Inhoud

Proposal for Treaty on Access to Knowledge (Draft)

Part 1 - Purposes, objectives, relationship to other treaties

Preamble

The parties to this treaty,

Seeking to enhance participation in cultural, civic and educational affairs, and sharing of the benefits of scientific advancement,

Recognizing the importance of knowledge resources in supporting innovation, development and social progress, and of the opportunities arising from technological progress particularly the Internet,

Mindful of the need to overcome disparities in wealth, development, and access to knowledge resources,

Recognizing the importance of protecting and supporting the interests of creative individuals and communities,

Determined to create the broadest opportunities to participate in the development of knowledge resources,

Concerned about private misappropriation of social and public knowledge resources,

Recognizing further the importance of knowledge resources that are created for the benefit of all, and the need to protect and expand the knowledge commons,

Determined to protect, preserve and enhance the public domain, which is essential for creativity and sustainable innovation,

Seeking to control anticompetitive practices,

Concerned technological measures that restrict access to knowledge goods will harm authors, libraries, education institutions, archives, and persons with disabilities,

Recognizing the need for greater disclosure of knowledge, and for new incentives to create and share knowledge resources without restrictions on access,

Encouraged by the success and potential of new methods of creating and sharing knowledge,

Mindful of the need for public and private investments in knowledge resources,

Concerned over insufficient public support for knowledge resources,

Conscious of the importance of the global information networks in expanding access to knowledge,

Mindful of the benefits of open access to scientific research and data,

Recognizing the benefits of greater transparency of knowledge resources and technologies,

Recognizing the need for global action to protect and enhance access to knowledge resources,

Seeking to promote the transfer of technology to developing countries,

Members agree

Article 1-1 - Objectives

The Objectives of this treaty are to protect and enhance [expand] access to knowledge, and to facilitate the transfer of technology to developing countries.

Article 1-2 - Nature and Scope of Obligations

Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive measures to promote access to knowledge than are required by this Agreement, provided that such measures do not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

Article 1-3 - Relationship to other agreements

Part 2 - Governance

Article 2-1 - Conference of the Parties

Members will designate representatives to a Conference of the Parties (CoP), which will administer this agreement. The Conference of the Parties shall meet at least once every two years.

Article 2-2 - Executive Board

The Conference of the Parties shall designate an Executive Board (EB) shall designate a permanent secretariat and make arrangements for its functioning.

Article 2-3 - Secretariat

The Secretariat functions shall include:

  1. making arrangements for sessions of the Conference of the Parties, the Executive Board, and subsidiary bodies and provide services as required;
  2. transmit reports received by it pursuant to the Treaty;
  3. provide support to Members, particularly developing country Members and Members with economies in transition, on request, in the compilation and communication of information required in accordance with the provisions of the Treaty;
  4. prepare reports on its activities under the Treaty;
  5. ensure the necessary coordination with the competent international and regional intergovernmental organizations and other bodies;
  6. enter into such administrative or contractual arrangements as may be required for the effective discharge of its functions; and
  7. perform other secretariat functions specified by the Treaty and by any of its protocols and such other functions as may be determined by the CoP or the EB.

Article 3-1 - General Limitations and Exceptions to Copyrights

Article 3-2 - Provisions regarding Distance Education

Article 3-3 - The rights of persons with disabilities

Article 3-4 - First Sale Doctrine for Library Use

A work that has been lawfully acquired by a library may be lent to others without further transaction fees to be paid by the library.

Article 3-5 - Internet Service Providers

Members agree that the exclusive economic rights of copyright owners (including but not limited to reproduction, distribution, display, performance, adaptation and communication to the public), shall not apply to:

Article 3-6 - Digital Rights Management and Measures Regarding Circumvention of Technological Protection Measures

  1. When DRM/TPM licensing terms preclude implementation in Free and Open Source Software (FOSS)
  2. When DRM/TPM systems are marketed without adequate disclosure of their restriction modes and the terms under which they can be invoked, or when terms can be modified without a user's explicit consent.
  3. When DRM/TPM systems do not provide mechanisms to permit works to be accessible by persons with visually impairments or other disabilities.
  4. When DRM systems rely upon social entities that such as households and families in their technology more narrowly or restrictively than have been defined in local law,

Article 3-7 - Non-original or creative works

Facts and works lacking in creativity, should not be subject to copyright or copyright-like protections.

Article 3-8 - Orphan Works

Article 3-9 - [Retroactive] Extensions of Term of Protection for Copyright and Related Rights

Members agree that for works protected under Article 9 through 13 of the TRIPS agreement, not to extend the term of protection beyond the minimum required term [retroactively].

Article 3-10 - Requirements When Term of Protection for Works Protected by Copyright and Related Rights Have Been Previously Extended to Exceed TRIPS Requirements

For countries that have previously extended terms of protection for works protected by Article 9-13 of the TRIPS agreement, beyond the terms required the TRIPS agreement, such protection shall be converted to a sui generis system of protection that includes the following features:

Article 3-11 - Works For Which Author Has Alienated Economic Rights

For works when the term of protection is based upon anything other than the life of a natural person, or in any case for any work for which the author has alienated all economic rights,

Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries

Part 4 - Patents

Article 4-1 - Patents

Note for (d) 1 and (d) 2.

These provisions are based upon amendments offered by Michel Rocard in the European Parliament’s second reading of the software patent directive. The justification was as follows:

Part 5 - Expanding and Enhancing the Knowledge Commons

Article 5-1 - Knowledge Commons Committee

A knowledge commons committee (KCC) is established to promote cooperation and investment in databases, open access journals and other open knowledge projects that expand the knowledge commons.

Article 5-2 - Access to Public Funded Research

The best practices will include such topics as support for open access journals, open access archives/repositories, interoperability, etc.

Article 5-3 - No Copyright of Government Works

Works created by government employees and by contractors conducting essential public functions shall enter the public domain.

Article 5-4 - Archives of Public Broadcasting

Members that provide free access to archives of public broadcasting works to their own residents agree to extend such access on a reciprocal basis to residents of other members who offer similar access. Article 5-5 - Access to Government Information

Article 5-6 - Knowledge Commons Databases

Excerpts from the NIH/HapMap license

2. You may access and conduct queries of the Genotype Database and copy, extract, distribute or otherwise use copies of the whole or any part of the Genotype Database's data as you receive it, in any medium and for all (including for commercial) purposes, provided always that:

Part 6 - Promotion of Open Standards

Article 6-1 - Committee on Open Standards

A committee on open standards (COS) shall be established.

Article 6-2 - Disclosure obligations for patents relating to standards development organizations.

VERSION 1

  1. be adopted and maintained by a not-for-profit organization, and with ongoing development based upon an open decision-making procedure available to all interested parties (consensus or majority decision);
  2. be published, with the specification of the standard available either freely or at a nominal charge, with permissible to all to copy, distribute and use it for no fee or at a nominal fee; and
  3. the intellectual property aspects of the standard, including the relevant patents or data, shall be made irrevocably available on a royalty-free basis; and
  4. there are no constraints on the re-use of the standard.

VERSION 2

  1. be published without restriction (e.g., potential implementers are not restricted from accessing the standard) in electronic or tangible form, and in sufficient detail to enable a complete understanding of the standard’s scope and purpose;
  2. be publicly available without cost or for a reasonable non-discriminatory fee for adoption and implementation by any interested party;
  3. Any patent or data rights necessary to implement the standards are made available by those developing the specification to all implementers on reasonable and non-discriminatory (RAND) terms (either with or without payment of a reasonable royalty or fee); and
  4. The process to develop, maintain, approve, or ratify the standard is by consensus, in a market-driven standards-setting organization that is open to all interested and qualified participants.

Article 6-3 - Essential Interfaces for Knowledge Goods

Article 6-4 - Compulsory Licensing of Essential Interfaces for Knowledge Goods

Members agree to develop procedures for compulsory licensing of essential interfaces for knowledge goods.

Part 7 - Control of Anticompetitive Practices

Article 7-1 - Relationship between intellectual property rights and competition laws

Members agree that some licensing practices and conditions pertaining to intellectual property rights restrain competition and have adverse effects on trade and impede the transfer and dissemination of technology. Members agree to specify in their legislation licensing practices or conditions that in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market.

Article 7-2 - Committee on Control of Anticompetitive Practices

A Committee on the Control of Anticompetitive Practices (CCAP) is established. The CCAP shall meet at least once very two years to address the following issues:

Article 7-3 - Essential Software

Part 8 - Authors and Performers

Article 8-1 - Copyright and Related Rights Collection Societies

Article 8-2 - Unfair Contracts

Part 9 - Transfer Of Technology To Developing Countries

Article 9-1 Committee on Transfer of Technology

A Committee on Technology Transfer (CTT) is created. The CTT shall survey members on the mechanism that are most useful in the transfer of knowledge and technology to developing countries.

Part 10 – Misc Issues

Article 10-1 Free Movement of Researchers

VERSION 1

Members agree to facilitate and encourage the participation of students and researchers in university programmes of another Member as well as the ability of scientists, engineers and researchers, in general, to participate in conferences or gain experience at firms in another Member. This facilitation and encouragement should be extended to visa and other administrative requirements.

VERSION 2

Members agree to eliminate visa restrictions that limit the ability of students to study at universities in another nation, or restrict the ability of scientists or engineers to participate in conferences or gain experience at firms in another nation.

Article 10-2 - Most Favored Access to Publicly Supported Research

Members agree that with regard to access to publicly funded research, participation in research consortium, benefits of tax credits, or other areas of support for research or the licensing of intellectual property derived from public funding, any advantage, favour, or privilege granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.

Part 11 - Obligation to finance free and open knowledge goods

Part 12 - Enforcement of rights and obligations