Archive for the ‘opendemocracy’ Category

Claiming our digital rights

Thursday, September 28th, 2006
My new column for openDemocracy comes ahead of international Day Against DRM (next Tuesday), and starts a thread of thought I want to pursue further - should we fight for our digital rights as “consumers” or “citizens”? I had an interesting conversation over coffee with someone who could be described as a veteran political insider yesterday. We talked about how language inside UK government has completely transformed over the years, such that the NHS, education and the welfare states are now all “services” accessed by “customers”. Apparently, the problem is that many people who access these “services” are not (yet) UK citizens, making the term problematic.
Urban inhabitants of the western world might be surprised to see handfuls of protestors outside their local Apple store next Tuesday. But rather than protesting about working conditions in Chinese factories producing hardware for the iPod, these freedom fighters will be damning practices that prevent them from playing digital music they’ve bought from the iTunes online music shop in their car. That’s right, this Tuesday 3 October is international “day against DRM”.
Read the rest here.

Revolution at our fingertips

Wednesday, September 6th, 2006
This fortnight’s column for openDemocracy centres on a book I discovered while researching a paper I am currently writing for the Ford Foundation on freedom of expression in the networked information age. The book is written by Ithiel De Sola Pool, a prolific scholar of political science and sociology. Although it was written in 1983, it is eerily prescient, and thus rather humbling. I believe it is out of print - a great shame:
When we are caught in the centre of an emerging phenomenon, in the eye of the networked information age’s storm, only the clearest thinkers can lead us to safe harbour. Historians have the benefit of hindsight, while those writers who have predicted everything from the demise of the English language through SMS messaging to the disappearance of musical innovation thanks to peer-to-peer filesharing will no doubt be silenced in the passing of time.
“A half dozen books have informed my thinking about the effects of the internet…”

Read the rest here.

Whose space is it anyway?

Tuesday, August 1st, 2006
With news in today’s UK papers that the Deleting Online Predators Act went down a storm at the House of Representatives last week, this fortnight’s column for openDemocracy asks if legislation is the right response to cases of child molestation involving social networking sites:
“Warning: this article cites language that some readers may find offensive

Supa Sam’s blog and profile on the social-networking site Xanga looks pretty innocuous at first glance. Not updated since January 2005, the blog features poor spelling and a liberal use of expletives in its detailing of the ups and downs of life as a teenage girl who is into rugby and singing (but not in public!). The profile image of a pretty blonde lying in her bedroom staring into her webcam confirms that this chick is just bored, bored, bored and looking for friends online.

Only one thing hints that things might not be as they seem. Tucked underneath the latest post, a comment dated 31 July 2006 reads: “Have fun in jail, you fucking child molesting cunt…”

Read the rest here.

Links used to research this piece can be found here.

Amnesty’s China hit-list

Friday, July 21st, 2006
Amnesty International released a new report yesterday calling on Yahoo!, Microsoft and Google to stand up to China and come clean to their global customers on web censorship behind the Great Firewall. Here’s my report on it for openDemocracy:


“Could people power stop Google, Microsoft and Yahoo! from doing business with China’s repressive regime? That’s certainly what Amnesty International hoped yesterday when they launched a new campaign urging web users to petition the three internet giants to reveal exactly what terms are forbidden from view inside China’s great firewall. The campaign is accompanied by a new report, Undermining Freedom of Expression in China, the role of Yahoo!, Microsoft and Google, which closes with some salient advice. Listing the footwear and apparel businesses…”
Read the rest here, and sign up to Amnesty’s Irrepressible Info campaign.

The Crown’s copyright con

Tuesday, July 18th, 2006
My fortnightly column for openDemocracy has just gone live, an extension of this post of last week:
“It is nearly two decades since the British government tried to ban Spycatcher, and you would expect them to have learned their lesson. After throwing £2 million in legal expenses after the biography of former MI5 operative Peter Wright, her majesty’s government was forced to admit defeat in October 1988, leaving ministers red-faced and Wright seriously in the black, thanks to the free publicity afforded his book by his repeated trips to courts across the globe. Eighteen years on, it’s the turn of the UK Foreign and Commonwealth Office (FCO) to have a go. But this time they have a new weapon in their armoury – the vagaries of the British copyright system.”
Read the rest here.

The abuse of ‘fair use’

Wednesday, January 18th, 2006
(originally published on openDemocracy)

American free speech is being squeezed by bad case law and the disproportionate power of intellectual property owners. US citizens must be vigilant, says Becky Hogge.

While the Bush administration stands accused of complicity in torture, corrupting the political process, and spying on its own citizens, the average American may find it hard to summon up the energy to get angry about copyright law. But a report published in December by New York University’s Brennan Center for Justice should make any American possessing even a passing familiarity with the works of George Orwell choke on their coffee.

Will Fair Use Survive?: Free expression in the age of copyright control represents a year-long survey of the health of “fair use”, a provision in US law that exists to ensure First Amendment rights when handling material protected by copyright and trademark law. The prognosis delivered by the report’s authors Majorie Heins and Tricia Beckles is grim. It seems that legal haziness surrounding fair use, and an increasing will among intellectual property owners to pursue infringement-related grievances through a prohibitively expensive legal system, are combining to stifle free expression.

Fair use is what lets me discuss the Brennan Center report in the first place. By quoting its title I am technically infringing the authors’ intellectual property rights (or the Brennan Center’s, depending on the terms of Heins’ and Beckles’ employment contracts). But because I am engaged in what the 1976 Copyright Act describes as “criticism, comment, news reporting, teaching…scholarship or research”, I’m not expecting to hear from NYU’s lawyers anytime soon.

Copyright terms in the United States can extend beyond a century, thanks to the 1998 Sonny Bono Copyright Term Extension Act. Consider the sentence “I disapprove of what you say, but I will defend to the death your right to say it”. Often misattributed to Voltaire, it was written by SG Tallentyre (Evelyn Beatrice Hall) in her 1906 work The Friends of Voltaire. Thus it is most likely still protected by copyright law. Can I quote it under US law? It illustrates a key view of free expression – but I am not critiquing it here. Am I, therefore, stealing it?

As an artist, critic, activist or scholar, gaining a judgment of fair use in the US relies on four considerations:

  • “purpose or character of the use” – is the new use of the “stolen” work transformative, in the artistic sense? Does it advance political debate? Was it “borrowed” for the good of society, or “stolen” to profit the “thief”?
  • how special was the original work? Was it an act of pained creative gestation, or an office memo (of which more later)?
  • how much of the original work was stolen?
  • what effect has the copyright infringement had on the market of the original work?
So far, so good. Indeed, in a recent piece on openDemocracy, Michael Handler of the Australian National University’s law faculty, offered muted praise for US fair use, in contrast to its more restrictive cousin, fair dealing, which only allows for the borrowing of copyrighted work for specific purposes.

But with flexibility comes uncertainty. And legal uncertainty will often be exploited by the party with the most legal resources – which leads to bad case law, which leads to more legal uncertainty… The history of fair use judgments since the 1976 act is a troubled one. In 2003, on completing a survey of US fair use judgments, copyright expert David Nimmer concluded that “had Congress legislated a dartboard rather than the particular four fair use factors embodied in the Copyright Act, it appears that the upshot would be the same”.

Fair use, then, has become an unreliable tool for free-speaking Americans. This means that artists and critics are being intimidated as they go about their business of enriching society and pushing intellectual and creative boundaries through critique and appropriation of previous human endeavour.

Contrary to a stereotype popular among Europeans, most Americans would happily go through their entire lives without uttering the words “I’ll see you in court!” Pro bono lawyers are hard to find and the chance of losing a fair use case conjures the prospect of penury and occasionally jail. As a result, the Brenner Center report found, many copyright infringement claims for which a valid fair use defence might exist are never fought, and criticism of commercial, political and religious practices is silenced.

The floodgates for spurious claims of copyright infringement are propped open further by the 1998 Digital Millennium Copyright Act (DMCA), which holds internet service providers (ISPs) responsible for infringing material they host on behalf of third parties. This piece of legislation – akin to motorway owners being held liable for traffic accidents, or telephone companies for prank phonecalls – means that more often than not a disinterested party gets to choose whether to flick the censorship switch.

The US legal environment surrounding fair use has thrown up some truly Orwellian situations. In 2003, a manufacturer of electronic voting machines used in the US election, Diebold Inc, sent a DMCA takedown notice to the ISP of students at Swarthmore University. Their crime? They were circulating internal memos discussing serious defects in the company’s product, memos for which Diebold claimed to own the copyright. Confident they had a fair use case, the students stood their ground. With support from the Electronic Frontier Foundation, they sued and Diebold backed down.

But Howard Hallis was not so pushy. When his ISP let him know they’d received a DMCA takedown notice from Chick Publications, one of whose creationist cartoons he had satirised on his website, he complied almost immediately, with the rueful comment, “the piece was done in fun, but you got to realise that the laws can censor you”.

Should the American public be so complacent, the frontiers of free speech may well retreat. The Brennan Center report’s recommendations call for better education of artists and critics over their rights to use others’ speech, backed by a larger pool of pro bono lawyers ready to take on the big boys for the sake of the First Amendment. As for a change in the law? Don’t hold your breath. As Lawrence Lessig candidly observed last month: “The good stuff on ‘fair use’ just won’t stop coming (if only now we could get some good judicial decisions).”

The online public finds its voice

Tuesday, November 29th, 2005
(originally published on openDemocracy)

The Open Rights Group campaign for online freedom of information, individual liberty and the integrity of the public domain is a new stage in the defence of digital rights, says Becky Hogge.

Tonight, I am following in the footsteps of a Grateful Dead lyricist, Sun Microsystems’ fifth employee and the inventor of the spreadsheet. Like John Perry Barlow, John Gilmore and Mitch Kapor, who together founded the United States-based organisation the Electronic Frontier Foundation (EFF) in 1990, I am starting my own campaigning group for online rights. Well, I can’t take all the credit. Together with over 1,000 other people I have pledged that I will pay £5 (approximately $8) each month for the sake of a voice in an arena where our future online civil rights are at this very moment being put to paper.

It’s an innovative way to start a campaigning organisation. Not until a critical mass of 1,000 people had been reached (with a last-minute call from cult blog BoingBoing for the final thirty-three signatories) could the Open Rights Group (Org) come into being. Using Pledgebank.com, a site designed by British civic participation hackers MySociety, the co-founder of British netzine Need to Know Danny O’Brien (himself an EFF émigré) started the process off. He pledged that if 1,000 people would join him, he would commit to funding a modest advocacy group that would give a voice to young technologists in the press and at the drafting table to the tune of £60 a year.

This bottom-up approach is testament to the organisation and the values it represents. But the thrill of being involved has not allowed the Org project to pass by without criticism – in fact, the openness of the group has exposed it to heartfelt involvement from many sides. But the project has already met with its first success. In speaking out against content owners’ desire to be treated as equal to security services in terms of access to electronic personal data – a piece of draft law currently being fast tracked through the European Union – Org has finally added the crucial alternative voice in the modern dialogue of online rights.

Campaigning for digital rights is a very wide mandate. Not only is access to the internet increasingly, and rightly, being seen as a basic right, but the traditional concerns of civil rights are magnified in the virtual world. With more personal data swimming around in the ether than ever before, and with security services more enthusiastic than ever to get their hands on it, privacy is top of the agenda, and hopelessly skewed. Likewise freedom of speech. The recent sentencing of Chinese journalist Shi Tao on the strength of evidence provided by a third party global corporate entity should prove that the impossibility of global governance of the net also has its downsides.

Information and free sharing

But there is another side to digital rights campaigning that is unique to the information age. Not only must we protect the right to withhold our personal information and maintain our privacy, to transmit information and thus be free of censorship, we must also protect the rule of law which governs ownership of information.

Information behaves very differently to other resources. Unlike land, trees, water, or oil, it is not a finite resource – if I tell you something I don’t forget it, we both know it – and therefore cannot be governed by laws of scarcity. Instead, a long-established system exists to harness the behaviour of information to bring the best net benefit to society. Copyright and patent law exist to grant creators of information – be they inventors or artists – a temporary, incentivising, monopoly over the use of their creation before it is assigned to the public domain, where it can be forever shared.

Intellectual property law is the name of this system, and up until the arrival of the information age it has played a bit part in the legal mechanisms that keep our democracies healthy. But in the last forty years it has been transformed: first prodded and poked, then extended in scope (the patenting of the mathematical algorithms that make up a piece of software, or the individual genes that make up a human being) and length (copyright terms, initially equal to the patent term of seven years, can now last a startling ninety years). The accumulative result is that the balance intellectual property law creates between monopoly and freedom has become almost unrecognisable.

The reason this crucial body of laws has been messed around with is to a certain extent the same reason that many laws which keep our democracies intact get messed around with – lobby groups with cash in the budget to buy influence get hold of people in power who draft proposals away from the eyes of the media or concerned citizens. But the absence of an advocacy group specifically to speak out in favour of the public domain has also been a problem – a problem that Org hopes to fix.

Lobbying for the public domain won’t be all Org gets up to – indeed its first success has very little to do with it. But it will form a crucial part of online rights campaigning. Because protecting the public domain is basically protecting the internet. Not in the sense that without the public domain, there would be nothing to transmit across the internet (copyright exists on the net, no matter how much it is violated) but in the sense that the internet relies on the philosophy of the public domain in order to exist.

The internet is based around open standards – protocols that everybody knows (or at least has the right to know) and that everybody can use freely. Tim Berners-Lee often gets asked whether he regrets not capitalising on his invention, the Hyper Text Transfer Protocol, the lingua franca of the World Wide Web. He always replies that he doesn’t, for the simple reason that if he had tried to exert a monopoly over http, the web simply wouldn’t exist.

Doc Searls, widely seen as a prophet of the internet thanks to his co-authorship of The Cluetrain Manifesto and The World of Ends: what the internet is and how to stop mistaking it for something else, recently wrote: “We need to make clear that the Public Domain is the market’s underlying geology”. The internet is a hymn to openness, and I’m pleased to be helping an organisation that will be singing that hymn in Westminster, Brussels and Geneva.

Why the WSIS? Democracy and cyberspace

Tuesday, November 15th, 2005
(originally published on openDemocracy)

The debate about who governs the internet will dominate the World Summit on the Information Society meeting in Tunis this week – but the world’s web users have more important things on their mind, says Becky Hogge.

One of the biggest draws of the information technology scene is that, unlike nearly any other sector of civic life, it does not tend to attract argumentative people in the twilight of their careers debating aimlessly in closed rooms without having the first notion of what they’re talking about, just because they’ve come to feel very lonely when not accompanied by the sound of their own voice. If technology has one central piece of lore, it is “find it, fix it”. But times they are a-changing. Take a ringside seat at WSIS round two, starting this week, and you can say you were there when the tides turned.

Instead of getting down to the real business of pondering why, if this info-juice is so wonderful and free and everything, whilst I’m timestamping my political satire .mp3 downloads on the bus, there’s a whole village in east Africa sharing one mobile phone, at the UN’s World Summit for the Information Society in Tunis on 16-18 November we’ll be asking: who controls the net? That’s right, it looks like after all this time – why, we nearly had Mr Murdoch in a sweat back there – the world wide web was something that could be controlled after all.

The question being put to the floor is, should the US government cede its control of the Internet Corporation for Assigned Names and Numbers (Icann) to the UN? To most of global civil society, the answer seems clear. Of course the internet, a global phenomenon, should be controlled by a global organisation, no matter what we might think of the UN right now. Why leave it up to the Americans? What have they done for world peace recently?

But to every point comes a counterpoint. “Will the internet become the Unternet? ” screeched Tech Central Station last month. The headline (which, however misguided, possesses a beauty to make your average sub weep) captures perfectly American fears that its homegrown, freedom-delivering invention will become bogged down in geopolitical grey goo the moment it cedes control to the UN.

The minute you scrutinse what “control” Icann currently exerts over the net, both these arguments start to look a little premature. Because the holy grail of internet governance about to be debated at WSIS is a little thing called the root zone file – the system which controls the distribution of top-level domains (like .com, .org and .net) that make up the majority of the World Wide Web. Icann maintains the root zone file by virtue of a very tight, exclusive contract with the United States department of commerce. And the reason the DoC exerts control over the root zone file is because it bought it from a geek called Jon seven years ago.

As the Internet Governance Project so rightly point out in their recent report The political oversight of ICANN (no pun intended), this knotty arrangement with Jon (now deceased, who’s company, VeriSign, currently owns the largest domain-name registry business in the world) means that wresting control of the root zone file from the US commerce department would most likely involve a Congressional debate. US law and technology do not happy bedfellows make (the US Supreme Court recently outlawed the photocopier) and the prospect of a nationally-lobbied US Congress having ultimate say in the future of the root zone file is almost as haunting as that of a conglomerate of techophobe heads of state working out what to do with it.

A debate about the governance of Icann is long overdue. But what that debate is not about is freedom of speech, human rights, spam, or any other of the motley crew of concerns that have been brought to the negotiating table at WSIS. Icann may be an opaque and cumbersome organisation, but the root zone file is not the internet. George W Bush cannot delete it in a fit of neo-conservative pique.

True, religious lobbying of the DoC did result in severe delays in the assignment of a dedicated top-level domain name for pornographic material, .xxx. Further, accusations have been levelled at Icann that (rather unsurprisingly) it favours US business interests and has been slow to move on multilingual top-level domains.

But Icann is not watching you, nor is it scanning your correspondence for keywords like democracy. Icann is not partitioning off the bit of the web that tells you the meaning of life, or tomorrow’s outcome at the horse races. Just as American liberals are wrong when they opine that ceding “control of the internet” to an international body would allow repressive regimes like Saudi Arabia and China to cripple the net overnight, so civil society is misguided when it looks to UN “control of the internet” to bridge the digital divide (and in this respect it might well like to look at the UN-sponsored International Telecommunication Union’s record on competitive internet service provision in the developing world)

Throughout its short history, Icann has tried to find ways to “control” the web beyond the assignment of top-level domains, and Icann has failed. Now it’s the UN’s turn to fail. “Strong feelings about protecting the internet are to be expected” wrote Kofi Annan in a tempered Washington Post editorial comment (“The U.N. isn’t a threat to the net”, 5 November 2005), his attempt at calming everyone down. But feelings, no matter how passionately felt and how eloquently debated in Tunis, will not change the internet.

Whether we rent our space in the virtual world from a US-controlled Icann or a UN-controlled Icann, in the end we, the users of the internet, are the ones in control. And the World Summit on the Information Society would better spend its time this week working out how to get the next 5 billion users onto the information superhighway, rather than wasting our time erecting the kind of top-down policy roadblocks that the “find it, fix it” web has categorically demonstrated it can easily route around.

Open source nation

Monday, September 19th, 2005
(originally published on openDemocracy)

Geoff Mulgan sees two ways in which organisational principles borrowed from the world of open source can make the political process more accountable. One is in turning democracy back into a conversation, the other in allowing the people to scrutinise public services. But, he warns, there still needs to be a recognisable place where the buck stops. Becky Hogge spoke to him.

Earlier this year, Geoff Mulgan and Tom Steinberg, with Omar Salem, published a paper for the UK think tank Demos which is widely becoming seen as the seminal work on open source methodology.

The paper, Wide Open, described the methods developed in the production of the open source operating system Linux and the free, collaborative encyclopedia Wikipedia as embodying:
“a new way of creating knowledge that combines an open and democratic ethos with the extraordinary ability to produce work of high quality and on a huge scale”
Wide Open investigated possible applications of these methods in fields as diverse as bioscience, politics and journalism. openDemocracy’s Becky Hogge went along to Geoff Mulgan’s offices at the Young Foundation in east London to find out what open source methods can do for 21st century politics, and where this leaves traditional ideas of accountability.

***

Becky Hogge: Can open source methodology, or, as the paper preferred to call them, open methods, really be called democratic?

Geoff Mulgan: When we wrote that, we meant democratic in spirit. With open methods, anyone can take part without prior qualifications or having been asked to do so or being part of an established hierarchy.

Democracy is conversation and there are deep roots for ideas about a society being able to talk about itself, going back to the Buddhists and the ancient Greeks.

Every civilisation has traditions of people arguing – this is not a western idea at all. Of course when democracy came into being in the late 18th and 19th centuries, because of the scale of the organisation of the state, because of the lack of technology, those conversations had to essentially take place within parliament – speaking parliaments with speakers overseeing them and so on. The rest of the conversation was somewhat of a monologue either by parties or newspapers.

In a 21st century democracy, many more people should be involved in the conversation that precedes a decision. It’s really only in the last twenty or thirty years that technology has made it possible to rethink how to organise much wider conversations that involve sixty million people in a country like the UK or several hundred million in a country like the United States.

But for those conversations to be meaningful there have to be organising principles, there can’t just be a free-for-all cacophony because not everyone can be heard in the permitted bandwidth.

Becky Hogge: And that’s where open methods come in?

Geoff Mulgan: Yes. Essentially, where the object is producing the best and the most usable thing, which may be a Wikipedia or a software programme, the argument is that most existing organisational principles we have don’t work very well. Therefore, organisational principles which reward or give most weight to the best, the most respected, very much like the vetting procedures of Linus Torvalds and his deputies or the collective scrutiny of Wikipedians, should be superior.

Tom and I spent a lot of time trying to find the appropriate word for this kind of organisational structure, going through our ancient Greek dictionaries. The irony is that “aristocracy” technically means rewarding the best input but, of course, every aristocracy that we’ve ever come across is full of the worst rather than the best so the word has completely lost that meaning.

Becky Hogge: So reputational systems, like the ones used in creating Wikipedia or Linux, can help structure wider conversations that lead to better democracy?

Geoff Mulgan: That’s right. At the moment reputational systems look like the best ones to run with. My expectation is that within the next twenty or thirty years you will see lots of experimentation with direct participative models. Deliberative polls, citizens’ juries and reputational systems – and each of these uses a different principle of how to involve a much larger number of people and the ultimate test will be which delivers more legitimate, better decisions in the long run.

Becky Hogge: But this sounds an awful lot like “consultation” – isn’t that a dirty word in politics?

Geoff Mulgan: Sure, sometimes. Take, for example, the British Labour party’s “Big Conversation” of a year and a half ago, which I was heavily involved in trying to design. That was attempting to get a more genuinely reciprocal conversation between the ruling party and the public, holding hundreds of meetings in constituencies with MPs, stakeholder groups, NGOs and so on, in a fairly public way.

One of the very predictable problems that exercise ran into was that it went alongside some classic internal decision-making, strategy-making processes which in some ways were superior to an open conversation. If you are trying to plan exactly what the National Health Service should do in the next five or ten years you get involved in huge complexities of money, organisation and so on which you can’t really get to in a general discussion. But you can have regular discussions on something like smoking bans, about what to do with alcohol, or chronic disease management.

Secondly, a lot of the bits of the party really had no training in how to do open conversation, including MPs. Some MPs were brilliant at it, but some were simply not culturally at ease with a genuinely open conversation about politics and policy. They were used to being a transmission belt from the centre and I think to a degree the media and the public didn’t know what to think. They weren’t sure whether it was a completely manipulative ruse to give the appearance of openness or if there was anything serious in there. In a way this was probably a transitional example.

But my guess is that in the future all parties will feel the need to have some kind of conversation with an electorate ahead of their manifestos and policies and it will always be somewhat ambiguous. In some ways what comes out will not reflect what happened in those conversations but instead will reflect the beliefs of the leaders and the core party.

If it doesn’t then, to some extent, what’s the point of having them there to make sometimes difficult judgements which may go against what the public wants? But I think the era of simply top-down monologue organisation is over and I think the Labour party should at least be commended for having made the attempt to do things in a different way.

Becky Hogge: So open methods aren’t there for the difficult decisions?

Geoff Mulgan: For institutions spending large sums of money, going to war, things like that, I would be pretty worried about any organisation or innovations which made it less clear where the buck stops. There are lots of other activities ranging from the organisation of science to culture where you can have much more efficient ways of doing things without very strict hierarchies. But, crudely, you need the most accountability the closer you get to the core power activities of the state which are essentially spending money and using force.

Becky Hogge: So, if open source isn’t for decision making, what is it for? And does it always compromise accountability?

Geoff Mulgan: Not at all. Right now, the UK is spending several billion on auditors and inspectors for its public services – often on people who should be actually teaching in schools and working in hospitals. In my ideal future, much more of that work is performed by the public using open methods supplemented with templates to make sense of what they should be looking for in their local schools, their hospitals and their police force.

These volunteer scrutineers would use open methods to aggregate deliberation and to get the messages to the right managers, as it were, in close to real time. It will still be up to each of those agencies whether they take any notice of it or not – that’s the pinch, the weakness of open methods. But once you have that in place it would greatly change the operating climate for public services.

So if you were a police chief and you had hundreds of thousands of people in your area commenting on whether you were making the right decisions on – it could be stop-and-search policy for example – then that’s one of the things the media would look to, that’s one of the things elected politicians would look to and the whole climate of behaviour would shift. That’s where I think these open methods are most appropriate.

Becky Hogge: But with so much disenchantment surrounding the political process and public services, in Britain and elsewhere, is that scenario really plausible?

Geoff Mulgan: A huge amount of our society works on this kind of gift economy. The National Health Service has at least half a million volunteers without whom it would collapse tomorrow. The schooling system has, I think its four hundred thousand governors at the moment, none of whom is paid a penny to help their local schools to operate. Despite what is happening to democracy in terms of disenchantment, we still have twenty thousand councillors and hundreds of thousands of political activists working on a voluntary basis.

Most people aren’t doing it for any particular reward. You could also say that much of art and culture is essentially a gift model. People are motivated by the quality of what they do and what they are involved in, and not always by monetary reward. I don’t see any sign of that diminishing.

I think the challenge for any of the new ideas in the open methods field is whether people in practice will be motivated enough to get involved. This will hinge on whether they see a direct enough link between what they have put in and something happening. Precisely the appeal of something like Wikipedia is that you can see a relationship between what you put in and what you get out. I would like to see many other domains in which there was a clearer link between input and output.

Becky Hogge: To sum up, do you think open methods offer significant innovation to accountability practice?

Geoff Mulgan: There’s a tradition of how you make people accountable to you before they act, ex ante, for example by giving them a mandate. Then there’s a whole tradition of being accountable after the act, post hoc, like general elections to decide if the government is any good, or AGMs where a company is judged on the totality of what it’s done.

I think what’s very interesting about open methods is that they are introducing something more like real time accountability and feedback. Even if that won’t have quite the same sort of constitutional strength as the ex ante or post hoc accountabilities, open methods will probably do more to change the spirit, the climate of decision-making than almost anything which can be done from either end.

Democracy and dissent at the World Intellectual Property Organisation

Monday, April 25th, 2005
(originally published on openDemocracy)

On World Intellectual Property Day, Becky Hogge speaks to Cory Doctorow, who has been campaigning for reform at the World Intellectual Property Organisation for two years, about the strains put on the democratic process by the arrival of dissenting voices.

Today, 26 April 2005, is World Intellectual Property Day, a celebration of the power of the copyright, patent and trademark disciplines to foster creativity and innovation around the world. It is a day sponsored by the United Nations’ World Intellectual Property Organisation (Wipo), a UN organisation unlike any other. In the flock of the organisation with aspirations towards international democracy, yet funded by the big business of worldwide trademark and patent registration, Wipo’s plush Geneva headquarters have traditionally played host to lobbyists of corporate power, not champions of the developing world.

Why this should be so boils down to a simple equation – that copyright, patent and trademark law incentivise creators and therefore stimulate development. Now, technologists and their allies with a different vision of how Wipo should operate are challenging the logic of that equation. And in the face of such dissent, the democratic fabric of the institution is being stretched taut.

Cory Doctorow is one lobbyist who has been at the front line in Geneva for some time. Back in 1999, his fledgling technology company’s investors “freaked out” about a copyright-driven lawsuit filed against a company using a similar technology to his - Napster. As he faced growing pressure from his investors, Doctorow sought help from the Electronic Frontier Foundation (EFF), an advocacy organisation and impact litigation house that campaigns for the rights of technologists. He later left his company to work for EFF full time. His speciality is legislation on copyright, legislation that in his experience is often exploited in the drafting stages by lobbyists from incumbents on the market seeking to create a “permissions culture” for technologists and other innovators – in his words, “profoundly anti-competitive stuff”.

A different world

Two years ago, the EFF got a call from James Love, head of the Consumer Project on Technology and celebrated hero of access to medicine initiatives that saw big pharmaceutical players slope away from lawsuits against the South African government over the purchase of generic versions of patented retrovirals in the fight against HIV/Aids. Love had spent years at Wipo, mainly agitating for patent reform, and had noticed a vacuum of dissent against draft global copyright treaties. Delegates without a strong handle on the potential of new technologies, were, in the name of copyright, putting checks and balances on these technologies that would make valuable innovations illegal. The only lobbyists present were those representing the incumbent rightsholder and broadcasting groups. Could the EFF help?

“It’s a very different world working at Wipo”, says Doctorow,
“so when [Love] approached us the initial reaction from the people on staff was ‘how can we possibly make a difference here? We’re outgunned, we don’t know what’s going on, it’s diplomatic, we don’t know who to sue – all the stuff we’re good at we don’t know how to do here.’ But there were elements of history that resonated”
. At Wipo, just as in the various midnight meetings on broadcasters’ rights in the digital age the EFF had gradually been gaining access to in the United States, the democratic process was in danger of breaking down for lack of people speaking up for the other side: “The most egregious lies were being told about how the world worked and nobody was sticking their hand up and saying that’s not true.”Cory’s first job at Geneva was to step into negotiations over the Broadcast Treaty, a theatre of discourse aimed at updating a 1961 treaty in the light of the impending switch from analogue to digital. What he found was an audience of national delegates already held captive through five years of negotiation by lobbyists from rightsholder groups and incumbent broadcasters. New technologies were represented solely by webcasting businesses keen to sew up the market against future competition.

The arrival of dissenting voices at Wipo, where Doctorow has forged alliances with various intellectual property (IP) reform NGOs, has tested the democratic process. Their lobbying on such diverse tickets as international development, the safeguard of the public domain and the rights of archivists, says Doctorow, is viewed as “arriviste” – they are a “rabble” capable of swerving carefully planned negotiations off course when there was policy to make.

Delegates whose tentative grasp of the meanings of new technologies often came from close collaboration with incumbent lobbyists such as the National Association of Broadcasters suddenly found they were being asked to pick sides.

One of the more controversial activities of the IP-reform lobbyists since their arrival at Wipo, Doctorow remarks, has been the spontaneous publication on the web of impressionistic notes taken from the various negotiations through at-table blogging.
“Normally the way that Wipo transcripts are produced is there’s a six-month delay during which the secretariat’s notes are sanitised by circulation to all the members – ‘here’s what we’re gonna say you said, would you care to re-write it?’. And you end up with this kind of linen-draped version of the negotiation months after it happened. Whereas we go in and take collective notes which we publish twice a day. We are told that there are delegates who get phone calls in the afternoon about what we’ve posted about what they’ve said in the morning.”
Doctorow is puzzled at the reception of this practice: “They characterise that as an abuse of their hospitality because we’re telling tales. But it’s the UN, right? The idea that the UN proceeds in secret is the stuff of paranoid fantasy.”

Indeed. Last November, during the twelfth session of the standing committee of copyright and related rights, Doctorow found himself clinging on to the reins of reality after literature IP-reform NGOs had produced for the session was continually moved from the handout table to the wastepaper basket in the first-floor men’s toilets.
“This wasn’t flyers with skulls and crossbones on them saying you guys can all burn. This was thoughtful, well-informed, substantive comment on the process that we as observers have been invited to present. We ended up posting Rufus (Pollock, from the Campaign for Digital Rights). Rufus stood by the table for two days.”
Doctorow claims that further attempts to exclude the reformist argument from treaty discussions were made when Wipo “switched policy” on attendance leading up to talks on the Development Agenda earlier in April. The Development Agenda is the first piece of legislation to pass through Wipo that questions the direct link between strong intellectual-property protection and development, and had been directly facilitated by Doctorow and his allies. Whereas previously both ad hoc and permanent observers had been welcome at such talks, Wipo announced that only permanent observers could attend this meeting; thus excluding the majority of reformist NGOs, although not the EFF.

Whose democracy?

Doctorow and his partner NGOs’ message is perhaps a little too much for the delicate ears of Wipo, an organisation funded by the trademark and patent-registering business that until recently would never have given the appropriateness of that arrangement a second thought. The three aims of this year’s World Intellectual Property Day suggest Wipo’s continued belief that development comes from protection of intellectual property and that if you want more development, you need more protection. That core idea has now been challenged.

After a two-day conference in September 2004 a coalition of NGOs produced the Geneva Declaration on the Future of WIPO. Signed by high profile free software and copyleft advocates, access-to-medicine campaigners, library associations, academics, Nobel prize-winning scientists and development organisations such as Oxfam, the declaration demands that Wipo re-examine its ideas about the logical link between copyright, patent and trademark protection and the ultimate goal of its UN mandate: development.

Noting the emergence of other intellectual-property disciplines within which development has been shown to flourish, and condemning the anti-competitive advantage Wipo had bestowed on its most vocal lobbyists in the past, the Geneva Declaration has already provided a springboard to Argentina and Brazil from which to launch the Development Agenda.

These and other rebel delegates from the global south, who have identified an opportunity to swing the global intellectual-property agenda – so intricately linked to world trade – in their favour, have a tough battle ahead. Doctorow reveals the tensions at one meeting:
“There was a proposal to cancel the June meeting in favour of a series of regional meetings, which is widely understood to be a divide-and-conquer tactic. Brazil, Chile, Argentina, India…spoke out passionately against it and said ‘we block it, this is a consensus body, and without our consensus you can’t go forward with this’. And the chair put it to a vote, and they had a vote, and he said ‘well that’s democracy’. Their response was ‘what do you mean that’s democracy? We have a deliberative process, and the deliberative process is consensus oriented, there’s no consensus in this room’. The chair’s reply was that the consensus is on substance not on points of procedure.”
Cory Doctorow is confident that his and other NGOs’ activities will end up having a lasting, positive effect on Wipo’s engagement with the developing world. As with many geeks, there is idealism just underneath the earnestness. At the end of our interview he quotes Gandhi: “‘First they ignore you, then they laugh at you, then they fight you, then you win”.