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Along with the current trend of aggressive expansion of IP4 regimes is a parallel movement rearticulating the importance of the commons of knowledge and cultural production. The idea of a knowledge and cultural commons borrows from the environmental movement and is based on the belief that a vibrant public domain of freely available knowledge and culture is vital for future innovation and creativity (Boyle 2002). Thus, even as copyright, patent and trademark systems are being promoted as the primary mode of understanding the production of knowledge and culture, another paradigm has emerged as a response to this regime of proprietary knowledge—a paradigm that proposes 'openness', 'collaboration' and 'freedom' with respect to information goods, cultural production and participation in the information economy. This new paradigm has been enabled to a large extent by the success of the free open source software (FOSS) movement and the GNU Linux operating system that has been hailed as a viable alternative to traditional copyright (Wong and Sayo 2004).
Copyright, fair use, and digital rights management
DRM refers to technologies that define and enforce parameters of access to digital media or software. There are extensive arguments both for and against the use of software patents and DRM and it is beyond the scope of this article to examine either position in significant detail. However, it makes strategic sense for policymakers to understand the scope and implications of both software patents and DRM.
Even Bill Gates, the most fervent supporter of copyright, has recognized the adverse impact software patents can have on the development of software. In 1991, Gates argued: 'If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors' (qtd. in Stallman 2005).
The ostensible reason for the deployment of DRM is to 'enforce' the copyright of the manufacturer or the copyright holder, as the case may be. It should be noted, however, that DRMs are not envisaged under TRIPS and they are included only in an additional treaty, the WCT. DRM effectively grants to the copyright owner protection that is not available to him or her under traditional copyright law. Take for example a publisher who compiles a database of materials legally in the public domain, such as Supreme Court cases, and then locks the CD under a DRM. Under traditional copyright law, users can access these cases for free. However, with DRM, any attempt to break the technology lock to access the database, even if it does not infringe any copyright, may render users liable under an 'anti-circumvention' provision. Effectively, DRM allows the copyright holder to restrict access to content simply because it is in digital format, even if that same content would be easily accessible under traditional copyright law. Another example is a person wishing to make a copy of a legally purchased media file for personal use or for backup, utilizing the flexibility sanctioned under a fair use provision. This person would not be able to make a copy if anti-circumvention laws under DRM exist. Such laws could also prevent private screenings of digital media, which would otherwise be perfectly legal.
We envisage DRM to have a significant impact on innovation. This is particularly significant for countries where the fruits of innovation need to be accessible to both the innovator and the consumer. An example is the Simputer, a low-cost handheld computer developed in India that would have been more difficult to invent if DRM laws existed in India. With the introduction of DRM and the criminalization of its circumvention, low-cost, locally relevant and contextually appropriate computer hardware and software may never become available to those who can least afford them.
DRM exceeds TRIPS minimum standards and amounts to a TRIPS-plus provision that is neither a necessity nor an obligation. Since TRIPS does not mandate anti-circumvention provisions, there is no legal obligation to enact them as law. As for the WCT, a country that is not a signatory to it is not obliged to enact such provisions into the national law. Nevertheless, it is imperative for developing countries to consider all of the implications of failure to resist pressures from the US and Europe to become signatories to the WCT, to introduce DRM or anti-circumvention laws into their IP law, or to take on equivalent commitments under a bilateral agreement.
For the reasons cited above, it seems premature for developing countries to be required to go beyond TRIPS standards and endorse the WCT. Developing countries should decide for themselves the level of protection their laws should afford to technological locks on copyright work and they should adopt anti-circumvention measures that are sensitive to their domestic situations (Garlick 2004). They should retain the freedom to legislate on the regulation of technological measures, in the interest of safeguarding access to knowledge and information and achieving broad socio-economic development, among others.
Should any Asia Pacific government decide to introduce DRM into its copyright law, it must introduce safeguards to protect users from corporate abuse of the anti-circumvention provision, that is, safeguards to allow users to exercise all of the fair dealing clauses specified within their existing law. This is particularly important given that DRM can affect legitimate research, such as use of copyrighted technical journals, educational materials and software by researchers and students in developing countries. Introducing DRM without adequate safeguards could seriously undermine the developmental goals of a country.
Free and Open Source Software is an alternative to proprietary software. FOSS grants users the right to use, distribute and modify source code freely.
Open access (OA) literature is digital, online, free of charge and free of most copyright and licensing restrictions.
Similar to FOSS, but in the domain of non-software content, such as learning materials, literary works, music, film and the like.
The Copysouth Group argues: 'For the purposes of access to computer technology throughout the global south, both open source software and free software can offer substantial advantages over the proprietary model. Furthermore, these movements offer an alternative to the proprietary model that is important in staking out an independent future for countries in the global south' (Story, Darch and Halbert 2006).
For developing countries, using FOSS significantly reduces the costs of acquisition of technology. As Ghosh (2003) points out:
…in developing countries, even after software price discounts, the price tag for proprietary software is enormous in purchasing power terms. The price of a typical, basic proprietary toolset required for any ICT infrastructure, Windows XP together with Office XP, is USD 560 in the US. This is over 2.5 months of GDP/capita in South Africa and over 16 months of GDP/capita in Vietnam. This is the equivalent of charging a single-user license fee in the US of USD 7,541 and USD 48,011 respectively, which is clearly unaffordable. Moreover, no likely discount would significantly reduce this cost, and in any case the simple fact that a single vendor controls any single proprietary software application means that there can never be a guarantee that any discount offered is intended to be sustained for the long term, rather than as a temporary measure used to tempt consumers into a lock-in situation….
Developing countries can customize open source software to suit their needs, and thereby also develop local skills. According to Ghosh (2003) in a 2002 study of FLOSS (Free/Libre/Open Source Software) developers and users, 'the most important reason for developers to participate in open source communities was to learn new skills—'for free'. These skills include programming as well as 'skills rarely taught in formal computer science courses, such as copyright law and licenses', teamwork and team management—skills which 'help developers get jobs and can help create and sustain small businesses'.
Because governments are one of the largest consumers of software, it is critical that they start weighing the costs of using proprietary software for example in comparison with the funding requirements of other developmental priorities. However, most Asia Pacific countries have no official policy with respect to FOSS, open content or open access. One reason is that most of these models work primarily within the domain of private contracts and are completely voluntary. Also, many governments claim vendor neutrality as the reason for not having a policy on FOSS. But given the kind of advantages FOSS can bring to governments, it is time to rethink the idea of vendor neutrality. According to the UK Commission on Intellectual Property Rights,
Given the considerable needs which developing countries have for information and communication technologies and the limited funds which are available, it would seem sensible that governments and donors should certainly consider supporting programmes to raise awareness about low-cost options, including open source software, in developing countries. Developing countries and their donor partners should review policies for procurement of computer software, with a view to ensuring that options for using low-cost and/or open source software products are properly considered and their costs and benefits carefully evaluated.
Besides the FOSS and open knowledge movements, there are also processes like the proposed Access to Knowledge (A2K) Treaty5 which is tied with the WIPO Development Agenda. Policymakers need to evaluate how they can integrate the promotion of open models as part of the larger framework of IP and development (Hahn 2002).
With reference to open content, one challenge that policymakers must address is how to deal with two policy questions within the open content movement, namely (a) existing content under copyright and (b) content that may be produced in the future using or with the support of public funding. On the first question there may be little that can be done within an open content framework and some questions are best addressed through a combined strategy of copyright reform and perhaps the use of national right to information laws, wherever they exist. On the second question, however, there may be some interesting possibilities. The demand that IP created using public money should remain within public control is not novel and it can be combined with the normative goals of the open content movement. Furthermore, the success of the open content movement in particular areas can become the basis for strengthening the claim of a direct linkage between open content and greater access to information and knowledge.
Open content has many synergies with existing campaigns and policy reform efforts, including the open access movement. The demand for open policies that would facilitate greater access could be advanced towards public universities, towards publicly funded research and also partially towards privately-owned content for specific uses, including access for visually disabled people. For example, traditional publications can be required to convert their material to open content after a few months of enjoying exclusive publication rights.