New world, new laws, new strategies

Hacking the international legal system on copyright and patentes

Marco Ciurcina

Hipatia

2004

The scenario

On the path toward the information and knowledge-based society we are experiencing a deep change in the world: a real paradigm shift.

The "immaterial" (the spirit) is getting more important in comparison with the "material".

In order to follow this change it’s necessary to update the pertinent laws (mainly patent and copyright, but also others - hereinafter referred to as Knowledge Laws): the old laws created for the industrial society are inefficient for the knowledge-based one.

The capacity of the laws to shape the "immaterial" it is further beyond what we are experienced to within the "material" world: we have the power to choose which world to create.

The phenomenon of free software shows that in a networked world freedom and openness are very effective in creating community among people, fairness and wealth.

Law modification process

There are two main characteristics of Knowledge Laws modification process we experienced during the last decades:

1) changes in Knowledge Laws followed economic reasons: little space was given to ethical arguments (apart of those of "defending authors rights" and "fostering economy and industry");

2) changes in Knowledge Laws followed a "regulatory competition" model, i.e. the most advanced system selected the rules that were more suitable to protect its own industry, causing other legal systems to follow.

Regulatory competition is a stereotyped model in the nowadays globalisation scenario, where legal systems confront each other by imposing more severe rules in order to protect interests of specific parties, without taking into consideration that this strategy damages, at a global level, the whole community.

Regulatory competition is a negative externality of globalisation: the choice of one law-maker (that is inefficient at a global level) is based on specific needs that put that legal system in a "prisoner's dilemma" situation.

What to do

Changes in Knowledge Laws happen at an international level: no action at national level can be effective because of the international legislation framework that limits states power to modify laws.

WSIS is a very important occasion to debate and create awareness about global common knowledge and free software.

Perhaps further balancing among the right of the creator (to benefit his creations) and the right of the community (to share creations) should be empathised.

In the light of this, article 27 of the Universal Declaration of Human Rights could be a good starting point and legal foundation: while the second comma of article 27 states that “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”, comma 1 of the same article states that “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”.

But it's a matter of fact that further actions are required: international laws modification have to be promoted in the pertinent fora (mainly WIPO and WTO) and new ethical reasons have to be taken into consideration in the law making process.

That’s what Hipatia is intended for: acting at an international level in order to help collecting around the world the consensus necessary to change the laws according to Hipatia’s principles: allowing the sustainable spread of free and common knowledge.

Hipatia is an NGO with the purpose of:

Hipatia is an international network with a strong participation of people from the free software movement: from South America, Europe and Asia.

A good example to follow

The experience of the EU proposal of directive on the patentability of computer-implemented inventions (n. Com(2002) 92 final 20.02.2002) gives evidence of how strong impact a network action can have on a law modification process.

The procedure of adoption of the directive is still going on.

But the vote of September 24th, 2003 before the European Parliament left us a directive much different from the one originally proposed by the Commission.

If you compare the text of the emended directive with the one submitted originally by the Commission, it is self-evident that the current text is much stricter and more restrictive than the previous. The process to draw up the final text is still long and the intentions expressed by the Commissions spokesperson and by the rapporteur, Ms. McCarthy, during the debate in the European Parliament confirm this, but the amendments already made, clearly show that the directive, as it is today, may curb the EPOs open-handedness in granting patents on software over recent years.

The target today is that of preventing the patentability of software as such, as was stated by all those who took part in the lively parliamentary debate.

The directives current wording proves that a lively public debate and a sound democratic process make it possible to intervene effectively on rules and regulations during the European legislative process.

From this point of view, this experience marks a success for the European Parliament and for the movement and community of software developers who have succeeded in explaining their reasons so well that the great majority of MEPs decided to take up their stances.

This experience of the movement and community of software developers was a “reactive” one (against a proposal they didn’t like).

But in the actual scenario reaction is not enough: changes in Knowledge Laws have to be adopted in order to shape a new law for a freedom oriented, sustainable and fair knowledge-based society. This is the real challenge for the future.

Conclusion

Knowledge Laws modifications should be discussed within international fora where ethical considerations are more likely to be taken into account.

The experience of free software reveals a serious tension within post-modern society in which traditional cultural values of community and solidarity are poorly integrated in Knowledge Laws.

Furthermore, the status quo of Knowledge Laws is influencing culture in a way that bashes those values.

While we are experiencing a paradigm shift from the industrial society towards the information and knowledge-based society, we must work for shaping new Knowledge Laws based on those values.

References


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