The Congress was organized by American University Washington College of Law's Program on Information Justice & Intellectual Property, Fundação Getulio Vargas’s Center for Technology & Society (Brazil), the American Assembly at Columbia University and the International Centre for Trade & Sustainable Development (Geneva).
Its site features a rich collection of online background materials relevant to the themes articulated in the Declaration.
The Declaration states that -
The next decade is likely to be determinative. A quarter century of adverse changes in the international intellectual property system are on the cusp of becoming effectively irreversible, at least in the lives of present generations. Intellectual property can promote innovation, creativity and cultural development. But an old proverb teaches that "it is possible to have too much of a good thing," and that adage certainly applies here. The burden falls on public interest advocates to make a coordinated, evidence-based case for a critical reexamination of intellectual property maximalism at every level of government, and in every appropriate institutional setting, as well as to pursue alternatives that may blunt the force of intellectual property expansionism.Those recommendations include -
We begin our statement of the Congress’s conclusions with two overarching points:
• International intellectual property policy affects a broad range of interests within society, not just those of rights holders. Thus, intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation. New rules should be made within the existing forums responsible for intellectual property policy, where both developed and developing countries have full representation, and where the texts of and forums for considering proposals are open. All new international intellectual property standards must be subject to democratic checks and balances, including domestic legislative approval and opportunities for judicial review.Informed by these two broad points, the Congress adopted a series of specific recommendations for action.
• Markets alone cannot be relied upon to achieve a just allocation of information goods — that is, one that promotes the full range of human values at stake in intellectual property systems. This is clear, for example, from recent experiences in the areas of public health and education, where intellectual property has complicated progress toward meeting these basic public needs.
Putting Intellectual Property in Its Place.
... we should act to:
• Promote and protect rights to freedom of expression, and to seek, receive and impart information, in the face of expansions in copyright and trademark scope and enforcement, including in the digital environment.Valuing Openness and the Public Domain
• Respect the rights to due process and a fair trial in the face of rapidly escalating intellectual property enforcement measures. We must insist on the provision of adequate evidentiary thresholds, fair hearings, impartial adjudicators, rights to submit evidence and confront accusers, proportionality in penalties, and strict scrutiny of public enforcement responsibilities delegated to private actors.
• Use human rights, including civil and political and social and economic rights, to scrutinize expansions of intellectual property rights that threaten access to essential knowledge goods and services.
• Use all available regulatory frameworks for controlling abuses of intellectual property rights, including mechanisms that protect consumers, control excessive pricing, prevent anti-competitive conduct, regulate licensing and contractual terms and open access to essential facilities.
• Protect traditional knowledge and cultural expressions against misappropriation through intellectual property rights.
... we should:
• Advocate for a permanent moratorium on further extensions of copyright, related rights and patent terms.Strengthening Limitations and Exceptions
• Call for government procurement and education policies to place Free/Libre/Open Source Software on an equal competitive footing with proprietary software.
• Support private initiatives to increase access through licenses or terms of use that enable widespread public use or through alternative publication and distribution models.
• Support the values of interoperability and long-term preservation by requiring use of open standards for information produced by or for public entities.
• Support the use of open educational resources through government procurement policies for textbooks and other educational materials, and through incentives to generate open resources at all levels of education.
• Insist on policies that grant the public free and unrestricted access to all government funded endeavors, such as output of publicly funded research, government-collected data, cultural works supported by public funds and publicly funded collections and archives.
... we should work to:
• Continue efforts to assure that international law is interpreted in ways that give States the greatest possible flexibility in adopting limitations and exceptions that are appropriate to their cultural and economic circumstances.Setting Public Interest Priorities for Patent Reform
• Support the development of binding international agreements providing for mandatory minimum limitations and exceptions.
• Promote discussion of employing “open-ended” limitations in national copyright legislation, in addition to specific exceptions.
• Develop legal regimes that address directly the needs of persons with specific medical conditions and disabilities, including those with print disabilities.
• Promote limitations and exceptions that enable libraries, museums, archives and other “institutions of memory” to fulfill their public interest missions, while assuring that cultural and educational institutions take advantage of existing flexibilities.
• Enable teaching and learning at all levels, including through measures that assure fair access to and use of educational materials from early literacy acquisition in the family setting through institutions of primary, secondary and higher education.
• Defend the principle of domestic “exhaustion” (or “first sale”) in national law, and the freedom of countries to choose to implement international or regional exhaustion to facilitate parallel importation.
• Facilitate public use of “orphan” and out-of-print works, and other difficult-to-access categories of content, and assure the freedom of researchers to engage in large-scale text-mining (or “non-consumptive”) research.
• Explore the benefits of maintaining or reintroducing formalities requirements (such as notice and registration) for individuals and entities claiming the benefit of copyrights.
• Advocate for appropriate limits on the use of unfair contracts or technological protection measures that override limitations and exceptions.
... we should work to:
• Dedicate public resources to non-patent-based incentive models, such as prizes for innovation, especially in areas where patent incentives have proved weak, such as for research on neglected diseases and the provision of cost-effective access to medicines in developing countries.Supporting Cultural Creativity
• Implement reforms that limit the granting or maintenance of patent rights where they are not justified by net benefits to the public, including through the introduction or preservation of opportunities for challenges to pending and issued patents; stronger scrutiny of patentable subject matter, including ending patents based on discovery rather than invention (including patents on human DNA sequences and disease associations); and more rigorous determination of inventiveness
• Ensure that inventions that result from publicly funded research are available for public use.
• Introduce meaningful exemptions for research and for educational uses into national laws.
• Promote transparency in the documentation of patent ownership and licensing, particularly with respect to key technologies like medicines.
... we should support initiatives to:
• Encourage experimentation with, and research on, systems of indirect rewards, such as levies on media, equipment, or usage.Checking Enforcement Excesses
• Require greater transparency, accountability, internal democracy and public oversight on the part of collective rights management organizations.
• Recognize the continued role of public funding for types of production deemed socially valuable and systematically under-provisioned by the market, such as small-market audiovisual, musical and artistic culture.
• Strengthen the contractual position of authors and artists vis-à-vis producers through such means asproviding opportunities to re-negotiate terms and reclaim rights in case of non-use or after a defined period of time, and requiring greater transparency in contracts.
• Build the capacity of authors and artists to license their works directly to the public.
• Encourage the establishment of publicly accessible systems of rights management information which ensure that authors and artists can be identified
... We should work to:
• Ensure that legal penalties, processes, and remedies are reasonable and proportional to the acts of infringement they target, and do not include restrictions on access to essential goods and services, including access to the Internet or to needed medicines and learning materials.Implementing Development Agendas
• Promote proportional approaches to enforcement that avoid excessively punitive approaches to enforcement, such as disproportionate statutory damages; undue expansion of criminal and third party liability; and dramatic increases in authority to enjoin, seize and destroy goods without adequate procedural safeguards.
• Ensure that countries retain the rights to implement flexibilities to enforcement measures and to make independent decisions about the prioritization of law enforcement resources to promote public interests.
• Limit the duties, rights, or abilities of Internet service providers to monitor or control the communications of their users based on the content of these communications.
• Ensure that agreements and protocols between individuals, intermediaries, rights holders, technology providers, and governments relating to enforcement on the Internet are transparent, fair and clear.
• Ensure that public authorities retain and exercise rigorous oversight of critical enforcement functions, including policing, criminal enforcement and ultimate legal judgments.
We should:
• Insist that current proposals for global copyright and patent reform fully integrate development concerns and assess implications on developing countries.Requiring Evidence-based Policy Making
• Ensure that the WIPO Development Agenda recommendations are fully implemented in all areas of the organization’s functioning in a manner that results in tangible changes in the organization’s institutional culture.
• Insist on full transparency and accountability from bilateral, regional and multilateral providers of intellectual property technical assistance.
• Encourage the efforts of developing countries to make greater use of flexibilities, limitations and exceptions to intellectual property to advance public policy objectives in areas such as health, education, agriculture, food, and technology transfer.
• Invite countries that are considering the adoption of intellectual property strategies to ensure that such strategies are the result of an inclusive process of consultation and are fully consistent with national priorities and development objectives.
• Support extension of the TRIPS transition-period waivers for Least Developed Countries.
• Call upon developed countries to take more effective measures to implement their multilateral commitments in relation to technology transfer, including through monitoring mechanisms and addressing possible barriers created by intellectual property rights.
• Encourage South-South cooperation in the areas of intellectual property and innovation so that countries with similar levels of development can benefit from one another’s experiences.
• Call for an independent assessment of the development effects of intellectual property commitments in bilateral, regional and plurilateral agreements.
• Promote a thorough review of TRIPS for possible amendments to ensure the effective operationalization of its objectives and principles.
... we should act to ensure that:
• Policy making is based on research rather than faith or ideology.
• Research used in policy making is fully transparent, with publicly documented methods, assumptions, funding sources, and underlying data.
• Governments and international organizations invest in data collection to enable better estimates of the costs and benefits of intellectual property rules, including the public and private costs of enforcement.
• Efforts to quantify the economic value of intellectual property should reflect the economic value attributable to activities enabled by limitations and exceptions to intellectual property rights, openness policies and practices, and the public domain.
