In the interests of brevity Mr Chairman we will limit our comments. The Open Knowledge Foundation (OKF) is a non-profit organization based in the United Kingdom, which is dedicated to promoting access to knowledge as well as an open approach to knowledge production and reuse.

Brazil earlier today mentioned a 3-step test for the public interest. We would like to point out Mr Chairman that such a test has already been put forward in the form of the recently released Adelphi Charter on Creativity, Innovation and Intellectual Property. This was produced, after extensive consultation, by a drafting committee consisting of distinguished academics, artists, and Noble Laureates under the auspices of the Royal Society of Arts. Principle nine of the charter states:

In making decisions about intellectual property law, governments should adhere to the following rules:

  • There must be an automatic presumption against new areas of intellectual property protection, extending existing privileges or extending the duration of rights

  • The burden of proof in such cases must lie on advocates of change.

  • Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people’s basic rights and economic well-being.

  • Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.

What does this mean in the relation to the draft treaty under consideration here?

Firstly, that the burden of proof lies squarely on those seeking new rights: on the broadcasters (and for webcasting: on webcasters). Secondly it means we should ask, for each area in which new rights are granted by the current treaty, what is the evidence that the benefits, for society as a whole, outweigh the costs.

In particular we should ask: What evidence is there that existing instruments, such as the Rome and Brussels convention, are insufficient to ensure adequate investment in broadcasting?

We should also ask: Has a thorough examination been conducted of the costs created by these new rights? For it is inevitable that the grant of any intellectual property right – which, let us not not forget, is at base a monopoly – while conferring benefits on some must impose costs on others. In this case those ‘others’ include:

  • Existing rights-holders who may find that another exclusive right has been created that overlaps with their own.

  • Innovators and producers of electronics hardware who now find their design decisions constrained by the need to comply with TPMs mandated by broadcasters.

  • The general public who may find their access to material restricted particularly for archival and educational purposes.

To conclude: If new rights are to be granted clear evidence must be provided that the benefits to society, as a whole, outweigh the costs. Such evidence must not consist solely of the views of a narrow section of the possible stakeholders but be based on wide public consultation and a rigorous, transparent, and objective assessment. Where such evidence is lacking for a particular right the decision is straightforward: we should not grant it. Thank you for your attention.

[For more on the Broadcast Treaty see http://drn.okfn.org/taxonomy/term/32]