” and also “acknowledging the calls for improvements in its working methods”.25 Despite the earlier (and rightful) criticisms of the lack of multi-stakeholder participation in the development of this resolution, in the end the resolution complemented the CSTD sequent letter from the Civil Society Internet Governance Caucus (IGC): Internet Governance Caucus. An Open Letter from the Internet Governance Caucus to the United Nations Secretary-General, Ban Ki-Moon. 2010. url: http://www.igcaucus.org/node/35. DESA’s response was given in March 2010: Sha Zukang. Statement at the Briefing for Member States on matters Related to the Continuation of the Internet Governance Forum. 2010. url: http://www.un.org/en/development/desa/usg/statements/internet- governance- forum2.shtml. In the end, the CSTD did receive, but did not substantively discuss, an advance copy of the note at its May 2010 meeting.

20

WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/

6rev1.html, para 105.

21 Pursuant to a series of ECOSOC decisions cited in Internet Governance Caucus. An Open Letter from the Internet Governance Caucus to the United Nations Secretary-General, Ban Ki-Moon. 2010. url: http://www.igcauc us.org/node/35.

22 United Nations Department of Public Information. Multistakeholder Advisory Group Renewed to Prepare Internet Governance Forum Meeting in Vilnius, Lithuania, 14–17 September. 2010. url: http://www.un.org/News/ Press/docs/2010/pi1936.doc.htm.

23 Internet Governance Forum. Multistakeholder Advisory Group Meeting Geneva, 23 November 2010 Summary Report. 2010. url: http://intgovforum.org/cms/2010/MAG.Summary.23.11.2010.pdf.

24

United Nations Economic and Social Council. Resolutions and decisions adopted by the Economic and Social Council at its substantive session of 2010. 2010. url: http://unpan1.un.org/intradoc/groups/public/documen

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process of discussion of IGF improvements, which will be considered in more detail next.

2.1.1

Working Group on Improvements to the IGF

A further sign of the weakening of commitment to a multi-stakeholder process for Internet governance, by governments in particular, came at an extraordinary meeting of the CSTD in December, which resolved to establish the Working Group on Improvements to the IGF that ECOSOC had called for as a government-only group. This came as a surprise to many, as apart from apparently diverging from ECOSOC’s directive that the working group be “open and inclusive”, it also departed from earlier indications made during an open meeting held by the CSTD at the Vilnius IGF meeting that the group would be an open, multi-stakeholder taskforce on the model of the WGIG. It was only after strenuous objection by non-governmental stakeholders,26 and intense negotiations at the following general meeting of the CSTD, later in December 2010, that its earlier decision was softened to allow 15 non-governmental observers (out of a total of 42) to “interactively participate” in the group’s meetings and “remain fully engaged throughout the process”.27 In the WGIG, by comparison, nongovernmental representatives had taken 21 of its 40 seats, as full and equal members.

But the presence of non-governmental stakeholders in the room was not enough to ensure that the work of the CSTD Working Group was conducted on a full multistakeholder basis. Were this to have been the case, the text of the group’s recommendations would have been developed by one or more multi-stakeholder drafting groups, as had been the case with the WGIG. Indeed, this is what civil society stakeholders and developing country governments pressed for at the group’s first meeting in Montreux in February 2011. However this was opposed by the familiar coalition of rich countries, technical community and private sector stakeholders (the same that had been blocking improvements to the IGF within its MAG), who prevailed in moving that the CSTD Secretariat attempt to draft the group’s recommendations instead.

Unfortunately the Secretariat had little material to work with in undertaking this task. The Working Group was poorly managed, without the kind of active facilitation that could have assisted the stakeholders to come to agreement on contentious issues.

Consequently much of its first meeting was taken up in procedural disagreements, and much of its second with the tabling of proposals and counter-proposals by members, none of which were comprehensively discussed.28 As a result, although a text summarising the various proposals was prepared by the Secretariat, it contained no agreed recommendations.29 ts/un/unpan041407.pdf.

25

United Nations General Assembly. Information and communications technologies for development. 2011. url:

http://unpan1.un.org/intradoc/groups/public/documents/un/unpan045268.pdf.

26

Internet Society Internet Governance Caucus and International Chamber of Commerce. Joint statement with ICC, ISOC et al. on composition of CSTD working group on IGF improvements. 2010. url: http://www.igca ucus.org/joint- statement- icc- isoc- et- al- composition- cstd- working- group- igf- improvements9-december-2010.

27 Commission on Science and Technology for Development. Panel on "Follow-up to the World Summit on the Information Society – Working Group on the Internet Governance Forum (IGF)" Meeting report. 2010. url: http://www.unctad.org/sections/un_cstd/docs/cstd2010d19_report-wsis_en.pdf.

28 Marília Maciel. Second meeting of the Working Group on improvements to the Internet Governance Forum ends with no final report. 2011. url: http://observatoriodainternet.br/second-meeting-of-the-working-grou p-on-improvements-to-the-internet-governance-forum-ends-with-no-final-report.

29 Commission on Science and Technology for Development. Working Group on Improvements to the Internet Governance Forum. 2011. url: http://www.unctad.org/en/docs/a66d67_en.pdf.

������ �������: ��������� ��� ������� �� �����-�������������� Disagreements centered on three main issues: the addition of a UN budget line to provide stable public funding for the IGF in addition to stakeholders’ voluntary contributions, the establishment of a democratic and transparent process for selection of members of the IGF’s MAG, and, most contentious of all, how the IGF could produce more tangible outcomes, in fulfilment of its mandate in the Tunis Agenda. Although the proposals on each of these issues were detailed, the lines along which disagreement fell were familiarly simple: in general, those most opposed to disturbing the status quo continued to be the developed countries, the technical community and the private sector.

In view of the group’s failure to reach agreement, at its 14th session in May 2011, the CSTD resolved to extend the mandate of its Working Group until the 15th session in May 2012. This resolution was made against the wishes of the United States which would have preferred the group end without having proposed any improvements;30 however the United States, along with Europe, did at least succeed in stymieing a further proposal from India to include timelines and the election of a chair for the Working Group in the CSTD’s resolution.

Regardless of the failure of the CSTD Working Group, it could still have been possible to fulfil the Secretary-General’s injunction given in May 2010 that improvements to the IGF be discussed at its sixth meeting,31 if either the IGF’s Secretariat or MAG, or indeed the CSTD, had chosen to schedule a discussion of such improvements at that meeting. But as none of them did so, the only such discussions that took place in Nairobi were those independently arranged by stakeholders. Indeed, at the time of writing (September 2011), no further meeting of the CSTD Working Group at which for it to continue its consideration of improvements to the IGF has yet been scheduled.

2.2

Enhanced Cooperation

The IGF was not the only institutional reform to the Internet governance regime that was approved at WSIS, though it was the best-formed. Also agreed was the need for “enhanced cooperation in the future, to enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet”, but without neglecting to “involve all stakeholders in their respective roles” and “be responsive to innovation”.32 Intentionally, this formulation was capable of differing interpretations, with those supportive of the status quo preferring to think in terms of loose and voluntary cooperative arrangements between existing institutions, whilst those favouring reform looked forward to a new overarching policy development framework that would be more inclusive of hitherto excluded stakeholders.33 Although the Tunis Agenda had specified a deadline of 2006 for the commencement of the process towards enhanced cooperation, the UN’s early approach was far from proactive, essentially leaving the process to evolve spontaneously. Nitin Desai, as Special Advisor to the Secretary-General on Internet governance issues, undertook 30

Betty E King. Untitled correspondence. 2011. url: http://www.unctad.org/sections/un_cstd/docs/UN_WGI

GF2011d09_usa_en.pdf.

31

United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan

1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf.

32

WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/

6rev1.html, paras 69, 71.

33

United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan

1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf, p. 8.

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a limited and closed set of consultations with incumbent Internet governance institutions that year about their own attitudes towards the process, but his private report to the Secretary-General gathered dust over the following years. In the interim, Desai specified firmly that enhanced cooperation was not a matter to be discussed at the IGF or within its MAG – a curious contention, as the Tunis Agenda suggests (and it has since been widely accepted) that the IGF is an integral component of the enhanced cooperation process.34 In 2009 the Secretary-General finally published a report on the progress taken towards enhanced cooperation to that date, based around a 2008 series of follow-up consultations with ten selected organisations. As this narrow set of respondents each enjoyed existing authority in the Internet governance regime, it was unsurprising that the views they reported supported a minimalist interpretation of enhanced cooperation that supported the status quo.35 At the 2008 IGF meeting in Hyderabad enhanced cooperation finally also made the agenda – shoehorned into the session on critical Internet resources – where most of the panelists now took the view that the IGF and other existing processes were enhanced cooperation, and that no institutional reforms were needed. 36 While this may have seemed to spell the end of enhanced cooperation as an independent process, it survived as a result of one defining event: that ECOSOC referred the Secretary-General’s report to the CSTD for consideration at its May 2010 meeting.

Since a range of civil society representatives and developing country governments had the opportunity to comment on the issue at that meeting, a much broader view of enhanced cooperation was taken there. The CSTD considered that “the Internet governance-related outcomes of the World Summit, namely, the process towards enhanced cooperation and the convening of the Internet Governance Forum, are . . . two distinct processes and also recognizes that the two processes may be complementary”, and recommended ECOSOC to invite “the Secretary-General to convene open and inclusive consultations involving all Member States and all other stakeholders with a view to assisting the process towards enhanced cooperation”. 37 In response to ECOSOC’s invitation, which it made by resolution in July, the SecretaryGeneral through the United Nations Department of Economic and Social Affairs (DESA) held a consultation meeting on enhanced cooperation in New York on 14 December 2010. Mirroring the upset at the early exclusion of non-governmental stakeholders from the CSTD’s Working Group on Improvements to the IGF, a similar attempt was made to sideline these stakeholders at the enhanced cooperation discussions, prompting another joint letter of protest.38 In contrast to the IGF where the floor 34 United Nations Secretary-General. Enhanced cooperation on public policy issues pertaining to the Internet.

2011. url: http : / / unpan1 . un . org / intradoc / groups / public / documents / un / unpan045826 . pdf; Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, pp. 344-349.

35 United Nations Secretary-General. Enhanced cooperation on public policy issues pertaining to the Internet.

2009. url: http://www.unctad.org/en/docs/e2009d92_en.pdf.

36 The transcript is at http://www.intgovforum.org/cms/hyderabad_prog/AfIGGN.html.

37 Commission on Science and Technology for Development. Report on the thirteenth session (17-21 May 2010). 2010. url: http://www.unctad.org/en/docs/e2010d31_en.pdf. Simultaneously in his May 2010 note on the continuation of the IGF, the Secretary-General himself also called on the General Assembly to make clarification of the meaning of the term enhanced cooperation and how it related to the IGF: United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan1.un.org/intrado c/groups/public/documents/un/unpan039400.pdf, p. 8.

38 Internet Society Internet Governance Caucus and International Chamber of Commerce. Joint open letter on non-governmental participation at Enhanced Cooperation consultations. 2011. url: http://www.igcaucus.org/nod e/39.

������ �������: ��������� ��� ������� �� �����-�������������� is open to all stakeholders on an equal footing, at the enhanced cooperation consultation civil society was permitted to make only a single oral presentation, to be delivered

by CONGO, an organisation which had not been active in Internet governance discussions for some years.

Furthermore, as at the CSTD, physical attendance was limited to organizations in consultative status with the Economic and Social Council and other entities accredited to the World Summit on the Information Society, which excluded (amongst others) many non-governmental actors who had actively participated at the IGF. (ECOSOC has relaxed this requirement in a string of resolutions dating from 2007 to 2011, but only in respect of the CSTD’s own meetings.)39 In the end, DESA relented slightly on the originally stipulated conditions for participation, and a representative of the Civil Society Internet Governance Caucus did attend and speak at the meeting.

The results of the December 2010 consultation, such as they were, fed into an updated report of the Secretary-General, issued in May 2011, which concluded rather lamely that “cooperation is already taking place in many respects, although it could be enhanced in some areas . . . and that existing cooperation mechanisms should be used to the extent that they were helpful”.40 The report has been transmitted to the General Assembly for consideration at its 66th session in September 2011 in New York. However it was not listed on the official agenda of that meeting, and no resolution relating to it was made.

3

3.1

The Decline of Multi-Stakeholderism Governments Defiant

Outside of the official consultations, a number of governments have been promoting a narrow intergovernmental model of enhanced cooperation. At the 2010 session of the UN General Assembly, and subsequently at the July 2011 meeting of ECOSOC, the grouping of India, Brazil and South Africa – IBSA – called for an intergovernmental mechanism for enhanced cooperation, separate from but complementary to the IGF. Further detail was presented at a Seminar on Global Internet Governance in September, at which the governmental members called for a new UN body to “be tasked to develop and establish international public policies with a view to ensuring coordination and coherence in cross-cutting Internet-related global issues”, and to “integrate and oversee the bodies responsible for technical and operational functioning of the Internet”.41 Whether and how such a body would take advice from other stakeholders in its policy development processes, and through what new mechanisms if any, is unspecified. Neither is it clear what input such stakeholders will have into the recommendations before they are finalised at the next IBSA summit in October. In any case, IBSA chose not to present the recommendations formally to the IGF (which is presently illequipped to consider them anyway), but has instead announced its plans to deliver them directly to the UN General Assembly.

39 Marília Maciel. Note on the participation of Civil Society on discussions regarding the improvement of IGF. 2011. url: http : / / www . igcaucus . org / upload / Note \ %20participation \ %20of \ %20CS \ %20in \ %20IGF \ %20improvement.pdf.

40 United Nations Secretary-General. Enhanced cooperation on public policy issues pertaining to the Internet.

2011. url: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan045826.pdf.

41 IBSA. IBSA Multi-Stakeholder Meeting on Global Internet Governance – Recommendations. 2011. url: http: //www.culturalivre.org.br/artigos/IBSA_recommendations_Internet_Governance.pdf.

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More recently, at the 66th session of the General Assembly in September 2011, China, the Russian Federation, Tajikistan and Uzbekistan issued a draft General Assembly resolution on an international code of conduct for information security, that is explicitly open to states alone.42 Amongst the pledges that a subscribing state would make are to “promote the establishment of a multilateral, transparent and democratic international Internet management system”. These are highly retrograde criteria for such an institution when compared against those specified in the Tunis Agenda, namely, “The international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations”.43 The position of the developed countries is not so dissimilar, though it is less overt.

Whilst the Council of Europe (which is not a body of the EU) resolved in September 2011 to accept a set of ten Internet principles that strongly favoured a balanced model of multi-stakeholder Internet governance, 44 this is at odds with the position of the European Union. It was the EU’s defection from the United States’ line on maintaining private sector management of the Internet that enabled the compromise language “enhanced cooperation” to be introduced into the Tunis Agenda to begin with – and the EU’s original language, referring to a “new model of international cooperation”, had been more explicitly intergovernmental.45 Since then, from as early as 2006, the EU has maintained its interpretation of the enhanced cooperation concept, pointedly describing it as a “process of enhanced cooperation between governments”.46 At Europe’s 2011 regional IGF, EuroDIG, Neelie Kroes, Vice-President of the European Commission claimed that “the multi-stakeholder model of Internet Governance is needed, just that it needs to be amended to function better and take into account the voice of Governments”.47 She has subsequently proposed a “Compact for the Internet”, in which “the role which government representing their citizens play” is brought to the fore, with the claim that it is necessary to “ensure that those views aren’t ignored“ in order “that the multistakeholder model doesn’t fall apart”.48 The immediate context for Kroes’ concerns (and IBSA’s) is that ICANN has failed, through the role that its Governmental Advisory Committee (GAC) plays in its multistakeholder processes, to provide what Europe regards as sufficient control over policies for the administration of the Internet domain name system. Reflecting these concerns, the European Commission recently produced a series of discussion papers proposing significant reforms to the domain name system, which if implemented 42 Tajikistan China Russian Federation and Uzbekistan. Letter dated 12 September 2011 from the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General. 2011. url: http://documents- dds- ny.un.org/doc/UNDOC/GEN/N11/496/56/pdf/N114965 6.pdf?OpenElement.

43 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/ 6rev1.html, para 29.

44 Council of Europe. Internet Governance Principles. 2011. url: http://www.coe.int/t/dghl/standardsett ing/media- dataprotection/conf- internet- freedom/Internet\%20Governance\%20Principles.pdf – only

the draft version of that resolution was available online at the time of writing (26 September).

45 European Union. Proposal for Addition to Chair’s Paper Sub-Com A Internet Governance on Paragraph 5 "Follow-up and Possible Arrangements". 2005. url: http://www.itu.int/wsis/docs2/pc3/working/dt21.pdf.

46 European Commission. Internet Governance: Commission Welcomes Move Towards Full Private-Sector Management by 2009. 2006. url: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/1297.

47

Neelie Kroes. Internet governance – European Dialogue on Internet Governance (EuroDIG). 2011. url: http:

//europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/419.

48

Neelie Kroes. I propose a "Compact for the Internet". 2011. url: http://blogs.ec.europa.eu/neelie-kroe

s/i-propose-a-compact-for-the-internet/.

������ �������: ��������� ��� ������� �� �����-�������������� would provide governments with veto power over new top level domains and to the right to reserve words from domain name registries, amongst other radical new powers.49 The papers were not developed with the benefit of prior public consultation, and only came to public awareness after they were leaked.

But even the United States, which already possesses oversight authority over ICANN, and has been a vocal proponent of a balanced model of multi-stakeholder governance for the Internet, has begun to ask how “governments collectively, can operate within the paradigm of a multi-stakeholder environment and be satisfied that their interests are being adequately addressed”.50 This illustrates that whilst developed countries pay lip service to the multi-stakeholder model of policy development and make much of their opposition to greater intergovernmental control over the Internet when proposed by developing countries, this has more to do with the fact that they (and the United States in particular) already possess substantial power over Internet policy development, which the developing countries lack.

In reality, there is little to distinguish governments from either side of the economic divide in their desire either to gain or to maintain power over Internet policy development. Perhaps all that has changed since the turn of the decade is that as calls for a balanced multi-stakeholder policy development model of enhanced cooperation have continued to resonate, governments who at first took refuge in the vagaries of the Tunis Agenda’s language, have been forced to make their bottom line more explicit.

3.2 Intergovernmentalism Rampant

The United States is careful with the image that it presents to its citizens and the rest of the world about its support for the multi-stakeholder governance model for Internet governance. In a 2011 strategy document on cyberspace policy it expressed full enthusiasm for that model,51 and has revealed its reservations only indirectly, for example through its attempt to prematurely terminate the work of the CSTD Working Group,52 and its retention of unilateral oversight of ICANN through a permanent Affirmation of Commitments following the expiry of its earlier Joint Project Agreement.53 But the United States, and other countries too, feel more freedom to depart from their expressed multi-stakeholder principles when they can do so in a manner that allows them a degree of distance from their actions. The main way in which they can do this is by means of forum shifting to less inclusive intergovernmental organisations, or by entering into new bilateral or multilateral agreements that provide limited representation of other stakeholders.

In a sense, the efforts of governments to create a home for Internet policy development outside of the IGF cannot accurately be described as forum shifting, since as explained in the first section of this paper, the IGF is not yet a forum capable of use49

Milton Mueller. The second EC ICANN Paper: How low can they go? 2011. url: http://blog.internetgover

nance.org/blog/_archives/2011/9/4/4893009.html.

50 Department of Commerce. “The Internet Assigned Numbers Authority (IANA) Functions”. In: Federal Register 76.114 (2011), pp. 34658–34667. url: http://www.ntia.doc.gov/files/ntia/publications/fr_iana_ furthernoi_06142011.pdf, p. 34660.

51 Barack Obama. International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World.

2011. url: http://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_c yberspace.pdf.

52 Betty E King. Untitled correspondence. 2011. url: http://www.unctad.org/sections/un_cstd/docs/UN_WGI GF2011d09_usa_en.pdf.

53 Milton Mueller. Is the U.S. turning its back on innovation in Internet governance? 2011. url: http://blog.in ternetgovernance.org/blog/_archives/2011/6/14/4838065.html.

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fully contributing to the process of developing such policies, having been held back from acquiring that capacity as explained in section 1. The main exception is in the case of intellectual property policy, which already has a natural, and relatively broadly consultative, home in WIPO.54 As such the attempts of business and governments to use bilateral trade negotations, as well as multi-lateral negotiations such as TRIPS, ACTA (the Anti-Counterfeiting Trade Agreement) and the TPPA (Trans-Pacific Partnership Agreement) to develop and promulgate intellectual property norms and raise enforcement standards have been well studied as examples of forum shifting,55 and are also a good example of the multi-stakeholder principle in decline.

Less well studied to date, and the focus of attention here, are three more directly Internet-related intergovernmental policy-making institutions which governments have favoured as loci for Internet policy development in recent months, but which in comparison to a potential empowered IGF or a future fully multi-stakeholder enhanced cooperation framework, lack openness to either multilateral or multi-stakeholder input, or both. These three institutions are the ITU, the G8 and the OECD. The intergovernmental forum in which governments disenamoured of the multistakeholder model have most loudly voiced their views is the ITU. The ITU formed a government-only working group in 2007 to review whether any reforms to its own structure were required in order to bring it into compliance with the multi-stakeholder standard set at WSIS. Although ITU membership and meetings are almost completely closed to civil society, the review concluded in 2009 that no changes were needed.56 . In a further irony, the report is only accessible to ITU members.

At its plenipotentiary conference in 2010, renewed calls were made by some delegates for the ITU “to take on itself a leading role in internet governance within the scope of its competence”,57 though as with earlier similar efforts to shift Internet governance roles into that forum,58 these failed. However at the same meeting the ITU did confirm that its Dedicated Group on international Internet-related public policy issues would be maintained as a body “limited to member states, with open consultation to all stakeholders.”59 Whereas WGIG had rejected the ITU as a suitable institution within which for governments to address Internet governance issues, largely because of the deficits in its accessibility to civil society as noted above,60 alternative institutional options have since emerged that are more open to the participation of other stakeholders, but in a more controlled way than at the IGF, and possessing a clearer intergovernmental mandate for policy development.

One of these is the G8. In 2009, European Commission Vice-President Vivian Reding 54

Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010, p. 16.

55

Laurence R Helfer. “Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking”. In: Yale Journal of International Law 29 (2004), p. 1.

56 ITU. Draft Final Report of the Council Working Group on the Study on the Participation of all relevant stakeholders in ITU Activities related to the World Summit on the Information Society (WSIS). 2009. url: http : //www.itu.int/council/groups/stakeholders/pd/Draftfinalreport.doc.

57 Monika Emert. “UN And Internet Governance: Better Cooperation Or Bigger Role?” In: Intellectual Property Watch 7.11 (2010), pp. 4–5. url: http://www.ip-watch.org/weblog/2010/10/27/un-and-internet-g overnance-next-four-years-better-cooperation-or-bigger-role/.

58 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, p. 61.

59 ITU. ITU’s role with regard to international public policy issues pertaining to the Internet and the management of Internet resources, including domain names and addresses. 2010. url: http://www.itu.int/osg/csd/intgov/reso ultions_2010/PP-10/RESOLUTION_102.pdf.

60 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, p. 344.

������ �������: ��������� ��� ������� �� �����-�������������� had called for the establishment of a “G-12 for Internet Governance”, being “a multilateral forum available for governments to discuss general internet governance policy issues”.61 She got her wish in 2011, when the G8 under the Presidency of French President Nicolas Sarkozy, convened an invitation-only e-G8 Forum in Deauville, from which civil society was largely excluded.62 The meeting notionally provided nongovernmental delegates an opportunity to contribute their views to the formal G8 summit (though in fact the Deauville Declaration eventually issued at the summit had been drafted beforehand).63 According to one commentator who was present, Sarkozy “sees the role of the e-G8 very much in the same context as the national CNN (Conseil National du Numérique, composed only of business): create a space for business and states to start a conversation, but not a real advisory body and not multi-stakeholder”.64 Falling somewhere in between the open yet ineffectual multi-stakeholderism of the IGF and the tokenism of the intergovernmental e-G8 stands the OECD. Since 2008, the OECD’s Committee for Information, Computer and Communication Policy (CICCP), which is attached to the intergovernmental OECD Council, has taken advice from a Civil Society Information Society Advisory Council (CSISAC). It stands alongside two similar advisory committees for the business and technical communities.65 In June 2011, the CICCP endeavoured to reach agreement between the Council and its advisory committees on a Communiqué on Principles for Internet Policy-Making.66 Although the communiqué expressed support for “multi-stakeholder co-operation in policy development processes”, and contained a number of other provisions to which CSISAC had contributed and with which it agreed, in the end CSISAC chose not to endorse it on the grounds that several of these principles are not compatible with CSISAC core values including respect for fundamental human rights and freedoms and, the rule of law, promotion of access to knowledge, promotion of open standards, Net Neutrality and balanced intellectual property policies and regimes.67

In itself, this indicates no failure of the multi-stakeholder model, nor can be cited as evidence of that model in decline. But if consensus could not be reached between civil society and the other stakeholders, a full commitment to the multi-stakeholder process would have seen the OECD retracting its communiqué of principles altogether, or at the very least honestly acknowledging that those principles did not represent the views of all of the stakeholders consulted. But in fact, the withdrawal of civil society from endorsement of the communiqué has been treated as an inconvenient fact to be quietly ignored. For example, as the facts were presented by US government representatives in a Washington Post op ed: The recent meeting called by the OECD (the international economics policy standards 61

Rene Beekman. Reding wants globally responsible, privatised ICANN. 2009. url: http://sofiaecho.com/200

9/05/04/714195_reding-wants-globally-responsible-privatised-icann.

62

Internet Governance Caucus. Open letter to President Sarkozy on eG8 meeting plan. 2011. url: http://www.i

gcaucus.org/open-letter-president-sarkozy-eg8-meeting-plan.

63

Eric Pfanner. G-8 Leaders to Call for Tighter Internet Regulation. 2011. url: http://www.nytimes.com/2011/

05/25/technology/25tech.html?_r=1.

64

Divina Meigs. E-G8 forum: quick reporting on day 1. 2011. url: http://lists.cpsr.org/lists/arc/govern

ance/2011-05/msg00441.html.

65 66

Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010, p. 16.

OECD. Communiqué on Principles for Internet Policy-Making. 2011. url: http://www.oecd.org/dataoecd/4 0/21/48289796.pdf.

67 CSISAC. CSISAC Declines to Support OECD Principles on Internet Policy-Making. 2011. url: http://csisa c.org/CSISAC_PR_06292011.pdf.

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organization) assembled leaders from 40 governments, business and the Internet technical community. It produced a set of broad principles for safeguarding the open Internet that address three key international threats to the seamless, interconnected Web.68

Not only is civil society’s abstention not admitted, but indeed civil society is not mentioned in the story at all. It as if civil society simply did not play any role in the process. The OECD cannot be regarded as adhering to the WSIS principles on multistakeholder participation in Internet governance if one stakeholder group’s participation in that process can be trivialised in this manner.

3.3 Complicity of the Business and Technical Communities

Worsening the decline of multi-stakeholderism has been the business and Internet technical communities’ indifference at best, and hostility at worst, towards multistakeholder models that would empower broader civil society. This has taken an active form in the submissions that these communities, notably through the ICC and ISOC, have consistently put forward arguing against the reform of the IGF to enable it to develop the capacity to produce policy recommendations, 69 and against institutional reforms in relation to the enhanced cooperation process, which they have characterised as unnecessary in light of their own internal efforts at cooperation with other stakeholders.

By the same token, the private sector and technical communities were not seen to raise any objection to the exclusivity of the e-G8 summit, nor to the release of the OECD Communiqué without civil society’s endorsement, they have actively participated in other Internet-related policy discussions from which civil society was excluded or absent (such as the ACTA negotiations),70 and have proactively organised other such discussions (including a series of meetings on intermediary liability, cohosted by ISOC and WIPO). 71 The result has been to put multi-stakeholderism out of balance in those institutions, and to ensure that the only institution where it is more balanced – the IGF – has no capacity to efficiently channel civil society’s views to policy makers.

The motivation of the private sector in particular in perpetuating this imbalance is not difficult to understand, nor is it even particularly objectionable, since the private sector has no interest in furthering the public values that true multi-stakeholderism would promote, ahead of its own power and profits, which could be threatened by further democratising governance processes. Indeed, it has already been noted that governments have almost the same complaint as civil society about multi-stakeholderism imbalance in the context of ICANN, where governments are institutionally disempowered relative to the other stakeholders.72 The technical community, to the extent that it is not composed of private sector actors, has a slightly different but also understandable interest in opposing governance reform, in it has historially enjoyed considerable independent authority over technical Internet governance, and naturally wishes to cede as little of that authority to governments or broader civil society as possible.

68 Karen Kornbluh and Daniel J. Weitzner. Foreign policy of the Internet. 2011. url: http://www.washingtonp ost.com/opinions/foreign-policy-of-the-internet/2011/07/08/gIQAjqFyEI_story.html.

69

See 2.1.

Consumers International. 2009 IP Watch List. 2009. url: http://a2knetwork.org/sites/default/files/i p-watchlist09.pdf, p. 4.

70

See http://www.wipo.int/copyright/en/internet_intermediaries/index.html.

Milton Mueller. Is the U.S. turning its back on innovation in Internet governance? 2011. url: http://blog.in ternetgovernance.org/blog/_archives/2011/6/14/4838065.html.

71

72

������ �������: ��������� ��� ������� �� �����-�������������� More objectionable, however, are cases in which private sector actors, in particular, have taken active steps to implement Internet governance policies extra-legally; that is, where such policies have been developed outside of democratic (let alone multistakeholder) fora, and are implemented without public oversight. A clear example is the case of the withdrawal of services by financial intermediaries to Wikileaks, thereby crippling its ability to raise funds to support the provision of access to leaked government and corporate documents on matters of public interest. This decision was made in an environment of strong political pressure, but where no legal ruling against Wikileaks or its representatives had been, or yet has been, made regarding the legality of its activities.73 Another example of the private sector straying into areas of public policy that should be subject to democratic and (at least outside of the domestic context) multistakeholder oversight, is in the private agreements reached between some Internet service providers (ISPs) and representives of content owners, to implement a graduated response or “three strikes” regime whereby users of the Internet can be disconnected or otherwise penalised for alleging sharing copyright content.74 The UN Human Rights Rapporteur has expressed the view that such a regime impacts upon fundamental human rights such as the right to freedom of expression,75 and the Council of Europe that basic Internet access has become an essential public service.76 In this context even the OECD Communiqué, in a passage to which CSISAC objected, limited the circumstances in which such a regime could be developed: governments may choose to convene stakeholders in a transparent, multi-stakeholder process to identify the appropriate circumstances under which Internet intermediaries could take steps to . . . assist rights holders in enforcing their rights or reduce illegal content.77

Falling into the same category are agreements for the illegal filtering or interception of Internet usage by private government contractors, such as the infamous HBGary Federal,78 and perhaps also the cooperation of domain name registrars to effect the “seizure” of websites at the direction of a US government agency without legislative mandate or a prior hearing.79

3.4 Weakness of Civil Society

Not only governments, the private sector and the Internet technical community are responsible for the decline of multi-stakeholderism in Internet governance. Civil society itself can also be partly held responsible for that decline. For one thing, activists 73 Steve Ragan. Cablegate: Visa and MasterCard face legal problems over WikiLeaks blockade. 2011. url: http : //www.thetechherald.com/article.php/201126/7349/Cablegate-Visa-and-MasterCard-face-legal-probl ems-over-WikiLeaks-blockade.

74

John Collins. Eircom to cut broadband over illegal downloads. 2010. url: http://www.irishtimes.com/newspa

per/frontpage/2010/0524/1224271013389.html.

75

Frank La Rue. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue. 2011. url: http : / / www2 . ohchr . org / english / bodies / hrcouncil / docs / 1 7session/A.HRC.17.27_en.pdf.

76 Council of Europe. Declaration of the Committee of Ministers on the management of the Internet protocol address resources in the public interest. 2010. url: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1678299.

77

OECD. Communiqué on Principles for Internet Policy-Making. 2011. url: http://www.oecd.org/dataoecd/4

0/21/48289796.pdf, p. 6.

78

Barrett Brown. A sinister cyber-surveillance scheme exposed. 2011. url: http://www.guardian.co.uk/commen

tisfree/cifamerica/2011/jun/22/hacking-anonymous.

79 Wendy Seltzer. Super Bust: Due Process and Domain Name Seizure. 2011. url: http://wendy.seltzer.org/b log/archives/2011/02/02/super-bust-due-process-and-domain-name-seizure.html.

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have fallen into the same trap as governments and the private sector in forgoing multistakeholder engagement in favour of extra-legal methods of advancing their interests. Thus the banks’ extra-legal financial blockade against Wikileaks was met in kind with Distributed Denial of Service (DDOS) attacks by the distributed hacker collective Anonymous.80 HBGary’s attempts to infiltrate a network of hactivists resulted in its network being infiltrated in turn, and its confidential corporate documents leaked.81 Whilst civil disobedience is sometimes necessary, and the examples given above were, in defence of Anonymous and Lulzsec, retaliatory, the danger of civil society activists having recourse to extra-legal methods for voicing dissent is that they show contempt for multi-stakeholder engagement, accountability and the rule of law. This invites a response which holds those values in similar contempt, such as that of China, the Russian Federation, Tajikistan and Uzbekistan, who propose a government-only instrument on cyber-security. If governments perceive that the Internet community’s reaction to the infringement of their rights online is to practice cyber-warfare, rather than to engage in discussion and debate on their grievances in multi-stakeholder fora that exist for that purpose, then the utility of those fora is compromised and their further decline is assured.

A second respect in which civil society should take responsibility for the decline of multi-stakeholderism is that it has not organised its participation in Internet governance processes very effectively in recent years. During WSIS, civil society selforganised itself into a plenary group, and a large number of regional, multi-stakeholder and thematic caucuses and working groups.82 Of these, the only body that remains active today is the Internet Governance Caucus (IGC). Its capacity to represent civil society within Internet governance institutions is limited by a number of factors: its membership although large is relatively narrow, it is not formally incorporated, it has no staff or funding, and is not accredited to ECOSOC. Similarly, during the last decade NGOs that were active on intellectual property issues in venues such as WIPO used to hold coordination meetings in Geneva. These meetings, too, are a thing of the past.83 Increasingly it has been the funding agencies such as the Open Society Institute (OSI) and IDRC, that have taken the initiative to organise and fund occasional gathering of NGOs working on IP issues.

In comparison, business and technical community stakeholders attending meetings of institutions such as WIPO and the CSTD, and events such as the e-G8 and the European Digital Assembly, come well prepared, with joint positions discussed and agreed beforehand. Pre-event meetings are held, along with daily briefings in the mornings.

It is natural, then, that such events tend to be dominated by business and technical community representatives who are much better prepared to advance their agreed positions.

In part of course, this disparity between the disorganisation of civil society and the organisation of the other stakeholder groups stems from civil society’s lack of resources. But WSIS showed that even when resources were limited, it was possible 80 Ashley Fantz and Atika Shubert. WikiLeaks ’Anonymous’ hackers: ’We will fight’. 2010. url: http://article s.cnn.com/2010-12-09/us/hackers.wikileaks_1_julian-assange-arbor-networks-websites?_s=PM:US. 81 Peter Bright. Anonymous speaks: the inside story of the HBGary hack. 2011. url: http://arstechnica.com/te ch-policy/news/2011/02/anonymous-speaks-the-inside-story-of-the-hbgary-hack.ars.

82 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008, pp. 326-329.

83 Duncan Matthews. “The Role of International NGOs in the Intellectual Property Policy-Making and Norm-Setting Activities”. In: Chicago-Kent Law Review 82.3 (2007), pp. 1369–1387. url: http://www.cklawrev iew.com/wp-content/uploads/vol82no3/Matthews.pdf, p. 1385.

������ �������: ��������� ��� ������� �� �����-�������������� to evolve quite complex organisational structures in order to interface with policy development proesses institutions more effectively. This is a challenge that civil society should take up anew if it wishes to address its own part in the decline of multistakeholder governance.

4

Arresting the Decline

It has been seen that both within and outside the United Nations system, civil society still lacks an effective voice in global Internet policy development, while governments and other powerful actors in the Internet governance regime continue to act unilaterally. Multi-stakeholder policy development had been put forward to cure these ills, but its implementation is faltering badly, with an incapacitated IGF and a host of competing institutions and agreements that wield more power, but offer far less scope for stakeholder participation. What options, then does civil society have for arresting the observed decline in the fortunes of the multi-stakeholder principle?

4.1 A Framework Document

The first suggestion may seem an odd one: the development of a framework of principles for Internet governance. Clearly, we already have a surfeit of such documents.

The Council of Europe’s code of good practice on information, participation and transparency, developed with the Association for Progressive Communications (APC) is a good example.84 The OECD Communiqué, though flawed, is another. President Obama’s International Strategy for Cyberspace, the EU’s Internet Compact, the G8’s Deauville Declaration and IBSA’s recommendations are yet more. Whilst most of these are governmental in origin, civil society, too, has been busy in the Internet principles department, with the Internet Rights and Principles Dynamic Coalition having released the beta version of its Charter of Human Rights and Principles for the Internet at the Nairobi meeting of the IGF. 85 But none of these documents is sufficient, because none of them are shared by all of the stakeholder groups and regions which they aspire to cover, and therefore all lack weight and legitimacy as instruments guiding the practice of Internet governance globally. It would be much more apt for the IGF itself to produce such a document, in fulfilment of its mandate to discuss international public policies regarding the Internet and to make recommendations where appropriate. Such an IGF statement of Internet principles – non-binding, of course – would be a valuable tangible output shared by all stakeholders as a guide for their individual activities in Internet governance; an unmet need that the Secretary-General, amongst others, has recognised.86 Brazil attempted to submit such a document to the Vilnius meeting of the IGF in 2010, its Principles for the Governance and Use of the Internet, developed on a multistakeholder basis by the Brazilian Internet Steering Committee (CGI.br).87 Whilst many at that time called for the IGF to adopt the principles as a basis for a set of prin84 Council of Europe. Code of good practice on information, participation and transparency in Internet governance.

2010. url: http://www.apc.org/en/system/files/COGP_IG_Version_1.1_June2010_EN.pdf.

85 See http://irpcharter.org/.

86 United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan 1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf, p. 5.

87

CGI.br. Principles for the Governance and Use of the Internet. 2009. url: http://www.cgi.br/english/regula

tions/resolution2009-003.htm.

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ciples of its own,88 there was then no process by which the IGF could deliberate upon such a document, in the way that the OECD was able to deliberate upon its Communiqué by submitting it to the stakeholder groups for discussion and comment.

Thankfully, a clear road map for the IGF to develop the capacity to deliberate upon such outputs is on the table at the CSTD Working Group.89 The proposal, as presented

by India, involves the MAG identifying key policy questions, working groups being formed to deliberate upon them and produce background papers, these being further deliberated upon at IGF workshops, round table discussions and intersessional meetings, the output being presented to the IGF in plenary session, and a final report being prepared by the working groups. The fate of the Indian proposal, or anything like it, remains murky, given the opposition to change within the CSTD from the developed countries, business and technical communities. However, their choice is rather stark: either the IGF is to develop the capacity to produce policy outputs such as this, or it will rapidly be overtaken by rival institutions and processes. Therefore whilst change is always difficult, this particular change is long overdue for the IGF, and cannot continue to be passed up if it wishes to remain relevant. If successful, there is every chance that the statement of principles that the IGF produces will provide persuasive guidance to those other institutions and processes, and alone validate the IGF’s continued existence.

4.2

Better use of Representation Options

The imbalance of power that affects civil society in comparison to other stakeholder groups within governance institutions is an inevitable consequence of the far greater economic and (thus) political power that the private sector holds. In many intergovernmental institutions – such as WIPO, for example – private sector cooperatives and lobby groups receive the same consultative status as NGOs from civil society, which results in the “crowding out” of civil society voices in consultative processes. Additionally, as noted above, civil society tends to be less well prepared and coordinated in comparison to the business and technical communities. This too has prejudiced its success in advocating for public interest outcomes in venues such as the IGF’s MAG, the CSTD and the OECD. To redress this, civil society needs to make better use of the options that are already available to it to represent the public interest within Internet governance institutions.

This should involve a methodical process of : • Mapping the institutions active in the Internet governance regime, and the opportunities for participation they each offer.

• Assessing the resources that civil society groups have available to participate in these institutions, and what barriers they face.

• Coordinating the application of these resources towards the opportunities identified, and engaging in capacity building to overcome the barriers where possible.

In 2011, Consumers International commenced a programme titled “Consumer Representation in the Information Society” that aims to follow the above approach to help 88 Internet Governance Forum. Fifth Meeting of the Internet Governance Forum (IGF) – Chairman’s Summary (Expanded Version). 2010. url: http://intgovforum.org/cms/2010/Chairman\%27s.Summary.Expanded.pdf, p. 22.

89 Government of India. India’s Inputs to the Questionnaire circulated by the Chair of the CSTD Working Group on Improvements to Internet Governance containing broad elements of the final report. 2011. url: http://www.unctad. info/upload/CSTD-IGF/Contributions/M1/India.pdf.

������ �������: ��������� ��� ������� �� �����-�������������� public interest representatives (most specifically consumer groups) better utilise the available options for representation of the public interest in Internet governance institutions. 90 During the same year, in the related arena of intellectual property, the American University of Washington DC and the FGV Law School launched their own programme titled “International IP and the Public Interest,” to help build a global network of public interest advocates working on intellectual property issues.91 .

These programmes exemplify, but certainly do not exhaust, what is needed to equip global civil society to more effectively make use of the opportunities that exist to participate in multi-stakeholder Internet governance processes. More will certainly needed to return civil society to the position of organised strength that it had during the first phase of WSIS, culminating in the leading role that it played in the multi-stakeholder Working Group on Internet Governance.

4.3 Reform of Institutions Where Options Lacking

Of course, a large part of the problem is not that civil society doesn’t make use of the opportunities it has for multi-stakeholder participation, but rather that those opportunities do not exist. This is particularly so in cases such as the ACTA and TPPA treaties, which have been negotiated in private with very little access being afforded to public interest representatives. The Tunis Agenda specifies that those exercising global Internet governance responsibilities should do so in a manner that is “multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations”. This points to the need for reform of such processes that do not already meet thos standards. An example of such reform in practice is in the case of the OECD, which following its 2008 Seoul Ministerial Meeting, formed the CISAC as a dedicated civil society advisory group alongside similar groups for business and the technical community.

Institutions that do not meet the WSIS process criteria are to be identified by the IGF, which is mandated to “Promote and assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes”.92 But given that the IGF is not presently fulfilling this paragraph of its mandate, the next best option is for civil society to study and advocate for reform in institutions that are not adequately inclusive of multi-stakeholder participation. In conducting such analysis, questions to ask are: • Are the main barriers to participation institutional, or are they capacity issues on civil society’s part? Do they affect each of the phases of the institution’s work, or just one phase such as agenda setting or implementation? In each of these cases, the most appropriate remedies will differ.

• What reforms can be made to improve participation? Examples may include greater transparency, better support from the institution’s secretariat, new formal mechanisms for public consultation, or more streamlined procedures so that issues can receive adequate consideration before the window of time for taking effective action has closed.

90

See http://A2Knetwork.org/consumer-representation-information-society.

See http://infojustice.org/ 92 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/ 6rev1.html, para 72(i).

91

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• What coalitions and alliances can be formed to rally support for the reforms required? As noted below, there may be other actors who have interests in increasing multi-stakeholder participation in the institution concerned, and it is likely to be critical to rally their support. A good example of this is in the cooperation between governments and civil society in introducing a Development Agenda for WIPO. • Where will the funding come from to support this exercise? Advocating for the reform of a closed intergovernmental organisation can be a long, tiresome and expensive process. Securing public or private funding support will be important in the early phases of the reform campaign.

Finally, if institutional reform is not possible in the short term, it may still be that civil society can still influence the organisation at a lower, more informal level. According to scholar Duncan Matthews, NGOs do not, and should not, rely on the panacea of enhanced formal participation in multilateral institutions in the future. Rather, their work is more effective at the informal level, providing advice and technical expertise in order to improve the flow of information and inform the policy-making and norm-setting process.93

4.4 Strategic Alliances With Other Actors

As noted above, the support of other actors to advance the cause of multi-stakeholder Internet governance is imperative. In the face of opposition from reactionary stakeholders, it has not been civil society that has achieved the highest profile gains, it has largely been governments such as Brazil, with the presentation of its Principles on Governance and Use of the Internet in Vilnius,94 and India with its recommendations on IGF improvement at the CSTD.95 It will be particularly important for civil society to engage with IBSA, to offer advice on its recommendations before they are presented to the General Assembly, and to secure an acceptable place for civil society in whatever new governance arrangements those recommendations would create.

Intergovernmental allies are also important. Amongst these will certainly be the Council of Europe, which collaborated with civil society on the development of its documents on Internet governance,96 though to date has not yet attempted as Brazil did to propose these for adoption by the IGF at large.

Finally the private sector, although at large opposed to the fuller development of the IGF’s role, does have some members who have strongly supported civil society interests. Google is a sponsor of the International IP and the Public Interest programme mentioned above. The Computer and Communications Industry Association (CCIA) has spoken up at WIPO in favour of civil society proposals, and held joint events with civil society stakeholders such as the Trans Atlantic Consumer Dialogue (TACD).

Amongst the most appropriate joint working methods that civil society and its allies may adopt in a given case may include: 93

Duncan Matthews. IP-NGOs final report December 2006. 2006. url: http://www.ipngos.org/Report/IP-NG

Os\%20final\%20report\%20December\%202006.pdf, p. 31.

94

CGI.br. Principles for the Governance and Use of the Internet. 2009. url: http://www.cgi.br/english/regula

tions/resolution2009-003.htm.

95 Government of India. India’s Inputs to the Questionnaire circulated by the Chair of the CSTD Working Group on Improvements to Internet Governance containing broad elements of the final report. 2011. url: http://www.unctad. info/upload/CSTD-IGF/Contributions/M1/India.pdf.

96 Council of Europe. Code of good practice on information, participation and transparency in Internet governance.

2010. url: http://www.apc.org/en/system/files/COGP _ IG _ Version _ 1.1 _ June2010 _ EN.pdf; Council of Europe. Internet Governance Principles. 2011. url: http://www.coe.int/t/dghl/standardsetting/media-data protection/conf-internet-freedom/Internet\%20Governance\%20Principles.pdf.

������ �������: ��������� ��� ������� �� �����-�������������� • Joint capacity building seminars, such as IGF workshops and side-events at intergovernmental organisations such as WIPO. • Formal or informal consultation on documents, such as those put forward by IBSA and the Council of Europe.

• Providing advice and technical expertise to governments at the informal level, where formal participation alongside them in a particular institution is not possible.

• Requesting joint meetings to raise civil society concerns, either on a formal basis or simply in the corridors of institutions like CSTD and WIPO and at negotiations like the TPPA.

5

Conclusion

Many will understandably doubt that multi-stakeholderism is in decline at all. Certainly as a buzzword, it still has currency amongst all the stakeholder groups. Other than the Chinese group’s instrument on cyber-security, each of the Internet principles documents referred to in this paper includes reference to the importance of multistakeholder involvement in Internet governance. But when one compares the promise of multi-stakeholderism during the last decade with its reality today, civil society in particular is apt to feel short-changed.

It may have seemed to have been settled at WSIS that civil society would be afforded a position of equality in Internet governance arrangements alongside the other stakeholder groups, as had been the case in the WGIG and at the IGF. Yet today, civil society is fighting harder than ever to secure meaningful representation within UN bodies such as the CSTD’s Working Group, the consultations on enhanced cooperation, and the IGF MAG, as well as within other multilateral institutions and meetings such as the e-G8 and ACTA. This struggle will only continue over the coming years, as new intergovernmental bodies, such as those proposed by IBSA and the Chinese group, are given birth while the IGF struggles for relevancy.

Civil society has more to lose from the potential demise of multi-stakeholderism than governments, the private sector of the technical community, because in its absence we have less power than they do to fall back on. It is therefore incumbent upon civil society to take the lead in ensuring that the multi-stakeholder principle survives. As suggested in this paper, some of the steps that can be taken to this end are: • To interrupt the flurry of competing Internet principles documents being put forward by individual stakeholders in isolation, and instead work towards unifying that effort within the IGF. • To more efficiently and effectively target our available resources towards representing the public interest within institutions where multi-stakeholder input can already be received at a formal or informal level.

• In institutions that do not facilitate civil society representation, to identify and lobby for the necessary institutional reforms.

• To form and utilise mutually beneficial alliances with other actors where this can help to strengthen multi-stakeholder processes or our participation in those processes.

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Multi-stakeholderism is still a recent innovation in global governance, and it would be premature to announce its death. At the same time, it is not yet so firmly established that its survival is assured. Helping to arrest the decline of multi-stakeholderism may be the most important contribution that civil society can make to the Internet governance regime, now and for decades to come.

8 Public Interest Representation in the Information Society

Norbert Bollow

A������� As societies are transformed by the increasing use of digital information and communication technologies, this report gives an overview on the representation of consumer interests and other perspectives on the public interest in the decisionmaking processes that govern these developments. In particular, relevant governance fora and institutions are identified and the existing mechanisms for consumer representation and broader public interest representation in each are outlined. In some cases, institutional deficits are evident, so that reforms are needed to allow for more effective public interest representation. A system engineering perspective can provide insights on what will be helpful reforms. On the other hand, some of the alreadyavailable mechanisms for consumer representation are underutilised. Very often the lobbyists of large corporations hardly encounter any significant opposition at all when they influence the framing of various debates in such a way that it becomes practically impossible to reach a result that does not greatly favor their interests over the public interest. This report aims at providing a reasonably complete overview of these matters on the basis of the responses to a survey conducted among many civil society organizations in the fall of 2011, together with other relevant sources. An online Map of Internet Governance will allow to collaboratively expand on this information and keep it up-to-date in order to facilitate effective strategic planning.

1

Introduction and Overview

The term “information society” points out tremendous social and economic transformations of human society that are happening through information and communication technologies, with the Internet being a key driver. The main processes of public policy development in relation to these transformations are therefore all in some relation to the Internet, and they are therefore referred to (together with the more technical aspects of taking care of the Internet) as “Internet governance”.

A key starting point of this focus on Internet governance was the UN’s “World Summit on the Information Society” (WSIS) in Geneva (2003) and Tunis (2005).

The present report aims at summarizing the opportunities for consumer interest representation and broader public interest representation that exist in this context. As

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becomes clear when the concept of public interest representation is reflected about (see section 3.4 below), there is an important role that needs to be played by consumer representatives and other organized civil society groups, and it is important for the category of groups whose view should be considered in the context of public interest representation to be rather broad, but not so broad as to include representatives of commercial special interests. The Council of Europe’s Code of Good Practice for Civil Participation in the Decision-Making Process [CoE 2009] has a good characterization of the appropriate category of organizations, calling them “NGOs”: In relation to this Code of Good Practice for Civil Participation the term is taken to refer to organised civil society including voluntary groups, non-profit organisations, associations, foundations, charities, as well as geographic or interest-based community and advocacy groups. The core activities of NGOs are focused on values of social justice, human rights, democracy and the rule of law. In these areas the purpose of NGOs is to promote causes and improve the lives of people.

NGOs form a crucial component of participation in an open, democratic society through engaging large numbers of individuals. The fact that many of these individuals also are voters underlines the complementary relationship with representative democracy.

NGOs can bring benefits of knowledge and independent expertise to the process of decision making. This has led governments at all levels, from local and regional to national, as well as international institutions, to draw on the relevant experience and competence of NGOs to assist in policy development and implementation. NGOs enjoy a unique trust from their members and society to voice concerns, to represent their interests and to gain involvement in causes, thereby providing crucial input into policy development.

Unfortunately, in some governance institutions, the term “NGO” is used in a much broader sense which includes all non-governmental entities including industry lobby organizations. Since it is important to have a clear distinction between lobbyists for commercial interests and what e.g. the CoE means when it refers to NGOs, this report uses the term “Civil Society Organization” (CSO) for what the CoE calls an NGO.

How to strengthen civil society participation in Internet governance

Overall, there are two main paths that need to be pursued to strengthen civil society participation in Internet governance: Civil society participation needs to be increased, and it needs to become more effective. Often formal hurdles such as unreasonable difficulty of getting accredited are irritating, but not the main problem. Fundamental strategies for effective participation such as good preparation and coordination (in particular, exchange of strategic information) between the various civil society organizations need to be pursued more vigorously1 , see [Esterhuysen 2011a], [Schombe 2011] and [Esterhuysen 2011b]. It is also extremely important to work on increasing the confidence of national governments that effective multi-stakeholder policy development with strong CSO participation is possible, see [Malcolm 2012] (in this volume).

The survey

In order to gather information on what opportunities for public interest representation exist and how they are used, civil society organizations and other self-identified public interest representatives were requested to participate in a survey organized by the “Dynamic Working Coalition on Internet Governance Mapping”, a loose group 1 Source: In addition to the above-referenced mailing list postings, survey [DWC-IGM 2011], cells UO17, UO21, UO72, UO95, UO131, VU72.

������� ������: ������ �������� �������������� �� ��� ����������� ������� that has come together in the context of the 2011 meeting of the Internet Governance Forum (IGF) in Nairobi. The survey questions were designed by Jeremy Malcolm of Consumers International.

In total, 134 survey responses were received, and the data of the responses is available to anyone wishing to analyze it, see [DWC-IGM 2011]. There is significantly more information available there than what is used in this report.

One of the questions that was asked in the survey was: “What are the three biggest problems for civil society at large in coordinating its participation in institutions of governance in the information society?” The breakdown of responses is as follows2 : One survey respondent made the following suggestion:

Problem

Respondents

No coordinating framework or process

26

Poor communication between CSOs

30

Too many institutions to cover

20

Forum shifting to bypass CSOs

19

Disagreements within civil society

14

Decline of multi-stakeholderism

11

Lack of funding for participation

47

Other

5

Where we are participating and submitting reports etc, a repository of submissions on similar issues from similar organizations would be very valuable, saving a lot of time.3

Challenges in the area of funding are clearly a very significant obstacle that stands in the way of increasing civil society engagement in the various governance fora and institutions which are relevant to the development of information society. As was explained eloquently by a representative of a national civil society umbrella body in regard to question 26 in the survey about the reasons for not participating in further governance fora and institutions: CFC is an umbrella body within UK civil society. As such, despite our local deficiencies (that members feel keenly), we have a lot of expertise and experience that could with advantage be shared much more widely. I could have answered "too little time" throughout question 26, and that is the immediate barrier, but lack of funding is behind the lack of time.4

Many other respondents have expressed similar sentiments.5 Several survey respondents pointed out particular challenges that hinder the effective representation of non-Western perspectives, see section 3.6.

The mindmap on the preceding page gives an overview of the main points regarding obstacles to effective public interest representation.

2

Source: Survey [DWC-IGM 2011], columns VI to VP. As this was one of the last questions, the various incomplete survey responses contained no response to this question.

3

Source: Survey [DWC-IGM 2011], cell VU7.

4

Source: Survey [DWC-IGM 2011], cell UN17.

5

Source: Survey [DWC-IGM 2011], cells UO2, UO4, UO5, UO7, UO39, UO40, UO41, UO49, UO59, UO66, UO71, UO83, UO97, UO113, UO115, UO122, UO123, UO128, UO131.

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Relevant governance fora and institutions

This section has subsections for all the institutions which have in the following sense been identified in the survey as particularly relevant to information society. Among the completed survey responses6 , it was counted for each institution or category of institutions how many of the responding persons and organizations indicated that they were either engaging there or would have liked to engage there if they were able to do so. All those which were mentioned at least four times7 in one of these ways are considered particularly relevant to information society for the purposes of the present report.8 Furthermore, the survey also gave respondents the opportunity to mention others. This column was examined to check for any institutions that were mentioned multiple times. Universities were in fact mentioned many times, and are therefore included below.9

2.1 African Commission on Human and Peoples’ Rights (ACHPR) ACHPR is charged with ensuring the promotion and protection of human and peoples’ rights throughout the African Continent. Its responsibilities include interpreting the African Charter on Human and Peoples’ Rights and considering complaints of violations of the Charter.

In the survey, three respondents indicated that they have engaged with ACHPR and four further respondents expressed interest. Two of the latter provided a reason for not already engaging there, which was “too little money” in both cases.10 Mechanisms for consumer and broader public interest representation: The survey responses from respondents who indicate that they’re engaging with ACHPR do not mention any specific mechanisms for civil society engagement, nor any complaints about difficulties in engaging with ACHPR. This appears to lead to the conclusion that CSOs can engage directly with the Commission and that this works reasonably well.

2.2

AfriNIC

AfriNIC is the Regional Internet registry (RIR) for the African continent, i.e. the core activity is the allocation and registration of Internet number resources including in particular the allocation of blocks of IP (Internet Protocol) addresses.

In the survey, six respondents indicated that they have participated in AfriNIC 6 For this analysis, only fully completed survey responses were used, because some respondents had clearly started the survey several times, but completed it only once.

7 This essentially arbitrary cut-off was decided by examining the results and choosing the cut-off so that it would not result in essentially arbitrarily including one but excluding another among similar institutions.

For example, setting the cut-off at five would have excluded Mercusor (mentioned four times) but included all the other regional trade organizations.

8 ITAC and NTIA were however excluded from the list below, for the following reasons: ITAC had been included on the survey by mistake, because it is an advisory committee to OECD and not a separate governance institution. NTIA is a (US) national institution which therefore does not fit into the intended overview of international governance institutions.

9 (Otherwise APTLD was the only “other” institution that was mentioned more than once: It was mentioned twice, but one of the respondents mentioning APTLD was in fact a representative of APTLD, so that response should not be counted in determining whether APTLD should be included in a list of particularly important Internet governance fora.)

10

Source: Survey [DWC-IGM 2011], columns AM, QW and SS.

������� ������: ������ �������� �������������� �� ��� ����������� ������� policy discussions and three further respondents expressed interest.11 Mechanisms for consumer and broader public interest representation: Participation in the policy formulation and deliberation process is open to all stakeholders from the service region.

2.3 Anti-Counterfeiting Trade Agreement (ACTA)

ACTA is formally a plurilateral trade agreement. In actual reality it is however concerned with the enforcement of “intellectual property rights”. [Helfer 2004] has analyzed this kind of “regime shifting” strategy in detail. See also [Patriota 2012].

In the survey, six respondents indicated that they have engaged with regard to ACTA, and six further respondents expressed interest, most of them complaining about lack of openness to CSOs.12 Mechanisms for consumer and broader public interest representation: CSOs were generally intentionally excluded from any form of participation during the ACTA negotiations. (The US government however consulted with a significant number of major corporations about the planned treaty.13 ) If ACTA enters into force, it will create a new governance institution, the ACTA Committee. This committee will have the right (but no obligation) to “seek the advice of non-governmental persons or groups ”. In view of the fact that this decision would need to be taken by consensus, and in view of the history of ACTA, it appears unlikely that the advice of CSOs will be sought.

2.4

APNIC

APNIC is the Regional Internet registry (RIR) for the Asia-Pacific region, i.e. the core activity is the allocation and registration of Internet number resources including in particular the allocation of blocks of IP (Internet Protocol) addresses.

In the survey, eleven respondents indicated that they have participated in APNIC policy discussions and three further respondents expressed interest.14 Mechanisms for consumer and broader public interest representation: Participation in the policy formulation and deliberation process is open to all stakeholders from the service region.

2.5

ARIN

ARIN is the Regional Internet registry (RIR) for North America, i.e. the core activity is the allocation and registration of Internet number resources including in particular the allocation of blocks of IP (Internet Protocol) addresses.

In the survey, five respondents indicated that they have participated in ARIN policy discussions; no further respondents expressed interest.15 Mechanisms for consumer and broader public interest representation: Participation in the policy formulation and deliberation process is open to all stakeholders from the service region.

11

Source: Survey [DWC-IGM 2011], columns AO and QY.

12

Source: Survey [DWC-IGM 2011], columns AP and QZ.

13

Source: http://www.keionline.org/node/660, accessed 2011-12-17.

Source: Survey [DWC-IGM 2011], columns AQ and RA.

14 15

Source: Survey [DWC-IGM 2011], columns AR and RB.

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2.6 Asia-Pacific Economic Cooperation (APEC)

APEC is a forum for 21 countries in the Asia-Pacific Region, with the goal of promoting open trade and practical economic cooperation.

In the survey, three respondents indicated that they have participated in policy discussions in this forum, and seven further respondents expressed interest.16 Mechanisms for consumer and broader public interest representation: According to a survey response, participation is possible through various committees or subsidiary organs.17

2.7

Association of South East Asian Nations (ASEAN)

ASEAN is a geo-politic and economic organization of ten countries in Southeast Asia.

In the survey, five respondents indicated that they have participated in policy discussions in this forum, and one further respondent expressed interest.18 Mechanisms for consumer and broader public interest representation: There is a Consumer Council.19 Furthermore, the ASEAN Civil Society Conference (ACSC) is used by CSOs to exchange ideas and advance their inputs to ASEAN leaders and relevant policy-makers.20

2.8 Council of Europe (CoE)

The Council of Europe is an international organisation of 47 European countries, promoting co-operation in the areas of legal standards, human rights, democratic development, the rule of law and culture. (The CoE is an entirely separate body from the EU which has only 27 member states.)

The CoE’s influence extends beyond Europe. One survey respondent from Singapore noted: The CoE and EU have come up with many sensible rules re IG. So attending the meetings would be getting a front row seat.

21

In the survey, eleven respondents indicated that they have participated in policy discussions in this forum, and eight further respondents expressed interest.22 Mechanisms for consumer and broader public interest representation: CoE’s mechanisms for civil society participation appear to be exemplary in several ways: The “Conference of INGOs” (in which around 400 CSOs have “participatory status”) is given an important-sounding designation by calling it the “4th pillar of the Council of Europe”, and it has corresponding rights to be taken seriously by the other CoE institutions: All other Council of Europe institutions co-operate with the Conference of INGOs. NGOs may address memoranda to the Secretary General or the Commissioner for Human Rights, 16

Source: Survey [DWC-IGM 2011], columns AS and RC.

17

Source: Survey [DWC-IGM 2011], cell GG4.

18

Source: Survey [DWC-IGM 2011], columns AT and RD.

19

Source: Survey [DWC-IGM 2011], cell GH11.

20

Source: http://www.aseancivilsociety.net/en/asean-and-civil-society-engagement/backgroundon-acsc, accessed 2011-12-18.

21

Source: Survey [DWC-IGM 2011], cell UN58.

22

Source: Survey [DWC-IGM 2011], columns AU and RE.

������� ������: ������ �������� �������������� �� ��� ����������� ������� provide expert advice on policies and programmes in their field of action, make oral and written statements to the Parliamentary Assembly’s Committees, attend public sittings of the Congress, and participate in seminars, conferences, colloquies. They also played an important role in the preparation of numerous conventions and charters, including the Convention on the Legal Status of Migrant Workers, the Convention for the Prevention of Torture, and the European Cultural Convention.23

It is also possible for CSOs to directly join CoE working groups as observers, for example EDRi’s representative describes this experience as follows: Through its experience as an observer to both CoE CAHSI and MC-S-IS groups of specialists since 2005, EDRI, while far from entirely satisfied by the group outcomes, may attest that documents (Recommendations, Declarations or Guidelines) on Human Rights in the Information Society, eventually submitted for adoption to the CoE Committee of Ministers, have successfully been deeply modified from initial draft versions which, in many other fora, would have left little expectations to digital rights defenders.24

CoE has adopted a noteworthy Code of Good Practice for Civil Participation in the Decision-Making Process [CoE 2009].

2.9 Corporation for National Research Initiatives (CNRI)

CNRI is a not-for-profit organization that develops in particular a “Handle System” for managing and locating digital information.

In the survey, three respondents indicated that they have participated in policy discussions in this forum, and five further respondents expressed interest.25 Mechanisms for consumer and broader public interest representation: The survey responses from respondents who indicate that they’re engaging with ACHPR do not mention any specific mechanisms for civil society engagement,26 nor are there any complaints about difficulties in engaging with CNRI27 . This appears to lead to the conclusion that CSOs can participate directly in CNRI and that this works reasonably well.

2.10 European Patent Office (EPO)

EPO is an organ of the European Patent Organisation (EPOrg), a treaty-based international organization that includes the EU member states and several further European countries. EPO has the power to issue patents on behalf of all member countries of the European Patent Convention.

In practice EPO has grabbed the power to essentially unilaterally decide to extend the scope of patentability for all member countries of the European Patent Convention.

In the survey, one respondent (an individual in Germany where the EPO is located) indicated that he or she has participated in policy discussions within this institution, and five further respondents expressed interest.28 Mechanisms for consumer and broader public interest representation: 23 Source: http://www.coe.int/lportal/web/coe-portal/what-we-do/democracy/civil-society, accessed 20111218.

24 Source: http://www.edri.org/book/export/html/1158, accessed 20111218.

25 Source: Survey [DWC-IGM 2011], columns AV and RF. 26

Source: Survey [DWC-IGM 2011], column GJ (which is empty).

27

Source: Survey [DWC-IGM 2011], column TB (which does not include “not open to CSOs” among the various reasons that were given.)

28

Source: Survey [DWC-IGM 2011], columns AV and RF.

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Among information society governance institutions, the European Patent Office is one of the very few that are sadly completely closed to effective CSO engagement.

2.11

European Union (EU)

The EU is an economic and political union of 27 member states.

The EU’s influence extends beyond Europe. One survey respondent from Singapore noted: The CoE and EU have come up with many sensible rules re IG. So attending the meetings would be getting a front row seat.29

In the survey, 22 respondents indicated that they participated in EU policy discussions, and five further respondents expressed interest.30 Mechanisms for consumer and broader public interest representation: See [McNamee et al 2012].

2.12

G8

The G8 is a group of 8 powerful industrial nations. Recently, the group has become active in the Internet governance arena. [Malcolm 2012] observes: In 2009, European Commission Vice-President Vivian Reding had called for the establishment of a “G-12 for Internet Governance,” being “a multilateral forum available for governments to discuss general internet governance policy issues.” She got her wish in 2011, when the G8 under the Presidency of French President Nicolas Sarkozy, convened an invitation-only e-G8 Forum in Deauville, from which civil society was largely excluded.

The meeting notionally provided non-governmental delegates an opportunity to contribute their views to the formal G8 summit (though in fact the Deauville Declaration eventually issued at the summit had been drafted beforehand).

According to one commentator who was present, Sarkozy “sees the role of the e-G8 very much in the same context as the national CNN (Conseil National du Numérique, composed only of business): create a space for business and states to start a conversation, but not a real advisory body and not multi-stakeholder.”

In the survey, three respondents indicated that they engaged with the G8, and six further respondents expressed interest.31 Mechanisms for consumer and broader public interest representation: As noted above, there are intentionally no direct mechanisms for civil society participation. Indirect participation by means of lobbying one of the participating governments is of course always a possibility.32 From a public interest representation perspective, the need for reforms is quite obvious. Not only must civil society be welcomed to participate in the discussions, but the perspectives of developing countries need to be taken into consideration also.

Possibly the only way to exert pressure to end the unacceptable situation may be through democratic processes in G8 member countries.

However even though it is quite unpalatable from a public interest representation perspective, the motivation behind the formation of groups like the G8 and G20 (see 29

Source: Survey [DWC-IGM 2011], cell UN58.

30

Source: Survey [DWC-IGM 2011], columns BA and RK.

31

Source: Survey [DWC-IGM 2011], columns BB and RL.

32

Source: Survey [DWC-IGM 2011], cells TE11, UN11.

������� ������: ������ �������� �������������� �� ��� ����������� ������� below) can be quite easily understood because it is clearly desirable to have the ability to reach coordinated policy decisions, and reach them quickly.

Therefore, it is probably not realistic to expect this kind of bothersome fora and their influence to go away before better governance institutions have been established that allow to reach good decisions (i.e. public-interest-acceptable decisions in the sense of section 3.4 below) reasonably quickly.

2.13

G20

2.14

IEEE

Not unlike the G8 in its basic idea, the G20 is a group of finance ministers and central bank governors from 20 major economies. In view of the steadily increasing importance of the G20 in world politics, it is likely for the influence of the G20 to eventually extent into some areas of Internet governance, in particular internet-based payment systems.

In the survey, two respondents indicated that they engaged with the G20, and two further respondents expressed interest.33 With regard to the lack of openness to civil society participation and lack of openness to the participation of non-member countries, the G20 shares the problems of the G8, see above.

IEEE is a professional association for technical engineering and a standards development organization. The latter area of IEEE is more precisely referred to as IEEE-SA (IEEE Standards Association.)

In the survey, four respondents indicated that they participated in IEEE, and two further respondents expressed interest.34 Mechanisms for consumer and broader public interest representation: CSOs can become members of IEEE-SA. For a CSO, a basic membership costs US$1250/year.35 While the membership fees of IEEE-SA are reasonable in the context of business participants, it is not reasonable that CSOs are charged similar fees.

Even so, short of full membership, there are still avenues for CSOs to participate in the standards development processes of the IEEE. For further information, see the paper by Paul Sweazey in this volume.

2.15

IETF

IETF develops the fundamental technical standards of the Internet.

In the survey, twelve respondents indicated that they participated in IEEE, and two further respondents expressed interest.36 Mechanisms for consumer and broader public interest representation: In IETF, anyone (including CSOs) can fully participate. There are no restrictions, but in-depth technical understanding is needed to participate effectively.37 33

Source: Survey [DWC-IGM 2011], columns AY and RI.

34

Source: Survey [DWC-IGM 2011], columns BC and RM.

35

Source: http://standards.ieee.org/membership/. Accessed 2011-12-18.

Source: Survey [DWC-IGM 2011], columns BD and RN.

36 37

Source: The author’s personal knowledge and experience.

189

190

2.16

��������� �� ��� ����������� �������

International Telecommunications Union (ITU)

ITU can be described as an international public-private partnership with a highly technical focus, including in particular the development of technical standards: ITU was founded in 1865 as an intergovernmental organization, and it became a UN specialized agency in 1947. Besides the member states, there are also “sector members”. These are businesses and technical organizations with an interest in the development of telecommunications technologies, networks and services.

In the survey, 19 respondents indicated that they participated in ITU, and eight further respondents expressed interest.38 Mechanisms for consumer and broader public interest representation: Although a number of survey respondents indicated participation in ITU activities through various channels, such as the “Dynamic Coalition on Internet and Climate Change (DCICC)”39 , standards development40 , a “High Level Experts Group”41 and WSIS Forum42 , generally speaking, ITU is not very open to CSOs. Many survey respondents characterized ITU as “Not open to CSOs”. While ITU recognizes the importance of the involvement of the private sector and of the technical community, the importance of public interest advocacy is not recognized. [Malcolm 2012] observes: The intergovernmental forum in which governments disenamoured of the multi-stakeholder model have most loudly voiced their views is the ITU. The ITU formed a government-only working group in 2007 to review whether any reforms to its own structure were required in order to bring it into compliance with the multi-stakeholder standard set at WSIS. Although ITU membership and meetings are almost completely closed to civil society, the review concluded in 2009 that no changes were needed.

At its plenipotentiary conference in 2010, renewed calls were made by some delegates for the ITU “to take on itself a leading role in internet governance ” though as with earlier similar efforts to these failed. However at the same meeting the ITU did confirm that its Dedicated Group on international Internet-related public policy issues would be maintained as a body “limited to member states, with open consultation to all stakeholders.”

One survey respondent commented: The main issue we encounter is corruption within the ITU and national governments. Incumbent telecommunications carriers typically have very large budgets dedicated to protecting their monopoly status, and these budgets are typically used, as a first resort, to excluding open participation and closing decision-making processes to competitors, the public, and journalistic scrutiny.

This is the largest problem we face, generally.43

See section 3.1 for a discussion of the form of corruption that is probably meant here.

ITU would obviously need to fundamentally change its attitude towards CSOs before it could be considered acceptable for ITU to take on a leading role in Internet Governance. There are unfortunately no indications that such a change might be politically feasible. It is probably much more feasible to strengthen instead the role of other fora which are more open to CSO participation, such as for example CSTD, see section 2.36.

38

Source: Survey [DWC-IGM 2011], columns BF and RP.

39

Source: Survey [DWC-IGM 2011], cell GT3.

40

Source: Survey [DWC-IGM 2011], cell GT21.

41

Source: Survey [DWC-IGM 2011], cell GT70. Presumably the High Level experts Group on Cybersecurity is meant, see http://www.itu.int/osg/csd/cybersecurity/gca/hleg/.

42 Source: Survey [DWC-IGM 2011], cell GT130.

43

Source: Survey [DWC-IGM 2011], cell UO34.

2.17

������� ������: ������ �������� �������������� �� ��� ����������� �������

Internet Assigned Numbering Authority (IANA)

IANA executes some technical administrative functions on behalf of IETF and ICANN. In the survey, ten respondents indicated that they participated in IANA, and two further respondents expressed interest.44 Mechanisms for consumer and broader public interest representation: Since IANA’s task is the execution of policy decisions of IETF and ICANN, it is the policy development processes of IETF and ICANN where public interest representation is needed.

2.18

Internet Corporation for Assigned Names and Numbers (ICANN)

ICANN is responsible, at the overall level, for the administration of three sets of unique identifier systems for the internet: domain names, numerical internet protocol (IP) addresses, and a third type that serves to identify so-called port and parameter numbers.45 In the survey, 33 respondents indicated that they participated in ICANN, and eight further respondents expressed interest.46 Mechanisms for consumer and broader public interest representation:

Besides public comment processes on policy proposals, ICANN has two channels through which CSOs can participate in the “bottom-up policy development process”: the Noncommercial Users Constituency http://ncdnhc.org/ (NCUC) and the At Large Community http://www.atlarge.icann.org/ with the At-Large Advisory Committee (ALAC). See [Hofmann 2007] for further details.

2.19

Internet Governance Forum - global (IGF)

The Internet Governance Forum has been set up as an annual conference under the auspices of the United Nations, to provide "a transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organisations, in their respective roles" for dialogue on Internet Governance policy.47 One survey respondent noted: Internet Governance Forum IGF constitutes the most important and independent arena for global discussion. Considering its global scope, IGF can promote ICT for development as stated in WSIS and Millennium Declaration of 2000.48

In the survey, 49 respondents indicated that they participated in the global IGF, and ten further respondents expressed interest.49 (These relatively big number reflect a high level of interest in the IGF, but they are undoubtedly also caused in part by the fact that an IGF-related mailing list was one of the means through which participation in the survey had been requested.)

Mechanisms for consumer and broader public interest representation: 44

Source: Survey [DWC-IGM 2011], columns BG and RQ.

45

Source: [Hofmann 2007], an article which provides a good overview of ICANN related issues.

46

Source: Survey [DWC-IGM 2011], columns BH and RR.

47

Source: http://igfwatch.org/igf Source: Survey [DWC-IGM 2011], cell UN107.

48 49

Source: Survey [DWC-IGM 2011], columns BI and RS.

191

192

��������� �� ��� ����������� �������

Participation is effectively unrestricted. The IGF is a key example and test-case for the value of multi-stakeholder governance in which CSOs can fully participate, see [Malcolm 2008]. Unfortunately no effective mechanism has yet been established through which the IGF would issue recommendations (as was originally foreseen in the Tunis Agenda, on the basis of which the IGF was established) that would effectively influence the various decision-making governance processes, see [Malcolm 2012].

The Civil Society Internet Governance Caucus (IGC) is an important coordination body for CSO participation in the IGF.

2.20

Internet Governance Forum – regional/national

2.21

Internet Society (ISOC)

There is a number of IGF-like fora with smaller, regional or national scope.

In the survey, 28 respondents indicated that they participated in regional or national IGFs, and eleven further respondents expressed interest.50

ISOC is a global association that participates actively in Internet policy development processes and which has some governance roles in regard to IETF. In the survey, 37 respondents indicated that they participated in ISOC, and 15 further respondents expressed interest.51 Mechanisms for consumer and broader public interest representation: Just like everyone else, CSO representatives can freely engage within ISOC.

2.22 International Organization for Standardization (ISO)

ISO is perhaps best described as a worldwide cartel of national standardization organizations.52 ISO develops standards on a broad range of topics, and it also provides ways in which specifications from other sources, e.g. industry consortia, can be accepted as international standards. ISO standards are recognized by WTO in the sense that it is allowed to reference ISO standards in national regulations and in government procurement.

In the survey, eight respondents indicated that they participated in ISO, and three further respondents expressed interest.53 Mechanisms for consumer and broader public interest representation: Fundamentally, public interest representatives need to engage in the various standardization committees and working groups. There is one committee named “Committee on consumer policy” (COPOLCO) which “selects areas in ISO’s work that are of priority interest to consumers and then coordinates participation by consumer representatives in these areas.”54 While ISO provides “liason” mechanisms through which industry consortia and CSOs of broader than national scope can participate without being charged membership fees, smaller CSOs can participate only via the national member bodies of ISO, many of which will inappropriately charge them membership fees as if the CSOs were profit-oriented companies.

50

Source: Survey [DWC-IGM 2011], columns BJ and RT.

51

Source: Survey [DWC-IGM 2011], columns BK and RU.

52

Source: The author’s personal knowledge and experience.

53

Source: Survey [DWC-IGM 2011], columns BM and RW.

54

Source: http://www.iso.org/sites/ConsumersStandards/en/Copolco.htm, accessed 2011-12-19.

2.23

������� ������: ������ �������� �������������� �� ��� ����������� �������

LACNIC

LACNIC is the Regional Internet registry (RIR) for the Latin America and Caribbean region, i.e. the core activity is the allocation and registration of Internet number resources including in particular the allocation of blocks of IP (Internet Protocol) addresses.

In the survey, seven respondents indicated that they have participated in LACNIC policy discussions and six further respondents expressed interest.55 Mechanisms for consumer and broader public interest representation: Participation in the policy formulation and deliberation process is open to all stakeholders from the service region.

2.24

Mercosur

Mercosur is an economic and political agreement among Argentina, Brazil, Paraguay and Uruguay.

One survey respondent notes: Mercosur... can act as a bridge and a forum to comprehend discussions and decisions about the Internet in Latin America considering normative aspects to guarantee technology diffusion.56

In the survey, one respondent indicated engagement with Mercosur, and three further respondents expressed interest.57 Mechanisms for consumer and broader public interest representation: Survey respondents criticize Mercosur for not being open to CSOs.58

2.25

National governments

While they are clearly the most important kind of governance institution for information society topics, the specifics obviously vary from country to country. Often the answer to question of whether reasonably good mechanisms for consumer and broader public interest representation exist will also vary for different government institutions.59 [Patriota 2012] notes: Many IP-dependent corporations strongly influence policy formulation within their home governments.

This has the obvious consequence for international negotiations that unless this corporate influence on national policy formulation is significantly reduced first, international agreements on information society topics will generally be designed to further the interests of these “IP-dependent corporations”, simply because it is otherwise nearimpossible to reach international consensus.

An encouraging exception to this pattern has however been accomplished in the Convention on the Rights of Persons with Disabilities, where in the words of the then 55

Source: Survey [DWC-IGM 2011], columns BN and RX.

56

Source: Survey [DWC-IGM 2011], cell UN107.

57

Source: Survey [DWC-IGM 2011], columns BO and RY.

58

Source: Survey [DWC-IGM 2011], cells TU64, TU107.

59

Source: Survey [DWC-IGM 2011], various columns.

193

194

��������� �� ��� ����������� �������

UN High Commissioner for Human Rights, Ms. Louise Arbour, “the disabilities movement proved able – in every sense of the word – to fight inertia, indifference and often open resistance.”60 Clearly a key enabler to this success was the ability of the disability movement to effectively engage with governments both in the relevant international forum as well as locally at the national level. There is no reason why other kinds of CSOs would not be able to employ a similar strategy. In particular the consumer movement is well positioned to engage both in international fora and at the national level, while building alliances and working together with other CSOs whenever that is possible.

In the survey, 38 respondents indicated engagement with various national governments, and eight further respondents expressed interest.61

2.26

National or regional IPv6 taskforce

2.27

Organisation for Economic Cooperation and Development (OECD)

Again the specifics vary.

In the survey, 14 respondents indicated engagement with national or regional IPv6 taskforces, and six further respondents expressed interest.62

OECD is like a permanent conference of its 34 member states, most of them industrialized nations. OECD’s stated goal is “to promote policies that will improve the economic and social well-being of people around the world.”63 In the survey, 17 respondents indicated engagement with national or regional OECD taskforces, and seven further respondents expressed interest.64

Mechanisms for consumer and broader public interest representation: OECD has two formally recognized advisory committees, namely the Business and Industry Advisory Committee to the OECD, and the Trade Union Advisory Committee (TUAC).

There is also a broader Civil Society Information Society Advisory Council http: //csisac.org/ (CSISAC). Many survey respondents have indicated that they are engaging with OECD through CSISAC. Unfortunately, OECD’s lack of formal recognition of CSISAC corresponds to a lack of giving the views of CSISAC adequate weight on substantive matters. [Malcolm 2012] notes: Since 2008, the OECD’s Committee for Information, Computer and Communication Policy (CICCP), which is attached to the intergovernmental OECD Council, has taken advice from a Civil Society Information Society Advisory Council (CSISAC). It stands alongside two similar advisory committees for the business and technical communities.

In June 2011, the CICCP endeavoured to reach agreement between the Council and its advisory committees on a Communiqué on Principles for Internet Policy-Making. Although the communiqué expressed support for multi-stakeholder co-operation in policy development processes, and contained a number of other provisions to which CSISAC had contributed and with which it agreed, in the end CSISAC chose not to endorse it on the grounds that 60

Source: [OHCHR 2008], page 47.

61

Source: Survey [DWC-IGM 2011], columns BP, CI and RZ.

62

Source: Survey [DWC-IGM 2011], columns BQ and SA.

Source: http://www.oecd.org/pages/0,3417,en_36734052_36734103_1_1_1_1_1,00.html. Accessed 2011-12-17.

64 Source: Survey [DWC-IGM 2011], columns BS and SC. 63

������� ������: ������ �������� �������������� �� ��� ����������� ������� several of these principles are not compatible with CSISAC core values including respect for fundamental human rights and freedoms and, the rule of law, promotion of access to knowledge, promotion of open standards, Net Neutrality and balanced intellectual property policies and regimes. [...] if consensus could not be reached between civil society and the other stakeholders, a full commitment to the multi- stakeholder process would have seen the OECD retracting its communiqué of principles altogether, or at the very least honestly acknowledging that those principles did not represent the views of all of the stakeholders consulted. But in fact, the withdrawal of civil society from endorsement of the communiqué has been treated as an inconvenient fact to be quietly ignored.

From the perspective of public interest representation, it is clear OECD should correct its stance in regard to these matters.

2.28

Organization of American States (OAS)

OAS is a regional international organization, headquartered in Washington D.C. (USA). All countries of North America, South America, Central America and the Caribbean are members of AOS. In the survey, three respondents indicated engagement with OAS, and two further respondents expressed interest.65 Mechanisms for consumer and broader public interest representation: See the Manual for Civil Society Participation in OAS Activities, available at http: //www.oas.org/en/ser/dia/civil_society/manual.shtml.

2.29 RIPE NCC

RIPE NCC is the Regional Internet registry (RIR) for Europe, i.e. the core activity is the allocation and registration of Internet number resources including in particular the allocation of blocks of IP (Internet Protocol) addresses.

In the survey, eight respondents indicated that they have participated in RIPE NCC policy discussions and one further respondent expressed interest.66 Mechanisms for consumer and broader public interest representation: Participation in the policy formulation and deliberation process is open to all stakeholders from the service region.

2.30 South Asian Association for Regional Cooperation (SAARC) SAARC is an organization of eight South Asian countries.

In the survey, three respondents indicated engagement with SAARC, and three further respondents expressed interest.67

Mechanisms for consumer and broader public interest representation: One survey respondent criticizes SAARC for not being open to CSOs.68 Nevertheless, CSOs apparantly have had some success in organizing themselves as the “Peoples’ SAARC” and thereby communicating jointly.69 65

Source: Survey [DWC-IGM 2011], columns BT and SD.

66

Source: Survey [DWC-IGM 2011], columns BU and SE.

67

Source: Survey [DWC-IGM 2011], columns BV and SF.

68

Source: Survey [DWC-IGM 2011], cell UB44.

69

Source: http://www.peoplesaarc.org/, accessed 2011-12-19.

195

196

2.31

��������� �� ��� ����������� �������

Transatlantic Economic Council (TEC)

TEC is a body for economic cooperation between US and EU. One survey respondent asserts that in this forum, there is an “opportunity to use American drive for Internet Freedom”.70 In the survey, two respondents indicated engagement with TEC, and four further respondents expressed interest.71 Mechanisms for consumer and broader public interest representation: Survey respondents criticize TEC for not being open to CSOs.72 The TEC however has an Advisory Council, of which the Trans-Atlantic Consumer Dialogue (TACD), a forum of US and EU consumer organisations, is a member. The other members are the Transatlantic Business Dialogue and the Transatlantic Legislators Dialogue. TACD has provided input to the TEC prior to each of its meetings by means of letters and recommendations.

2.32 UN Office of the High Commissioner for Human Rights (OHCHR) In the survey, three respondents indicated engagement with OHCHR, and nine further respondents expressed interest.73

Mechanisms for consumer and broader public interest representation: The opportunities for CSO participation that are provided by the UN Human Rights Programme (for which the UN Office of the High Commissioner for Human Rights is formally responsible) are very significant74 but seriously underutilized in the Internet Governance context. In the survey, only three respondents indicated that they were engaging there: An individual from the Netherlands is engaging on the topics of freedom of expression, copyright and privacy with the Special Rapporteur on the right to freedom of opinion and expression75 . The other survey respondents who are engaging with the UN Office of the High Commissioner for Human Rights are the Article 19 Global Campaign for Free Expression76 and the Association for Progressive Communications (APC)77 . All three have indicated that they were able to influence the agenda, i.e. which are the issues under discussion78 . By contrast, nine respondents indicated 70

Source: Survey [DWC-IGM 2011], cell UN72.

71

Source: Survey [DWC-IGM 2011], columns BW and SG.

72

Source: Survey [DWC-IGM 2011], cells UC29, UC72.

73

Source: Survey [DWC-IGM 2011], columns CA and SK.

74 As evidence for this consider for example the Convention on the Rights of Persons with Disabilities, about which [OHCHR 2008] says the following on page 47: “In December 2006, the General Assembly adopted the Convention on the Rights of Persons with Disabilities and its Optional Protocol. Civil society, in particular persons with disabilities and their representative organizations, played a vital role at every stage in the lead-up to the adoption of these instruments. Representatives of civil society participated in the negotiations of the texts and are now active in promoting their ratification by States. The Convention on the Rights of Persons with Disabilities was negotiated from 2002 to 2006, making it the fastest negotiated human rights treaty. On the occasion of its adoption, the then High Commissioner, Ms. Louise Arbour, noted the unprecedented collaboration between States, the United Nations, civil society and NHRIs in the drafting of this new treaty, stating: I want to... pay tribute to the disabilities community that provided the unwavering impetus for this momentous occasion. Their role was a transformative one. More so than by any declaration or statement, the disabilities movement proved able – in every sense of the word – to fight inertia, indifference and often open resistance, in order to achieve, by the force of the law, their legitimate aspiration for equality and justice.”

75

Source: Survey [DWC-IGM 2011], cells F74, W74, CA74, OU74.

76

Source: Survey [DWC-IGM 2011], cells H114, CA114.

77

Source: Survey [DWC-IGM 2011], cells H133, CA133.

78

Sources: Survey [DWC-IGM 2011], cells QP74, QP114; APC’s press release [APC 2011].

������� ������: ������ �������� �������������� �� ��� ����������� ������� interest in participation79 , with the breakdown of reasons for not engaging there yet as follows: 3x “too little time”, 2x “too little expertise”, 1x “too little money”, 1x “not open to CSOs”80 . (In view of the clearly good opportunities for CSO engagement, the last of these responses should probably be interpreted as lack of awareness of the opportunities.)

The Universal Periodic Review (UPR) process: One particularly interesting opportunity for public interest advocacy is the process by means of the human rights situation in all UN member states is reviewed every four years. CSOs can submit information which “can be added” to the “other stakeholders” report that is considered during the review. ECOSOC-accredited CSOs (for details about that see [ECOSOC 2009]) can attend the UPR Working Group sessions as observers and they can make statements at the regular session of the Human Rights Council when the outcome of the State reviews are considered.81 There are many further opportunities for participation through written and oral reports and statements in the various commissions, working groups and human rights treaty bodies, see [OHCHR 2008].

2.33

UNESCO

UNESCO is the United Nations Educational, Scientific, and Cultural Organisation.

In view of this broad remit, many information society topics are necessarily touched upon. For further details see [Siochrú 2007b]. One survey response captures a particular area that among international internet governance institutions, appears to be addressed practically exclusively by UNESCO: UNESCO can put into practice the global effort to access and use of the Internet. It constitutes the principal arena to guarantee cultural participation, cultural diversity and record of historical heritage including languages in danger of extinction.82

In the survey, fourteen respondents indicated engagement with UNESCO, and fourteen further respondents expressed interest.83 Mechanisms for consumer and broader public interest representation: [Siochrú 2007b] notes: Over the years, UNESCO has developed (and occasionally reviewed and amended) an elaborate system of NGO participation – some say at times too elaborate – and General Conference Directives of 1995 and 2001 govern the current situation. Relations can be of two kinds, formal or operational, depending on the role and structure of the NGO concerned and their record on cooperation.

At present UNESCO maintains official relations with 337 international NGOs and 26 foundations. Of these, about 15% are based in developing countries, just a handful in the least developed.

Nevertheless, several survey respondents asserted that UNESCO is“not open to CSOs.”84 So it appears that there is definitely room for improvement, at least with regard to publicizing the opportunities for CSO engagement.

79

Source: Survey [DWC-IGM 2011], column SK.

80

Source: Survey [DWC-IGM 2011], column UG.

81

Source: http://www.ohchr.org/EN/HRBodies/UPR/Pages/NgosNhris.aspx. Accessed 2011-12-12.

Source: Survey [DWC-IGM 2011], cell UN107.

82 83

Source: Survey [DWC-IGM 2011], columns CB and SL.

84

Source: Survey [DWC-IGM 2011], cell UH11, UH64, UH107.

197

198

2.34

��������� �� ��� ����������� �������

United Nations Conference on Trade and Development (UNCTAD)

UNCTAD is the principal organ of the UN General Assembly dealing with trade, investment, and development issues. In particular it is the UN body that is responsible for consumer protection and competition, two topic areas which are highly important in the Internet governance context.

UNCTAD is further linked to the UN’s Internet governance activities via the Commission on Science and Technology for Development (CSTD), which is a commission of ECOSOC (see section 2.36 below): According to their website, UNCTAD is “responsible for the substantive servicing of the Commission”.85 This seems to mean that the secretariat for CSTD is provided by UNCTAD, the reason for this presumably being the need to ensure that CSTD is organized to appropriately to address the particular needs of developing countries, similar to how UNCTAD itself grew from the view that the institutions dealing with economic development which existed at the time (UCTAD was established in 1964), such as GATT, the International Monetary Fund (IMF) and the World Bank were not properly organized to handle the particular problems of developing countries.86 In the survey, six respondents indicated engagement with UNCTAD, and five further respondents expressed interest.

Mechanisms for consumer and broader public interest representation:Every four years, there is a major UNCTAD conference. The next of these, UNCTAD XIII, will be held 21–26 April 2012 in Qatar on the theme "Development-centred globalization: Towards inclusive and sustainable growth and development". CSOs have opportunities to contribute to the preparatory process and to provide inputs to the pre-conference negotiating text. In addition, a Civil Society Forum will be organized as part of the official programme of the Conference.87

2.35 United Nations Development Programme (UNDP)

[Siochrú 2007a] (which is also a good source for further details about UNDP) gives the following overview: With a staff of almost 5,000, it has national offices in 166 countries.

The UNDP has dual role at the national level. On the one hand, within the context of its mandate, it provides expert advice, training, and grant support to developing countries to help achieve a range of national and international goals, such as most notably the Millennium Development Goals (MDGs). In this context, it is often regarded as the largest single source of development funding and government technical assistance within the UN system. On the other hand, it supports the coordination of UN activities at the national level through the Resident Coordinator system, which it manages, working closely with the government, agencies and other development partners.

One survey response notes about UNDP: It can provide macroscopic analyses of political-economic factors that constrain the Internet diffusion. It focuses on the Internet’s implications in strategic domains to achieve MDGs.88 85

Source: http://www.unctad.org/Templates/Startpage.asp?intItemID=4839. Accessed 2011-12-12.

Source: http://en.wikipedia.org/wiki/United_Nations_Conference_on_Trade_and_Development.

Accessed 2011-12-12.

87 Source: http://www.unctad.org/Templates/Page.asp?intItemID=6186. Accessed 2011-12-20.

88 Source: Survey [DWC-IGM 2011], cell UN107.

86

������� ������: ������ �������� �������������� �� ��� ����������� ������� In the survey, thirteen respondents indicated engagement with UNDP, and eleven further respondents expressed interest.89 Mechanisms for consumer and broader public interest representation: Opportunities for civil society engagement are available through the CSO (Civil Society Organisation) Division and the CSO Advisory Committee.

In the survey, respondents answered the question about whether there a formal mechanism for you to speak and/or to submit documents directly to members of the institution with “no”, in striking contrast to the responses for the other developmentoriented UN institution UNCTAD where the corresponding answers were “yes”.90

2.36

United Nations Economic and Social Council (ECOSOC) and Commission on Science and Technology for Development (CSTD)

The Economic and Social Council (ECOSOC) of the United Nations is one of the principal organs of the United Nations.

In regard to Internet Governance, its primarily relevant sub-body is the Commission on Science and Technology for Development (CSTD), which is inter alia responsible for many follow-up activities to WSIS, the World Summit on Information Society (see section 1). CSTD is also connected to UNCTAD, see section 2.34.

Seven respondents indicated engagement with ECOSOC, and eleven further respondents expressed interest.91 Mechanisms for consumer and broader public interest representation: The rules for CSO participation in CSTD have been criticized as being unreasonably burdensome for CSOs who did not already participate in WSIS (even if it is not very difficult to apply for “ECOSOC consultative status” and be approved, filling in the 4-yearly reports is a lot of work – and if you don’t, then you lose this status92 ).

These institutional shortcomings are however not what primarily prevents a more effective role of civil society in CSTD. In particular, they don’t block civil society participation in any significant way. Civil society needs to increase participation, and the civil society representatives needs to prepare themselves better and coordinate better with each other.93 This will have several important benefits: One one hand it is an important opportunity to build momentum for the movement of CSOs as a whole. On the other hand, this strategy can contribute to strengthening the role of CSTD relative to governance institutions which are much less accepting of civil society including in particular the ITU, see section 2.16 and [Malcolm 2012].

In addition, as one survey respondent noted, within CSTD there is at least potentially an opportunity to shape future of IGF, so that it become even more relevant and useful.94 89

Source: Survey [DWC-IGM 2011], columns BY and SI.

90

Source: Survey [DWC-IGM 2011], columns MM to MP.

91

Source: Survey [DWC-IGM 2011], columns BX, BZ, SH and SJ.

92

Source: [Esterhuysen 2011a].

93

Source: [Esterhuysen 2011a], [Schombe 2011], [Esterhuysen 2011b].

94

Source: Survey [DWC-IGM 2011], cell UN72.

199

200

2.37

��������� �� ��� ����������� �������

Universities

At least when governance systems are considered from a long-term perspective, the role of universities is absolutely central. Governance debates are to a large extent based on what the participants in the debates have learned while studying at university.

Moreover, within debates, statements by university professors usually have great weight on the basis of the assumption that the professor has very profound understanding and that the statement will be as objective as possible and independent of particular interests.

The latter part of this assumption is however not necessarily true. For example, when the Swiss vote on approval or rejection of Microsoft’s OOXML document format as an international ISO/IEC standard was to be decided, there was a sudden massive influx of new members in the responsible mirror committee. Most of them were resellers of Microsoft products and they were joining because Microsoft had encouraged them to do so. At least one university professor acted similarly, as the assistant who has represented his institute at a meeting of the standardization committee admitted openly during the train ride home after the end of the meeting: His professor had sent him there to vote in favor of OOXML because the professor believed that course of action to be beneficial for receiving future research funding from Microsoft.95 In addition to this kind of dependencies on private sector funding, the views that are promoted by universities are often also biased by technological enthusiasm, see below.

In view of the great influence of universities, organizations aiming at representing the public interest will be wise to make it a priority to carefully observe the actions of universities. In particular, advocates for the public interest can and must insist that concerns about potential impacts on civil rights like privacy are given an appropriately great weight in courses that are taught to students and in conferences that are organized by universities.96 Mechanisms for consumer and broader public interest representation: There are typically no specific, formal mechanisms for public interest advocacy. However this does not imply that such specific formal mechanisms must be necessary, since the academic world quite generally has a culture of open debate in which public interest advocates (who have the prerequisite academic research and writing skills) can participate. So in regard to universities, pursuit of the generally-available paths of advocacy by demanding transparency, criticizing and influencing through dialogue should be complemented by making appropriate, well-researched contributions to the academic literature.

2.38 W3C

W3C is a standardization consortium with a focus on website content formats.

In the survey, four respondents indicated participation in W3C, and seven further respondents expressed interest.97 Mechanisms for consumer and broader public interest representation: 95 Source: The author’s personal knowledge and experience of having personally participated as a public interest representative in the Swiss mirror committee.

96 For an unfortunately very typical example of a conference where discussion of privacy issues was unjustifiably totally missing from the agenda see http://www.the-internet-of-things.org/iot2008/.

97

Source: Survey [DWC-IGM 2011], columns CD and SN.

������� ������: ������ �������� �������������� �� ��� ����������� ������� W3C actively solicits CSO participation in key standardization projects such as the “do not track” working group98 .

2.39

World Economic Forum (WEF)

WEF is an invitation-only annual meeting held every year at the end of January in Davos, a mountain resort in Switzerland.

In the survey, three respondents indicated participating or otherwise engaging with WEF, and ten further respondents expressed interest.99 Mechanisms for consumer and broader public interest representation: Some CSO representatives may be invited, but overall CSO participation mechanisms are seriously lacking.

2.40

World Intellectual Property Organization (WIPO)

[Gross 2007] notes:

WIPO was established in 1967 by the WIPO Convention, which states that WIPO’s objective was “to promote the protection of intellectual property throughout the world...”

(WIPO, 1967, Article 3).

Headquartered in Geneva, Switzerland, WIPO currently administers 24 treaties and facilitates the negotiation of several proposed treaties covering copyrights, patents and trademarks.

Although WIPO was originally established explicitly to promote the protection of intellectual property, when it joined the UN family in 1974 its objective had to be redefined as a public-interest or humanitarian goal. Article 1 of the key agreement establishing WIPO’s relationship to the UN restates WIPO’s purpose as: “for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development...”

(WIPO, 1974).

There is significant interest among survey respondents in engaging WIPO, with reasons including the following: • “WIPO has had a disproportionate influence because of the interest in IPR.”100 • “Because they have means and their goals and main area of interest presently differ from what I believe to be most important. Because they are subject to a lot of pressure and lobbying from the corp. world.”101 • “I think copyright is the most important battleground at present.”102 One survey respondent gave “WIPO conferences” as response to the question: “How do you coordinate with other public interest representatives who are engaged in discussions on the same information society policy issues as you?”103 In the survey, ten respondents indicated that they have engaged with WIPO, and fourteen further respondents expressed interest.104 98 99

Source: http://www.w3.org/QA/2011/09/do_not_track_standards_for_the.html, accessed 2011-12-19.

Source: Survey [DWC-IGM 2011], columns CE and SO.

100

Source: Survey [DWC-IGM 2011], cell UN58.

101

Source: Survey [DWC-IGM 2011], cells UL36, UN36.

102

Source: Survey [DWC-IGM 2011], cell UN72.

103

Source: Survey [DWC-IGM 2011], cell UU44.

104

Source: Survey [DWC-IGM 2011], columns CF and SP.

201

202

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Mechanisms for consumer and broader public interest representation: [Gross 2007] provides the following observations: In theory, WIPO’s strategic direction and activities are decided by the member states, but in practice, the WIPO Secretariat, based in Geneva, is given enormous power to influence and direct the work and objectives of the organization under the WIPO Convention.

Furthermore, on any particular issue, not only top WIPO staff but also the chair of the relevant WIPO committee wield the power to drive the organization’s agenda through the framing of the debate in that committee. The election of the chair is the first item on the agenda of meetings. Member state delegates, including the chair, participate at WIPO with the costs paid by the member state. Committee chairs decide which proposals become text for a treaty and which proposals are deleted from draft treaty texts; they decide how the proposals are framed, and whether or not civil society may speak at WIPO meetings.

Civil society or non-governmental organization (NGO) participation is allowed at WIPO through an accreditation process that takes place once a year to obtain official “observer” status. Besides governments and civil society, WIPO also allows for intergovernmental organization (IGO) participation in its meetings. While WIPO boasts that over 250 NGOs and IGOs currently have official observer status at WIPO, the vast majority of these NGOs are trade industry organizations from wealthy countries participating for the purpose of maximizing private gain.

Clearly this situation cannot be conductive to reaching results that are in the public interest. WIPO needs to be reformed in order for the change of WIPO’s purpose statement that was agreed in 1974 to be translated into a changed actual reality.

2.41

World Trade Organisation (WTO)

WTO has the stated goal to promote free trade and stimulate economic growth. Many critics assert that WTO however pursues these objectives in ways that have unacceptable social side effects.105 In the survey, two respondents indicated that they have engaged with WTO, and five further respondents expressed interest.106 Mechanisms for consumer and broader public interest representation: WTO’s mechanisms for CSO engagement107 are woefully inadequate.

In addition, [Patriota 2012] observes (writing from the perspective of a developing country government representative): The negotiating jargon and logic one has to work with at the WTO has the additional burden for developing country negotiators of not being transparent to those outside immediate WTO circles, including members of the broader public that could have a stake in final outcomes.

This problem affects CSOs in the same way as developing countries. Effective public interest representation at WTO will therefore require, in addition to securing opportunities to interact with the negotiators, that the CSO representatives must be prepared to overcome the barriers to communication that result from this WTO-specific “negotiating jargon and logic”.

105 106 107

See http://en.wikipedia.org/wiki/Criticism_of_the_World_Trade_Organization.

Source: Survey [DWC-IGM 2011], columns CG and SQ. See http://www.wto.org/english/forums_e/ngo_e/intro_e.htm.

������� ������: ������ �������� �������������� �� ��� ����������� �������

3 Towards system engineering of public interest oriented governance 3.1 Observed mindblocks

Several survey respondents have pointed out a fundamental problem of many governance institutions, that makes it difficult for public interest advocates to be truly heard by the people who work at the governance institutions in various roles: People usually are not willing to listen to what you have to say, or probably the truth doesn’t suit them. Instead they try to manipulate you so that you follow what is suitable for them. This may also be related to the economic interests of some private IT companies and to the corruption of the governmental institutions.108

It is important to note that if corruption is understood (like it is commonly defined) to mean the abuse of public power, office, or resources by government officials for personal gain, then it is not only corruption when received. It is also a form of corruption when government officials act contrary to the public interest out of a desire to create a positive personal reputation among decision-makers of the private sector, where officials who are corrupt in this way want maximize their chances for lucrative future employment.109 As pointed out in the above-quoted survey response, there is a lot of manipulation going on. Often debates are framed in ways that make it difficult even for officials who are not themselves corrupt in any way (i.e. who truly act out of a desire to do things right and according to the public interest) to truly listen to what some public interest advocates are saying, because some public interest viewpoints do not fit at all into the discourse that is happening within the governance institution. Here is a survey response that describes this phenomenon: The issue of financing costs has been so cleverly handled by lawyers from North America that the issue is no longer debatable.110

The above-cited survey response does not make clear what context the respondent (an individual in Singapore) had in mind when he wrote about “the issue of financing costs.” It is clear from his response however that he has observed how representatives of particular private interests have purposefully created mindblocks that effectively prevent even merely debating the public interest aspects of the matter.

One example of such a mindblock that has been analyzed in depth is the notion of “intellectual property” in its role of framing debates about copyright and about patents on software innovations into a narrow-minded problem solving rhetoric that ignores how information goods and innovations are fundamentally different from material goods, see [Eckl 2004], in particular pp. 139-140.

3.2 The goal: Governance institutions acting in the public interest Governance institutions must necessarily aggregate voices and viewpoints of a large number of stakeholders, creating a shared framework of understanding. Legal and other rules need to be defined and enforced.

108

Source: Survey [DWC-IGM 2011], cell UO109.

109

Source: The author of the present report has personally witnessed this form of corruption happening.

110

Source: Survey [DWC-IGM 2011], cell UQ58.

203

204

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It is of course of vital importance that these rules and the corresponding framework of shared understanding must be developed according to the public interest (see below for a brief discussion of the meaning of that.)

Unfortunately, as illustrated for example by the frustrations expressed in the survey responses that have been quoted in the previous section and in many others111 , unless great effort is exerted to make governance systems conductive to the public interest, the results are very often far from fair.

3.3

What are the incentives for the decision-makers?

3.4

What exactly does it mean to represent the public interest?

It is easy to observe that very often public policy processes have resulted in regulation that clearly illegitimately favors some particular interests over the public interest, and there is a branch of economics, called public choice theory, that studies this phenomenon, see e.g. [Schroeder 2009]. While the decision-makers’ understanding about what is the public interest and their related beliefs play an important role, decision-makers are also influenced by the incentives that exist for them in the political environment in which they operate. In situations where politics has clearly gone astray, reaching results that clearly illegitimately favor some special interest without any significant actual public interest benefits, the policy processes have often been influenced both by lobbying from those with business interests that can benefit financially, as well as by factually unfounded but widely-held, strongly emotional and sometimes even pseudoreligious views about the public interest, see [Yandle 1983] and [Yandle-Buck 2002].

In view of this complex reality of how a policy measure’s officially stated objective, its actual effects, and its public perception can be misaligned with each other, public interest representation must strive for objectivity in first of all understanding what the public interest is.

Of course it is not practically feasible to define the public interest with absolute precision. There is a variety of legitimate perspectives on what is the public interest, and how the various aspects of the public interest should be balanced relative to each other.

For example, the protection of human dignity as a fundamental principle is certainly in the public interest, and this implies taking measures to ensure accessibility to people with disabilities. Some such measures can be taken without significant additional cost (and there is really no excuse for not taking those easy measures, or for not taking the ease of accessibility measures into account in ICT standardization), while other accessibility measures will have significant costs, and it is always possible to further improve accessibility at even greater cost. Even in the absence of any convincing guiding principle on what percentage of the cost of any given project should be invested in accessibility measures, in some cases it is clear that there is an unacceptable lack of accessibility, while on the other hand it is also easy to conduct though experiments where a huge investment in accessibility is also clearly not in the public interest, if it is e.g. clear that those financial resources would benefit the public interest much more if used in a different way.

Therefore, even if there is no straightforward way of determining what the public interest is, it is often possible to convincingly criticize decisions and proposed decisions for being clearly not in the public interest.

111

Source: Survey [DWC-IGM 2011], e.g. cells UO36, UO98, UO100, UQ2.

������� ������: ������ �������� �������������� �� ��� ����������� ������� For this reason, public interest representation can be defined as exercising this activity of evaluating decisions and proposed decisions for reasonableness from a public interest perspective, criticizing where necessary, and ensuring that appropriate corrective action is taken when needed.

This will be most effective if it is undertaken not from just a single perspective, but from a variety of public interest perspectives.

For the purposes of the present paper, a decision or proposed decision shall be called public-interest-acceptable if it has been evaluated from the widest variety of public interest perspectives that was practically possible to solicit, and no clear fault has been found from any of these perspectives.

3.5

Major challenges for the public interest in Internet governance

3.5.1

Powerful special interests

This section outlines some major challenges that need to be overcome into order to shape the development of information society in ways that are public-interestacceptable as defined above.

It is clear from the frustrations quoted in section 3.1 that there are powerful special interests who so far have succeeded to a large extent in shaping policy processes according to their viewpoints.

These are on one hand private sector entities and groups thereof, as mentioned in this response to the question “What challenges have you faced in effectively participating in policy discussions on information society issues?”: Facing “big money” and people who are convinced that profit is more important than public interest.112

Furthermore, there are also government entities that themselves have particular interests. Law enforcement agencies are interested in being granted rights and technical means for surveillance that will, unless carefully limited and balanced, undermine fundamental human rights in the area of privacy. This problem exists even when the reasons that are given by the law enforcement agencies are clearly legitimate intentions such as when the stated goal is the prosecution of violent crime or to take action against videos of sexual child abuse (often called “child pornography”). There is always a slippery slope. Even when the use of privacy-intrusive investigation techniques is limited by law to a list of “serious crimes”, such lists tend to get expanded at later revisions, and in the absence of effective controls, such restrictions on law enforcement agencies may be ineffective anyway. If a “web blocking” infrastructure is established with the intention of taking action against sexual child abuse videos, then thereafter a censorship infrastructure will already be in place that could also be used for copyright enforcement (regardless of whether the claims of copyright are legally valid or not) and for political censorship. Copyright enforcement and political censorship have a long history of going hand in hand, see [Eckl 2004].

3.5.2

Rapid change and great complexity

As the realm of the Internet and information and communication technologies in general are rapidly evolving and the various interconnects are becoming ever more 112

Source: Survey [DWC-IGM 2011], cell UO36.

205

206

��������� �� ��� ����������� �������

complex, it is not surprising that the technological understanding of most traditional governance institutions including the regulatory agencies of national governments is typically uncomfortably shallow.

Governments are therefore often forced to rely on external expertise. Unfortunately, even when experts are consulted who have no strong ties to the powerful special interests, their perspectives are nevertheless generally far from objective, as discussed in the following section.

In addition to that there is a problem of communication, due to differences of language and ways of expression between many members of the technical community and the political community.113 Lobbyists therefore have a disproportionate influence114 because they communicate in ways that the decision-makers understand. This is a problem for the public interest when all or almost professional lobbyists represent special interests.

3.5.3

The pervasive bias of self-interested technological enthusiasm

Even when not employed by one of the powerful corporations, technologists nevertheless have a strong personal incentive to avoid opposing what they see as technical progress in their field of interest. In particular, people who want to be successful in an emerging area of technology have a strong self-interest in being enthusiastic about what may become possible though that technology. It is not conductive to one’s personal success in such a field to openly oppose fast adoption of the technologies that one is working on, even when caution would be advisable due to potential negative effects on some aspect of the public interest.

In viewpoints that are based on this attitude of self-interested technological enthusiasm, for example privacy or accessibility challenges may be acknowledged with an admission that a solution will need to be found. However this will not be described by technology enthusiasts as a precondition to their own agreement to deployment of these technologies. Rather, they see these problems only as a kind of marketing challenge. These technical experts are not personally motivated to ensure that a true solution to the actual problem is found, anything would suffice that satisfies or otherwise silences those critical voices that are effectively able to influence the public opinion.

Unsurprisingly this technology enthusiast perspective is generally adopted and promoted by private sector entities such as companies that can potentially benefit from the adoption of new technologies, as well as by technical research institutions, where the researchers have similar economic interests. Consequently the names that are given to new technical possibilities will usually reflect and promote the technology enthusiast viewpoint, see for example [Ashton 2009].

Unfortunately it happens that even governance institutions adopt this viewpoint of technological enthusiasm uncritically instead of conducting a more objective analysis of benefits and risks of technologies. For example, it says in [ITU 2005], the executive summary of ITU’s 2005 report on the Internet of Things: One of the most important challenges in convincing users to adopt emerging technologies is the protection of data and privacy. Concerns over privacy and data protection are widespread, particularly as sensors and smart tags can track users’ movements, habits and ongoing preferences. When everyday items come equipped with some or all of the five senses (such as sight and smell) combined with computing and communication capabilities, concepts of data request and data consent risk becoming outdated.

113

Source: Survey [DWC-IGM 2011], cell UO100.

114

Source: Survey [DWC-IGM 2011], cell UO98.

������� ������: ������ �������� �������������� �� ��� ����������� ������� Here the threat to privacy is conceptualized as a threat to ideas and concepts about data protection, rather than as a threat to human dignity and vital consumer interests.

3.6 Concerns about domination of global debates by the West

Parallel to the problem of undue influence of particular interests on governance debates but distinct from it, there is also the problem of the debates being dominated by voices from developed countries115 , in particular Western countries. This serious imbalance in the geographical representation of viewpoints results in part from the funding problems described in section 1 being a particularly great challenge in some regions, but there are cultural aspects to this problem as well. One survey respondent from Singapore describes this as follows: The debate is still largely dominated by the West. The issues faced there are not quite the same as in Asia. Also, in Asia, most people are not used to grabbing a mike and gabbing away. So there is much less of the cut-and-thrust of public debate in Asia compared with the West.116

Geographic distance from key decision-making locations and the corresponding difficulty of building effective working relationships with key people adds to this problem, as another survey respondent from Asia explains in response to the question about the challenges that his organization has faced in effectively participating in policy discussions on information society issues: Not “knowing the right people”, the fact that the people we need to talk to do not respond to communications (particularly emails), the expense of traveling to meetings in Europe, the limited impact that can be demonstrated from attending meetings held by the institutions themselves.117

The response to the same question from the Pacific Chapter of the Internet Society goes in the same direction: Getting to events because of lack of funds to do so and because of the contestability with other deserving applicants for public funds. Because we don’t have that access sometimes we miss out on participating on important issues that arise within discussions at these events. Our voices aren’t heard.118

The Secretariat of the Pacific Community commented: Culturally, Pacific Islanders find it difficult to contribute to international fora.119

Language barriers also contribute significantly to these challenges, as pointed out by a survey response from Taiwan120 and this survey response from Morocco: En plus de la contrainte financière, les associations de protection des consommateurs n’ont pas de position de force pour imposer la prise en compte de leur préoccupations et intérêts. Par ailleurs les capacités en matière de langue de travail (anglais) doivent être renforcées.121 115

Source: Survey [DWC-IGM 2011], cell UO44.

116

Source: Survey [DWC-IGM 2011], cell UO58.

117

Source: Survey [DWC-IGM 2011], cell UO11.

118

Source: Survey [DWC-IGM 2011], cell UO40.

119

Source: Survey [DWC-IGM 2011], cell VU97.

120

Source: Survey [DWC-IGM 2011], cell UO67.

121

Source: Survey [DWC-IGM 2011], cell UO115.

207

208

��������� �� ��� ����������� �������

(English translation: In addition to the financial constraint, the consumer protection associations don’t have the power to ensure that their concerns and interests are considered. Furthermore, their skills in the working language (English) need to be strengthened.)

3.7 Lessons from system engineering theory

Political decision-making processes are obviously complex systems.

In fact they belong to the particular class of systems which are intentionally created and maintained at a significant cost in view of a particular purpose.

There is a theory for system engineering of such systems; it is Eliyahu Goldratt’s “Theory of Constraints”, see [Goldratt 2004] and [Goldratt 1990]. As shown there, the performance of complex systems is determined by their constraints, of which there are typically relatively few, and local optimization is almost always not a viable path to achieve adequate performance. These lessons are equally applicable political decisionmaking systems as to the industrial production systems (the context in which Goldratt has developed and explained the “Theory of Constraints”.)

A simple illustration of such a constraint is that the strength of a chain is determined by the strength of its weakest link. The weakest link is the constraint on the chain as a whole. The same phenomenon also occurs in systems that are much more complex than a simple chain.

In view of the above-quoted frustrations that survey respondents have expressed, from the perspective of public interest representation, right now the key constraint is the severe difficulty of effectively communicating to the key people in decisionmaking governance institutions about public-interest concerns.

This constraint needs to be addressed and “elevated” in the parlance of the “Theory of Constraints”, i.e. the situation in this regard needs to be improved so much that this is no longer the key constraint. It is quite possible when this problem has been adequately addressed, the goal of public-interest-acceptable governance (see section 3.4) of information society matters may not have been reached yet. Something else may turn out to be another unacceptably hindering constraint, which will also need to be addressed before the goal is reached. But this next constraint will not be very visible, and addressing it will not have any significant effect, unless the current critical constraint is addressed first.

3.8 The need to demand reasoned decision-making about incentives As seen above, it is difficult to effectively communicate to decision-making governance institutions about substantive topics of the public interest, and a key reason for this problem is that the people to whom these communications need to be addressed often have few or no incentives to pay attention, while the incentives to conform to the desires of well-funded lobbyists of special interests often include peer pressure and are often also otherwise significant.

One way in which the communication problem can be addressed is therefore to demand that the people who work for governance institutions must be personally given incentives to act according to the public interest. This in itself should result in very healthy and necessary debates about what exactly the public interest is, and how it can be determined. Governance institutions are supposed to act according to the public interest, so they clearly need to develop an understanding of how the public

������� ������: ������ �������� �������������� �� ��� ����������� ������� interest can be determined, and what corresponding appropriate measurements are.

One means that can be used to this end is the right to reasoned decision-making: According to Article 41 of the EU’s Charter of Fundamental Rights122 , there is a right to good administration which includes in particular “the obligation of the administration to give reasons for its decisions”. Many other governance bodies have a similar principle, and where it is missing, it should be demanded that it must be established. For a detailed discussion of the importance of this right see [Marshaw 2007]. (It is important to note that Marhaw’s remark about the EU’s Charter of Fundamental Rights not having been ratified, and that ratification effort possibly stalling indefinitely, is outdated: In the meantime, the Charter has been ratified as part of the Lisbon Treaty.)

In view of the theory-based considerations of section 3.7 these demands for transparency and justification of the governance institution’s internal incentive system must be in addition to (and not instead of) continuing attempts to be heard on substantive matters. The goal is to reach the point where, as a result of changed internal dynamics within the governance institution, the people there are willing and able to listen to the concerns of public interest representatives. At that stage the analysis of determining what is then the critical constraint must be repeated. It is likely that a certain amount of attention on matters of personal incentives will need to be maintained, but further increasing the attention that is given to this aspect is not likely to help with addressing the next constraint. Rather the next constraint will again need to be analyzed, and a strategy will have to be developed to address it.

4

Summary of conclusions

This section summarizes the main specific conclusions of the previous sections of this report.

Underutilised mechanisms for public interest representation: • While the details must naturally vary across issues and governance institutions (and the survey was not set up to solicit specific information about the various combinations), it is clear from the frustrations about mindblocks that were expressed (see section 3.1) that CSOs need to learn to oppose much more vigorously all attempts to frame a discourse in a way that is manipulative and not supportive of an openended search for public-interest-acceptable solutions (see section 3.4.)

The key needs for institutional reforms are: • Reasoned decision-making about what the incentives are for who work for governance institutions should, where necessary, be increased until the people there are willing and able to listen to the concerns of public interest representatives, see section 3.8.

• Fundamental reforms are needed in all governance institutions which deal with matters where strong consumer representation and more general public interest representation would be important but is currently impossible or unreasonably difficult. These include EPO, G8, G20, ITU, Mercosur, SAARC, TEC, WEF, WTO and many institutions of national governments. The ACTA Committee is likely to join this list once it is constituted.

122

See http://www.europarl.europa.eu/charter/

209

210

��������� �� ��� ����������� �������

• Given that G8 and G20 make decisions that affect the entire world, they should also take the perspectives of governments of other countries into consideration, similar to how civil society views need to be taken into consideration.

• The IGF should establish a mechanism by which it issues formal recommendations and thereby influences decision-making governance processes, see section 2.19.

• “ECOSOC consultative status” accreditation for CSOs should be simplified, reducing in particular the administrative burden of the 4-yearly reports, see section 2.36.

• CSTD should involve civil society representatives in agenda discussions, see sections 2.36.

• OECD should formally recognize CSISAC, as well as recognizing (by means of the publication of a revised document that corrects the problems) that it was very inappropriate to ignore CSISAC’s objections to the Communiqué on Principles for Internet Policy-Making of 2011, see section 2.27.

• WIPO needs to be reformed in order for the change of WIPO’s purpose statement that was agreed in 1974 to be translated into a changed actual reality, see section 2.40.

• IEEE-SA and ISO national member bodies should waive membership fees for CSOs. Key Institutions where CSO participation should be specifically improved are: • Universities, see section 2.37.

• CSTD, see section 2.36.

• The UN Human Rights Programme’s Universal Periodic Review (UPR) process, see section 2.32.

5 Missing institutions

For the following issues, survey respondents have indicated that there are currently no governance institutions where the issues could be addressed: • Access to knowledge123

• Global optimization of resource allocation124 • Internet filtering125 • Interests of small developing countries126 • Obligatory technical standards: What technological standards should every incorporated company be required to follow?127 • Process issues around consumer participation in policy development.128 • Research aggregation: There is not a representative instance that gathers the research done by universities and public/private institutions.129 123

Source: Survey [DWC-IGM 2011], cell UQ11.

124

Source: Survey [DWC-IGM 2011], cell UQ122.

125

Source: Survey [DWC-IGM 2011], cell UQ20.

126

Source: Survey [DWC-IGM 2011], cell UQ130.

127

Source: Survey [DWC-IGM 2011], cell UQ37.

128

Source: Survey [DWC-IGM 2011], cell UQ11.

129

Source: Survey [DWC-IGM 2011], cell UQ107.

������� ������: ������ �������� �������������� �� ��� ����������� �������

211

6 Towards an online Map of Internet Governance Information of internet governance institutions as contained in this report needs to be kept up-to-date and expanded with further practical hints and additional information that allows effective strategy development. This is the goal of the online Map of Internet Governance which is under construction at http://idgovmap.org.

References

[Ashton 2009] Kevin Ashton: That ’Internet of Things’ Thing. RFID Journal, June 22, 2009. http://www.rfidjournal.com/article/view/4986. Accessed 2011-11-29.

[APC 2011] Association for Progressive Communications: Join us in putting the internet on the human rights agenda. December 8, 2011. http://www.apc.org/en/press/join-usputting-internet-human-rights-agenda. Accessed 2011-12-12.

[CoE 2009] Council of Europe: Code of Good Practice for Civil Participation in the DecisionMaking Process. Document CM(2009)148, 2009. https://wcd.coe.int/ViewDoc.jsp?

Ref=CM%282009%29148. Accessed 2011-12-18.

[DWC-IGM 2011] Dynamic Working Coalition for Internet Governance Mapping: Public interest representation in the information society – 2011 survey: Final data. http://idgovmap.org/survey_data/Public_interest_representation_in_the_ information_society_- _2011_survey_final_data.ods. Accessed 2011-11-04.

[Eckl 2004] Julian Eckl: Die politische Ökonomie der “Wissensgesellschaft” (in German).

Tektum Verlag: Marburg 2004.

[ECOSOC 2009] United Nations - Department of Economic and Social Affairs - NGO Branch: Introduction to ECOSOC Consultative Status. http://esango.un.org/paperless/ Web?page=static&content=intro. Accessed 2011-12-12.

[Esterhuysen 2011a] Anriette Esterhuysen: Re: [governance] Meeting report ECOSOC presentations, posting to the Civil Society Internet Governance Caucus mailing list, 201108-03 17:10:08 +0200. Archived at http://lists.cpsr.org/lists/arc/governance/ 2011-08/msg00031.html. (The easiest way to access the posting is to follow this link, then click on the button on the gatekeeper page that comes up, then use the browser’s “back” butten, then reload.) Accessed 2011-11-07.

[Esterhuysen 2011b] Anriette Esterhuysen: Re: [governance] Meeting report ECOSOC presentations, posting to the Civil Society Internet Governance Caucus mailing list, 201108-04 07:45:24 +0200. Archived at http://lists.cpsr.org/lists/arc/governance/ 2011-08/msg00039.html. (The easiest way to access the posting is to follow this link, then click on the button on the gatekeeper page that comes up, then use the browser’s “back” butten, then reload.) Accessed 2011-11-07.

[Goldratt 1990] Eliyahu M. Goldratt: The Haystack Syndrome. Great Barrington, MA, USA, 1990 (North River Press).

[Goldratt 2004] Eliyahu M. Goldratt: The Goal. Third revised edition. Great Barrington, MA, USA, 2004 (North River Press).

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[Gross 2007] Robin Gross: World Intellectual Property Organisation (WIPO) . In: GISWatch: Global Information Society Watch 2007 : Participation, pp. 65-73. http://www.giswatch. org/en/2007. Accessed 2011-11-30.

[Helfer 2004] Laurence R. Helfer: Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking. Yale Journal of International Law 29 (2004), p. 1ff. http://ssrn.com/abstract=459740. Accessed 2011-12-17.

[Hofmann 2007] Jeanette Hofmann: Internet Corporation for Assigned Names and Numbers (ICANN) . In: GISWatch: Global Information Society Watch 2007 : Participation, pp. 39-47. http://www.giswatch.org/en/2007. Accessed 2011-11-30.

[ITU 2005] International Telecommunication Union: The Internet of Things. ITU Internet Reports 2005, executive summary. http://www.itu.int/osg/spu/publications/ internetofthings/InternetofThings_summary.pdf. Accessed 2011-11-24.

[Malcolm 2012] Jeremy Malcolm: Arresting the decline of multistakeholderism in Internet governance, in this volume.

[Malcolm 2008] Jeremy Malcolm: Multi-Stakeholder Governance and the Internet Governance Forum. Perth 2008 (Terminus Press).

[Marshaw 2007] Jerry L. Mashaw: Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance (2007). Faculty Scholarship Series.

Paper 1179. http://digitalcommons.law.yale.edu/fss_papers/1179.

[McNamee et al 2011] Joe McNamee, Kirsten Fiedler and Marie Humeau: Activist guide to the Brussels maze.The EDRi papers, Issue 01. http://www.edri.org/files/ 2012EDRiPapers/activist_guide_to_the_EU.pdf. Accessed 2012-01-27.

[OHCHR 2008] Office of the High Commissioner for Human Rights: Working with the United Nations Human Rights Programme: A Handbook for Civil Society. http://www. ohchr.org/EN/AboutUs/CivilSociety/Pages/Handbook.aspx. Accessed 20111212.

[Patriota 2012] Guilherme Patriota : TRIPs in DDA – Personal Perspective of a Developing Country Negotiator . In: Pradeep S. Mehta, Atul Kaushik, Rashid S. Kaukab (eds.): Reflections from the Frontline: Developing Country Negotiators in the WTO , to appear, New Delhi 2012 (Academic Foundation in association with CUTS International).

[Schombe 2011] Baudouin Schombe: Re: [governance] Meeting report ECOSOC presentations, posting to the Civil Society Internet Governance Caucus mailing list, 2011-08-03 17:09:32 +0100. Archived at http://lists.cpsr.org/lists/arc/governance/2011-08/ msg00033.html. (The easiest way to access the posting is to follow this link, then click on the button on the gatekeeper page that comes up, then use the browser’s “back” butten, then reload.) Accessed 2011-11-07.

[Schroeder 2009] Christopher H. Schroeder: Public Choice and Environmental Policy: A Review of the Literature. Duke Law School Public Law & Legal Theory Paper No. 247, 2009. http://ssrn.com/abstract=1401375. Accessed 2011-12-20.

[Siochrú 2007a] Seán Ó Siochrú: United Nations Development Programme (UNDP). In: GISWatch: Global Information Society Watch 2007 : Participation, pp. 56-64. http:// www.giswatch.org/en/2007. Accessed 2011-11-30.

������� ������: ������ �������� �������������� �� ��� ����������� ������� [Siochrú 2007b] Seán Ó Siochrú: United Nations Educational, Scientific, and Cultural Organisation (UNESCO). In: GISWatch: Global Information Society Watch 2007: Participation, pp. 48-55. http://www.giswatch.org/en/2007. Accessed 2011-11-30.

[Sweazey 2012] Paul Sweazey: Introduction to Digital Personal Property, in this volume.

[Yandle 1983] Bruce Yandle: Bootleggers and Baptists: The education of a regulatory economist.

AEI Journal on Government and Society, Vol 7 (1983), no. 3 (May/June), pp. 12-16. http://www.cato.org/pubs/regulation/regv7n3/v7n3-3.pdf. Accessed 2011-12-20.

[Yandle-Buck 2002] Bruce Yandle, Stuart Buck: Bootleggers, Baptists, and the global warming battle. Harvard Environmental Law Review, Vol. 26 (2002), pp. 177-229.

Reprinted in: Aynsley Kellow, Sonja Boehmer-Christiansen (eds.): The International Politics of Climate Change, Glos (UK) and Northampton (USA), 2010. Also available online: http://ssrn.com/abstract=279914. Accessed 2011-12-20.

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9 Mapping “Public Interest Representation in the Information Society”: A Network Analysis Experiment

Dr Elena Pavan

Department of Political and Juridical Sciences and International Studies, University of Padova, Italy A������� In this short paper I apply a network approach to the study of how public interest is being represented within the global landscape made up by a vast plurality of institutions, considering some of the data gathered through the survey realised by the Dynamic Working Coalition on Internet Governance Mapping. I will discuss how network analysis can be applied for deepening our understanding of how civil society interests and actions are played out within a multi-actor context, as in the information society, where public and private interest constituencies find different spaces and constraints to define, defend and sustain their agendas and priorities. I will use parts of the data gathered through the survey to make a case for using some network analysis concepts and tools (in particular that of centrality) to gain a better understanding of governance dynamics of relevant global policy domains such as information and communication management.

1

Introduction

In this short paper I provide an integration to the analysis of survey results proposed by Norbert Bollow in his work “Public Interest Representation in the Information Society.” I apply a network approach to the study of how public interest is being represented within the global landscape made up by a vast plurality of institutions, considering some of the data gathered through the survey realised by the Dynamic Working Coalition on Internet Governance Mapping. I will discuss how network analysis can be applied for deepening our understanding of how civil society interests and actions are played out within a multi-actor context, as in the information society,

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where public and private interest constituencies find different spaces and constraints to define, defend and sustain their agendas and priorities. I will use parts of the data gathered through the survey to make a case for using some network analysis concepts and tools to gain a better understanding of governance dynamics of relevant global policy domains such as information and communication management.

Networks are popular tools in the study of global information and communication flows – let’s just imagine the information society as the “network society” (Castells 1996). The popularity of networks is linked more to their use as powerful images depicting the complexity of contemporary governance arrangements in the area (Kenis & Schneider 1991). This predominant use of networks as metaphors and powerful images has somehow shadowed the peculiarity of a “network point of view” on politics (and, more broadly, on society) and has often hampered the translation of this point of view into systematic empirical studies complementing the insights generated by more conventional approaches. In other words, the heuristic potential of networks (Padovani & Pavan 2011) both as images and analytic tools is not fully exploited or endorsed within systematic research programmes.

While I acknowledge the power of networks as conceptual tools as well as their incredible utility for disentangling complexity, especially with reference to multi-faceted global domains such as global communications, I think it is worth clarifying that the adoption of a network approach (both in general but also in particular for studying the governance of information and communication issues) entails much more than images.

Adopting a network perspective means adopting a different way of reasoning about political dynamics, one that is centered on a radical shift of attention from actors to relations they establish (see Padovani & Pavan 2011). Such a conceptual shift entails in the first place the necessity to move our concerns from who are actors to what relation joins them, how they interact, how much they are involved in (mutual) relations amongst themselves, how strategic is their position within the interactional milieu we are examining.

However, this shift requires the development and the employment of specific techniques to empirically study the relational patterns that emerge from the bulk of ties joining together actors in networks (Wellman 2002).

What has this conceptual shift to do with a critical reflection on how public interest is represented in the information society? Far from being a simple surrendering to the inevitable charm of networks, I believe that a network approach is particularly useful as it allows us to face systematically three challenging elements that characterise the field of global communication governance (see Pavan 2012): • The overall thematic uncertainty regarding the issues that are, from time to time, discussed in the various subfields of global communications as well as about connections that might exist amongst them; • The overall procedural uncertainty regarding the roles and the responsibilities of institutional and non-institutional actors in the complex political management of information and communication matters; and • The multiplication of spaces where these uncertainties are tackled through the development of innovative political dynamics involving the collaboration of institutional and non-institutional actors.

From a conceptual perspective, because networks are flexible tools, we can move in a complex environment without getting lost, just moving along network ties and uncovering the strategies through which political discourses and actions are built up to

����� �����: ������� “������ �������� �������������� �� ��� ����������� �������” lower the uncertainty that characterises information and communication issues management.

However, the adoption of a network point of view can help us understand a further element that is crucial in all political dynamics, ie, that of power. With regard to the concrete occurrence we are studying here, ie, the representation of public interest in the information society, how and how much public interest is included, endorsed and challenged within the institutional landscape depends on a power component that we cannot overlook but that we need to conceptualise and operationalise systematically.

In fact, in a society like the one we live in, characterised by multiplicity of actors and issues, dynamism and complexity of levels (Kooiman 2003), we need to move toward an idea of power that overcomes the traditional belief that power resides in actors’ attributes to reach a relational view of power, for which it results from the bulk of relations that structure a determined interactional milieu. This implies that power arrays are not defined once and for all and that it is starting from relations established in the field that we can gain a different sense of possibilities and challenges for the democratic inclusion of public interests in the information society.

I am not suggesting here that actors’ attributes and characteristics are not important.

In his paper, Norbert Bollow illustrates with great detail how much the very features of institutions populating the information society do influence how and how much public interest is represented. However, the attention he and the survey designers pay to the procedures for participation within these institutions already points toward an idea that is the relation established within the institution has a determinant influence on the inclusiveness of information society institutions.

Consistently with the premises of a structural point of view on society (see Wellman 2002), I argue that the role attributes play should be reassessed: while in a traditional power conceptualisation who you are determines what you can or cannot do, if we consider power relationally then it is what you can or cannot do that determines how important you are. Therefore, to understand possibilities and constraints to action we have to focus on relations actors establish and how the patterns of relations translate into different types of political power (eg, bargaining, gatekeeping, popularity etc.).

If we look at relations, we can elaborate more in depth about elements such as dependencies, collaborations and conflicts joining together actors in the field and we can derive overall considerations about how power is structured in the information society.

Wondering how public interest is represented in the information society, I propose we include a specific look to relations established between public interest sustainers and the multiplicity of institutions in the field so to complement concerns on how many times public interest reaches existing institutions as well as on the limits of current inclusion procedures. Yet, we are still in a situation where we need to push forward the translation in empirical terms of a network perspective and we need to assess the meaning of network analytic tools for the dynamics we are studying.

In my previous work, I engaged in this “translation” effort. Coming back to the three challenging elements that I suggested are characterising the governance of global communications (ie, thematic uncertainty, procedural uncertainty, multiplication of spaces for discussion), I started from the multiplication of spaces for managing information and communication issues to inquiring how network exchanges between actors and ideas are currently reducing the overall thematic and procedural uncertainties. While my studies concentrated on the Internet Governance domain, thanks to the survey realised by the Dynamic Working Coalition on Internet Governance Mapping we can now try to expand this approach to other domains beyond that of Internet

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governance to study more broadly how public interest is represented at large in the multiplicity of information society institutions.

Here I will provide a short account of one of the many possible ways of working with the survey data in network terms. The paper is organised as follows. Firstly, I will indulge on some methodological notes, to clarify the different steps I made to trace the networks from data that were not originally gathered for this purpose but that were, nonetheless, characterised by a great “network potential”. Secondly, I will provide a set of visual representations of the data considered and will apply some techniques to explore the structure of the links established between respondents and institutional interlocutors. Thirdly, I will sketch out a possible research agenda, calling for its collective refinement in a multi-disciplinary and multi-sectoral perspective.

2

Methods and data

For the exploration of survey data, I considered only the completed questionnaires where respondents declared to represent (at least) one organisation. The total number of respondents considered then was 37 (28% of total answers).1 Given the exploratory purpose of this network exercise, the limited number of questionnaires considered does not preclude the possibility to elaborate on how network measures can be applied for reading dynamics of interest representations in the information and communication governance field.

To draw a first set of relations to analyse, I focused on the question “In which of the following institutions have you been involved in policy discussions on information society issues?”. Starting from the list of options provided in the questionnaire, I built a matrix where a tie exists between a respondent and an organisation if the respondent declared to have taken part in the discussion within that organisation.

Although both respondents and institutions do share their formal organisational nature, they provide two different types of nodes: the respondents represent civil society/public interest constituencies in the information society; the second, ie, the organisations, represent the main institutional points of references in the field. Hence, the matrix used for this exercise can be thought as a 2-modes matrix (Wasserman & Faust 1994) and treated consistently with its peculiarity, ie, joining together a set of actors (in this case our respondents) with a second set of so-called events.2 In this exercise I have deliberately left aside suggestions made by respondents on other institutional points of references they have in the field. However, this information can and should be included in future elaborations.

3 Bringing public interest into the institutional milieu When we represent graphically the network we derived from the survey data, we obtain a situation like the one in the first figure. Small red nodes are respondents,

1 Amongst the 37 questionnaires selected, one did not include any sort of answer to the question considered (not even in the field for personal suggestions) and one was a duplicate of a multiple-affiliated respondent for which we have decided to meld the answers provided (as there was not a significant difference between the two profiles). Both decisions are admittedly arbitrary and point to methodological elements I will discuss in the last section of the paper.

2 In this case “events” should be understood in terms of “having participated in the discussion within a certain institution.”

����� �����: ������� “������ �������� �������������� �� ��� ����������� �������” larger black nodes are institutions listed in the survey as the possible places where public interests can be discussed. There is a tie between a red node and a black node if the respondent has declared to participate in the discussion within that organisation.

What does this representation tell us? At a first glance, this representation might appear rather confusing given the dense bundle of ties. However, we can notice that there are no isolate and sparse nodes – at least, as far as we can see. This means that there is actually a nucleus of “dialogue” where most of the respondents are tied to institutions (remember that the ties stand here for an involvement in the discussion).

In fact, if we look at the data, there are two respondents that are disconnected from this main component of ties and nodes because in their answers they had not chosen any of the proposed alternatives but, rather, had specified their collaborations in the column “other”. Also, there is one disconnected institutions that, for the selection that I made at the very beginning (only questionnaire completed and by organization representatives) results disconnected, ie, the European Patent Office. However, overall, we see that disconnection is not the main characteristic of this network and, although we keep in mind that we have to further examine the status of the few isolated in our network, we can focus on what the connected component can tell us.

From a graphical point of view, we see that there are some black and red nodes in the centre of the picture while, if we proceed toward the outside, we find a more scattered distribution. This “spatial” location of nodes can be interpreted in terms of the existence of a dialogue core, made up by some institutions and some respondents, opposing to a scattered periphery where, although dialogue is taking place, is less structured and dense. If we focus on the institutions in the core, we can think of them in terms of “hotspots”, as they provide, more than others, places where public interest representatives are involved in the discussion, ie, they receive more ties from red nodes

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(it is enough to notice the different density of ties in the core and outside the core).

How can we detect who these hotspots are? We see that many black nodes are tied to respondents (red nodes) and, therefore, somehow all institutions listed in the survey are recognised places for discussion in the field and, on the other hand, there is a certain level of inclusion of public interest representatives in the discussion.

How can we distinguish hotspots from other, less often participated institutions?

One possible way is to lean on the concept of centrality, which allows to identify more important actors in the network and, conversely, to identify those who are in the “periphery”, ie, who are less important.

There are at least three ways in which one actor can be central: because it receives many ties from the other nodes in the network (degree centrality), because it stands in between other actors relations (betweenness centrality), because it is closer than others to anyone else in the network (closeness centrality) (Freeman 1979).

When we look for hotspots in our network, we need to remember that our network is made up of two sets of nodes (respondents and institutions) and, therefore, we need not only to distinguish between types of centrality but also for the set of actors we are considering (Everett & Borgatti 2003). “Hotspots” mean more often participated institutions, therefore, we can opt for degree centrality.

When looking at the specific set of nodes provided by institutions, one institution is more central the more respondents have indicated it as a place where they have brought their issues. The second figure depicts the same network we visualised before characterising the size of the institutional nodes by the size of their degree, ie, by their importance as places for discussion.

The result we obtain computing and plotting centrality measures shows that the places that are more often participated are the ICANN, the ISOC, national governmen-

����� �����: ������� “������ �������� �������������� �� ��� ����������� �������” tal institutions, the IGF (both at regional and global level) and the OECD. Although other institutions have actually engaged in discussions with public interest representatives, they have done so in a more limited way (see the smaller size of blue nodes representing the institutions in figure 2).

For those readers who have been involved in the discussion of information and communication issues for a long time, this result might appear quite obvious: we have the traditional Internet governance institutions plus some recent and important multistakeholder governance experiments such as the Internet Governance Forum. And yet, I argue that this result is less obvious than what it seems.

In the first place, it should be noted that the list of options provided in the survey was much broader than the list of institutions dealing with Internet governance issues.

The fact that ICANN, ISOC and the IGF itself have emerged as the central nodes while other organisations, for example linked to human rights defense (such as the European Court for Human Rights) or to pure commerce (such as the WTO), are less important seems to suggest a sort of thematic characterisation of information and communication issues in terms of Internet governance issues.

This finding can be interpreted in various ways. On the one hand, we may think it is the by-product of the emphasis put on Internet governance after the World Summit on the Information Society, which has somehow catalysed most of the information and communication debates in this direction (see Pavan 2012). On the other hand, one should wonder if IG institutions are more open to participation than other institutions whose scope is broader. In other words, this finding opens a question on how ready institutions are to host public interests representative especially in the case of older institutions that were born under a logic of nation-states representativeness formally excluding non-governmental and non-institutional constituencies.

There was another interesting detail that the study of centrality revealed to us. If we compare the levels of centrality amongst the hotspots identified we can notice that the “traditional” Internet governance institutions, such as ICANN and ISOC are less central than the IGF at the global level and at the regional level but are equally less central of various national governments that have opened the doors for the discussion about information and communication issues (see the table below).

This might suggest that public interest representatives are in search for new interlocutors but also that procedures of representation embodied by the traditional Internet governance procedures are being progressively overcome. Also, the fact that other Internet governance institutions, such as the IETF, or standardisation bodies like the W3C are less central than new and more comprehensive discussion forums like the IGF seems to suggest a certain preference not only for spaces that allow participation from a procedural point of view, but also from a thematic perspective.

4

Conclusions

In this paper I took the chance provided by the survey realised by the Dynamic Working Coalition on Internet Governance Mapping to make a case for using network analysis for studying the representation of public interest within the information society institutional landscape. The premises of this exercise can be found in Norbert Bollow’s work on how we need to understand what are the possibilities and obstacles for public interest representatives to access and bring their issues in the policy arena so we can assess more systematically what is the level of inclusiveness and participation within a

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Hotspot

Degree

IGF Global

0.629

National Governments

0.571

ICANN

0.514

IGF Regional

0.514

ISOC

0.457

OECD

0.400

crucial area such as the management of information and communication issues.

I argued at the beginning that there are good reasons for adopting a network approach – the potential of the network image, helps us simplify a very complex landscape such as that of information society; the possibility to elaborate on the effects of relationships, in terms of dependencies, collaborations, conflicts, exchanges; the possibility to look more in depth at power distribution between actors in the field. In this regard, I also argued that a relational view of power should overcome the limits of traditional conceptualisations for which power is inherently determined by who actors are and are not. Instead, I proposed to link power to the place actors occupy within a certain system of relations. I believe that if we are preoccupied with understanding possibilities and constraints to action, then looking at relations is one crucial step to take.

I made a small experiment and used sections of the data from the survey to visualise and explore the structure of relations between respondents and institutions listed in the survey. In concluding this exercise, I would like to pull together the various strands I opened in this work.

First, I have argued that most of the popularity of networks in the study of political dynamics in the information society field is due to a metaphorical use of networks and I have called for a “translation” of this metaphor into empirical terms. Here, I have attempted this translation but in an exemplificative way thus facing several limits and making several arbitrary decisions. The data of the survey was not originally gathered for this purpose but I saw what I called a “network potential” in them. I selected just one specific type of information surveyed and I filtered at the beginning on the totality of answers received. Moreover, I considered the relation “having been involved in the discussion within a certain institution” from an admittedly rough perspective (basically yes/no). In this sense, I have not included in my experiment all the information gathered through the survey about modes of participation (eg, existence or absence of formal mechanisms for speaking) or funding. All this information could have made my experiment more precise, more detailed and I acknowledge that my analysis here should not be taken as definitive. However, my goal was not to explain but to explore and, in exploring, to make a case for using network analysis for integrating our current knowledge on mechanisms of public interest representation.

Although small and limited, our little network analysis experiment allowed us to see some interesting elements. We represented the involvement of respondents in institutional discussions in terms of networks and, looking at the visual representation of links between organisations and institutions, we realised quite clearly that there is a dialogue going on and that gathers a plurality of respondents and institutions.

����� �����: ������� “������ �������� �������������� �� ��� ����������� �������” Looking at this maze made up by different discussion flows, we realised that there is a core of dialogue where some institutions are involved and we sneaked into that core to find out that the central institutions in the discussions are Internet governance-focused.

Thus, we noticed that amongst the central institutions, the most important are those IG bodies that are built around inclusive procedures and conceptualisations of the Internet governance. Although, as I said above, this can be interpreted in various ways, the bundle of ties representing participation dynamics led us easily to identify where the bulk of discussion is taking place. It is certain, someone could argue that we would have arrived at the same conclusions without nodes and ties – and I do not deny this could be true, but once we visualised the data in terms of networks we could easily disentangle the maze we were starting from and getting “straight to the core.”

The representation of public interest is an inherently relational dynamic: it means bringing ideas, priorities, agendas and visions within an institutional milieu that has rules of procedures of a certain type. The added value of a network analysis exercise like this one is, perhaps, not in the answers it provides, although some insights that have emerged are pretty interesting and deserve further exploration (eg, the thematic concentration around IG, the suggested overcoming of traditional governance mechanisms etc).

Rather, the values is provided by the potential that characterises the switch of attention from actors to the relations that join them together, by the potential of mapping with immediacy how public interest is currently brought into the institutional milieu and of identifying who is in the core, who is not, and who should be.

As I argued at the beginning, networks have a lot to say about power. We found that some specific institutions stands at the core of participation dynamics and, in this sense, are recognised points of reference in the debate. If, as it emerged from our analysis, broader scope institutions that are centered around human rights or are absent from this authoritative core, then it is starting from relations that we could for example assess the need for integrating a human rights perspective into the information society agenda.

Mapping through network concepts and tools what is going on “out there” , can provide us with useful starting points to master our knowledge about participatory dynamics in the information society. As I argued elsewhere, the potential of networks stands in the fact that “where ties are present, some kind of potential is being exploited. Where ties are absent, some kind of potential is inactive, but it is still there.

Networks help us go beyond the perennial game of opposites because they show, at the same time, what results are achieved and what are not achieved but more importantly for the reform of political mechanisms, where action could be undertaken to improve the overall effort to move global politics toward a radical and genuine democracy” (Pavan 2012: 161).

5 References

Castells, Manuel. 1996. The Rise of Network Society. Oxford: Blackwell Publishers.

Freeman, Linton C. (1979.) "Centrality in social networks. Conceptual clarification".

Social Networks, 1 pp. 215-239.

Kenis, Patrik, and Volker Schneider. 1991. “Policy Network and Policy Analysis: Scrutinizing a New Analytical Toolbox.” In Policy Networks: Empirical Evidence and The-

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oretical Considerations, ed. Bernd Marin and Renate Mayntz, 25–62. Boulder, Colo.: Westview Press.

Kooiman, Jan. 2003. Governing as Governance. London, Thousand Oaks, New Delhi: Sage Publications.

Padovani, Claudia & Elena Pavan. 2011. “Actors and Interactions in Global Communication Governance: The Heuristic Potential of a Network Approach.” In The Handbook of Global Media and Communication Policy, ed. Robin Mansell and Mark Raboy, 543–563.

Oxford: Blackwell Publishing.

Pavan, Elena. 2012. Frames and Connections in the Governance of Global Communications.

A Network Study of the Internet Governance Forum. Lanham (MD): Lexington Books.

Wasserman, Stanley, and Katherine Faust. 1994. Social Network Analysis: Methods and Applications. Cambridge: Cambridge University Press.

Wellman, Berry. 2002. “Structural Analysis: From Method and Metaphor to Theory and Substance.” In Social Networks: Critical Concepts in Sociology (vol. I), ed. John Scott, 70–108. London and New York: Routledge.

Contributors Dr George Yijun Tian is a Senior Lecturer at the University of Technology Sydney (UTS) Law School. He joined UTS in January 2008. His research is focusing on intellectual property, anti-trust law, international trade, and digital legislation. Prior to taking up the full-time position at UTS, he has taught sessionally postgraduate courses in intellectual property at UTS, and undergraduate courses in corporate law at the University of New South Wales (UNSW).

Paul Sweazey has been a designer and architect for computing, communication, storage systems, and cryptographic security systems at companies such as Tektronix, MIPS, National Semiconductor, Apple, and Seagate. He has co-founded startups in network switching, network-attached storage, and digital content protection. As an inventor, he defined the original 5-state MOESI model of cache coherence as used in the AMD64 architecture, invented the QuickRing interconnect of Apple and NSC, created the SpandX hypertoroidal switch fabric, and devised the original concepts that may enable consumers to own digital downloads without usage restrictions. In IEEE standards Paul worked on the IEEE 896 Futurebus as the cache coherence task group leader, founded the Superbus Study Group which led to the IEEE 1596 Scalable Coherent Interface standard, participated in the IEEE 1394 Serial Bus Working Group, and started the Digital Personal Property Study Group. A graduate of the University of Portland (Oregon), Paul is currently a design engineer for Nuvation Engineering in San Jose, CA, and serves as chair of the P1817 Standard for Consumer-ownable Digital Personal Property.

Robin Brown has 25 years of experience in consumer and business regulatory affairs.

He spent 10 years as the chair and chief executive of Australia’s national consumer body, the Australian Federation of Consumer Organisations. Robin has been involved in projects to advance consumer protection and competition policy and regulation in a number of developing countries. In recent years Robin has served as a Councilor of the Australian Consumers’ Association. He holds a BA and a Master of Public Policy from the Australian National University.

Jeremy Malcolm is Consumers International’s Project Coordinator for Intellectual Property and Communications, coordinating its global programmes on Access to Knowledge (A2K) and Communications from CI’s Asia-Pacific office in Kuala Lumpur.

Jeremy graduated with degrees in Law (with Honours) and Commerce in 1995 from Murdoch University, and completed his PhD thesis at the same University in 2008 which was the first doctoral examination of the Internet Governance Forum. He later

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adapted his thesis into a book titled "Multi-Stakeholder Governance and the Internet Governance Forum". Jeremy’s background is as an information technology and intellectual property lawyer and IT consultant with a research interest in Internet governance. He is admitted to the bars of the Supreme Court of Western Australia (1995), High Court of Australia (1996) and Appellate Division of New York (2009).

Norbert Bollow is a systems analyst and technologist who participates in the Free and Open Source Software (FOSS) movement, in international standardization, and in Internet Governance related debates. His advocacy work is motivated primarily by a strong desire for the protection of personal data and communications privacy.

Elena Pavan holds a degree in Communication Sciences (University of Padova, Italy, 2004) and a PhD in Sociology (University of Trento, 2009). She developed her expertise in the study and the use of social network analysis in various fields of research (from supra national governance political processes to human-computer interaction) and in conjunction with other analytical techniques, such as lexicon-content analysis. Her most recent research interests pertain to the relationships between collective action/political participation and social media use. Within this area, she is working interdisciplinary to combine technical and social knowledges into the study of sociotechnical systems and is employing network analysis techniques and tools. She recently published in international journals (e.g., Gazette) and in relevant Italian journals (Quaderni di Sociologia). Her PhD dissertation on Internet governance multistakeholder processes has just been released as a book for Lexington Publications.

Acknowledgments Consumers International would like to thank everyone who has contributed to this volume, to the event “Consumers in the Information Society: Access, Fairness and Representation” which it accompanies, and to the programmes and campaigns for which these papers are just the tip of a much bigger iceberg.

This work, in particular, depends directly on the support of our funders. Our Access to Knowledge programme is funded by the Open Society Institute (OSI), which also kick-started our campaign to amend the UN Guidelines for Consumer Protection. The research component of that UN Guidelines campaign is generously funded by the International Development Research Centre (IDRC). The campaign “Holding Broadband Service Providers to Account” along with our work on “Consumer Representation in the Information Society” are funded by Ford Foundation.

The views expressed in the papers here are those of the contributors, and not necessarily those of Consumers International or our funders. The individual citation styles used by each contributor have been retained, though the spelling has been standardised using British English. The editor accepts responsibility for any errors that may remain in the text.

This volume was typeset using the open source LATEX typesetting system, styled using a customised class based upon tufte-book. The body is set in Palatino at 10 points on a 14 point leading, and the headings in Iwona.

Consumers in the information society The opportunities and challenges that face consumers in today's online digital environment raise a range of new issues for the global consumer movement. For example, products that were once sold as goods, are now packaged as digital services, lacking many of the incidents of ownership that consumers expect. They are often delivered over broadband networks for which there are no uniform consumer protection standards. Many of the institutions making decisions for this digital environment do so without first hearing from consumers about their rights, interests and concerns.

Members of Consumers International (CI), the only global campaigning voice for consumers, came together from around the world to discuss and set an agenda for advocacy on these issues, at the first global summit "Consumers in the Information Society: Access, Fairness and Representation" held in Kuala Lumpur, Malaysia on 8 and 9 March 2012.

This book contains the research reports and working papers presented at that conference, including Consumers International's work on: • How the consumer movement can fight back against the insidious abuse of intellectual property rights by some large businesses, who use technology and "fine print" in consumer contracts to limit fair uses of cultural and educational materials that copyright law would otherwise allow. • Mapping the landscape of governance in the information society, to reveal where consumers are poorly represented in the institutions that wield power online, and to suggest how we can be given a louder voice in guiding these institutions to take account of our needs. • CI's leadership of an ambitious campaign to firmly reestablish a progressive agenda for today's connected consumers, through proposed revisions to the United Nations Guidelines for Consumer Protection.

ISBN 978-0-9567403-9-7

9 780956 740397

Consumers in the Information Society Access, Fairness and Representation ISBN 978-0-9567403-9-7

Consumers International Lot 5-1 Wisma WIM 7 Jalan Abang Haji Openg TTDI, 60000 Kuala Lumpur, Malaysia