July 8, 2003

An open letter to WIPO

James Love, director of The Consumer
Project on Technology
, sent us this open letter to the Director General of WIPO, asking for a WIPO-sponsored convocation to discuss open and collaborative development projects such as the World Wide Web and the Human Genome Project.7 July 2003

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

Dear Dr. Idris:

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

Sincerely,

(in alphabetical order)

Alan Asher
Consumers Association
London, UK

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

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

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

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

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

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

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

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

Felix Cohen
CEO, Consumentenbond
The Hague, the Netherlands

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

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

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

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

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

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

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

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

Nathan Geffen
Treatment Action Campaign
Cape Town, South Africa

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

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

Jeanette Hofmann
Nexus & Social Science Research Center
Berlin, Germany

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

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

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

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

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

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

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

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

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

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

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

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

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

Ken McEldowney
Executive Director
Consumer Action
California USA

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

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

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

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

Ralph Nader
Consumer Advocate
Washington, DC USA

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

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

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

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

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

Eric S. Raymond
President, Open Source Initiative
USA

Juan Rovira
Senior Health Economist
The World Bank

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

Mark Silbergeld
Consumer Federation of America
Washington, DC USA

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

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

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

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

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

Harsha Thirumurthy
Yale University, CT USA

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

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

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

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

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

Robert Weissman
Essential Action
Washington, DC USA

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

APPENDIX
Open collaborative projects to create public goods

These are some of the projects that could be discussed:

1. The IETF and Open Network Protocols.

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

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

2. Development of Free and Open Software

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

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

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

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

3. The World Wide Web.

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

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

4. The Human Genome Project (HGP).

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

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

5. The SNP Consortium

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

6. Open Academic and Scientific Journals

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

7. The Global Positioning System.

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

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