Free culture, global commons and social justice in information technology diffusion.

• Author: Paliwala, Abdul
• Position: Essay

Abstract

This paper examines the critical role of the global expansion of IP rights in the construction and maintenance of digital inequalities and suggests that the irresolution of the World Summit on Information Society (WSIS) as well as the struggles for a Development Agenda mark a crucial dimension in the global politics of digital inequalities. It suggests that a pathway to understanding these politics is a critical analysis of the nature of intellectual property rights in the context of a changing societal environment. Relations of production and hence human interaction are being transformed in ways which question the nature of property rights. It also suggests that arguments on this issue in developed countries take a different tenor in the Global South and require rethinking of issues such as sanctity of property, piracy and digital social justice.

Keywords: Information Technology, Digital Divide, Right to Development, Social Justice, World Summit on Information Society, WIPO Development Agenda, Intellectual Property, Piracy, Network Society, Network Modes of Production

1. Introduction

The World Summit on Information Society (WSIS, 2003, 2005) has suggested many solutions to the uneven global distribution of digital information and technology. Yet one area in which the deliberations were remarkably muted was on the issue of the role of intellectual property rights. In theory, these issues are being considered by the World Intellectual Property Organisation (WIPO) under its Development Agenda (Ermert 2005, New 2006, Endeshaw 2006), but there is more than a suspicion that they have been pushed under the carpet.

This paper examines the role of digital intellectual property rights in the global digital divide between developed, newly industrialising and developing countries from the perspective of developing countries of the Global South. It suggests that these issues need to be understood in the context of a critical analysis of intellectual property rights in a changing societal environment. The paper commences with a brief exploration of intellectual property rights in information technology at WSIS and WIPO. The next section addresses the question of the nature of change in production relations that has taken place in the Age of Information and the significance of Free and Open Source Software and Content (FOSS-C) movements. It then briefly considers the nature of digital inequalities in developing and newly industrialising countries. The final section considers the potential for digital social justice resulting from three different dimensions. The first is the application of arguments based on changed production and property relations in the South, the second explores the way in which people in developing countries are affecting their own solutions to digital divides through subversive strategies which involve porous relationships with legality and challenges to notions of sanctity of property and piracy. The final dimension is that of reformist arguments based on the Right to Development whether, the milder version proposed at WSIS or the more radical Development Agenda being proposed by the Group of 14 at WIPO.

2. TRIPS, WSIS and WIPO

The term Global Commons has become part of common parlance and intellectual property rights in information, bio- and nano-technologies are at the Centre of the argument about an 'invasion' of the commons (Austin 2005, Frischmann 2005, Faber 2005, Yu, 2005, Lessig, 2003). For developing countries, it is the TRIPS (Trade, Related Intellectual Property Rights) Agreement of the WTO which is responsible for the extension and globalisation of intellectual property rights (Correa, 2000). Of course in strict terms TRIPS allows each country to have its own property regime. Nevertheless, the requirement that the regimes must adopt certain principles is tantamount to the development of a global IP regime in its essentials. The globalisation has been on terms which have been largely dictated by developed countries, and effectively has overseen the imposition of US intellectual property principles on the rest of the world. Santos (2002, p165) uses the term 'globalised localism' to describe this process under which what is being developed is not a genuine global meeting of the minds, but the imposition of a particular local culture on the rest of the globe. Such an attempt was bound to face difficulties once the quid pro quo offered to countries of the Global South for accession to TRIPS did not materialise (especially appropriate agreements on agriculture). Once South countries and NGOs supporting the South cause found the cost of TRIPS to be too high, agitation for fundamental reforms was bound to ensue. In this respect, the Doha Declaration of the WTO (2001) under which it was understood that the Public Health and emergency exceptions under Articles 8 and 31 of TRIPS would be interpreted liberally, was only one aspect of a more general concern with TRIPS. In the context of information technology, the issue is that the systems of regulation of trade and intellectual property rights are responsible for exacerbating digital divides between countries of the North and South.

The recent Tunis session of the World Summit on Information Society (WSIS, 2005) reaffirmed the Declaration of Principles and Plan of Action of the Geneva Session (WSIS, 2003) and proposed a wide range of measures on the bridging of global digital divides. For the purposes of this paper, a key principle of the Geneva Declaration was universal access to the infrastructure and services of the Information Society. This was to be struck through a balance between fair competition, private investment and universal access obligations. The key vehicles for this balance were to be promotion of public domain information and awareness of the possibilities offered by different software models, including proprietary, open-source and free software.

Thus the Geneva Declaration (WSIS, 2003) Suggested:

27. Access to information and knowledge can be promoted by increasing awareness among all stakeholders of the possibilities offered by different software models, including proprietary, open-source and free software, in order to increase competition, access by users, diversity of choice, and to enable all users to develop solutions which best meet their requirements. Affordable access to software should be considered as an important component of a truly inclusive Information Society. 29. Our conviction is that governments, the private sector, civil society, the scientific and academic community, and users can utilise various technologies and licensing models, including those developed under proprietary schemes and those developed under open-source and free modalities, in accordance with their interests and with the need to have reliable services and implement effective programmes for their people. Taking into account the importance of proprietary software in the markets of the countries, we reiterate the need to encourage and foster collaborative development, inter-operative platforms and free and open source software, in ways that reflect the possibilities of different software models, notably for education, science and digital inclusion programmes. Nevertheless, if respectable mentions of universal access, public domain, open source and free software and information models gave rise to a sense of optimism, the Tunis Summit, while reaffirming the Geneva Declaration and Plan of Action, managed to sideline the issues involved. Consideration of the IP issue was largely dealt with at fringe meetings organised by civil society groups. Civil society groups were disappointed by the actual lack of any considered attention to key issues. Even Geneva Summit documents are replete with the importance of the need to protect intellectual property in order to promote innovation and creativity:

42. Intellectual Property protection is important to encourage innovation and creativity in the Information Society; similarly, the wide dissemination, diffusion, and sharing of knowledge is important to encourage innovation and creativity. Facilitating meaningful participation by all in intellectual property issues and knowledge sharing through full awareness and capacity building is a fundamental part of an inclusive Information Society. And Para C3 10 (d) of the Plan of Action similarly suggested that any broadening of access had to take place within the confines of respect for IPRs (1) However, somehow it was hoped that the inclusive wording of the Geneva Plan of Action C3 10e:

Encourage research and promote awareness among all stakeholders of the possibilities offered by different software models, and the means of their creation, including proprietary, open-source and free software, in order to increase competition, freedom of choice and affordability, and to enable all stakeholders to evaluate which solution best meets their requirements. It was hoped that this would lead to a greater emphasis at Tunis on the issue of the coexistence of different software models. However, the Tunis WSIS made no further progress on these issues. While the Geneva Principles and Plan of Action were reaffirmed, the actual statement emerging out of Tunis was in very similar terms if slightly more guarded suggesting support for a variety of software models. (WSIS, 2005, para 49). The main disappointment for NGOs was that very little consideration was given in the Summit and Fringe sessions to further development of issues relating to intellectual property. A number of organizations including the International Federation of Libraries Association, (IFLA), the Free Software Foundation Europe (FSFE), Intellectual Property Justice and the Consumer Project on Technology were all supportive of a proposal introduced at the WIPO General Assembly in 2004 for fundamental review of WIPO treaties including a Treaty on Access to Public Information to take account of...