Netizens-Digest Thursday, January 13 2000 Volume 01 : Number 350 Netizens Association Discussion List Digest In this issue: [netz] Benton: ICANN defines identicality [netz] Draft Paper on Basic Research and the Origins of the Internet [netz] Benton: Trademark trumps DN registration [netz] Le Monde: DEFINING THE WORLD'S PUBLIC PROPERTY (20k ---------------------------------------------------------------------- Date: Fri, 7 Jan 2000 20:53:06 -04 From: kerryo@ns.sympatico.ca (Kerry Miller) Subject: [netz] Benton: ICANN defines identicality DOMAIN NAMES REVOKED OVER EXTRA CHARACTER Issue: Internet ICANN, the body that oversees the Internet's address system said it was revoking hundreds of new domain names because a software bug had enabled people to claim addresses nearly identical to already established Web sites. The more than 800 revoked addresses all contained an added a dash at the end of an already registered address, which resulted in domain names such as "www.Microsoft-.com," "www.yahoo-.com." ICANN decided to revoke the names because of a long-standing policy against names that begin or end in a character other than a numeral or letter. ICANN's president, Mike Roberts, said that a mistake in the software was responsible for the registrations. "This was something that shouldn't have been possible." Registrars of the revoked names believe they should be able to keep the address for those who have already hired Web hosting services and begun spending money on establishing a Web presence. [SOURCE: CyberTimes, AUTHOR: Jeri Clausing] http://www.nytimes.com/library/tech/00/01/cyber/articles/06domain.html ------------------------------ Date: Mon, 10 Jan 2000 17:24:11 -0500 (EST) From: ronda@panix.com Subject: [netz] Draft Paper on Basic Research and the Origins of the Internet I am working on a new draft paper about the development of the Internet and the basic research that made the Internet possible. Part I is available and I welcome comments on it. Following is an introduction and the URL for the draft follows. Computer Science and the Role of Government in the Development of the Internet: by Ronda Hauben rh120@columbia.edu Part I - Basic Research for the National Defense and the U.S. Department of Defense: A Paradox? "It must be clearly understood that most of this money purchased research of the highest quality. However, not nearly so clear is the rationale that dictated that the Department of Defense whould be the principal sponsoring agency for much of this vital research." "A History of the Information Processing Techniques Office of the Defense Advanced Research Projects Agency" by Norberg and O'Neill, pg. 339 I-A Successful Basic Research Program is Challenged by the US Congress. The question emerges of why and what would be the effect? In fiscal 1970, the Senate Appropriations Committee raised the question of whether the U.S. Department of Defense was within its mission obligations to be funding the forefronts research and development work that it was supporting. This research included the development of a new scientific field, the field of computer science, and more particularly, the field of computer communications. This question raised by Congress, whatever the cause, had an important effect on the development of this new science and of its progeny which includes the Internet among its spectacular achievements. In this paper I want to explore several questions, the first and perhaps most interesting: Why would the U.S. Department of Defense be the place where this new field of scientific research developed? I also want to look at this field of research, the field of computer communications research and explore how it developed. And perhaps most importantly, I want to look at the effect that the Congressional concern had the research and the researchers. These experiences raise the question why the US government, which has a constitutional obligation to provide for the welfare of its citizens and for the national defense, would act in this way. Are these actions contrary to these obligations? A second significant result of this challenge by Congress would ultimately be that the Information Processing Techniques Office (IPTO) which pioneered basic research in computer science and in the new field of computer communications at ARPA in the DoD would be ended in 1986. With the end of IPTO a significant loss was sustained by people in the US and abroad who have gained much from the work of this office. However, to understand the nature of the problem that led to the end of IPTO in 1986, it is important to look back and try to understand why basic research in science and then in computer science had come to be placed within the U.S. Department of Defense. II. Basic Research and the National Defense What is the nature of basic research and how did support for certain kinds of basic research become a responsibility of the U.S. Department of Defense? To answer this question, it will be helpful to review how it is that civilian conducted basic scientific research that could be considered crucial to the national security or national defense would fall within the responsibility of the U.S. Department of Defense. See the draft paper: URL is http://www.columbia.edu/~rh120/other/basicresearch.txt or write for copy to ronda@panix.com Netizens: On the History and Impact of Usenet and the Internet http://www.columbia.edu/~hauben/netbook also in print edition ISBN 0-8186-7706-6 ------------------------------ Date: Wed, 12 Jan 2000 00:55:09 -04 From: kerryo@ns.sympatico.ca (Kerry Miller) Subject: [netz] Benton: Trademark trumps DN registration The NWO is so much fun! -- theres no need to specify *who is protected! Youre not required to search, of course (but neither does the 'competitive' DNS package searching with your registration, so that equals out, doesnt it?) And dont think a trailing hyphen will save you, either. kerry ============ PATENTS: MORE WEAPONS TO DEFEND INTERNET DOMAIN NAMES Issue: Internet The group that issues domain registrations, the Internet Corporation for Assigned Names and Numbers, began a new policy last week for resolving disputes intended to ease the burden of proving ownership, and to thwart cybersquatting. ICANN added state and common law trademarks to the federally registered trademarks that already qualify as precedent for determining ownership of a domain name. Anyone registering a domain name will not be required to search the trademark data bases of all 50 states. However, if a dispute arises, a trademark registration will settle the issue in favor of the trademark holder. It is difficult for a domain-name holder to research existing state and common law trademarks without help. The trademark database at Patent and Trademark Office contains only federal trademarks, and at its World Wide Web site, the agency warns that the database is incomplete, lacking applications or registrations that are temporarily inactive. Furthermore, many states have conflicting methods for keeping records. The alternative is to pay commercial trademark databases to do the search for you. The new policy states that until a domain-name dispute is resolved, the Internet address in question will remain active. [SOURCE: New York Times, AUTHOR: Sabra Chartrand] http://www.nytimes.com/library/tech/00/01/biztech/articles/10pate.html ========= ------------------------------ Date: Thu, 13 Jan 2000 19:00:12 -04 From: kerryo@ns.sympatico.ca (Kerry Miller) Subject: [netz] Le Monde: DEFINING THE WORLD'S PUBLIC PROPERTY (20k - ------- Forwarded message follows ------- Date sent: Wed, 12 Jan 2000 21:31:41 -0600 (CST) From: MichaelP Subject: Le Monde diplomatique: DEFINING THE WORLD'S PUBLIC PROPERTY Organization: ? To: undisclosed-recipients:; I have a personal explanation to add to what Le Monde Dip. says about public knowledge. As a mathematician I'm in the business of creating original ideas in a field where it's almost inconceivable that those ideas can be marketed. I want those ideas to be spread as something of interest to some audience, but the concept of copyrighting them, treating them as something reserved for the highest bidder, is totally disgusting to me. That's not to say that I'm not interested in being rewarded for the ideas I produce - but the reward has to be one of recognition of my contribution to the body of knowledge rather than because one of my thoughts may turn out to help commerce. So I find it easy to extend my personal non-need for the protection pprovided by Intellectual Property laws into a general zone where an idea may have some commercial value, but where it also has the potential of creating actual benefit to the world's population. Which means that I find it easy to see the harm in the neoliberal move to commodify ideas, inventions and physical resources for the ultimate benefit of Mr. Greed.. This is a long post. Read it all and think about what Le Monde Diplomatique says!! Cheers MichaelP =============================== http://www.monde-diplomatique.fr/en/2000/01/ DEFINING THE WORLD'S PUBLIC PROPERTY Le Monde diplomatique January 2000 A GLOBAL PUBLIC GOOD Who does knowledge belong to? When intellectual property increases the price of vital drugs ten fold, sentencing millions of sick Africans to death, this is not just a hypothetical question. The future of the world economy and of part of humanity now hangs on the answer. Computing, agro-industry, biotechnology, pharmaceuticals and communications lead the way in the "information revolution". The rise of these activities has brought with it an ever greater need for a check to be kept on new inventions. If such a virtual product as knowledge, which is by nature copiable, is to be turned to profit, its dissemination must be controlled and an artificial scarcity created that allows a price to be set. Such is the primary objective of intellectual property law, together with a concern to protect the "moral" rights of authors over the future of their works (literary and artistic property), to protect the consumer (trade marks) or to limit recourse to industrial secrecy by publishing the detail of inventions (patents). In an attempt to keep pace with these developments, following the trend in the United States the World Trade Organisation and the World Intellectual Property Organisation have launched themselves into a frenzy of legal activity to "strengthen" the rights of owners in order to ensure they get a return on their investment and thereby, in theory, stimulate world growth. But a number of factors stand in the way of this. First, as the United Nations Development Programme points out, many of today's developed nations which are so keen to see intellectual property rights strengthened had very vague rules when their own national industries were being built. They only changed their tune when they became exporters of technology. By amassing intellectual property rights over the whole of knowledge (from photographic archives to the human genome, from software to drugs), the richest countries, which are also the ones with the most highly developed legal systems (the US employs one third of the world's lawyers) are making sure they have control over vast swathes of future output. Secondly, the appropriation of knowledge by private firms is not always legitimate. Both technological research and cultural production feed primarily on knowledge shared by the whole of society. But there are for the most part no mechanisms for promoting and defending the public domain of knowledge, little thought having been given to what might be called "global public goods" (1). Current thinking about the ownership of this common wealth of humanity is embryonic. The American lawyer James Boyle compares it to 1950s thinking on the environment: a few commentators are sounding the alarm about particular issues but are not yet in a position to make a connection between them (2). But the matter needs to be discussed urgently if we are to put a stop to the sequestration of knowledge by private interests (see articles by Philippe Queau and Martine Bulard). [Ph. Ramonet] (1) Inge Kaul, Isabelle Grunberg, Marc A. Stern (ed.), Global Public Goods: International Cooperation in the 21st Century, UNDP - Oxford University Press, New York and Oxford, 1999. (2) James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?", http://www.wcl.american.edu/pub/faculty/boyle/ =============== International Protection INDUSTRIAL PROPERTY "A means of encouraging creativity, industrialisation, investment and fair trade" PATENTS. In return for placing a description of the invention in the public domain, the patent prohibits any exploitation (manufacture, use, sale or import) by a third party without the holder's permission. Protection of the invention is limited in time (generally for a period of 20 years from the date the application is filed). TRADE MARKS . When a trade mark is registered, no person or firm other than the one owning it is allowed to use it for identical or similar products or services. There is generally no time limit on trade mark protection, provided the registration is renewed periodically and the mark continues to be used. There are over 8m registered trade marks. UNFAIR COMPETITION . Actions which are considered contrary to fair practice in the context of commercial or industrial activities are prohibited: practices likely to give rise to confusion with a company's products, services or industrial or commercial activities or which take unfair advantage of its reputation (counterfeiting); false allegations likely to discredit a company's activities; statements or allegations that might mislead the public, especially as to how a product or service is produced or as to its quality; the illegal acquisition, disclosure or use of manufacturing secrets, etc. COPYRIGHT AND NEIGHBOURING RIGHTS COPYRIGHT applies to literary and artistic works. "Economic" rights are not generally exclusive rights of authorisation but simple rights to remuneration; thus, in some countries, any work may be broadcast. Some strictly defined uses (quotations, use of a work for illustration purposes in education, use of articles dealing with political or economic questions in other journals) require neither authorisation nor payment of any remuneration. CREATORS also enjoy "moral" rights by virtue of which they may claim authorship and require their name to be mentioned on copies of their work and whenever it is used in other ways and have the right to object to the mutilation or distortion of their work. In most cases, the holder of a copyright may transfer his right or cede certain uses of his work under licence. But moral rights are generally inalienable, although the author need not exercise them. (Summarised from WIPO documents) ====================== Who owns knowledge? by PHILIPPE QUEAU * * Director of the Unesco Information and Informatics Division Far from being a mere technical adjustment to the "information society", the changes to intellectual property law are a political matter. Using the "multimedia revolution" as an argument, some interest groups have in fact mobilised to get intellectual property law revised, strengthening it in the rights holders' favour. They have succeeded in getting the period of protection for works extended and new intellectual property rights created (like the sui generis right that protects the activity of constructing data bases from existing information, hardly an "invention"), statutory exceptions restricted (like the fair use of protected works), and the established benefits for users (public libraries) called into question, not to mention the possibility of patenting computer programs. In 1985 all the data from the American publicly-funded programme of earth observation by the Landsat satellite were conceded to EOPSat, a subsidiary of General Motors and General Electric. As a result, the cost of access to the data increased 20 fold. Universities could no longer afford to buy the information, even though it had been obtained entirely using public money. It was used mainly for the benefit of the big oil companies, who thus received a direct subsidy. This new development is but one sign of the changing balance of power between countries (net exporters or importers of intellectual products) and between social groups with divergent interests (shareholders, teachers, educators, scientific researchers, users). Thought must therefore be given to the concept of "general interest" if intellectual property rights are not to be turned to the benefit of the dominant groups alone. Most innovations and inventions are based on ideas that form part of the common property of humanity. It cannot therefore be right to restrict access to the information and knowledge that make up this common property by making the law too keen to safeguard individual interests. Guaranteeing the protection of a global "public domain" of information and knowledge is an important aspect of defending the general interest. The market does benefit from the "global public goods" currently available, such as knowledge falling within the public domain or information or research financed out of public funds. But it is not its role to contribute directly to promoting and defending this public domain. International organisations, on the other hand, are well placed to do so. The "multimedia revolution" served as a catalyst and pretext for launching a general round of intellectual property law revision, which began in 1976 with the revision of the US Copyright Act. The European directives on databases (1) or the protection of computer programs (2), the two World Intellectual Property Organisation (WIPO) treaties adopted in 1996 (treaty on performances and phonograms and treaty on copyright), the Digital Millennium Copyright Act or the Sonny Bonno Copyright Term Extension Act adopted in the US in October 1998, the Trips agreement (3), etc. are all evidence of an excessive legislatory zeal. Before the Trips agreement, countries like China, Egypt or India granted or recognised patents on pharmaceutical processes, but not on the final products. This allowed generic medicines to be manufactured locally, with a considerable effect on costs. As the United Nations Development Programme (UNDP) 1999 report stressed, the price of medicines may be as much as 13 times higher in Pakistan, which accepts patents on products, than in India. The case of South Africa, which is about to authorise the manufacture of drugs to combat Aids by national pharmaceuticals firms, even though patents are held by American or European companies, is exemplary (see Martine Bulard's article). In a world where science is still the prerogative of the rich countries while the poor continue to die, there can be no doubt that the niceties of intellectual property seem less persuasive than social reality. The transnational corporations and institutions of the rich countries are patenting everything they can, from the human genome to subtropical plants, committing daylight robbery on the common property of humanity. EURO-AMERICAN CONSENSUS We all need to give thought to the defence and funding of the "global public goods": without its existence humanity would be reduced to a myriad of sectional interests. The concept of the "public domain" urgently needs to be revitalised, strengthened and protected against the voracity of private interest at a time when private operators are seeking to extend their control over information. Consider, for example, the ownership of raw data and facts. Everywhere, the state is "pulling out" and having countless public databases managed by subcontractors who then get the rights to exploit that data. Thus, the Securities and Exchange Commission (SEC, the American stock market watchdog) has been obliged to buy back its own data from a commercial enterprise which now "owns" it. The US ministry of justice ceded publication rights in federal laws to West Publishing. A commercial version of the publication included a system of page numbering that was used for reference indexing in subsequent trials. West Publishing was then able to claim an "intellectual property right" over the entire database of federal laws on the strength of this supposed "added value". West Publishing even tried, at the 104th session of the US Congress, to get a special clause inserted into the Paperwork Reduction Act (adopted in May 1995) that would have guaranteed its de facto monopoly over the publication of federal laws. However, this manoeuvre was thwarted by a massive letter-writing campaign organised in protest by a taxpayers' association. In France, the ORT company exploits commercial registry databases (company balance sheets, payment difficulties) on Minitel and the internet as a public service under licence from the National Institute for Industrial Property (INPI). This exclusive licence brings it an annual turnover of some 280m francs ($46m) and profits of some 8m francs ($1,485,000). The state, which supplies the data, is one of its biggest customers. On 9 December the Reuters group confirmed it was going to take over ORT. Does not the information contained in public databases automatically belong in the public domain? Since the state has the monopoly on the collection of that information, it cannot withdraw without harming the citizen. Moreover, this kind of transfer of ownership may prejudice the right to information, since access to public data may be made subject to payment and authorisation that are both private and arbitrary. This change is the outcome of a consensus between the US and Europe, masked by the recurrent (and necessary) debate about the "cultural exception". Concerning her meeting with Motion Picture Association of America president Jack Valenti, who represents Hollywood's interests, European commissioner for education and culture Viviane Reding said, "American officials consider our excitement about 'cultural diversity' completely outdated. What they are concerned about is piracy and the protection of copyright in the new media. They told me they would not attack our quotas or our public aids. What they want is for us to try to see how we can meet these new challenges together. If we grant aid to production and distribution but the works are then stolen using new technologies, our entire system will be done for. Instead of fighting the Americans, we should be trying to preserve our cultural diversities together" (4). THE MANNA OF PATENTS But who are these "pirates" and "robbers"? The answer can be found in a recent European Commission note on the Trips: "We must expect," it says, "resistance from a number of developing countries belonging to the World Trade Organisation. They feel that the protection given by the International Convention for the Protection of New Varieties of Plants (5) gives too much to the owners of those varieties and fails to take account of the needs of traditional farmers." (see chart) The same note concludes by referring to a "strategic problem": "The developing countries are going to resist the start of substantial negotiations on the protection of intellectual property. They could even launch a debate on the relationship between the Trips and other aspects, such as competition, the environment and its impact on health and welfare. Such an attempt must be resisted in order to preserve the interests of every party." (6) What is the purpose of protecting intellectual property? Is it still, in the words of the doctrine on which it is based, to protect the general interest by ensuring the universal distribution of knowledge and inventions in exchange for an exploitation monopoly conferred on the authors (for a limited period)? The creation of a monopoly on the exploitation of works until 95 years after an author's death (as in America since the Sonny Bonno Copyright Act) is not in itself likely to encourage creation. It is more likely to encourage publishers to live on their catalogue of recognised authors instead of encouraging them to look for new talent. What is needed is to encourage creativity and avoid it being lost, not simply to protect successors in title. If society grants inventors a measure of protection, it does so in exchange for something "in the higher interest of humanity", namely that the invention will ultimately fall into the public domain or that it can be accurately described and published so that everyone can benefit from it. It is more advantageous for humanity to have ideas and knowledge circulate freely than to limit their circulation. It was Aristotle who said that man is the greatest mimic of all animals. The idea was taken up by the Enlightenment: the French philosopher Etienne Bonnot de Condillac (1715-80) said: "Men only end up being so different because they began by copying and continue to do so." Moreover, excessive protection of intellectual property undermines "free competition", the pillar on which the market is built. The Allarde and Le Chapelier decree of 2 and 17 March 1791 expresses the principle of freedom for trade and industry and therefore the principle of the freedom to compete. By definition, this implies the possibility of placing on the market the same product as someone else and therefore the freedom to copy. There are two opposing trends here: the desire for deregulation and "fair competition" on one hand, and the ascendancy of oligopolies and monopolies on the other. Finally, fundamental rights like access to information and freedom of expression must be taken into account when extending intellectual property to information. In the US, the idea of public access to information goes back to the Founding Fathers and Thomas Jefferson in particular, who promoted the concept of the "public library" and the doctrine of "fair use" allowing protected texts to be used for education and to be quoted for academic purposes (7). Although some theorists like Friedrich Hayek consider "social justice" an "inept incantation" and a "quasi-religious superstition" (8), it is important to understand that the very foundations of a right as important as that of intellectual property in the global information society cannot be examined without considering "social justice" and even what might be called "global social justice". At the end of 1997 WIPO decided to cut the fees charged to firms wishing to file industrial patents by about 15%. The reason was the growing number of applications being filed, which within the space of scarcely ten years had risen from a few thousand a year to over 50,000 in 1997. This had given the organisation sizeable financial surpluses that it did not know what to do with. It is nowadays extremely rare for an international body to be earning too much money. And there is no shortage of ideas about how such funds, which flow continually from one of the deepest financial sources, could be applied to the general interest. Industrial patents, and more generally all intellectual products protected by the laws on intellectual property, draw substantially on a common fund of information and knowledge that belong indivisibly to the human race as a whole. If we are talking about "global public goods", it would be only fair to use the income WIPO derives from patent applications to encourage, for example, the creation of a virtual world public library consisting entirely of texts in the public domain and therefore freely accessible to all. The justification would be all the greater since, in international organisations like WIPO, the combined public power of the member countries is put at the service of defending the private interests of those filing patents. The cost of the legal and policing infrastructure for effectively strengthening intellectual property is in fact paid entirely out of public funds. Some of the funds collected from patent holders could also be used to finance research in areas neglected because of their lack of interest to the "market", as a recent UNDP report suggests (9). Such sums could be allocated to the UN agencies, which are known to be notoriously under-funded. Those agencies would then be so much better placed to regulate research on a world level, which is what they are expected to do, and which, left to itself, the market is quite incapable of doing. ______________________________________________________________ (1) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of data bases. (2) Council Directive 91/250 of 14 May 1991 on the legal protection of computer programs. (3) Agreement on trade-related aspects of intellectual property rights (Trips), the subject of Annex 1C of the agreement establishing the World Trade Organisation. Note in particular that China will be forced to accept the terms of the Trips if it wants to join the WTO. (4) Interview with Liberation, 29 October 1999. (5) International Convention for the Protection of New Varieties of Plants, adopted in March 1991 and entered into force in April 1998. See http://upov.int/eng/convntns/1991/content.htm (6) European Commission (DG I) note of 24 February 1999. (7) See "Offensive insidieuse contre le droit du public l'information", Le Monde diplomatique, English edition, February 1997. (8) Friedrich A, Hayek, "Law, legislation and liberty" vol. 2, University of Chicago Press, 1976. (9) Inge Kaul, Isabelle Grunberg, Marc A. Stern (ed.), Global Public Goods: International Cooperation in the 21st Century, UNDP-Oxford University Press, New York and Oxford, 1999. Translated by Malcolm Greenwood ========= *** NOTICE: In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. *** - ------- End of forwarded message ------- ------------------------------ End of Netizens-Digest V1 #350 ******************************