WIPO Discussions: Day 7 (Part III of X)

As mentioned in WIPO Discussions: Day 6 (Part I of X), I am continuing to take part in discussion at the WIPO Online Discussion Forums, which are open until June 15th, 2005. Join in!

The 3rd theme:

The public domain and open access models of information creation: at odds with the intellectual property system or enabled by it?

And, my response:

Answering point by point...

(1) The statement that the 'copyright system is not a business model' is strange in the context of this discussion, as copyright law is supposedly supposed to protect the rights of creators, and give them initiative to *continue* creating. Therefore when it comes to works which fall under Copyright, it is sensible that Copyright is inherent in a business model.

Recent changes in copyright law, such as extension of copyright up to 95 years, contradicts the statement that 'copyright is not a business model' as well. If it is not a business model, why are the larger lobbying groups businesses?

The truth is that the combination of Copyright and Public Domain are the baseline for business models. To disavow that is not only strange, it is wildly inaccurate.

While discussing specific licenses, such as the Creative Commons licenses, it is important to note that these are licenses for copyright - they are NOT copyright itself. If I produce works that are non-commercial creative commons licenses, no company can use my work without my permission even after my death (70 years) by present U.S. Law. While I doubt that businesses will be fighting for the right to use *my* work, it serves as an example as to why the copyright system itself is flawed - and is an integral part of business models.

Please reference SCO's business model, as well as Microsoft's and the RIAA's. When they speak of piracy, they are using projections based on what they *might* have sold in licensing copyrighted material. Are you saying that WIPO believes that these companies are wrong to do so, and if not, why?

(2) Creative Commons Licenses are not the equivalent of the Public Domain.

(3) "The benefits that open source software may offer include access to source code, community-based development, local skills and capacity building, freedom from vendor lock-in, reduced costs, broad rights, and the ability to customize to local conditions. However, while open source software licensing is increasingly well accepted, these licenses have not yet been fully tested in the courts of various legal jurisdictions. Moreover, they do not contain the warranties, representations and indemnities in favor of the licensee that are standard elements in other licenses. This has given rise to concerns that licensees may be exposed to liability for IP infringement, if infringing code is included in derivative software products."

The perspective presented here condemns a lack of warrant, representation and indemnity. And yet, if you read a proprietary End User License Agreement or equivalent, you will find the same issue.

Therefore, this is not an issue of Open Source software. It is an issue of software licensing, and though proprietary software and Open Source software are both copyrighted works, this seems to fall under Contract or Business Law instead of Copyright Law. The License is a contract. The Copyright is a separate issue.

(4) And?

(5) The Patent System is flawed in that it has become a business model for corporations. Microsoft, as an example, accidentally patented an apple (fruit) last year because of the amount of the paperwork they have been sending to the USPO.

Also, software patents are vague, and the wording that makes them possible is malleable for the purposes of corporations with money to spend. It does not protect the human innovators, it protects innovation manufacturers who indenture innovators. 'We pay you for what is in your head, and it belongs to us'. This goes to employment contracts, and since Copyright Licenses are so discussed, perhaps WIPO would care to discuss the role of Employment contracts in the context of Copyrights and Patents?

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The Patent System described does not take into account copyrightable works, such as source code, process, pharmaceuticals and biological engineering. Do we really need Copyrights AND Patents for this? One would think Copyright would suffice.

In the latter, it would be certainly difficult for Nature to be sued by a Copyright Holder, and there is always a chance that Nature can recreate what we make in biogenetic engineering. Conversely, Nature could not prove pre-existing 'art' in the context of a plant to a Court of Law.

And in a world where Monsanto is jailing farmers for saving seeds, why doesn't Monsanto simply engineer their plants so that they cannot produce useful seed?

Patents and Copyrights have become an integral part of business models because the laws are flawed, and while they protect corporations, they do not allow individuals or smaller businesses to innovate. The cost of entry is too high.

Note: It's kind of interesting - and nice - that WIPO uses the Wikipedia definition of public domain in discussion.