infosoc2012

CONS

UMERS IN THE INFORMATION SOCIETY

C O N S U M E R S I N T E R N A T I O N A L

C O N S U M E R S I NT H E I N F O R M A T I O NS O C I E T YA C C E S S , F A I R N E S S A N DR E P R E S E N T A T I O N

K U A L A L U M P U R 2 0 1 2

About Consumers International (CI)Consumers International (CI) is the only independent global campaigning voice forconsumers. With over 220 member organisations in 115 countries, we are building apowerful international consumer movement to help protect and empower consumerseverywhere. For more information, visit www.consumersinternational.org.

Published and produced by:Consumers InternationalRegional Office for Asia Pacificand the Middle EastLot 5-1 Wisma WIM,7 Jalan Abang Haji Openg,TTDI, 60000 Kuala Lumpur, Malaysia

Tel: (603) 7726 1599 Fax: (603) 7726 8599

Consumers in the Information Society:Access, Fairness and RepresentationEdited by: Jeremy MalcolmCover design by: Andrea CarterProduction by: R Shanmugam and Jeremy MalcolmPrinted by: Makmur Millenium Enterprise

© Consumers International. Some rights reserved.

Creative Commons Attribution-Share Alike 3.0 Licencecreativecommons.org/licences/by-sa/3.0/

ISBN: 978-0-9567403-9-7

ContentsPreface 5

A Access to knowledge 9

1 Consumer Protection and IP Abuse Prevention under the WTO FrameworkDr George Yijun Tian 11

2 Introduction to Digital Personal PropertyPaul Sweazey 53

B Broadband 73

3 Global Consumer Survey on BroadbandBy Jeremy Malcolm and Elyse Corless 75

C Consumer Rights and Representation 91

4 Information and Communication and the Rights of the World’s Consumers inthe 21st Century: Updating the UN Guidelines for Consumer Protection

Robin Brown and Jeremy Malcolm 93

5 The UN Guidelines For Consumer Protection: Making Them Work inDeveloping Countries

Robin Brown 113

6 Public Interest Representation in Global IP Policy InstitutionsDr Jeremy Malcolm 141

7 Arresting the Decline of Multi-Stakeholderism in Internet GovernanceDr Jeremy Malcolm 159

8 Public Interest Representation in the Information SocietyNorbert Bollow 181

9 Mapping “Public Interest Representation in the Information Society”:A Network Analysis Experiment

Dr Elena Pavan 215

PrefaceThe papers in this book cover a variety of very current topics, such as fighting theabuse of intellectual property rights, safeguarding consumer rights online, and ex-panding consumer representation in bodies making policy for the digital age. Whilstyou might suppose that these would be new areas for the consumer movement, theyare not that new to Consumers International. CI has in fact been at the forefront of ad-vocacy on many of these issues for more than 30 years, long before they enjoyed broadpublic awareness:

A. CI led other non-governmental organisations (NGOs) in campaigning against patentprotection for essential drugs as long ago as 1981, arguing that these were “too im-portant to be left in a monopoly domain.”1 We were also amongst the first globalNGOs to speak out against the addition of intellectual property (IP) rules to theglobal trading system (through what became the TRIPS Agreement).2 Our mem-bers, too, were early campaigners against the abuse of intellectual property rights,with the Hong Kong Consumer Council writing in 1999 that “Intellectual propertyrights and protection, once the tools for technological, industrial and intellectualadvancement have now also become the instruments through which unfair marketpractices are executed”.3

B. CI and its members were also well attuned to emerging issues around consumersonline. In 2001, for example – the same year when Wikipedia was launched – CIconducted a research report Privacy@Net,4 which exposed concerns about trackingby online advertisers. These concerns are only now being addressed a decade later,through the development of a “Do Not Track” standard by the World Wide WebConsortium (W3C), in which CI is participating.

C. CI has also been involved for many years in addressing the lack of representationof consumer interests in policy-making bodies, including those most relevant inthe digital age. In 1994 we wrote of the World Trade Organisation (WTO) that “thelack of provision for the involvement of other interested parties such as consumerorganisations in the working of the WTO . . . is a very serious flaw and one againstwhich NGOs will have to fight against”.5

1 Sim, Foo Gaik. “Partners in the Third System: IOCU and Other Social Movements,” in Sim, Foo Gaik (ed).IOCU on Record, Yonkers: Consumers Union, 1991, 113, p. 116.

2 Evans, Phillip. Unpacking the GATT: A Step by Step Guide to the Uruguay Round. London: IOCU, 1994, p. 39.3 Hung-yuk, Anna Wu. “Intellectual Property and the Consumer,” in Rachagan, S Sothi (ed). Consumer

Protection in the WTO Era, AIDC-IACL, 1999, 223, pp. 224-5.4 Privacy@net: An international comparative study of consumer privacy on the internet. London: Consumers

International, 2001. URL: http://a2knetwork.org/l/1z.5 Evans, Phillip. Unpacking the GATT: A Step by Step Guide to the Uruguay Round. London: IOCU, 1994, p. 9.

6Conveniently enough, the above labels A, B and C are also the acronyms for each of

the areas in question, as used on our dedicated website http://A2Knetwork.org andin this book. “A” stands for “access to knowledge” (or A2K), a term which did noteven exist when CI first began campaigning in this area, but is now used to describeadvocacy for intellectual property reform and other policies that help to democratiseaccess to culture and knowledge. The papers on this topic are collected in Part A ofthis book:

• Dr George Yijun Tian investigates how the consumer movement can tackle intellec-tual property abuse, within the framework of the WTO TRIPS Agreement. Whilstthe TRIPS Agreement is perhaps best known among A2K activists for imposinginflexible IP obligations upon WTO members, in fact it also contains a numberof concessions to the public interest. One of these is that it allows member coun-tries to pass laws that restrict the abuse of intellectual property rights (IPRs). Untilnow this provision has mostly been used as the basis for laws to prevent the anti-competitive use of IPRs. However, Dr Tian notes that its use is potentially muchbroader, also allowing countries to pass laws that inhibit the use of IPRs to infringeconsumer rights. He provides examples of this from the consumer laws of Aus-tralia and Brazil, and closes with recommendations for other countries, particularlydeveloping countries, to be more flexible in how they act against IP abuse.

• Paul Sweazey takes an alternative but equally interesting approach to tackling oneof the most insidious problems with intellectual property that confronts consumersin the digital age. The problem that he identifies is that consumers expect to be ableto use digital copyright works as if they owned those works, just like they couldown their analogue equivalents. But whereas a paper book can be lent, scribbledupon, quoted from, gifted, and so on – all without the knowledge or permission ofthe publisher – an e-book frequently contains restrictions that prevent the consumerfrom doing some or all of those things. Sweazey’s proposed solution comes not inthe form of a law, but rather a technical standard for “Digital Personal Property”.Digital works that comply with this standard would approximate, as closely aspossible in the digital world, their analogue equivalents. So for example, consumerscould share them at will with their family and friends – but not with strangers. Thisintriguing proposal therefore has the potential to appease both consumers who areworried about digital works that they don’t “own”, and also publishers who areconcerned about piracy.

“B” stands for Broadband, which is the subject of a major global campaign of CI called“Holding Broadband Service Providers to Account”. This new campaign aims to em-power consumer organisations around the world to demand more equitable and ac-cessible broadband service offerings, respecting consumers’ rights and broader humanrights, as a necessary condition of achieving a socially-inclusive information society.The first report of this campaign may be found in Part B of this book, and reveals:

• Broadband Internet access at home is by far the preferred way for the consumersthat we surveyed to access the Internet. Too many of them had one big problemwith their connections: speed. Frequently misadvertised, often unpredictable, and insome regions too slow all around, Internet speed is a great source of frustration forconsumers, and therefore will be a focus of our broadband campaign during 2012.One of the speakers who doesn’t have a paper included here, Benjamin Lennett ofthe New America Foundation, will be presenting at the meeting that accompanies

7this volume to describe how a campaign for the adoption of a “broadband nutritionlabel” could force providers to get straight with their customers about Internetspeed.

• Another big problem for consumers in certain areas is pricing, with amongst theworst value for money being reported in regions that – surprise! – have limitedcompetition. Overall, Internet services in North and Latin America were particu-larly overpriced, and hence we expect to focus on these regions in our upcomingcampaigning activities. But even in areas where more competitors are availableto provide broadband services, other tactics are used to prevent consumers fromshopping around for the cheapest deal; in particular, that consumers are locked infor lengthy minimum terms. We plan to address this problem during 2012 with acampaign theme, “Don’t Lock Me In!”.

• Finally, although consumers were not unhappy with the customer service thatthey received from their Internet providers overall, one particular area in whichwe recorded shocking levels of dissatisfaction was complaint handling. In keepingwith the finding about consumers’ dissatisfaction with their Internet speed, this wasthe topic of complaint that was handled most poorly. But complaints about othertechnical problems with the Internet, and about billing issues, were also badly han-dled. Our strategy to address this discovery will be to equip members in the mostaffected countries to campaign for the introduction of an independent dispute res-olution service, that can deal with consumer complaints quickly, efficiently and atlittle or no cost to the consumer.

Finally, “C” stands for “Consumer rights and representation in the information so-ciety”, which although something of a mouthful, covers higher-level issues such ashow the modern consumer’s interests (as defined in “A” and “B”) can be enshrinedas rights, and how consumers can have a seat at the table of the policy-making bodieswhere these issues are addressed. This is the broadest, and probably the most impor-tant of the areas covered, and hence takes up the largest part of this book, with sixpapers in all:

• Robin Brown contributes two papers on CI’s campaign to bring the United Nations(UN) Guidelines for Consumer Protection into the digital age, by adding new pro-visions on A2K and related issues. In the first paper, co-written with the editor,Robin provides background about the UN Guidelines and about access to knowl-edge. He identifies how A2K already has a foundation in existing UN human rightsinstruments, and demonstrates that there are already several UN bodies that haveresponsibilities in this field. This paper then goes on to reproduce the proposedamendments, and to explain their source and motivation. Robin’s second paper pro-vides a much richer history of the UN Guidelines, and elucidates how consumerpolicy is not just about consumer protection, but also about consumer empower-ment and competition policy. Going beyond the Guidelines, Robin describes whatis required for such consumer policy to be effectively implemented, particularly indeveloping countries.

• The editor Jeremy Malcolm contributes the next two papers, which provide back-ground on the issue of consumer representation in the information society. The firstconsiders the mechanisms that are available for consumer participation in policydevelopment within two particular governance regimes: environmental policy, and

8Internet governance. Best practices in these regimes respectively derive from theAarhus Convention and the Tunis Agenda for the Information Society, which setsimilar norms of transparency and multi-stakeholder participation. The paper goeson to consider how well various institutions for intellectual property policy devel-opment stack up against these best practice norms. Particular attention is given toACTA, the Anti-Counterfeiting Trade Agreement, which rates extremely poorly.Jeremy’s second paper continues by drawing out other cases in which the best prac-tice of multi-stakeholder participation in policy development seems to be in declinewithin the IP and Internet governance regimes. He concludes with some sugges-tions for arresting this decline.

• Norbert Bollow follows on from this background material with a much more prac-tical paper reporting on CI’s 2011 global survey on public interest representationin the information society, which was completed by 134 respondents from civil so-ciety organisations (CSOs) both within and outside the consumer movement. Hedistils the results of this paper into a very concrete series of analyses of no fewerthan 41 policy institutions. He reports on which of these institutions are alreadywell covered by consumer representatives, what mechanisms for consumer andbroader public interest representation they provide, and which other institutionsrespondents would like to participate in if they could. Norbert reports that a domi-nant reason for lack of participation is lack of funding, but also that there are deepdeficiencies in certain institutions whereby the framing of issues is manipulated tofavour powerful special interests and exclude public interest perspectives. Using asystems engineering perspective, the paper gives recommendations on institutionalreforms that could improve public interest representation in the information society.

• A short closing paper by Elena Pavan, which serves as a companion to Norbert’s,examines the same set of survey results using the technique of network analysis.Particularly interesting is her visual representation of the survey data, showing theconnections between institutions and respondents to the survey.

All but one of the contributors to this volume, along with other distinguished speak-ers from around the world, will be in Kuala Lumpur, Malaysia from 8-9 March 2012

to present at “Consumers in the Information Society: Access, Fairness and Represen-tation” for which this volume serves as the collected proceedings. Whether you are aparticipant at that meeting, or are a member or friend of CI who has downloaded thisvolume from our website, we hope that you will find it informative, challenging andinspiring.

A Access to knowledge

1 Consumer Protection and IPAbuse Prevention under theWTO FrameworkDr George Yijun Tian

University of Technology Sydney

A�� In this paper, I will examine the likely effects of the WTO framework andthe TRIPS Agreement on consumer protection in the IP and technological market. Iwill first examine whether provisions to limit IP enforcement measures on consumerprotection grounds are permissible under the IP abuse provision of the TRIPS Agree-ment. I will then use China, Australia and Brazil as examples to examine how non-competition law approach, particularly consumer laws, can be used to prevent variousforms of IP abuse, particularly unfair terms in End Users Licensing Agreements. Somerecent cases on IP abuse prevention in high technology market will be discussed byreferring to consumer protection laws in Australia and Brazil, such as Sony PSN case,Google and Amazon cloud computing cases. Finally, I will provide some practical ad-vice for individual countries, particularly IP net importing countries, to use consumerlaw to prevent IP abuse. It is imperative that each country, particularly developingcountries, should adopt more flexible approaches at both international and domesticlevels to address the IP abuse issues and to protect legitimate rights of their citizens inusing new technology products and services. This is not only important for protectingconsumers but also important for encouraging competition and supporting innovation.

Introduction

The inclusion of Intellectual Property (IP) law within the World Trade Or-ganisation (WTO) framework is a profound change from the trade law framework thatthe WTO replaced in 1995, and its impact on developing and developed countries alikehas been enormous. As many commentators noted, the Agreement on Trade-Related As-pects of Intellectual Property Rights (TRIPS Agreement) is one of the most controversialinternational IP agreements that has entered into force.1

1 Yijun Tian, Rethinking Intellectual Property, (2009) at 27-35. See also Peter K Yu. (2009), “The objectivesand principles of the TRIPS Agreement”, Houston Law Review 46: forthcoming. http://www.peteryu.com/correa.pdf at 1.

12 �� Its negotiations were “highly contentious”, and the “perspectives of developed and

less developed countries on the role of IP and enforcement remain far apart”.2 Partic-ularly in recent years, developing countries are frustrated by the ongoing demands bydeveloped countries for protections and “additional TRIPS-plus demands” imposedby new bilateral and regional trade and investment agreements.3 They believe that theTRIPS and these TRIPS-plus agreements have “ignore[d] their local needs, nationalinterests, technological capabilities, institutional capacities, and public health condi-tions”4, and believe that it is necessary for the WTO and WIPO to take into accountthe development concerns5 and to develop a more effective regulatory framework forachieving the objectives of the TRIPS Agreement in preventing the abuse of IP andenhancing technology transfer.6

Nevertheless, most existing studies on WTO and TRIPS Agreement focus on thebalancing issues in IP law and international IP trade and the role of competition lawin preventing IP abuse.7 The TRIPS Agreement, in Article 8(2), explicitly allows WTOmembers to include provisions to prevent the abuse of intellectual property rights intheir local law. Pursuant to this provision, a number of jurisdictions do regulate theabuse of intellectual property rights through competition law, such as where a rightsholder refuses to negotiate a licence with a third party with the intention and effect ofstifling the emergence of a new market. However, few studies have been done on theimpacts of the inclusion of IP law within the WTO framework on consumer protection,and how developing countries may use consumer law to prevent IP abuse. Fewerstudies have been done on the impacts of developing countries’ access to the WTO ontheir domestic consumers in IP market.

In this paper, I will examine the likely effects of the WTO framework and the TRIPSAgreement, on consumer protection in the IP and technological market, and whetherprovisions to limit IP enforcement measures on consumer protection grounds are alsopermissible under TRIPS.

In Part I, I will discuss the limits of the current WTO framework on consumer pro-tection, particularly the protection for the consumers in developing nations. I willexamine the democratic negotiation process of the WTO regimes (including the weakbargaining power of developing countries and the absence of voice of NGOs in theformal negotiation process) and its direct impacts on public rights. Some specific ex-amples will be given to demonstrate the potential risks that the WTO disputes resolu-tion mechanism is used to diminish consumer rights or public rights in general. I willalso explore the rationale behind these examples and call on future reform. I will useChina as an example to explore the difficulties of developing countries to apply theWTO rules and TRIPS Agreement, and potential impacts (including both negative andpositive impacts) on consumer protections in these countries.

In Part II, I will discuss the likely effects of the TRIPS Agreement on the protectionof consumers and IPR users. I will provide a brief history review of the negotiation

2 Peter K Yu, above n 1 at 1.3 Yijun Tian, Rethinking Intellectual Property, (2009).4 Peter K Yu, above n 1.5 Peter Yu further stated “these concerns and frustrations eventually led to the establishment of a set

of development agendas at the WTO, the World Intellectual Property Organisation (WIPO), and otherinternational fora.[2]”.)

6 Yijun Tian, Rethinking Intellectual Property (2009); Yijun Tian, IP Abuse Prevention – Computer andSecurity Law Review (2010).

7 Okediji, Ruth L. “Back to Bilateralism? Pendulum Swings in International Intellectual Property Protec-tion” (2003-2004) 1 University of Ottawa Law & Technology Journal 125, 127; Peter Yu, above n 1; Yijun Tian,above n 1 and 6.

�� : �� 13process of TRIPS Agreement, and comment on whether the TRIPS negotiation pro-cess is a democratic one and how the trade-off between developing and developedcountries has been temporarily achieved. I will then examine both possibilities and dif-ficulties for individual countries to use the IP abuse prevention provision in the TRIPSAgreement to balance IP protection and consumer welfare, particularly focusing onArticles 7 and 8 of the TRIPS Agreement (on the Objectives and Principle of the TRIPSAgreement), and examine whether they provide a leeway for individual countries touse consumer laws to prevent IP abuse, particularly preventing IP abuses throughunfair terms of IP licensing agreements. Various forms of IP abuse, which may harmconsumers and IP users, will be examined. Particular attention will be given to unfairterms of IP licensing agreements.

In Part III, I will focus on the consumer protection laws at the domestic level. I willexamine the major forms of IP abuse (including IPR abuse in the online environment)in China, and discuss how the Chinese consumer law addresses IP abuse issues. I willthen use Australia and Brazil as examples to explore how to use sophisticated con-sumer laws to strengthen the protection of consumers and IP users under current digi-tal environment. The recent revision of consumer law sections in Australian Competitionand Consumer Act 2010 (CCA, former Trade Practices Act 1974) and Consumer ProtectionLaw in Brazil, particularly unfair contract term provisions, will be examined.

In Part IV, I will examine some recent IP abuse cases in high technology market,such as the Sony PlayStation Network (PSN), Google and Amazon cases. In particular,it will examine how existing Australian and Brazilian consumer protection laws maydeal with unfair terms in End User Licensing Agreements, and advise consumerson potential legal remedies against IP abusive conduct of IP licensors or technologyservice providers.

In Part V, I will provide some practical advice for individual countries, especiallyIP net importing countries (such as China), to use consumer law to prevent the abuseof IP. I will also discuss the possibility that developing countries, international or-ganisations and NGOs (such as Consumer International) work together in enhancingdemocracy in TRIPS revision negotiations in the future. Further, I will argue that, likethe TRIPS Agreement, the WTO/UN should set up the minimum requirements ofconsumer protection for member countries.

Part I: WTO Framework and Consumer Protection1.1 Trade Oriented vs People OrientedMost discussion of the WTO is focused on trade issues rather than people in the trade.This is no surprise, because it reflects the WTO’s own philosophy. The preamble ofthe Agreement Establishing the WTO explicitly indicated that the WTO contributes toits recognised objectives through the “multilateral trading system”.8 Consequently, assome commentators noted, the constitution of the WTO is based on the “principles of

8 Bill Butcher & Mary Ip, “Are Chinese Consumers Winners or Losers under WTO Membership?” (2007)4 Macquarie Journal of Business Law 71 ; “Being desirous of contributing to these objectives by entering intoreciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and otherbarriers to trade. . . Determined to preserve the basic principles and to futher the objectives underling thismultiateral trading system”.

14 �� trade rather than rules for people”.9

This WTO philosophy has also been articulated in the statement made by the WTOWorking Group on the Interaction Between Trade and Competition Policy in 1999:

[i]n the case of Article III of the General Agreement on Tariffs and Trade (GATT) the sub-ject matter which must benefit from national treatment is not the persons of other Mem-bers but the products of other Members. . . While this is apparent on the face of Article III,it has also been emphasised in various panel decisions. . . In the case of trade in services,the potential beneficiaries of national treatment under the General Agreement on Trade inServices (GATS) are both the services of other Members and the service suppliers of otherMembers.10

It is clear that the primary focus of the WTO institutional framework is on the tradeitself (products and services) rather than the person (consumers).

The trade-oriented approach/organisation philosophy itself is not something to becondemned. But the implementation of such a philosophy may have negative effectson many social issues, including the protection of consumer rights. This has beenevidenced by numerous WTO/GATT dispute settlement decisions11:

• In 1990 WTO panels have ruled against the Thai government for its import ban onthe United States’ cigarettes;12

• In 2000 WTO panels overrode the European Union’s ban on beef laced with artificialhormones;13

• In 2001 Bolivia, Sri Lanka and Croatia governments abandoned a proposal to banbiotech foods after the United States and Argentina threatened to take WTO ac-tion;14

• In 2005 WTO panels have ruled that Japanese quarantine restrictions on apples toprotect against introduction of fire blight breached Japan’s WTO obligations;15 and

• More recently, in 2009 and 2010 WTO panels have ruled that China violated interna-tional trade rules by restricting the exportation of nine raw materials, such as coke,zinc, and bauxite.16

As some commentators observed, it is clear that these decisions have underminedconsumer health and safety concerns in favour of commercial interests.17 They “can

9 See also Peter Costantini, What’s wrong with the WTO? (November 2001) http://www.speakeasy.org/~peterc/wtow/ at 24 January 2006. Cited by Bill Butcher & Mary Ip, above n 8.

10 Ibid. Also see The Fundamental WTO Principles of National Treatment, Most-Favoured-Nation Treatmentand Transparency: Background Note by Secretariat, WT/WGTCP/W/114 (1999) [18-19] (Report by the WTOWorking Group on the Interaction Between Trade and Competition Policy, 14 April 1999).

11 Butcher & Ip, above n 8. Butcher and Ip provided some fine examples in this vein.12 See Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R – 37S/200 (1990)

(Report of the Panel adopted on 7 November 1990) at http://www.sice.oas.org/dispute/gatt/90cigart.asp [last visit 10 Jan 2012].

13 Clausen Allan, The World Trade Organisation (September 2000) Oxfam Community Aid Abroad http://www.oxfam.org.au/campaigns/submissions/wto.pdf at 12 October 2005.

14 Friends of the Earth International, “US and Biotech Corporations Impose Genetically Modified Organ-isms Worldwide under WTO Threats”, at http://www.foeeurope.org/press/17.12.01.htm [last visited on10 Jan 2012].

15 “Japan – Measures Affecting the Importation of Apples”, WTO Dispute DS245 (2005) (Report of thePanel Circulated on 2 June 2005) at http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds245_e.htm[last visited on 10 Jan 2012].

16 ICTSD “China Flouts Ruling as WTO Rejects Environmental Defence in Raw Materials Case” ICTSDChina Programme Volume 11, Number 13, 11 July, 2011 at http://ictsd.org/i/news/biores/110313/ [lastvisited on 10 Jan 2012].

17 Butcher & Ip, above n 8.

�� : �� 15all be explained as trade barriers masquerading as environmental and health concerns,but they still reflect the primacy of trade and the diminution of national sovereigntythat comes with WTO membership, even where questions of consumer health andsafety arise.”18

1.2 Rationale Behind: Imbalance of BargainingPower

Despite recent improvement in its transparency and accountability, the WTO has beencriticised for its secrecy. The consensus system under the WTO Marrakesh Agreementsmay be manipulated by a few of the most developed countries.19 Some commentatorscriticised that WTO negotiations are “held behind closed doors, contrary to the usualpractice of other international organisations such as the United Nations”.20

The reasons for the possibility of the manipulation of democratic negotiation arevarious. One of the major reasons is the imbalance of bargaining powers betweenmember countries. On the one hand, the WTO is dominated by four largest tradingblocs, namely the United States, the European Union, Japan and Canada.

These developed countries share similar commercial goals and interests, and oftenwork collaboratively to push through an agenda at the expense of developing countries(more specific examples, such as the TRIPS Agreement negotiation will be discussedin later sections.).21 Although the developing countries make up more than three-quarters of WTO membership,22 developed countries have the capacity to locate largedelegations permanently at the WTO Headquarters in Geneva, and to receive amplesupport from their home country, including sending trade specialist teams to Genevato assist with complex matters confronted at the WTO.23

On the other hand, while there is increasing unity and power among developingcountries to influence WTO directions, most recently at the 2005 Hong Kong Ministe-rial Conference,24 lack of financial resources and experienced negotiators necessarilylimit their impact in WTO negotiations. (More specific examples will be given later).Although the WTO has a mechanism to provide technical assistance to developing andleast-developed countries (“LDCs”), the purpose of the WTO technical assistance is

18 Butcher & Ip, above n 8. Some protection is afforded, but not guaranteed, by Article XX(b) of the GATT,discussed below in the context of the Thai cigarette dispute.

19 Article IX.1 of the Marrakesh Agreement states that, “The WTO shall continue the practice of decision-making by consensus followed under GATT 1947. Except as otherwise provided, where a decision cannotbe arrived at by consensus, the matter at issue shall be decided by voting.” For example of WTO consensusmanipulation, including “consensus manufacturing”, see Aileen Kwa, “Power Politics in the WTO” (2003)Focus on the Global South http://www.global.ucsb.edu/classes/global_130_f06/reading/Aileen_Kwa_

Power_Politics_in_the_WTO_4-6.pdf.20 Steve Charnovitz, “Opening the WTO to nongovernmental interests” (2000) 24 Fordham International Law

Journal 173, 173.21 Butcher & IP, above n 8.22 Colin Galloway, “Making new friends and foes”, South China Morning Post, 12 November 2001 http:

//www.scmp.com at 26 December 2005.23 There are approximately 40-50 meetings a week covering a broad range of issues under the WTO.

Sourced from Consumers International, “The Way Forward for the Multilateral Trading System”, Tradeand Economics Briefing Paper, No 1, November 2000 http://www.consumersinternational.org at 5 October2005.

24 The Sixth Hong Kong Ministerial Conference was held in Hong Kong, China, from 13-18 December,2005. Ministerial conferences are held every two years and are the WTO’s chief decision-making body. Thegrowing strength of member countries outside the “Big Four” is suggested by the progress made at theHong Kong Ministerial on preserving their interests, particularly on agricultural reform.

16 �� mainly focussed on assisting member countries to understand and implement WTOrules rather than meaningful assistance for strengthening their negotiation capacity.

Another problem is the exclusion of non-government organisations (NGOs) frommeaningful participation in WTO policy discussions and law making processes. Underthe “close-door policy” of WTO, NGOs were not able to participate in the WTO’sdebate. They can only observe WTO’s activities. Although they can present at WTOMinisterial Conferences and take part in various symposia organised by the WTOSecretariat, they cannot be directly involved in the work of the WTO.25

As many commentators have observed, “the significant role played by NGOs ininternational forums should not be neglected”.26 For example, the expansion of theUnited Nations Guidelines on Consumer Protection (1999) into the area of sustainableconsumption was largely credited to the impetus and contribution of the internationalconsumer groups in the United Nations forum.27

1.3 Different Position of Consumers in Developedand Developing Countries: China as anExample

A direct consequence of trade-oriented organisational philosophy and imbalance ofnegotiation power is the increased risk of jeopardising the interests of consumers indeveloping countries. As discussed above, while membership of the WTO enablesconsumers in developing countries to enjoy greater variety of products with moreaffordable prices, it also limits the ability of these countries’ government to protecttheir consumers. The WTO agreement has been deemed as a trade-off between rightof free trade and limitation of national sovereignty. Most developed countries havealready established strong consumer protection mechanisms, the limitations on na-tional sovereignty under the WTO regime is less damaging for them. By contrast, asmost developing countries and LDCs do not have well-developed consumer protectionlaws and administration, these limitations could have deleterious consequences. Al-though the consumer protection regimes in many developing countries have improveddramatically over the recent two decades, they are still relatively “less developed” ingeneral.28

Using China as example, on the one hand, China’s consumer protection laws andregulations have been improved remarkably in various aspects in the past two decades.On the other hand, like many other developing countries, its regulatory and admin-istrative schemes on consumer protection are still subject to further improvement. Interms of regulatory schemes, the market situation in China has undergone tremendouschange after its access to the WTO in 2001. However, the Chinese Law for the Protec-tion of Consumers Right and Interests 1993 (CLPC 1993) has not been revised since itwas passed in 1993. A review and revision of the current CLPC becomes increasinglynecessary in order to ensure that the consumer law can be implemented broadly and

25 Butcher & Ip, above n 8.26 Ibid.27 The United Nations Guidelines for Consumer Protection (As expanded in 1999) http://www.ciroap.org/

apcl/resources.html.28 Many developing countries did not pass consumer laws until recent decades. In addition to consumer

laws, many developing countries, including China, do not have a specialized agency for consumer lawenforcement. It is a very loose structure of consumer protection.

�� : �� 17administered effectively to achieve its original legislative purposes. This has been evi-denced by numerous post-WTO cases which involved foreign technology companies,including the Sony TV and Toshiba notebook cases.

In each of these cases, technology products produced by foreign companies en-dangered the safety and interests of Chinese consumers, who have not received ef-ficient and effective protection and compensation, because the Chinese laws on con-sumer protection and production liability (laws made by the congress) do not contain a“product recall” regime, which most developed countries have, and the scale of mone-tary compensation in Chinese Product Liability Law is too low.

However, it is noteworthy that China does have “product recall” regimes at ministe-rial level. Since 2004, China has made impressive progresses in enacting new rules onproduct recalls, including: Administration Rules on Motor Vehicle Defects and SafetyRecalls, Administration Rules on Children Toy Recalls, Administration Rule on FoodRecalls, and Administration Rules on Medicine Recalls. They have arguably had greatimpacts in promoting the protection of consumer interests. Nevertheless, these rulesare mainly at the ministerial level, and the administrative monetary penalty is 30,000

RMB only (less than 5,000 USD).29 Again, it seems to be too low to deter rule breakers.At the administrative and institutional level, it seems that China needs a stronger

and more independent body dedicated to enforcing consumer laws to safeguard con-sumers’ interests, and to address the potential conflict between consumer law enforce-ment and WTO-imposed obligations. As we know, most developed countries havespecialized agencies to address consumer protection issues, such as Federal TradeCommission (FTC) in the United States and the Australian Competition and Con-sumer Commission (ACCC). China has no real equivalent of the FTC or the ACCC. InChina, the nearest to a comparable body overseeing consumer interests is the ChinaConsumers’ Association (CCA).

The CCA, established in 1984, has completed a remarkable job in promoting con-sumer protection and consumer education in China in the past decades.30 Never-theless, as some commentators pointed out, the CCA may consider further improve-ment in at least three areas. Firstly, the CCA may consider expanding its authority oncompetition-related issues. At present, the CCA’s activities are confined to research,disseminating information, mediating consumer disputes, and advising governmenton consumer issues. It has no authority to initiate competition investigation or compe-tition litigation. China enacted the Anti-Monopoly Law in 2008, and three governmentagencies (Ministry of Commerce, National Development and Reform Committee, andthe State Administration for Industry and Commerce) are currently enforcing AML.31

The CCA is not one of them and takes no part in safeguarding consumers against mar-ket malpractice. In other words, unlike the FTC or ACCC, China has separate agenciesto deal with the consumer protection and competition protection issues. As such, itwould be desirable for the CCA to work more actively with competition enforcementagencies, and set up a formal connection between competition protection and con-sumer protection at both legislative and institutional levels (since consumer protectionis also one of legislative purposes of the AMLs).32

29 “Long Way to Go: Recall System for Defective Product – Legal Issues on the Toyota Car Recall” [Chinese]at http://f148.cn/web/law22/201031091719421.html at 16 Jan 2012.

30 See CCA website at http://www.cca.org.cn for a fine summary of the achievement of the CCA. See alsoCCA, “Review of 30th Anniversary of the Chinese Consumer Rights Protection Movement: Leading Cases”[Chinese] http://www.cca.org.cn/web/llyj/newsShow.jsp?id=41450.

31 AML, Arts 9 and 10.32 AML, Art 1.

18 �� Secondly, the CCA, as a quasi-governmental organisation,33 has limited financial re-

sources and insufficient government subsidy. Some CCA local branches rely heavily onmonetary contributions from business enterprises.34 It would be desirable if the CCAmay seek various ways to finance its operation, particularly through direct funds orsubsidy from the central government. China is the country with the biggest consumerpopulation, and its consumer protection agency naturally deserves more subsidies. Indoing so, the CCA may function more actively and independently in its objectives.

Thirdly, as Butcher and Ip observed, the CCA may need more qualified and expe-rienced personnel who are competent to deal with complicated post-WTO consumerprotection issues, and to protect domestic consumers more strategically. Although,in recent years, new agencies have been created within the Ministry of Commerce tomonitor WTO affairs and the WTO Training Centre has been established in the Bei-jing University, the CCA has not yet established a similar division to particularly dealwith post-WTO consumer protection affairs. In terms of the training of professionals,the EU-China Trade Project (governmental projects) has provided a sound platformfor professionals in governmental agencies (such as IP agencies and competition lawenforcement agencies) in both sides to regularly learn from each other.35 It would bedesirable if both side’s governments agree to include consumer protection agencies,such as the CCA, in this project.

1.4 Summary and Remarks: Nexus of MarketEconomy and Consumer Protection

In summary, many developing countries progressed well in consumer protection lawmaking. However, a revolutionary improvement of consumer protection in developingcountries cannot be achieved overnight. The WTO framework aims to use WTO agree-ments to reduce government interference and allow market forces to operate. However,an unfettered market economy is not focused on protecting the consumer but on pro-tecting free trade. Although the “negative impact of a market economy on consumerprotection may not pose a significant problem to people in developed countries”, itmay pose a significant problem to consumers in developing countries, such as China.As some commentators criticized, Chinese consumers’ interests have “been jeopar-dized by the lack of a quality control agency to execute the relevant laws” and such acircumstance “would be exacerbated with the influx of foreign goods upon WTO en-try”.36 Similar problems may also be found in other developing countries, particularlyin the least developing countries (LDCs).

Part II: TRIPS Agreement: IP Abuse Preventionand Consumer ProtectionAs introduced above, it is clear that the WTO is not a sound forum for protectingthe rights of consumers in individual member countries, but a forum for protecting

33 Gao Kun, Controversies Rising Around Local Consumers’ Associations (23 April 2001) China Organisa-tion http://www.china.org.cn/english/2001/Apr/11604.htm at 12 November 2005.

34 Butcher & Ip, above n 8.35 See EU-China Trade Project, “About Us”, at http://www.euchinawto.org/index.php?option=com_

content&task=view&id=12&Itemid=26.36 See Butcher & Ip, above n 8.

�� : �� 19suppliers of products and services and promoting free trade of products and services.

The TRIPS Agreement, as an important agreement in the WTO framework, hasarguably inherited the WTO’s pro-supplier features. Nevertheless, if we examine theprovisions of the TRIPS Agreement in detail, we may find that it seems to provide aleeway for developing countries to adjust their domestic laws to protect the interests ofconsumers.

2.1 TRIPS Agreement and Democratic Negotiation37

The bargaining process of the TRIPS has been regarded as a typical example of theway in which major stakeholders in developed nations have applied their economicpowers and sophisticated negotiation skills to circumvent democratic bargaining pro-cesses in pursuit of maximization of their individual economic interests.38 ProfessorDrahos, in 2002, summarized three fundamental conditions of democratic bargaining:(1) the representation condition: the interests of all parties should be fully represented;(2) the full information condition: all negotiation parties should have full informationabout the consequences of possible outcomes; and (3) the non-domination condition:negotiation parties should not coerce each other.39 The negotiation process of theTRIPS appears to meet none of them, at least, none completely.

According to Drahos, in order to reduce possible resistance from developing na-tions, the US and the US big-business community adopted a “forum-shifting” strategyin the 1980s. They shifted the negotiation forum of IP standard-setting from the WIPO,UNCTAD and UNESCO where the developing nations might defeat their proposalsto the GATT forum where the US was the “single most influential player”.40 More-over, the first three circles of consensus in the TRIPS negotiation, which produced drafttexts of a possible agreement, were conducted within the Quad States (US, EC, Japanand Canada) without the involvement of any developing nation.41 Under such an ar-rangement, obviously, the interests of developing nations could not be well represented(lack of the representation condition).42 This also allowed the Quad States to obtainmore information than any other negotiating parties.43 Consequently, when the TRIPSwas concluded, many countries did not have a clear understanding as to the TRIPS’possible economic consequences (lack of the full information condition). When, in aninterview conducted in Seoul in 1994, Professor Drahos asked a senior official why

37 Acknowledgement: section 2.1 provides a summary of the TRIPS Agreement Negotitation Process. It wasmainly extracted from my book, Yijun Tian, Rethinking Intellectual Property, (2009) at Chapter 3, s 3.3.4 (1),which provided a comprehensive discussion on issues of democracy and the IP standard setting process.

38 As introduced above, there are substantive academic literatures discussing the negative impacts of theTRIPS. In this section, the author focuses on the negotiation process of the TRIPS.

39 Peter Drahos, “Negotiating Intellectual Property Rights: Between Coercion and Dialogue” in Drahos,Peter and Mayne, Ruth (ed) Global Intellectual Property Rights: Knowledge, Access and Development (2002), 161,163-4.

40 Ibid, 166.41 As Professor Drahos observed, the whole negotiation process involved a strategy in which “a non-

representational inner circle of consensus was expanded to create larger circles until the goals of those inthe inner circle had been met”, and consequently, it “became one of hierarchical rather than democraticmanagement”. Ibid, 167-8.

42 Art 66.1 of TRIPS provides some transitional treatment for LDCs, but generally speaking, the opinionsof LDCs had not been fully represented in the TRIPS negotiation process. According to a recent joint studyconducted by the United Nations Conference on Trade and Development (UNCTAD) and the InternationalCentre for Trade and Sustainable Development (ICTSD), “only one LDC at the time [WTO negotiationprocess], i.e., Tanzania participated actively in the TRIPS negotiations”. See UNCTAD-ICTSD, Resource Bookon TRIPS and Development (hereinafter “Source Book”) (2005), 715.

43 See Drahos, above n 39, 167,169.

20 �� Korea had agreed to TRIPS, the reply was “because we were ignorant”.44 Later, al-though the proposal of the Quad States incurred stronger resistance from developingnations, particularly from India and Brazil, the threats of the US Special 301 sanctionsfinally broke the loose alliances of developing nations.45 US bilateralism and potentialtrade sanctions put developing nations in a very passive situation – either negotiatemultilaterally under the framework of the TRIPS or face the US alone (lack of the non-domination condition).46

“Forum-shifting”, “hierarchical consensus”, “trade sanction threats” and all otherbargaining strategies worked collectively to enable the Quad States to win the “firstround IP war”: The passage of the TRIPS has formally linked IP protection to the traderegime, and enables trade laws to serve as a weapon by use of which developed na-tions can control “a resource even more important than oil – knowledge.”47 As Drahoscriticized, “the reality of IP standard-setting has been that of an insider’s game domi-nated by a few producers of IP supported by states with the most to gain.”48 It is clearthat the TRIPS negotiations are a typical example of the imbalance of negotiation pow-ers between developing and developed countries in the WTO negotiations (introducedabove).

Although the Quad States were to win the “first round IP war”, the efforts of de-veloping countries in the TRIPS negotiations are not completely meaningless. Oneimportant outcome of their efforts is to successfully incorporate the IP abuse preven-tion provision into the Objectives and Principles of the TRIPS Agreement.

2.2 Objective and Principle Provisions of TRIPS:IP Abuse Prevention Regulation beyondAntitrust Law

The TRIPS has been the most significant development in the international IP arena inthe twentieth century and an “ineluctable consequence of increased global economicinterdependence”.49 It is often deemed a compromise between developing and devel-oped nations in international trade negotiation. Developing nations promise to providestrong IP protection to foreign IP products. In return, developed nations promise toprovide concessions to developing nations in labour-intensive industries, such as agri-

44 Drahos, Peter, “Cities of Planning and Cities of Non-Planning: A Geography of Intellectual Property”,Cultural Intelligence (2006) http://world-information.org/wio/readme/992003309/1154965104 at 12 October2006.

45 In 1989, five of the ten developing nations opposing the US agenda were placed on the US list for bilat-eral attention. Brazil and India were placed in the more serious priority watch list. Trade sanctions finallypushed Brazil to agree to seek the legislation that the US wanted in 1990. Consequently, India could not findmuch support coming from Brazil any more. See generally Drahos, above n 39, 170-171 (introducing how theUS apply bilateral trade to force developing nations, such as Brazil, to reform IP law). See also UNCTAD-ICTSD, above n 114 (providing a specific introduction about the TRIPS negotiation process and the debatesbetween developed and developing nations.

46 See general Drahos, above n 39, 170-171.47 See Drahos, above n 44 (pointing out: “[t]rade laws get amended to make them a weapon of economic

war in the fight to control a resource even more important than oil – knowledge.”)48 See Drahos, above n 39, 174.49 See Okediji, Ruth L, above n 7. Many commentators regarded the TRIPS Agreement as “the highest

expression to date of binding IP law in the international arena”. See Lovoi, Jeanmarie, “Note: Competing In-terests: Anti-Piracy Efforts Triumph Under TRIPS But New Copying Technology Undermines The Success”(1999) 25 Brooklyn Journal of International Law 445, 461.

�� : �� 21culture and textiles.50

In response to development concerns, Articles 7 and 8 of the TRIPS lay down theimportant principles and objectives of the Agreement. Article 7 requires that the pro-tection and enforcement of IPRs should “contribute to the promotion of technologicalinnovation and to the transfer and dissemination of technology”, the enhancement of “socialand economic welfare”, as well as a sound balance of rights and obligations of produc-ers and users of technological knowledge.51 Moreover, Article 8 of the TRIPS explicitlyprovides:

Appropriate measures, provided that they are consistent with the provisions of this Agree-ment, may be needed to prevent the abuse of intellectual property rights by right holders orthe resort to practices which unreasonably restrain trade or adversely affect the interna-tional transfer of technology.

It is clear that this article allows member states to adopt any measures they think ap-propriate to prohibit IPR abuse and any other conduct that may unreasonably restraintrade or international technology transfer.52 As a United Nations study has pointedout, this article to a large extent reflects the view of many developing countries, suchas India, during the Uruguay Round negotiations, that a “main objective of TRIPSshould be to provide mechanisms to restrain competitive abuses brought about by re-liance on IPR protection”.53

This may be the first time that the term “abuse of Intellectual Property Rights” ap-pears in an international agreement.54 It is also the first time that the internationalcommunity put “IP abuse”, “innovation promotion”, “restrictive trade practice (anti-competition)” and “technology transfer” issues altogether in one international docu-ment.

The TRIPS Agreement also includes specific provisions on anti-competitive mat-ters. For instance, Article 31 specified the conditions for compulsory licensing ofpatents as parts of measures to remedy anticompetitive practices. Moreover, TRIPSincludes a special section on the “control of anti-competitive practices in contractuallicences”, which focuses on anticompetitive licensing practices and conditions that re-strain trade.55 Article 40 of TRIPS imposes an obligation on member states to act on“licensing practices or conditions pertaining to IPRs, which restrain competition” ifthey “have adverse effects on trade and may impede the transfer and dissemination oftechnology”.56

50 See Schiappacasse, Mikhaelle. “Intellectual Property Rights in China: Technology Transfers and Eco-nomic Development” (2004) 2 Buffalo Intellectual Property Law Journal 164, 171.

51 See TRIPS Agreement, Art 7.52 See TRIPS Agreement, Art 8.2.53 UNCTAD-ICTSD, Resource Book on TRIPS and Development, at page 127 at http://www.iprsonline.org/

unctadictsd/ResourceBookIndex.htm at 16 June 2011.54 Paris Convention for the Protection of Industrial Propert 1883, Article 5, for the first time use of the

term “abuse”, but mainly foucsing on “abuse” of “patent” rather than “abuse” of IPR in general. See http://www.wipo.int/export/sites/www/treaties/en/ip/paris/pdf/trtdocs_ wo020.pdf.

55 TRIPS Agreement, Sec 8, Art 40.56 TRIPS Agreement, Sec 8, Art 40.1. See also TRIPS Resource Book, at 554.

22 �� 2.3 Leeway for Member Countries – Consumer

Law Remedies against IP AbuseIt is clear that these provisions have a narrower scope of application than Article 8.They contain rules which, with have regard to only some of the conduct of IPR-holdersthat is listed in Article 8, and may establish obligations on member states that are notmandated by Article 8. As some commentators have observed, the TRIPS Agreementhas not placed significant limitations on the authority of WTO member states to “takesteps to control anticompetitive practices”.57 For example, the TRIPS Agreement doesnot limit the remedial measures that each member state may impose. In addition to“compulsory licensing”, member states may apply other remedies against antitrustinfringement, such as injunction, damages and fines.58 Since the TRIPS Agreementonly sets up general principles for dealing with IP abuse, restrictive trade activities andtechnology transfer issues, it mainly relies on member states themselves to make spe-cific law and policies to “define the concept of abuses through appropriate domesticmeasures”59 and to regulate the activities of IPR holders when commercialising theirIP products/services.

It is clear that the scope of IP abuse under Article 8 of the TRIPS Agreement isvery broad. As the United Nations TRIPS and Development Resources Book has recog-nised, member states may consider conduct of IPR holders to be abusive “regardlessof whether the enterprise in question dominates the market or not, and regardless ofwhether there is an anticompetitive use or simply a use of an IPR which defeats itspurpose, eg, the purpose of innovation or of dissemination of technology”.60 In otherwords, it is not limited to prohibitions under the antitrust law (i.e. abuse of dominantmarket position), but may cover any “illegitimate use of IP” which is “contrary to thebasis and/or the objectives of IPR protection”.61

As such, although the existing TRIPS Agreement mainly uses competition law ap-proach as a main legal instrument to prevent and provide remedies for IP abuse activ-ities, it is clear that the TRIPS provides sufficient space for member countries to adoptany other appropriate domestic measures to define the concept of IP abuses, to preventIP abuse and restrictive trade practice and to enhance technology transfer. In additionto the competition law approach specified in Articles 31 and 40 of the TRIPS, memberstates can use any other legislation to prevent IP abuse, including consumer protectionlaw and contract law.

Next I will examine how different countries adopt domestic laws to prevent IPabuse and enhance innovation and technology transfer, and particularly focus on thenon-competition law approach – consumer law in China, Australia and Brazil.

57 UNCTAD-ICTSD, Resource Book, above n 15, 128.58 Frederick M. Abbott, Are the Competition Rules in the WTO TRIPS Agreement Adequate?, 7 J Int’l Econ. L No.

3, 2004, at 693.59 UNCTAD-ICTSD, Resource Book, above n 15, 548.60 Ibid.61 Ibid.

�� : �� 23Part III: IP Abuse Prevention and ConsumerLaw at the Domestic Level62

3.1 Existing Mainstream Approach for IP AbusePrevention – Competition Law Approachand Its Limits

Competition law is often deemed as one of most popular and effective legal instru-ments to prevent IP abuse.63 Although it is the idea of developing countries’ to includeprovisions for prohibiting IPR abuse and promoting technology transfer as part of theobjectives and principles of TRIPS,64 regulators in most developing countries have notdeveloped sophisticated laws and policies to enforce antitrust law in IP areas. In fact,some countries, such as China, have only set up their antitrust laws recently. By con-trast, in developed countries, particularly in the US and the EU, sophisticated laws andpolicies on coordinating the relationship between IP and antitrust laws and enhancingtechnology transfer have developed over the past two decades.

For example, in Europe, the European Commission (EC) issued its first united Tech-nology Transfer Block Exemption Regulation – Commission Regulation 240/1996 (“TTBER1996”) – in 1996 which provide a general guideline on how to apply anti-competitionprovisions of the Treaty of Rome to certain categories of technology transfer agree-ments.65 The EC conducted a regulatory review on the application effects of the TTBER1996 and enacted its New Technology Transfer Block Exemption Regulation (“TTBER2004”) – Commission Regulation 123/2004 – in April 2004,66 in order to simplify theTTBER 1996 and to improve the certainty of application of IP licensing agreements. Inthe US, the US Department of Justice (DOJ) issued a “watch list” for prohibiting anti-competitive restraints in patent licensing agreements in the 1970s.67 Moreover, in April1995, the DOJ and the Federal Trade Commission (FTC) enacted a joint document An-titrust Guidelines for the Licensing of Intellectual Property (the Guidelines 1995), whichprovides some general approaches (such as Rule of Reason Approach) and principlesfor determining IP-related monopolistic activities.68 In 2007, the DOJ and FTC issued

62 Acknowledgement: sections 3.1 and 3.2 provides a summary or list of existing IP abuse laws in EU andin China in particular. It was mainly extracted from an article the author has published in 2009. Yijun Tian,“IP Protection vs IP Abuses: The Recent Development of Chinese IP Abuse Rules & Recommendations forForeign Technology-driven Companies” in Computer Law & Security Review (CLSR), Vol 25, Issue 4, ElsevierLtd, Oxford, UK (2009) at 252-366 – footnote 6.

63 There are various types of IP abuse, such as using IP lawsuits as a tool against competitors, using IPlicensing agreements against new entrants to the market, and using contract law to expand the scope or termof IPR protection. However, most existing legislation and legal guidelines mainly focuses on restraints of IPlicensing arrangements, and technology transfer issues.

64 UNCTAD-ICTSD, Resource Book, above n 42, 543 (introducing negotiation history of article 8).65 Commission Regulation (EC) No 240/96 of 31 January 1996 on the application of Article 85(3) of the Treaty to

certain categories of technology transfer agreements (OJ L 31, 9.2.1996, p. 2), (TTBER 1996).66 See European Union’s new Technology Transfer Block Exemption Regulation (“TTBER 2004”) (Commission Reg-

ulation (EC) No. 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technologytransfer agreements, OJ No. 123, 27.04.2004) OJ L 123, 27.4.2004, at 11-17. http://europa.eu/scadplus/leg/en/lvb/l26108.htm. The TTBER 2004 replaces Commission Regulation (EC) No 240/96 of 31 January 1996 on theapplication of Article 85(3) of the Treaty to certain categories of technology transfer agreements (OJ L 31, 9.2.1996, p.2).

67 See Robert C. Lind, Anya V. Kleymenova, Marie Miauton and Paul Muysert, Report on Multiparty Licens-ing, Charles River Associates Ltd. 22 April, 2003, at page 23.

68 US Department of Justice (DOJ) & the Federal Trade Commission (FTC), Antitrust Guidelines for the

24 �� a more detailed document – Antitrust Enforcement & IPRs: Promoting Innovation andCompetition (hereinafter “the Report 2007”) in order to facilitate the understanding andapplication of the 1995 Guidelines and to improve the degree of certainty involved inIP licensing arrangements.

The legislative experiences of the US and EC are arguably very valuable for devel-oping countries that do not have sophisticated legal experiences in enforcing antitrustlaws in IPR areas. However, given that most developing countries only have a shorthistory of competition law enforcement (eg three-year experiences in China), compe-tition law may not be the most effective way for them to prevent IP abuse in a shorttimeframe. This is particularly true for new market economy countries. As intro-duced above, the legislative foundation of the competition law is market economy,and the purpose of the competition law is to create and maintain fair competition inthe market. Thus, it would not be an easy job for most former social plan-orientatedeconomies (such as China) to develop an effective competition law enforcement mech-anism within a short time period. By contrast, it may be more feasible for developingcountries to explore how to apply other non-competition law approach, which they arefamiliar with, to prevent IP abuse (such as consumer law approach).

I will next examine how the existing laws (non-competition law, particularly con-sumer law) prevent IP abuse in China and its limits by referring to similar laws in theUS and the EU. I will then examine how other countries, such as Australia and Brazil,address similar issues in their consumer laws, and what lessons other developingcountries may learn from them.

3.2 Forms of IP Abuse and Non-CompetitionLaw Approach for IP Abuse Preventionin China

China is the second-largest economy in the world and has nearly one-quarter of theworld’s population. China, as a new rising economy, does not need to worry about theissue – “locked by old technology”. Thus, any international enterprises, particularlytechnology-driving companies, cannot afford to simply ignore a nation with such a bigmarket. It is important for foreign IPR holders and technology-driven companies tohave a sound understanding of the Chinese laws on technology transfer and IP abusein order that they can avoid potential legal risk and commercialize their IPRs in anappropriate way.

After China entered the WTO in 2001 it sped up its efforts to become a part of theinternational IPR community, and enacted a number of laws and other regulations ontechnology transfer, anti-competition and IP abuse prevention. In particular, the lastfew years have seen China enact its first antitrust law – Anti-Monopoly Law 2008 (AML).In line with the requirements of Article 8 of the TRIPS Agreement, the AML includes aspecial article on IP protection and IP abuse prevention (Article 55). It is the first timethat China has explicitly included the term – “the abuse of intellectual property rights”– in its domestic law. Nevertheless, even before AML, China already has relevant lawsto address IP abuse issues. Both the AML and non-AML laws are currently valid, andserve as important components of the current Chinese IP Abuse regime.

Licensing of Intellectual Property, April 6, 1995, at http://www.usdoj.gov/atr/public/guidelines/0558.htm at10 December 2008.

�� : �� 25Before the AML came into effect, a small range of domestic laws in China contained

certain provisions on technology transfer and various forms of “IP abuse”.69 Generallyspeaking, prior to the AML, provisions focused on IP abuse could be found in fourgroups of laws and regulations. These were contract law, foreign trade law, anti-unfaircompetition law, and intellectual property law. They are not consumer law codes, butthey all have provisions which are designated to protect consumer benefits. As such,they follow into a broad definition of consumer law.

3.2.1 Contract Laws 1999 and Interpretation 2005 vs Nine No-Nos

The legal group of laws involve the laws on contract. The Contract Law 1999 containedsome specific provisions on IP abuse caused by technology/technology transfer con-tracts. It explicitly provided that any technology contract, which “illegally monopolizestechnology, impairs technological progress/advancement or infringes on the technology of athird party, would be invalid”.70 It further provided that the scope of the patent explo-ration or the use of the technical secret by the transferor and the transferee, which isset forth in technology transfer contracts, should not “restrict technological competitionand technological development”.71 The Contract Law 1999 arguably reflected the concernson IP abuse caused by technology contracts, but it was too general and has not pro-vided specific provision or standards for determining whether a technological contracthas “illegally monopolized technology or impaired technological progress”.

Six years later, in the Interpretation of the Supreme People’s Court Concerning SomeIssues on Application of Law for the Trial of Cases on Disputes over Technology Contracts,which came into force in January 2005 (hereinafter the “Interpretation 2005”),72 theSupreme People’s Court listed six specific circumstances/situations which wouldbe deemed as “illegally monopolising technology and impairing technological progress” inArticle 329 of the Contract Law 1999, including:73

1. Restricting one party from making new research and development on the basis of thecontractual subject technology.

2. Restricting one party from obtaining similar technology from competitors of thetechnology provider in the contract.

3. Restricting the technology accepter from reasonably exploring/commercialising thecontractual subject technology (including unreasonable restrictions on the quantity,varieties, price, sales channel or export market of the contractual subject technol-ogy).

4. Restricting the technology accepter to accept attached conditions dispensable forexploiting the technology (including purchasing dispensable technologies, raw materials,products, equipment, services or accepting dispensable persons).

69 Zhang Hui, Gao Guozheng and Guo Bingna, “Impacts of the Chinese Anti-Monopoly Law on IntellectualProperty: More Expectation?” In China IP Law Website at http://www.chinaiprlaw.cn/file/2008080213416.html at 12 December 2008.

70 Contract Law of the People’s Republic of China 1999 (Contract Law 1999), see section 329, at http://www.lehmanlaw.com/resource-centre/laws-and-regulations/contract.html at 12 January 2009.

71 Contract Law 1999, section 343.72 Chinese title of the document: Interpretation of the Supreme People’s Court Concerning the Application

of Laws in the Trial of Civil Disputes over Technology Contract.73 See the Interpretation of the Supreme People’s Court concerning Some Issues on Application of Law for the Trial of

Cases on Disputes over Technology Contracts 2005 (“Interpretation 2005”), section 10.

26 �� 5. Unreasonably restricting the channels or origins for the technology accepter to

purchase raw materials, parts and components, products or equipment, and soforth.

6. Prohibiting the technology accepter from making objections to the effectiveness of theIP of the contractual subject technology, or attaching conditions to the objectionsmade.

It is clear that the approach of the list adopted in the Interpretation 2005 is quite similarwith the approach that the US adopted in its Patent Licensing regulation in the 1970s.In order to better facilitate the application of the antitrust law in IP areas, in the 1970sthe US Antitrust Division of the Department of Justice announced a “watch list” ofnine specified licensing practices that would be viewed as anticompetitive restraints oftrade in licensing agreements, including patent pools. They are often referred to as the“Nine No-Nos”:74

1. Royalties not reasonably related to sales of patented products.

2. Restraints on licensees’ commerce outside the scope of the patent (tie-outs).

3. Requiring the licensee to purchase unpatented material from the licensor (tie-ins).

4. Mandatory package licensing.

5. Requiring the licensee to assign to the patentee patents that may be issued to thelicensee after the licensing arrangement is executed (exclusive grant backs).

6. Licensee veto power over grants of further licences.

7. Restraints on sales of unpatented products made with a patented process.

8. Post-sale restraints on resale.

9. Setting minimum prices on resale of the patent products.

The DOJ intended to apply specific regulations to prevent patent holders from “ex-tending their patent monopolies to unpatented supplies”, such as the control overfurther improvements of their innovations, price determination, and the control overmarket allocations.75 This “specific listing” approach was easy to understand andenforce. But many commentators criticized that the list was overly “specific” and un-necessary, and some provisions on the list have never been used.76 They argued thatmost patent licensing arrangements have pro-competitive effects and claimed that “un-constrained patent licensing increases the value of patents and encourages licensingand innovation”.77

Since the Interpretation 2005 adopted a listing approach which is similar with that ofthe US Nine No-Nos regulation, it would arguably import both advantages and disad-vantages of this approach. Like the US regulation, the provisions in the Interpretation

74 See Lind, Kleymenova, et al, above n 27, 23.75 Gilbert & Shapiro, “Antitrust Issues in the Licensing of Intellectual Property: The Nine No-No’s Meet the

Nineties” (1997) Brookings Papers on Economic Activity 283.76 Ibid, 286. Gilbert and Shapiro further state: “In actuality, of the sixteen cases filed by the division’s

Intellectual Property Section between the late 1960s and the late 1970s, only half specifically addressed anyof the nine practices. Moreover, almost all of these cases were litigated under a rule of reason rather than perse illegality”.

77 Ibid.

�� : �� 272005 are relatively specific and easy to apply, but they mainly focus on the rights andobligations of the parties within technology contracts, particularly the protection of thetechnology accepters (assignees/licensees). They have not paid much attention to theimpacts of the technology owners’ behaviour on other competitors (non-licensees), andhow these competitors’ rights in the market can be protected. Neither the Nine No-Nos regulation nor the Interpretation 2005 has provided any exemptions or immunityfor reasonable licensing arrangements, which have been included in the prohibitionlists but may have pro-competitive effects. Moreover, none of them provided a detailedguideline on how to determine whether an act of an IPR holder has “restrict[ed] tech-nological competition and technological development”, or provided a general approach fortheir agencies to evaluate or determine the IP abuse conducts. Thus, they have failed tostrike a sound balance between preventing monopolistic activities and improving thelegal certainty for the use of IP licenses.

3.2.2 Foreign trade law vs EU regulation 2004The second group is the law and regulation related to foreign trade. Trading withforeign countries has provided an important opportunity for China to engage withthe broader international community, and to better understand international legalpractices. Thus, it is not surprising that many important legislative attempts ofteninitiate from foreign trade law areas. This includes legislative attempts addressingtechnology transfers and IP licensing issues. In particular, after China’s access to theWTO in 2001, remarkable progress was made in improving its legal regime, includingits laws on foreign trade, technology transfers, and competition.78

The Regulations on Technology Import and Export Administration of the People’s Republicof China 2002 (hereinafter the Regulations 2002)79 may be the first regulation in Chinawhich deals with illegitimate restraints in technology contracts. Article 29 of the Reg-ulation 2002 explicitly lists seven types of restrictive clauses that a technology importcontract shall not contain.80 Most of these clauses have been adopted by the later Inter-

78 These legislative efforts have also been recognized by the US government. The USTR, in its 2004 Re-port to Congress on China’s WTO Compliance, stated: “China has undertaken substantial efforts in thisregard, as it has revised or adopted a wide range of laws, regulations and other measures. While someproblems remain, China did a relatively good job of overhauling its legal regime.” See USTR, 2004 USTRReport to Congress on China’s WTO Compliance, 4, http://www.ustr.gov/assets/Document_Library/Reports_Publications/2004/asset_upload_file281_6986.pdf at 10 January 2009, at 5.

79 The Regulations of the People’s Republic of China on Administration of Import and Export of Technologies havebeen adopted by the 46th Regular Meeting of the State Council and are hereby published. These Regulationsshall be implemented starting from January 1, 2002 (“Regulation 2002”), at http://www.lehmanlaw.com/resource-centre/laws-and-regulations/contract/regulations-on-technology-import-and-export-administration-of-the-peoples -republic-of-china-2002.html at 12 January 2009.

80 Article 29 of the Regulation 2002 provides:A technology import contract shall not contain any of the following restrictive clauses:

(1) requiring the receiving party to accept any additional condition unnecessary for the technology import,including buying any unnecessary technology, raw material, product, equipment or service;

(2) requiring the receiving party to pay exploitation fee for a technology when the term of validity of thepatent right in which has expired or the patent right of which has been invalidated, or to undertake otherrelevant obligations;

(3) restricting the receiving party from improving the technology supplied by the supplying party, orrestricting the receiving party from using the improved technology;

(4) restricting the receiving party from obtaining technology similar to that supplied by the supplying partyfrom other sources or from obtaining a competing technology;

(5) unduly restricting the receiving party from purchasing raw material, parts and components, products orequipment from other channels or sources;

(6) unduly restricting the quantity, variety, or sales price of the products the receiving party produces; or

28 �� pretation 2005 (introduced above) to interpret the specific circumstances/situations of“illegally monopolising technology and impairing technological progress” under Article 329

of the Contract Law 1999.81

Moreover, in compliance with the TRIPS Agreement, the amended Foreign Trade Law2004 includes a special chapter on “Foreign-trade-related IP protection”.82 Article 30 ofthe law explicitly prohibited any of three acts committed by IPR holders: (1) hinderingthe licensee from questioning the validity of the IPR involved in the license agreement;(2) conducting forced package licensing; or (3) providing exclusive sale back conditionsin the license agreement, etc. and, at the same time, endangering the fair competitionorder of foreign trade.83

Generally speaking, these provisions84 are similar with the counterparts of theEC’s new Technology Transfer Block Exemption Regulation of April 2004 (“TTBER 2004”).85The TTBER 2004 set up its strict restrictions prohibiting: (1) exclusive grant-backobligations of a licensee’s own severable improvements; (2) no-challenge clauses inrespect of the validity of the IPRs and (3) restrictions on the licensee’s ability to exploitits own technology or on its ability to develop new technology (where the license isgranted to a non-competitor).86

Moreover, the EC has noted that, in most cases, technology licensing agreements“have positive effects that outweigh their restrictive effects on competition”.87 Thus,the TTBER 2004 sets up new “block exemption” provisions in order to strike a soundbalance between the IPR protection and the protection of competition and to create “anarea of certainty for most licensing agreements”.88 The EC also enacted a very detailedTTBER Guideline 2004 to facilitate the implementation the TTBER 2004, which includesboth general approaches and specific examples for helping agencies to determine IPabuse and monopolistic activities.89

By contrast, neither the Regulation 2002 nor the Foreign Trade Law 2004 has providedany useful exemptions for activities on their licensing practice prohibition lists. It does

(7) unduly restricting the receiving party from utilising the channel for exporting products manufacturedusing the imported technology.

81 See Interpretation 2005, section 10.82 See Foreign Trade Law 2004, Chapter V Foreign-trade-related Intellectual Property Protection.83 Foreign Trade Law, article 30, [Chinese and English] at http://www.seabay.cn/freightknowledge/

20050615/1968347.html at 12 January 2009. See also English version at http://www.lehmanlaw.com/resource-centre/laws-and-regulations/foreign-investment/foreign-trade-law-2004.html at 12

January 2009.84 Provisions in the Foreign Trade Law 2004, the Regulations 2002 and the Interpretation 200585 See European Union’s new Technology Transfer Block Exemption Regulation (“TTBER 2004”) (Commission Reg-

ulation (EC) No. 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technologytransfer agreements, OJ No. 123, 27.04.2004) OJ L 123, 27.4.2004, at 11-17. http://europa.eu/scadplus/leg/en/lvb/l26108.htm at 12 January 2009. The TTBER 2004 replaces Commission Regulation (EC) No 240/96 of 31January 1996 on the application of Article 85(3) of the Treaty to certain categories of technology transfer agreements(OJ L 31, 9.2.1996, p. 2).

86 See TTBER 2004, Article 5, Section 1(a) (b) (c) and Section 2. See also Jones, “Licensing in China”, aboven 9 at 14 (providing a summary of core prohibition provisions in the TTBER 2004).

87 The EC official website explicitly states: “Such agreements will usually improve economic efficiency andbe pro-competitive as they can reduce duplication of research and development, strengthen the incentive forthe initial research and development, spur incremental innovation, facilitate diffusion and generate productmarket competition.” See EUROPA, Technology transfer agreements at http://europa.eu/scadplus/leg/en/lvb/l26108.htm at 12 January 2009.

88 Ibid. See also TTBER 2004, Arts 4, Ss 1(c) and 2 (b). See also Commission Notice - Guidelines on the applica-tion of Article 81 of the EC Treaty to technology transfer agreements [Official Journal C 101 of 27.04.2004] (TTBERGuideline 2004 2004 2004). http://europa.eu/scadplus/leg/en/lvb/l26108.htm at 12 January 2009.

89 See TTBER Guideline 2004 at 2-42. The TTBER Guideline 2004 provides very detailed instructions onapplications of the TTBER 2004 and Art 81 of the EC Treaty in general.

�� : �� 29not seem that the pro-competitive effects of certain restraint arrangements in tech-nology licensing agreements has been recognized and reflected in these legislations.Moreover, none of them provided any EC-style detailed guidelines for facilitating theunderstanding and application of these prohibitions either.

3.2.3 Anti-unfair competition vs antitrust lawThe third group is anti-unfair competition law. The Anti-unfair Competition Law of thePeople’s Republic of China 1993 includes some general provisions on “tying” arrange-ment. It explicitly prohibits sellers from selling products to consumers by forcing themto purchase additional products that they are unwilling to purchase, or by impos-ing unreasonable conditions.90 It is noteworthy that, as some have commentatorspointed out, the Anti-Unfair Competition Law in China does “not deal with matterspertaining to anti-trust issues” (such as the abuse of dominant position),91 but mainlyfocuses on maintaining a sound market order and protecting the rights of managersand consumers.92 More details on China’s recent development in antitrust laws – i.e.Anti-Monopoly Law 2008 – will be discussed later.

3.2.4 Patent misuseThe last group is IP law. Like patent laws in other countries, the Chinese Patent Law2000 contains some general provisions on “compulsory licensing” as one of the possi-ble remedies for IP abuse.93 The Patent Law 2000 allows any applicant, which is quali-fied to exploit the invention or utility model, to make requests for “authorization fromthe patentee of an invention or utility model to exploit its or his patent on reasonableterms”.94 If an applicant has not been successful in obtaining the relevant authoriza-tion within a reasonable period of time, upon the application of the applicant, thepatent administrative department of the State Council may grant the applicant a com-pulsory license to exploit the patent for invention or utility model.95

It is also noteworthy that the Patent Law 2000 was recently amended, and the PatentLaw 2009 further clarifies and revised the requirements on compulsory licensing. Ar-ticle 50 of the Patent Law 2009 entitles the State Intellectual Property Office (SIPO) togrant a compulsory license in three circumstances:

90 It is noteworthy that, as some foreign practitioners have observed, “the Anti-Unfair Competition Law inChina does not deal with matters pertaining to anti-trust issues, but as the market develops in China, it islikely to gain importance”. See LEHMAN, What is the situation between IPRs and unfair competition in China?at http://www.lehmanlaw.com/resource-centre/faqs/intellectual-property/general-ip/what-is-the-situation-between-iprs-and-unfair-competition-in-china.html at 12 December 2008.

91 Ibid.92 See Anti-unfair Competition Law of the People’s Republic of China 1993, Article 1. (Providing “This law is

drawn up in order to safeguard the healthy development of the socialist market economy, encourage andprotect fair market competition, prohibit unfair competition, safeguard the legal rights and interests ofmanagers and consumers.”)

93 See Patent Law of the People’s Republic of China (2000 Revision) (Adopted at the 4th Session of the StandingCommittee of the Sixth National People’s Congress on March 12, 1984, Articles 48 and 49.)

Article 48: Where any entity which is qualified to exploit the invention or utility model has made requestsfor authorization from the patentee of an invention or utility model to exploit its or his patent on reasonableterms and such efforts have not been successful within a reasonable period of time, the patent administrativedepartment of the State Council may, upon the application of that entity, grant a compulsory license toexploit the patent for invention or utility model.

Article 49: Where a national emergency or any extraordinary state of affairs occurs, or where the publicinterest so requires, the patent administrative department of the State Council may grant a compulsorylicense to exploit the patent for invention or utility model.

94 Patent Law 2000, Article 48.95 Patent Law 2000, Article 48.

30 �� 1. The patentee’s exploitation of the patented technology is found to be insufficient

within a prescribed timeframe;

2. The patentee’s exploitation of the patented technology is found to be eliminating orrestricting competition; or

3. The application is for the making and exportation of a patented medicine to certaincountries and regions for the benefit of public health in accordance with interna-tional treaties.96

However, like other regulations introduced above, the new patent law has not pro-vided specific guidelines on the application of “compulsory licensing” provisions, suchas how to determine “elimination or restriction of competition”.

3.2.5 Summary: Achievements and LimitationsIn summary, the provisions in the existing Chinese laws (prior-AML laws) have cov-ered some major forms of IP abuse activities, such as monopoly pricing, restrictionson the number of products, market division, cross-licensing and patent cooperationagreements, exclusive provisions (i.e. provisions to prevent licensees from questioningthe validity of the IP in licensing agreements, and provisions to prohibit compulsorylicensing), tying sales and so forth.97

However, they do have their limitations. Firstly, the legislation is either too generalor too narrow. Some only provide general requirements on prohibited IP licensingarrangements, such as Foreign Trade Law and Patent Law, but fail to provide detailedguidelines to explain how to apply these requirements in practice. Some only focus onvery narrow subject matter or single forms of IP abuse. For example, the Contract Law1999 and the Regulation 2002 mainly focus on the protection of technology acceptersin technology contracts or technology importing contracts. The Anti-Unfair CompetitionLaw only focuses on tying sale. Unlike the counterparts in the US and EU laws, theyhave distinguished licensing transactions that occur between competing and non-competing undertakings.98

Secondly, they have failed to explain the general approach that the competent agen-cies employ in their evaluations of licensing agreements under the applicable antitrustlaw, and the way that they determine IP abuses.

Thirdly, none of them provides the immunity for the licensing arrangements that areon the prohibition lists but have pro-competitive overweight anti-competitive effects.Consequently, they have arguably not struck a sound balance between IP licenseesand licensors, and have not created sufficient legal certainty for the application of IPlicensing arrangements.

96 Patent Law 2009, Article 50. Granting a compulsory license “for the making and exportation of apatented medicine to certain countries and regions for the benefit of public health in accordance with in-ternational treaties” is a newly introduced circumstance, which the old law does not have. See also, Zeldin,Wendy. “China: Major Amendment of Patent Law”, in Law Library of Congress: News and Events, 27 Feb 2009,at http://www.loc.gov/lawweb/servlet/lloc_news?disp3_1059_textat12March2009.

97 Zhang, Gao and Guo, above n 29.98 For example, the TTBER 2004 distinguished licensing transactions that occur between competing and

non-competing undertakings. It provides the immunity for licensing arraignments that do not contain “cer-tain ‘hardcore’ restrictions between non-competitors with market shares below 30% and between competitorswith market shares below 20%” See Gilbert, Richard. “Converging Doctrines? US and EU Antitrust Policyfor the Licensing of Intellectual Property” 2004, at 3, at http://works.bepress.com/richard_gilbert/3, at12 January 2009.

�� : �� 31Lastly, as introduced above, these provisions spread across various types of laws.

This loose structure renders it difficult for foreign investors and technology companiesto get a clear picture of China’s requirements on technology transfer and IP abuse.This has arguably increased the uncertainties of law applications and the operations offoreign undertakings in China.

3.3 IP Abuse on Unfair Terms of Contracts:Consumer Law in Australia

I will next focus on some more specific issues on IP abuse, particularly on the potentialrisks and consumer law remedies for unfair terms of contracts. Among various IPabuse activities mentioned above, one of most typical and popular ones may be the IP-related unfair contracts, particularly software-related contracts/licensing agreements.

Under the current digital economy environment, consumers use software everyday. In order to install and use the software they have to “agree” and “sign” onlinelicensing agreements. But many consumers/software users may not fully understandthese e-contracts they have signed, and the potential legal risks these agreements maybring to them, and possible legal remedies they may have when disputes occurred.I will use the Australian consumer law as an example to demonstrate how membercountries may use consumer law to prevent IP abuse on unfair contracts, particularlyIP abuse in standard-term of e-contract for IP products.

3.3.1 Different Types of the E-contractAs we know, generally speaking there are three main forms of software licensing meth-ods: (1) Shrink-wrap; (2) Clickwrap; and (3) Browsewrap.

The “Shrinkwrap” method started from the early 1980’s. At that time, softwarevendors were constrained to deliver their software products in physical form. Theynormally put their products in a cardboard box package, including a computer disk,manuals and a printed licence agreement. The licence agreement usually provided thatopening the sealed (shrink-wrapped) package containing the computer disks signifiedthe user’s assent to the terms of the licence.

The “Click-wrap” method became increasingly popular with the wide use of PCsand the Internet. Through this method, the terms of the “clickwrap” licence are pre-sented to the user electronically. In order to agree to the terms of the licence and“sign” the licensing agreement, the user usually needs to click on a button or ticking abox labelled “I agree”.

The “Browse-wrap” method is another common phenomenon today, and emergeswith the wide application of the Internet. With this method, the operator of a websitepurports to make all use of that website subject to a “terms and conditions” agree-ment. The user is “said to assent by merely using the website”.99 Usually, the terms ofthat agreement are never actually presented to the website user. Instead there will bea small hyperlink to a separate “Terms and Conditions” page, in the small print at thebottom of the website. For example, when visiting your favourite news websites andscrolling to the bottom of the page, we will commonly find a link labelled “terms and

99 Dale Clapperton & Stephen Corones, “Unfair Terms in ‘Clickwrap’ and other electronic contracts” (2007)35 Australian Business Law Review 152, http://eprints.qut.edu.au/7650/ at 6 of 35, eg “By using this site,you acknowledge your agreement to be bound by these terms of use”.

32 �� conditions” along with other seldom-read links to things such as the website’s privacypolicy.100

For the purposes of this paper, we mainly focus on the click-wrap “electronic con-tracts” since it is the most common method for software licensing arrangements at thepresent.101

3.3.2 IP abuse: Unfair Contract3.3.2.1 Overview

Generally speaking, most software licensing agreements do not have a consumer-friendly interface. As some commentators criticized:

“Electronic contracts are typically quite lengthy, often running to several thousandwords, and written with little regard for the principles of plain English drafting orconcern for comprehension by a lay audience”.102

As examples, the Microsoft Software License Terms for Windows Vista is 5,701

words.103. The EULA for Microsoft Windows XP Pro SP2 is 5,623, which contains a1,013 word limitation of liability written entirely in French.104 The longest Englishsentence in agreement is 178 words and was written entirely in capital letters.105

EULAs are often displayed in a small window and consumers can only view a smallportion of the agreement at any one time. Reading the entire EULA may require view-ing more than 100 separate “pages” of text, and many EULAs cannot be printed, orsave for later viewing by the end-user.106

As a direct consequence, the vast majority of software users do not read EULAs butsimply agree it. This is evidenced by a test completed by software vendor PC Pitstop.PC Pitstop inserted a special clause in the EULA in order to encourage users to readEULA:

SPECIAL CONSIDERATION

A special consideration which may include financial compensation will be awarded to alimited number of authorize licensee [sic] to read this section of the license agreement andcontact PC Pitstop at [email protected]

However, after four months and more than 3,000 downloads, only one person wrotein.

Given that many consumers (software users) do not read and are not aware of thelicensing terms, licensors normally have no incentive to compete on the terms of-fered.108 By contrast, they may misuse their advantageous negotiation position, andinclude some terms which may be unfair to consumers, such as the provisions of limit-ing the consumer rights.

100 For example: http://www.shm.com.au ; see also the defintion in http://www.obj.ca/Blog-Article/b/12102/The-Enforceability-of-ClickWrap-and-BrowseWrap-Agreements.

101 “Clickwrap contracts are ubiquitous in markets for software and digitally distributed copyright content(such as music and movies), and are increasingly used to set terms for access to services such as everydaywebsites.”

102 Corones, above n 99, Part II.103 http://download.microsoft.com/documents/useterms/windows{%}20vista_{ultimate}_english_

36d0fe99-75e4-4875-8153-889cf5105718.pdf104 Corones, above n 99 at 9 of 35.105 Ibid.106 Ibid.107 Ibid at 11. For more details, see PC Pitstop, It Pays to Read License Agreements, http://pcpitstop.com/

spycheck/eula.asp.108 Corones, above n 99 at 11 of 35.

�� : �� 333.3.2.2 Two legal issues

Generally speaking, the legal issues on click-wrap electronic contracts mainly includetwo aspects: (1) unfairness issue/unconscionability issue on the “formation of con-tracts”; and (2) unfairness issue on the “terms of contracts”.

Regarding the first aspect, a key question is whether a “money now, terms later”approach is permissible. The most common form of click-wrap software licence isthe “End User License Agreement” (EULA). The EULA is a contractual agreementbetween a software licensor and software licensee (end-users of software product). Thelicensee (end-user) agrees to pay required licensing fee and observe all terms of theEULA. In return, the licensor (software vendor) authorize the licensee (end-user) to usethe software.

The terms of the EULA is typically presented to licensee/end-user as part of thesoftware installation process. In order to install the software successfully, end-usermust signify their assent to the terms of the agreement first.109 However, in order toview the terms of the EULA, the end-user needs to the buy the software from retailoutlets in the first place. Although the EULA often states that consumers may returnthe software to the place of purchase for a full refund if they do not agree to the termsof the EULA, retail outlets may often refuse to refund the software if the packaging hasbeen opened.110

As such, as some commentator noted, if the consumers already purchased software,they may “have little choice but to accept whatever terms are presented to them”, andconsumers (end-users) have no opportunity for the negotiation of terms. This seems tobe unfair to consumers.111

Regarding the second aspect, the issue of unfair terms in relation to software EULAsis one of long-standing. Professor Corones in 2007 listed a number of common ways tointroduce unfair provisions into software licensing agreements:

• Through provisions that allow the licensor to unilaterally vary the terms of thecontract, such as the provisions specifically allowing for unilateral variation by thelicensor.

• Through software patches, updates, or new versions to allow the licensor to amendthe EULA.112

• Through Notice Clauses, such as provisions that allow the licensor to give notice ofcontract amendments to the licensee in ways that are not likely to come to the actualnotice of the licensor (eg giving notices by simply publishing amended version ofthe contract online).113

• Through Digital Rights Management (DRM) technologies, which allow a licensorto change the rules governing how a consumer may use digital content, without

109 In the other words, the terms of EULA are presented on a “take it or leave it” basis.110 Corones, above n 99 at 5 of 35.111 Ibid.112 It looks like licensees have been given a chance to choose whether they agree to the terms of the new

EULA or to continue to use the existing version of the software. However, in reality, most software patchesor updates are designed to address crucial security problems of original programs. Thus, this often leavesthe licensees with little or no choice but to agree to the terms of the new EULA.

113 The Apple iTunes Music Store “Terms of Sale” agreement states:iTunes reserves the right to change the terms and conditions of sale at the iTunes Store at any time. Re-

vised Terms of Sale will be made available on our website. Customers are encouraged to review the Terms ofSale on a periodic basis for modifications

34 �� changing the contract, and even where the contract makes no provision for thelicensor to change the “usage rules”.114

3.3.3 Current law in Australia on This IssueAt the national level, Australian courts have traditionally not recognised the substan-tive unfairness of a term of a contract as basis for intervention.115 The former TPA atthe Commonwealth level only provides some limited relief in relation to unfair termsin e-contracts, and it is mainly through the provision on unconscionability under ss51AA or 51AB.

Section 51AA of the TPA provides that:

(1) A corporation must not, in trade or commerce, engage in conduct that is uncon-scionable within the meaning of the unwritten law, from time to time, of the Statesand Territories.

(2) This section does not apply to conduct that is prohibited by section 51AB or 51AC.

Section 51AB of the TPA provides in part:

(1) A corporation shall not, in trade or commerce, in connection with the supply or possi-ble supply of goods or services to a person, engage in conduct that is, in all the circum-stances, unconscionable.

(2) Without in any way limiting the matters to which the Court may have regard forthe purpose of determining whether a corporation has contravened subsection (1) inconnection with the supply or possible supply of goods or services to a person (in thissubsection referred to as the consumer), the Court may have regard to:

(a) the relative strengths of the bargaining positions of the corporation and the con-sumer;

(b) whether, as a result of conduct engaged in by the corporation, the consumer wasrequired to comply with conditions that were not reasonably necessary for theprotection of the legitimate interests of the corporation;

(c) whether the consumer was able to understand any documents relating to thesupply or possible supply of the goods or services;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics wereused against, the consumer or a person acting on behalf of the consumer by thecorporation or a person acting on behalf of the corporation in relation to the supplyor possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which, the consumer couldhave acquired identical or equivalent goods or services from a person other thanthe corporation.

Although the provisions in the former TPA (ss51 AA and AB) seem to cover bothsubstantive and procedural unfairness, in practice, Courts mainly focus on procedu-ral unfairness of the formation of a contract.116 For example, in Hurley v McDonald’sAustralia Ltd (2000) the Full Federal Court held:

114 Using online purchased DRM-protected music as example, the DRM restricts buyer’s ability to useand copy the music. When a buyer purchases the music, the vendor of the music permits the buyer to copy(“burn”) a “playlist” of music to an audio CD only 10 times. Through the DRM system of the vendor, oncethe buyer has copied the music the permitted 10 times, the DRM prevents him/her from making furthercopies. However, technically, the vendor can unilaterally change the number of copies the buyer is permittedto make from 10 to 7. This change affects not only music that the buyer purchases after the change, but themusic the buyer purchased before the change (when the buyer was permitted 10 copies).

115 See High Court cases: ACCC vs CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491; Commercial Bank ofAustralia Ltd v Amadio (1983) 151 CLR 447.

116 See High Court cases: ACCC vs CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491.

�� : �� 35There is no allegation of any circumstance that renders reliance upon the terms of thecontracts unconscionable. For example, it might be that, having regard to particular circum-stances it would be unconscionable for one party to insist upon the strict enforcement ofthe terms of a contract. One such circumstance might be that an obligation under a con-tract arises as a result of a mistake by one party. The mistake is an additional circumstancethat might render strict reliance upon the terms of the contract unconscionable. Mere re-liance on the terms of a contract cannot, without something more, constitute unconscionableconduct. . . . Before sections 51AA, 51AB or 51AC will be applicable, there must be some cir-cumstance other than the mere terms of the contract itself that would render reliance on the terms ofthe contract “unfair” or “unreasonable” or “immoral” or “wrong”. (Emphasis added).117

It is clear that, despite the substantive unconscionability or unfairness of a con-tractual term, it seems that s51AA and AB will not apply if there is no “proceduralunconscionability”.

At the state level, given the limited relief on unfair terms of contract, New SouthWales and Victoria followed international developments in UK and EU and enacted/amendedtheir laws to regulate the use of unfair terms in consumer contracts. NSW Contracts Re-view Act 1980 and Victorian Fair Trading Act 1999 cover both substantive and proceduralunfairness. Particularly, the Victorian Act provides detailed provisions on the defi-nition of “unfair term” (s32W)118 and a list of factors (s32X) to determine the unfairterm.119

But in practice, as Zumbo pointed out, while NSW courts are able to consider sub-stantive unconscionability under the NSW Contracts Review Act 1980, they “rarely do sowithout also considering the impact of procedural unconscionability”.120 It seems that

117 ATPR 41-741; [1999] FCA 1728.118 Section 32W of the FTA defines “unfair term” as:A term in a consumer contract is to be regarded as unfair if, contrary to the requirements of good faith and

in all the circumstances, it causes a significant imbalance in the parties’ rights and obligations arising underthe contract to the detriment of the consumer.

119 Section 32X of the FTA provides:Without limiting section 32W, in determining whether a term of a consumer contract is unfair, a court or

the Tribunal may take into account, among other matters, whether the term was individually negotiated,whether the term is a prescribed unfair term and whether the term has the object or effect of:

(a) permitting the supplier but not the consumer to avoid or limit performance of the contract;

(b) permitting the supplier but not the consumer to terminate the contract;

(c) penalising the consumer but not the supplier for a breach or termination of the contract;

(d) permitting the supplier but not the consumer to vary the terms of the contract;

(e) permitting the supplier but not the consumer to renew or not renew the contract;

(f) permitting the supplier to determine the price without the right of the consumer to terminate the con-tract;

(g) permitting the supplier unilaterally to vary the characteristics of the goods or services to be suppliedunder the contract;

(h) permitting the supplier unilaterally to determine whether the contract had been breached or to interpretits meaning;

(i) limiting the supplier’s vicarious liability for its agents;

(j) permitting the supplier to assign the contract to the consumer’s detriment without the consumer’sconsent;

(k) limiting the consumer’s right to sue the supplier;

(l) limiting the evidence the consumer can lead in proceedings on the contract;

(m) imposing the evidential burden on the consumer in proceedings on the contract.120 Zumbo, F. “Dealing with Unfair Terms in Consumer Contracts: Is Australia Falling Behind?” (2005) 13

TPLJ 70 at 82. Zumbo observes that this residual reliance upon procedural unconscionability severely limitsthe ability of the Act to deal directly with unfair terms in consumer contracts.

36 �� only Victorian courts directly intervened against substantive unfair conduct.121

3.3.3.1 New Consumer Laws

The new Australian Competition and Consumer Act 2010 took effect last year. s51AA“Unconsionable conduct within the meaning of the unwritten law of the States andTerritories” has been repealed and replaced by Sch 2 s20 under the title “Uncon-scionable conduct within the meaning of the unwritten law”; and s51AB has beenrepealed and replaced by Sch 2 s21 under the same title “Unconscionable conduct”122

The former provisions and new provisions are identical. A main difference is the for-mer TPA only focused on the unconscionable conduct of corporations.123 The newCCA focuses on the unconscionable conduct of a person. Thus, it seems that the newCCA has a broader coverage and includes both conducts of “corporations”, otherforms of incorporated entities, and individuals.

The CCA 2010 explicitly includes a statutory remedy for unfair terms of contract(mainly following the Victorian model and drawing on lessons from EC Directive onUnfair Terms in Consumer Contracts 1993/UK Unfair Contract Term Act 1977/ The UKUnfair Terms in Consumer Contracts Regulations 1999).124 According to Section 23 ofthe CCA 2010, in order to receive the remedies, the contract must be (1) a consumercontract, (2) a standard form contract, and (3) contain a term that is unfair.125 Further,

121 For example, in Director of Consumer Affairs Victoria v AAPT [2006] VCAT 1493 at [50], the Victorian Civiland Administrative Tribunal held that a similar term “in a mobile telephone contract was an unfair termbecause it had the effect of permitting AAPT, but not the consumer, to avoid or limit the performance of thecontract – a relevant factor under s 32X(a) of the FTA”.

122 Competition and Consumer Act 2010 - Schedule 2 – The Australian Consumer Law at http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html.

20 Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaningof the unwritten law from time to time.

(2) This section does not apply to conduct that is prohibited by section 21 or 22.

21 Unconscionable conductA person must not, in trade or commerce, in connection with the supply or possible supply of goods or

services to another person, engage in conduct that is, in all the circumstances, unconscionable.Without in any way limiting the matters to which the court may have regard for the purpose of determin-

ing whether a person (the supplier) has contravened subsection (1) in connection with the supply or possiblesupply of goods or services to another person (the consumer), the court may have regard to:

(a) the relative strengths of the bargaining positions of the supplier and the consumer; and

(b) whether, as a result of conduct engaged in by the person, the consumer was required to comply withconditions that were not reasonably necessary for the protection of the legitimate interests of the sup-plier; and

(c) whether the consumer was able to understand any documents relating to the supply or possible supplyof the goods or services; and

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, theconsumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf ofthe supplier in relation to the supply or possible supply of the goods or services; and

(e) the amount for which, and the circumstances under which, the consumer could have acquired identicalor equivalent goods or services from a person other than the supplier.

123 “corporation” means a body corporate that:

(a) is a foreign corporation;

(b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed;

(c) is incorporated in a Territory; or

(d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c);124 http://www.legislation.gov.uk/uksi/1999/2083/contents/made.125 CCA 2010, s 23(1)(2).

�� : �� 37CCA introduces some detailed provision on the definition of consumer contract,126 themeaning of unfair127 and examples of unfair terms.128

It seems that major forms of unfair provisions in software licensing agreements,which were summarized by Professor Corones in 2007 (as above), all fall into the un-fair terms provisions under the new CCA 2010. For example, Section 25 (d) explicitlyprohibited a term “that permits, or has the effect of permitting, one party (but not an-other party) to vary the terms of the contract”. Thus, if a software licensing agreementcontains a provision that allows a licensor to use software patches, updates, or newversions to amend the EULA, it seems that such a provision should be held unfairunder the new CCA.

Section 25 (a) explicitly prohibit unfair terms of a consumer contract, such as “aterm that permits, or has the effect of permitting, one party (but not another party) toavoid or limit performance of the contract”. Thus, if a software licensing agreementcontains a provision that allows a licensor use Digital Rights Management (DRM)technologies to change the rules governing how a consumer may use digital content, itseems that such a provision should be held unfair under the new CCA.

Moreover, if a software licensing agreement contains a provision that allows thelicensor to unilaterally vary the terms of the contract, such a provision may also beheld unfair under the new CCA. Section 25 explicitly prohibits a term that permits, orhas the effect of permitting, one party (but not another party) to vary the terms of thecontract; 129 to renew or not renew the contract;130 to vary the upfront price payable

126 (3) A consumer contract is a contract for:

(a) a supply of goods or services; or

(b) a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for per-sonal, domestic or household use or consumption.

127

24 Meaning of unfair

(1) A term of a consumer contract is unfair if:

(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the con-tract; and

(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would beadvantaged by the term; and

(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or reliedon.

(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may takeinto account such matters as it thinks relevant, but must take into account the following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(c) presented clearly; and

(d) readily available to any party affected by the term.

(4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonablynecessary in order to protect the legitimate interests of the party who would be advantaged by the term,unless that party proves otherwise.

128 s25 CCA 2010.129 S35(d) CCA 2010.130 s25(e) CCA 2010.

38 �� under the contract without the right of another party to terminate the contract; 131 tovary the characteristics of the goods or services to be supplied,132 and to unilaterallydetermine whether the contract has been breached or to interpret its meaning.133

For a consumer contract which contains an unfair term, a basic remedy for con-sumers is that such a term is void.134 The CCA 2011 (Part 5-2, Sch 2 The AustralianConsumer Law) further provides broad remedies for the breach of the law, such as pe-cuniary penalties,135 injunctions,136 damages,137 compensation orders etc for injuredpersons and orders for non-party consumers,138 and other remedies.139

In summary, the inclusion of the unfair term section into the ACL improves Aus-tralian laws on consumer protection. It has codified many important common prin-ciples on unfair term issues, mainly common law principles established by Victoriancourts. Nevertheless, it may be still too early to say whether and how all these reme-dies apply to unfair term of consumer contract since the CCA has just taken effect. Itwould be desirable if Australia can have more detailed regulations on unfair terms inconsumer contracts in the future – ie the UK style regulation – the UK Unfair Terms inConsumer Contracts Regulations 1999.

3.4 Consumer Laws in Brazil3.4.1 Overview of Consumer Protection Code (CPC) in BrazilBrazil has a tradition of strong consumer protection supported by its Federal Constitu-tion. The Brazilian Consumer Protection Code (CPC) was enacted on 11 September 1990.Unlike consumer laws in many other countries, which were motivated by social move-ments on consumer protection, the CPC was created by a legal order – a constitutionalcommandment.

It is in Article 5 of the 1988 Federal Constitution, where we find the first referenceto consumer rights.140 And when treating the economical and financial order, Article170 explicitly lists “consumer protection” as a basic principle.141 As one commentatornoted, “the Constitution does not leave any doubts as to the responsibility of the Stateto promote consumer rights”.142

131 s25(f) CCA 2010.132 s25(g) CCA 2010.133 s25(h) CCA 2010.134 s23(3) CCA 2010.135 Div 1, Part 5-2 Remedies, Sch 2, CCA 2010.136 Div 2, Part 5-2 Remedies, Sch 2, CCA 2010.137 Div 3, Part 5-2 Remedies, Sch 2, CCA 2010.138 Div 4, Part 5-2 Remedies, Sch 2, CCA 2010.139 Div 5, Part 5-2 Remedies, Sch 2, CCA 2010; other remedies include: s246 Non-punitive orders, s247 Ad-

verse publicity orders, s248 Order disqualifying a person from managing corporations, s249 Privilege againstexposure to penalty or forfeiture – disqualification from managing corporations, and s250 Declarationsrelating to consumer contracts.

140 Luciano Rodrigues Maia Pinto, “Consumer Protection in Brazil – A General View”, Prof. Ernie Eng-lander, School of Business and Public Management, Institute of Brazilian Business and Public ManagementIssue, at page 3.

141 1988 Federal Constitution, Chapter I, on the General Principles of the Economic activity of Title VII, that ison the Economical and Financial Order, the Great Letter, in Article 170.

142 Ibid at 3.

�� : �� 393.4.2 Abusive Clause Provision in CPCArticle 25 of CPC explicitly states: “It shall be banned the establishment of any contrac-tual clause that makes it impossible, or exempts or diminishes the obligation of indemnityprovided for in this and in the foregoing sections”. It is clear that any contractualclause, which allows the licensor to unilaterally vary the terms of the contract, maybe prohibited under the CPC. Furthermore, the CPC has a special session on the useof abusive or deceptive clauses in adhesion contracts.143 Like the ACL 2010, the CPC1990 the CPC provides a non-exhaustive list of abusive clauses, including the clausesthat:144

• prevent, exempt or reduce suppliers’ liability for defects of any nature in productsand services or imply a renouncement or a waiver of rights (I).

• take from the consumer the option for reimbursement of an amount already paid, inthe cases provided for in this Code (II);

• transfer responsibility to third parties (III);

• establish obligations understood as unfair, abusive, or that lead the consumer to anunreasonable disadvantage or those that are not consistent with good faith or equity(IV);

• N/A (V)

• establish the reversion of the burden of proof against consumers (VI);

• determine a compulsory use of arbitration (VII);

• impose a representative to conclude or carry out another legal negotiation by con-sumer (VIII);

• leave to the supplier alone the option to conclude or not the contract, though oblig-ing the consumer (IX);

• make possible for the supplier to directly or indirectly change the price unilaterally(X);

• authorize the supplier to unilaterally cancel the contract without giving the sameright to the Consumer (XI);

• require from the consumer the reimbursement for expenses related to the collectionof his debts, without giving the same right to the consumer against the supplier(XII);

• infringe or make it possible to violate environmental rules (XIII);

• are in disagreement with the consumer protection system (XIV);

• make it possible a waiver of the indemnity right related to necessary improvements(XVI).

143 Chapter VI: Contractual Protection: Abusive Clauses, Article 51

144 Like the ACL 2010, Article 51 of the CPC 1990 (Chapter VI: Contractual Protection – Abusive Clauses).

40 �� It seems that main forms of unfair terms in software licensing agreements, which

were summarized by Professor Corones in 2007 (as above), all fall into the abusiveclause prohibition provisions the CPC 1990. For example, Article 51, clause IV of theCPC explicitly prohibits abusive clauses that “establish obligations understood as un-fair, abusive, or that lead the consumer to an unreasonable disadvantage or those thatare not consistent with good faith or equity”. Article 51, Clause XIII, further prohibitsabusive clauses that “authorize the supplier to unilaterally modify the contents or thequality of the contract after it having been entered into” (XIII).

As such, it seems that any provision in a software licensing agreement, which al-lows a licensor to use DRM technologies to change the rules governing how a con-sumer may use digital content, or allows the licensor to unilaterally vary the terms ofthe contract, will be held to be an abusive clause under the CPC. Any provision that al-lows a licensor to use software patches, updates, or new versions to amend the EULA,may be held as an abusive clause under the CPC also.

3.4.3 Remedies and RemarksThe “Consumer’s Basic Rights” Chapter of CPC provides some basic remedies forconsumers against unfair terms of contract. It explicitly provides that consumers havea right to modify “the contractual clauses that establish unreasonable instalments”.145 Inother words, the consumers have a right to modify the unfair terms/abusive clause ofcontract.

Article 51 provides that abusive “contractual clauses concerning products and ser-vices supply shall be deemed lawfully void”.146 In other words, any abusive contrac-tual clauses under CPC should be deemed lawfully void.

In comparison with Australian Consumer Law, which only provides legal remediesto consumer contract and standard contract, the application of the remedies under theBrazil CPC seems to be wider. It covers both standard form contract and non-standardform contract. The Brazil CPC arguably provided a stronger protection for consumersagainst abusive clause/unfair terms in consumer contracts.

However, it seems that the abusive clause prohibition provisions in the CPC are a bittoo general than unfair term provisions under the ACL. Although Art 51 of the CPCalso provides a list of abusive clauses (like section 25 of the ACL – examples of unfairterms), the CPC has provided some specific principles for the courts to determinewhether a term/clause is “unfair” or “abusive”, which ACL has provided. Thus, itseems that the ACL is more ready to follow and apply by the court.

Nevertheless, Brazil has a good tradition on consumer protection – consumer pro-tection culture, and strong constitutional support. It creates a possibility for Braziliancourts to apply and interpret Article 51 broadly and better protect consumers againstunfair terms/abusive clauses in a contract.

145 Section V, Title I, Chapter 3 Consumer’s Basic Rights146 Article 51, CPC.

�� : �� 41Part IV: IP Abuse and Potential Remedy fromConsumer Law – Sony as a Case Study4.1 IntroductionIn this part, I will examine another important aspect of consumer protection on theonline environment – consumer privacy and data security. I will examine some re-cent cases (Sony PSN case and Google cloud case) on IP abuses/misuses against con-sumers, and examine how Chinese, Australian and Brazilian consumer laws may copewith these issues.

In order to become an eligible licensee (eligible software/computer game user), inaddition to purchasing software, a customer normally has to provide detailed personalinformation to the IP licensor, such as name, address, date of birth and other informa-tion, IP holders (licensors) normally promise they will protect the safety of customers’personal data and will not make them available for any third party without permissionfrom consumers. This seems to be a general practice for many years. However, the re-cent hacker-attack to the Sony’s global PlayStation network and the Amazon’s Cloudcrash push us to rethink the legitimacy of such a general practice and legal questionsraised, such as the balance of rights in a licensing agreement.

4.2 Imbalance of Rights in the AgreementSony’s global PlayStation network (PSN) was hacked and user account informationwas compromised between 17 and 19 April 2011.147 Sony immediately took PSN of-fline on 20 April.148 This led to the exposure of unencrypted personal information of77 million users, including names, addresses and possibly credit card data.149 This is“one of the largest-ever Internet security break-ins”.150

This attack makes regulators in different countries rethink the effectiveness of theexisting legal system in protecting consumers against potential online risks. As weknow, most software licensing agreements contain provisions that permit IP hold-ers/licensors to collect consumer personal information.151 However, these agreementshave not imposed strong obligations on licensors to protect the safety of consumer per-

147 Liana B. Baker & Jim Finkle, “Sony PlayStation suffers massive data breach” in Reuters, Apr 26, 2011 athttp://www.reuters.com/article/2011/04/26/us-sony-stoldendata-idUSTRE73P6WB20110426 (last visitedon 30 November 2011).

148 Keir Thomas, “Sony Makes it Official: PlayStation Network Hacked” in PCWorld, Apr 23, 2011 at http://www.pcworld.com/article/226128/sony_makes_it_official_playstation_ network_hacked.html (lastvisited on 30 November 2011).

149 Peter Lloyd, “PlayStation Network hacked: 77m users at risk” in Laterline, Australian BroadcastingCorporation, 27/04/2011 at http://www.abc.net.au/lateline/content/2011/s3201906.htm (last visited on30 November 2011).

150 Liana B. Baker & Jim Finkle, “Sony PlayStation suffers massive data breach” in Reuters, Apr 26, 2011

at http://www.reuters.com/article/2011/04/26/us-sony-stoldendata-idUSTRE73P6WB20110426 (lastvisited on 30 November 2011); see also Fran Foo & Chris Griffith “Sony PlayStation hack hits over 700,000

Australians” in The Australian, April 27, 2011 at http://www.theaustralian.com.au/australian-it/sony-playstation-hack-hits-700000-australians/story-e6frgakx-1226045764154 (‘According to a local Sonyspokeswoman, there are over 1.1 million PlayStation 3 devices in Australia – approximately 715,000 peopleare connected to the PlayStation Network, which gamers use to spar online and purchase services like moviedownloads.”)

151 “Except as stated otherwise, collection and use of consumer data are subject to the PSN Privacy Policy,which can be found at eu.playstation.com/terms”. http://au.playstation.com/legal/detail/item235615/PlayStation-Network-Cards-Terms-Conditions/.

42 �� sonal data, nor contain detailed provisions on how to compensate consumers if theirpersonal data has been stolen or misused.

We next use the Sony PSN as an example. According to the PSN Privacy Policy, Sonynot only can collect users’ personal information, such as “name, email address, postaladdress, date of birth, gender and language, password and any parental control op-tions”, but also can collect information on users’ IP address and console MAC address,system ID and hardware information,152 information about how users use PSN153 andusers’ gamer profile. 154 For PSN wallet users, Sony will also collect their payment de-tails, “such as credit card numbers, cardholder name, expiry date and security code”,and store this information for future purchases.155 This is why after the hacker-attackmany users felt panic and Sony also warned users that their credit card informationmay have been compromised.

However, in terms of Sony’s obligations of protecting consumers, these documentsimpose loose obligation on Sony to protect the safety of consumer information. Forexample, the PSN Privacy Policy explicitly states:

We cannot monitor the whole of Sony Online Network and make no commitment to doso. However, we reserve the right in our sole discretion to monitor and record your onlineactivity and communication throughout Sony Online Network and to remove any contentfrom Sony Online Network at our sole discretion, without further notice to you. . . .”

In the other words, it seems that Sony does not commit to monitor its Online Net-work and protect personal data safety of its customers. And the main reasons for themto monitor the network is not for protecting customers but for stopping any inappro-priate activities of customers/users of Sony. It is clear that a sound balance of rightsfor both parties does not seem to be stricken. According to Reuters, by June 2011, inthe US alone, Sony was facing a whopping 55 lawsuits, “each one related to the mas-sive PlayStation Network data breach that initiated a service blackout that lasted fornearly a month.”156

The Terms of User Agreement further states:

Whenever you participate in online communities via, or in connection with, Sony On-line Network (including forums, games and social networks), you must act reasonably andwith common sense; respect the rights and privacy of other members of the communities; andfollow any particular rules applying to those communities. You must not do, attempt orthreaten to do, any of the actions set out below. Breach of these Conditions may result insuspension or termination of your account and/or access to Sony Online Network. . . . Youmust not stalk, bully or otherwise abuse or harass other users or our staff or invade theirprivacy.157

It seems that these clauses are abusive clauses under the Brazilian Consumer Law.As introduced above, the CPC explicitly prohibits clauses that “establish obligationsunderstood as unfair, abusive, or that lead the consumer to an unreasonable disad-vantage or those that are not consistent with good faith or equity (IV)”. It is clear that,

152 Eg model and serial number, parental control settings, photograph and music settings, remote playsettings.

153 Eg content users download, services users access and for how long.154 See “What information do we collect?” session, at http://legaldoc.dl.playstation.net/ps3-eula/

psn/h/h_privacy_en.html155 Ibid.156 Matt Peckham, “Sony Grappling with 55 US Lawsuits After PSN Hack” in PC World, on July 21,

2011 http://www.pcworld.com/article/236330/sony_grappling_with_55_us_lawsuits_after_psn_hack.html{#}tk.mod_rel

157 Terms of User Agreement. http://legaldoc.dl.playstation.net/ps3-eula/psn/e/e_tosua_en.html

�� : �� 43under the current agreement, Sony is able to collect required personal informationfrom its end users, but Sony does not seem to provide adequate protection for thesafety of personal information it collects from its customers and remedies for personalinformation loss. It is clear that these provisions have not struck a sound balance ofbenefits between Sony PSN and its users, and are not “consistent with good faith orequity”. They arguably place end users in an “unreasonable disadvantage” situation.

4.3 Limiting the Right to SueIt is noteworthy that Sony recently updated its terms of service agreement and in-cluded a “Binding Individual Arbitration and Class Action Waiver Provision”.

NOTE: THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION ANDCLASS ACTION WAIVER PROVISION IN SECTION 15 THAT AFFECTS YOUR RIGHTSUNDER THIS AGREEMENT AND WITH RESPECT TO ANY “DISPUTE” (AS DEFINEDBELOW) BETWEEN YOU AND SNEI, SONY COMPUTER ENTERTAINMENT INC.,SONY COMPUTER ENTERTAINMENT AMERICA LLC, THEIR AFFILIATES, PARENTSOR SUBSIDIARIES (ALL ENTITIES COLLECTIVELY REFERRED TO BELOW AS “SONYENTITIES”). YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATIONAND CLASS ACTION WAIVER PROVISIONS AS FURTHER DESCRIBED IN SECTION15.158

On the one hand, in order to use the PlayStation Network, a consumer must agreeto settle any dispute with Sony outside of court. In section 15 of the document:

Other than those matters listed in the Exclusions from Arbitration clause (small claims),you and the Sony Entity that you have a Dispute with agree to seek resolution of theDispute only through arbitration of that Dispute in accordance with the terms of thisSection 15, and not litigate any Dispute in court. Arbitration means that the Dispute willbe resolved by a neutral arbitrator instead of in a court by a judge or jury.

The arbitration clause may arguably breach the Brazilian Consumer Protection Law1990, which explicitly prohibits clauses that “determine a compulsory use of arbitra-tion” (VII). The Sony’s Arbitration and Class Action Waiver provisions arguably placeconsumers in an “unreasonable disadvantage” situation.

Section 15 also contains a class action waiver clause, which states that:

Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER INARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUALBASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMEDOR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE ORPRIVATE ATTORNEY GENERAL LEGALACTION, UNLESS BOTH YOU AND THESONY ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TODO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THISPROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN ACLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011.

In other words, consumers cannot participate in a group action, unless that groupaction was set in motion before August 20, 2011. Those agreeing to the new terms ofservice are also agreeing to settle their disputes with Sony on one-on-one basis.159 This

158 For a comparison of the new version and former version of the user agreement, please seehttp://www.sonyentertainmentnetwork.com/SEN-legal-docs/TERMS_OF_SERVICE_AGREEMENT-EN.pdf159 Mike Fahey, “New PlayStation Network Terms of Service Include a No Suing Sony Clause”, Sep 15,

2011, Kotaku.com, at http://kotaku.com/5840517/new-playstation-network-terms-of-service-include-a-no-suing-sony-clause.

44 �� would arguably increase the cost of litigation and dispute resolution for individualconsumers.

New TOS also includes a clause that may cause undue deferral of the litigationprocess, and provides:

INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of theDispute in good faith for no less than 60 days after you provide notice of the Dispute. Ifthe Sony Entity you have a Dispute with does not resolve your Dispute within 60 daysfrom receipt of notice of the Dispute, you or the Sony Entity you have a Dispute with maypursue your claim in arbitration pursuant to the terms in this Section 15.

This clause arguably limits the rights of consumers to seek possible legal remediesin a timely fashion. It seems that this provision may have violated the new AustralianConsumer Law 2010. s25 (k) of Australian Consumer Law 2010 explicitly provides that “aterm that limits, or has the effect of limiting, one party’s right to sue another party”is an unfair term of contract. It is clear that the section 15 may have effects of limitingconsumer group actions and causing undue delay of legal proceeding (through the“informally through negotiation” provision). As such it may breach s25(K).

The arbitration clause may also breach the Brazilian Consumer Protection Law 1990.As introduced above, the CPC provides a non-exhaustive list of abusive clauses.160 Itexplicitly prohibits clauses that “establish obligations understood as unfair, abusive,or that lead the consumer to an unreasonable disadvantage or those that are not con-sistent with good faith or equity”. The Sony’s Arbitration and Class Action Waiverprovisions arguably place consumers in an “unreasonable disadvantage” situation.

Moreover, as some commentators have pointed out, such arbitration clauses fea-turing class action waivers “could be and were invalidated by the US courts on thegrounds that they were “unconscionable”. (Chalk vs T-Mobile; Omsted vs Dell; Laster vsATT Mobility; Discover Bank vs Superior Court).161

Nevertheless, it is noteworthy that the TOS has been written in a very “technical”way to avoid the possible challenges under the ACL 2010. It did give consumers a wayto opt-out of the agreement. The TOS agreement also contains a provision on “RIGHTTO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN30 DAYS” and stated that:

IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASSACTION WAIVER IN THIS SECTION 15, YOU MUST NOTIFY SNEI IN WRITINGWITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOURWRITTEN NOTIFICATION MUST BE MAILED TO 6080 CENTER DRIVE, 10TH FLOOR,LOS ANGELES, CA 90045, ATTN: LEGAL DEPARTMENT/ARBITRATION AND MUSTINCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR PSN ACCOUNT NUMBER,IF YOU HAVE ONE, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TORESOLVE DISPUTES WITH ANY SONY ENTITY THROUGH ARBITRATION.

It seems that this provision does provide consumers with a possibility to “opt-out”the Binding Arbitration and Class Action Waive provision. However, as we know, fewconsumers may really have patience and skills to read such a sophistic legal docu-ment (as discussed above), and spend time in writing and mailing a formal statementletter to Sony to opt-out of such a provision. In the other words, it may be another“unenforceable” provision for consumers. As one commentator noted, “[i]t’s a rathersneaky move on the part of Sony’s legal department, though it isn’t quite as nasty as it

160 Like the ACL 2010, Article 51 of the CPC 1990 (Chapter VI: Contractual Protection – Abusive Clauses)also provides a non-exhaustive list of abuse clauses: see section 3.4.2 above.

161 http://www.reddit.com/r/technology/comments/nk5r7/sony_sued_over_psn_cant_sue_us_clause/.

�� : �� 45sounds”, and it may take too long for a judge to conclude this illegal, unenforceable orunconscionable.

4.4 Non-Sue ProvisionMost recently, it is reported that Sony was sued over a term in its PlayStation Net-work’s End User Licensing Agreement (EULA) amended in September 2011, whichforced PSN users to agree not to sue the company.162 This is a class action suit forall of those who purchased a PS3 and signed up for the PSN before the Septemberamendment to the EULA. The suit alleges that Sony hid the new clauses down in thelong document. Sony failed to make an easily accessible version of the agreementavailable online as it had for former terms of service changes, and the EULA can onlybe read on the device itself.163

Again, such a term and the way that Sony disclosed the term to end users consistsof a breach of the provision on limiting right to sue (s25 (k)) and the provision onsubstantive unconscionability (s21, Sch2) in Australian Consumer Law 2010.

4.5 Amazon and Google – Internal BreachThere are various reasons for consumer data losses. The consumer personal informa-tion losses in Sony cases were mainly caused by external reasons – hacker attacks.However, recent data losses with cloud services provided by Amazon and Google weremainly caused by internal reasons.

Amazon controls about 60% of the cloud computing market, which is expected toballoon to $148.8B in revenue by 2014, worldwide.164 In April 2011, a major flaw inAmazon cloud computing was exposed. Amazon cloud computing service has beenso successful but it could not expand its Elastic Block Storage (EBS) architecture fastenough to meet demand. Consequently, this resulted in a “catastrophic cascadingfailure, and permanent loss of 0.7% of customer data”.165

A cloud computing crash of the type Amazon recently experienced sent ripplesthrough the industry. As one commentator noted, “when a busy cloud computingplatform crashes, the impact is felt widely” and “the problems are rippling through tocustomers, causing downtime for many services that use Amazon’s cloud to run theirweb services”.166

Amazon is not alone. Other major cloud computing service providers, such as

162 Josh Wretlind, “Sony sued over PSN ’no suing’ provision” in Castle Rock Computers Examiner, De-cember 20, 2011, at http://www.examiner.com/computers-in-denver/sony-sued-over-psn-no-suing-provision; see also Daniel Terdiman, “Sony sued over PlayStation no-sue clause”, CNET News.com on De-cember 21, 2011, at http://www.zdnet.com.au/sony-sued-over-playstation-no-sue-clause-339328409.htm.

163 Josh Wretlind, Ibid.; stating: “The PS3 EULA is a 21 page document, that is not available online, and The‘No Suing’ provision, is placed toward the end of the document, where users are likely not to see it, and thuscatch the end users in a trap”.

164 M. James Daley, “Information Age Catch 22: The Challenge of Technology to Cross-Border Disclosure &Data Privacy” in 12 Sedona Conference Journal 121, Fall, 2011

165 Kevin Fogarty, “In English this Time: How Amazon let its Cloud Crash and Why it Should have KnownBetter”, ITWORLD, May 2, 2011, http://www.itworld.com/cloud-computing/161203/english-time-how-amazon-let-its-cloud-crash-and-why-itshould-have-known-bett.

166 Rich Miller, “Major Amazon Outage Ripples Across Web” in Amazon, Cloud Computing, on April 21,2011 at http://www.datacenterknowledge.com/archives/2011/04/21/major-amazon-outage-ripples-across-web/.

46 �� Google and Microsoft, have not experienced similar problems. For example, in De-cember 2010, the Microsoft Business Productivity Online Suite (BPOS) was breached inNorth America, Europe, and Asia.167 In September 2011, a software upgrade that wentwrong caused parts of the Google Docs cloud-hosted office productivity suite were notavailable online for an hour.168

One important issue here is whether the consumers, who have been affected by thecloud computing crash, are able to obtain adequate remedies to recover their losses.Again, this raised the unfair term issues.

It is clear that “if there is an outage or a security breach, a user of cloud servicescould be in breach of its contract with its own customers or of applicable laws, even ifthis is caused by the provider of services”.169 Not surprising, lawyers of these majorcomputing service providers will try to minimize their legal risks through Term ofService or User agreements.

This is reinforced by a reading of some standard disclaimers on cloud computingsites. As of September 2010, Google Apps Premier Edition’s online disclaimer, forexample, noted:

Google and its licensors make no warranty of any kind, whether express, implied, statu-tory or otherwise, including without limitation warranties of merchantability, fitness for aparticular use and/or non-infringement. Google assumes no responsibility for the use ofthe service(s). Google and its licensors make no representations about any content or in-formation made accessible by or through the service. Google makes no representation thatGoogle (or any third party) will issue updates or an enhancement to the service, Googledoes not warrant that the functions contained in the service will be uninterrupted orerror-free. 170

As some commentators point out, many consumers “consider that providers of ITservices often tend to offer their services “as is”, without assuming any risk – and withan exclusion for all liability where permitted by law”.171 However, through variouslicensing agreement or Term of Service, IT service providers often unilaterally excludetheir responsibilities for not being able to provide consumers with the services as theyhave described.

Google Apps Premier Edition’s online disclaimer may arguably have breached theBrazilian consumer protection law. As introduced above, Article 51 of CPC 1990

(Chapter VI: Contractual Protection – Abusive Clauses) explicitly prohibits abusiveclauses that “prevent, exempt or reduce suppliers’ liability for defects of any nature inproducts and services or imply a renouncement or a waiver of rights”.

4.6 Summary and RemarksA clear line is always hard to draw and a sound balance of consumers and IP holdersis always hard to strike. Sony, Google and many other high technology companies

167 See M James Daley, above n 164; see also Andreas Udo de Haes, Microsoft BPOS Cloud Service Hit withData Breach, COMPUTERWORLD, Dec. 22, 2010, http://www.computerworld.com/s/article/9202078/Microsoft_BPOS_cloud_service_hit_with_data_breach.

168 Juan Carlos Perez, “Google apologizes for Docs outage”, in PC World, September 10, 2011 at http://www.goodgearguide.com.au/article/400363/google_apologizes_docs_outage/.

169 Nick Hart & Mark Vincent “Law in the cloud”. [online]. Law Society Journal; 49 (5) June 2011: 51-53,55.Availability: http://search.informit.com.au.ezproxy.lib.uts.edu.au/fullText;dn=20112994;res=AGISPTISSN: 0810-5263. [Cited 07 Jan 12].

170 Ibid.171 Ibid.

�� : �� 47surely can find some persuasive arguments to justify their current practices – such asfor enhancing innovation or for improving user security.

For example, when a Sony staff responded to inquiry on the recent changes of TOS,he said:

This language in our TOS is common and similar to that of many other service relatedTerms of Service Agreements. It is designed to benefit both the consumer and the com-pany by ensuring that there is adequate time and procedures to resolve disputes.172

As some commentators pointed out, each country has its own set of laws regardingdata protection and privacy. Some are dramatically more stringent than others. Forexample, in 2010, in the UK, HSBC (in one of a series of security breaches relating toits customer data) was fined £3 million “for failing to have adequate safeguards inplace for its customer’s confidential details.”173

The aim of this paper is not to advise on how a right balance can be achieved be-tween licensees and licensors, but to identify potential legal instruments that con-sumers may seek remedies from. In comparison with global IT giants armed with inhouse lawyers, consumers normally lack sophisticated legal knowledge and are notquite familiar with potential legal remedies they may have. In the next section, I willprovide some recommendations for future law reform at both international and do-mestic level.

Part V: Conclusion and RecommendationsAs some commentators pointed out, “any global technology solution will be im-

pacted by the laws of a large number of nation states.”174 However, as introducedabove, IP related consumer laws in each country are various. As such, it is necessary toexplore some practical strategies to harmonize laws in various countries and improvethe enforceability of consumer protection laws at both domestic and international level.

5.1 Recommendations at the Domestic Level5.1.1 Recommendation I: Strong Consumer Laws for IP Abuse

PreventionIndividual countries may consider using more detailed consumer laws to protect con-sumers from IP abusive conduct, including unfair terms or abusive clauses in End UserLicensing Agreements. They may draw on lessons from both Australia and Brazil. Forexample, as introduced above, the Brazilian CPC 1990 provides a non-exhaustive listof abusive clauses that may harm the interests of consumers. Australian consumerlaw contains similar provisions on unfair terms of contract and provide some generalstandards to assess “unfairness”. They may serve as model laws for others countries toreform their laws against IP abuse.

Future consumer laws should explicitly prohibit the conduct of IP holders in uni-laterally revising the term of service or rule of usage. The proposed A2K amendmentsto the United Nations Guidelines for Consumer Protection (amended Guidelines) pro-vide some sound guidelines on how individual countries may address the said issues.

172 Mike Fahey, above n 159.173 Nick Hart & Mark Vincent, above n 169.174 Nick Hart & Mark Vincent, above n 169.

48 �� For example, future regulation may explicitly “restrict suppliers of digital productsand services from employing technologies that have a significant effect of preventingconsumers from using those products or services in ways or for purposes that wouldotherwise be reasonable and safe”.175

Article 23A of the amended Guidelines further provide:

Suppliers of consumer electronic devices, or of proprietary software for such devices,may not issue a software or firmware update that would disable the consumer’s access tofunctionality that the device or software possessed at the time of purchase, unless:

(a) the update is essential to protect the safety of the consumer or the consumer’s data;

(b) the consumer is fully and clearly informed of the effects of the update; and

(c) the consumer is given the opportunity to accept or reject the update, unconditionallyupon the acceptance of any other update that improves or corrects functionality of thedevice or software.

There provisions arguably provide a clear example on how individual countriesmay prohibit IP holders’ unilateral conduct which may harm consumers. It would bedesirable if individual countries can incorporate these prohibition provisions into theirdomestic consumer laws. In doing so, adoption in national law can extend consumerprotection provisions relating to IP.

5.1.2 Recommendation II: ACCC-Style Strong and SpecializedEnforcement Agency on Consumer Protection

Each country needs to set up a specialized consumer right enforcement agency, andstrengthen the coordination between consumer right enforcement and competition lawenforcement. In this regard, the Australian ACCC model may serve as a sound model.As discussed above, many developing countries, including China, do not have a strongand effective consumer protection enforcement agency.

As such, China and many other developing countries may consider drawing onlessons from the experiences of Australia, and give its Consumer Protection Associ-ation “greater power”, including the power to initiate litigation against conduct thatharms consumers, the power of investigation, the power to make administrative reso-lutions and the power to issue infringement notices.176

Unlike Australia, the Consumer Protection Association and Anti-Monopoly En-forcement Agency are two different agencies. Thus, it is important to strengthen thecoordination of these two enforcement mechanisms. As introduced above, competi-tion law alone may not be sufficient to prevent all forms of IP abuse and to protectconsumers under the current online environment.

5.1.3 Recommendation III: One Way IP Education vs ConsumerEducation

As noted in the United Nations Guidelines for Consumer Protection, consumer educationis an important component of the consumer protection regime. However, existingIP education mainly focuses on how to enforce IP law and prevent IP infringementand how to teach IP users/consumers to follow IP laws, rather than how to protect

175 A2K amendments to the United Nations Guidelines for Consumer Protection, Article 21A.176 S G Corones, The Australian Consumer Law (2011) Thomason at 450-451

�� : �� 49consumers from IP abuse or how to teach IP holders to explore IPRs in properly.177

Same holds true in the US. For example, a US scholar commentated:

. . . the IP exposures US citizens receive is dichotomous. One exposure is consumer IPeducation. Here, limited information is disseminated to those who purchase the IP ofothers. Consumer IP education focuses upon purchasers, or future purchasers, of software,technology, and media. Consumer IP education is directed at explaining how the *146

products are protected by IPRs, how to abide by said rights, and proper purchasing ratherthan downloading or sharing.[FN14]

The second exposure is producer IP education. Producer IP education informs thepublic of the rights and benefits IP laws bestow upon their conceptions and works of au-thorship. Producer IP education encourages innovation and enhances a public familiaritywith the basic steps in obtaining IP protection.[FN15] Despite the recognized need of anall-encompassing public exposure to IP laws,[FN16] IP education in the *147 US has a dis-proportionately greater emphasis on consumer IP education, as opposed to producer IPeducation.[FN17]178

Indeed, the current IP education model is mainly focused on teaching consumersto follow IP laws rather than teaching IP holders to exploit their IPRs properly. Inaddition, current legal studies on IP abuse prevention are mainly focusing on the com-petition law approach. The major parties who can benefit from these types of studiesare companies rather than individual consumers. As such, it is necessary to identifysome new ways to help consumers to readily learn to understand and use the currentlegal infrastructure against IP abusive activities.

For example, the ACCC website provides a list of authorized agencies for Ombuds-man and dispute resolution. Many consumers, who have not taken action against IPabuse, have simply been scared by the high cost of litigation and arbitration proceed-ing processes. They do not know there are so many low cost or free dispute resolutionmechanisms available for them. Particularly in many developing countries, civil Om-budsman and dispute resolution mechanisms are not well developed. Most consumersrely on national consumer protection associations, and they are not very familiar withmany other specialized and cheap/free dispute resolution mechanisms. For example,in Australia, the Telecommunications Industry Ombudsman (TIO) is “a fast, free andfair dispute resolution service for small business and residential customers who have acomplaint about their telephone or internet service”.179 However, not every consumer,who suffers with “legal traps” in sophisticated Terms of Service and EULA (eg nosuing provision), knows about this free legal service.

As such, future IP education should strike a better balance between consumer IPeducation and producer IP education. It should focus on both IP infringement preven-tion and IP abuse prevention. Future consumer IP education should not only focus onteaching consumers to respect IPRs, but also arm consumers with effective legal instru-ments against IP abuse. Consumers and IP users should be well informed about theirrights under IP laws, consumer laws, and other consumer-related legislation. Theyshould also be able to locate suitable dispute resolution mechanisms to defend theirlegitimate rights.

177 For example, most WIPO IP education projects in China and other developing countries are focusing onthe “protection of IP” rather than “the prevention of IP abuse.”

178 Monisha Deka, “Notes: Pre-Professional Intellectual Property Education” in 46 IDEA: The IntellectualProperty Law Review 143 (2005) at 145-147.

179 http://www.tio.com.au/about-us

50 �� 5.2 Recommendations at the International

Level5.2.1 Recommendation I: TRIPS Amendment and Minimum Requirement

of Consumer ProtectionIP Abuse provision in TRIPS should be amended. Firstly, the WTO needs to provide aclearer and more operational definition of IP abuse to protect the interests of IP usersand consumers. Alternatively, it may explicitly authorise member states to adopt anymeasure to define “IP abuse” under their domestic laws against harming consumers.

Secondly, the WTO or the UN may consider setting up minimum requirementsfor consumer protections for member countries – either through TRIPS (IP relatedconsumer rights) or through an independent International Treaty. As we know, theTRIPS Agreement has set up minimum requirement of member countries to amendtheir domestic IP laws to protect the benefit of IP holders. A similar strategy may alsobe applied to protect the benefits to IP users and consumers in general.

The United Nations Guidelines for Consumer Protection has provided a fine guidelinefor individual countries, particularly developing countries to amend their consumerlaws. However, it is an only a guideline and not a binding law. It would be desirableif more detailed model laws (eg model law on unfair term of contract) or internationalconsumer protection treaties with binding effects can be made in order to harmonizeconsumer protection laws at the international level.

5.2.2 Recommendation II: “Reverse Nation Treatment” Principlefor Consumer Protection

As discussed above, under the current knowledge economy environment, “any globaltechnology solution will be impacted by the laws of a large number of nation states.”180

Any global technology failure may also affect consumers in a number of countries.Moreover, consumer protection levels in different countries are various. Consumers,particularly consumers in developing countries, often face “imbalances in economicterms, educational levels, and bargaining power”.181 However, the reform of consumerlaw and improvement of consumer protection level cannot be achieved overnight.

Thus, I would suggest that it may be necessary to set up a “reverse nation treat-ment” principle at both domestic and international levels to strengthen the con-sumer protection in different countries. Under this proposed principle, when a multi-national/foreign company has conducted any conduct that may harm consumers, acourt in the hosting country may apply either hosting country law or the consumerlaws in the country where foreign company was incorporated to provide remedies forconsumers. For example, although there is no Australia-style unfair term of contractlaw in China, if an Australia IP company uses unfair terms in EULA to harm the in-terests of consumers, the Chinese court can then apply the Australian unfair term ofcontract laws to prevent the conduct of the Australian IP companies.

In doing so, a foreign company will not be able to use the flaw of the consumerlaw in the hosting country to harm consumers in that country. This will not createan extra burden for foreign IP companies. It simply requests these companies not to

180 Nick Hart & Mark Vincent, above n 169.181 United Nations Guidelines for Consumer Protection, I. Objectives.

�� : �� 51harm consumers in a way which has been prohibited by consumer laws in their homecountries.

However, one of the problems of applying this principle is that it may conflict withthe national treatment principle under the WTO framework. It creates a possibilitythat foreign companies who were incorporated in a country without strict consumerlaws may be treated differently with the foreign companies who were incorporated ina country with strict consumer laws.

In order to comply with the WTO rule, before a court decides to apply the con-sumer laws in foreign countries, regulators must announce that their consumer lawswill be amended accordingly and make sure all companies in the hosting countrieswill be treated equally under the new laws.

In doing so, it will push hosting countries (who do not have strong consumer laws)to speed up the consumer law reform process. It will also force regulators and courtsin the hosting countries to be more cautious when they decide to apply a stricter con-sumer protection law in foreign country.

5.2.3 Recommendation III: UN Compliance Regime and Involvementof NGOs

In addition to law making and law reform, the United Nations should set up a specialagency or work closely with NGOs to set up an effective mechanism to assess theeffectiveness of the laws on consumer protection and IP abuse prevention in individualcountries.

Like the USTR, which issues Special 301 IP watch list every year, the UN or autho-rized NGOs should issue similar watch list or reports to assess the consumer protec-tion status in each country, including their compliance with the UN Consumer Pro-tection Guidelines, the effectiveness of their domestic laws in preventing IP abuse andconsumer protection and the enforcement of their consumer laws. Upon request, theUN special agency or NGOs may provide detailed recommendations for law reformsin individual countries, particularly developing countries.

As introduced above, given that many developing countries lack well qualifiedlegal experts in consumer and IP protection areas, it is necessary to encourage theinvolvement of NGOs in the WTO negotiation process. For example, the WTO mayconsider setting up a “member country invitation mechanism” which allows membercountries to invite NGOs to directly participate in the WTO negotiation process.

52 �� ConclusionIn conclusion, under the current knowledge economy environment, an increasingnumber of countries have noticed that governments “need to ensure that consumer lawnot only protects consumers, but also encourages competition and supports innova-tion”.182 In response to the challenges brought by “global technology solution” andin order to better prohibit various forms of IP abusive conduct worldwide, it may benecessary to get the TRIPS agreement, particularly its IP abuse provision, amended. Asintroduced above, the TRIPS Agreement provides a leeway for countries to make anylaws to prevent the abuse of IP and to enhance technology transfer and innovation. Inaddition to a traditional competition law approach, consumer laws may serve as animportant supplement for preventing IP abuse and enhance innovation in a long run.

In addition to the TRIPS Agreement, the United Nations Guidelines for Consumer Pro-tection, particularly the A2K proposed amendments to the Guideline (as introducedabove), may serve as an example of a possible instrument that could facilitate the reso-lution of the IP abuse problems and defend consumer rights under the current digitalenvironment. In addition to soft laws, individual countries should learn from eachother and consider using “binding” laws or treaties to strengthen the protection ofconsumers under the current digital environment, such as unfair term provisions inAustralian consumer law and abusive clause provision in the Brazilian consumer law.In order to speed up the process of law reform, some more creative legislative strate-gies may be adopted, such as “reverse national treatment” principle.

It is imperative that each country, particularly developing countries, should adoptmore flexible approaches at both international and domestic levels to address IP abuseissues and to protect legitimate rights of their citizens in using new technology prod-ucts and services. This is not only important for protecting consumers but also impor-tant for encouraging competition and supporting innovation.

182 Christian Twigg-Flesner, “Innovation and EU Consumer Law” Journal of Consumer Policy, Vol 28, Issue 4,December 2005, at http://www.springerlink.com/content/y343nu668102271r/ at 409-432 (stated: “Recentconsumer policy initiatives, primarily at the domestic, but also at the European, level have emphasisedthe need to ensure that consumer law not only protects consumers, but also encourages competition andsupports innovation). See also Australian Government, Attorney-General’s Department, “The AustralianConsumer Law – An introduction” at 15 at http://www.consumerlaw.gov.au/content/the_acl/downloads/ACL_an_introduction_November_2010.pdf (stating: “The ACL simplifies the law and makes it clearer tounderstand for both consumers and businesses. More informed consumers make better choices, drivingcompetition and innovation in markets and the development of a seamless national economy”.)

2 Introduction to DigitalPersonal PropertyPaul Sweazey

Chair, P1817 Standard for Consumer-ownable Digital Personal Property, IEEE

A�� Personal property ownership rights are a basic human need. The absenceof legal ownership distorts and hobbles economic systems by leaving demand for own-able products unfulfilled and by stimulating extra-legal, de facto ownership throughso-called pirated products. Copyright-respectful consumer ownership of download-able movies, music, books, games and other digital products is entirely practical, butsuch ownership requires an object type called digital personal property or DPP, which isneither a plain, unprotected file nor a usage-restricted file.

Introduction

It is unhealthy to allow the laws that govern the people to diverge too widelyfrom the reasonable desires of those people. So far, digital content providers have fo-cused on asserting copyright law with greater force so as to bridle the people’s desiresfor digital content until they restrict themselves to the limited forms that businessesare willing to provide them. (The beatings will continue until morality improves.)However, when individuals are faced with a choice between what they consider to betheir personal rights and what appears to be an abstract ruling of law, personal rightsdrive their decisions and behaviour. The specifics of copyright law are no match for theconsumer notion of personal ownership. Thus, people opt for the nearest approxima-tion to digital personal property ownership that is available to them; they rip plain filecontent from the protective wrapper of digital rights management (DRM) systems, andthey store it away so that they know it is there whenever they want it, untethered toany big brother, as if they really owned it.

Good news: there is a way to provide consumer-ownable digital content that im-poses no restrictions on usage or sharing, yet is as fully consistent with the consumernotion of copyright as it is with the consumer notion of personal ownership. You willbe introduced to that mutually respectful way. Hopefully then, you will ask the ques-tions, “Is it real, do I care, and what should I do about it?”

54 �� Safety Over LibertyImagine this:

Consumer-oriented legislators of your nation decide that they must intervene to protecttheir consumer-citizens from the shoddy quality of products sold to them. Their pro-business colleagues surprisingly agree, and together they propose legislation to make surethat businesses remain responsible for function and quality for the lifetime of their prod-ucts. They pass laws declaring that, since they must remain responsible, suppliers shallretain ownership of durable goods and may only deliver them to customers through li-censed services including rental and leasing. In exchange for not having to worry so muchabout products that break, get lost, or wear out, people’s rights to lend and share are cur-tailed, and they can’t resell what they never owned. Other nations follow suit, resultingin a global marketplace that delivers the same goods as before, but no longer delivers tan-gible personal property. And what is the response of the public? First, reports of lost andstolen goods rise dramatically. Second, a huge black market of counterfeited and off-the-record goods, both new and used, emerges and is widely embraced by the public. Why doconsumers seem to lose their moral compass and embrace cheating, deception, fraud, andillegal goods? Because if everything they have is tethered to a big brother, then so are they,and they don’t feel free.

That is a ludicrous vision of the world, of course. How could people so demand safetythat they would give up so much liberty. But is it so ludicrous as to be impossible inpractice?

Consider today’s cyberspace economy, our marketplace of downloadable digitalproducts. All products are delivered as licensed services. There are no consumer-ownable products; instead, products are tethered to some company, most by DRMtechnologies, and all by license agreements. And how do consumers react? Peopleembrace any and all available sources of untethered, de facto ownable content. Theybreak DRM protections to create untethered plain files that they can store away anduse however they please, whenever they please, and without being observed or moni-tored. Consumers come to think of violating a license agreement or defeating DRM astrivial compared to the immorality of an always-tethered world – a world in which fullpersonal freedom is not an option.

Sometimes, even with the best of intentions, ludicrous visions become reality.

The Digital Marketplace as it Should BeNow consider a healthier vision of how the digital marketplace for downloadablemovies, music, books, and games could be:

A consumer goes to his preferred online store to find a downloadable movie, song, book,or game. He finds the title that interests him and sees that it is available in a number offorms for a range of prices, including a variety of features, and subject to various com-binations of usage and sharing restrictions. The consumer weighs his needs and desiresagainst the available offerings. Among his choices are content streaming services, rentalservices, and even services that offer “permanent” downloads. Those “permanent” down-loads may employ digital rights management (DRM) to enforce usage restrictions, or theymay consist of plain, unprotected files. All of these options are offered to the consumerwith the clear understanding that they are indeed licensed services, not consumer-ownableproducts.

So far, the only difference between this vision and today’s reality is the “clear under-standing” that everything is a service. Currently, suppliers commonly present theirservices as if the customer were buying a product to own. The license agreements sayotherwise. But there’s more to this future vision:

�� : �� 55Besides all of those services, the shopper sees some choices labelled “DPP”. DPP standsfor digital personal property, and it signals to the shopper that, if he buys it, then he reallydoes own it.

If that last paragraph sounds reasonable to you, then you are in the majority. Mostpeople think of digital products as practically, feasibly, ownable things. Most peopleare woefully unaware of the quagmire of legal and technical issues that make con-sumer ownership of digital products so problematic.

Security for ConsumersDigital personal property, or DPP, can be thought of as a wrapper around a media filethat turns it into a singular, ownable object. The components of the product item are:(1) an encrypted media file, (2) a decryption key, and (3) a URL that points to (4) anonline authenticity certificate. The file, the key, and the URL are downloaded directlyto the consumer’s media player, whereas the certificate is deposited in a secure onlinerepository.

But wait! Encrypted files? Keys? Certificates held by some online Big Brother? Ifyou know anything about digital rights management (DRM) systems, then you’ll notethat DPP has all of the ingredients that DRM might use to burden the consumer withusage restrictions and behaviour monitoring. That doesn’t sound like ownership atall, and you would be right to be suspicious because restrictions and monitoring areantithetical to personal, private ownership. DRM applies technology to the monitoringand constraint of customer behaviour, but as you will see, DPP applies its technologyinstead to preserving the attributes that make products ownable, freely usable andsharable, and even resellable.

The Nature of OwnershipIn this discussion, the word “ownership” refers to the non-commercial personal prop-erty rights of individuals, distinct from commercial intellectual property rights thatconsumers think of as the purpose of copyright law. Think of ownership as the prop-erty right of a private citizen as the result of, say, purchasing a printed book. The expe-rience delivered to the consumer-owner is the aesthetic appreciation of a copyrightedwork by possessing a physical book, including the ability to share that experience withothers within the natural limits imposed by the physical nature of the printed book.Not only does the consumer understand that republication is not his right, but thephysical nature of the book reminds the consumer by making republication inconve-nient.

The Bicycle TestNow consider this simple example that illustrates what ownership means to con-sumers:

Say that you have a son and that he owns a bicycle. He can ride it, do acrobatics with it,or block the front door with it (use). He can let anyone else use it (inclusion) or refuseto share it (exclusion). He can add a headlamp, remove the fenders, or grow rust on it(customisation). He can sell it to a neighbor or give it to a younger sibling (transfer). Ifhe leaves it unguarded or lends it to the friend of a friend he may lose it (responsibility).Once he grows up he will be able to do these things without your supervision (privacy) oryour permission (autonomy).

56 �� True ownership includes fundamental rights. It also implies responsibilities, since free-dom from Big Brothers necessarily means that it is your loss if you fail to properly carefor your property. The attributes of use, inclusion, exclusion, customisation, transfer,responsibility, privacy, and autonomy are not just intuitively understood characteristicsof ownership, they are essential to the social contract upon which the commerce ofcopyrighted products is based, “You respect my right to private freedom, and I grantyour right to profitable public distribution”.

These consumer notions of ownership and copyright are not the law, but they aremore fundamental and universal than law. They are the basis for public respect ofcopyright law.

The Role of Media PlayersA media file requires a media player for its use. The player is an electronic device withappropriate software to enable you to use digital content. When handling a plain,unprotected media file, a player can support the user by playing, editing, mixing, copy-ing, or performing any other function that the player maker might think to provide,but when playing DRM-protected content the player conforms to rules that limit whatthe user is allowed to do. The same player can play plain files or DRM files, but it onlyapplies restrictions for DRM files and streams.

A DPP media player is one that understands the difference between a plain file, aDRM file, and a DPP file, and behaves accordingly. Among other things, the job of aDPP media player is to make sure that you never even notice that the DPP media file isencrypted. The DPP player enables for DPP everything that is possible with plain files.

Digital DysfunctionThe fact is that all legitimate, for-profit, media delivery services on the Internet are justthat. . . services. They grant limited access and usage of the media they deliver underend-user license agreements and terms of service, and even if they wanted to sell con-tent to own, there is no legally blessed definition of what such consumer ownershipmeans. Specifically:

• Content protected by DRM is too restrictive to satisfy the consumer notion of own-ership.

• Plain, unprotected files are effectively public goods, not ownable private goods.They are so easily copied and distributed as to guarantee both for-profit counterfeit-ing and for-fun distribution to strangers.

• Suppliers intentionally present unownable services as if they were ownable prod-ucts, and in response consumers see those pseudo-products as unfairly and unrea-sonably restricted.

• Today’s so-called buy-to-own downloads are licensed but not owned, whereas bothsuppliers and consumers are generally unaware that consumer-ownable downloadscould be made technologically feasible and commercially practical.

�� : �� 57Plain Files: Unownable Public Goods

Basic economic theory describes private goods as products and resources that are bothexcludable and rivalrous. “Excludable” means that a good can be kept from those whodo not have a right to it, eg, who have not paid for it. “Rivalrous” means that a goodis a limited resource, so access to the good by some people makes it inaccessible byothers. The term “ownership” makes perfect sense when speaking of a private good.

Public goods are products and resources that are neither excludable nor rivalrous. Itmakes little sense to claim ownership of a public good – like trying to own air. Withtransmission and storage of digital data so cheap as to be essentially free, a plain me-dia file is a de facto public good for a large fraction of the world population.

A public good is a boon to global society. Producing and distributing plain-filecontent to the planet enriches all of those who are blessed with access to the electronicdevices that can play them. Yet there is a balance to be achieved; if all goods werepublic goods, then the commerce by which we earn our daily living would be farmore difficult. We will never have the problem of public goods supplanting privategoods for physical products that provide us with basics like food and shelter, but thatproblem is real for many who would like to build their lives and livelihoods aroundthe creation and delivery of digital goods. Copyright is especially important for ourcyber-economy because it empowers creators of digital goods to be rewarded for theircreative efforts.

DRM Files: Unownable Private Goods

Digital rights management (DRM) is content protection technology, and we use it toimpose exclusion and rivalry upon digital objects. The effect is to make each delivered,DRM-protected, digital object into a private good. Private goods can be ownable, butso far, DRM has always been used only to protect the ownership of the intellectualproperty owner, making them unownable by the consumer. Even the name, “digitalrights management” implies that there is something to be managed, turned on or off,and selectively controlled under particular circumstances. DRM manages the lim-ited subset of rights (ie, privileges) that the supplier chooses to grant to the consumerunder a particular end user license. The focus of DRM is entirely on the intellectualproperty rights of the copyright holder.

It is extremely important to emphasise that DRM is not an inherent evil, but ratheran important and even necessary component of the business of offering content deliv-ery services to the public. To fail to make a digital object excludable and rivalrous is toimplicitly acknowledge that a public good is being delivered. There is nothing wrongwith providing a service that does not deliver consumer ownership. It is only in thecontext of an ecosystem in which consumer ownership is a practical and legal impossi-bility that DRM earns its reputation for denying fundamental rights to consumers.

We are not talking about moral absolutes by declaring ownership to be necessary;rather, we are simply deducing from observations of common human behaviour. Ifyou do not offer the option to own, then people create their own approximation. Theyrip content to plain files, and they find their freedom, independence, and sense ofownership in the resulting public goods.

58 �� DPP: Ownable Private GoodsIf plain files aren’t consumer ownable, and if DRM files aren’t consumer ownable, thenwhat digital object is consumer ownable? Keep in mind the intuitive definition of a kidand his bicycle; it is the kind of ownership that regular humans can relate to. If DPPis to be consumer-ownable, it had better meet the bicycle test. Think use, inclusion,exclusion, customisation, transfer, responsibility, privacy, and autonomy. The conceptof a private good is implicated in these ownership attributes. Responsibility (to carefor and protect your property) is related to being rivalrous, because your propertysometimes disappears when others want for themselves what is yours. Exclusion isprecisely related to being excludable, but ownership also implies the complement ofexclusion, inclusion, or the right to share with others.

Everything that you can do with a plain file should be doable with digital personalproperty. You should be able to copy it, make backups, give copies to others to share,modify it as you choose, and use it as you see fit. But unlike a plain file, once you giveor sell it to someone else it should cease to be available to you; otherwise, you need apublic good, not a private one, and the price to be paid for that luxury is the loss ofprofitability in trying to sell such a good to the public. People see that profitability asthe intent of copyright, as stimulus to reward creativity and fuel the economy for usall.

Public vs PrivateWhat is the essential difference between the reasonable rights of the consumer-ownerand of the copyright owner? Legally, this is a complex and unsettled question, but forconsumers it is fairly simple. The consumer’s rights are of private use of one productitem (including reproduction, without which digital goods are completely useless).The copyright holders rights are of reproduction for public distribution and com-mercial profit. The key distinction is the boundary between public and private. Onlyprivate individuals can draw that line, not a government agency or corporation orsoftware application. DPP must provide a means for consumers to specify the sepa-ration of private from public. It does so through two features of media players, oneexpressing generosity, and the other expressing selfishness.

GIVE: The Generosity ButtonIf your movie, song, book, or game is a plain file or a DRM file, then everything worksjust as your media players work today, but if the content item is DPP, then a new but-ton appears on your media player, the GENEROSITY button. Of course, it will havesome other label like GIVE or SHARE or COPY or SEND, but by pressing the GEN-EROSITY button you share your DPP with others.

Everyone who shares your content can play it, simultaneously or independently asthey choose. Every one of them also has a GENEROSITY button; they can share yourDPP item too, with anyone they may choose, and without asking your permissionfirst. If you shared with them, you did so with the knowledge that they would becomeempowered to share also. Your generosity is an act of personal trust.

There is no limit to generosity. I can share with you , you can share with others,they can share with others. You and I are only sure to know the identities of thosewith whom we directly share. The GENEROSITY button makes DPP as freely sharable

�� : �� 59as plain files.

While acknowledging that there is no single name that labels the GENEROSITYbuttons for all circumstances, we’ll call it the GIVE button.

TAKE: The Selfishness ButtonWhenever a DPP media player’s PLAY button is enabled, its GENEROSITY buttonis enabled too. And likewise, a SELFISHNESS button is enabled. The SELFISHNESSbutton is the means by which you stake your claim to ownership of a DPP item.

If you buy a DPP item, and if you never press the GENEROSITY button, then theSELFISHNESS button does nothing; however, once you share your DPP with some-one else, you have effectively shared ownership with any and all future sharers. Anynumber of copies of your DPP item may be in the possession of any number of othersharers. When you click the SELFISHNESS button you assert your position as ownerby disabling for a given DPP item the PLAY, GENEROSITY, and SELFISHNESS but-tons for every other player except yours.

The SELFISHNESS label is a rather abstract name for a button, and burdened withnegative social implications. Depending on the context, the button might be namedTAKE, ERASE, COLLAPSE, RECLAIM, RETURN, OWN, etc. We’ll call it the TAKEbutton.

Lots of Other ButtonsAny DPP play, manipulation, or editing feature that the player maker can think ofis encouraged, as long as such features do not defeat the efficacy of the GIVE andTAKE buttons. GIVE and TAKE are the risky powers that make DPP useless in theexchange economy of public distribution, while making DPP highly valued in thegift economy of private, personal relationships. Once DPP enters the gift economy offriends and family, the dangers of leaving all other usage functions unrestricted vanish.People equate the absence of restrictions with personal liberty, which is the essence ofpersonal property ownership.

Understanding GIVE and TAKEThe game of chess is based on a simple set of rules about the movement of variouschess pieces, with very few special cases to consider, yet those simple rules lead to avery complex game whose mastery challenges the limits of human intellect. Similarly,the game of DPP sharing is based on two very simple functions – GIVE and TAKE –yet their implications lead humans to make highly subtle and nuanced judgments,tradeoffs, and decisions about when to share and with whom they ought to share. Weoften fail to understand GIVE and TAKE when first introduced to them because offamiliarity with how content protection has worked so far, because we can’t imagineprotection without restrictions, and because our own limited vocabularies mislead us.

GIVE and TAKE are actually pretty simple concepts.It is not the subtlety or com-plexity of GIVE and TAKE that confuses us, but the dissonance that we feel if we haveparticular knowledge or expertise in the technology of DRM or the legal issues ofcopyright. A defender of DRM and copyright, upon hearing what the GIVE buttondoes, is likely to be upset by the implications of encouraging people to make and dis-tribute copies without limit. Meanwhile, a defender of the rights of consumers, upon

60 �� hearing what the TAKE button does, is likely to object to a content protection technol-ogy that doesn’t take measures to protect the rightful owner from malicious behaviourby sharers. After all, if DRM can overtly protect suppliers, why can’t DPP overtly pro-tect consumers?

Sometimes you can’t believe your own ears. You are told that there are no restric-tions, but you are likely to assume that this is just a semantic trick that calls a re-striction by a different name. Before DPP, every alternative to the plain file that youhave ever heard of has imposed some kind of restriction on the consumer, yet GIVEand TAKE impose no restrictions; instead, they endow consumers with new pow-ers. . . risky powers. In the real world of tangible personal property, you restrain yourown behaviour, not because you are forced by restrictions, but because unwise be-haviour leads to negative consequences. Through consequences, not restrictions, con-sumers learn to exercise GIVE and TAKE judiciously, because of the potential to losethat which is shared with the untrustworthy, and because of the chess-like array ofsocial consequences, both positive and negative. GIVE and TAKE make digital life likereal life.

Sometimes language is inadequate. There is no single, simple word (at least in En-glish) that unambiguously describes the functions of the GENEROSITY and SELFISH-NESS buttons, now called GIVE and TAKE. The actual effect of the GIVE button isto give a playable copy of the encrypted file to another player, enabling both playersto play the content simultaneously, concurrently, or independently. The word “give”implies that the giver may not be able to play it. SHARE implies that the two playershave to use the same encrypted file. The word “copy” implies that the receiver’s copyis no longer coupled in any way to the original DPP item as a whole. The word “send”leaves open the question of what was sent and what remains behind. The word “gen-erosity” expresses the perfect emotional intent, but provides no hint at all about whatends up where. All of the names for TAKE have similar shortcomings. There simply isno single, perfect word to describe either button, yet once you learn what the buttonsdo, you realise that they are very simple functions.

You would be wise to revisit what the GIVE and TAKE buttons actually do be-cause it takes everybody more than one look to grok them. It is important to under-stand them, and to recognise why they might make content suppliers nervous or giveconsumers cause for concern. You will see the balance of upsides and downsides forboth suppliers and consumers. You will recognise that they are the same upsides anddownsides that define a balance of fairness for tangible personal property ownership.You will understand how one can expect that same fairness to be preservable for digi-tal personal property.

The Role of DPP in the MarketplaceThe purpose of DPP is to fulfill the consumer demand to buy and own digital prod-ucts. It is not intended to replace DRM files, nor to supplant any of the great varietyof content delivery services available today or destined to be introduced in the future.DPP is meant to replace plain files wherever plain-file distribution has the effect of de-valuing the perceived worth of a product or eroding respect for copyright in the eyesof consumers.

Some have suggested that DPP should not exist because there is no real demand forit. Others feel that DPP should not exist because there might be great demand for anopen standard that is so user-friendly that it would unfairly compete with DRM-based

�� : �� 61content services. (These are often the same people.) Still others oppose DPP because itmight flood the world with unprotected content after pirates compromised its security(although no basis for a DPP-unique security weakness has ever been identified). Ba-sically, those who have figured out how to profit from today’s marketplace naturallytend to fear any major disruption to the status quo, and to be sure, DPP is a majorchange. Luckily, the nature of the change is that the digital marketplace will be bigger,more varied, and more healthy than it is today – the inevitable result of introducingreal ownership to consumers.

The role of DPP is not just to migrate existing revenues into DPP-based ones, butto add revenues. It will do so, not just with a new product category, but by validatingexisting services and business approaches. People are smart; they intuitively knowthat you are wrong to claim that usage restrictions are the only way to preserve yourbottom line. They weren’t necessary before; why should they be so impossible to avoidin cyberspace. People also recognise when trading a bit of liberty for increased safetyis in their interest. Sometimes people would prefer to avoid the burdens of ownership,and the convenience of services provides exactly what they really desire.

The Special Value of DPPDPP is like a balloon on a pump. Each click of the GIVE button is a push on the han-dle of the pump that expands the DPP item balloon. But one click of a TAKE buttonpulls the balloon off of the pump, collapsing it quickly to the size it was when it wasfirst purchased – just big enough for a single player to use. An item of digital personalproperty can always expand to fill any private need for any number of people, butevery one of those people can pull the balloon off and walk away with it.

Without going into technical detail, let us explore the ways in which digital personalproperty provides unique value.

No Supplier Tethers

A consumer buys a DPP item from an agent authorised by the holder of the copyrightfor the content item. Just as with a physical instance of a copyrighted work (thinkDVD or printed book), a single purchase and payment results in a single legitimatelyowned item among consumers. As with physical product items, the creator, manufac-turer, distributor, or seller of the product item loses the capacity to monitor or controlaccess to it after the sale, and the purchaser of the item has full control over who canaccess it and who shares knowledge of its existence.

Digital Advantages

The reason to prefer an electronically distributable, purely digital product over a phys-ical instance of it is to be able to benefit from the digital advantages that naturallyaccompany digital objects. That is, obstacles of time and space are largely irrelevant,so copies can be created, transmitted, stored, and used independently of each other, atany time, and in any location.

Untitled Property

Few items of personal property are titled. Examples include real estate and automo-biles, whose ownership is typically recorded and maintained by a government agency.

62 �� The vast majority of our personal property is untitled. The purchaser often has a re-ceipt, which can serve as a proof of purchase, but the receipt is not an ownershiprecord. Ownership of untitled property is governed by individual behaviour andpersonal relationships. When an untitled property item is made accessible to morethan one person, then those people involved operate on a shared consensus aboutwho among them is the true owner. Disputes about ownership of untitled personalproperty are almost always settled privately, without the intervention of governmentagencies, business entities, or automated arbitration services.

DPP is untitled personal property. Associated with each sold DPP item is a uniquecertificate of authenticity, but it is not a certificate of ownership. It is more like a pur-chase receipt than a title document. It exists, not to identify the owner, but to thwartcounterfeiting and fraud. It contains information about the source of the item, butcontains no record of who owns or has owned the DPP item.

Resale Value

Benjamin Franklin said, “Those who would give up essential liberty to purchase alittle temporary safety deserve neither liberty nor safety.” Franklin might have beenrather enthused about DPP because it certainly does err on the side of liberty oversafety. Specifically, since DPP is untitled, no formal transactional record is required inorder to transfer ownership from one person to another. Individuals are free to giveand take, sell and buy, bequeath and inherit, and even to steal DPP without having toworry about any title or certificate of ownership. The transfer is not recorded with anownership registry, and in particular, the suppliers of the content cannot monitor orprevent transfers. An ownership license agreement must make content exchange andresale legal; otherwise, it wouldn’t be ownership.

When you own something with resale value, you treasure it more than if it had noongoing monetary value. DPP retains both the functional, aesthetic value of a creativework and the monetary value that derives from the potential to resell it.

World’s Strongest Security

A digital product’s persistent resale value benefits suppliers as well as consumers, andin a way that is not true of physical products. All digital products are particularly vul-nerable to for-profit counterfeiting and for-fun public redistribution. Cryptographictechniques and key protection features are used to defend against counterfeiting andpublic distribution of both DRM files and DPP files. Given sufficient effort and re-sources, security features can always be defeated. We can certainly design DPP secu-rity to attain the same state of the art as DRM security, but it is not possible to guaran-tee that it will be more secure than any DRM system. Nevertheless, DPP has a distinctand powerful advantage over any DRM scheme: DPP is designed primarily to protectthe interests of the consumer and is specifically designed to avoid any restrictions onconsumer behaviour. Therefore, consumers have no motivation for defeating DPP se-curity; moreover, they have a vested interest in maximizing the security of DPP. Why isstrong DPP security important to users? Because DPP security protects the real mone-tary value of the DPP that they own. That value is explicit and measurable simply bychecking the going price on the used DPP market.

Those who fear the existence of a used digital content market should considerwhich is worse: a world in which all new and used content was legitimately boughtfrom original vendors, or a world without used content in which only a small fraction

�� : �� 63of circulated content is paid for at all.

The safest are those with the least enemies. To avoid enemies, make only friends.If you want customers to accept your security, ally with them by making sure that itprotects them too.

DPP Structure and InfrastructureDPP is composed of encrypted files, keys, certificates, and URLs to locate those certifi-cates. For consumers to have and own DPP there must exist the following elements ofDPP infrastructure: (1) a DPP standard, (2) media players, (3) product items (4) certifi-cate banks, (5) certificate mints, (6) DPP ownership license agreements, and (7) DPPgovernance. We will examine each of these components in some detail, but first wewill look at the role of two more ownership attributes – privacy and autonomy.

Design Foundation of Privacy and AutonomyNothing more vividly separates DPP from DRM than how DPP protects the privacyand autonomy of the customer. They play a central role in shaping the implementationof DPP and its infrastructure. The philosophy of DPP is a rather libertarian one, be-cause DPP needs to operate with the least possible coordination of central authorities.

• Private individuals define the boundary between public and private, based on whothey trust to honour their personal property rights. Private sharing depends uponinter-personal trust rather than monetary accounting, whereas public distribution isdistribution to strangers, typically based on monetary exchange.

• Any private use that could be made of a plain-file content item can also be sup-ported for DPP items by a DPP media player.

• Whenever multiple media players share the same DPP item, they do not discrimi-nate sharers from the owner.

• When multiple users share the same media player, the player may implement secu-rity features that selectively disable access or usage features based on who is usingthe player.

• When a DPP item is shared from one media player to another, the DPP item isshared without discrimination; the giver may not impose any usage or sharing re-striction upon the receiver. In particular the GIVE and TAKE buttons of the receiverare fully functional.

• No feature of the DPP infrastructure shall attempt to track or record the GIVE,TAKE, or other functions of any player, nor provide to any sharing player forensicinformation intended to identify who might issue or receive a GIVE or a TAKE,beyond that which is required for the secure and successful completion of GIVE andTAKE functions.

• GIVE and TAKE functions between locally-connected players do not require Internetaccess to complete. Multiple simultaneous TAKEs (ultimately resolved by Internetaccess) err by leaving the DPP item playable in the interim.

This same list can be abbreviated with slightly less precision but much greater clarity:

64 �� • People define “private” for themselves.

• DPP is as flexible as a plain file, but more valuable.

• DPP is untitled property; ownership is a social judgment.

• You control your own player.

• You can’t restrict other peoples’ players.

• DPP is not a policeman, spy, or big brother.

• DPP works without Internet access.

IEEE P1817 Standard for Consumer-ownable Digital PersonalPropertyThe IEEE P1817 Working Group is a committee of volunteers that was formed in Julyof 2010. They are creating the P1817 Standard for Consumer-ownable Digital PersonalProperty. The Working Group has neither the resources nor the authority to implementand deploy DPP; rather, its job is to define DPP and publish that definition as an open,global standard. It’s mission is well expressed by its Project Authorisation Request(PAR), which was approved by the IEEE in May of 2010. The answers below are takendirectly from the PAR:

Q: What is the purpose of the Standard?

A: The purpose of the DPP standard is to create a supplier- and platform-independentform for copyrighted works for sale to consumers as the digital equivalent of tangi-ble personal property; providing significant barriers to counterfeiting or to rippingand illegal file sharing, while enabling consumers to privately own, use, and sharetheir purchases without sacrificing the autonomy and privacy that they associatewith personal property ownership.

Q: What will the Standard specify?

A: This standard describes methods, algorithms, protocols, and governance mecha-nisms involved in the cryptographic protection of copyrighted works from publicredistribution and in the preservation of consumer autonomy and privacy.

Q: Why is the Standard needed?

A: Consumers need a purchasable form of copyrighted works that is consumer-ownable in the same sense that printed books are ownable. They want their dig-ital property to be privately usable, sharable, and transferable without restrictions,and to be vendor-independent and de-tethered from suppliers. Suppliers need analternative to unprotected files when they choose to sell copyrighted works withoutusage restrictions. They need a consumer-ownable form that protects the singularnature of each sold item and that prevents those items from being shared with thepublic. The standard will resolve the problem of simultaneously satisfying theseconsumer and supplier needs.

Q: Who are the stakeholders in the Standard?

�� : �� 65A: Stakeholders for the standard include authors, artists, and creative work copyright

holders; content developers, distributors, and vendors; consumer device and playerapplication makers; networking and storage providers; consumers and consumerrights advocates.

Visit http://standards.ieee.org/develop/project/1817.html for more informationabout the P1817 Working Group.

Media PlayersThe most visible requirement for consumers is the DPP-aware media player. It isthrough media players that all digital content is experienced by consumers. Users willdiscover that they have the right and the means to share their DPP because their mediaplayers will present them with a GIVE button and will help them to designate the me-dia players of others as sharers. They will discover that they can terminate sharing andclaim or reclaim ownership because they will see a functioning TAKE button. Theywill learn to exchange content using the GIVE and TAKE buttons. They will quicklyrealise that sharing with the untrustworthy will put their property at risk. Throughthe player they will come to value DPP above all other types of content for its value associal currency, enabling the communication of things more valuable than money suchas kindness, generosity, trust, and respect.

New DPP content uses, which “service” license agreements have not allowed, willbe made possible by the continual evolution of media players with new features andfunctions. The media player business, including both the hardware platforms and thesoftware applications and interfaces, will find unlimited opportunities to innovateand compete once high-value DPP content becomes available, unfettered by licenseagreements written to explicitly forbid any new features or usage scenarios.

The promise of meaningfully ownable DPP can only be fulfilled by the broad adop-tion of DPP compatibility across all market segments in support of all media types. Anarrow, limited deployment of DPP players will not do. In other words, DPP mediaplayers will not be a new wave of players that compete with existing ones, but will beupgrades of existing players so that they understand the structure and function of DPP,just as suppliers normally upgrade their player products when new media types andformats emerge and gain popularity.

The DPP media player will be designed to conform to the eventual IEEE 1817 stan-dard, and to the security conformance and robustness requirements of the eventualDPP governing body.

We can call the DPP-compatible media player the GIVE & TAKE player, with at leasttwo new buttons. Use is the PLAY button. Inclusion is the GIVE button. Exclusionis the TAKE button. Unfettered use and customisation are any new functions or fea-tures that player makers can think of. Transfer, whether a resale or gift, is just a GIVEfollowed by a TAKE. Responsibility derives from the shared, risky power to TAKEvaluable, resellable content. Privacy and autonomy are protected by the design of theoverall DPP ecosystem, including the security features of the GIVE & TAKE player.

DPP ItemsA DPP item consists of (1) an encrypted file, (2) a decryption key, and (3) a URL point-ing to (4) a DPP certificate of authenticity that resides in an online DPP bank account.All but the DPP certificate are delivered to a consumer upon first sale by the origi-

66 �� nal content vendor, whereas the certificate is delivered instead to an online DPP bankaccount designated by the content purchaser.

Encrypted File

The encrypted file contains the data which, if it were not encrypted, would constitute afreely playable, plain-file content item. The creative work is fully embodied in this file.There is no technological or legal constraint on the copying, storage, or transmissionof the encrypted file. The absence of restrictions on encrypted file copies is what em-powers people to make their own backups. Such backups are necessary whenever theowner opts not to employ a service to store and maintain backups for him. The optionto provide such services and to take advantage of them is allowed and encouraged.

When a GIVE button is depressed, the source player may either deliver a copy ofthe encrypted file to the receivers or may provide them with a URL from which thecontent can be downloaded. When a TAKE button is clicked, copies held by formersharer players remain; they become unusable because former sharers erase their copiesof the decryption key. Thus, restoration of sharing by a GIVE after a TAKE does notnecessitate that the encrypted content be refetched by the restored sharers.

Decryption key

The decryption key is the unguessable quantity that must be known in order to de-crypt and use the encrypted file. The key is delivered by secure means to the mediaplayer of the purchaser. The media player is designed to protect the key from discov-ery. The player applies the key to the encrypted file in order to make use of the contenton behalf of the player user.

When a user selects players to share with and clicks the GIVE button, GIVE mes-sages containing the decryption key and the DPP certificate URL are transmitted tothose players. Decryption keys may be erased in order to thwart attacks by maliciousagents who might try to discover them. Keys are also erased whenever a player re-ceives a TAKE message from another DPP player for the corresponding DPP item.

The key is never used by content suppliers to control behaviour or impose restric-tions on users, suppliers cannot revoke or erase it from media players, it remains en-tirely in the possession and under the control of DPP users, and users can create a newcopy of the key for every player that shares the DPP item.

Certificate URL

The DPP player may request a new copy of the decryption key by sending a key re-quest to the bank account holding the DPP certificate. If the certificate URL is valid,then the key is provided to the player. An invalid URL indicates that a TAKE was suc-cessfully executed. Whenever a user activates the TAKE button, the player sends acertificate MOVE request message to the DPP bank where the certificate is stored. Ifthe message indicates that the certificate belongs in the same bank account, then theURL is changed to a new, unguessable value; otherwise, the certificate is transferred tothe new bank account designated by the MOVE message. In either case a new URL isreturned to the player that issued the certificate MOVE request (the one that issued theTAKE), and only a single DPP certificate survives the transaction.

DPP media players periodically check to see if their certificate URLs are still valid;in particular, the URL is verified as soon as possible after a player receives it from

�� : �� 67a GIVE message issued by another player, or as soon as is convenient after a DPPitem is selected or queued for play. Whenever a URL is determined to have becomeinvalid, the player immediately erases its securely-stored copy of the correspondingdecryption key, making the content item unplayable by that player and de-activatingthe corresponding GIVE and TAKE buttons.

If a player receives a TAKE message from another player after issuing its own TAKEmessages for the same content item, then it delays erasure of its copy of the decryptionkey until it can verify whether its MOVE message to the online bank was successfulor not; otherwise, receipt of a TAKE message from another player disables the contentitem immediately.

DPP Certificate

A DPP certificate is always and only created and issued by a secure DPP mint, as au-thorised by the DPP governing body. Every DPP certificate is unique. It contains infor-mation about the content item including identifying information about the copyrightholder, the copyrighted work, and the DPP mint, while containing little or no informa-tion about the original purchaser or subsequent takers. It also contains the decryptionkey that is unique to the particular DPP item of which it is a part.

A DPP certificate exists to establish and preserve the authenticity and singular-ness of a particular DPP product item. As the basis for the economic integrity of theentire DPP ecosystem, DPP certificates always reside within user accounts in onlineDPP banks. Certificates may be renamed within an account (ie, given a new, unguess-able URL), or they may be moved from account to account or from bank to bank inresponse to TAKE button clicks by users, but they are never replicated and never existoutside of the DPP banking system.

DPP Certificate Banks

DPP banks are online services. They are responsible for defending the integrity of theDPP ecosystem, and must prevent the injection of forged certificates into user accountsor the duplication of DPP certificates. Users select the DPP bank of their choice andestablish an account.

The DPP ecosystem works equally well whether or not people keep their certificatesin their own account or in the account of a family member, of a friend, or even of abusiness entity such as a vendor of DPP content items. However, the holder of theaccount can look inside it, and can see which certificates are held within it. If a user’splayer or players are lost, damaged, or somehow corrupted, only an account holdercan rediscover the valid certificate URLs by accessing his online account.

In addition, and for protection of one’s personal privacy from observation by con-tent suppliers or others, establishing and using a personal DPP bank account protectsthe privacy of the consumer. This eliminates the possibility of monitoring of certifi-cate interactions and movement by anyone other than the account holder. For thoseinterested in trading private information for services, content vendors might offer toprovide certificate accounts to their customers for free in exchange for the power theywould have to observe certificate use.

68 �� DPP Certificate Mints

How does a DPP item come to exist? The content vendor can create files, keys, andURLs, but the vendor cannot create its own certificates; an authorised and secure DPPcertificate mint must issue the certificate to the vendor. Why? DPP certificates areanalogous to money. Each certificate represents a unique and singular product item,legitimately produced and sold by the rightful holder of the copyright. The certificate(and therefore the content item) must remain singular even after the vendor and copy-right holder lose the ability to control or observe its location and usage, and even afterthe vendor and/or copyright holder cease to exist. Counterfeiting a certificate shouldbe very, very hard, injecting it into a DPP bank should be even harder, and avoidingdetection of duplicates and forgeries should be harder still.

Content owners purchase certificates from a DPP mint and have them depositedinto the bank account of a DPP vendor. Content purchasers (consumers) transfer cer-tificates from the account of the vendor into their own account as part of the purchasetransaction. Once created, DPP certificates continue to exist until and unless an au-thorised account holder accesses the account and instructs the bank to destroy thecertificate.

Ownership License Agreement

The ownership license agreement is a boilerplate end-user license agreement intendedto apply to any and all sold DPP products. It is the legal contract that grants to con-sumers the rights of personal ownership, which go beyond what could be inferredfrom copyright law. The P1817 Working Group is considering whether the ownershiplicense should be a formal component of the eventual IEEE 1817 standard, or whetherit should come from a separate governance organisation.

Since there is no generally agreed upon legal definition of digital personal prop-erty ownership, how can anyone claim that DPP is legally ownable? We face a sort of“chicken and egg” problem in that the law cannot create formal protections of digitalproduct ownership without a legal definition of that ownership, any more than trafficlaws could have been written before there were automobiles and systems of streets andhighways to support them. Digital content services have faced a similar problem withcopyright law. Taken literally, copyright law would label virtually all digital contenttransmission, storage, processing, and presentation as acts and instances of infringe-ment. The standard escape mechanism is achieved through contract law; terms of useand end user license agreements call out exceptions under which copyright holdersgrant rights that copyright does not. Copyright holders, through license agreements,can permit whatever digital content usage that they may choose. In other words, DPPdoes not need copyright law to catch up to it; practical, de facto consumer ownershipcan be enabled by employing a boilerplate “ownership” license agreement, voluntarilyapplied by vendors to the sale of DPP in exchange for the powerful claim that theirproducts are truly consumer-owned.

It will be some time before it will be possible for legal systems to arrive at a shareddefinition for consumer ownership of digital products. Meanwhile, a de facto state ofownership that satisfies consumer desires can be achieved using the ownership licenseagreement. Legally, DPP is licensed; practically, it is owned.

�� : �� 69Governance OrganisationThe DPP ecosystem requires that copyright holders, content vendors, media playerproducers, mints and banks adhere strictly to a set of rules and requirements. Multi-vendor, widely deployed, de facto standard content protection systems (eg, DVD CCA)accomplish this by forming consortia, alliances, and other governing bodies, then re-quiring that participants sign legal contracts with those bodies, obligating each otherto conformance. For this consumer-focused effort to enable ubiquitous consumer own-ership, the board of directors for the governing body or bodies should be required toinclude representation by organisations committed to the interests of consumers.

Challenges to DPP DeploymentThe formation of a standards committee is no guarantee that DPP will come to exist.Before DPP can happen, many different groups and stakeholders must achieve certainmilestones: They must become aware that consumer ownership of digital products iscurrently unavailable and that such ownership is feasible. They must determine thatDPP is in their best interest and in the best interest of society. They must recognisetheir role in enabling consumer ownership, and they must take action to bring it tofruition. Emergence of DPP may be likely over the long run, simply because the ab-sence of ownership is at the root of so much dysfunction in the digital marketplace,but in the short run the odds are against it. Still, that is no reason not to try. Mean-while, let’s consider a couple of sources of obstacles to the birth of digital personalproperty.

Dangerously Disruptive IdeasUpton Sinclair said, “It is difficult to get a man to understand something, when hissalary depends upon his not understanding it.” Existing, profitable companies arepoorly equipped to recognise and exploit disruptive new technologies, even compa-nies that were founded on revolutionary ideas. Established, successful companiesknow what they are doing. They plan out their future and know where they are go-ing. Unavoidably, their plans cannot account for unanticipated breakthroughs. Almosteveryone in the company is paid to make sure that the plan is carried out – a plan un-perturbed by new insights. Therefore, when a disruptive idea appears – an idea thatcould invalidate the current plan – the natural reaction of executors of the plan is toignore the new idea, to doubt it, to fear it, and to silence it. Generally speaking, onlycompany leaders, and only the best of them, are both immune to the mythology thatthe plan is perfect and brave enough to explore the possibility that the new idea couldlead to a better plan.

In spite of our millennia of experience and success with markets and economiesbased upon tangible personal property, the idea of digital personal property is veryhard for businesses to embrace because it is new, revolutionary, and disruptive. Toembrace DPP is to rewrite and rework business plans and market strategies. DPP istherefore hard to sell to established companies.

One way to overcome the fear of disruption is to demonstrate and prove viabilityand profitability through a small-scale deployment, perhaps executed by an inde-pendent group within a larger company, by a separate and smaller company, or by astartup venture. A second way is to sell directly to visionary leaders, but this requires

70 �� that the promoters gain access to those leaders. A third way is to publicize the ideawidely enough to establish a public consensus of the value and desirability of the ideaso as to attract the attention of the visionaries who have the power and the courage topursue it. Any of these approaches could result in successful DPP deployment.

The Peacemaker’s DilemmaAnother similar obstacle to popularizing and deploying DPP is what could be calledthe “peacemaker’s dilemma”. A cyberspace struggle is in progress – a sort of digitalwar – between defenders of copyright and defenders of consumer rights. You may be awarrior in that struggle. DRM, for better or worse, is presently the first line of defenseagainst digital copyright infringement. Elimination of DRM is the primary mission ofmany who seek to defend consumer rights. On both sides, warriors like yourselvescontribute to the war machine with their technical, legal, political, managerial, andleadership skills. Some of you have become deeply committed to the effort and com-fortable in your positions. On the other hand, some defenders of copyright have seri-ous reservations about a war whose rhetoric tends to characterise many or most of ourfellow humans as amoral or immoral adversaries. Some defenders of consumer rightsare uncomfortable with rhetoric that not only resists draconian expansion of copyrightbut advocates its weakening or even suggests its elimination.

The peacemaker’s dilemma is that it is extremely difficult to sell peace to warriorsand combatants. The job of warriors is to win the war. All of their efforts are concen-trated on winning, and on defeating their opponents. When your job is to win ratherthan to find peace, objectivity and empathy are counterproductive to your goal andtend to be ignored.

The establishment of digital personal property rights is a middle ground that disre-spects neither the freedom of individuals nor the value of copyright. DPP is a plea forpeace. The most common reaction by warriors on either side of the struggle is to re-ject DPP, even though the common reaction by consumers has so far been positive andsupportive. Civilians are far more likely to plead for peace than combatants. This leadsus to the conclusion that the audience most likely to call for DPP is the public. Theproblem is that the public is largely unrepresented in relevant discussions. Is it reason-able to hope that consumer advocates might be in a position to make DPP a reality? Isthere a way for consumer advocates to hear the message of DPP from the perspectiveof the civilian or the peacemaker, or are they fixed as warriors in the struggle?

Conclusion – A Causal Connection to PiracyConsider this thesis: The absence of consumer-ownable digital personal property is aprimary cause of unauthorised content usage – so-called content piracy. The prolifer-ation of ripped, DRM-stripped media files among the public, and their casual accep-tance of it, is not the result of some global decline in morality as some have suggested.It is a result of a cyberspace marketplace that denies the fulfillment of basic humanneeds (the autonomy and privacy of personal property). And that unfulfilled need ex-ists in the same cyberspace where it can be trivially easy for those unsatisfied peopleto satisfy themselves by converting DRM files into plain files. That self-satisfaction isfed by resentment against content owners because they seem too greedy and untrust-ing, and those suppliers react by ever more draconian attempts to thwart not-for-profitcontent sharing. The solution feeds the problem. There is no end in sight.

�� : �� 71This leads us to a second thesis: Introducing digital personal property to the cyber-

marketplace will slow, halt, or reverse the growth in unauthorised content usage. Wecan’t know for sure whether the answer is “slow”, “halt”, or “reverse”, but certainlyDPP can’t be any worse for the marketplace than today’s non-solution.

DPP represents a rare opportunity for consumer advocates to promote a techno-logical solution to content piracy, rather than to just plead for content owners to quitfighting so hard. We can’t know until we try, but increased public awareness of a po-tential solution might inspire some visionaries to take the leap of faith and give thepublic what they have wanted all along.

All we need is a little GIVE and TAKE.

B Broadband

3 Global Consumer Survey onBroadbandBy Jeremy Malcolm and Elyse Corless

A�� A global survey on broadband Internet was administered to consumersin 40 countries, in 5 languages, drawing over 9,000 responses. The survey sought toelicit information about the biggest problems that faced consumers of broadband Inter-net services. This would guide the development of a global campaign to hold broad-band service providers to account for their observance of consumer rights and broaderhuman rights online.

The results of the survey indicate that home broadband Internet access has becomeby far the dominant method of Internet access for respondents to the survey, but threebroad areas of concern stand out.

First, is that Internet speeds are often slower than advertised, and in many casesunpredictable.

Second, is the excessive cost of Internet access in locations that are not well servedby a number of competing broadband providers. Even in locations where competi-tion does exist, consumers are kept from taking advantage of it by lock-in provisions intheir service contracts.

Finally, when consumers complain to their Internet providers about speed orservice problems, a majority are unsatisfied with the handling of their complaints.

This paper presents highlights of the research, and concludes by outlining a possi-ble global campaign through which Consumers International would lead its membersin addressing each of the three problems that the research has uncovered.

1 Introduction

Broadband network access is a technology that has already had far-reachingeffects, but is likely to be even more significant for consumers into the future as itbecomes ubiquitous. Broadband is indeed becoming not simply a communicationstool, but a prerequisite for consumers’ full participation in civic and cultural life.

For example, in many countries, a range of government services are geared primar-ily towards those with Internet access, and are relatively inaccessible or inconvenientfor those without. In commerce, often the lowest prices for items such as airline ticketsare only available for online purchases. Telephone call centres and counter staff are

76 �� being replaced by online support centres. Students are assumed to have broadband athome for completion of school assignments. And new forms of cultural disseminationsuch as streaming video are accessible only through broadband Internet.

In the future, we cannot even predict how much more intrinsic broadband accesswill be to everyday life. It is fast becoming an essential service, like access to electricityand water. Consumers worldwide are even coming to regard broadband access as afundamental right.1

Accordingly in 2011, Consumers International commenced a new global programmetitled “Holding Broadband Service Providers to Account,” aiming to empower con-sumer organisations around the world to demand more equitable and accessiblebroadband service offerings, respecting consumers’ rights and broader human rights,as a necessary condition of achieving a socially-inclusive information society.

The first phase of this programme, conducted during 2011, was aimed at discov-ering exactly what are the most problematic issues that confront consumers in theiraccess to and use of broadband networks. The results of this research will feed into thesecond phase of the programme in 2012, when Consumers International will developand pilot a global campaign to address the issues that we had uncovered.

Drawing from CI’s experience in conducting a global survey on access to knowl-edge in 2009-2010,2 a hybrid method for conducting the research was adopted. Thisgave members a choice of gathering data using an online survey of broadband users,or face-to-face interviews or focus group meetings with users, or by compiling existingsurvey data on broadband issues from third-party sources. Each member was requiredto use at least two of these approaches, and some used all three. In addition, all mem-bers were asked to provide a research report on the legal and regulatory environmentaround broadband in their country.

This interim report covers the results of the online survey only. The results of theinterviews, focus group meetings and research reports will be presented at the meet-ing “Consumers in the Information Society” at which this report is launched, as wellas being incorporated into later outputs of the broadband programme, including aforthcoming broadband advocacy manual.

As such, the results of this report are biased towards those countries that empha-sised the online survey in their research plans: in particular, the United States, Braziland the United Kingdom. They are also biased towards those countries in whose lan-guages the online survey was available (English, French, Spanish, Portuguese andIndonesian). Even so, enough responses were obtained from all world regions, includ-ing developing countries such as India, Kenya and Indonesia, and least developedcountries such as Bangladesh and Nepal, to provide a sound preliminary indication ofthe appropriate focus areas for our upcoming global campaign.

Whilst this interim report is not intended, and should not be taken, as a reliablestatistical picture of broadband access and usage worldwide, there are neverthelessalready some very clear findings that deserve attention. An outline of some of these,emphasising global and regional trends, is presented below.

1 British Broadcasting Corporation. “Four in five regard internet access as a fundamental right: Global poll,2010” (2010), http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/08_03_10_BBC_internet_poll.pdf.

2 Consumers International. Access to Knowledge for Consumers: Reports of Campaigns and Research 2008-2010.Kuala Lumpur, 2010, part I, available from http://A2Knetwork.org/survey.

�� : �� 772 HighlightsAll around the world, more consumers connect to the Internet at home than anywhereelse, and most of those connections are broadband. As many as 97% of our respon-dents had access to the Internet at home, and 83% of those home connections were atbroadband speeds. These consumers are also remarkably well-informed, with only 2%of them uncertain about whether their home connection was broadband or not.

The biggest complaint that consumers have with their broadband providers is thatthe speed of their connection is either consistently or inconsistently slow – and oftenthey were not clearly informed of the real speed of their connection when they signedup. The most vociferous complaints come from the customers of two of Brazil’s largestISPs, Telefônica and Oi Velox, who were also reported as providing the world’s mostunreliable Internet connections.

Moreover, lack of competition has driven up the prices of Internet services, particu-larly in North and Latin America, where users pay almost 50% more for their monthlyInternet access than those in the other regions. Even where adequate competition doesexist, users are often impeded from switching to a more affordable broadband plan be-cause they are locked in to their current provider by contract. Over 40% of consumersare prevented from switching providers either by lack of competition or lock-in.

Our survey shows that consumers are not shy to complain when their Internetconnection is not up to scratch. But unfortunately, those complaints are very badlyhandled on average. No less than three quarters of those who complained about speedended up dissatisfied or very dissatisfied with how their complaints were dealt with.Almost as badly handled were complaints about technical problems and billing.

3 Detailed resultsAs at close of the online survey on 31 December 2011, there were 9,092 total responses,6,995 of which had been completed in full, and the remainder of which only partiallycompleted. Typically, those who did not finish the survey completed about half ofit before giving up, which suggests that it was too long to sustain their attention.Nonetheless, over three-quarters of respondents did perservere to the end, and thiswas more than sufficient to provide some useful results.

Except where otherwise noted, we have omitted incomplete results from the statis-tics reported here. Some additional questions were asked of UK-based respondentsonly, at the request of our participating UK member, but these are not analysed hereeither. We have also omitted “outlying” or implausibly extreme responses. In somecases – such as the respondent who claimed to be 0 years of age, and another whoclaimed to be 89,770,000 – these outlying responses were probably given to protecttheir privacy. Others – such as those who claimed to be paying thousands of dollarsper month for their Internet access – likely misunderstood the question (in that case,that we had asked for the amount to be expressed in US currency).

The results were analysed using R, which is an open source statistical environmentand programming language. The source data is available from CI on request to facili-tate further analysis.

78 �� 3.1 Demographics23 CI members agreed to participate in the first phase of the project. In the end due tothe general availability of this survey online, responses were received from consumersin 40 countries, though only 14 of these drew more than a hundred responses. Over-seeing the work across the world were three regional coordinators drawn from acrossCI’s membership: Veridiana Alimonti of IDEC for the Americas, Marzena Kisielowska-Lipman of Consumer Focus for Europe and Africa, and Jonathan Gadir from ACCANfor the Asia Pacific and Middle East region.

The results were reasonably evenly spread across those regions, except that therewere so many results from the Americas that we have split that region back into twofor analysis. Amongst those who specified their location, 32% of the completed re-sponses were from North America, 31% from Latin America and the Carribean, 16%from Europe and Africa, and the remaining 21% from Asia Pacific and the MiddleEast.

Most respondents chose to reveal their gender: 70% were male, 30% female. Theiraverage age was 45 years. From this it can be seen that the survey was not, nor was ex-pected to be, a representative sample of the general population. As with our 2009-2010

survey on access to knowledge, the survey was undertaken by our member organisa-tions, most of them without the assistance of a specialised survey firm. Participantswere gathered by a variety of means: some drew from their own mailing lists, whileothers used the Web, Twitter or word of mouth.

But despite the limitations of this method of surveying, the main counterveilingbenefit is that it simultaneously builds the capacity of our members on broadbandissues, particularly for those who also engaged in face-to-face interviews and focusgroups with consumers. This will stand these members in better stead to contribute toour our global campaign when it is pilotted at a national level in 2012.

3.2 Internet accessAs noted above, one of the clearest findings from the survey was that for the memberswe surveyed, there is no substitute for broadband Internet access at home. As thefigure overleaf shows, for the consumers surveyed, substantially more – about 97% –access the Internet at home rather than at work (64%), on a mobile device (57%) or at apublic access point such as an Internet café, library, telecentre or the like (50%).

Furthermore, from amongst the consumers who had access to the Internet by morethan one means (for example, both at home and at work), 72% reported that theirprimary access was at home.

Tellingly, although half of respondents had access to the Internet through a publicaccess point, less than 2% of those who also had the ability to access the Internet byany other method chose the public access point as their primary Internet access. Thisillustrates that although public access points are a vital lifeline for those without anyother means of accessing the Internet, for most consumers they are exactly that – a lastresort. Nonetheless, they are the cheapest way of connecting to the Internet, at onlyabout 30% of the average monthly cost ($15) of access at home ($49).

Another striking result illustrated by the figure is the extent to which broadbandconnections are now the dominant class of Internet access for consumers in whateversetting. The proportion of broadband connections is the highest at home – in fact 83%of those who accessed the Internet at home did so over broadband, averaged over allregions. But even amongst those who accessed the Internet on mobile devices, well

�� : �� 79

over twice as many did so at broadband speeds than at lesser speeds.Also importantly, consumers in general seem to be well informed about whether

their home Internet connections are broadband or not; only 2% of home Internet userswere in any doubt about this. For users of mobile devices however, this figure rosesubstantially to 14%, perhaps indicating that mobile phone companies are not advertis-ing the properties of their Internet packages as well as home Internet Service Providers(ISPs) are.

When we focus on developing countries rather than the global set of respondents,the picture is a little different. For example, the proportion of respondents who de-pended upon mobile devices or public access points as their primary Internet accesswere highest respectively in Kenya (at 25%) and Vietnam (at 21%). The region with thelowest penetration of home Internet access (81%) was also that with the highest pro-portion of responses from developing countries, namely Asia Pacific and the MiddleEast. Additionally, Internet connections were shared amongst more people in that re-gion than any other. For example in North America, only 8% of connections are sharedwith more than four people, but 21% in Asia Pacific and the Middle East. Nonethelesseven in this region – where the proportion of home broadband access is lowest at 73%– this still amounts to a sizeable margin over slower forms of access.

Overall, then, it can be concluded from this section of the survey that the dominanceof home broadband as a method of Internet access validates Consumers International’schoice of focus for our campaign, “Holding broadband service providers to account.”

80 �� 3.3 Competition and choiceOverall, users in North and Latin America paid almost 50% more for their monthlyInternet access than those in the other regions. For example, an average United StatesInternet user paid about $62 per month, and an Argentinian $39, whilst a Briton paid$29, and an Indian only $21. The figure below shows only the ten most popular ISPsrecorded in our survey, along with the respondents’ ratings of how much value formoney they provided, ranging from “very poor” (on the left) to “excellent” (on theright). There is also an “other” result that aggregates the ratings given to all otherISPs. Consistently with the survey’s quantitative results, all of the ISPs rated as provid-ing poorer value for money than “other” are North or Latin American. All those ratedbetter are European. (Although not shown on the chart, major Asian and African ISPssuch as Airtel (India), SK Broadband (Korea) and Access Kenya also fared somewhatbetter than their American counterparts.)

This seems to be attributable in part to a serious lack of effective competition inmany American broadband markets. Over a third of North American and Latin Amer-ican users reported that they were impeded from changing their Internet providerbecause of a lack of competitors offering equivalent services. This compares to only14% who made the same complaint in Europe and Africa, and 19% in Asia Pacific and

�� : �� 81the Middle East. Although not reported here, the preliminary results of our membersurvey on broadband will bear out this observation of lack of effective competition,particularly outside of urban areas.

Offsetting this however, consumers in Europe and Africa, and Asia Pacific and theMiddle East, were more likely than their American counterparts to be locked in totheir Internet provider by a fixed-term contract. 30% of consumers in the former re-gions reported that fixed contract terms prevented them from shifting ISPs, which isalmost twice as many as those from the Americas who made such a complaint. Inter-estingly, only 7% of consumers were affected by both lack of competition and contrac-tual lock-in, indicating that most ISPs will only bother locking their customers in tolong-term contracts if competitors exist to tempt those customers away. Together, thesetwo factors affected over 40% of consumers.

The next most important factor that impeded consumers from switching Internetprovider, quite consistently across all regions, was the bundling of several servicestogether. Easily the most common bundle worldwide is phone line rental, which about30% of consumers pay together with their Internet service; unsurprisingly, given thatInternet services were traditionally delivered over telephone lines. Also very popularin Latin America is the inclusion of a pay television service – with more than one infive consumers subscribing to such a bundle, which is almost twice as many as in theother regions. In Asia Pacific and the Middle East, almost 16% of consumers wererenting or paying off an access device such as a handset as part of their subscription,which is again almost twice as many as in the other regions.

Fewer than one in ten consumers was affected by the locking of their access deviceto a single provider, but more than half of those who were affected were those who ac-cessed the Internet through a mobile device, and North America was the region mostaffected by this practice. One consumer burned by this made the very apt comment,“The vendor locked device works only with their network whereas they charged fullcost of the device while purchasing the connection”.

3.4 Information and service qualityOur survey next asked respondents about what information they received when sign-ing up for their Internet service, and how accurate that information was in the lightof their subsequent experience using the service. As might have been expected, mostconsumers who answered this question had received information about the cost of theservice (70%) and its speed (54%), with little variation from one region to another. Adecreasing minority of consumers were notified about other issues concerning theirInternet service, such as any applicable minimum contract term (28%), any usage capsor excess charges (17%), how changes could be made to their terms and conditions ofservice (14%), how their personal data would be used by the company (10%), and fi-nally about any Internet services that would be subject to differential treatment by theISP (4%).

As can be seen from the figure overleaf, the information given about the speed ofthe service tended to be less accurate than that about the other topics, though only16% described it as “very inaccurate”. However this did vary by region, with about20% of consumers from the largely developing regions of Latin America and AsiaPacific and the Middle East complaining of very inaccurate claims about speed. Thisis as against only 7% of consumers across Europe and Africa who were dissatisfied forthe same reason.

82 ��

Corresponding to this result, the survey also found slow Internet speeds to be oneof the major problems suffered by Internet users from the affected regions. Lookingat the major ISPs that were earlier listed in our figure, extremely high levels of dissat-isfaction exist with the speeds provided by the Brazilian broadband ISPs Telefônicaand Oi Velox – reported as a “serious problem” by no fewer than 39% of Telefônica’ssubscriber respondents, and 44% of Oi’s. A separate question asking for respondentsto rate their ISP on the speed of their connection returned a similar result, with 36%and 41% respectively rating Telefônica and Oi Velox “very poor”. No other ISPs in oursurvey, small or large, received such strong condemnation as these.

The travails of Telefônica and Oi Velox customers don’t end with their complaintsabout speed. These two ISPs also stand out as giving their customers the most trou-ble in establishing a connection to the Internet in the first place (respectively for 30%and 34% of respondents, against an industry average of only 13%). With surprisingrestraint, only 21% and 27% of their long-suffering customers gave Telefônica and OiVelox a “very poor” rating for “reliability of connection” in response to this, but thatwas still 2.7 times worse than the industry average!

Other than speed and connection issues, most other technical problems createdless concern for most. A majority reported few or no problems in accessing particularsites and services – which was a question intended to cover the mysterious failurescaused by blocking or filtering (discussed in section 3.7). Fewer still had trouble usingInternet software (though some complained that their ISPs did not support softwarefor operating systems besides Microsoft Windows, such as Linux and Mac OS X).

From this section of the survey, then, we drew a very clear message that customersare concerned that the speed of their Internet connection is described accurately, andthat it is delivered reliably. Consumers can be very unforgiving to ISPs who do notdeliver on this basic promise.

3.5 Complaint handlingConsumers were not taking these problems with speed and reliability lying down.In the first instance, more than two-thirds of consumers who encountered problems

�� : �� 83sought technical support from their Internet provider. When this failed – only a quar-ter of consumers were completely or substantially satisfied with the technical supportthey received – many went further and lodged a complaint.

The top ground of complaint was about slow speed – either in general, for 28% ofthose who complained, or for another 13% the slowing of access at certain times orwhere the user’s download allowance had been exceeded. The second most commonground of complaint, made by 20%, was over other technical problems that could notbe resolved through technical support. In fact, more than half of those who reporteda problem or a serious problem with Internet speed or in connecting to the Internetfollowed up with a complaint to their ISP. Typical comments included:

• “Installation of my ADSL connection was a nightmare, and I was provided con-tradictory information on several occasions, had to wait on several occasions forworkmen, and could not get reasonable answers from service staff”.

• “They tried troubleshooting my computer settings, rather than admitting that manycustomers in our area had also lost connections”.

• “It seems about useless to talk to their technical support staff. They aren’t given thetools that real technicians would be given to resolve issues. And customers are notgiven access to real technicians so that we could adequately describe the issues”.

The third main area of complaint, affecting 16% of respondents, was billing. Typicalcomplaints were as to the calculation of usage charges. One respondent complainedof “charges for use of ‘excessive’ data consumption (I had no idea that was their pol-icy, much less how it worked)”. Another very reasonably asked, “My connection is avolume based connection hence I want to know and check how my balance is beingconsumed”. It is surprising how few ISPs offer such information to their customers.

Smaller numbers of complaints were recorded about changes to terms and condi-tions (8%), blocking access to content or services (4%) and a variety of other issuesincluding Internet call quality, “ping times” for gamers, difficulties in understandingforeign support staff, and the ISP’s refusal to suspend service during a vacation.

Whilst it is heartening to see consumers exercising their rights, it is disappointingto see how poorly those complaints were dealt with. Across all regions and ISPs, threequarters of those who complained about speed ended up dissatisfied or very dissat-isfied with how their complaints were dealt with. For those who complained abouttechnical problems, 62% remained dissatisfied or very dissatisfied with how thesecomplaints were resolved. For billing complaints, the figure was 54%.

This does not mean that consumers are unhappy with customer service in general.Overall, their satisfaction is actually rather evenly distributed, with as many ratingit badly as rated it well, and most rating it in the middle (this notwithstanding thedreadful results for the two large ISPs from Brazil, where 27% of consumers rated theirISP’s customer service as very poor). Rather, the customer service problems seems tobe fairly specific to complaint handling.

In some countries, it is possible to take complaints further, for example to a gov-ernment regulator (which was the most popular option for our survey respondents),an independent ombudsman, or some other dispute resolution body. But the majorityof consumers, asked where they took their complaint further, gave an answer such as“do not know where to complain”, or “no redress avenues, one reaches a dead end”. Aminority of consumers were even forced to take the costly option of going to court.

Amongst those respondents with a happier story to tell were those from Australia,

84 �� where most who took their complaint further did so to the independent Telecommu-nications Industry Ombudsman. CI believes that this kind of mechanism for quick,inexpensive resolution of Internet service disputes should be available to consumersaround the world.

In any case, something we can easily take-away from this section of the survey isthat complaint handling is an area that ISPs in general need to improve.

3.6 Use of the InternetWhat are the main uses that consumers make of the Internet? Knowing the answer tothis question was important so that we could tailor the objectives of our broadbandcampaign to meet consumers’ real needs. A summary of the results is presented in thenext figure. It is little surprise that email and general Internet browsing were respec-tively the most and second-most popular applications of the Internet. Interestingly,online banking and shopping came third, which shows that consumers are justifiedin their concern about access difficulties, as these can significantly disrupt their dailylives. Least common was publishing one’s own content to the Internet, for examplethrough a blog or by sharing personal photos and videos.

There were few significant differences between males and females for any of theseuses; the biggest being that the number of males who used the Internet for download-ing music, videos or software was eight percentage points higher than for females.Age was a much more significant determinant of use, with younger users (under 30s)more likely than older users to use the Internet for chat, streaming, downloading, so-cial networking and blogging. Remembering that the average age of our respondentswas 45, most likely the prevalence of these activities amongst the general populationis understated by our survey. For older users, the Internet was a functional way ofcommunicating and accessing information, rather than a leisure or social activity.

We also find some differences between regions. For example, online shopping andbanking is very popular in Europe and Latin America, with almost three-quartersof consumers in those regions participating, but only 43% in Asia. The reason is notimmediately clear: perhaps fewer online retailers ship to Asia? This deserves furtherstudy. North Americans are the world’s most avid contributors of their own contentto the Internet, according to our survey: more than one in five uses the Internet in

�� : �� 85this way, almost twice as many as in Europe or Latin America. Equally interestingare some of the areas in which no significant differences between regions were found:most notably, all regions reported a similar incidence of downloading music, videosand software online, by between 40-50% of online users.

Those who reported that their home Internet connections were not up to broadbandspeed were about 10% less likely to use the Internet for low-bandwidth applicationssuch as email, and even less likely to make use of high-bandwidth applications such asmaking voice or video calls (13% less likely), and streaming music or video (15% lesslikely). Whilst in some cases this may be by choice, it is important that broadband ismade available at an affordable price for all, in order that the inequalities of the offlineworld are not simply replicated online.

Most users reported little difficulty in using the Internet effectively, though 11% saidthat they could do with more training, and 6% wanted to see more content availablein their native languages, including Kiswahili and Bangla. Only 3% were impeded intheir use of the Internet by a disability, ranging from vision problems which make itdifficult to read, to lack of dexterity that impedes typing, and physical weakness thatprevents the user from diagnosing connection problems by checking cable connectionsand the like.

3.7 Net neutralityOne of the emerging issues on which our survey focussed was on net neutrality – thegeneral principle that ISPs should not interfere with the content that they deliver overthe Internet, by giving some types or uses of content priority over others for commer-cial reasons. After all, the success of the Internet has largely arisen from its capacityto democratise communications, allowing anyone to publish and receive informationat low cost. Closely related to the preservation of net neutrality is the need to ensurethat ISPs do not engage in unjustified blocking or filtering of Internet content, unlessrequired by law or consented to by the consumer.

Only 4% of users were informed that some content could be blocked, filtered, pri-oritised, or slowed down by their Internet Service Providers. Another 7% believed thatcontent or services had in fact been blocked or filtered, and another 8% felt that it hadbeen slowed down or prioritised. Another 40% weren’t sure. But only 9% of users re-ported that the lack of access to particular sites and services – a symptom of blockingand filtering – was a serious problem for them. ISPs were rated well on “access to ser-vices and content of your choice” by 32% more respondents than rated them poorly.This suggests that network neutrality, blocking and filtering issues are not yet stronglyimpacting most of the consumers who responded to our survey.

Nevertheless, some respondents did report that blocking (which is a blanket ban oncertain content, applications or services) was being conducted by some ISPs to prevent:

• The use of peer-to-peer filesharing software (in Argentina, Brazil, the Philippinesand the United Kingdom);

• Access to Usenet news groups (in the United States);

• Use of Internet phone services (in South Korea and the United States);

• Access to pornography (in Indonesia, Malaysia and Nepal); and even

• Access to certain news and political sites (in Fiji and Nepal).

86 �� As for filtering, which is the more selective removal of content based on keywords orpatterns, there were reports from several countries that this was being used to weedout spam email. So long as the consumer is informed of such filtering, and preferablygiven the capacity to opt out from it, this particular application of filtering can be be-nign and even beneficial to the consumer. By the same token, an Australian respondentreported that his ISP prevents his connection being used to send email through third-party servers, as compromised computers are often used to send spam in this way –but that the block will be removed on request.

Finally, we asked about consumers’ experiences of certain Internet content or ser-vices being either slowed down, or conversely, prioritised so as to deliver it faster ormore cheaply than other such content or services. Although this question was directedat the selective slowing of particular content or services, some consumers took the op-portunity to complain about their entire Internet connection being slowed down oncethey had reached a usage limit. One said, “I unknowingly went over my bandwidthlimit. I’d no idea there was a limit. They stopped all access and sent me an email en-titled ‘Wildblue Abuse”.’ Others reported that this practice was being used selectivelyagainst the use of peer-to-peer filesharing software – most notoriously by US ISP Com-cast, which was sued by the US Federal Communications Commission in 2008 fordoing exactly this.

As to the prioritisation of content, it was reported that ISPs were providing pref-erential access to their own FTP and gaming servers and their own branded IPTVservices (such as British Telecom’s BT Vision TV Service). Debate exists as to howmuch of a concern this practice is, but proponents of net neutrality argue that it createsa “walled garden” in which users are discouraged from accessing content other thanthe provider’s own, thereby raising barriers for other content providers. In some casesISPs were also prioritising particular third-party services – including social network-ing services such as Facebook, LinkedIn, Hi-5 and Twitter, and catch-up TV servicessuch as Australia’s ABC iView. The commercial terms, if any, behind these preferentialarrangements are not revealed to the consumer, which raises potential competitionissues.

From this section of the survey we must conclude that net neutrality, blocking andfiltering are not yet areas of prime concern to most consumers and will therefore notbe a focus of our upcoming campaigning activities. However, they do remain areas forus to monitor carefully going forward.

3.8 Internet contentSome of the content users encounter on the Internet is annoying, offensive, or evendangerous. Whilst it can be persuasively argued that dangerous content or contentthat transgresses international legal norms should be removed from the Internet atsource, for content about which values or preferences may reasonably differ, the betterapproach is to allow individual users and their families to control what content theydo or do not encounter online.

The table summarises some of the types of content that users found most problem-atic, and how they dealt with it:

• The left column describes the types of content about which the survey asked: adver-tising (including both Web and email-based), frauds and scams, offensive content(however defined by the respondent), and malware such as viruses and spyware.

�� : �� 87

How serious a problem? User filteringProvider filtering

SP 2 3 4 NP I do I can’t I don’t want

Advertising 20% 25% 25% 14% 15% 36% 28% 12% 15%

Frauds and scams 24% 20% 20% 16% 19% 46% 28% 12% 15%

Offensive content 14% 15% 19% 20% 30% 33% 28% 25% 13%

Malware 27% 19% 19% 18% 15% 62% 19% 8% 14%

• The next major column shows how many respondents described the content inquestion as a serious problem (SP), no problem (NP), or somewhere in between(most of these total slightly under 100%, due to rounding).

• The next major column shows what percentage of users filter out this content withtheir own software or device, those who don’t know how to filter it out, and thosewho may know how but choose not to do so.

• The final column indicates the respondents whose ISPs offer filtering of the contentin question – this is not exclusive with the previous column, as some users filter outunwanted content that their provider also filters.

The results reveal that with one exception, most Internet content is not filtered,either by users or by their providers. That one important exception is malware, which62% of consumers do filter out using their own Internet security software. This classof unwanted content also poses a serious problem for more consumers than any other,and is the type of content that fewest consumers claim not to want filtered.

Offensive content was a problem for the fewest users, with half of all users claimingthat it presented them with little or no problem at all, and a quarter explicitly statingthat they had chosen not to filter it – more than twice the number who had chosen notto filter any other class of problem content. Nonetheless, a third of users did voluntar-ily filter offensive content out from their Internet connections, perhaps because theirconnection was shared by younger family members.

3.9 Monitoring and enforcementOur consumer survey on broadband mainly concerns the behaviour of Internet ServiceProviders, rather than that of third-party content hosts or advertisers, or the policiesof governments, both of which lie outside the scope of our campaign. But there isone area in which all three of these actors have a major part to play, and that is inmonitoring of Internet users’ behaviour online. The Internet Service Provider is animportant intermediary in monitoring Internet users for law enforcement purposes inparticular, so it is on this that our survey focussed.

Only 17% of consumers surveyed believed that their communications over the Inter-net were being monitored by their service provider, the government, or a third party.28% didn’t think so, and the remainder weren’t sure. A typical comment made byone of those who believed they were being monitored was “I simply live under theassumption that I’m being monitored. And I don’t like that!”

88 �� This result varied by country and region: most notably, in communist Vietnam, 38%

of users believed their communications to be monitored. In Fiji, which is currentlyunder an interim military government, one respondent wrote “There was one timewhen instead of loading the website I had clicked, a page loaded with a message frommy provider informing me that my internet activity is being monitored”. A number ofUS-based respondents were concerned about their communications being interceptedby the NSA’s signals intelligence programme, ECHELON, or by the FBI’s Carnivoresoftware.

Others were worried not so much about government surveillance as about track-ing by advertisers. One wrote, “Many of the ads that appear on random pages seemto be targeted based on other pages I’ve navigated to. So if I’m shopping for mowerparts, suddenly riding mower ads populate the Yahoo Sports pages”. This respondentblamed his service provider for passing on his browsing details, but most likely theISP is innocent, and it is third-party websites that are to blame for leaking his browsinghabits. Whilst this takes the problem outside the scope of our broadband campaign,CI is separately working with the World Wide Web Consortium (W3C) on a new stan-dard called “Do Not Track” to regulate the intrusive tracking of consumers by onlineadvertisers.

Consumers are also being monitored online by copyright owners seeking evi-dence of copyright infringement, and in some countries through a cooperative orco-regulatory arrangement with ISPs, the latter will pass allegations of infringementonto their users. In our survey, as many as 12% of respondents declared that they hadreceived a warning about having accessed copyright-infringing content online. Oneof them wrote, “I was sent a letter informing me that ‘someone’ at my IP address hadseeded a torrent. Apparently one of my children downloaded an old TV show”.

In some countries that participated in this survey, such as South Korea and NewZealand, users’ Internet connections can be suspended as a penalty for repeated al-leged copyright infringement, though thankfully none of our respondents reportedhaving yet suffered that fate.

Similarly, 7% of respondents had received a take-down notice for allegedly host-ing copyright-infringing content online. Typically this was something as innocent asuploading a YouTube home movie, or even in one case a slide presentation, with copy-righted background music. In a few more cases (6%), content was taken down for in-fringing other laws or policies. One respondent wrote, “I once posted on Photobucketa rear view of a 3D nude figure I’d done. Didn’t know rear-views were a big no-no”.Once again, nobody reported actually having had their Internet connection suspendedas a penalty for their alleged misuse.

Whilst laws and policies that allow intermediaries such as ISPs to monitor and actupon consumers’ behaviour online are potentially worrying, the evidence from oursurvey does not reveal the impacts of those policies to be so serious or widespreadthat they should be a focus of our global broadband campaign. Nonetheless, we willcontinue to assess the effect of these laws and policies as time goes on, and collaboratewith other public interest voices in bringing to light any instances of their abuse.

4 ConclusionsCI’s global consumer survey on broadband was a broad-ranging investigation of alarge number of areas of potential concern for consumers of Internet access services.

�� : �� 89These included traditional consumer protection issues such as misleading advertis-ing and complaint handling, human rights issues such as freedom of expression andprivacy, security issues such as spam and cybercrime, accessibility issues such as mul-tilingualism and disability, and infrastructure issues such as access to broadband andnetwork neutrality.

The aim of this research was to identify which of these issues affected consumersaround the world the most acutely, in order to inform the development of a globalcampaign targetted at broadband service providers, that would focus on these problemissues. Additionally, our research would reveal which countries suffered most seri-ously from the identified issues, so that our global campaign could be piloted in thesecountries at first.

Based on the results of our online consumer survey, we can be confident that wehave achieved those aims. The research clearly lays out three main issues aroundwhich our future campaign could be based:

1. Internet connection speeds are unreliable, and claims made about speed are fre-quently inaccurate.

2. Consumers are forced into paying excessive prices, by lack of effective competitionor by contractual lock-in.

3. Broadband providers do not provide a satisfactory complaint handling mechanismfor consumers.

From these three points, we can identify the possible themes of a global campaign tobe developed by CI and its members to be piloted by selected members during 2012.

To address the speed complaints, at our meeting “Consumers in the InformationSociety” we will be promoting the idea of a “broadband nutrition label”, based onthe New America Foundation’s “Broadband Truth-in-Labeling” campaign of 2009.This label, which, as the name implies, somewhat resembles the nutrition label onprepacked foods, would disclose the actual Internet speeds that broadband users canexpect in a simple, hype-free format, and would encourage ISPs to back this up with aservice guarantee. Based on feedback from our members at the meeting, and drawingfrom other best practices such as Ofcom’s Voluntary Code of Practice on BroadbandSpeeds, Consumers International plans to present a template broadband nutrition labelas a cornerstone of our global broadband campaign later in 2012.

The broadband nutrition label will address the pricing problem too, by increas-ing pricing transparency. The underlying lack of competition will be more difficult toaddress, but thankfully there is a well-resourced UN Broadband Commission whosemandate is to stimulate private-sector investment and to encourage governments toprovide an enabling environment for investment in broadband infrastructure.3 CI willnot attempt to duplicate the Commission’s important work. What we can do, however,is to focus this part of our campaign upon the other main issue that prevents con-sumers from shopping around for the most competitive broadband deal: contractuallock-in. We plan to develop a series of online and off-line campaigning materials onthe theme, “Don’t Lock Me In!” to express consumers’ desire to freely choose betweencompeting broadband providers, without being tied into long-term contracts.

Finally, to address the grave deficiencies of the industry’s complaint handling pro-cedures, we plan to support selected members in countries that are badly affected by

3 See http://www.broadbandcommission.org/.

90 �� Internet service complaints, and that do not already have an accessible venue for alter-native dispute resolution of broadband complaints, to campaign for the introductionof an ombudsman service for their Internet industry, such as those that operate inthe United Kingdom and Australia. This will provide an independent, low or no-costmethod for the resolution of complaints against broadband service providers; a taskthat the providers themselves have proven incapable of adequately fulfilling.

C Consumer Rights andRepresentation in theInformation Society

4 Information and Communicationand the Rights of theWorld’s Consumers inthe 21st Century: Updatingthe UN Guidelines forConsumer ProtectionRobin Brown and Jeremy Malcolm

A�� This paper provides background to the proposed amendments to up-date the United Nations Guidelines for Consumer Protection for the digital age. Asoft-law instrument, the Guidelines provide an influential standard for the dissemina-tion of good practices in consumer protection, as a mechanism to foster and promotesocial and economic development. They outline eight areas for developing policiesfor consumer protection, which are reflected by the eight consumer rights declaredby the global consumer movement: rights to satisfaction of basic needs, safety, choice,information, consumer education, redress, representation and a health environment.

The paper outlines the current global regime of public policy developmment andregualtion relating to access to knowledge. Indicating that many of the issues of con-cern in terms of access to knowledge are essentially consumer issues it argues thatamendments to the Guidelines would form the basis for progress. The paper thendetails the proposed amendments explaining the basis for each one.

Introduction

In 1985 the UN General Assembly adopted the United Nations Guidelines forConsumer Protection. These Guidelines have had significant impact on public policyand law for the protection and empowerment of consumers across the world. Thereis now good policy and sound legislation based on the Guidelines in most countries.In his 1993 report on progress in implementation of the Guidelines the UN Secretary-General notes that both developing and developed country governments “reportedthat the guidelines had had a significant impact on their work” on consumer policy.

94 �� It remains the case though that in many countries much is yet to be done to achieveeffective administration of regulation to make markets work efficiently and equitablyto promote social and economic development.

The Guidelines outline measures to assist governments in dealing with eight issues:economic interests, standards, essential goods and services, redress, education andinformation, health and sustainable consumption. Complementing the Guidelines areeight rights of people everywhere as consumers of goods and services: to satisfactionof basic needs, to safety, to choice, to information, to consumer education, to redress,to representation and to a healthy environment.

Provisions on sustainable consumption were absent from the 1985 Guidelines andwere added on the motion of Argentina in 1999. This had its origins in the Rio EarthSummit and came to fruition after years of work coordinated by Consumers Inter-national. These amendments were always understood to be “a first step”; the UNSecretary-General noting that in order to ensure “the relevance of the guidelines in thelight of new economic trends”, the Guidelines might also have to be expanded into“other areas, such as new information systems [and] telecommunication[s]”.1 This isexactly what Consumers International (CI) now proposes: updating the Guidelines forthe digital age.

The Wider ContextThere has long been world wide advocacy for more equitable access to humanity’s cre-ative and scientific output. A substantial global movement, the Access to KnowledgeMovement, has now been pressing for some years for reforms to rules at all levels gov-erning access to knowledge and information of all kinds and in all forms. The move-ment has a wide and diverse membership including civil society groups, governments,progressive business, academics and many, many ordinary citizens of the world. Thecentral idea is that fundamental principles of justice, freedom, and economic develop-ment particularly as enunciated in the 1948 Universal Declaration of Human Rightsand the subsequent Covenants cannot be realised without equitable access to knowl-edge. The need to reform of copyright and patent law is argued, but also promoted areoptions other than intellectual property rights for the protection of creativity and inno-vation – for example, Creative Commons licensing and innovation prizes. Unlike mostproducts, knowledge and information is today generally reproducible at minimal ma-terial and energy cost and is not scarce in the normal economic sense. There should beno significant barriers to prevent all people, rich and poor alike, from having virtuallyequal access.

There are a number of regulatory instruments of various kinds that can and shouldbe reformed to ensure equitable access to knowledge. While it is not an instrumentwith regulatory force the UN Guidelines for Consumer Protection has had significantimpact as a benchmark for rule-making globally and CI, together with a number ofcollaborating organisations, believes adding access to knowledge provisions to theGuidelines would help significantly to carry forward reforms needed at global, re-gional and state levels. This paper provides some background on the relevant instru-ments and agencies and on the Guidelines. The following paper The UN Guidelinesfor Consumer Protection: Making them work in developing countries gives additional back-

1 ECOSOC report E/1997/61, available at http://www.un.org/documents/ecosoc/docs/1997/e1997-61.htm, paras 59 and 3.

�� : �� 95ground on the Guidelines and what is needed to make them more effective.

The Guidelines and Access to KnowledgeThe position of the consumer has changed considerably since the Guidelines were firstpassed in 1985. In particular, consumers in the online and digital environment arefaced with both new opportunities (such as the rise of the consumer-creator), and newthreats to their rights to participate in cultural, civic and educational affairs (such asthe use of digital locks to limit fair use rights and access to the public domain). Suchimportant issues of access to knowledge (A2K) are not covered by the UN Guidelines,nor by any other international instrument.

The Guidelines have the potential to bring progress in many areas of concern.Though they are “Guidelines for Consumer Protection” they are guidelines for con-sumer policy more broadly. Consumer policy can be divided into three main subsets:

1. Policy to empower consumers to act in their own interests – Consumer empower-ment policy;

2. Policy to provide for protection of consumers and action on their behalf in circum-stances where, for one reason or another they are not able to fully able prosecutetheir interests – Consumer protection policy; and

3. Policy to ensure, as far as possible, consumers benefit from competition so thatefficiency gains make standards as high as possible and prices as low as possible –Competition policy.

As the Declaration of Human Rights and the Covenant on Economic, Social and Cul-tural Rights make clear, equitable access to knowledge represents a general set of rightsof people which go beyond their rights as consumers of goods and services. How-ever, a great many of access to knowledge rights can be construed as consumer rights.These fall into the following categories:

• Rights to knowledge so that consumers’ decisions about goods and services can beas fully informed as possible;

• Rights to knowledge so that consumers have access to goods and services necessaryto realise their general right “To enjoy the benefits of scientific progress and its applica-tions” (Article 15 1 (b) of the International Covenant on Economic, Social and CulturalRights). For example intellectual property rights should operate so that essentialpharmaceuticals are available to all people. Articles 11 and 12 of the Covenant apply:

11.1 The States Parties to the present Covenant recognise the right of everyone toan adequate standard of living for himself and his family, including adequatefood, clothing and housing, and to the continuous improvement of living con-ditions.

12.1 The States Parties to the present Covenant recognise the right of everyone tothe enjoyment of the highest attainable standard of physical and mental health.

• Rights to obtain freely, or if appropriate/necessary at a fair price, knowledge, avail-able anywhere globally, of any kind (verbal, visual, aural), in any form (books, jour-nals, films, music) and in any medium; and

96 �� • Rights to obtain, available anywhere globally, at a fair price information process-

ing and communication products and use them without unfair/unreasonable con-straints by neither states nor producers.

Basis of Consumer Rights to Access to Knowledgein Human RightsArticle 27 of the Universal Declaration of Human Rights provides an underpinning forequitable Access to knowledge and for intellectual property rights:

Everyone has the right freely to participate in the cultural life of the community, to enjoythe arts and to share in scientific advancement and its benefits. Everyone has the right tothe protection of the moral and material interests resulting from any scientific, literary orartistic production of which he is the author.

This Article is elaborated by Article 15 of the International Covenant on Economic,Social and Cultural Rights as follows:

1. The States Parties to the present Covenant recognise the right of everyone:

(a) To take part in cultural life;(b) To enjoy the benefits of scientific progress and its applications;(c) To benefit from the protection of the moral and material interests resulting from

any scientific, literary or artistic production of which he is the author.

The steps to be taken by the States Parties to the present Covenant to achieve the fullrealisation of this right shall include those necessary for the conservation, the develop-ment and the diffusion of science and culture.

The States Parties to the present Covenant undertake to respect the freedom indispens-able for scientific research and creative activity.

The States Parties to the present Covenant recognise the benefits to be derived fromthe encouragement and development of international contacts and co-operation in thescientific and cultural fields.

The Covenant, a multilateral treaty, was adopted by the United Nations General As-sembly in 1966 and came into force in 1976. It now has 160 parties (member states –the UN has 193) and six more have signed, but are yet to ratify it.

The Berne Convention and TRIPS Agreement go toward realisation of these provi-sions of the Covenant. While CI is not proposing revision of these instruments, thescheme of intellectual property rights operating globally at present arguably could bemore balanced in terms of the protection of the intellectual property interests of cor-porations (corporate persons) as against equitably serving the interests of individuals(natural persons). Moreover, the scheme is seen by many as less than satisfactory interms of paragraphs 1 (a) and (b) and in terms of “the diffusion of science and cul-ture”. Arguably the Covenant itself does not fully realise the first part of Article 27

of the Universal Declaration of Human Rights. The particular need for amendmentof the Guidelines for Consumer Protection is that international IP law is, for the mostpart, oriented to uphold the rights of creators, but safeguarding the correspondingconsumer rights is largely left to national law. Although they have implications forinternational rules, the Guidelines are very much intended to assist states to developeffective domestic consumer policy, regulation and administration.

�� : �� 97The proposed amendments to the Guidelines reflect general rights to access to

knowledge and information enunciated in the Covenant and in other texts. More par-ticularly, key proposed amendments would assist to:

• Ensure that suppliers of digital content inform consumers of the effect of any ap-plicable technical protection measures and information on interoperability withhardware and software.

• Set minimum standards for essential copyright limitations and exceptions for con-sumers.

• Stop suppliers from using technology to cripple digital products or unreasonablylimit the ways in which consumers can use them.

• Promote a permissive approach to copyright to facilitate non-commercial creativityby consumers.

• Require that the dissemination of consumer safety information, and codes andstandards that impact consumers, are free of copyright constraints.

• Prohibit IP rights from being enforced in ways that trample on consumers’ humanrights.

• Ensure that consumers retain access to their own data in formats that they can use,and that such data is protected against misuse.

The proposed amendments have been drawn from best practices from around theworld. For example, the provision that requires consumers to be notified of technicalprotection mechanisms and interoperability limitations is drawn from new provisionsin European consumer law.2 Other provisions are based closely on current legislativedevelopments in Canada and Brazil. The amendments also make reference to relevantUNESCO documents and recommendations. CI and its partners are in the process ofconducting research for a detailed background paper which will illustrate the case forthe amendments, with case studies from India, Brazil and South Africa.

A2K in the UN system and the Process forHaving the Amendments PassedThe draft amendments were developed by CI and its members over a process of sev-eral months, then released for broader public comment for a further three months.However, they are still only a starting point for intergovernmental discussion. CI nowseeks to actively engage governments and international organisations in discussionswithin all appropriate fora towards settling amendments to the Guidelines and eventu-ally having them agreed at the General Assembly.

UNCTAD is the agency with carriage of the Guidelines, but the United NationsEducational, Scientific and Cultural Organisation (UNESCO), the World IntellectualProperty Organisation (WIPO) and the Commission on Science and Technology forDevelopment (CSTD) are the agencies with particular responsibilities for access toknowledge and information issues.

2 Helberger Natali, Parliament adopts new directive to improve digital consumer rights(2011), available at http://kluwercopyrightblog.com/2011/07/01/parliament-adopts-new-directive-to-improve-digital-consumer-rights/.

98 �� United Nations Educational, Scientific and CulturalOrganisation (UNESCO)UNESCO is the main body charged with the task of making knowledge accessible tohumanity at large. It was established soon after the UN officially came into existenceon 24 October 1945 and even before the adoption of the Universal Declaration of Hu-man Rights. The Constitution of UNESCO came into force on 4 November 1946 afterratification by twenty countries: Australia, Brazil, Canada, China, Czechoslovakia,Denmark, Dominican Republic, Egypt, France, Greece, India, Lebanon, Mexico, NewZealand, Norway, Saudi Arabia, South Africa, Turkey, United Kingdom and UnitedStates.

UNESCO’s constitution states:

Article I

Purposes and functions

2. To realise this purpose the Organisation will: Maintain, increase and diffuse knowledge:

By encouraging cooperation among the nations in all branches of intellectual activity,including the international exchange of persons active in the fields of education, scienceand culture and the exchange of publications, objects of artistic and scientific interest andother materials of information;

By initiating methods of international cooperation calculated to give the people of allcountries access to the printed and published materials produced by any of them.

World Intellectual Property Organisation (WIPO)

In 1970 the Convention Establishing the World Intellectual Property Organisation cameinto force. WIPO succeeded the United International Bureaux for the Protection ofIntellectual Property (BIRPI) and inherited its role under Article 3 of this Conven-tion to “promote the protection of intellectual property throughout the world.” WhenWIPO became a specialised agency of the UN in 1974 the agreement indicated a some-what wider remit to that of facilitating technology transfer for development. Article 1

of the agreement says that WIPO is responsible

for promoting creative intellectual activity and for facilitating the transfer of technology re-lated to industrial property to the developing countries in order to accelerate economic, so-cial and cultural development, subject to the competence and responsibilities of the UnitedNations and its organs, particularly the United Nations Conference on Trade and Devel-opment, the United Nations Development Programme and the United Nations IndustrialDevelopment Organisation, as well as of the United Nations Educational, Scientific andCultural Organisation and of other agencies within the United Nations system.

In 2004, Brazil and Argentina pushed WIPO to focus more on its technology (knowl-edge) transfer role and proposed a development agenda which has subsequently beenaccepted.

A response to this was the the preparation of a draft Treaty on Access to Knowledgeby an informal international committee. The draft was released in 2005 following anextensive process involving academics, government officials, NGOs, businesses andindividuals and meetings in Geneva and London. This draft broadly comprehends

�� : �� 99the goals of the Access to Knowledge movement, particularly the facilitation of trans-fer of knowledge to developing nations and liberation of innovation systems globally.Notwithstanding WIPO’s clear mandate, little progress has been achieved under itsauspices and seems unlikely to be achieved in the near future given the interests in-volved. A focussing on certain more limited areas has resulted in a welcome drafttreaty for the blind. The “soft law” UN Guidelines have the potential to progressivlymake advances in relation to the consumers rights areas and a number of these arestrongly relevant to the development agenda.

United Nations Conference on Trade and Development(UNCTAD)Established in 1964, UNCTAD is the main UN agency responsible for the operationof markets globally, particularly as they relate to development. (Other agencies withresponsibilities which overlap to some extent include the World Trade Organisation(WTO) the United Nations Industrial Development Organisation (UNIDO)).

UNCTAD is the agency with responsibility for the Guidelines. The theme of its nextconference (UNCTAD XIII Qatar April 2012) is “Development Centred globalisation”.Amongst other things the access to knowledge issue of transfer of technology is on theagenda. Getting consideration of amendments to the Guidelines to include access toknowledge provisions would not be practical until UNCTAD XIV in 2016. However,CI will be proposing an addition to the negotiating text for UNCTAD to note thatamendments to the Guidelines are appropriate to help ensure that information andcommunication technologies can be used optimally in the interests of consumers,especially those in developing countries.

Another proposed addition would draw attention to the effect of some bilateralpreferential trade agreements between developed and developing countries. In anumber of cases these have meant that the scarce public resources of the developingcountry have had to be diverted towards the enforcement of the developed country’sintellectual property rights. A more general effect of such agreements has been an in-crease in the trade imbalance in knowledge goods and services between developingand advanced countries, and a reduction in public access to cultural, educational andscientific works.

CI will also take the opportunity to point out the merit in reviewing the Guidelinesgenerally to account for the effects of technological change.

UNCTAD is also the auspice for the Commission on Science & Technology for De-velopment (CSTD), a commission of the Economic and Social Council (ECOSOC),which has a clear mandate for technology transfer issues. CI will be participating in itsprocesses as appropriate.

World Summit on the Information Society (WSIS)The WSIS was held pursuant to Resolution 56/183 (21 December 2001) of the UN Gen-eral Assembly. It had two sessions in Geneva in 2003 and in Tunis in 2005. It resultedin a Declaration of Principles – Building the Information Society: a global challenge in the newMillennium, The Geneva Plan of Action and The Tunis Agenda for the Information Society. Inbroad terms the WSIS reaffirmed articles of the Universal Declaration of Human Rights

100 �� relevant to access to knowledge and information and laid out a comprehensive agendafor member states and the relevant international agencies. The amendments to the UNGuidelines for Consumer Protection CI proposes are entirely consistent with the outcomesof the WSIS.

The Proposed AmendmentsThis section sets out the proposed amendments to the Guidelines. The amendmentsare laid out here following the existing structure of the Guidelines, which has not beenamended other than by the addition of a new sub-section labelled Access to knowledge:

I. Objectives

II. General principles

III. Guidelines

A. Physical safety

B. Promotion and protection of consumers’ economic interests

C. Standards for the safety and quality of consumer goods and services

D. Distribution facilities for essential consumer goods and services

E. Measures enabling consumers to obtain redress

F. Education and information programmes

G. Promotion of sustainable consumption

H. Access to knowledge

I. Measures relating to specific areas

IV. International cooperation

Except in the case of the Access to knowledge sub-section, which being entirely new isnot emphasised, the amendments are emphasised here using boldface text.

To save space, provisions of the Guidelines that have not been amended are notreproduced here. However the full text of the Guidelines with the proposed amend-ments highlighted is available for download on CI’s website at http://A2Knetwork.org/guidelines.

I. Objectives1. Taking into account the interests and needs of consumers in all countries, particularly thosein developing countries; recognizing that consumers often face imbalances in economic terms,educational levels, and bargaining power; and bearing in mind that consumers should have theright of access to non-hazardous products, the rights to participate in cultural, civic andeducational affairs, as well as the right to promote just, equitable and sustainable economicand social development and environmental protection, these guidelines for consumer protectionhave the following objectives:

This amendment to the preamble paragraph of the Objectives echoes the relevant provi-sions of the Universal Declaration of Human Rights and the Covenant on Economic, Social andCultural Rights that underlie the subsequent amendments. These words are also found inthe Draft A2K Treaty.

�� : �� 101(i) To promote and enhance access to knowledge for consumers; that is, more equitablepublic access to the products and tools of human culture and learning.

This would add a ninth objective to the guidelines. It incorporates a short definition of thephrase “access to knowledge” that was developed by CI as part of its global programmeon A2K, and first published in its book “Access to Knowledge: A Guide for Everyone” in2010.

II. General principles(h) Access to knowledge, as a precondition of consumers’ full participation in cultural,civic and educational affairs.

This would add an eighth statement of the legitimate needs which the guidelines are intendedto meet. It mirrors statement of principle (b) The promotion and protection of the economicinterests of consumers and is implied by the proposed amendments in the objectives.

5A. Policies for promoting access to knowledge should seek to strike a fair balance be-tween the object of rewarding creativity and investment in the provision of knowledgeresources, with the cultural, civic and educational rights of consumers and their needsfor economic and social development.

This proposed amendment adds an eighth statement of principle to the seven currentstatements. The principle of balance between creator and consumer rights is a well ac-cepted principle in intellectual property regulation and is enunciated in most instruments.Adam Smith famously stated “Consumption is the sole end and purpose of all production;and the interest of the producer ought to be attended to, only so far as it may be necessaryfor promoting that of the consumer.” It follows that the balance required is that which bestserves consumers, but what is in contention is setting and resetting a balance that resultsin equity as between consumers of differing levels of wealth and in different parts of theworld and between present and future consumers.

8A. All laws, regulations and non-statutory instruments such as codes and standardswhich are related to the protection and advancement of the interests of consumers orthe public at large should be freely, accessibly and publicly available.

This proposed amendment adds a ninth statement of principle to the seven current state-ments. Such a statement of principle is unexceptional in relation to laws and regulations ofa state and should be accepted without contest. Non-statutory instruments are becomingmore and more important in regulating markets, but often they are privy to an industry orprofession. Regulation to protect consumers or the public at large is less effective than itmight be when consumers or citizens in general cannot measure the conduct of a businessor an industry or profession they observe or suffer against the rules that business, industryor profession has set for itself. At present, for example, important standards adopted bythe International Standards Organisation, such as ISO 26000 which sets a benchmark forsocial responsibility for organisations, are only available at a price.

III. Guidelines10. In applying any procedures or regulations for consumer protection, due regard should begiven to ensuring that they do not become barriers to international trade and that they areconsistent with international trade obligations, as well with international principles thatprotect human rights and social, cultural and economic rights of all people.

This proposed amendment follows from the proposed amendments to the objectives andprinciples. It redresses an imbalance in the provision as it now exists, which implicitly

102 �� elevates trade obligations above other fundamental underlying principles, such as humanrights.

A. Physical safety12. Appropriate policies should ensure that goods produced by manufacturers are safe for eitherintended or normally foreseeable use. Those responsible for bringing goods to the market, inparticular suppliers, exporters, importers, retailers and the like (hereinafter referred to as “dis-tributors”), should ensure that while in their care these goods are not rendered unsafe throughimproper handling or storage and that while in their care they do not become hazardous throughimproper handling or storage. Consumers should be instructed in the proper use of goods andshould be informed of the risks involved in intended or normally foreseeable use. Vital safetyinformation should be conveyed to consumers, including by internationally understandablesymbols wherever possible, at time of purchase, and thereafter made readily available toconsumers.

This amendment broadens the existing provision, principally to address the situationwhere safety information that was conveyed to the consumer at the time of purchase isno longer readily available, perhaps because the item was purchased second-hand orbecause the original safety instructions were lost. This amendment reflects the existingwidespread best practice whereby suppliers will make safety information available onlineon an ongoing basis, so that even consumers of second-hand goods can operate themsafely.

B. Promotion and protection of consumers’ economic interests21. Consumers should be protected from such contractual abuses as one-sided standard con-tracts, exclusion of essential rights in contracts, the use of unnecessarily long or complexwording in contracts, variations or additions to the terms of use of a product or ser-vice to which the consumer does not freely agree, and unconscionable conditions of creditby sellers.

Whilst the focus of the present amendments is on those required to bring the Guidelinesinto the digital age, we are justified in adding the new bold text to this paragraph be-cause the practices referred to are much more prevalent in contracts for online servicesand software than in other contexts. For example, whereas a consumer who purchases acompact disk in a music store does not have to agree to any conditions of use other thanthose printed on the label, the consumer seeking to purchase the same music from theApple iTunes store must first agree to a full 56 pages of small text! Other suppliers reservethe right to modify their terms and conditions of use without the consumer’s consent, orelse procure that consent under duress: see the commentary to article 23A below. Thisamendment would deprecate these practices.

21A. Governments should restrict suppliers of digital products and services from em-ploying technologies that have a significant effect of preventing consumers from usingthose products or services in ways or for purposes that would otherwise be reasonableand safe.

Suppliers of digital goods too often assert the need to lock up digital technologies toprevent consumers from using them in new and innovative ways. These restrictions arefrequently anti-competitive, unnecessary to protect the supplier’s legitimate interests,and abusive of consumer rights. An example which was recognised by the United StatesCopyright Office in 2010 was the right for consumer to “jailbreak” mobile phone handsets,bypassing restrictions that prevent them from installing applications other than thoseapproved by the vendor.

This point is well argued in the Consumer Digital Rights Declaration promulgated by theBureau Européen des Unions de Consommateurs/the European Bureau of ConsumersUnions (BEUC), which asserts that:

�� : �� 103“Consumers are entitled to “technical neutrality”. They should have the same rightsonline as offline. Digital technology must not be used to take away establishedconsumer rights.”

And that

“Consumers should benefit from new technologies. – Policies must ensure thatconsumers and creators benefit fully from technological development – industrymust not have the power to impose excessive control over digital content.”

This amendment reflects these principles.

23. Governments should encourage all concerned to participate in the free flow of accurate in-formation on all aspects of consumer products, including in the case of digital content, theeffect of any applicable technical protection measures and information on interoper-ability with hardware and software.

This amendment is based on Article 5 of the EU Consumer Rights Directive (Directive2011/83/EU) that requires consumers of digital content to be provided with informa-tion about its functionality, including any applicable technical protection measures, andinteroperability information.

23A. Suppliers of consumer electronic devices, or of proprietary software for such de-vices, may not issue a software or firmware update that would disable the consumer’saccess to functionality that the device or software possessed at the time of purchase,unless:

(a) the update is essential to protect the safety of the consumer or the consumer’sdata;

(b) the consumer is fully and clearly informed of the effects of the update; and

(c) the consumer is given the opportunity to accept or reject the update, uncondition-ally upon the acceptance of any other update that improves or corrects functional-ity of the device or software.

An example of supplier conduct infringing these principles is when in 2010 Sony remotelyupdated previously-purchased Playstation 3 consoles to remove their ability to run otheroperating systems, which had been a key feature with which the consoles were advertised.Any consumer who declined to accept this update would be barred from accessing Sony’sPlaystation Network to play multiplayer games. Similarly, in 2011 US phone company Ver-izon remotely updated previously-purchased phones to remove their ability to operate aswireless Internet hotspots. George Tian’s paper in this volume explains how such practicesare an abuse of intellectual property rights, which infringe consumer law in countries suchas Australia and Brazil.

C. Standards for the safety and quality of consumer goods and servicesNo amendments

D. Distribution facilities for essential consumer goods and servicesNo amendments

E. Measures enabling consumers to obtain redressNo amendments

F. Education and information programmes

104 �� 40A. Bearing in mind the value of the Internet as a channel for consumer education,including long distance learning and knowledge sharing between consumers, govern-ments should facilitate universal access to the Internet through affordable telecom-munications and Internet costs with special consideration given to the needs of publicservice and educational institutions, and of disadvantaged and disabled populationgroups.

The importance of broadband Internet access as a vehicle for the empowerment of con-sumers has been recognised by the global consumer movement with the adoption of theConsumers International campaign, Holding Broadband Service Providers to Account, re-ported elsewhere in this volume.

This proposed amendment draws from the UNESCO Recommendation concerning thePromotion and Use of Multilingualism and Universal Access to Cyberspace. It also com-plements the mission of the Broadband Commission for Digital Development, a jointinitiative by the International Telecommunication Union (ITU) and the United NationsEducational, Scientific and Cultural Organisation (UNESCO), which was established inMay 2010 to promote the adoption of broadband-friendly practices and policies as a wayof advancing the Millennium Development Goals (MDGs).

G. Promotion of sustainable consumptionNo amendments

H. Access to knowledge

The following proposed amendments would make up a new section H of the Guidelines.

55A. Access to knowledge for consumers should be promoted and protected by governments aspart of their duty to uphold their citizens’ rights to seek, receive and impart information andideas through any media and regardless of frontiers; to receive an education directed to the fulldevelopment of the human personality and to the strengthening of respect for human rights andfundamental freedoms; and freely to participate in the cultural life of the community, to enjoythe arts and to share in scientific advancement and its benefits.

This proposed amendment reflects Articles 19, 26 and 27 of the Universal Declaration of Hu-man Rights and fleshes out the amendments made to the objectives and general principlesof the Guidelines.

55B. Governments should work to actively maintain a rich and accessible public domain. Noexpansion of the scope or extension of the duration of copyright protection should be madewithout wide public consultation and a comprehensive, objective and transparent assessmentof public benefits and detriments. Rights holders should be permitted to voluntarily relinquishcopyright in their own works. It should not be possible to re-appropriate exclusive rights overpublic domain works by technological, contractual or other legal means, or by making technicalreproductions of such works.

This summarises the main points of the Public Domain Manifesto, as well as drawing fromthe Adelphi Charter. It is also consistent with Professor Séverine Dusollier’s 2011 ScopingStudy on Copyright and Related Rights and the Public Domain, which was commissioned infurtherance of recommendations 16 and 20 of the WIPO Development Agenda. All of thesesources are listed in the bibliography to this paper.

55C. Governments should limit or exclude copyright protection for works that they have pro-duced or funded, should endeavour to provide universal online access to such works includingall official public documents, and should support the preservation, digitisation and online dis-semination of other public domain works. Governments should be further guided by the UN-ESCO Charter on the Preservation of Digital Heritage of 15 October 2003, and the UNESCO

�� : �� 105Recommendation concerning the Promotion and Use of Multilingualism and Universal Accessto Cyberspace of 21 November 2003.

The main bases for the principle that works of the government should be made freelyavailable are twofold: firstly this supports the democratic principle of open government,by allowing a country’s citizens to effectively exercise public oversight of their represen-tatives, and secondly it recognises that citizens have already paid for the production ofthese works through taxes, and should therefore not be limited in their access to or use ofthese works by copyright law. It reflects the practice of countries such as the United Statesthat exclude copyright in such works, and others that have adopted policies to release theirworks under liberal copyright licenses.3

55D. Governments have a responsibility to fund public libraries and archives, and to facil-itate their operation through appropriate limitations in copyright law to allow archival andpreservation, lending, and copying for education and research. Libraries should be permitted tocircumvent technological protection mechanisms on digital works for the above purposes.

The UNESCO documents referenced in article 55C are also important references for thisamendment, which is more specific in its focus on public libraries and archives. The pro-vision permitting libraries to circumvent technological protection mechanisms on works iscompatible with Article 14 of the Treaty Proposal on Copyright Limitations and Exceptions forLibraries and Archives, prepared by IFLA, EIFL, ICA and Innovarte, that was presented toWIPO at a November 2011 standing committee session.

55E. Governments, in partnership with the private sector and other relevant organisations,should encourage the development and use of more inclusive models for the production anddistribution of knowledge and culture, including the use of free and open licenses that allowworks to be freely studied, applied, copied and/or modified, by anyone, for any purpose. Opencollaborative projects that utilise such licenses should be supported as incubators of creativityand innovation.

This amendment acknowledges the revolutionary benefits that open collaborative projectsutilising open licences have brought to consumers, and recommends that all stakeholderssupport such initiatives. Amongst the best-known examples are the free encyclopaediaWikipedia, open access journals and textbooks, and free computer software such as Linux-based operating systems, the Firefox web browser and the OpenOffice office suite. Sourcesfor the wording of this provision include the Definition of Free Cultural Works and recom-mendation 36 of the WIPO Development Agenda.

55F. Governments must protect the rights of consumers of knowledge goods over the underlyingcopyright works in those goods. The rights that should be recognised by law and protected fromderogation by contract include:

One of the core amendments put forward is this provision, which suggests a set of basiccopyright limitations and exceptions that ought to be made available to consumers inorder to balance their legitimate interests in access to knowledge against the exclusiverights of authors protected by copyright law. The formulations of these points (a) to (h) arenew, but similar rights are covered in the sources referenced below.

(a) To make use of such works for private research and study purposes, including distanceeducation;

This or something like it is one of the most common copyright flexibilities in national law.It is to be distinguished from a right for teachers to copy works for purposes of classroomeducation, which is not a right directly exercised by consumers and hence not includedhere.

3 See http://wiki.creativecommons.org/Government_use_of_Creative_Commons.

106 �� (b) To make use of such works in criticism, commentary or parody;

In response to recommendations in the 2011 Hargreaves Report, the United Kingdom iscurrently proposing the introduction of a copyright limitation to cover parody. One of thejustifications given is that many of today’s consumers express themselves through newmedia and online social networks by parodying elements from popular culture, and thatit is appropriate to facilitate such expression through a copyright limitation. Parody isalready permitted by the copyright laws of other countries such as Australia, France, theNetherlands and the United States.

(c) To make copies for backup purposes;

A copyright limitation for backup protects consumers against the loss of original copiesof copyright works. Such a provision is often explicitly included for specific cases suchas computer software, as in the copyright laws of the United Kingdom, Japan and Kenya,and music, as in Australia. Elsewhere, the more general case is covered by a personal useexception, as in India, South Korea and continental Europe.

(d) To time, space and format shift the works so that they can be accessed at a convenient timeand place;

Time shifting is the practice of recording broadcasts so that they can be enjoyed at a moreconvenient time. Space shifting is when a user copies a work to use it in more than oneplace, for example at home and in the car. Format shifting is converting a work into aformat that enables it to be used with a certain device or software, eg. copying music fromCD to a personal music player. None of these practices result in significant lost revenueto the copyright owner, hence an emerging global best practice is to explicitly allow them,without right of remuneration, as limitations to copyright. Australia and New Zealandare amongst the countries with provisions covering all of these practices, and the UnitedKingdom, which currently only has a time-shifting provision, now proposes to broadenthis to cover other acts of personal copying.

(e) To use works in digital form, or works that the consumer has shifted into digital form, onany compatible device, and to make any temporary copies that may be required to enjoy suchuse;

This amendment flows naturally from the previous one, but goes further in explicitlyrecognising that the enjoyment of digital works often involves the automatic creation oftemporary copies as an adjunct to the act of playback. Such copies, having no independenteconomic value, are properly allowed under a limitation to copyright. This is in fact theonly compulsory copyright limitation under the EU Copyright Directive.

(f) To copy, lend or perform the works for personal use, family use or similar uses within alimited circle;

Copying within a private or domestic sphere, such as a family, household or social circleis permitted by the copyright laws of countries such as France, Spain, and South Korea.Much as a household will traditionally watch television or listen to music together, andfreely share books and magazines with each other, so too the modern household rea-sonably expects to be able to share digital works without thereby committing an act ofcopyright infringement.

(g) To adapt works, or to make use of adaptations made non-commercially by others, to over-come a disability suffered by the consumer or by a member of the consumer’s family or house-hold that would otherwise interfere with their enjoyment of the works; and

This provision seeks to ensure that copyright law remains consistent with the Conventionon the Rights of Persons with Disabilities, which reaffirms that all persons with all types ofdisabilities must enjoy all human rights and fundamental freedoms.

�� : �� 107(h) To resell knowledge goods together with all of the rights with which they were first sold,provided that they destroy any personal copies they may have made.

This provision would ensure technological neutrality, by specifying that consumers havethe same resale rights over digital goods as they possess over physical goods. It is tar-getted at the practice of selling digital works with rights that enure only to the benefitof the original purchaser, by which the supplier aims to eliminate competition from thelegitimate second-hand market.

55G. Recognising that much creative expression in the digital age is produced by consumersdrawing on elements from their surrounding culture, governments should recognise consumers’right to quote or otherwise make reasonable use of a copyright work in the creation of a newwork, and to distribute that new work non-commercially, provided that:

(a) The source is not an obviously infringing copy;

(b) The use does not conflict with the normal exploitation of the existing work and does notunreasonably prejudice the legitimate interests of the author; and

(c) The source is acknowledged where it is reasonable in the circumstances to do so.

This text is based loosely on section 29.21 of the Canadian Bill C-11 (formerly C32, whichwill become the Copyright Modernisation Act), and section 46(VIII) of the Brazilian DraftLaw on Copyright and Neighbouring Rights. It is a narrowly-crafted exception, compliantwith the Berne and TRIPS three-step test, to ensure that the millions of consumers whoexpress themselves online through the production and sharing of new creative worksbased on existing works from popular culture, are not thereby committing copyrightinfringement.

55H. To the extent necessary to enable a consumer to exercise the rights over a work describedin paragraphs 55E or 55F above, the consumer must be afforded the right to circumvent tech-nological protection measures applied to that work, or to modify a device to enable it to be usedfor accessing the work, provided in the latter case that the consumer owns that device or haspermission from its owner to do so. Governments should apply similar penalties against thosewho hinder or prevent consumers from exercising the rights described in paragraphs 55F or55G above as are applied to the infringement of copyright in the work.

The two related provisions in this paragraph are respectively based on section 22 of theEIFL-IP Model Copyright Law and section 107 of the Draft Law on Copyright and Neigh-bouring Rights of Brazil. Their intent is to prevent technological protection mechanismsfrom being used to nullify the effect of copyright limitations and exceptions for con-sumers. For example, although the law may allow consumers to use an extract from aDVD in an educational project, this right is useless unless the consumer can overcomecopy protection technology applied to the DVD. Recognising this, the right for consumersto bypass DVD copy protection for such purposes was granted by the US Copyright Officein 2010.

55I. Acts of copyright infringement committed by consumers for non-commercial purposes, orpossession of copyright-infringing goods in non-commercial quantities, should not be punish-able by criminal sanctions, nor by the suspension or termination of the consumer’s access toessential communication networks such as the Internet,

Whilst copyright enforcement is important, there is a need for proportionality. The TRIPSagreement sets out the appropriate balance, by only requiring criminal penalties to bemade available for commercial-scale infringements. That consumers should not be madeinto criminals over infringement of copyright law is a precept of the BEUC Consumer Dig-ital Rights Declaration. That their Internet connections should not be terminated a penaltyfor infringement was highlighted by the UN Rapporteur on Freedom of Expression, in his2011 report to the UN Human Rights Council.

108 �� 55J. Governments and industry should support, use and contribute to the development of openand interoperable standards for works supplied to or hosted for consumers in digital formats.Suppliers who provide a service to host such works online (other than a content streamingservice) should also provide the means for consumers to extract those works from online storageby that supplier, using open formats and protocols.

The purpose of this provision is to ensure that the documents, photographs, and creativeworks that consumers either create themselves and host online, or purchase for consump-tion, are supplied and stored in formats that they can use, without tying them to a singleproprietary vendor. This is particularly important for online (“cloud”) services in whichconsumers store their content, so that if the service provider terminates its service, theywill be able to extract their content and move it elsewhere. Some of the language of thisprovision is derived from the Paris Accord, which is referenced in the bibliography.

55K. Government policy should promote the creation, dissemination and preservation of contentin diverse languages and formats, including local content suited to domestic or regional needs.Governments should be further guided by the UNESCO Universal Declaration on CulturalDiversity of 2 November 2001, the UNESCO Convention on the Protection and Promotion ofthe Diversity of Cultural Expressions of 20 October 2005, and the UNESCO Recommendationconcerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace of21 November 2003.

Apart from the UNESCO instruments referenced here, this text is also based closely onparagraph 53 of the Geneva Declaration of Principles at the World Summit on the InformationSociety (WSIS).

55L. The Internet has become a basic means of communication for individuals and their mostimportant means of access to knowledge and general information, as well as a platform for con-sumers’ access to participate in public, democratic debate. Considering this, governments andbusiness should afford consumers the right to access neutral networks. That means that con-sumers have the right to attach devices of their choice, the right to access or provide content,services and applications of their choice, and the right for this access to be free from discrimina-tion according to source, destination, content and type of application.

This provision is taken almost directly from the TACD Charter of Consumer Rights in theDigital World. It complements the earlier amendment 40A, and specifies that not onlyshould the Internet be accessible to consumers, but its open and neutral character shouldalso be preserved.

55M. Consumers who access information and knowledge in digital form should not therebysacrifice their personal privacy. Governments and businesses should ensure effective consumercontrol of personal data, through collection of personal data (including internet usage informa-tion and IP addresses) only when strictly necessary and in an open and transparent way, andwherever practicable and lawful, through free, informed and positive consent (opt-in).

55N. Business and governments should apply data minimisation practices and use effectiveand updated technology to protect confidential personal data against unauthorized use. Thoseaffected by any personal data breach must be promptly notified of the details of the breach and ofthe available means of redress. The content of consumers’ communications online must not beintercepted by governments or third parties without a valid court order.

These two provisions have been included to protect consumer privacy. Both are intendedto address consumers’ loss of control over their personal information online, but the firstfocuses on the preventative measure of limiting the information that is collected aboutconsumers to begin with, and the second concerns safeguards and remedies against theloss or misuse of that information. The main sources for these provisions are the OECDCivil Society Background Paper and the TACD Charter of Consumer Rights in the Digital World.

�� : �� 109I (currently H) Measures relating to specific areas61. Pharmaceuticals. Governments should develop or maintain adequate standards, provisionsand appropriate regulatory systems for ensuring the quality and appropriate use of pharmaceu-ticals through integrated national drug policies which could address, inter alia, procurement,distribution, production, licensing arrangements, registration systems and the availability ofreliable information on pharmaceuticals. In so doing, Governments should take special accountof the work and recommendations of the World Health Organisation on pharmaceuticals. Forrelevant products, the use of that Organisation’s Certification Scheme on the Quality of Phar-maceutical Products Moving in International Commerce and other international informationsystems on pharmaceuticals should be encouraged. Measures should also be taken, as appropri-ate, to promote the use of international non-proprietary names (INNs) for drugs, drawing onthe work done by the World Health Organisation. Governments should also provide an en-abling environment for generic competition in the market for pharmaceutical products,in order to improve consumers’ access to affordable healthcare.

Although this amendment addresses a somewhat different issue than the balance of theamendments, it is included because it likewise concerns the balancing of intellectual prop-erty rights with consumer rights. The right to health, like the right of access to knowledge,is threatened by excessive pricing of branded products, especially those protected by phar-maceutical patents. However, after such patents expire, legal generic drugs can help todramatically improve affordability.

IV. International cooperation65A. Governments should work to eliminate unnecessary barriers to the export oflegally produced knowledge goods, including those that have been adapted for the useof consumers who are blind, visually impaired or reading disabled.

WIPO is currently discussing a proposed international instrument on limitations andexceptions for persons with print disabilities, which would overcome an anomaly wherebyit is a copyright infringement for a legally-produced work adapted for blind readers tobe exported from one country to another, even if the work would also have been legal toproduce in the importing country. This provision addresses that problem, but also morebroadly encourages international trade in legally produced knowledge goods, to improveaffordability for consumers.

ReferencesAdelphi Charter on Creativity, Innovation and Intellectual Property (2005), available fromhttp://www.sitoc.biz/adelphicharter/pdfs/adelphi_charter2.pdf.

BEUC. Digital Rights Declaration (2007), available from http://web.archive.org/web/

20070816145505/http://www.consumersdigitalrights.org/cms/full_decla_en.php.

Brazil. Draft Law on Copyright and Neighbouring Rights (2010), available from http://

www.gpopai.usp.br/blogs/files/2010/08/brazilian_copyright_bill_consolidated_

june_2010.pdf.

Canada. Copyright Modernisation Act (Bill C-11) (2011), available from http://www.

parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E&Mode=1&billId=5134851.

Charter of Human Rights and Principles for the Internet (2010), available from http://

internetrightsandprinciples.org/node/367.

COMMUNIA. Public Domain Manifesto (2010), available from http://www.publicdomainmanifesto.

org/.

110 �� Consumers International. Access to Knowledge: A Guide for Everyone (2010), availablefrom http://a2knetwork.org/handbook.

Convention on the Rights of Persons with Disabilities (2007), available from http://www.

un.org/disabilities/convention/conventionfull.shtml.

Copyright for Creativity – A Declaration for Europe (2010), available from http://www.

copyright4creativity.eu/.

Definition of Free Cultural Works (2010), available from http://freedomdefined.org/

Definition.

DigitalConsumer. Consumer Technology Bill of Rights (2002), available from http://www.

digitalconsumer.org/bill.html.

Draft Access to Knowledge Treaty (2007), available from http://www.cptech.org/a2k/

a2k_treaty_may9.pdf.

Dusollier, Séverine. Scoping Study on Copyright and Related Rights and the Public Domain(2011), available from http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_7/cdip_

7inf_2.pdf.

EIFL-IP. Draft Law on Copyright (2009), available fromhttp://www.eifl.net/system/

files/201101/modellaw_v16.pdf.

EU. Consumer Rights Directive (Directive 2011/83/EU) (2011), available from http:

//eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:304:0064:0088:EN:

PDF.

Free Culture Forum. Charter for Innovation, Creativity and Access to Knowledge (2009-2010), available from http://fcforum.net/.

Hargreaves, Ian. Digital Opportunity: A review of Intellectual Property and Growth (2011),available from http://www.ipo.gov.uk/ipreview-finalreport.pdf.

IFLA, EIFL, ICA and Innovarte. Treaty Proposal on Copyright Limitations and Excep-tions for Libraries and Archives (2011), available athttp://www.wipo.int/edocs/mdocs/copyright/en/sccr_23/sccr_23_5.pdf.

La Rue, Frank. Report of the Special Rapporteur on the promotion and protection of theright to freedom of opinion and expression (2011), available fromhttp://www2.ohchr.org/

english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

MPI. Munich Declaration on copyright limitations and exceptions (2008), available fromhttp://www.ip.mpg.de/shared/data/pdf/declaration_three_step_test_final_

english.pdf.

Public Voice. OECD Civil Society Background Paper (2008), available from http://www.

oecd.org/dataoecd/45/47/44686738.pdf.

TACD. Paris Accord – an agreement between creative communities and the public (2009),available from http://www.tacdip.org/files2/paris_accord_2009_oct20.pdf.

TACD. Resolution on Copyright Terms (2009), available from http://tacd.org/index.

php?option=com_docman&task=cat_view&gid=76&Itemid=40.

�� : �� 111Trans-Atlantic Consumer Dialogue. Charter of Consumer Rights in the Digital World(2008), available from http://tacd.org/index2.php?option=com_docman&task=doc_

view&gid=43&Itemid=.

UK Intellectual Property Office. Consultation on Copyright (2011), available from http:

//www.ipo.gov.uk/pro-policy/consult/consult-live/consult-2011-copyright.htm

UNESCO. Charter on the Preservation of Digital Heritage (2003), available from http:

//unesdoc.unesco.org/images/0013/001331/133171e.pdf.

UNESCO. Convention on the Protection and Promotion of the Diversity of Cultural Ex-pressions (2005), available from http://unesdoc.unesco.org/images/0014/001429/

142919e.pdf.

UNESCO. Recommendation concerning the Promotion and Use of Multilingualism and Uni-versal Access to Cyberspace (2003), available from http://portal.unesco.org/ci/en/

files/13475/10697584791RecommendationEng.pdf/Recommendation-Eng.pdf.

UNESCO. Universal Declaration on Cultural Diversity (2001), available from http://

unesdoc.unesco.org/images/0012/001271/127160m.pdf.

Universal Declaration of Human Rights (1948), available from http://www.un.org/en/

documents/udhr/index.shtml.

WIPO. Development Agenda (2007), available from http://www.wipo.int/export/

sites/www/ipdevelopment/en/agenda/recommendations.pdf.

WSIS. Geneva Declaration of Principles (2003), available from http://www.itu.int/wsis/

docs/geneva/official/dop.html.

5 The UN Guidelines ForConsumer Protection:Making Them Work inDeveloping CountriesRobin Brown

A�� This paper outlines the background to the adoption of the UN Guide-lines for Consumer Protection by the UN General Assembly in 1985 and developmentssince then. It notes that the Guidelines call upon governments to develop, strengthenand maintain a strong consumer policy and regulatory system to protect consumers inrelation to physical safety, economic interests, standards, essential goods and services,redress, education and information, specific areas concerning health and sustainableconsumption.

It observes that the Guidelines have two kinds of provisions: those concerning as-sistance people need to advance and protect their interests as consumers and the rulesrequired to protect them where they cannot protect themselves and those concerninghow governments might best provide assistance and make needed rules and how gov-ernments should cooperate with each other.

The paper goes on to discuss some of the realities of policy and regulatory de-velopment to achieve implementation of the Guidelines noting that there are four keyelements: research, advocacy, policy and rule making, compliance action and consumersupport. The challenge of ensuring adequate advocacy by civil society consumer or-ganisations is considered. The conclusion is that, while there is much still to achieve,the Guidelines have made a major contribution to the advancement of the position ofconsumers around the world.

1 Introduction

The UN Guidelines for Consumer Protection were in the UN process at thesame time as the Code of Conduct for Transnational Corporations. The Code hadstarted out as a proposed instrument to contain excesses of TNCs in the developingworld. However, provisions to protect business interests, especially from nationalisa-tion, were added and provisions to protect the interests of developing countries and

114 �� their citizens were watered down. The Guidelines emerged and, in part, became thevehicle for some of the business regulatory elements lost from the Code. Not surpris-ingly they were opposed by certain business interests. The International Chamber ofCommerce (ICC), not exactly a group balancing the interests of the north and south,pushed for the Code and strongly against the Guidelines. Nations lined, up with theUSA, Japan and Germany echoing the ICC and the G77 on the other side.

Consumers International (then called the International Organisation of Consumers’Unions) was represented at the UN by the indefatigable Esther Peterson. Esther, whohad been consumer policy adviser to Presidents Johnson and Carter, commented atthe time “It’s amusing that opposition comes more strongly from business interests incountries where these guidelines already exist as laws or regulations.”

In spite of strong opposition by the Reagan administration, on 16 April 1985 the UNGeneral Assembly, by resolution 39/248, adopted the UN Guidelines for ConsumerProtection by consensus.

The Code of Conduct for Transnational Corporations ultimately did not itself getanywhere. Another go was later had by business interests via the proposed OECDMulti-lateral Agreement on Investment. This failed too, but TRIPS and TRIMS Agree-ments (TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights.TRIMS – Agreement on Trade Related Investment Measures) and bilateral trade agree-ments now give business many of the protections it was seeking.

It is important to note that the OECD was not one sided. Its Committee on Con-sumer Policy was a supporter of the Guidelines and contributed some of the thinking.

Apart from opposition to the Guidelines as a restriction on business activity theywere opposed as being “Global Paternalism” (Jeane J. Kirkpatrick, President Rea-gan’s UN representative). And Murray L. Weidenbaum, (former economic advisor toReagan) wrote that the UN should not assume the role of global “nanny” and interna-tional consumer “cop”. The line was essentially that northern countries should not betelling southern countries how to regulate their markets. This thinking seems to havebeen conveniently set aside over the decades in which neoliberal policies (the Washing-ton Consensus) have been pushed on to developing countries including through suchinstitutions as the IMF and the World Bank.

It is interesting that in his 1993 report on progress in implementation of the Guide-lines the UN Secretary-General notes that both developing and developed countrygovernments ”reported that the guidelines had had a significant impact on their work”on consumer policy. Today, a Google search on the guidelines produces more than20,000 entries. A sampling of these entries indicates as much interest in developed asdeveloping countries. It would seem that suggestions that the guidelines are conde-scending toward developing countries were quite ill-founded.

The UN Secretary-General’s 1993 report indicates a significant global take-up of theguidelines in national legislation by that time. There does not appear to be an up todate survey of the extent of implementation, but indications are but a minority of na-tions have not yet enacted reasonably comprehensive consumer protection legislation.Amongst ASEAN member states, for example, all but one either have such legislationor are in the process of finalising it.

The UN Guidelines call upon governments to develop, strengthen and maintain astrong consumer policy, and provide for enhanced protection of consumers by enunci-ating various steps and measures around the following eight issues:

�� : �� : �� 115• Physical safety

• Economic interests

• Standards

• Essential goods and services

• Redress

• Education and information

• Specific areas concerning health

• Sustainable consumption

In the 25 years since the Guidelines were first agreed, commentators and policymak-ers have come to describe the principles in the language of consumer “rights”. In thisregard a common restatement of the Guidelines can be found in the Charter of Con-sumers International which renders the Guideline as eight consumer rights. They arethe:

1. Right to satisfaction of basic needs

2. Right to safety

3. Right to choice

4. Right to redress

5. Right to information

6. Right to consumer education

7. Right to representation

8. Right to healthy environment

The Guidelines have two kinds of provisions. The first kind set out the assistance peo-ple everywhere should be given to advance and protect their interests as consumers ofgoods and services and the rules that should apply to protect them in circumstanceswhere they cannot be expected to protect themselves. The second kind of provisionsin the Guidelines indicate how governments might best go about providing such assis-tance and making such rules including how they should cooperate with each other.

The provisions of the first kind, particularly with the additions on sustainable con-sumption in 1999 which originated at the 1992 Earth Summit in Rio, are quite compre-hensive. The proposed additions on access to knowledge would take the guidelines amajor step further.

When national laws fully reflect the Guidelines they provide the legal basis forupholding the eight consumer rights that the international consumer movement hasadopted. A very useful guide on what consumer protection laws need to cover torealise these rights was prepared by John Wood (Wood 1996). This is at Appendix 1.

No doubt both the first kind of provisions and the second kind and their imple-mentation should, at least for the foreseeable future if not beyond, be seen as worksin progress. Social, economic and technological change mean that consumer lawsneed continual updating and the same is likely to apply to the Guidelines. In my viewthough, there is rather more work to be done in relation to the guidelines’ second kindof provisions than the first and this paper concentrates on these.

116 �� The Policy and Regulatory Realities the Guidelinesand Their Implementation Must RecogniseThere are some who hold to the view that markets, or most of them, work entirelysatisfactorily without regulation. I suggest that most participants in markets, both con-sumers and producers, accept that rules are necessary for their efficient and equitablefunctioning. But the soundest rules, both consumer protection and competition, arenot sufficient for effective protection of consumers, advancement of their interests andthe achievement of sustainable consumption and efficient allocation of resources.

Three additional conditions are critical:

• Each type of market, for its efficient and equitable operation, needs to be disciplinedby a proportion of educated and informed consumers. The proportion needed willvary depending on the characteristics of the market in question.

• The institutions administering the rules need to be well designed and well re-sourced.

• The people responsible for complaint resolution and regulatory enforcement mustbe not only well trained, but be able to act uninfluenced and be prepared to takesome risks.

The underpinning of all four conditions is of course sound public policy -in this dis-cussion, consumer policy. Consumer policy is aimed at achieving equity and efficiencyfor consumers and the public interest by means of the most efficacious mix of marketforces and regulatory or other intervention.

Consumer policy can be divided into three main subsets:

1. Policy to empower consumers to act in their own interests – Consumer empower-ment policy;

2. Policy to provide for protection of consumers and action on their behalf in circum-stances where, for one reason or another they are not able to fully prosecute theirinterests – Consumer protection policy; and

3. Policy to ensure, as far as possible, consumers benefit from competition so thatefficiency gains make standards as high as possible and prices as low as possible –Competition policy.

While all three areas of policy relate to some extent to all the consumer rights there isa closer nexus between certain of the rights and one or other of these policy areas asfollows:

Consumer empowerment policy relates mainly to:

• Right to redress

• Right to information

• Right to consumer education

• Right to representation

Consumer protection policy, which in broad terms is policy concerning the stan-dards of goods and services and the conditions directly affecting the trade betweenbuyer and seller relates mainly to:

�� : �� : �� 117• Right to basic needs

• Right to safety

• Right to redress

• Right to information

• Right to a healthy environment

Competition policy, though it affects most other rights, relates mainly to the rightto choice.

Consumer Policy and the Compliance PyramidDevelopment and implementation of consumer policy should be informed by the com-pliance pyramid model. The diagram below depicts a typical pyramid. The numberof levels and the activities at each level will vary from regulatory regime to regula-tory regime. The idea is that the bulk of effort and activity occurs at the base of thepyramid and this diminishes towards the top.

Under all regulatory regimes there is considerable scope for both consumer ac-tors and industry actors to contribute at the base level. Individual consumers cancontribute by drawing a company’s attention to marketplace problems. Industry as-sociations and companies can do much in the way of compliance programmes andcomplaint handling. Consumer organisations work with industries and companies andcan distribute information to consumers.

In some regulatory regimes there is scope for both consumer and industry actorsto contribute right up to the top level. The effect of this contribution from consumerand industry actors is of course to broaden the pyramid, to increase the activity at the

118 �� lower levels, thus reducing the need for activity at the higher levels and making theregulatory regime more effective and efficient.

For regulatory regimes to be fully effective the top level has to be, and be seen tobe, real. This does not mean it always has to be utilised, but a real potential for utili-sation is necessary. In the end, the government of the day must make it clear that it isprepared to back up the regulatory agency involved.

The stronger the commitment and support from government, industry and con-sumers (or citizens in respect of public interest issues or workers in respect of workerprotection), the broader the regulatory/compliance pyramid can be at its base and thusmost effective and efficient as depicted in the diagram below.

Where tripartite commitment is weak or lacking the pyramid structure collapses andthe regulatory agency is limited to relatively ineffectual activity in the middle levels asrepresented in the diagram below.

Consumer Policy Implementation – Four ElementsSound consumer policy and its effective implementation will only be achieved with thefour following interdependent activities well undertaken:

• Research

• Advocacy

• Policy and rule making

• Compliance action and consumer support.

The Guidelines either explicitly or implicitly have quite a lot to say about each of these.

�� : �� : �� 119There must be two-way interaction between all four and the process must be contin-

ual and continuous (as depicted in the diagram below) as the process of change in thecharacteristics of markets rarely pauses.

The main functions that need to be performed in respect of these four areas of activ-ity are as follows:Research

• Research and analysis of market sectors – both supply and demand sides

• Collection of data on the performance of market sectors

Advocacy

• Public interest advocacy for sustainability

• Producer advocacy

• Consumer advocacy

for

• Policy and/or regulatory reform

• Regulatory decisions – tariff approvals etc

• Improved administration of regulation

• Individual cases

• Improvements in companies’ services

for consumers in general or for disadvantaged or vulnerable consumersPolicy and rule making

• Policy development

120 �� • General rule/regulatory instrument development and review

• Review and reform of regulation of a market sector.

Compliance action and consumer support – education, information, compliance pro-grammes, rule enforcement, dispute resolution

• Education and dissemination of information to consumers

• Education and dissemination of information to suppliers

• Industry association and company level programmes for compliance with regula-tion and for continuing consumer service improvement

• Administration of general regulation for consumer protection and competition andfor worker protection and environment protection

• Administration of market sector regulation

• Collection of complaints/disputes

• Independent mediation/conciliation and arbitration of complaints/disputes and

• Management of particular cases (eg. hardship cases).

There are many options for allocation of performance of these functions to differentagents and many may be undertaken by more than one stakeholder. All these func-tions are integral to the effective operation of a market.

ResearchII 8 of the UN Guidelines states:

The potential positive role of universities and public and private enterprises in researchshould be considered when developing consumer protection policies.

Promotion of sustainable consumption is a very important and large part of the UNGuidelines and in relation to this there are a number of references relevant to researchneeds including:

45. Governments should encourage the design, development and use of products andservices that are safe and energy and resource efficient, considering their full life-cycleimpacts. Governments should encourage recycling programmes that encourage consumersto both recycle wastes and purchase recycled products. and 55. Governments and otherrelevant organisations should promote research on consumer behaviour related to environ-mental damage in order to identify ways to make consumption patterns more sustainable.

In many countries there is an inadequate capacity in this area, particularly in termsof knowledge of how consumers are coping with changing markets. For example wedo not know for a number of markets whether sufficient consumers are undertakinginformation searches so that the demand side is making competition work adequately.Frequently advantage is not taken of the large amount of data that many communitybased organisations have to inform policy development. Research is needed in allcountries in this area. In many developing countries where there are high levels ofextreme poverty and low levels of literacy and education, it is especially important to

�� : �� : �� 121know how well ordinary consumers are coping with markets for basic needs and howwell those markets are delivering.

On the matter of research on consumer behaviour related to environmental damage,while there is need for this in developing countries, the larger responsibility is withdeveloped countries where the environmental footprint of the individual consumer ismany times larger.

Funding from international donors should be sought to support research and allopportunities to undertake collaborative research internationally should be taken.

AdvocacyWhile broad agreement can usually be achieved amongst a range of views on the otherthree elements, the resources they consume and the manner in which they should beperformed, there is often controversy on advocacy. However there is no denying thatadvocacy plays a very significant part in public policy formulation and implementa-tion.

While the research on a market might be comprehensive, policy and rule makersand regulators are likely to hear more about aspects and perspectives relevant to theinterests of those whose livelihoods are involved in the market than about aspectsand perspectives relevant to the interests of consumers or to the public interest. Itis the costs and benefits of advocacy that determine this. In the extreme, policy andrule makers and regulators can be captured by producer interests. This becomes aparticularly complex issue when the producers themselves may also be struggling tomaintain financial security, and the temptation to ‘cut corners’ can mean the differencebetween surviving or not.

Getting citizens in general to advocate their interests or pay up to have their inter-ests represented as consumers of a good or service or beneficiaries of a clean environ-ment is much harder. The benefits of participation in advocacy are often seen to fallwell below the costs. This is largely due to the “collective action problem” described in1965 by Mancur Olson So, where public policy and regulation should reflect a diffusepublic interest, members of the community at large will, not unreasonably, questionwhy they should devote a lot of time and energy with everyone else “free riding” ontheir efforts.

Of further concern is the fact that many people in disadvantaged groups in thecommunity are, in any case, disempowered in advocacy. For a range of reasons theyare unable, or find it very difficult, to engage in participation processes available.

Regulatory arrangements need to be adaptable. This means that care must be takento provide for the weakest voices to be heard in the adaptation process.

The increasing globalisation of public policy formation is problematical. Compro-mises from national positions often occur at international forums. Such compromisesare more likely to be in favour of producer interests because members of nationaldelegations to these forums are rather more likely to be exposed to the advocates ofproducer interests than consumer movement advocates.

Advocacy can be seen as occurring both extra and intra state. Intra state advocacyis provided by the agency charged with consumer policy development and other inter-ested agencies and by members of parliament. In many countries it is also provided byconsumer advisory committees in various forms. When such committees have statu-tory independence they can be more effective.

122 �� Extra state advocacy is provided by:

1. The consumer movement and other community sector interests

2. Industry and industry organisations

3. Academics

4. Professional bodies

A number of countries have industry ombudsman and other external dispute res-olution administrators. Because these agencies have so much information on whatis really happening in a market they can make important contributions to advocacy.However, it is somewhat constrained, as they must be careful to maintain their statusas impartial umpires between producers and consumers.

Consumer Movement AdvocacyThe UN guidelines on consumer protection deal with the issue of consumer represen-tation or advocacy in a number of different ways. Objective 1 (e) of the UN guidelinescalls for “Government action to facilitate the development of independent consumergroups.”

The guidelines also say that opportunities are to be provided to consumer groupsfor presenting their views in the decision-making process or to speak up on behalf ofconsumers and, in particular, measures are to be put in place to represent the interestsof disadvantaged consumers.

Laws and policies which are designed to protect the interests of consumers arealmost certain to fail in their objective unless there is a systematic opportunity for con-sumers and their representatives to influence the policy, its expression in legislationand the administration of that legislation or regulation. In his keynote speech to a 2009

conference on Consumer Protection in Bangladesh, for these reasons Doctor Atiur Rah-man, Governor of the Bangladesh Bank, regretted the lack of civil society organisationsin his country involved in representing consumers’ interests within that country.

In a number of developed countries, consumer organisations have been successfulin building membership or supporter groups by essentially selling the results of theirproduct testing. However, this has been largely restricted to middle class consumersable to afford the price of the information. This means that products or markets dealtwith are largely those related to middle class consumption patterns. In addition thereis a limit to the extent that income from information selling can cross-subsidise pub-lic interest advocacy. The structure of the movement in most developed countries,therefore, comprises a single large product-testing organisation and a large numberof relatively small or poorly resourced groups either geographically or issues based.It would seem that product-testing organisations have been generally able to securenational monopolies for their services to consumers.

In some countries, notably the USA, significant extra resources have been availablefrom donations from charitable foundations for example. The personal contribution ofRalph Nader from the earnings of his books and lectures is not inconsiderable. Thissort of support has been rather limited in other countries.

Developed country governments though, have recognised the resource constraints ofconsumer organisations and provided state financial assistance. Referring particularly

�� : �� : �� 123to consumer policy issues, William Gormley shows that even in the USA, where con-sumer organisations are better resourced from their own efforts than anywhere else,there is still a need for state assistance:

Without such support, citizens must often choose between passive acquiescence and hys-terical appeals to the mass media for publicity. With government support, citizens cansharpen their own understanding of complex issues before they make a case to the bu-reaucracy. The playing field (between producer and consumer interests) may not be equal-ized, but it does become more equal. (Gormley 1991)

Decades ago in Australia the argument for state assistance being provided to publicinterest groups was well articulated in the report of the Royal Commission into Aus-tralian Government Administration (1976). Appendix 2D of the Report specified thatto receive such assistance:

citizens’ groups should meet the following criteria:

• they represent certain interests deemed worthy of support; especially of the economi-cally and socially deprived and the public at large;

• they are properly constituted;

• the funds are used for specified purposes;

• the group’s accounts are audited;

• the group report on how the funds were spent.

The Commission recommended (R90) that a special neutral agency be establishedto provide this assistance. This has not been implemented, but all governments sincethen have given financial assistance to consumer organisations amongst others. Itis critical that while some of this assistance has been given in response to particularproject proposals, organisations have received grants-in-aid to provide general supportfor their operations and activities that they independently decide to undertake fromtime to time. This has meant, for example, that they have been able to advocate policypositions not favoured by the government of the day.

Pursuant to Objective 1 (e) of the Guidelines governments of all countries shouldsatisfy themselves consumers’ associations have the resources needed to perform astrong advocacy role. It would be useful if there were some elaboration of Objective1(e) on the question of resourcing. There has always been some reservation amongstCI (IOCU) members on the question of state support for consumer organisations.When the guidelines were written the influence of the large product testing, infor-mation selling consumer organisations of the north, which were very jealous of theirindependence from government, may well have been the reason why the Guidelinesare silent on the matter of government funding. If the Guidelines had tackled the ques-tion, and had set out some principles on government funding to limit influence onconsumer organisations, the consumer movement might well be a larger global forcetoday than it is.

Especially in developing countries there are many demands on government fund-ing. But the improvements on efficiency and equity of markets that a strong nationalconsumer movement can achieve multiply many times the value to the community ofproviding such funding.

Having said this it is also appropriate for funding from international donors tobe sought. A 2000 CI paper The management and funding of consumer organisations wasnot very optimistic about funding of indigenous consumer organisations from donor

124 �� countries. The paper foresaw some constraint on the growth of development assis-tance (DA) funding globally. In the event, the last decade has actually seen substantialincreases. The immediate future will likely see a pause in growth in DA from somecountries due to the “Great Recession”, but it is noteworthy that the UK has quaran-tined this funding from its budget cuts and that Australia is doubling its DA budgetover the next couple of years.

Although there had been a general increase in funding to NGOs up to 2000 thepaper warned that this might not continue. The last decade has seen some greater cau-tion in NGO funding due to some practical problems, but DA through NGO continuesto be seen as potentially efficient and effective especially to avoid corrupt misallocationof funds. The paper probably correctly suggested “Donors will tend to concentratetheir limited resources towards NGOs in their own country where they have greatercontrol and visibility to their publics.” and are “likely to reduce the percentage ofNGO project costs they will fund.” A result of this approach is the growth of partner-ships between donor country NGOs and those indigenous to developing countries.This is the mechanism that developing country consumer organisations should pursueand a number are.

The UK White Paper on International Development – Eliminating World Poverty: MakingGlobalisation Work for the Poor (DFID, 2000) stated: “While the market fundamentalismof the 1980s and early 1990s has been thoroughly discredited, it is now almost uni-versally accepted that efficient markets are indispensable for effective development.”The consumer movement may well not have promoted effectively enough the contri-bution it has made and can make to optimising the contribution of efficient marketsto development. The potential for northern financial support for southern consumerorganisations may be very under realised though CI has had some success in gettingsuch support as have some national organisations notably the Consumers’ Unity andTrust Society of India.

In 2002 I wrote:

In their extensive survey of the way markets are regulated at the global level, Braith-waite and Drahos (2000) find that key actors include governments, transnational corpora-tions, labour organisations, international institutions and civil society organisations. Theyconclude that the rules adopted reflect the interests of the most powerful actors – “theglobal law-makers”, that civil society organisations have been the weakest actors and that“Women, excluded national minorities and citizens of developing countries are the law-takers”, thus the rules adopted do not operate in their interests. Of the actors involved,they decide that civil society organisations have the greatest potential to enhance the po-sition of the law-takers. Amongst CSOs they see the international consumer movement,given its purposes and expertise in making the most of markets, as being in a very specialposition, indeed potentially “an NGO powerhouse of the next (21st) century.

They advance a demanding programme for the movement, which, inter alia, requires itto “globalise to consumer organisations in developing countries”. They say, though, thatfor the movement to do all they ask “would require the funding leverage of a visionaryfoundation. (Brown 2002)

Efforts should grow to recruit that visionary foundation and to increase nationaland international government funding, but other mechanisms should be explored. Onesuch that has worked in the USA, should work in other developed countries and mightbe appropriate in some developing countries, involves requiring utility services to pro-vide for their customers to make a very small donation to a consumer organisation aspart of the bills that they pay. Growing organisation membership, on which the 2000

CI paper places some emphasis, should always be a priority, but in most countries

�� : �� : �� 125members of consumer organisations are not likely to be numerous especially amongstlower income consumers who are the most vulnerable and in need of protection re-forms.

Policy and Rule MakingThe UN Guidelines state:

II. General principles

2. Governments should develop or maintain a strong consumer protection policy, takinginto account the guidelines set out below and relevant international agreements. In sodoing, each Government should set its own priorities for the protection of consumers inaccordance with the economic, social and environmental circumstances of the countryand the needs of its population, bearing in mind the costs and benefits of proposedmeasures.

3. The legitimate needs which the guidelines are intended to meet are the following:

(a) The protection of consumers from hazards to their health and safety;(b) The promotion and protection of the economic interests of consumers;(c) Access of consumers to adequate information to enable them to make informed

choices according to individual wishes and needs;(d) Consumer education, including education on the environmental, social and eco-

nomic impacts of consumer choice;(e) Availability of effective consumer redress;(f) Freedom to form consumer and other relevant groups or organisations and the op-

portunity of such organisations to present their views in decision-making processesaffecting them;

(g) The promotion of sustainable consumption patterns.

4. Unsustainable patterns of production and consumption, particularly in industrializedcountries, are the major cause of the continued deterioration of the global environment.All countries should strive to promote sustainable consumption patterns; developedcountries should take the lead in achieving sustainable consumption patterns; de-veloping countries should seek to achieve sustainable consumption patterns in theirdevelopment process, having due regard to the principle of common but differentiatedresponsibilities. The special situation and needs of developing countries in this regardshould be fully taken into account.

5. Policies for promoting sustainable consumption should take into account the goals oferadicating poverty, satisfying the basic human needs of all members of society, andreducing inequality within and between countries.

6. Governments should provide or maintain adequate infrastructure to develop, imple-ment and monitor consumer protection policies. Special care should be taken to ensurethat measures for consumer protection are implemented for the benefit of all sectors ofthe population, particularly the rural population and people living in poverty.

7. All enterprises should obey the relevant laws and regulations of the countries in whichthey do business. They should also conform to the appropriate provisions of interna-tional standards for consumer protection to which the competent authorities of thecountry in question have agreed. (Hereinafter references to international standards inthe guidelines should be viewed in the context of this paragraph.)

8. The potential positive role of universities and public and private enterprises in researchshould be considered when developing consumer protection policies.

Consumer policy is clearly at least as complex as any other area of public policy andrequires perhaps even more extensive whole of government approach. There is always

126 �� large overlap between areas of public policy, which of course is why interdepartmentalcommittees, Cabinet coordination processes and whole of government approaches arefrequently needed to make sound public policy. Consumer policy has more overlapsthan most policy areas. Perhaps only defence policy is outside its circle. The diagrambelow illustrates this. Clearly a large part of the consumer policy role in governmentis informing other policy makers about the consumer interest, eg. through consumeradvisory bodies or consumer impact statements.

Compliance Action and Consumer SupportIn many countries consumer regulation enforcement is undertaken by a statutoryagency which is not directly answerable to the government of the day. In some coun-tries consumer protection and competition regulation are administered by a singleagency and this model can be very effective. However, there is a problem of givingbalanced attention to:

• big issues involving big powerful players – mergers, takeovers, cartels etc

• issues that are small, but affect many small players

• issues that affect few small players, but severely.

This can be a difficult management task perhaps in part because big powerful play-ers can make more noise than small players. Some suggest that the only way it can beachieved is by having separate agencies. On balance, the advantages of a fused agencyin terms of synergies and the value of understanding competition, consumer protec-tion and empowerment issues in a particular market, outweigh the disadvantages.

�� : �� : �� 127A separation of responsibilities for consumer protection and competition regulationbetween the statutory officers of the agency is a possible way to ensure balance.

Community support for competition policy and regulation is sometimes weak asthe benefits are not well understood making it politically difficult for governments tomake the needed reforms and for laws to be effectively enforced. Where a single actof parliament provides for both consumer protection and competition regulation andwhere a single agency is responsible for enforcement of both kinds of regulation itis easier to build community understanding of the benefits of competition and thussupport. The Australian Competition and Consumer Commission, for example, isinvariably described in the media as the “consumer watchdog” whether its consumeror competition actions are being reported.

A Compliance Role for Consumer OrganisationsIn some countries, the UK for example, citizens’ consumer organisations have beengiven special legislated roles to bring complaints before regulatory agencies on behalfof numbers of consumers (in the UK these are called “Super complaints”) and thiscan be very effective in ensuring that agencies are dealing effectively with marketplace abuses. Another mechanism is to provide for consumer associations to havestanding in litigation on behalf of classes of consumers. Such mechanisms need to beaccompanied by a means of providing financial support to cover legal costs.

Non-statutory regulationThe UN Guidelines state:

B 26: Governments should, within their own national context, encourage the formulationand implementation by business, in cooperation with consumer organisations, of codes ofmarketing and other business practices to ensure adequate consumer protection. Volun-tary agreements may also be established jointly by business, consumer organisations andother interested parties. These codes should receive adequate publicity.

and

E. Measures enabling consumers to obtain redress

32. Governments should establish or maintain legal and/or administrative measures toenable consumers or, as appropriate, relevant organisations to obtain redress throughformal or informal procedures that are expeditious, fair, inexpensive and accessible.Such procedures should take particular account of the needs of low-income consumers.

33. Governments should encourage all enterprises to resolve consumer disputes in a fair,expeditious and informal manner, and to establish voluntary mechanisms, includingadvisory services and informal complaints procedures, which can provide assistance toconsumers.

34. Information on available redress and other dispute-resolving procedures should bemade available to consumers.

In a number of countries non-statutory codes of conduct regulate industry sectors andoften result in higher standards than are required by black letter law. These may beinitiated by government or industry or citizens organisations. They are ideally admin-istered by independent agencies. Some are governed by bodies with balanced industryand consumer representation. In other cases they can be administered by govern-ment officials. In Australia, for example, the national government ombudsman is com-missioned to administer the code and deal with disputes for the postal and courier

128 �� industry and recently has been given a similar role in relation to private companiessupplying education services to overseas students.

Such schemes are usually established by a deed amongst the companies involved.The great advantage to a complainant is that a complaint can be speedily adjudicatedand remedial action and/or compensation, up to an amount specified in the deed,ordered by the administrator of the scheme.

Of particular importance is that these schemes are funded by the industries in-volved and thus are not a demand on the public purse. Industries covered usuallyinclude financial services, electricity and communications. In the context of develop-ing countries such industries would tend to be those the products of which are mainlyconsumed by better off consumers. This means the cost of consumer protection inthe markets of those industries can be contained to the participants in the markets.Therefore government funded consumer protection agencies can devote more of theirresources to protecting lower income consumers.

Consumer Support through Education and InformationGeneral Principle 3 of the Guidelines provides:

The legitimate needs which the guidelines are intended to meet are the following:

(c) Access of consumers to adequate information to enable them to make informedchoices according to individual wishes and needs;

(d) Consumer education, including education on the environmental, social and economicimpacts of consumer choice.

According to the Guidelines, government should encourage the development ofgeneral consumer education programmes, bearing in mind the cultural traditions ofthe people concerned. The aim of such programmes should be to enable people toact as discriminating consumers, capable of making informed choices of goods andservices and conscious of their rights and responsibilities. In developing such pro-grammes special attention should be given to the needs of disadvantaged consumers.The UN Guidelines have some specific provisions relating to consumer education.They are:

• the introduction of consumer education in basic school curricula,

• consumer education programmes should be delivered in the mass media and

• that government should pay specific attention to problems of consumers in ruralareas and the illiterate.

In F 35 of the UN Guidelines it is stated, inter alia “Consumer groups, business andother relevant organisations of civil society should be involved in these educationalefforts.”

In many countries, particularly developing countries there is no clear-cut policywith respect to consumer education. Many individual government ministries or agen-cies might undertake small though typically uncoordinated exercises in education butthese are rare and limited. The majority of consumers in developing countries are notfully aware of the rights they possess or the nature of consumer protection legislationor its implementation mechanisms.

There are very large obstacles to overcoming the problems of inadequate consumereducation. These include a low ratio of literacy particularly in rural communities

�� : �� : �� 129together with the high incidence of poverty. A critical issue is the lingering lack ofawareness about consumer issues which prevent consumers acting in their own in-terests. It should also be noted that the most effective forms of consumer educationare provided on the subject matter and at the time when issues are of concern to con-sumers. In this regard consumer education should be needs-based and should attemptto teach skills which go beyond dealing with issues immediately apparent.

Intergovernmental Cooperation – Regional andInternationalPart IV, International Cooperation, of the Guidelines is extensive. The UN Secretary-General’s 1993 report noted a number of activities undertaken to develop regional andinternational cooperation to that date though mostly these were somewhat transient incharacter and such activities have continued to the present.

A significant cooperation mechanism, established 1992, is the International Con-sumer Protection and Enforcement Network (ICPEN) (Formerly called the Interna-tional Marketing Supervision Network (IMSN)). This is an organisation composed ofconsumer protection authorities from almost 40 countries. The aims of ICPEN are:

• Protect consumers’ economic interests around the world;

• Share information about cross-border commercial activities that may affect con-sumer welfare;

• Encourage global cooperation among law enforcement agencies.

ICPEN so far has only a few developing country authorities in its membership, butit is moving to bring more in. Mongolia, Papua New Guinea, Vietnam and Nige-ria, for example, are in the process of joining. Its presidency, which is currently theNetherlands authority, will next go to the authority in Costa Rica. It is focussing onthe following three work streams which all will result in benefit to developing countryauthorities:

• Gathering and analysing intelligence on regulation – what works and what does notwork so well;

• Developing best practice on analysis of regulation; and

• Practical international enforcement cooperation.

ICPEN will produce best practice guides and run best practiced workshops in con-junction with its conferences, which are likely to be particularly useful to authorities indeveloping countries. (Kell 2011)

A limitation on ICPEN is that it operates on the basis of member authorities fund-ing their own participation though the USA additionally contributes secretariat ser-vices. It would be useful for donor countries to contribute to a fund to support devel-oping country participation.

Over the years CI itself has been active in various ways in facilitating intergovern-mental activities. One such was the government group meetings at CI Congressesinitiated at the 1987 Congress by John Wood, then Director of the Australian FederalBureau of Consumer Affairs. This proved a useful mechanism, especially for organis-ing twinning arrangements between north and south consumer affairs agencies, andshould be re-established for future Congresses.

130 �� Establishment of facilities for cooperation and collaboration at the regional level

would significantly accelerate building consumer policy and regulation capacity indeveloping countries. A proposal for an Asia Pacific Institute for Consumer Train-ing, Information and Education was prepared in 1992 by Anwar Fazal (Fazal 1992).At Appendix 2 is an outline for an Asia Pacific Consumer and Competition Facility Iproposed in a paper a decade ago. (Brown 2002) I have made a similar proposal, butlimited to consumer policy and regulation and to ASEAN Member States, in connec-tion with a current ASEAN project – Road-Mapping Capacity Building needs in con-sumer protection in ASEAN – ASEAN-Australia Development Cooperation Program II(AADCP II).

Some funding for such regional facilities would come from participating countries,but where some participating countries are less developed donor funding would beappropriate. In the ASEAN case Australia should be a major contributor.

ConclusionWhile there is much still to achieve the Guidelines have made a major contribution tothe advancement of the position of consumers around the world. The addition of theproposed provisions on access to knowledge would take the Guidelines a major stepfurther. It is to be hoped that CI can soon recruit two or three UN member nations tosponsor these amendments.

2015 will be the thirtieth anniversary of the adoption of the Guidelines. CI shouldadvocate a full review of the Guidelines, and the progress each member nation hasmade in their implementation, to be completed by that date. The process to add theaccess to knowledge provisions, however, should not be delayed due to this. Again, itwould be necessary to get two or three member nations to champion such a review. Afirst step would be to seek funding for a scoping study. A number of countries and/ortheir citizens were instrumental in the Guidelines coming into being. Australia and anumber of its citizens, especially the late David Harland, played a significant role andit should be one country prepared to contribute again.

ReferencesAnonymous 1993 Consumer protection report of the Secretary-General of the United NationsJournal of Consumer Policy; 1993; 16, 1.

Asher, Allan; John T. D. Wood 1995 Government and the Guidelines, in Ten Years of the UNGuidelines for Consumer Protection. International Organisation of Consumers Unions.IOCU, London 1995.

Braithwaite John and Peter Drahos 2000 – Global Business Regulation Cambridge [Eng-land]; New York: Cambridge University Press.

Brown, Robin 2002 Developing Countries and the Market System – Toward Better Policyfor Aiding the Contribution of Civil Society Consumer Organisations – a discussion paperpublished by the Australian National University Public Policy Program 2002.

Brown, Robin 2002 International Effective Markets Regulation: Collaboration Amongst AsiaPacific Countries in Consumer and Competition Regulation – a paper for General PolicyWorkshop, Manila 2002 of the Consumer Protection & Competition Law Development

�� : �� : �� 131Project under the APEC Support Program (Australian Agency for International Devel-opment).

DFID – Department for International Development UK 2000 – White Paper on Interna-tional Development -Eliminating World Poverty: Making Globalisation Work for the Poor.

Edwards, Julian 2004 a CI/UNEP Report.

Fazal, Anwar 1992 Towards the Development of an Asia Pacific Institute for Consumer Train-ing, Information and Education – A Concept Paper

Gormley, William T, 1991 – “The Bureaucracy and its Masters: The New Madisonian Systemin the US”, Governance: An International Journal of Policy and Administration Vol 4

No 1 January.

Harland, David 1987 “The United Nations Guidelines for Consumer Protection. Replyto the comment by Weidenbaum”, Journal of CP in JCP, 10, 1987/4 Journal of ConsumerPolicy Volume 11, Number 1, 111-115, DOI: 10.1007/BF00411523.

Kell, Peter (immediate past president of ICPEN and Deputy Chair, Australian Compe-tition and Consumer Commission) 2011 Personal communication.

Martin, Josh 1984 Consumer and Corporate Codes Widen North-South Spilt, NEWS MON-ITOR, February 1984 -VOLUME 5-NUMBER 2 http://multinationalmonitor.org/

hyper/issues/1984/02/martin.html.

Royal Commission into Australian Government Administration 1976 Report and “Ap-pendix 2.D Interest Group Access to the Australian Government Bureaucracy – ConsultantsReport” Canberra: AGPS.

Wood, John T D. 1996 What Consumer Laws Should Do (Based upon Consumer Interna-tional’s Eight Consumer Rights). Consumers International, 1996.

132 �� Appendix 1What Consumer Laws Should Do

(Based upon Consumers International’s Eight Consumer Rights)

Note: Reference to consumer laws includes related laws

The Right to SafetyConsumer laws should:

1. Protect consumers from products or services which are dangerous or unsafe, orwhose use might cause injury to others, by:

• Establishing a general duty of safety upon suppliers.

• Banning the supply of unsafe goods.

• Prescribing safety and information standards with which goods or services mustcomply.

• Establishing procedures to examine products and services alleged to be unsafe.

• Monitoring the market place for unsafe goods and services.

• Warning consumers of the possible risks involved in the use of certain goods orservices.

2. Ensure that information about unsafe products and services is collected and madeavailable to consumers, by:

• Establishing procedures to collect and disseminate information on particulargoods and services identified as being unsafe.

• Establishing procedures for the notification to authorities by consumers of al-leged hazardous goods and services.

• Requiring suppliers who become aware that their goods or services are unsafe toadvertise any dangers.

3. Ensure that dangerous products are recalled from suppliers, by:

• Requiring any manufacturer who recalls goods for safety reasons to notify rele-vant authorities of the recall.

• Establishing procedures for the monitoring of voluntary recalls to ensure they areeffective.

• Allowing relevant authorities to order a manufacturer to recall goods, and tospecify how those goods are to be recalled.

• Giving relevant authorities power to investigate the actions of manufacturers todetermine whether they have complied with laws relating to recalls.

�� : �� : �� 133The Right to be InformedConsumer laws should:

1. Require all necessary information to be given to consumers about the goods andservices they acquire, especially in relation to therapeutic goods and toxic products,by:

• Requiring appropriate statements and warnings to accompany toxic products.

• Regulating the supply of therapeutic goods and toxic products to ensure informa-tion is disclosed in a manner consistent with international best practice.

• Establishing procedures to monitor national and international developmentsrelating to therapeutic goods and toxic products.

• Prescribing mandatory information standards to require particular information tobe disclosed about particular goods not otherwise regulated.

2. Ensure consumers are able to compare different products, by:

• Prohibiting deceptive packaging.

• Requiring packages to clearly identify their price and their contents.

3. Protect consumers from conduct which is false or misleading, by:

• Prohibiting conduct, in relation to the supply of goods or services to a consumer,that is misleading or deceptive, or likely to mislead or deceive, or which is unfair.

• Prohibiting representations about goods or manufacturers and suppliers whichare not true or which could mislead consumers.

• Prohibiting any particular sales or marketing practices which act to the detrimentof consumers.

4. Require all necessary information to be given to consumers about food and drinksin order to enable them to make informed decisions regarding health and nutrition.

5. Ensure that necessary information about goods and services is required to be accu-rate and comprehensible.

The Right to ChooseConsumer laws should:

1. Encourage consumers to acquire only the things they need, by:

• Establishing procedures for community and consumer education about products.

2. Protect consumers from anti-competitive conduct and exploitation, by:

• Ensuring manufacturers and suppliers do not abuse their powers.

• Giving consumers rights to obtain redress for goods which are unsafe, unsuit-able, defective or of poor quality.

3. Protect consumers by ensuring effective trade measurement practices and standardsare adopted and enforced.

4. Prohibit direct sales and marketing practices without appropriate ’cooling off’ peri-ods.

134 �� The Right to be HeardConsumer laws should:

1. Ensure consumers can participate in the development of policies which affect them,including giving consumer representatives access to the media, by:

• Requiring administrative and political bodies responsible for matters affectingconsumers to include members representing consumers.

• Requiring laws and policies which affect consumers to be publicised before theyare introduced to allow consumers to comment on them.

• Establishing procedures to channel any comments or complaints made by con-sumers to appropriate authorities, and to monitor the response to those com-ments or complaints.

2. Facilitate the establishment of complaints handling systems in both the governmentand non-government sectors, including the involvement of consumer representa-tives in the process -ensure consumers have standing to take action in courts andtribunals, including as third parties, to protect consumer interests.

3. Enable consumers to take collective action before courts and tribunals.

4. Enable indigent consumers to enforce their rights by providing access to legal andfinancial assistance.

The Right to RedressConsumer laws should:

1. Provide consumers with cost-effective, speedy and accessible means to enforce theirlegal rights, by:

• Establishing a court or tribunal, with a simple procedure, to hear consumer com-plaints.

• Prescribing procedures to ensure consumers know their rights and how to en-force them, particularly in relation to disadvantaged groups.

• Ensuring that consumers are allowed to play an equal role in the resolution oftheir disputes.

• Providing consumers with effective remedies and reasonable compensation iftheir complaints are found to be justified.

2. Provide consumers with a right to compensation if they are injured as a result ofunsafe goods or faulty services.

3. Provide a mechanism through which consumers can channel their complaints andgrievances to government, by:

• Establishing mechanisms to collect and register consumer complaints and grievances.

• Prescribing procedures to investigate complaints.

• Prescribing procedures to monitor the number of complaints and grievances, andto report any results back to the consumer.

�� : �� : �� 1354. Ensure that consumers are properly compensated for any loss suffered if their con-

sumer rights are contravened, by:

• Ensuring any court or tribunal can provide a consumer with an appropriateremedy if it is established that the consumer’s rights have been contravened.

5. Protect consumers from intimidation or harassment if they seek to enforce theirrights.

6. Establish effective post-sale consumer protection, by:

• Implying into contracts for the supply of goods and services, non-excludablewarranties governing acceptable quality, fitness for known purpose, and, in rela-tion to services, that they are rendered with due care and skill.

The Right to Consumer EducationConsumer laws should:

1. Be written in language which can be easily understood.

2. Establish procedures which ensure consumers are informed about their consumerrights, particularly consumers with special needs, by:

• Prescribing mechanisms to monitor consumer awareness and use of their rights.

• Introducing laws to protect particular groups with special needs as required.

3. Set in place mechanisms to inform consumers about how to enforce their rights.

4. Ensure consumers are aware of their consumer responsibilities.

The Right to a Healthy EnvironmentConsumer laws should:

1. Protect consumers from pollution of the environment, by:

• Promoting the use of products which are environmentally friendly.

• Encouraging recycling of consumer goods.

• Requiring environmentally dangerous products to carry appropriate warningsand instructions for the safe use and disposal of the product.

2. Promote the use of non-toxic products where available, by:

• Promoting consumer awareness of safer alternatives to toxic products.

• Establishing procedures to monitor international developments and ensure prod-ucts which are banned overseas do not find their way into national markets.

3. Ensure the social costs of pollution are minimised.

4. Encourage the promotion of ethical and socially responsible practices by the pro-ducers and suppliers of goods and services.

136 �� The Right to the Satisfaction of Basic NeedsConsumer laws should:

1. Promote the provision of information to consumers about products and substanceswhich may adversely affect them, by:

• Requiring therapeutic goods to carry information about safety, efficacy, and sideeffects.

• Requiring any products containing hazardous substances to clearly list all itsingredients and to display appropriate warnings.

2. Protect consumers from unethical, unconscionable, and illegal practices especiallyin the supply or provision of: healthcare; housing and accommodation; education;water; energy; financial services; employment; retirement services; children’s ser-vices; insurance; investment services; and food.

3. Protect the privacy of consumers, by:

• Ensuring telecommunications and other communications are secure from unau-thorised interference and are not used to provide or promote unsolicited com-mercial communications.

• Ensuring personal information about consumers is used only for the purposes forwhich it is collected and with their knowledge and approval.

• Ensuring that consumers have the right to access, amend and correct their per-sonal information held by government or non-government entities.

© John T D WoodAny material may be used with proper attribution.

�� : �� : �� 137Appendix 2Asia Pacific Consumer and Competition FacilityAPCCF

Background

There is a growing international consensus and recognition of the important role ofconsumer and competition policy and regulation in making markets work efficientlyand equitably.

The mission of the APCCF would be to strengthen the institutional, organisationaland technical capacity of countries in the region to implement effective consumerprotection and competition regulatory regimes that are compatible where possible,with the overarching goal of achieving economic welfare, efficiency and social stability,but which also meet the specific requirements of individual economies.

The APCCF would provide focus for development activities, reinforce networks,exchange information on best practice and build technical and organisational capacity.The need for such a facility is highlighted by the following factors:

• Resources in the region generally tend to be insufficient to attack problems inde-pendently, which may result in the development of barriers to trade and investmentbetween countries.

• Resulting need for deeper cooperation in the region.

• Existence of a large number of inconsistent, poorly framed laws across the region.

• There is currently considerable scope for increased coordination of technical assis-tance activities in the region. Assistance is being provided by a range of sourcesand duplication of efforts appears to be occurring. Such a facility could ensure thatdevelopment and technical assistance efforts are not duplicated or wasted.

• Scepticism about the benefits of competition and unfounded fears about the effectsof competition law and policy, particularly in relation to the implications of foreignownership.

Goals

The goals of the facility would be to:

• Assist in sharing of specific technical skills for enforcement.

• Assist in education and technical training of people in policy development andregulatory agencies, business, the legal and other professions, academia and, mostimportantly civil society organisations – especially consumer organisations.

• Assist in development of effective national frameworks for consumer protectionand competition regulation which, while not necessarily the same’ are broadlycompatible with each other.

• Assist in implementation or revision of consumer protection and competitionregimes, as appropriate, so that they cover conduct such as:

1. Monopolies, mergers, price fixing, horizontal and vertical restraints.

138 �� 2. Food and product safety, scams such as pyramid selling and multilevel mar-

keting schemes, misleading and deceptive conduct, including in relation to themisleading promotion of drugs.

• Assist in the process of deregulation and privatisation.

• Develop mechanisms to facilitate access to information in the region about con-sumer protection and competition regulation.

• Provide guidance on best practice policy development and administrative struc-tures and processes in consumer protection and competition regulation and relatedgovernance areas.

• Assist in capacity building of civil society consumer organisations.

The scope of operations of the resource centre could be expanded over time to in-clude other areas of responsibility and to cover other economic activities that are beingsubject to privatisation or structural reform, including for example:

• Strategies to facilitate the detection and control of corruption.

• Consideration of economic governance issues.

• Economic reform of natural monopolies such as in gas and electricity distribution,telecommunications, ports, airports and railways.

In the longer term this facility could evolve into a body with a role similar to that ofthe European Directorate-General for Competition and could deal with regional, crossborder problems.

OutputsThe functions of the facility would be to:

• Coordinate and implement meetings

• Provide education and training programs and skill development and augmenta-tion directed at government officials responsible for both policy and administration,members of the judiciary, academics, business associations and civil society con-sumer groups such as:

1. Scholarships for university study.

2. Training courses.

3. Staff exchange programs between agencies.

4. Study visits to other countries.

5. Work attachments with other agencies.

6. Short term technical assistance programs.

• Collect information and maintain of a central register of laws and regimes applyingin countries in the region and of laws of other countries and of relevant scholarlymaterial.

• Provide short term consultancies for specific work requirements.

�� : �� : �� 139• On request, assist in development of bilateral or multilateral cooperation arrange-

ments.

• Provide a forum for legislation review and assessment processes, with the over-arching goal of promoting harmonisation of laws and practices in competition,consumer protection and utility regulation; and the promotion of market access andreduced barriers to trade.

• Research into common marketplace problems to implement market focused solu-tions.

Membership and GovernanceMembership could be open, but it would seem appropriate to focus on the East Asiaand western Pacific region.

It would seem appropriate for the facility to be governed by a board comprised ofrepresentatives of the participating countries plus some representatives of business andcivil society consumer organisations.

6 Public Interest Representationin Global IP PolicyInstitutionsDr Jeremy Malcolm

Consumers International

A�� This paper compares the institutional and procedural arrangements thata range of global institutions make for civil society representation and input into pol-icy development processes on intellectual property issues.

The context for this analysis comes from two sets of norms for multi-stakeholderpublic policy development that exist in other regimes of governance: those of theAarhus Convention (for environmental matters), and those of the Tunis Agenda for theInformation Society (for Internet governance).

These global norms, along with the actual practices of the institutions involvedin global governance of intellectual property rights, are then contrasted with the pro-posed new institutional mechanisms for ACTA, the Anti-Counterfeiting Trade Agree-ment.

It is found that ACTA falls short even of the practices of the other institutionsanalysed, but far shorter of the ideals promulgated in the Aarhus Convention and theTunis Agenda. Whilst the shortcomings of the ACTA negotiation process are largelyto blame for this, an underlying problem is the lack of a normative framework for civilsociety representation and participation in intellectual property policy development.

1 Introduction

One of the most persistent complaints

⇤ that activists and scholars have broughtagainst the process of negotiations for an Anti-Counterfeiting Trade Agreement (ACTA)is that there has been insufficient openness to civil society, by way of transparency1 or

⇤ This paper was first published online in the PIJIP Research Paper series of the American University Wash-ington College of Law in 2010, where it is available at http://digitalcommons.wcl.american.edu/research/6/.It appears here in print for the first time.

1 Emily Ayoob. Recent Development: The Anti-Counterfeiting Trade Agreement, Cardozo Arts & Ent. L. J.,28:175, 2010.

142 �� public consultation.2

The negotiators have repeatedly denied these charges,3 but in doing have some-times appeared surprised that broader civil society even expects to be consulted onthis agreement. After all, they suggest, ACTA “is not about limiting civil liberties orharassing consumers”.4

In other contexts, this would seem a rather naïve attitude. For example, as thispaper will show, the importance of accountability of and transparency in decision-making, and the public’s right to be consulted during the preparation of normativeinstruments, are quite rudimentary concepts in both environmental law and in Internetgovernance.

However, having been raised, the question should be squarely addressed: since gov-ernments (or at least those that are negotiating ACTA) are the democratically electedrepresentatives of their citizens, what need is there for civil society to be directly in-volved in the negotiation and implementation of an international agreement at all?

The simplest answer is that at the international level, policy-making suffers fromserious democratic deficits. That is to say, with each layer that representatives are re-moved from the citizens they represent, their democratic legitimacy is reduced. Thediplomats who represent nation states in intergovernmental organisations are not di-rectly accountable to their electorates at home, and nor does their national parliamentnecessarily have any opportunity to ratify the decisions they make.5

Indeed, this has been a positive selling point for the countries negotiating ACTA,in that according to many commentators ACTA has been used as a vehicle for “policylaundering”, by allowing controversial policy changes to be negotiated away fromdomestic venues, until an international obligation to implement those changes is inplace, at which time any domestic opposition will come too late.6

Lacking adequate accountability to their citizens through domestic democratic pro-cesses, the policy-making activities of governments within international institutionscan only be legitimised through additional public accountability at that level. As onescholar puts it,

2 This has been treated as a “the responsibility of each ACTA country itself”: Mike Masnick, ACTA Ne-gotiators Respond to Questions About ACTA; More of the Same, June 29, 2010, http://www.techdirt.com/articles/20100629/10381810004.shtml. However some of the negotiating countries that have held theirown public consultation meetings (and not all have) have done so under conditions unfavourable to civilsociety: see Issa Villarreal, Concerns About Anti-Counterfeiting Trade Agreement (ACTA), February 25,2010, http://globalvoicesonline.org/2010/02/25/global-concerns-about-anti-counterfeiting-trade-agreement-acta/.

3 Masnick, supra note 2; Monika Emert, European Commission On ACTA: TRIPS Is Floor Not Ceiling, Intel-lectual Property Watch, 2009, available at http://www.ip-watch.org/weblog/2009/04/22/european-commission-on-acta-trips-is-floor-not-ceiling/.

4 Benita Ferrero-Waldner, Answer to a Written Question – ACTA Negotiations and Telecoms PackagePrinciples, 4 February 2010, http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2009-6094&language=EN.

5 This varies from one country to another, but the United States, for example, is negotiating ACTA as an“Executive Agreement” that requires only the consent of the President, not the Congress: Eddan Katz andGwen Hinze, The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountabil-ity of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive TradeAgreements, Yale J. Int’l. Law, 35:24, 2009.

6 David Kravets, Copyright Treaty is Policy Laundering at its Finest, November 4, 2009, http://www.wired.com/threatlevel/2009/11/policy-laundering.

�� : �� 143The reliance on democratic principles and the consent of the governed, which legitimisepolitical decisions in the Western tradition, are of little help in international affairs. The“democratic deficit” of international organisations is a commonplace. Rather, the inter-national lawyer must justify his authority by the acceptance of the results of his activityby his audience and addressees, in particular states, and increasingly non-governmentalactors. 7

Thus it is here that the place of civil society comes in. Even the United Nationshas acknowledged the importance of civil society’s role in legitimizing policy-makingwithin international institutions. The Cardoso report on civil society presented to theUN General Assembly in 2004 recommended

that the United Nations can make an important contribution to strengthening democracyand widening its reach by helping to connect national democratic processes with interna-tional issues and by expanding roles for civil society in deliberative processes. 8

It is in this context that institutions in several global governance domains (or regimes,as they will be termed here)9 have begun to reform their structures and processes toincrease their transparency and accountability to civil society, and to allow NGOs –that is, the actors who constitute organised global civil society – greater levels of par-ticipation in policy development.

The next section will briefly describe two sets of norms or principles that haveguided this ongoing process, respectively within the regimes of international envi-ronmental law and Internet governance.

2 Other Regimes2.1 Environmental LawThe 1992 United Nations Conference on Environment and Development (or EarthSummit) was a major event in which the governments of 172 countries joined with2,400 NGO representatives to develop several agreements addressing issues of environ-mental conservation and climate change.10

One of these agreements was the Rio Declaration on Environment and Develop-ment,11 which relevantly provides:

Principle 10. Public participation

Environmental issues are best handled with the participation of all concerned citizens,at the relevant level. At the national level, each individual shall have appropriate accessto information concerning the environment that is held by public authorities . . . andthe opportunity to participate in decision-making processes. States shall facilitate andencourage public awareness and participation by making information widely available.Effective access to judicial and administrative proceedings, including redress and remedy,shall be provided.

7 Andreas L. Paulus, From Territoriality to Functionality? Towards a Legal Methodology of Globalization, inGovernance and International Legal Theory 59, 61 (Ige F. Dekker, et al. ed., 2004).

8 Fernando H. Cardoso, Cardoso Report on United Nations-Civil Society Relations, June 11, 2004, 24,http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N04/376/41/PDF/N0437641.pdf?OpenElement.

9 Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, Interna-tional organisation, 36:1 (1982).

10 Stanley Johnson, The Earth Summit: The United Nations Conference on Environment

and Development (UNCED) (1993)11 UN Doc. A/CONF.151/26 (vol. I); 31 I.L.M. 874, June 13, 1992, available at http://www.unep.org/

Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163.

144 �� Although non-binding in itself, this declaration formed the basis for the subsequentbinding UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, otherwise known as theAarhus Convention.12

The parties to the Aarhus Convention are over 40 European and Central Asianmembers of the United Nations Economic Commission for Europe (UNECE), includingthe European Union. The United States, although a member of the UNECE, is nota party to the Convention. It did however attend the first conference of the partiesin 1992 to voice its exception to the significant role that the Convention accorded toNGOs, stating that it would “not regard this regime as precedent”.13

That said, the Convention is indeed somewhat remarkable. Whereas most inter-national agreements grant rights only to states,14 the Aarhus Convention providessignificant rights to the public, including:

1. The right to access environmental information (Article 4), coupled with a dutyupon each party to collect and disseminate such information (Article 5).

2. The right to public participation in decisions with environmental impact:

(a) relating to specific environmentally-sensitive activities such as mineral extrac-tion or refinement (Article 6);

(b) concerning plans, programmes and policies relating to the environment (Article7); and

(c) during the preparation of executive regulations and/or generally applicablelegally binding normative instruments (Article 8).

3. Access to justice – that is, to independent review of a party’s decisions (Article 9).

In the case of non-compliance by a state party, any member of the public may makea communication about this to the Convention’s Compliance Committee, which willmake a recommendation on the merits of the case to a full Meeting of the Parties.Meetings of the Compliance Committee are completely open to the public, and NGOsare readily accredited to attend Meetings of the Parties.

Article 8 is worth setting out in full. It provides:

Public Participation During the Preparation of . . . Binding Normative Instruments

Each Party shall strive to promote effective public participation at an appropriate stage,and while options are still open, during the preparation by public authorities of executiveregulations and other generally applicable legally binding rules that may have a significanteffect on the environment. To this end, the following steps should be taken:

(a) Time-frames sufficient for effective participation should be fixed;

(b) Draft rules should be published or otherwise made publicly available; and

(c) The public should be given the opportunity to comment, directly or through represen-tative consultative bodies.

12 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access toJustice in Environmental Matters, June 25, 1998, 38 I.L.M. 517 (entered into force Oct. 30, 2001).

13 Svitlana Kravchenko, The Aarhus Convention and Innovations in Compliance with Multilateral EnvironmentalAgreements, Colo. J. Int’l Envtl. L. & Pol’y, 18:1, 3, 2007.

14 However, the first Optional Protocol to the International Covenant on Civil and Political Rights (Dec. 16,1966, 999 U.N.T.S 171) grants individuals direct rights of audience before the Human Rights Committee ofthe United Nations in respect of alleged infringements of their rights. The United States is not a party to thisinstrument, either.

�� : �� 145The result of the public participation shall be taken into account as far as possible.

Substituting “access to knowledge” for “the environment”, the most ardent opponentof ACTA could hardly ask for more than already exists as binding international law inthe environmental governance regime.

2.2 Internet GovernanceThe World Summit on the Information Society (WSIS), like the Earth Summit, was alarge scale United Nations summit meeting, attended by 175 governments and over12,000 participants, which resulted in the development of several agreements: two atthe first phase of the meeting held in Geneva in 2003, and another two at the secondphase held in Tunisia in 2005.

These documents are not treaties, and do not bind the governments that agreed tothem, still less the private sector and civil society delegates who contributed their ownsubmissions during the WSIS preparatory conferences at which the texts were drafted.They are, in other words, instruments of “soft” rather than “hard” international law.15

Even so, supported by the large majority of the world’s governments, they carry con-siderable normative weight within the Internet governance regime.

Of these agreements, those which call for attention here are the Geneva Declarationof Principles16 from the first phase, and the Tunis Agenda for the Information Soci-ety17 from the second. The Declaration of Principles is based around eleven “key prin-ciples for building an inclusive Information Society.” The first of these concerns therole of governments and all stakeholders in the promotion of ICTs for development,and provides:

Governments, as well as private sector, civil society and the United Nations andother international organisations have an important role and responsibility in the de-velopment of the Information Society and, as appropriate, in decision-making pro-cesses. Building a people-centred Information Society is a joint effort which requirescooperation and partnership among all stakeholders.18

The Declaration goes on to provide that “international management of the Inter-net should be multilateral, transparent and democratic, with the full involvement ofgovernments, the private sector, civil society and international organisations,”19 but– significantly – conditions this with the proviso that “Policy authority for Internet-related public policy issues is the sovereign right of States”.20

In between the first and second phases of WSIS, a Working Group on Internet Gov-ernance (WGIG) was convened. In its report, it clarified the content of the regime ofgovernance in which all stakeholders were to cooperate in partnership, settling on thisdefinition:

Internet governance is the development and application by Governments, the pri-vate sector and civil society, in their respective roles, of shared principles, norms, rules,decision-making procedures, and programmes that shape the evolution and use of the

15 Anthony Clark Arend, Legal Rules and International Society 24 (1999).16 Geneva Declaration of Principles, Dec. 12, 2003, UN Doc. WSIS-03/GENEVA/DOC/4-E, available at

http://www.itu.int/wsis/docs/geneva/official/dop.html.17 Tunis Agenda for the Information Society, Nov. 18, 2005, UN Doc. WSIS-05/TUNIS/DOC/6(Rev. 1)-E,

available at http://www.itu.int/wsis/docs2/tunis/off/6rev1.html.18 Geneva Declaration, supra note 16, art. 20.19 Id. art. 48.20 Id. art. 49(a).

146 �� Internet.21

With this groundwork laid, it fell to the second agreement, the Tunis Agenda, toaddress how governments, the private sector and civil society were to exercise their re-spective roles in Internet governance. This topic is addressed in two ways. The first isby calling for the establishment of “a process of enhanced cooperation” by which gov-ernments are to lead the development of globally applicable public policy principlesfor the Internet, in consultation with other stakeholders.22

Since 2005 very little concrete progress had been made towards establishing thisprocess of enhanced cooperation. But this changed in May 2010 when the Commissionfor Science and Technology for Development (CSTD), a committee of the UN’s Eco-nomic and Social Council (ECOSOC) tasked with responsibility for following up onthe implementation of WSIS, called upon the Secretary-General to

convene open and inclusive consultations involving all member states and all other stake-holders to proceed with the process towards the implementation of enhanced cooperationin order to enable governments, on an equal footing to carry out their roles and respon-sibilities in international public policy issues pertaining to the Internet . . . through abalanced participation of all stakeholders in their respective roles . . . before the end of2010.

The second mechanism established at Tunis, which is a part of the broader processof enhanced cooperation, was the establishment of an Internet Governance Forum(IGF), as a new venue for multi-stakeholder policy dialogue in which governmentscould take an equal role and responsibility for Internet governance and policy makingin consultation with all other stakeholders.23

The Tunis Agenda states that the IGF should be multilateral, multi-stakeholder,democratic and transparent in its working and function, with a lightweight and decen-tralised structure that is subject to periodic review. It is not to replace other relevantfora in which Internet governance issues are discussed or to exercise oversight overthem or have any binding decision making power. In particular, it is to have no in-volvement in day-to-day or technical operations of the Internet, but should work inparallel with those organisations that do, taking advantage of their expertise.24

Its mandate, inter alia, is to:

(a) Discuss public policy issues related to key elements of Internet governance in order tofoster the sustainability, robustness, security, stability and development of the Internet.

(b) Facilitate discourse between bodies dealing with different cross-cutting internationalpublic policies regarding the Internet and discuss issues that do not fall within thescope of any existing body.

(c) Interface with appropriate intergovernmental organisations and other institutions onmatters under their purview.. . .

(g) Identify emerging issues, bring them to the attention of the relevant bodies and thegeneral public, and, where appropriate, make recommendations.25

The initial five-year term of the IGF wound up in 2010. In his review of the desir-ability of the continuation of the IGF, the Secretary-General observed some deficiencies

21 Report of the Working Group on Internet Governance, Aug. 3, 2005, UN Doc. WSIS-II/PC-3/DOC/5-E,available at http://www.itu.int/wsis/docs2/pc3/html/off5/index.html.

22 Tunis Agenda, supra note 17, arts. 61 and 69-71.23 Id. arts. 67-68.24 Id. arts. 73, 77 and 79.25 Id. art. 72.

�� : �� 147in its performance to date, as the CSTD had noted deficiencies in the realisation of theprocess of enhanced cooperation. He acknowledged both “a perception among somecivil society stakeholders that the agenda-setting process of the MAG is not sufficientlyinclusive or transparent,” as well as the assessment of many “that the contribution ofthe IGF to public policy-making is difficult to assess and appears to be weak,” andmade recommendations to address these and other problems.26

Even so, the principles of multi-stakeholder governance laid down in the GenevaDeclaration, and the progress made towards implementing them through the InternetGovernance Forum and the process towards enhanced cooperation, mark a revolution-ary shift away from the hierarchical mode of intergovernmental rule-making that isstill taken for granted in the global regime for intellectual property rights.

2.3 Summary of PrinciplesTwo sets of norms have been established, respectively for the regimes of environmentaland Internet governance, prescribing institutional principles for civil society access toand participation in policy development processes. Relevantly, the Aarhus Conventionrequires policy makers to provide the public with:

• Transparency – or access to information, including draft rules.

• Participation – in decision-making processes at a time when options are still open.

• Recourse – or access to justice in the event that either of the first two norms is notobserved.

The requirements of the Geneva Declaration and the Tunis Agenda of WSIS are broadlysimilar, though at a higher level of principle. They require Internet governance pro-cesses to comply with the process criteria of:

• Transparency.

• Participation – that is multilateral, democratic and inclusive of all stakeholders intheir respective roles.27

Notably there is no provision in the WSIS process criteria for the public to take re-course in the event that their rights to transparency and participation are not met; in-stead, the IGF is directed as part of its mandate to “Promote and assess, on an ongoingbasis, the embodiment of WSIS principles in Internet governance processes”.28

The norm of recourse will therefore be set aside for now, both because it is notcommon to each of the above regimes, and because in the short term its proposal asa norm for the intellectual property regime seems over-ambitious – not least becausethe United States has made clear that it will not abide the public having right of actionagainst a state for non-compliance with international law.29

What remains, then, are the norms of transparency and participation (which couldalso be called “access”).30 On the positive side, these are general enough to be posited

26 United Nations Secretary-General, Continuation of the Internet Governance Forum: Note by theSecretary-General, May 7, 2010, 8-9, http://unpan1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf.

27 Geneva Declaration, supra note 16, art. 48 and Tunis Agenda, supra note 17, arts. 61, 68 and 73.28 Tunis Agenda, supra note 17, art. 72.29 Kravchenko, supra note 13.30 Jens Steffek and Patrizia Nanz. Emergent Patterns of Civil Society Participation in European and Global

Governance in Civil Society Participation in European and Global Governance, 1, 10 (JensSteffek, et al. ed., 2008).

148 �� as appropriate guiding principles for global intellectual property policy development,drawing on the model of the environmental and Internet governance regimes. How-ever, they lack sufficient substantive content to be of much use as standards for assess-ing the democratic legitimacy of the negotiation (and later operation) of ACTA.

After all, the ACTA negotiators, implausible as it may sound, have claimed that theyalready satisfy or even exceed all appropriate standards of transparency and partici-pation; stating “for international trade negotiations we normally do not have such ademocracy [sic] exercise where everybody can raise their concern”,31 and even “Thishas been an extremely transparent process”.32

What is needed therefore are some appropriate metrics of transparency and partici-pation, that can be used for comparison.

3 Metrics of Transparency and ParticipationThis is easier said than done, in that there is no cookie-cutter template of structuresand procedures that policy-making institutions can apply to support transparency andparticipation. So much depends on the purpose of the organisation, its composition,and the type of role it plays in governance; for example, does it have a policy settingrole in its own right, or a role of advocacy directed towards policy makers elsewhere,or does it simply coordinate the activities of its constituents – or some combination?33

Despite the difficulty of applying absolute standards to such diverse governanceinstitutions, there have been scholarly efforts to develop checklists of criteria that canbe applied to rate transparency and the openness to participation in a quantitativefashion. One such study of transparency and the democratic deficit of global institu-tions identified no fewer than 27 criteria, grouped into four categories – public access,internal governance, member conduct and accountability.34

Another study, looking at civil society participation in global governance institu-tions, found that such participation could be facilitated in at least five ways:

1. Making special institutional arrangements for civil society consultation; such asjoint workshops, seminars or public symposia.

2. Allowing NGOs to submit their own documentation to the international organisa-tion.

3. Allowing NGOs to attend their intergovernmental political meetings as observers.

4. Allowing NGOs to intervene actively in the intergovernmental process of policydeliberation and address delegates directly.

5. Allowing NGOs to put topics for future deliberation onto the organisation’s agenda.35

The present paper will take a simpler approach, similar to that already taken abovewhen drawing out the two broad principles of transparency and participation from theregimes of environmental and Internet governance. In this case, however, we will look

31 Emert, supra note 3.32 Masnick, supra note 2.33 Jens Martens, Multistakeholder Partnerships: Future Models of Multilateralism?, Dialogue on Globaliza-

tion 29, 21 (2007), available at http://library.fes.de/pdf-files/iez/04244.pdf.34 Chris Skelcher, Navdeep Mathur and Mike Smith, The Public Governance of Collaborative Spaces: Discourse,

Design and Democracy, Public Administration 83:3 (2005), 584

35 Steffek, supra note 30, p. 13.

�� : �� 149within the regime of intellectual property policy making, to draw out some specificbest practices related to transparency and participation, from other institutions in thatregime.

3.1 Intellectual Property Policy InstitutionsThe institutions selected for analysis here36 are:

• WIPO (World Intellectual Property organisation). As the intergovernmental organ-isation that administers the major global treaties on copyright and related rights(the Berne and Rome Conventions37 and the WIPO Internet Treaties38) as well ason patents and trade marks (the Paris Convention),39 WIPO is perhaps the centralinternational actor in the regime.

• WTO (World Trade organisation). The WTO administers the TRIPS agreement,40

which largely incorporates the substantive content of the WIPO-administered con-ventions, except that it allows signatories to seek redress against each other for thebreach of the agreement through the WTO’s dispute resolution process.

• OECD (organisation for Economic Cooperation and Development). The OECD dif-fers from WIPO and the WTO in that it concludes few “hard law” treaties amongstits 32 member countries, but more “soft law” instruments such as recommendationsand standards. Its work on intellectual property rights is of this kind.41

• CSTD (Commission on Science and Technology for Development). The CSTD hasalready been mentioned with respect to its role of coordinating the system-widefollow-up on WSIS, including action lines on intellectual property issues.42 It alsodoes not have a role in producing “hard law”, but simply advises the UN GeneralAssembly and ECOSOC.

• IGF (Internet Governance Forum). Although formed under the auspices of theUnited Nations pursuant to an intergovernmental compact at WSIS, the IGF is amulti-stakeholder body, with governments and civil society participants possessingequal formal status. It is not specifically mandated to deal with intellectual propertyissues,43 but has done so in practice.

36 Of course, this list is not complete. Amongst the other institutions that could have been included areICANN (Internet Corporation for Assigned Names and Numbers, which sets domain name policy and hasa large contingent of trade mark owners amongst its stakeholders), the Council of Europe (whose workin promoting human rights is relevant to issues of intellectual property enforcement), the WHO (WorldHealth organisation, which is required to deal with pharmaceutical patent issues), UNESCO (United NationsEducational, Scientific and Cultural organisation, which has been a venue for debates over “communicationsrights”) and the UNDP (United Nations Development Programme, which promotes the use of open sourcesoftware for development).

37 Berne Convention for the Protection of Literary and Artistic Works, Sep. 9, 1886, 1161 U.N.T.S. 30 andRome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting organisa-tions, 26 Oct. 1961, 496 U.N.T.S. 43.

38 WIPO Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76 and WIPO Copyright Treaty,Dec. 20, 1996, 36 I.L.M. 65.

39 Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 21 UST 1583, 828 UNTS 305.40 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 U.N.T.S. 299; 33

I.L.M. 1197.41 OECD, Compendium of OECD Work on Intellectual Property (IP), 2007, http://www.oecd.org/dataoecd/

60/61/34305040.pdf.42 Notably under the third action line on “Access to information and knowledge”: Geneva Plan of Action,

Dec. 12, 2003, UN Doc. WSIS-04/GENEVA/DOC/5-E, http://www.itu.int/wsis/docs/geneva/official/poa.html.

43 Jeremy Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum

71 (2008).

150 �� The following table summarizes some of the most significant strengths and weaknessesof each of these institutions with respect to their transparency and the opportunitiesthat they provide for civil society to participate in their processes.44

A few words about each of the institutions in this table are in order. Probably theleast transparent and participatory body shown here is the WTO, which althoughhaving improved its documentary transparency in recent years, remains notoriousfor its limited engagement with civil society,45 and for its exclusion of developingcountries from the closed-door “green room” negotiations it hosts.

WIPO fares better, in that it allows accredited NGO representatives into all its ple-nary negotiating sessions (though there are, as in the WTO, also closed-door sessionsbetween country blocs). However the interaction between NGOs and governments isstilted at best, because civil society interventions are left until last and the time givenfor them is strictly limited. Moreover, that time must be shared with interventionsfrom business groups, which WIPO also classes as “NGOs”.

The OECD takes a different approach to WIPO, in that rather than granting NGOsobserver status at intergovernmental meetings, it has established a dedicated body, theCSISAC (Civil Society Information Society Advisory Council) to contribute to its pol-icy work.46 On the other hand, when the OECD has negotiated hard law agreements,notably a failed Multilateral Agreement on Investment, its transparency and opennessto participation have been much poorer.47

The CSTD, like the other organisations considered so far, is intergovernmental instructure. However, it was mandated at WSIS to conduct its follow-up activities usinga “multi-stakeholder approach”,48 and as such, has followed a practice of allowingNGOs to actively observe its proceedings. Whilst it is similar in this respect to WIPO,it does not have the same “hard power” that WIPO does, being limited to a role ofmaking recommendations only.

Finally the IGF is the most open of any of the bodies considered here, in that civilsociety participates at IGF meetings in a position of equality with governmental andprivate sector representatives. It is at least as transparent as any of the other institu-tions considered – though not completely so, as its Multi-stakeholder Advisory Group(MAG) meets in private. Even so, for all its formal openness, the civil society’s actualinfluence at the IGF on the development of intellectual property policy is very limited,largely because the IGF has yet shied away from its mandate to produce recommenda-tions,49 and failed to develop links to other institutions that would allow policy makersto take such recommendations into account.50

44 More information can be found in a study published by Knowledge Ecology International, coveringa slightly different set of organisations – the WTO, WIPO, WHO, UNCITRAL (United Nations Commis-sion on International Trade Law), Unidroit (International Institute for the Unification of Private Law),UNCTAD (United Nations Conference on Trade and Development), OECD and Hague Conference onPrivate International Law. The negotiations of five international treaties, within and outside the UN sys-tem are also considered. Knowledge Ecology International, ACTA is Secret. How Transparent are OtherGlobal Norm Setting Exercises?, July 21, 2009, http://www.keionline.org/misc-docs/4/attachment1_transparency_ustr.pdf, http://www.keionline.org/misc-docs/4/attachment2_transparency_ustr.pdfand http://www.keionline.org/misc-docs/4/attachment3_transparency_ustr.pdf.

45 Ngaire Woods and Amrita Narlikar, Governance and the Limits of Accountability: The WTO, the IMF, and theWorld Bank, International Social Science Journal 53:170, 580 (2001).

46 See its website at http://csisac.org/.47 Katia Tieleman, The Failure of the Multilateral Agreement on Investment (MAI) and the Absence of a

Global Policy Policy Network, April 10, 2000, http://www.gppi.net/fileadmin/gppi/Tieleman_MAI_GPP_Network.pdf.

48 Tunis Agenda, supra note 17, art.105.49 Id. art. 72(g).50 Malcolm, supra note 43, pp.513-521.

�� : �� 151

Organisation Transparency Participation

Strengths Weaknesses Strengths Weaknesses

WIPO Distributes bothofficial documentsand negotiatingtexts

Not pro-active indisseminatingsuch information

Readyaccreditation ofNGOs

NGO input comeslast after allgovernments havespoken

Distributesacademic studiesand reports

NGOs havespeaking andsubmission rights

NGO sidemeetingsfacilitated

WTO Distributes officialdocuments

Most negotiatingtexts not formallyreleased

MinisterialConference opento NGO observers

No NGO access toTRIPS Councilmeetings

NGO positionpapers postedonline

No distribution ofNGO documentsat meetings

NGO sidemeetings atMinisterialConference

Generally nospeaking rights forNGOs

OECD Most documentspublished openly

Poor transparencyof hard lawnegotiations

Permanentadvisorycommittee,CSISAC

Structure excludesdevelopingcountries

MinisterialMeeting open toNGO observers

CSTD All documentspublished openly

Negotiation textsmade available,but not online

Readyaccreditation ofNGOs

NGO input comeslast after allgovernments havespoken

NGOs havespeaking andsubmission rights

IGF All documentspublished openly

MAG mailing listis private, withanonymisedsummaries

Open forum, allparticipantsformally equal

No official outputs

NGO sidemeetingsfacilitated

Weak linksbetween NGOinput and policymakers

152 �� In this context, recall that the Aarhus Convention requires not only that policy de-

velopment processes be open to participation, but also that “[t]he result of the publicparticipation . . . be taken into account as far as possible”. As even the UN Secretary-General has observed, the IGF has not yet developed the structures or processes bywhich for this to occur.51

3.2 Summary of Best PracticesHaving progressed from the generality of the Aarhus and WSIS principles on trans-parency and public participation in governance, to the more specific structures andprocesses of the existing institutions of the intellectual property regime, it is possible todraw out some best practices.

This does not mean that the existing institutions are the best they could be. Onthe contrary, if the institutions of the intellectual property regime are to be assessedagainst the principles of transparency and participation we derived earlier, each suchinstitution has considerable room for improvement. (This even extends to the IGF,notwithstanding that it was an outcome of the WSIS process.)

Having said this, some best practices are already in place. Taking transparency,there is no longer much room for argument about the appropriate content of thisnorm. Even the WTO, the least participatory of the organisations studied, posts allof its official documents online, and most of the other institutions also make availablenegotiating texts.

Adding to this, most of those institutions (especially WIPO, the OECD and the IGF)also freely provide background materials and studies, as well as briefing sessions ontheir policy activities. Thus, it can be confidently posited that these are the basic bestpractices for transparency of governance in the intellectual property regime.

As for participation, more variance can be seen, but there are four main optionsamongst the institutions considered here:

1. A “passive” observer role, in which opportunities for speaking with delegates anddistributing documents are limited (as at the WTO Ministerial Conference).

2. An “active” observer role, in which NGO representatives can more directly interactwith delegates and distribute documents (as at WIPO and the CSTD).

3. Formal permanent advisory groups, providing a defined pathway for input fromcivil society on all policy proposals (such as the OECD’s CSISAC).

4. A multi-stakeholder governance structure that affords governmental and civil soci-ety delegates a position of equality (as at the IGF).

An important observation to be made here is that in general, an inverse relationshipexists between the openness to participation of an organisation, and the degree of “le-galisation”52 or “hardness” of its output. In other words, the institutions that producehard law (the WTO and WIPO) tend to be more closed than those that produce softlaw (the OECD and CSTD), with the IGF – which doesn’t even yet produce recommen-dations – being the most open of all, but to the least advantage of civil society.

Therefore, in considering best practices on participation, we must make practicalallowance for the fact that governments will not be inclined to grant civil society free

51 United Nations Secretary-General, supra note 26.52 Kenneth W Abbot, et al., The Concept of legalisation, International organisation, 54:3, 401 (2000)

�� : �� 153rein within institutions that have the power to conclude hard or binding law. Even so,option 2 and 3 above can still be considered possible best practices for institutions ofany character within the intellectual property regime.

This leads to the question, how does ACTA stack up against these principles andbest practices?

4 ACTABefore attempting to answer this, it must be understood that ACTA actually representstwo, quite separate, institutions. The first is the group of countries that is (at the timeof writing) negotiating the text of the Anti-Counterfeiting Trade Agreement itself, at aseries of closed meetings around the world.

The second, and perhaps ultimately more important institution is the multilateraltreaty organisation that will come into being once the ACTA negotiations are con-cluded and the agreement is signed.53 This organisation will comprise of an ACTACommittee constituted by each of the signatories, and possibly further ad hoc commit-tees and working groups that the Committee may establish.54

The transparency and participatory openness of ACTA will therefore be consideredfirst in relation to the negotiation phase of ACTA, and then with respect to the ACTACommittee and any sub-groups.

4.1 Negotiation PhaseBeginning with the transparency of the negotiation phase, the best practices estab-lished above would require:

• Access to the negotiation texts, before and after each round of negotiation, as is thepractice at WIPO. Instead, there has only been one official release of text in April2010,55 following the Wellington round of talks, which occurred only after five yearsof closed-door negotiations and in the wake of the full text being leaked in March.56

• Institutionalised and regular briefing sessions to civil society, such as those con-ducted by WIPO57 and the OECD.58 Instead, the only briefing sessions held havebeen those that some of the negotiating parties have chosen to hold in their owncountries, on an irregular and ad hoc basis.

• Coordinated and regular release of background materials on the negotiations, suchas those released by the IGF before each of its meetings.59 In fact only one joint

53 These comments are based on the latest full text of ACTA available at the time of writing (August 17,2010), which is the leaked version from the July 2010 round of negotiations in Lucerne, available at http://www.laquadrature.net/files/ACTA_consolidatedtext_EUrestricted130710.pdf.

54 ACTA, supra note 53, arts.5.1(1) and (3)(a).55 Anti-Counterfeiting Trade Agreement (Consolidated Text Prepared for Public Release), April 21, 2010,

available at http://www.ustr.gov/webfm_send/1883.56 La Quadrature du Net, New ACTA Leak: 01/18 Version of Consolidated Text, March 23, 2010, http:

//www.laquadrature.net/en/0118-version-of-acta-consolidated-text-leaks.57 For example, a recent open informational meeting on intellectual property financing is described at

http://www.wipo.int/meetings/en/2009/ip_fin_ge_09/index.html.58 An OECD Forum, open to the public, is held in conjunction with the annual Ministerial Meeting: see

http://www.oecd.org/department/0,3355,en_2649_34493_1_1_1_1_1,00.html.59 The latest is IGF, Programme for the 2010 Meeting, July 15, 2010, http://www.intgovforum.org/cms/

2010/ProgrammePaper.15.07.2010.v2.doc.

154 �� fact sheet has been produced, in March 2010, with some of the negotiating partieshaving sporadically released other materials.60

• Such materials must also be disseminated to the public. Short of doing so activelythrough a public relations office, a minimum requirement met by all the other in-stitutions analyzed is the use of a central institutional website. No such thing existsfor ACTA. Rather, what few materials have been released have been disseminatedmainly by civil society, and through websites of some of the negotiating govern-ments.61

Thus ACTA meets none of the basic best practices for transparency of the existinginstitutions of the intellectual property policy regime.

The provision made for public participation in the ACTA negotiations is no better.Based on the model established by the other institutions examined here, civil society isentitled to expect:

• Access to the negotiation venue, through a lightweight accreditation process, andthe ability to observe the proceedings. No such provision has been made for any ofthe ACTA negotiation rounds. Indeed, even the location of the venue of most of therounds has been kept secret.

• Rights for NGO representatives to speak to the negotiating assembly and to sub-mit documents, as for example is the case at WIPO. Needless to say, in view of thefailure to even grant access to the negotiation venue, these rights have not beenafforded. Some of the negotiating parties have conducted their own consultationprocesses at a national or regional level.62

4.2 Implementation phaseOnce ACTA has been concluded and signed, amongst the powers of the ACTA Com-mittee will be:

• To set its own rules and procedures.63

• To consider any amendments to the Agreement.64

• To make recommendations regarding implementation and operation of the Agree-ment, including endorsing best practice guidelines relating thereto.65

• To share information and best practices on reducing intellectual property rightsinfringements, including techniques for identifying and monitoring piracy andcounterfeiting.66

Transparency and participation are no less important to civil society in respect of theseongoing policy setting and coordination activities as they have been in respect of thenegotiation of the original Agreement.

60 As distributed in South Korea, see Anti-Counterfeiting Trade Agreement (ACTA) Fact Sheet, March 25,2010, http://www.mofat.go.kr/webmodule/htsboard/hbd/hbdread.jsp?typeID=6&boardid=10252&seqno=327174.

61 For example, the Australian government’s site is at http://www.dfat.gov.au/trade/acta/.62 A 2009 European consultation meeting is described by Monika Ermert, supra note 3.63 ACTA, supra note 53, art.5.1(4).64 Id. arts.5.1(2)(c) 6.4.65 Id. art.5.1(3)(c).66 Id. art.5.1(3)(d).

�� : �� 155In this context, the following points describe the transparency that civil society

is entitled to expect from ACTA, based on the best practices identified from otherinstitutions in the intellectual property policy regime:

• All official documents of the ACTA Committee should be openly published, asare similar documents from all the other institutions studied in this paper. Thesewill include the rules, procedures, recommendations and best practice guidelinesdescribed above, as well as proposed amendments to the Agreement. Whether suchdocuments will in fact be openly released is yet unknown, as the ACTA text is silenton this point.

• Additionally, negotiating drafts of the above should be released, to borrow a phrasefrom the Aarhus Convention, “at an appropriate stage, and while options are stillopen.”67 Again, we do not know whether this will be the case (but might reasonablyguess, from the conduct of the ACTA negotiations to date, that it will not be).

• The domestic implementation of ACTA by its members should also be transparent.On this count, the draft ACTA text does actually have something to say – thoughwe do not yet know exactly what, as the current draft of the agreement contains twoalternative sets of provisions.68 In general however, it will probably require nationallaws, procedures and judicial decisions on IP enforcement to be published openly.

Thus, the standard of transparency that civil society can expect from ACTA into thefuture can best be described as unknown. As to its expectations of participation in theoperation of ACTA:

• If it is too much to expect that NGOs should be able to join the ACTA Committeeas members, following the model of the IGF, then it should at least be possible fordelegations to appoint NGO advisors to attend Committee meetings with them. Infact, wording in the officially released draft text did accommodate this.69 However,this has been removed from the current draft.

• There should be a simple and accessible procedure for NGOs to seek accreditationto attend the meetings of the ACTA Committee as active observers. At present,this is not guaranteed. A specific provision of the earlier public draft that wouldhave allowed the Committee to invite “international organisations active in the fieldof intellectual property and . . . non-governmental groups of intellectual propertystakeholders” to attend sessions “or parts thereof.”70 Whilst this provision was in-adequate, in that it arguably left it for the Committee to take the initiative to extendsuch an invitation, even this weak provision has since been removed.

• Civil society should be consulted by the Committee in discussions over the amend-ment and development of the Agreement, the drafting of rules, procedures, rec-ommendations and best practice guidelines, and “any other matter that may affectthe implementation and operation of this Agreement.”71 This could best be donethrough a permanent civil society advisory committee such as the OECD’s CSISAC,or the IGF’s (multi-stakeholder, in that case) MAG. Another option is the estab-lishment of a dedicated civil society liaison office similar to the External Relations

67 Aarhus convention, supra note 12, art.8.68 ACTA, supra note 53, art.4.3.69 ACTA, supra note 55, art 5.5(1).70 Id. art 5.6.71 ACTA, supra note 53, art.5.1(2)(3).

156 �� offices of WIPO and the WTO. However, in either case, no such provisions exist.The draft only specifies that the Committee may (not shall) “seek the advice of non-governmental persons or groups.”72

The future scope for civil society participation in the activities of ACTA is thereforeunknown at best, and nonexistent at worst. Certainly, civil society can gain no comfortfrom the current draft text that its interests will be observed, and has every reason tosuspect otherwise from the conduct of the present ACTA negotiations.

Thus in sum, considering both the negotiation and implementation stages, ACTAfails to comply with the basic norms and best practices of transparency and participa-tion that have been established by other institutions in the intellectual property policyregime. Such an institution lacks democratic legitimacy as an actor in the regime, andthis will inevitably impact upon its perceived authority by other actors and upon com-pliance with the norms it promulgates.73

5 ConclusionStrict intergovernmentalism remains unchallenged as the model for development ofglobal public policy on intellectual property issues. But in other regimes of gover-nance, this is no longer the case. This paper described the regime of internationalenvironmental law, in which the Aarhus Convention requires its members to upholdthe principles of transparency of information, public participation in decision-making,and the provision of access to justice.

It also described the Internet governance regime, in which the process criteria estab-lished at WSIS call upon institutions of Internet governance to act in a manner that ismultilateral, transparent and democratic, with the full involvement of all stakeholdersin their respective roles.

The global regime for intellectual property rights raises transnational public policyissues of no lesser importance than those raised by the environmental and Internetgovernance regimes, yet it lacks similar broad principles to guide its institutions indesigning structures and processes that support public interest representation.

There are signs that this is changing. For example, the WIPO Development Agendadirects that the organisation’s norm-setting activities “be a participatory process,which takes into consideration the interests and priorities of all WIPO Member Statesand the viewpoints of other stakeholders, including accredited inter-governmentalorganisations (IGOs) and NGOs”,74 and pledges “[t]o enhance measures that ensurewide participation of civil society at large in WIPO activities in accordance with itscriteria regarding NGO acceptance and accreditation, keeping the issue under review”.

But more is needed, and the principles established must apply to all actors in theregime, not only one. Ultimately, such principles should come in the shape of a frame-work convention,75 or at least an intergovernmental summit document such as theGeneva Statement of Principles from WSIS. But in the meantime, civil society includ-ing academia, and perhaps in cooperation with supportive private sector actors andgovernments, could begin to develop a statement of such principles independently.

72 Id. art.5.1(3)(b).73 See generally Thomas M Franck, The Power of Legitimacy Among Nations 16 (1990).74 The 45 Adopted Recommendations under the WIPO Development Agenda, arts.15 and 42, Oct. 3 2007,

available at http://www.wipo.int/export/sites/www/ip-development/en/agenda/recommendations.pdf.75 John Mathiason, A Framework Convention: An Institutional Option for Internet Governance (Dec. 20,

2004), http://www.internetgovernance.org/pdf/igp-fc.pdf.

�� : �� 157For the Internet governance regime (which already starts from a stronger base,

in the WSIS process criteria), there exists such a project to develop a code of goodpractice on information, participation and transparency.76 The code is a joint projectof the Council of Europe, Association for Progressive Communications (APC) and theUNECE (not coincidentally, the host body of the Aarhus Convention).

The absence of anything similar for the global intellectual property rights regimemakes it more difficult for civil society to normatively challenge the legitimacy of theAnti-Counterfeiting Trade Agreement, which has failed to meet the public’s expecta-tions during its negotiation phase, and seems unlikely to do better once it has beenagreed.

Even so, it has been possible in this short paper to demonstrate ACTA’s flagrantneglect of basic principles of transparency and public participation, which were drawnfrom other regimes but which are supported by best practices in existing intellectualproperty policy institutions.

It now falls to civil society, in the short term, to continue to lobby for the inclusionof better structures and processes for public interest representation in ACTA, bothduring its negotiation phase and in the institution that is formed once it is agreed.These will include the institutionalization of access to information, and measures forpublic representation through active observation and/or a permanent civil societyadvisory committee.

In the longer term, it is necessary to advocate for the development and promulga-tion of general principles of transparency and participation against which not onlyACTA, but all other actors in the intellectual property regime can be judged.

76 Council of Europe et al., Code of Good Practice on Information, Participation and Transparency inInternet Governance (Version 1.1, June 2010), http://www.intgovcode.org/.

7 Arresting the Decline ofMulti-Stakeholderism inInternet GovernanceDr Jeremy Malcolm

Consumers International

A�� The last decade was marked by significant new opportunities for civilsociety to represent the public interest within existing public institutions involved ininformation and communications policy development, such as the OECD and WIPO,as well as within new public and private institutions such as the Internet GovernanceForum and ICANN.

But the turn of the decade has seen regression, as governments have begun to pushback against civil society claims for equal representation in policy fora, have shiftedkey discussions to less inclusive fora, and raised questions over whether the multi-stakeholder model is “working” if it does not give primacy to governmental interests.

Concurrently, some activists too have given up hope of having their interests repre-sented within public policy institutions, and have resorted to unilateral and extra-legalmethods of voicing dissent, as seen in the campaigns of groups like Anonymous. Asfor the private sector, its support for the multi-stakeholder governance model remainsas tentative as it has always been.

Does the retreat of all stakeholder groups from multi-stakeholder engagementwith each other suggest the failure of the multi-stakeholder experiment, or just a tem-porary roadbump? This paper addresses this question by mapping the decline of themulti-stakeholder model over the past several years within the specific context of theInternet governance regime, and considering options for civil society to intervene toprevent its disintegration.

1 Introduction

The last decade promised

⇤ significant strengthening of institutional support forpublic interest representation in information and communications policy development.As the decade opened, the United Nations General Assembly had just endorsed the

⇤ This paper was first presented at the sixth annual GIGANET Symposium held in Nairobi, Kenya on 26

September 2011. It appears here in print for the first time.

160 �� proposal of the ITU (International Telecommunications Union) for a World Summit onthe Information Society (WSIS), encouraging “non-governmental organizations, civilsociety and the private sector to contribute to, and actively participate in, the inter-governmental preparatory process of the Summit and the Summit itself”.1 At aroundthe same time, ICANN (the Internet Corporation for Assigned Names and Numbers)undertook the most significant reforms of its own representative structures to date.2

So too at this time WIPO (the World Intellectual Property Organisation) expanded thecriteria by which NGOs could be accredited to participate in its activities as observers,having six years earlier opened its doors to the general public to participate in inter-governmental negotiations on a major new pair of Internet-related copyright treaties.3

Certainly, none of the above initiatives were perfectly executed; WSIS in the end wasnot particularly participatory,4 ICANN’s reforms actually decreased the direct repre-sentation of end user interests,5 and complaints about the difficulty for NGOs seekingto become accredited at WIPO continued.6 Even so, it is important that by mid-decadeeach of the core institutions of information and communications policy had publiclycommitted to the fuller implementation of participatory structures and processes forpublic interest representation. WSIS, having established at the level of principle thatgovernance of the Internet should be “a transparent, democratic, and multilateralprocess, with the participation of governments, private sector, civil society and interna-tional organisations, in their respective roles,”7 formed the Internet Governance Forum(IGF) in 2006 to allow for such participation in an open, non-binding forum.

In the same year, ICANN began to describe its own developing participatory pro-cesses as “multi-stakeholder” rather than just “private sector management”.8 As forWIPO, in September 2007 it adopted a “Development Agenda”, which committed theorganisation to “enhance measures that ensure wide participation of civil society atlarge in WIPO activities in accordance with its criteria regarding NGO acceptance andaccreditation, keeping the issue under review”.9 Thus it least it can be said that by thesecond half of the last decade, signs were promising for the continued broadening anddeepening of multi-stakeholder participation in the major institutions of informationand communications policy governance.

But more recently, there are significant indications of backsliding towards an earlierstate of unilateralism in the public policy engagement of stakeholders in public pol-icy processes. This includes both a return to governmentalism by powerful states, aswell as the disengagement of the private sector and civil society activists from multi-

1 General Assembly of the United Nations. World Summit on the Information Society. 2001. url: http ://www.itu.int/wsis/docs/background/resolutions/56_183_unga_2002.pdf.

2 ICANN. Evolution and Reform Committee’s Final Implementation Report and Recommendations. 2002. url:http://www.icann.org/committees/evol-reform/final-implementation-report-02oct02.htm.

3 WIPO. Four National NGOs Gain Observer Status at WIPO. en. Nov. 2002. url: http://www.wipo.int/pressroom/en/prdocs/2002/wipo_pr_2002_328.html.

4 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press,2008, pp. 324-326.

5 John G Palfrey Jr. The End of the Experiment: How ICANN’s Foray into Global Internet Democracy Failed. 2004.url: http://cyber.law.harvard.edu/publications/2004/The_End_of_the_Experiment.

6 William New. WIPO Asked To Explain NGO Accreditation Process. 2005. url: http://www.ip-watch.org/weblog/2005/02/23/wipo-asked-to-explain-ngo-accreditation-process/.

7 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, paragraph 61.

8 ICANN. Affirmation of Responsibilities for ICANN’s Private Sector Management. 2006. url: http://www.icann.org/en/announcements/responsibilities-affirmation-28sep06.htm.

9 WIPO. The 45 Adopted Recommendations under the WIPO Development Agenda. 2007. url: http://www.wipo.int/export/sites/www/ip-development/en/agenda/recommendations.pdf, article 42.

�� : �� -�� 161stakeholder processes that are perceived as weak or failing. This is evidenced in theuse of techniques such as forum-shifting by powerful governments and private sectoractors, in the active obstruction by such actors of the development of effective fora formulti-stakeholder policy development, and in the recourse of all stakeholders (includ-ing civil society) to extra-legal methods for advancing their policy goals.

This short paper will describe the signs of this shift, beginning with the WSIS out-come processes including the IGF, and then considering other institutions and pro-cesses inside and outside the United Nations system. The underlying causes of thisapparent retreat of stakeholders from multi-stakeholder participatory institutions andprocesses are next considered. Finally some suggestions will be made for some strate-gies that could address this decline. Throughout, the focus of the paper will be onpublic policy institutions for the information society: that is, Internet governance inthe broadest sense, or information and communications policy. Whilst the evolutionof participatory governance models in other regimes such as that of environmentalgovernance are also notable and potentially instructive, there has so far been littlecross-fertilisation of practices between governance regimes.10

2 The Shaky Foundations of UNMulti-StakeholderismThe recent decline of multi-stakeholderism is exemplified by the case of its posterchild, the IGF. Whilst established as a multi-stakeholder body, the capacity of its stake-holders to actually influence policy development processes has been circumscribedby the very narrow interpretation of its mandate made by its Secretariat and by themost powerful voices within its Multistakeholder Advisory Group (MAG). Opportu-nities to address this deficiency, such as by placing conditions on the renewal of theIGF’s mandate for a second term, or once that had been decided, to recommend howit should improve its format, functions and operations during that second term, havealso been systematically withdrawn from multi-stakeholder bodies and processes, andreserved to those that favour governments. This section will recount and provide somebackground to these events.

In doing so, the intent of this section is not to overlook that certain parallel multi-stakeholder processes have developed elsewhere in the Internet governance regime,alongside those that had their genesis at WSIS (notably those of ICANN, which will bebriefly mentioned in the following section), and indeed outside that regime altogether(such as under the Aarhus Convention in the regime of environmental governance).11

The current status of those multi-stakeholder processes may or may not be so dire, butthey are not the focus of this paper.

2.1 The Internet Governance ForumAt the time that the Internet Governance Forum was first proposed by the WorkingGroup on Internet Governance (WGIG) in 2004, it was expected to be able to discussinternational public policies regarding the Internet that fell outside the scope of ex-isting bodies, and to make recommendations on such emerging issues where appro-

10 Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010.11 Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010.

162 �� priate, in accordance with what would become its mandate in the Tunis Agenda.12 Itdid not seem at all outlandish at the time to suggest that “The Forum should be ableto pass recommendations on to the concerned parties, and may also invite – or recom-mend that the United Nations invites – member states to discuss a certain issue in anofficial capacity, or via a vote in the United Nations General Assembly”.13

In practice the IGF never took on such a role, due to early decisions made by itsSecretariat and Multistakeholder Advisory Group (MAG) that limited its capacity toengage in the process of developing such policy recommendations. In particular, theIGF was constituted as an atomistic annual conference, without an agenda of specificissues to address, suitable processeses for addressing them, or institutional structuresto support such an exercise.14 At every turn when reforms to the IGF’s structures andprocesses were proposed within the MAG or at open consultation meetings that wouldrender it better suited to the fulfilment of its mandate, these were strongly opposedby those same stakeholders who had originally spoken against the IGF’s formation atWSIS (rich countries such as the USA, technical community groups such as ISOC andbusiness groups such as the ICC),15 and often also by its incumbent Secretariat. 16

However as the IGF’s initial five year mandate neared an end, a more independentreview of the IGF’s strengths and shortcomings was called for by the Tunis Agenda.17

This review was conducted by the Secretary-General, drawing upon responses to aquestionnaire that had been prepared by the IGF Secretariat and comments made ata special session held for this purpose at the fourth meeting of the IGF at Sharm elSheikh, Egypt in September 2009.

In May 2010, the Secretary-General of the United Nations accordingly issued a noteon the renewal of the IGF’s mandate.18 The United Nations Department of Economicand Social Affairs (DESA), which hosts the IGF Secretariat and drafted the note, hadbeen criticised in February for its decision to issue it directly to ECOSOC, rather thanfirst forwarding it to the May meeting of the Commission on Science and Technol-ogy for Development (CSTD) for its comment. 19 The CSTD advises ECOSOC and the

12 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, paras 72(b) and (g).

13 Charles Sha’aban. “Reforming Internet Governance: Perspectives from the Working Group on InternetGovernance (WGIG)”. In: ed. by William J Drake. New York: UNICTTF, 2005. Chap. Proposal for the Estab-lishment of an Internet Governance Forum, p. 235. url: http://www.wgig.org/docs/book/WGIG_book.pdf,p. 236.


15 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press,2008, pp. 350, 356, 372, 381, 387. At one point, an Internet technical community leader, Chris Disspain ofauDA, even suggested that the community would withdraw its financial support for the IGF if it were tobegin to issue recommendations as its mandate required: Jeremy Malcolm. Multi-Stakeholder Governance andthe Internet Governance Forum. Perth: Terminus Press, 2008, p. 387.

16 Nitin Desai, Special Advisor to the Secretary-General on WSIS and MAG Chair until 2010, had fromthe IGF’s inception cautioned that “there’s no way it can ever become a decision-making body,” and main-tained this firm position during his tenure: see Jeremy Malcolm. Multi-Stakeholder Governance and the InternetGovernance Forum. Perth: Terminus Press, 2008, pp. 289, 363, 423, 446. Similarly, Markus Kummer, ExecutiveCoordinator of the IGF from 2006 to 2010 – and who took up a position with ISOC in early 2011 – intervenedon the MAG mailing list in March 2010 to forestall further discussion on reforms to the IGF that could allowit to issue “messages” – which had been proposed as a lesser form of recommendation: Jeremy Malcolm. Mytake away from Vilnius – if the IGF won’t change itself, others will. 2010. url: http://igfwatch.org/discussion-board/my-take-away-from-vilnius---if-the-igf-wont-change-itself-others-will.

17 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, para 76.

18 United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf.

19 Such criticisms were made at the February 2010 open consultation meeting of the IGF, and in a sub-

�� : �� -�� 163General Assembly on technology issues and was tasked with responsibility for system-wide follow-up of the WSIS outcomes, using a multi-stakeholder approach.20 Thatis, whilst the CSTD is still an intergovernmental body, it has until now maintained arelatively liberal policy of allowing civil society and business representatives as ac-tive observers of its meetings. 21 Thus the exclusion of the CSTD from substantivelyconsidering the continuation of the IGF was one of the first signs of the tide turningagainst multi-stakeholderism in Internet governance in the new decade.

This controversy aside, the Secretary-General’s note acknowledged criticisms that“that the IGF had not provided concrete advice to intergovernmental bodies and otherentities involved in Internet governance”, and “that the contribution of the IGF to pub-lic policy-making is difficult to assess and appears to be weak”. Suggesting that suchcriticisms may point “to a desire for more tangible progress on the issues at hand”, thenote recommended that “improvements to the format, functions and operations of theForum be considered at the Forum’s sixth meeting, in 2011”. A press release accompa-nying the note also suggested that the MAG “make proposals with regard to its ownfuture, should the mandate be renewed”.22

In response, and pending a formal decision on the continuation of the IGF by theGeneral Assembly, processes to consider improvements to the IGF and its MAG wereput in place during 2010. As to the MAG, it issued a questionnaire on its own per-formance and possible improvement following its May 2010 meeting, and considered(though in general did not recommend implementing) the suggestions given at its sub-sequent meeting in November.23 As to the IGF as a whole, on 29 July the Economicand Social Council (ECOSOC) invited the Chair of the CSTD to form

in an open and inclusive manner, a working group which would seek, compile and reviewinputs from all Member States and all other stakeholders on improvements to the InternetGovernance Forum . . . 24

Following on from the Secretary-General’s note and pending the CSTD workinggroup’s report, the General Assembly issued a resolution in December that extendedthe IGF’s mandate for a further term of five years, noting “the importance of the Inter-net Governance Forum . . . while recognizing at the same time the need to improve it,with a view to linking it to the broader dialogue on global Internet governance” andalso “acknowledging the calls for improvements in its working methods”.25 Despitethe earlier (and rightful) criticisms of the lack of multi-stakeholder participation inthe development of this resolution, in the end the resolution complemented the CSTD

sequent letter from the Civil Society Internet Governance Caucus (IGC): Internet Governance Caucus. AnOpen Letter from the Internet Governance Caucus to the United Nations Secretary-General, Ban Ki-Moon. 2010. url:http://www.igcaucus.org/node/35. DESA’s response was given in March 2010: Sha Zukang. Statement atthe Briefing for Member States on matters Related to the Continuation of the Internet Governance Forum. 2010. url:http://www.un.org/en/development/desa/usg/statements/internet-governance-forum2.shtml. Inthe end, the CSTD did receive, but did not substantively discuss, an advance copy of the note at its May 2010

meeting.20 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/

6rev1.html, para 105.21 Pursuant to a series of ECOSOC decisions cited in Internet Governance Caucus. An Open Letter from the

Internet Governance Caucus to the United Nations Secretary-General, Ban Ki-Moon. 2010. url: http://www.igcaucus.org/node/35.

22 United Nations Department of Public Information. Multistakeholder Advisory Group Renewed to PrepareInternet Governance Forum Meeting in Vilnius, Lithuania, 14–17 September. 2010. url: http://www.un.org/News/Press/docs/2010/pi1936.doc.htm.

23 Internet Governance Forum. Multistakeholder Advisory Group Meeting Geneva, 23 November 2010 SummaryReport. 2010. url: http://intgovforum.org/cms/2010/MAG.Summary.23.11.2010.pdf.

24 United Nations Economic and Social Council. Resolutions and decisions adopted by the Economic and SocialCouncil at its substantive session of 2010. 2010. url: http://unpan1.un.org/intradoc/groups/public/documen

164 �� process of discussion of IGF improvements, which will be considered in more detailnext.

2.1.1 Working Group on Improvements to the IGF

A further sign of the weakening of commitment to a multi-stakeholder process for In-ternet governance, by governments in particular, came at an extraordinary meeting ofthe CSTD in December, which resolved to establish the Working Group on Improve-ments to the IGF that ECOSOC had called for as a government-only group. This cameas a surprise to many, as apart from apparently diverging from ECOSOC’s directivethat the working group be “open and inclusive”, it also departed from earlier indica-tions made during an open meeting held by the CSTD at the Vilnius IGF meeting thatthe group would be an open, multi-stakeholder taskforce on the model of the WGIG.

It was only after strenuous objection by non-governmental stakeholders,26 and in-tense negotiations at the following general meeting of the CSTD, later in December2010, that its earlier decision was softened to allow 15 non-governmental observers(out of a total of 42) to “interactively participate” in the group’s meetings and “re-main fully engaged throughout the process”.27 In the WGIG, by comparison, non-governmental representatives had taken 21 of its 40 seats, as full and equal members.

But the presence of non-governmental stakeholders in the room was not enoughto ensure that the work of the CSTD Working Group was conducted on a full multi-stakeholder basis. Were this to have been the case, the text of the group’s recommenda-tions would have been developed by one or more multi-stakeholder drafting groups, ashad been the case with the WGIG. Indeed, this is what civil society stakeholders anddeveloping country governments pressed for at the group’s first meeting in Montreuxin February 2011. However this was opposed by the familiar coalition of rich countries,technical community and private sector stakeholders (the same that had been blockingimprovements to the IGF within its MAG), who prevailed in moving that the CSTDSecretariat attempt to draft the group’s recommendations instead.

Unfortunately the Secretariat had little material to work with in undertaking thistask. The Working Group was poorly managed, without the kind of active facilitationthat could have assisted the stakeholders to come to agreement on contentious issues.Consequently much of its first meeting was taken up in procedural disagreements, andmuch of its second with the tabling of proposals and counter-proposals by members,none of which were comprehensively discussed.28 As a result, although a text sum-marising the various proposals was prepared by the Secretariat, it contained no agreedrecommendations.29

ts/un/unpan041407.pdf.25 United Nations General Assembly. Information and communications technologies for development. 2011. url:

http://unpan1.un.org/intradoc/groups/public/documents/un/unpan045268.pdf.26 Internet Society Internet Governance Caucus and International Chamber of Commerce. Joint statement

with ICC, ISOC et al. on composition of CSTD working group on IGF improvements. 2010. url: http://www.igcaucus.org/joint-statement-icc-isoc-et-al-composition-cstd-working-group-igf-improvements-9-december-2010.

27 Commission on Science and Technology for Development. Panel on "Follow-up to the World Summit onthe Information Society – Working Group on the Internet Governance Forum (IGF)" Meeting report. 2010. url:http://www.unctad.org/sections/un_cstd/docs/cstd2010d19_report-wsis_en.pdf.

28 Marília Maciel. Second meeting of the Working Group on improvements to the Internet Governance Forum endswith no final report. 2011. url: http://observatoriodainternet.br/second-meeting-of-the-working-group-on-improvements-to-the-internet-governance-forum-ends-with-no-final-report.

29 Commission on Science and Technology for Development. Working Group on Improvements to the InternetGovernance Forum. 2011. url: http://www.unctad.org/en/docs/a66d67_en.pdf.

�� : �� -�� 165Disagreements centered on three main issues: the addition of a UN budget line to

provide stable public funding for the IGF in addition to stakeholders’ voluntary con-tributions, the establishment of a democratic and transparent process for selection ofmembers of the IGF’s MAG, and, most contentious of all, how the IGF could producemore tangible outcomes, in fulfilment of its mandate in the Tunis Agenda. Althoughthe proposals on each of these issues were detailed, the lines along which disagree-ment fell were familiarly simple: in general, those most opposed to disturbing thestatus quo continued to be the developed countries, the technical community and theprivate sector.

In view of the group’s failure to reach agreement, at its 14th session in May 2011,the CSTD resolved to extend the mandate of its Working Group until the 15th sessionin May 2012. This resolution was made against the wishes of the United States whichwould have preferred the group end without having proposed any improvements;30

however the United States, along with Europe, did at least succeed in stymieing afurther proposal from India to include timelines and the election of a chair for theWorking Group in the CSTD’s resolution.

Regardless of the failure of the CSTD Working Group, it could still have been pos-sible to fulfil the Secretary-General’s injunction given in May 2010 that improvementsto the IGF be discussed at its sixth meeting,31 if either the IGF’s Secretariat or MAG,or indeed the CSTD, had chosen to schedule a discussion of such improvements atthat meeting. But as none of them did so, the only such discussions that took placein Nairobi were those independently arranged by stakeholders. Indeed, at the time ofwriting (September 2011), no further meeting of the CSTD Working Group at whichfor it to continue its consideration of improvements to the IGF has yet been scheduled.

2.2 Enhanced CooperationThe IGF was not the only institutional reform to the Internet governance regime thatwas approved at WSIS, though it was the best-formed. Also agreed was the need for“enhanced cooperation in the future, to enable governments, on an equal footing, tocarry out their roles and responsibilities, in international public policy issues per-taining to the Internet”, but without neglecting to “involve all stakeholders in theirrespective roles” and “be responsive to innovation”.32 Intentionally, this formulationwas capable of differing interpretations, with those supportive of the status quo pre-ferring to think in terms of loose and voluntary cooperative arrangements betweenexisting institutions, whilst those favouring reform looked forward to a new overarch-ing policy development framework that would be more inclusive of hitherto excludedstakeholders.33

Although the Tunis Agenda had specified a deadline of 2006 for the commence-ment of the process towards enhanced cooperation, the UN’s early approach was farfrom proactive, essentially leaving the process to evolve spontaneously. Nitin Desai,as Special Advisor to the Secretary-General on Internet governance issues, undertook

30 Betty E King. Untitled correspondence. 2011. url: http://www.unctad.org/sections/un_cstd/docs/UN_WGIGF2011d09_usa_en.pdf.

31 United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf.

32 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, paras 69, 71.

33 United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf, p. 8.

166 �� a limited and closed set of consultations with incumbent Internet governance institu-tions that year about their own attitudes towards the process, but his private reportto the Secretary-General gathered dust over the following years. In the interim, Desaispecified firmly that enhanced cooperation was not a matter to be discussed at the IGFor within its MAG – a curious contention, as the Tunis Agenda suggests (and it hassince been widely accepted) that the IGF is an integral component of the enhancedcooperation process.34

In 2009 the Secretary-General finally published a report on the progress taken to-wards enhanced cooperation to that date, based around a 2008 series of follow-upconsultations with ten selected organisations. As this narrow set of respondents eachenjoyed existing authority in the Internet governance regime, it was unsurprising thatthe views they reported supported a minimalist interpretation of enhanced coopera-tion that supported the status quo.35 At the 2008 IGF meeting in Hyderabad enhancedcooperation finally also made the agenda – shoehorned into the session on criticalInternet resources – where most of the panelists now took the view that the IGF andother existing processes were enhanced cooperation, and that no institutional reformswere needed. 36

While this may have seemed to spell the end of enhanced cooperation as an inde-pendent process, it survived as a result of one defining event: that ECOSOC referredthe Secretary-General’s report to the CSTD for consideration at its May 2010 meeting.Since a range of civil society representatives and developing country governmentshad the opportunity to comment on the issue at that meeting, a much broader viewof enhanced cooperation was taken there. The CSTD considered that “the Internetgovernance-related outcomes of the World Summit, namely, the process towards en-hanced cooperation and the convening of the Internet Governance Forum, are . . . twodistinct processes and also recognizes that the two processes may be complementary”,and recommended ECOSOC to invite “the Secretary-General to convene open andinclusive consultations involving all Member States and all other stakeholders with aview to assisting the process towards enhanced cooperation”. 37

In response to ECOSOC’s invitation, which it made by resolution in July, the Secretary-General through the United Nations Department of Economic and Social Affairs(DESA) held a consultation meeting on enhanced cooperation in New York on 14

December 2010. Mirroring the upset at the early exclusion of non-governmental stake-holders from the CSTD’s Working Group on Improvements to the IGF, a similar at-tempt was made to sideline these stakeholders at the enhanced cooperation discus-sions, prompting another joint letter of protest.38 In contrast to the IGF where the floor

34 United Nations Secretary-General. Enhanced cooperation on public policy issues pertaining to the Internet.2011. url: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan045826.pdf;Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press, 2008,pp. 344-349.

35 United Nations Secretary-General. Enhanced cooperation on public policy issues pertaining to the Internet.2009. url: http://www.unctad.org/en/docs/e2009d92_en.pdf.

36 The transcript is at http://www.intgovforum.org/cms/hyderabad_prog/AfIGGN.html.37 Commission on Science and Technology for Development. Report on the thirteenth session (17-21 May

2010). 2010. url: http://www.unctad.org/en/docs/e2010d31_en.pdf. Simultaneously in his May 2010 noteon the continuation of the IGF, the Secretary-General himself also called on the General Assembly to makeclarification of the meaning of the term enhanced cooperation and how it related to the IGF: United NationsSecretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf, p. 8.

38 Internet Society Internet Governance Caucus and International Chamber of Commerce. Joint open letter onnon-governmental participation at Enhanced Cooperation consultations. 2011. url: http://www.igcaucus.org/node/39.

�� : �� -�� 167is open to all stakeholders on an equal footing, at the enhanced cooperation consulta-tion civil society was permitted to make only a single oral presentation, to be deliveredby CONGO, an organisation which had not been active in Internet governance discus-sions for some years.

Furthermore, as at the CSTD, physical attendance was limited to organizations inconsultative status with the Economic and Social Council and other entities accreditedto the World Summit on the Information Society, which excluded (amongst others)many non-governmental actors who had actively participated at the IGF. (ECOSOChas relaxed this requirement in a string of resolutions dating from 2007 to 2011, butonly in respect of the CSTD’s own meetings.)39 In the end, DESA relented slightly onthe originally stipulated conditions for participation, and a representative of the CivilSociety Internet Governance Caucus did attend and speak at the meeting.

The results of the December 2010 consultation, such as they were, fed into an up-dated report of the Secretary-General, issued in May 2011, which concluded ratherlamely that “cooperation is already taking place in many respects, although it could beenhanced in some areas . . . and that existing cooperation mechanisms should be usedto the extent that they were helpful”.40 The report has been transmitted to the GeneralAssembly for consideration at its 66th session in September 2011 in New York. How-ever it was not listed on the official agenda of that meeting, and no resolution relatingto it was made.

3 The Decline of Multi-Stakeholderism3.1 Governments DefiantOutside of the official consultations, a number of governments have been promotinga narrow intergovernmental model of enhanced cooperation. At the 2010 session ofthe UN General Assembly, and subsequently at the July 2011 meeting of ECOSOC, thegrouping of India, Brazil and South Africa – IBSA – called for an intergovernmentalmechanism for enhanced cooperation, separate from but complementary to the IGF.Further detail was presented at a Seminar on Global Internet Governance in Septem-ber, at which the governmental members called for a new UN body to “be tasked todevelop and establish international public policies with a view to ensuring coordina-tion and coherence in cross-cutting Internet-related global issues”, and to “integrateand oversee the bodies responsible for technical and operational functioning of theInternet”.41

Whether and how such a body would take advice from other stakeholders in itspolicy development processes, and through what new mechanisms if any, is unspeci-fied. Neither is it clear what input such stakeholders will have into the recommenda-tions before they are finalised at the next IBSA summit in October. In any case, IBSAchose not to present the recommendations formally to the IGF (which is presently ill-equipped to consider them anyway), but has instead announced its plans to deliverthem directly to the UN General Assembly.

39 Marília Maciel. Note on the participation of Civil Society on discussions regarding the improvement of IGF.2011. url: http://www.igcaucus.org/upload/Note\%20participation\%20of\%20CS\%20in\%20IGF\%20improvement.pdf.

40 United Nations Secretary-General. Enhanced cooperation on public policy issues pertaining to the Internet.2011. url: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan045826.pdf.

41 IBSA. IBSA Multi-Stakeholder Meeting on Global Internet Governance – Recommendations. 2011. url: http://www.culturalivre.org.br/artigos/IBSA_recommendations_Internet_Governance.pdf.

168 �� More recently, at the 66th session of the General Assembly in September 2011,

China, the Russian Federation, Tajikistan and Uzbekistan issued a draft General As-sembly resolution on an international code of conduct for information security, that isexplicitly open to states alone.42 Amongst the pledges that a subscribing state wouldmake are to “promote the establishment of a multilateral, transparent and democraticinternational Internet management system”. These are highly retrograde criteriafor such an institution when compared against those specified in the Tunis Agenda,namely, “The international management of the Internet should be multilateral, trans-parent and democratic, with the full involvement of governments, the private sector,civil society and international organizations”.43

The position of the developed countries is not so dissimilar, though it is less overt.Whilst the Council of Europe (which is not a body of the EU) resolved in September2011 to accept a set of ten Internet principles that strongly favoured a balanced modelof multi-stakeholder Internet governance, 44 this is at odds with the position of theEuropean Union. It was the EU’s defection from the United States’ line on maintainingprivate sector management of the Internet that enabled the compromise language“enhanced cooperation” to be introduced into the Tunis Agenda to begin with – andthe EU’s original language, referring to a “new model of international cooperation”,had been more explicitly intergovernmental.45

Since then, from as early as 2006, the EU has maintained its interpretation of the en-hanced cooperation concept, pointedly describing it as a “process of enhanced cooper-ation between governments”.46 At Europe’s 2011 regional IGF, EuroDIG, Neelie Kroes,Vice-President of the European Commission claimed that “the multi-stakeholdermodel of Internet Governance is needed, just that it needs to be amended to functionbetter and take into account the voice of Governments”.47 She has subsequently pro-posed a “Compact for the Internet”, in which “the role which government representingtheir citizens play” is brought to the fore, with the claim that it is necessary to “ensurethat those views aren’t ignored“ in order “that the multistakeholder model doesn’t fallapart”.48

The immediate context for Kroes’ concerns (and IBSA’s) is that ICANN has failed,through the role that its Governmental Advisory Committee (GAC) plays in its multi-stakeholder processes, to provide what Europe regards as sufficient control overpolicies for the administration of the Internet domain name system. Reflecting theseconcerns, the European Commission recently produced a series of discussion papersproposing significant reforms to the domain name system, which if implemented

42 Tajikistan China Russian Federation and Uzbekistan. Letter dated 12 September 2011 from the PermanentRepresentatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to theSecretary-General. 2011. url: http://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/496/56/pdf/N1149656.pdf?OpenElement.

43 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/6rev1.html, para 29.

44 Council of Europe. Internet Governance Principles. 2011. url: http://www.coe.int/t/dghl/standardsetting/media-dataprotection/conf-internet-freedom/Internet\%20Governance\%20Principles.pdf – onlythe draft version of that resolution was available online at the time of writing (26 September).

45 European Union. Proposal for Addition to Chair’s Paper Sub-Com A Internet Governance on Paragraph 5"Follow-up and Possible Arrangements". 2005. url: http://www.itu.int/wsis/docs2/pc3/working/dt21.pdf.

46 European Commission. Internet Governance: Commission Welcomes Move Towards Full Private-Sector Manage-ment by 2009. 2006. url: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/06/1297.

47 Neelie Kroes. Internet governance – European Dialogue on Internet Governance (EuroDIG). 2011. url: http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/419.

48 Neelie Kroes. I propose a "Compact for the Internet". 2011. url: http://blogs.ec.europa.eu/neelie-kroes/i-propose-a-compact-for-the-internet/.

�� : �� -�� 169would provide governments with veto power over new top level domains and to theright to reserve words from domain name registries, amongst other radical new pow-ers.49 The papers were not developed with the benefit of prior public consultation, andonly came to public awareness after they were leaked.

But even the United States, which already possesses oversight authority over ICANN,and has been a vocal proponent of a balanced model of multi-stakeholder governancefor the Internet, has begun to ask how “governments collectively, can operate withinthe paradigm of a multi-stakeholder environment and be satisfied that their interestsare being adequately addressed”.50 This illustrates that whilst developed countries paylip service to the multi-stakeholder model of policy development and make much oftheir opposition to greater intergovernmental control over the Internet when proposedby developing countries, this has more to do with the fact that they (and the UnitedStates in particular) already possess substantial power over Internet policy develop-ment, which the developing countries lack.

In reality, there is little to distinguish governments from either side of the economicdivide in their desire either to gain or to maintain power over Internet policy devel-opment. Perhaps all that has changed since the turn of the decade is that as calls for abalanced multi-stakeholder policy development model of enhanced cooperation havecontinued to resonate, governments who at first took refuge in the vagaries of the Tu-nis Agenda’s language, have been forced to make their bottom line more explicit.

3.2 Intergovernmentalism RampantThe United States is careful with the image that it presents to its citizens and the restof the world about its support for the multi-stakeholder governance model for Internetgovernance. In a 2011 strategy document on cyberspace policy it expressed full enthu-siasm for that model,51 and has revealed its reservations only indirectly, for examplethrough its attempt to prematurely terminate the work of the CSTD Working Group,52

and its retention of unilateral oversight of ICANN through a permanent Affirmation ofCommitments following the expiry of its earlier Joint Project Agreement.53

But the United States, and other countries too, feel more freedom to depart fromtheir expressed multi-stakeholder principles when they can do so in a manner thatallows them a degree of distance from their actions. The main way in which they cando this is by means of forum shifting to less inclusive intergovernmental organisa-tions, or by entering into new bilateral or multilateral agreements that provide limitedrepresentation of other stakeholders.

In a sense, the efforts of governments to create a home for Internet policy devel-opment outside of the IGF cannot accurately be described as forum shifting, since asexplained in the first section of this paper, the IGF is not yet a forum capable of use-

49 Milton Mueller. The second EC ICANN Paper: How low can they go? 2011. url: http://blog.internetgovernance.org/blog/_archives/2011/9/4/4893009.html.

50 Department of Commerce. “The Internet Assigned Numbers Authority (IANA) Functions”. In: FederalRegister 76.114 (2011), pp. 34658–34667. url: http://www.ntia.doc.gov/files/ntia/publications/fr_iana_furthernoi_06142011.pdf, p. 34660.

51 Barack Obama. International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World.2011. url: http://www.whitehouse.gov/sites/default/files/rss_viewer/international_strategy_for_cyberspace.pdf.

52 Betty E King. Untitled correspondence. 2011. url: http://www.unctad.org/sections/un_cstd/docs/UN_WGIGF2011d09_usa_en.pdf.

53 Milton Mueller. Is the U.S. turning its back on innovation in Internet governance? 2011. url: http://blog.internetgovernance.org/blog/_archives/2011/6/14/4838065.html.

170 �� fully contributing to the process of developing such policies, having been held backfrom acquiring that capacity as explained in section 1. The main exception is in thecase of intellectual property policy, which already has a natural, and relatively broadlyconsultative, home in WIPO.54 As such the attempts of business and governments touse bilateral trade negotations, as well as multi-lateral negotiations such as TRIPS,ACTA (the Anti-Counterfeiting Trade Agreement) and the TPPA (Trans-Pacific Part-nership Agreement) to develop and promulgate intellectual property norms and raiseenforcement standards have been well studied as examples of forum shifting,55 andare also a good example of the multi-stakeholder principle in decline.

Less well studied to date, and the focus of attention here, are three more directlyInternet-related intergovernmental policy-making institutions which governments havefavoured as loci for Internet policy development in recent months, but which in com-parison to a potential empowered IGF or a future fully multi-stakeholder enhancedcooperation framework, lack openness to either multilateral or multi-stakeholder in-put, or both. These three institutions are the ITU, the G8 and the OECD.

The intergovernmental forum in which governments disenamoured of the multi-stakeholder model have most loudly voiced their views is the ITU. The ITU formeda government-only working group in 2007 to review whether any reforms to its ownstructure were required in order to bring it into compliance with the multi-stakeholderstandard set at WSIS. Although ITU membership and meetings are almost completelyclosed to civil society, the review concluded in 2009 that no changes were needed.56. Ina further irony, the report is only accessible to ITU members.

At its plenipotentiary conference in 2010, renewed calls were made by some del-egates for the ITU “to take on itself a leading role in internet governance within thescope of its competence”,57 though as with earlier similar efforts to shift Internet gov-ernance roles into that forum,58 these failed. However at the same meeting the ITU didconfirm that its Dedicated Group on international Internet-related public policy issueswould be maintained as a body “limited to member states, with open consultation toall stakeholders.”59

Whereas WGIG had rejected the ITU as a suitable institution within which for gov-ernments to address Internet governance issues, largely because of the deficits in itsaccessibility to civil society as noted above,60 alternative institutional options havesince emerged that are more open to the participation of other stakeholders, but ina more controlled way than at the IGF, and possessing a clearer intergovernmentalmandate for policy development.

One of these is the G8. In 2009, European Commission Vice-President Vivian Reding

54 Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010, p. 16.55 Laurence R Helfer. “Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellec-

tual Property Lawmaking”. In: Yale Journal of International Law 29 (2004), p. 1.56 ITU. Draft Final Report of the Council Working Group on the Study on the Participation of all relevant stake-

holders in ITU Activities related to the World Summit on the Information Society (WSIS). 2009. url: http ://www.itu.int/council/groups/stakeholders/pd/Draftfinalreport.doc.

57 Monika Emert. “UN And Internet Governance: Better Cooperation Or Bigger Role?” In: IntellectualProperty Watch 7.11 (2010), pp. 4–5. url: http://www.ip-watch.org/weblog/2010/10/27/un-and-internet-governance-next-four-years-better-cooperation-or-bigger-role/.

58 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press,2008, p. 61.

59 ITU. ITU’s role with regard to international public policy issues pertaining to the Internet and the management ofInternet resources, including domain names and addresses. 2010. url: http://www.itu.int/osg/csd/intgov/resoultions_2010/PP-10/RESOLUTION_102.pdf.

60 Jeremy Malcolm. Multi-Stakeholder Governance and the Internet Governance Forum. Perth: Terminus Press,2008, p. 344.

�� : �� -�� 171had called for the establishment of a “G-12 for Internet Governance”, being “a multi-lateral forum available for governments to discuss general internet governance policyissues”.61 She got her wish in 2011, when the G8 under the Presidency of French Pres-ident Nicolas Sarkozy, convened an invitation-only e-G8 Forum in Deauville, fromwhich civil society was largely excluded.62 The meeting notionally provided non-governmental delegates an opportunity to contribute their views to the formal G8

summit (though in fact the Deauville Declaration eventually issued at the summit hadbeen drafted beforehand).63

According to one commentator who was present, Sarkozy “sees the role of the e-G8

very much in the same context as the national CNN (Conseil National du Numérique,composed only of business): create a space for business and states to start a conversa-tion, but not a real advisory body and not multi-stakeholder”.64

Falling somewhere in between the open yet ineffectual multi-stakeholderism of theIGF and the tokenism of the intergovernmental e-G8 stands the OECD. Since 2008, theOECD’s Committee for Information, Computer and Communication Policy (CICCP),which is attached to the intergovernmental OECD Council, has taken advice from aCivil Society Information Society Advisory Council (CSISAC). It stands alongside twosimilar advisory committees for the business and technical communities.65

In June 2011, the CICCP endeavoured to reach agreement between the Council andits advisory committees on a Communiqué on Principles for Internet Policy-Making.66

Although the communiqué expressed support for “multi-stakeholder co-operation inpolicy development processes”, and contained a number of other provisions to whichCSISAC had contributed and with which it agreed, in the end CSISAC chose not toendorse it on the grounds that

several of these principles are not compatible with CSISAC core values including respectfor fundamental human rights and freedoms and, the rule of law, promotion of accessto knowledge, promotion of open standards, Net Neutrality and balanced intellectualproperty policies and regimes.67

In itself, this indicates no failure of the multi-stakeholder model, nor can be cited asevidence of that model in decline. But if consensus could not be reached between civilsociety and the other stakeholders, a full commitment to the multi-stakeholder pro-cess would have seen the OECD retracting its communiqué of principles altogether, orat the very least honestly acknowledging that those principles did not represent theviews of all of the stakeholders consulted. But in fact, the withdrawal of civil societyfrom endorsement of the communiqué has been treated as an inconvenient fact to bequietly ignored. For example, as the facts were presented by US government represen-tatives in a Washington Post op ed:

The recent meeting called by the OECD (the international economics policy standards

61 Rene Beekman. Reding wants globally responsible, privatised ICANN. 2009. url: http://sofiaecho.com/2009/05/04/714195_reding-wants-globally-responsible-privatised-icann.

62 Internet Governance Caucus. Open letter to President Sarkozy on eG8 meeting plan. 2011. url: http://www.igcaucus.org/open-letter-president-sarkozy-eg8-meeting-plan.

63 Eric Pfanner. G-8 Leaders to Call for Tighter Internet Regulation. 2011. url: http://www.nytimes.com/2011/05/25/technology/25tech.html?_r=1.

64 Divina Meigs. E-G8 forum: quick reporting on day 1. 2011. url: http://lists.cpsr.org/lists/arc/governance/2011-05/msg00441.html.

65 Jeremy Malcolm. Public Interest Representation in Global IP Policy Institutions. Washington DC, 2010, p. 16.66 OECD. Communiqué on Principles for Internet Policy-Making. 2011. url: http://www.oecd.org/dataoecd/4

0/21/48289796.pdf.67 CSISAC. CSISAC Declines to Support OECD Principles on Internet Policy-Making. 2011. url: http://csisa

c.org/CSISAC_PR_06292011.pdf.

172 �� organization) assembled leaders from 40 governments, business and the Internet technicalcommunity. It produced a set of broad principles for safeguarding the open Internet thataddress three key international threats to the seamless, interconnected Web.68

Not only is civil society’s abstention not admitted, but indeed civil society is not men-tioned in the story at all. It as if civil society simply did not play any role in the pro-cess. The OECD cannot be regarded as adhering to the WSIS principles on multi-stakeholder participation in Internet governance if one stakeholder group’s participa-tion in that process can be trivialised in this manner.

3.3 Complicity of the Business and Technical CommunitiesWorsening the decline of multi-stakeholderism has been the business and Internettechnical communities’ indifference at best, and hostility at worst, towards multi-stakeholder models that would empower broader civil society. This has taken an activeform in the submissions that these communities, notably through the ICC and ISOC,have consistently put forward arguing against the reform of the IGF to enable it todevelop the capacity to produce policy recommendations, 69 and against institutionalreforms in relation to the enhanced cooperation process, which they have characterisedas unnecessary in light of their own internal efforts at cooperation with other stake-holders.

By the same token, the private sector and technical communities were not seento raise any objection to the exclusivity of the e-G8 summit, nor to the release of theOECD Communiqué without civil society’s endorsement, they have actively partic-ipated in other Internet-related policy discussions from which civil society was ex-cluded or absent (such as the ACTA negotiations),70 and have proactively organisedother such discussions (including a series of meetings on intermediary liability, co-hosted by ISOC and WIPO). 71 The result has been to put multi-stakeholderism out ofbalance in those institutions, and to ensure that the only institution where it is morebalanced – the IGF – has no capacity to efficiently channel civil society’s views to pol-icy makers.

The motivation of the private sector in particular in perpetuating this imbalance isnot difficult to understand, nor is it even particularly objectionable, since the privatesector has no interest in furthering the public values that true multi-stakeholderismwould promote, ahead of its own power and profits, which could be threatened by fur-ther democratising governance processes. Indeed, it has already been noted that gov-ernments have almost the same complaint as civil society about multi-stakeholderismimbalance in the context of ICANN, where governments are institutionally disempow-ered relative to the other stakeholders.72 The technical community, to the extent that itis not composed of private sector actors, has a slightly different but also understand-able interest in opposing governance reform, in it has historially enjoyed considerableindependent authority over technical Internet governance, and naturally wishes tocede as little of that authority to governments or broader civil society as possible.

68 Karen Kornbluh and Daniel J. Weitzner. Foreign policy of the Internet. 2011. url: http://www.washingtonpost.com/opinions/foreign-policy-of-the-internet/2011/07/08/gIQAjqFyEI_story.html.

69 See 2.1.70 Consumers International. 2009 IP Watch List. 2009. url: http://a2knetwork.org/sites/default/files/i

p-watchlist09.pdf, p. 4.71 See http://www.wipo.int/copyright/en/internet_intermediaries/index.html.72 Milton Mueller. Is the U.S. turning its back on innovation in Internet governance? 2011. url: http://blog.in

ternetgovernance.org/blog/_archives/2011/6/14/4838065.html.

�� : �� -�� 173More objectionable, however, are cases in which private sector actors, in particular,

have taken active steps to implement Internet governance policies extra-legally; thatis, where such policies have been developed outside of democratic (let alone multi-stakeholder) fora, and are implemented without public oversight. A clear example isthe case of the withdrawal of services by financial intermediaries to Wikileaks, therebycrippling its ability to raise funds to support the provision of access to leaked govern-ment and corporate documents on matters of public interest. This decision was madein an environment of strong political pressure, but where no legal ruling against Wik-ileaks or its representatives had been, or yet has been, made regarding the legality ofits activities.73

Another example of the private sector straying into areas of public policy thatshould be subject to democratic and (at least outside of the domestic context) multi-stakeholder oversight, is in the private agreements reached between some Internetservice providers (ISPs) and representives of content owners, to implement a grad-uated response or “three strikes” regime whereby users of the Internet can be dis-connected or otherwise penalised for alleging sharing copyright content.74 The UNHuman Rights Rapporteur has expressed the view that such a regime impacts uponfundamental human rights such as the right to freedom of expression,75 and the Coun-cil of Europe that basic Internet access has become an essential public service.76 In thiscontext even the OECD Communiqué, in a passage to which CSISAC objected, limitedthe circumstances in which such a regime could be developed:

governments may choose to convene stakeholders in a transparent, multi-stakeholder pro-cess to identify the appropriate circumstances under which Internet intermediaries couldtake steps to . . . assist rights holders in enforcing their rights or reduce illegal content.77

Falling into the same category are agreements for the illegal filtering or interceptionof Internet usage by private government contractors, such as the infamous HBGaryFederal,78 and perhaps also the cooperation of domain name registrars to effect the“seizure” of websites at the direction of a US government agency without legislativemandate or a prior hearing.79

3.4 Weakness of Civil SocietyNot only governments, the private sector and the Internet technical community areresponsible for the decline of multi-stakeholderism in Internet governance. Civil so-ciety itself can also be partly held responsible for that decline. For one thing, activists

73 Steve Ragan. Cablegate: Visa and MasterCard face legal problems over WikiLeaks blockade. 2011. url: http://www.thetechherald.com/article.php/201126/7349/Cablegate-Visa-and-MasterCard-face-legal-problems-over-WikiLeaks-blockade.

74 John Collins. Eircom to cut broadband over illegal downloads. 2010. url: http://www.irishtimes.com/newspaper/frontpage/2010/0524/1224271013389.html.

75 Frank La Rue. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinionand expression, Frank La Rue. 2011. url: http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

76 Council of Europe. Declaration of the Committee of Ministers on the management of the Internet protocol addressresources in the public interest. 2010. url: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1678299.

77 OECD. Communiqué on Principles for Internet Policy-Making. 2011. url: http://www.oecd.org/dataoecd/40/21/48289796.pdf, p. 6.

78 Barrett Brown. A sinister cyber-surveillance scheme exposed. 2011. url: http://www.guardian.co.uk/commentisfree/cifamerica/2011/jun/22/hacking-anonymous.

79 Wendy Seltzer. Super Bust: Due Process and Domain Name Seizure. 2011. url: http://wendy.seltzer.org/blog/archives/2011/02/02/super-bust-due-process-and-domain-name-seizure.html.

174 �� have fallen into the same trap as governments and the private sector in forgoing multi-stakeholder engagement in favour of extra-legal methods of advancing their inter-ests. Thus the banks’ extra-legal financial blockade against Wikileaks was met in kindwith Distributed Denial of Service (DDOS) attacks by the distributed hacker collectiveAnonymous.80 HBGary’s attempts to infiltrate a network of hactivists resulted in itsnetwork being infiltrated in turn, and its confidential corporate documents leaked.81

Whilst civil disobedience is sometimes necessary, and the examples given abovewere, in defence of Anonymous and Lulzsec, retaliatory, the danger of civil societyactivists having recourse to extra-legal methods for voicing dissent is that they showcontempt for multi-stakeholder engagement, accountability and the rule of law. Thisinvites a response which holds those values in similar contempt, such as that of China,the Russian Federation, Tajikistan and Uzbekistan, who propose a government-onlyinstrument on cyber-security. If governments perceive that the Internet community’sreaction to the infringement of their rights online is to practice cyber-warfare, ratherthan to engage in discussion and debate on their grievances in multi-stakeholder forathat exist for that purpose, then the utility of those fora is compromised and theirfurther decline is assured.

A second respect in which civil society should take responsibility for the declineof multi-stakeholderism is that it has not organised its participation in Internet gov-ernance processes very effectively in recent years. During WSIS, civil society self-organised itself into a plenary group, and a large number of regional, multi-stakeholderand thematic caucuses and working groups.82 Of these, the only body that remainsactive today is the Internet Governance Caucus (IGC). Its capacity to represent civilsociety within Internet governance institutions is limited by a number of factors: itsmembership although large is relatively narrow, it is not formally incorporated, it hasno staff or funding, and is not accredited to ECOSOC.

Similarly, during the last decade NGOs that were active on intellectual propertyissues in venues such as WIPO used to hold coordination meetings in Geneva. Thesemeetings, too, are a thing of the past.83 Increasingly it has been the funding agenciessuch as the Open Society Institute (OSI) and IDRC, that have taken the initiative toorganise and fund occasional gathering of NGOs working on IP issues.

In comparison, business and technical community stakeholders attending meetingsof institutions such as WIPO and the CSTD, and events such as the e-G8 and the Euro-pean Digital Assembly, come well prepared, with joint positions discussed and agreedbeforehand. Pre-event meetings are held, along with daily briefings in the mornings.It is natural, then, that such events tend to be dominated by business and technicalcommunity representatives who are much better prepared to advance their agreedpositions.

In part of course, this disparity between the disorganisation of civil society andthe organisation of the other stakeholder groups stems from civil society’s lack of re-sources. But WSIS showed that even when resources were limited, it was possible

80 Ashley Fantz and Atika Shubert. WikiLeaks ’Anonymous’ hackers: ’We will fight’. 2010. url: http://articles.cnn.com/2010-12-09/us/hackers.wikileaks_1_julian-assange-arbor-networks-websites?_s=PM:US.

81 Peter Bright. Anonymous speaks: the inside story of the HBGary hack. 2011. url: http://arstechnica.com/tech-policy/news/2011/02/anonymous-speaks-the-inside-story-of-the-hbgary-hack.ars.


83 Duncan Matthews. “The Role of International NGOs in the Intellectual Property Policy-Making andNorm-Setting Activities”. In: Chicago-Kent Law Review 82.3 (2007), pp. 1369–1387. url: http://www.cklawreview.com/wp-content/uploads/vol82no3/Matthews.pdf, p. 1385.

�� : �� -�� 175to evolve quite complex organisational structures in order to interface with policydevelopment proesses institutions more effectively. This is a challenge that civil soci-ety should take up anew if it wishes to address its own part in the decline of multi-stakeholder governance.

4 Arresting the DeclineIt has been seen that both within and outside the United Nations system, civil societystill lacks an effective voice in global Internet policy development, while governmentsand other powerful actors in the Internet governance regime continue to act unilater-ally. Multi-stakeholder policy development had been put forward to cure these ills,but its implementation is faltering badly, with an incapacitated IGF and a host of com-peting institutions and agreements that wield more power, but offer far less scope forstakeholder participation. What options, then does civil society have for arresting theobserved decline in the fortunes of the multi-stakeholder principle?

4.1 A Framework DocumentThe first suggestion may seem an odd one: the development of a framework of prin-ciples for Internet governance. Clearly, we already have a surfeit of such documents.The Council of Europe’s code of good practice on information, participation and trans-parency, developed with the Association for Progressive Communications (APC) isa good example.84 The OECD Communiqué, though flawed, is another. PresidentObama’s International Strategy for Cyberspace, the EU’s Internet Compact, the G8’sDeauville Declaration and IBSA’s recommendations are yet more. Whilst most of theseare governmental in origin, civil society, too, has been busy in the Internet principlesdepartment, with the Internet Rights and Principles Dynamic Coalition having re-leased the beta version of its Charter of Human Rights and Principles for the Internetat the Nairobi meeting of the IGF. 85

But none of these documents is sufficient, because none of them are shared by allof the stakeholder groups and regions which they aspire to cover, and therefore alllack weight and legitimacy as instruments guiding the practice of Internet governanceglobally. It would be much more apt for the IGF itself to produce such a document, infulfilment of its mandate to discuss international public policies regarding the Internetand to make recommendations where appropriate. Such an IGF statement of Internetprinciples – non-binding, of course – would be a valuable tangible output shared by allstakeholders as a guide for their individual activities in Internet governance; an unmetneed that the Secretary-General, amongst others, has recognised.86

Brazil attempted to submit such a document to the Vilnius meeting of the IGF in2010, its Principles for the Governance and Use of the Internet, developed on a multi-stakeholder basis by the Brazilian Internet Steering Committee (CGI.br).87 Whilstmany at that time called for the IGF to adopt the principles as a basis for a set of prin-

84 Council of Europe. Code of good practice on information, participation and transparency in Internet governance.2010. url: http://www.apc.org/en/system/files/COGP_IG_Version_1.1_June2010_EN.pdf.

85 See http://irpcharter.org/.86 United Nations Secretary-General. Continuation of the Internet Governance Forum. 2010. url: http://unpan

1.un.org/intradoc/groups/public/documents/un/unpan039400.pdf, p. 5.87 CGI.br. Principles for the Governance and Use of the Internet. 2009. url: http://www.cgi.br/english/regula

tions/resolution2009-003.htm.

176 �� ciples of its own,88 there was then no process by which the IGF could deliberate uponsuch a document, in the way that the OECD was able to deliberate upon its Commu-niqué by submitting it to the stakeholder groups for discussion and comment.

Thankfully, a clear road map for the IGF to develop the capacity to deliberate uponsuch outputs is on the table at the CSTD Working Group.89 The proposal, as presentedby India, involves the MAG identifying key policy questions, working groups beingformed to deliberate upon them and produce background papers, these being fur-ther deliberated upon at IGF workshops, round table discussions and intersessionalmeetings, the output being presented to the IGF in plenary session, and a final reportbeing prepared by the working groups. The fate of the Indian proposal, or anythinglike it, remains murky, given the opposition to change within the CSTD from the de-veloped countries, business and technical communities. However, their choice is ratherstark: either the IGF is to develop the capacity to produce policy outputs such as this,or it will rapidly be overtaken by rival institutions and processes. Therefore whilstchange is always difficult, this particular change is long overdue for the IGF, and can-not continue to be passed up if it wishes to remain relevant. If successful, there isevery chance that the statement of principles that the IGF produces will provide per-suasive guidance to those other institutions and processes, and alone validate the IGF’scontinued existence.

4.2 Better use of Representation OptionsThe imbalance of power that affects civil society in comparison to other stakeholdergroups within governance institutions is an inevitable consequence of the far greatereconomic and (thus) political power that the private sector holds. In many intergov-ernmental institutions – such as WIPO, for example – private sector cooperatives andlobby groups receive the same consultative status as NGOs from civil society, whichresults in the “crowding out” of civil society voices in consultative processes. Addi-tionally, as noted above, civil society tends to be less well prepared and coordinatedin comparison to the business and technical communities. This too has prejudiced itssuccess in advocating for public interest outcomes in venues such as the IGF’s MAG,the CSTD and the OECD.

To redress this, civil society needs to make better use of the options that are alreadyavailable to it to represent the public interest within Internet governance institutions.This should involve a methodical process of :

• Mapping the institutions active in the Internet governance regime, and the opportu-nities for participation they each offer.

• Assessing the resources that civil society groups have available to participate inthese institutions, and what barriers they face.

• Coordinating the application of these resources towards the opportunities identified,and engaging in capacity building to overcome the barriers where possible.

In 2011, Consumers International commenced a programme titled “Consumer Repre-sentation in the Information Society” that aims to follow the above approach to help

88 Internet Governance Forum. Fifth Meeting of the Internet Governance Forum (IGF) – Chairman’s Summary(Expanded Version). 2010. url: http://intgovforum.org/cms/2010/Chairman\%27s.Summary.Expanded.pdf,p. 22.

89 Government of India. India’s Inputs to the Questionnaire circulated by the Chair of the CSTD Working Group onImprovements to Internet Governance containing broad elements of the final report. 2011. url: http://www.unctad.info/upload/CSTD-IGF/Contributions/M1/India.pdf.

�� : �� -�� 177public interest representatives (most specifically consumer groups) better utilise theavailable options for representation of the public interest in Internet governance insti-tutions. 90

During the same year, in the related arena of intellectual property, the AmericanUniversity of Washington DC and the FGV Law School launched their own pro-gramme titled “International IP and the Public Interest,” to help build a global net-work of public interest advocates working on intellectual property issues.91.

These programmes exemplify, but certainly do not exhaust, what is needed to equipglobal civil society to more effectively make use of the opportunities that exist to par-ticipate in multi-stakeholder Internet governance processes. More will certainly neededto return civil society to the position of organised strength that it had during the firstphase of WSIS, culminating in the leading role that it played in the multi-stakeholderWorking Group on Internet Governance.

4.3 Reform of Institutions Where Options LackingOf course, a large part of the problem is not that civil society doesn’t make use of theopportunities it has for multi-stakeholder participation, but rather that those opportu-nities do not exist. This is particularly so in cases such as the ACTA and TPPA treaties,which have been negotiated in private with very little access being afforded to pub-lic interest representatives. The Tunis Agenda specifies that those exercising globalInternet governance responsibilities should do so in a manner that is “multilateral,transparent and democratic, with the full involvement of governments, the private sec-tor, civil society and international organizations”. This points to the need for reform ofsuch processes that do not already meet thos standards. An example of such reform inpractice is in the case of the OECD, which following its 2008 Seoul Ministerial Meet-ing, formed the CISAC as a dedicated civil society advisory group alongside similargroups for business and the technical community.

Institutions that do not meet the WSIS process criteria are to be identified by theIGF, which is mandated to “Promote and assess, on an ongoing basis, the embodimentof WSIS principles in Internet governance processes”.92 But given that the IGF is notpresently fulfilling this paragraph of its mandate, the next best option is for civil soci-ety to study and advocate for reform in institutions that are not adequately inclusive ofmulti-stakeholder participation. In conducting such analysis, questions to ask are:

• Are the main barriers to participation institutional, or are they capacity issues oncivil society’s part? Do they affect each of the phases of the institution’s work, orjust one phase such as agenda setting or implementation? In each of these cases, themost appropriate remedies will differ.

• What reforms can be made to improve participation? Examples may include greatertransparency, better support from the institution’s secretariat, new formal mecha-nisms for public consultation, or more streamlined procedures so that issues canreceive adequate consideration before the window of time for taking effective actionhas closed.

90 See http://A2Knetwork.org/consumer-representation-information-society.91 See http://infojustice.org/92 WSIS. Tunis Agenda for the Information Society. 2005. url: http://www.itu.int/wsis/docs2/tunis/off/

6rev1.html, para 72(i).

178 �� • What coalitions and alliances can be formed to rally support for the reforms re-

quired? As noted below, there may be other actors who have interests in increasingmulti-stakeholder participation in the institution concerned, and it is likely to becritical to rally their support. A good example of this is in the cooperation betweengovernments and civil society in introducing a Development Agenda for WIPO.

• Where will the funding come from to support this exercise? Advocating for thereform of a closed intergovernmental organisation can be a long, tiresome and ex-pensive process. Securing public or private funding support will be important in theearly phases of the reform campaign.

Finally, if institutional reform is not possible in the short term, it may still be that civilsociety can still influence the organisation at a lower, more informal level. According toscholar Duncan Matthews,

NGOs do not, and should not, rely on the panacea of enhanced formal participation inmultilateral institutions in the future. Rather, their work is more effective at the informallevel, providing advice and technical expertise in order to improve the flow of informationand inform the policy-making and norm-setting process.93

4.4 Strategic Alliances With Other ActorsAs noted above, the support of other actors to advance the cause of multi-stakeholderInternet governance is imperative. In the face of opposition from reactionary stake-holders, it has not been civil society that has achieved the highest profile gains, it haslargely been governments such as Brazil, with the presentation of its Principles onGovernance and Use of the Internet in Vilnius,94 and India with its recommendationson IGF improvement at the CSTD.95 It will be particularly important for civil society toengage with IBSA, to offer advice on its recommendations before they are presented tothe General Assembly, and to secure an acceptable place for civil society in whatevernew governance arrangements those recommendations would create.

Intergovernmental allies are also important. Amongst these will certainly be theCouncil of Europe, which collaborated with civil society on the development of itsdocuments on Internet governance,96 though to date has not yet attempted as Brazildid to propose these for adoption by the IGF at large.

Finally the private sector, although at large opposed to the fuller development ofthe IGF’s role, does have some members who have strongly supported civil society in-terests. Google is a sponsor of the International IP and the Public Interest programmementioned above. The Computer and Communications Industry Association (CCIA)has spoken up at WIPO in favour of civil society proposals, and held joint events withcivil society stakeholders such as the Trans Atlantic Consumer Dialogue (TACD).

Amongst the most appropriate joint working methods that civil society and its alliesmay adopt in a given case may include:

93 Duncan Matthews. IP-NGOs final report December 2006. 2006. url: http://www.ipngos.org/Report/IP-NGOs\%20final\%20report\%20December\%202006.pdf, p. 31.

94 CGI.br. Principles for the Governance and Use of the Internet. 2009. url: http://www.cgi.br/english/regulations/resolution2009-003.htm.

95 Government of India. India’s Inputs to the Questionnaire circulated by the Chair of the CSTD Working Group onImprovements to Internet Governance containing broad elements of the final report. 2011. url: http://www.unctad.info/upload/CSTD-IGF/Contributions/M1/India.pdf.

96 Council of Europe. Code of good practice on information, participation and transparency in Internet governance.2010. url: http://www.apc.org/en/system/files/COGP_IG_Version_1.1_June2010_EN.pdf; Council ofEurope. Internet Governance Principles. 2011. url: http://www.coe.int/t/dghl/standardsetting/media-dataprotection/conf-internet-freedom/Internet\%20Governance\%20Principles.pdf.

�� : �� -�� 179• Joint capacity building seminars, such as IGF workshops and side-events at inter-

governmental organisations such as WIPO.

• Formal or informal consultation on documents, such as those put forward by IBSAand the Council of Europe.

• Providing advice and technical expertise to governments at the informal level,where formal participation alongside them in a particular institution is not possi-ble.

• Requesting joint meetings to raise civil society concerns, either on a formal basis orsimply in the corridors of institutions like CSTD and WIPO and at negotiations likethe TPPA.

5 ConclusionMany will understandably doubt that multi-stakeholderism is in decline at all. Cer-tainly as a buzzword, it still has currency amongst all the stakeholder groups. Otherthan the Chinese group’s instrument on cyber-security, each of the Internet principlesdocuments referred to in this paper includes reference to the importance of multi-stakeholder involvement in Internet governance. But when one compares the promiseof multi-stakeholderism during the last decade with its reality today, civil society inparticular is apt to feel short-changed.

It may have seemed to have been settled at WSIS that civil society would be af-forded a position of equality in Internet governance arrangements alongside the otherstakeholder groups, as had been the case in the WGIG and at the IGF. Yet today, civilsociety is fighting harder than ever to secure meaningful representation within UNbodies such as the CSTD’s Working Group, the consultations on enhanced cooperation,and the IGF MAG, as well as within other multilateral institutions and meetings suchas the e-G8 and ACTA. This struggle will only continue over the coming years, as newintergovernmental bodies, such as those proposed by IBSA and the Chinese group, aregiven birth while the IGF struggles for relevancy.

Civil society has more to lose from the potential demise of multi-stakeholderismthan governments, the private sector of the technical community, because in its absencewe have less power than they do to fall back on. It is therefore incumbent upon civilsociety to take the lead in ensuring that the multi-stakeholder principle survives. Assuggested in this paper, some of the steps that can be taken to this end are:

• To interrupt the flurry of competing Internet principles documents being put for-ward by individual stakeholders in isolation, and instead work towards unifyingthat effort within the IGF.

• To more efficiently and effectively target our available resources towards represent-ing the public interest within institutions where multi-stakeholder input can alreadybe received at a formal or informal level.

• In institutions that do not facilitate civil society representation, to identify and lobbyfor the necessary institutional reforms.

• To form and utilise mutually beneficial alliances with other actors where this canhelp to strengthen multi-stakeholder processes or our participation in those pro-cesses.

180 �� Multi-stakeholderism is still a recent innovation in global governance, and it would bepremature to announce its death. At the same time, it is not yet so firmly establishedthat its survival is assured. Helping to arrest the decline of multi-stakeholderism maybe the most important contribution that civil society can make to the Internet gover-nance regime, now and for decades to come.

8 Public Interest Representationin the Information SocietyNorbert Bollow

A�� As societies are transformed by the increasing use of digital informationand communication technologies, this report gives an overview on the representationof consumer interests and other perspectives on the public interest in the decision-making processes that govern these developments. In particular, relevant governancefora and institutions are identified and the existing mechanisms for consumer rep-resentation and broader public interest representation in each are outlined. In somecases, institutional deficits are evident, so that reforms are needed to allow for moreeffective public interest representation. A system engineering perspective can provideinsights on what will be helpful reforms. On the other hand, some of the already-available mechanisms for consumer representation are underutilised. Very often thelobbyists of large corporations hardly encounter any significant opposition at all whenthey influence the framing of various debates in such a way that it becomes practicallyimpossible to reach a result that does not greatly favor their interests over the pub-lic interest. This report aims at providing a reasonably complete overview of thesematters on the basis of the responses to a survey conducted among many civil societyorganizations in the fall of 2011, together with other relevant sources. An online Map ofInternet Governance will allow to collaboratively expand on this information and keep itup-to-date in order to facilitate effective strategic planning.

1 Introduction and OverviewThe term “information society” points out tremendous social and economic transfor-mations of human society that are happening through information and communicationtechnologies, with the Internet being a key driver. The main processes of public pol-icy development in relation to these transformations are therefore all in some relationto the Internet, and they are therefore referred to (together with the more technicalaspects of taking care of the Internet) as “Internet governance”.

A key starting point of this focus on Internet governance was the UN’s “WorldSummit on the Information Society” (WSIS) in Geneva (2003) and Tunis (2005).

The present report aims at summarizing the opportunities for consumer interestrepresentation and broader public interest representation that exist in this context. As

182 �� becomes clear when the concept of public interest representation is reflected about(see section 3.4 below), there is an important role that needs to be played by consumerrepresentatives and other organized civil society groups, and it is important for thecategory of groups whose view should be considered in the context of public interestrepresentation to be rather broad, but not so broad as to include representatives ofcommercial special interests. The Council of Europe’s Code of Good Practice for CivilParticipation in the Decision-Making Process [CoE 2009] has a good characterization of theappropriate category of organizations, calling them “NGOs”:

In relation to this Code of Good Practice for Civil Participation the term is taken to refer toorganised civil society including voluntary groups, non-profit organisations, associations,foundations, charities, as well as geographic or interest-based community and advocacygroups. The core activities of NGOs are focused on values of social justice, human rights,democracy and the rule of law. In these areas the purpose of NGOs is to promote causesand improve the lives of people.

NGOs form a crucial component of participation in an open, democratic society throughengaging large numbers of individuals. The fact that many of these individuals also arevoters underlines the complementary relationship with representative democracy.

NGOs can bring benefits of knowledge and independent expertise to the process of deci-sion making. This has led governments at all levels, from local and regional to national,as well as international institutions, to draw on the relevant experience and competenceof NGOs to assist in policy development and implementation. NGOs enjoy a unique trustfrom their members and society to voice concerns, to represent their interests and to gaininvolvement in causes, thereby providing crucial input into policy development.

Unfortunately, in some governance institutions, the term “NGO” is used in a muchbroader sense which includes all non-governmental entities including industry lobbyorganizations. Since it is important to have a clear distinction between lobbyists forcommercial interests and what e.g. the CoE means when it refers to NGOs, this reportuses the term “Civil Society Organization” (CSO) for what the CoE calls an NGO.

How to strengthen civil society participation in Internet governanceOverall, there are two main paths that need to be pursued to strengthen civil societyparticipation in Internet governance: Civil society participation needs to be increased,and it needs to become more effective. Often formal hurdles such as unreasonabledifficulty of getting accredited are irritating, but not the main problem. Fundamen-tal strategies for effective participation such as good preparation and coordination (inparticular, exchange of strategic information) between the various civil society organi-zations need to be pursued more vigorously1, see [Esterhuysen 2011a], [Schombe 2011]and [Esterhuysen 2011b]. It is also extremely important to work on increasing the con-fidence of national governments that effective multi-stakeholder policy developmentwith strong CSO participation is possible, see [Malcolm 2012] (in this volume).

The surveyIn order to gather information on what opportunities for public interest representa-tion exist and how they are used, civil society organizations and other self-identifiedpublic interest representatives were requested to participate in a survey organized bythe “Dynamic Working Coalition on Internet Governance Mapping”, a loose group

1 Source: In addition to the above-referenced mailing list postings, survey [DWC-IGM 2011], cells UO17,UO21, UO72, UO95, UO131, VU72.

�� : �� 183that has come together in the context of the 2011 meeting of the Internet GovernanceForum (IGF) in Nairobi. The survey questions were designed by Jeremy Malcolm ofConsumers International.

In total, 134 survey responses were received, and the data of the responses is avail-able to anyone wishing to analyze it, see [DWC-IGM 2011]. There is significantly moreinformation available there than what is used in this report.

One of the questions that was asked in the survey was: “What are the three biggestproblems for civil society at large in coordinating its participation in institutions ofgovernance in the information society?” The breakdown of responses is as follows2:One survey respondent made the following suggestion:

Problem Respondents

No coordinating framework or process 26

Poor communication between CSOs 30

Too many institutions to cover 20

Forum shifting to bypass CSOs 19

Disagreements within civil society 14

Decline of multi-stakeholderism 11

Lack of funding for participation 47

Other 5

Where we are participating and submitting reports etc, a repository of submissions onsimilar issues from similar organizations would be very valuable, saving a lot of time.3

Challenges in the area of funding are clearly a very significant obstacle that standsin the way of increasing civil society engagement in the various governance fora andinstitutions which are relevant to the development of information society. As wasexplained eloquently by a representative of a national civil society umbrella body inregard to question 26 in the survey about the reasons for not participating in furthergovernance fora and institutions:

CFC is an umbrella body within UK civil society. As such, despite our local deficiencies(that members feel keenly), we have a lot of expertise and experience that could with ad-vantage be shared much more widely. I could have answered "too little time" throughoutquestion 26, and that is the immediate barrier, but lack of funding is behind the lack oftime.4

Many other respondents have expressed similar sentiments.5

Several survey respondents pointed out particular challenges that hinder the effec-tive representation of non-Western perspectives, see section 3.6.

The mindmap on the preceding page gives an overview of the main points regard-ing obstacles to effective public interest representation.

2 Source: Survey [DWC-IGM 2011], columns VI to VP. As this was one of the last questions, the variousincomplete survey responses contained no response to this question.

3 Source: Survey [DWC-IGM 2011], cell VU7.4 Source: Survey [DWC-IGM 2011], cell UN17.5 Source: Survey [DWC-IGM 2011], cells UO2, UO4, UO5, UO7, UO39, UO40, UO41, UO49, UO59, UO66,

UO71, UO83, UO97, UO113, UO115, UO122, UO123, UO128, UO131.

184 �� 2 Relevant governance fora and institutionsThis section has subsections for all the institutions which have in the following sensebeen identified in the survey as particularly relevant to information society. Amongthe completed survey responses6, it was counted for each institution or category ofinstitutions how many of the responding persons and organizations indicated that theywere either engaging there or would have liked to engage there if they were able todo so. All those which were mentioned at least four times7 in one of these ways areconsidered particularly relevant to information society for the purposes of the presentreport.8 Furthermore, the survey also gave respondents the opportunity to mentionothers. This column was examined to check for any institutions that were mentionedmultiple times. Universities were in fact mentioned many times, and are thereforeincluded below.9

2.1 African Commission on Human and Peoples’ Rights (ACHPR)ACHPR is charged with ensuring the promotion and protection of human and peo-ples’ rights throughout the African Continent. Its responsibilities include interpretingthe African Charter on Human and Peoples’ Rights and considering complaints ofviolations of the Charter.

In the survey, three respondents indicated that they have engaged with ACHPR andfour further respondents expressed interest. Two of the latter provided a reason for notalready engaging there, which was “too little money” in both cases.10

Mechanisms for consumer and broader public interest representation:The survey responses from respondents who indicate that they’re engaging with

ACHPR do not mention any specific mechanisms for civil society engagement, norany complaints about difficulties in engaging with ACHPR. This appears to lead to theconclusion that CSOs can engage directly with the Commission and that this worksreasonably well.

2.2 AfriNICAfriNIC is the Regional Internet registry (RIR) for the African continent, i.e. the coreactivity is the allocation and registration of Internet number resources including inparticular the allocation of blocks of IP (Internet Protocol) addresses.

In the survey, six respondents indicated that they have participated in AfriNIC

6 For this analysis, only fully completed survey responses were used, because some respondents hadclearly started the survey several times, but completed it only once.

7 This essentially arbitrary cut-off was decided by examining the results and choosing the cut-off so that itwould not result in essentially arbitrarily including one but excluding another among similar institutions.For example, setting the cut-off at five would have excluded Mercusor (mentioned four times) but includedall the other regional trade organizations.

8 ITAC and NTIA were however excluded from the list below, for the following reasons: ITAC had beenincluded on the survey by mistake, because it is an advisory committee to OECD and not a separate gover-nance institution. NTIA is a (US) national institution which therefore does not fit into the intended overviewof international governance institutions.

9 (Otherwise APTLD was the only “other” institution that was mentioned more than once: It was men-tioned twice, but one of the respondents mentioning APTLD was in fact a representative of APTLD, so thatresponse should not be counted in determining whether APTLD should be included in a list of particularlyimportant Internet governance fora.)

10 Source: Survey [DWC-IGM 2011], columns AM, QW and SS.

�� : �� 185policy discussions and three further respondents expressed interest.11

Mechanisms for consumer and broader public interest representation:Participation in the policy formulation and deliberation process is open to all stake-

holders from the service region.

2.3 Anti-Counterfeiting Trade Agreement (ACTA)ACTA is formally a plurilateral trade agreement. In actual reality it is however con-cerned with the enforcement of “intellectual property rights”. [Helfer 2004] has ana-lyzed this kind of “regime shifting” strategy in detail. See also [Patriota 2012].

In the survey, six respondents indicated that they have engaged with regard toACTA, and six further respondents expressed interest, most of them complainingabout lack of openness to CSOs.12

Mechanisms for consumer and broader public interest representation:CSOs were generally intentionally excluded from any form of participation during

the ACTA negotiations. (The US government however consulted with a significantnumber of major corporations about the planned treaty.13)

If ACTA enters into force, it will create a new governance institution, the ACTACommittee. This committee will have the right (but no obligation) to “seek the adviceof non-governmental persons or groups ”. In view of the fact that this decision wouldneed to be taken by consensus, and in view of the history of ACTA, it appears unlikelythat the advice of CSOs will be sought.

2.4 APNICAPNIC is the Regional Internet registry (RIR) for the Asia-Pacific region, i.e. the coreactivity is the allocation and registration of Internet number resources including inparticular the allocation of blocks of IP (Internet Protocol) addresses.

In the survey, eleven respondents indicated that they have participated in APNICpolicy discussions and three further respondents expressed interest.14



2.5 ARINARIN is the Regional Internet registry (RIR) for North America, i.e. the core activity isthe allocation and registration of Internet number resources including in particular theallocation of blocks of IP (Internet Protocol) addresses.

In the survey, five respondents indicated that they have participated in ARIN policydiscussions; no further respondents expressed interest.15



11 Source: Survey [DWC-IGM 2011], columns AO and QY.12 Source: Survey [DWC-IGM 2011], columns AP and QZ.13 Source: http://www.keionline.org/node/660, accessed 2011-12-17.14 Source: Survey [DWC-IGM 2011], columns AQ and RA.15 Source: Survey [DWC-IGM 2011], columns AR and RB.

186 �� 2.6 Asia-Pacific Economic Cooperation (APEC)APEC is a forum for 21 countries in the Asia-Pacific Region, with the goal of promot-ing open trade and practical economic cooperation.

In the survey, three respondents indicated that they have participated in policydiscussions in this forum, and seven further respondents expressed interest.16

Mechanisms for consumer and broader public interest representation:According to a survey response, participation is possible through various commit-

tees or subsidiary organs.17

2.7 Association of South East Asian Nations (ASEAN)ASEAN is a geo-politic and economic organization of ten countries in Southeast Asia.

In the survey, five respondents indicated that they have participated in policy dis-cussions in this forum, and one further respondent expressed interest.18

Mechanisms for consumer and broader public interest representation:There is a Consumer Council.19 Furthermore, the ASEAN Civil Society Conference

(ACSC) is used by CSOs to exchange ideas and advance their inputs to ASEAN leadersand relevant policy-makers.20

2.8 Council of Europe (CoE)The Council of Europe is an international organisation of 47 European countries, pro-moting co-operation in the areas of legal standards, human rights, democratic develop-ment, the rule of law and culture. (The CoE is an entirely separate body from the EUwhich has only 27 member states.)

The CoE’s influence extends beyond Europe. One survey respondent from Singa-pore noted:

The CoE and EU have come up with many sensible rules re IG. So attending the meetingswould be getting a front row seat.

21

In the survey, eleven respondents indicated that they have participated in policydiscussions in this forum, and eight further respondents expressed interest.22

Mechanisms for consumer and broader public interest representation:CoE’s mechanisms for civil society participation appear to be exemplary in several

ways: The “Conference of INGOs” (in which around 400 CSOs have “participatorystatus”) is given an important-sounding designation by calling it the “4th pillar of theCouncil of Europe”, and it has corresponding rights to be taken seriously by the otherCoE institutions:

All other Council of Europe institutions co-operate with the Conference of INGOs. NGOsmay address memoranda to the Secretary General or the Commissioner for Human Rights,

16 Source: Survey [DWC-IGM 2011], columns AS and RC.17 Source: Survey [DWC-IGM 2011], cell GG4.18 Source: Survey [DWC-IGM 2011], columns AT and RD.19 Source: Survey [DWC-IGM 2011], cell GH11.20 Source: http://www.aseancivilsociety.net/en/asean-and-civil-society-engagement/background-

on-acsc, accessed 2011-12-18.21 Source: Survey [DWC-IGM 2011], cell UN58.22 Source: Survey [DWC-IGM 2011], columns AU and RE.

�� : �� 187provide expert advice on policies and programmes in their field of action, make oral andwritten statements to the Parliamentary Assembly’s Committees, attend public sittings ofthe Congress, and participate in seminars, conferences, colloquies. They also played animportant role in the preparation of numerous conventions and charters, including theConvention on the Legal Status of Migrant Workers, the Convention for the Prevention ofTorture, and the European Cultural Convention.23

It is also possible for CSOs to directly join CoE working groups as observers, forexample EDRi’s representative describes this experience as follows:

Through its experience as an observer to both CoE CAHSI and MC-S-IS groups of special-ists since 2005, EDRI, while far from entirely satisfied by the group outcomes, may attestthat documents (Recommendations, Declarations or Guidelines) on Human Rights in theInformation Society, eventually submitted for adoption to the CoE Committee of Ministers,have successfully been deeply modified from initial draft versions which, in many otherfora, would have left little expectations to digital rights defenders.24

CoE has adopted a noteworthy Code of Good Practice for Civil Participation in theDecision-Making Process [CoE 2009].

2.9 Corporation for National Research Initiatives (CNRI)CNRI is a not-for-profit organization that develops in particular a “Handle System” formanaging and locating digital information.

In the survey, three respondents indicated that they have participated in policydiscussions in this forum, and five further respondents expressed interest.25

Mechanisms for consumer and broader public interest representation:The survey responses from respondents who indicate that they’re engaging with

ACHPR do not mention any specific mechanisms for civil society engagement,26 norare there any complaints about difficulties in engaging with CNRI27. This appears tolead to the conclusion that CSOs can participate directly in CNRI and that this worksreasonably well.

2.10 European Patent Office (EPO)EPO is an organ of the European Patent Organisation (EPOrg), a treaty-based interna-tional organization that includes the EU member states and several further Europeancountries. EPO has the power to issue patents on behalf of all member countries of theEuropean Patent Convention.

In practice EPO has grabbed the power to essentially unilaterally decide to extendthe scope of patentability for all member countries of the European Patent Convention.

In the survey, one respondent (an individual in Germany where the EPO is located)indicated that he or she has participated in policy discussions within this institution,and five further respondents expressed interest.28

Mechanisms for consumer and broader public interest representation:

23 Source: http://www.coe.int/lportal/web/coe-portal/what-we-do/democracy/civil-society, accessed20111218.

24 Source: http://www.edri.org/book/export/html/1158, accessed 20111218.25 Source: Survey [DWC-IGM 2011], columns AV and RF.26 Source: Survey [DWC-IGM 2011], column GJ (which is empty).27 Source: Survey [DWC-IGM 2011], column TB (which does not include “not open to CSOs” among the

various reasons that were given.)28 Source: Survey [DWC-IGM 2011], columns AV and RF.

188 �� Among information society governance institutions, the European Patent Office is

one of the very few that are sadly completely closed to effective CSO engagement.

2.11 European Union (EU)The EU is an economic and political union of 27 member states.

The EU’s influence extends beyond Europe. One survey respondent from Singaporenoted:

The CoE and EU have come up with many sensible rules re IG. So attending the meetings would begetting a front row seat.29

In the survey, 22 respondents indicated that they participated in EU policy discus-sions, and five further respondents expressed interest.30

Mechanisms for consumer and broader public interest representation:See [McNamee et al 2012].

2.12 G8The G8 is a group of 8 powerful industrial nations. Recently, the group has becomeactive in the Internet governance arena. [Malcolm 2012] observes:

In 2009, European Commission Vice-President Vivian Reding had called for the estab-lishment of a “G-12 for Internet Governance,” being “a multilateral forum available forgovernments to discuss general internet governance policy issues.” She got her wish in2011, when the G8 under the Presidency of French President Nicolas Sarkozy, convened aninvitation-only e-G8 Forum in Deauville, from which civil society was largely excluded.The meeting notionally provided non-governmental delegates an opportunity to con-tribute their views to the formal G8 summit (though in fact the Deauville Declarationeventually issued at the summit had been drafted beforehand).

According to one commentator who was present, Sarkozy “sees the role of the e-G8 verymuch in the same context as the national CNN (Conseil National du Numérique, com-posed only of business): create a space for business and states to start a conversation, butnot a real advisory body and not multi-stakeholder.”

In the survey, three respondents indicated that they engaged with the G8, and sixfurther respondents expressed interest.31

Mechanisms for consumer and broader public interest representation:As noted above, there are intentionally no direct mechanisms for civil society par-

ticipation. Indirect participation by means of lobbying one of the participating govern-ments is of course always a possibility.32

From a public interest representation perspective, the need for reforms is quiteobvious. Not only must civil society be welcomed to participate in the discussions, butthe perspectives of developing countries need to be taken into consideration also.

Possibly the only way to exert pressure to end the unacceptable situation may bethrough democratic processes in G8 member countries.

However even though it is quite unpalatable from a public interest representationperspective, the motivation behind the formation of groups like the G8 and G20 (see

29 Source: Survey [DWC-IGM 2011], cell UN58.30 Source: Survey [DWC-IGM 2011], columns BA and RK.31 Source: Survey [DWC-IGM 2011], columns BB and RL.32 Source: Survey [DWC-IGM 2011], cells TE11, UN11.

�� : �� 189below) can be quite easily understood because it is clearly desirable to have the abilityto reach coordinated policy decisions, and reach them quickly.

Therefore, it is probably not realistic to expect this kind of bothersome fora andtheir influence to go away before better governance institutions have been establishedthat allow to reach good decisions (i.e. public-interest-acceptable decisions in the senseof section 3.4 below) reasonably quickly.

2.13 G20Not unlike the G8 in its basic idea, the G20 is a group of finance ministers and centralbank governors from 20 major economies. In view of the steadily increasing impor-tance of the G20 in world politics, it is likely for the influence of the G20 to eventuallyextent into some areas of Internet governance, in particular internet-based paymentsystems.

In the survey, two respondents indicated that they engaged with the G20, and twofurther respondents expressed interest.33

With regard to the lack of openness to civil society participation and lack of open-ness to the participation of non-member countries, the G20 shares the problems of theG8, see above.

2.14 IEEEIEEE is a professional association for technical engineering and a standards develop-ment organization. The latter area of IEEE is more precisely referred to as IEEE-SA(IEEE Standards Association.)

In the survey, four respondents indicated that they participated in IEEE, and twofurther respondents expressed interest.34

Mechanisms for consumer and broader public interest representation:CSOs can become members of IEEE-SA. For a CSO, a basic membership costs

US$1250/year.35

While the membership fees of IEEE-SA are reasonable in the context of businessparticipants, it is not reasonable that CSOs are charged similar fees.

Even so, short of full membership, there are still avenues for CSOs to participatein the standards development processes of the IEEE. For further information, see thepaper by Paul Sweazey in this volume.

2.15 IETFIETF develops the fundamental technical standards of the Internet.

In the survey, twelve respondents indicated that they participated in IEEE, and twofurther respondents expressed interest.36

Mechanisms for consumer and broader public interest representation:In IETF, anyone (including CSOs) can fully participate. There are no restrictions, but

in-depth technical understanding is needed to participate effectively.37

33 Source: Survey [DWC-IGM 2011], columns AY and RI.34 Source: Survey [DWC-IGM 2011], columns BC and RM.35 Source: http://standards.ieee.org/membership/. Accessed 2011-12-18.36 Source: Survey [DWC-IGM 2011], columns BD and RN.37 Source: The author’s personal knowledge and experience.

190 �� 2.16 International Telecommunications Union (ITU)ITU can be described as an international public-private partnership with a highly tech-nical focus, including in particular the development of technical standards: ITU wasfounded in 1865 as an intergovernmental organization, and it became a UN specializedagency in 1947. Besides the member states, there are also “sector members”. These arebusinesses and technical organizations with an interest in the development of telecom-munications technologies, networks and services.

In the survey, 19 respondents indicated that they participated in ITU, and eightfurther respondents expressed interest.38

Mechanisms for consumer and broader public interest representation:Although a number of survey respondents indicated participation in ITU activities

through various channels, such as the “Dynamic Coalition on Internet and ClimateChange (DCICC)”39, standards development40, a “High Level Experts Group”41 andWSIS Forum42, generally speaking, ITU is not very open to CSOs. Many survey re-spondents characterized ITU as “Not open to CSOs”. While ITU recognizes the im-portance of the involvement of the private sector and of the technical community, theimportance of public interest advocacy is not recognized. [Malcolm 2012] observes:

The intergovernmental forum in which governments disenamoured of the multi-stakeholdermodel have most loudly voiced their views is the ITU. The ITU formed a government-onlyworking group in 2007 to review whether any reforms to its own structure were requiredin order to bring it into compliance with the multi-stakeholder standard set at WSIS. Al-though ITU membership and meetings are almost completely closed to civil society, thereview concluded in 2009 that no changes were needed.

At its plenipotentiary conference in 2010, renewed calls were made by some delegates forthe ITU “to take on itself a leading role in internet governance ” though as with earliersimilar efforts to these failed. However at the same meeting the ITU did confirm that itsDedicated Group on international Internet-related public policy issues would be main-tained as a body “limited to member states, with open consultation to all stakeholders.”

One survey respondent commented:

The main issue we encounter is corruption within the ITU and national governments. Incum-bent telecommunications carriers typically have very large budgets dedicated to protecting theirmonopoly status, and these budgets are typically used, as a first resort, to excluding open partici-pation and closing decision-making processes to competitors, the public, and journalistic scrutiny.This is the largest problem we face, generally.43

See section 3.1 for a discussion of the form of corruption that is probably meanthere.

ITU would obviously need to fundamentally change its attitude towards CSOs be-fore it could be considered acceptable for ITU to take on a leading role in InternetGovernance. There are unfortunately no indications that such a change might be polit-ically feasible. It is probably much more feasible to strengthen instead the role of otherfora which are more open to CSO participation, such as for example CSTD, see section2.36.

38 Source: Survey [DWC-IGM 2011], columns BF and RP.39 Source: Survey [DWC-IGM 2011], cell GT3.40 Source: Survey [DWC-IGM 2011], cell GT21.41 Source: Survey [DWC-IGM 2011], cell GT70. Presumably the High Level experts Group on Cybersecurity

is meant, see http://www.itu.int/osg/csd/cybersecurity/gca/hleg/.42 Source: Survey [DWC-IGM 2011], cell GT130.43 Source: Survey [DWC-IGM 2011], cell UO34.

�� : �� 1912.17 Internet Assigned Numbering Authority (IANA)IANA executes some technical administrative functions on behalf of IETF and ICANN.

In the survey, ten respondents indicated that they participated in IANA, and twofurther respondents expressed interest.44

Mechanisms for consumer and broader public interest representation:Since IANA’s task is the execution of policy decisions of IETF and ICANN, it is the

policy development processes of IETF and ICANN where public interest representa-tion is needed.

2.18 Internet Corporation for Assigned Names and Numbers (ICANN)ICANN is responsible, at the overall level, for the administration of three sets ofunique identifier systems for the internet: domain names, numerical internet proto-col (IP) addresses, and a third type that serves to identify so-called port and parameternumbers.45

In the survey, 33 respondents indicated that they participated in ICANN, and eightfurther respondents expressed interest.46


Besides public comment processes on policy proposals, ICANN has two channelsthrough which CSOs can participate in the “bottom-up policy development process”:the Noncommercial Users Constituency http://ncdnhc.org/ (NCUC) and the AtLarge Community http://www.atlarge.icann.org/ with the At-Large Advisory Com-mittee (ALAC). See [Hofmann 2007] for further details.

2.19 Internet Governance Forum - global (IGF)The Internet Governance Forum has been set up as an annual conference under theauspices of the United Nations, to provide "a transparent, democratic, and multilateralprocess, with the participation of governments, private sector, civil society and inter-national organisations, in their respective roles" for dialogue on Internet Governancepolicy.47

One survey respondent noted:

Internet Governance Forum IGF constitutes the most important and independent arena forglobal discussion. Considering its global scope, IGF can promote ICT for development asstated in WSIS and Millennium Declaration of 2000.48

In the survey, 49 respondents indicated that they participated in the global IGF, andten further respondents expressed interest.49 (These relatively big number reflect ahigh level of interest in the IGF, but they are undoubtedly also caused in part by thefact that an IGF-related mailing list was one of the means through which participationin the survey had been requested.)


44 Source: Survey [DWC-IGM 2011], columns BG and RQ.45 Source: [Hofmann 2007], an article which provides a good overview of ICANN related issues.46 Source: Survey [DWC-IGM 2011], columns BH and RR.47 Source: http://igfwatch.org/igf48 Source: Survey [DWC-IGM 2011], cell UN107.49 Source: Survey [DWC-IGM 2011], columns BI and RS.

192 �� Participation is effectively unrestricted. The IGF is a key example and test-case

for the value of multi-stakeholder governance in which CSOs can fully participate,see [Malcolm 2008]. Unfortunately no effective mechanism has yet been establishedthrough which the IGF would issue recommendations (as was originally foreseen inthe Tunis Agenda, on the basis of which the IGF was established) that would effec-tively influence the various decision-making governance processes, see [Malcolm 2012].

The Civil Society Internet Governance Caucus (IGC) is an important coordinationbody for CSO participation in the IGF.

2.20 Internet Governance Forum – regional/nationalThere is a number of IGF-like fora with smaller, regional or national scope.

In the survey, 28 respondents indicated that they participated in regional or nationalIGFs, and eleven further respondents expressed interest.50

2.21 Internet Society (ISOC)ISOC is a global association that participates actively in Internet policy developmentprocesses and which has some governance roles in regard to IETF.

In the survey, 37 respondents indicated that they participated in ISOC, and 15 fur-ther respondents expressed interest.51

Mechanisms for consumer and broader public interest representation:Just like everyone else, CSO representatives can freely engage within ISOC.

2.22 International Organization for Standardization (ISO)ISO is perhaps best described as a worldwide cartel of national standardization orga-nizations.52 ISO develops standards on a broad range of topics, and it also providesways in which specifications from other sources, e.g. industry consortia, can be ac-cepted as international standards. ISO standards are recognized by WTO in the sensethat it is allowed to reference ISO standards in national regulations and in governmentprocurement.

In the survey, eight respondents indicated that they participated in ISO, and threefurther respondents expressed interest.53

Mechanisms for consumer and broader public interest representation:Fundamentally, public interest representatives need to engage in the various stan-

dardization committees and working groups. There is one committee named “Com-mittee on consumer policy” (COPOLCO) which “selects areas in ISO’s work that are ofpriority interest to consumers and then coordinates participation by consumer repre-sentatives in these areas.”54

While ISO provides “liason” mechanisms through which industry consortia andCSOs of broader than national scope can participate without being charged member-ship fees, smaller CSOs can participate only via the national member bodies of ISO,many of which will inappropriately charge them membership fees as if the CSOs wereprofit-oriented companies.

50 Source: Survey [DWC-IGM 2011], columns BJ and RT.51 Source: Survey [DWC-IGM 2011], columns BK and RU.52 Source: The author’s personal knowledge and experience.53 Source: Survey [DWC-IGM 2011], columns BM and RW.54 Source: http://www.iso.org/sites/ConsumersStandards/en/Copolco.htm, accessed 2011-12-19.

�� : �� 1932.23 LACNICLACNIC is the Regional Internet registry (RIR) for the Latin America and Caribbeanregion, i.e. the core activity is the allocation and registration of Internet number re-sources including in particular the allocation of blocks of IP (Internet Protocol) ad-dresses.

In the survey, seven respondents indicated that they have participated in LACNICpolicy discussions and six further respondents expressed interest.55



2.24 MercosurMercosur is an economic and political agreement among Argentina, Brazil, Paraguayand Uruguay.

One survey respondent notes:

Mercosur... can act as a bridge and a forum to comprehend discussions and decisionsabout the Internet in Latin America considering normative aspects to guarantee technol-ogy diffusion.56

In the survey, one respondent indicated engagement with Mercosur, and three furtherrespondents expressed interest.57


Survey respondents criticize Mercosur for not being open to CSOs.58

2.25 National governmentsWhile they are clearly the most important kind of governance institution for infor-mation society topics, the specifics obviously vary from country to country. Often theanswer to question of whether reasonably good mechanisms for consumer and broaderpublic interest representation exist will also vary for different government institu-tions.59

[Patriota 2012] notes:

Many IP-dependent corporations strongly influence policy formulation within their homegovernments.

This has the obvious consequence for international negotiations that unless this corpo-rate influence on national policy formulation is significantly reduced first, internationalagreements on information society topics will generally be designed to further theinterests of these “IP-dependent corporations”, simply because it is otherwise near-impossible to reach international consensus.

An encouraging exception to this pattern has however been accomplished in theConvention on the Rights of Persons with Disabilities, where in the words of the then

55 Source: Survey [DWC-IGM 2011], columns BN and RX.56 Source: Survey [DWC-IGM 2011], cell UN107.57 Source: Survey [DWC-IGM 2011], columns BO and RY.58 Source: Survey [DWC-IGM 2011], cells TU64, TU107.59 Source: Survey [DWC-IGM 2011], various columns.

194 �� UN High Commissioner for Human Rights, Ms. Louise Arbour, “the disabilities move-ment proved able – in every sense of the word – to fight inertia, indifference and oftenopen resistance.”60

Clearly a key enabler to this success was the ability of the disability movement toeffectively engage with governments both in the relevant international forum as wellas locally at the national level. There is no reason why other kinds of CSOs wouldnot be able to employ a similar strategy. In particular the consumer movement is wellpositioned to engage both in international fora and at the national level, while buildingalliances and working together with other CSOs whenever that is possible.

In the survey, 38 respondents indicated engagement with various national govern-ments, and eight further respondents expressed interest.61

2.26 National or regional IPv6 taskforceAgain the specifics vary.

In the survey, 14 respondents indicated engagement with national or regional IPv6

taskforces, and six further respondents expressed interest.62

2.27 Organisation for Economic Cooperation and Development(OECD)

OECD is like a permanent conference of its 34 member states, most of them indus-trialized nations. OECD’s stated goal is “to promote policies that will improve theeconomic and social well-being of people around the world.”63

In the survey, 17 respondents indicated engagement with national or regional OECDtaskforces, and seven further respondents expressed interest.64

Mechanisms for consumer and broader public interest representation:OECD has two formally recognized advisory committees, namely the Business and

Industry Advisory Committee to the OECD, and the Trade Union Advisory Commit-tee (TUAC).

There is also a broader Civil Society Information Society Advisory Council http://csisac.org/ (CSISAC). Many survey respondents have indicated that they are en-gaging with OECD through CSISAC. Unfortunately, OECD’s lack of formal recognitionof CSISAC corresponds to a lack of giving the views of CSISAC adequate weight onsubstantive matters. [Malcolm 2012] notes:

Since 2008, the OECD’s Committee for Information, Computer and Communication Policy(CICCP), which is attached to the intergovernmental OECD Council, has taken advicefrom a Civil Society Information Society Advisory Council (CSISAC). It stands alongsidetwo similar advisory committees for the business and technical communities.

In June 2011, the CICCP endeavoured to reach agreement between the Council and itsadvisory committees on a Communiqué on Principles for Internet Policy-Making. Al-though the communiqué expressed support for multi-stakeholder co-operation in policydevelopment processes, and contained a number of other provisions to which CSISAC hadcontributed and with which it agreed, in the end CSISAC chose not to endorse it on thegrounds that

60 Source: [OHCHR 2008], page 47.61 Source: Survey [DWC-IGM 2011], columns BP, CI and RZ.62 Source: Survey [DWC-IGM 2011], columns BQ and SA.63 Source: http://www.oecd.org/pages/0,3417,en_36734052_36734103_1_1_1_1_1,00.html. Accessed

2011-12-17.64 Source: Survey [DWC-IGM 2011], columns BS and SC.

�� : �� 195several of these principles are not compatible with CSISAC core values includingrespect for fundamental human rights and freedoms and, the rule of law, promotionof access to knowledge, promotion of open standards, Net Neutrality and balancedintellectual property policies and regimes.

[...] if consensus could not be reached between civil society and the other stakeholders, afull commitment to the multi- stakeholder process would have seen the OECD retractingits communiqué of principles altogether, or at the very least honestly acknowledgingthat those principles did not represent the views of all of the stakeholders consulted. Butin fact, the withdrawal of civil society from endorsement of the communiqué has beentreated as an inconvenient fact to be quietly ignored.

From the perspective of public interest representation, it is clear OECD should correctits stance in regard to these matters.

2.28 Organization of American States (OAS)OAS is a regional international organization, headquartered in Washington D.C.(USA). All countries of North America, South America, Central America and theCaribbean are members of AOS.

In the survey, three respondents indicated engagement with OAS, and two furtherrespondents expressed interest.65

Mechanisms for consumer and broader public interest representation:See the Manual for Civil Society Participation in OAS Activities, available at http:

//www.oas.org/en/ser/dia/civil_society/manual.shtml.

2.29 RIPE NCCRIPE NCC is the Regional Internet registry (RIR) for Europe, i.e. the core activity isthe allocation and registration of Internet number resources including in particular theallocation of blocks of IP (Internet Protocol) addresses.

In the survey, eight respondents indicated that they have participated in RIPE NCCpolicy discussions and one further respondent expressed interest.66



2.30 South Asian Association for Regional Cooperation (SAARC)SAARC is an organization of eight South Asian countries.

In the survey, three respondents indicated engagement with SAARC, and threefurther respondents expressed interest.67

Mechanisms for consumer and broader public interest representation:One survey respondent criticizes SAARC for not being open to CSOs.68

Nevertheless, CSOs apparantly have had some success in organizing themselves asthe “Peoples’ SAARC” and thereby communicating jointly.69

65 Source: Survey [DWC-IGM 2011], columns BT and SD.66 Source: Survey [DWC-IGM 2011], columns BU and SE.67 Source: Survey [DWC-IGM 2011], columns BV and SF.68 Source: Survey [DWC-IGM 2011], cell UB44.69 Source: http://www.peoplesaarc.org/, accessed 2011-12-19.

196 �� 2.31 Transatlantic Economic Council (TEC)TEC is a body for economic cooperation between US and EU. One survey respondentasserts that in this forum, there is an “opportunity to use American drive for InternetFreedom”.70

In the survey, two respondents indicated engagement with TEC, and four furtherrespondents expressed interest.71

Mechanisms for consumer and broader public interest representation:Survey respondents criticize TEC for not being open to CSOs.72

The TEC however has an Advisory Council, of which the Trans-Atlantic ConsumerDialogue (TACD), a forum of US and EU consumer organisations, is a member. Theother members are the Transatlantic Business Dialogue and the Transatlantic Legisla-tors Dialogue. TACD has provided input to the TEC prior to each of its meetings bymeans of letters and recommendations.

2.32 UN Office of the High Commissioner for Human Rights (OHCHR)In the survey, three respondents indicated engagement with OHCHR, and nine furtherrespondents expressed interest.73

Mechanisms for consumer and broader public interest representation:The opportunities for CSO participation that are provided by the UN Human Rights

Programme (for which the UN Office of the High Commissioner for Human Rights isformally responsible) are very significant74 but seriously underutilized in the InternetGovernance context. In the survey, only three respondents indicated that they wereengaging there: An individual from the Netherlands is engaging on the topics of free-dom of expression, copyright and privacy with the Special Rapporteur on the right tofreedom of opinion and expression75. The other survey respondents who are engagingwith the UN Office of the High Commissioner for Human Rights are the Article 19

Global Campaign for Free Expression76 and the Association for Progressive Communi-cations (APC)77. All three have indicated that they were able to influence the agenda,i.e. which are the issues under discussion78. By contrast, nine respondents indicated

70 Source: Survey [DWC-IGM 2011], cell UN72.71 Source: Survey [DWC-IGM 2011], columns BW and SG.72 Source: Survey [DWC-IGM 2011], cells UC29, UC72.73 Source: Survey [DWC-IGM 2011], columns CA and SK.74 As evidence for this consider for example the Convention on the Rights of Persons with Disabilities,

about which [OHCHR 2008] says the following on page 47: “In December 2006, the General Assemblyadopted the Convention on the Rights of Persons with Disabilities and its Optional Protocol. Civil society,in particular persons with disabilities and their representative organizations, played a vital role at everystage in the lead-up to the adoption of these instruments. Representatives of civil society participated in thenegotiations of the texts and are now active in promoting their ratification by States. The Convention on theRights of Persons with Disabilities was negotiated from 2002 to 2006, making it the fastest negotiated humanrights treaty. On the occasion of its adoption, the then High Commissioner, Ms. Louise Arbour, noted theunprecedented collaboration between States, the United Nations, civil society and NHRIs in the drafting ofthis new treaty, stating: I want to... pay tribute to the disabilities community that provided the unwavering impetusfor this momentous occasion. Their role was a transformative one. More so than by any declaration or statement, thedisabilities movement proved able – in every sense of the word – to fight inertia, indifference and often open resistance,in order to achieve, by the force of the law, their legitimate aspiration for equality and justice.”

75 Source: Survey [DWC-IGM 2011], cells F74, W74, CA74, OU74.76 Source: Survey [DWC-IGM 2011], cells H114, CA114.77 Source: Survey [DWC-IGM 2011], cells H133, CA133.78 Sources: Survey [DWC-IGM 2011], cells QP74, QP114; APC’s press release [APC 2011].

�� : �� 197interest in participation79, with the breakdown of reasons for not engaging there yetas follows: 3x “too little time”, 2x “too little expertise”, 1x “too little money”, 1x “notopen to CSOs”80. (In view of the clearly good opportunities for CSO engagement,the last of these responses should probably be interpreted as lack of awareness of theopportunities.)

The Universal Periodic Review (UPR) process: One particularly interesting op-portunity for public interest advocacy is the process by means of the human rightssituation in all UN member states is reviewed every four years. CSOs can submit in-formation which “can be added” to the “other stakeholders” report that is consideredduring the review. ECOSOC-accredited CSOs (for details about that see [ECOSOC2009]) can attend the UPR Working Group sessions as observers and they can makestatements at the regular session of the Human Rights Council when the outcome ofthe State reviews are considered.81

There are many further opportunities for participation through written and oralreports and statements in the various commissions, working groups and human rightstreaty bodies, see [OHCHR 2008].

2.33 UNESCOUNESCO is the United Nations Educational, Scientific, and Cultural Organisation.In view of this broad remit, many information society topics are necessarily touchedupon. For further details see [Siochrú 2007b]. One survey response captures a par-ticular area that among international internet governance institutions, appears to beaddressed practically exclusively by UNESCO:

UNESCO can put into practice the global effort to access and use of the Internet. It consti-tutes the principal arena to guarantee cultural participation, cultural diversity and recordof historical heritage including languages in danger of extinction.82

In the survey, fourteen respondents indicated engagement with UNESCO, and four-teen further respondents expressed interest.83

Mechanisms for consumer and broader public interest representation:[Siochrú 2007b] notes:

Over the years, UNESCO has developed (and occasionally reviewed and amended) anelaborate system of NGO participation – some say at times too elaborate – and GeneralConference Directives of 1995 and 2001 govern the current situation. Relations can beof two kinds, formal or operational, depending on the role and structure of the NGOconcerned and their record on cooperation.

At present UNESCO maintains official relations with 337 international NGOs and 26

foundations. Of these, about 15% are based in developing countries, just a handful in theleast developed.

Nevertheless, several survey respondents asserted that UNESCO is“not open to CSOs.”84

So it appears that there is definitely room for improvement, at least with regard topublicizing the opportunities for CSO engagement.

79 Source: Survey [DWC-IGM 2011], column SK.80 Source: Survey [DWC-IGM 2011], column UG.81 Source: http://www.ohchr.org/EN/HRBodies/UPR/Pages/NgosNhris.aspx. Accessed 2011-12-12.82 Source: Survey [DWC-IGM 2011], cell UN107.83 Source: Survey [DWC-IGM 2011], columns CB and SL.84 Source: Survey [DWC-IGM 2011], cell UH11, UH64, UH107.

198 �� 2.34 United Nations Conference on Trade and Development (UNCTAD)UNCTAD is the principal organ of the UN General Assembly dealing with trade,investment, and development issues. In particular it is the UN body that is responsiblefor consumer protection and competition, two topic areas which are highly importantin the Internet governance context.

UNCTAD is further linked to the UN’s Internet governance activities via the Com-mission on Science and Technology for Development (CSTD), which is a commissionof ECOSOC (see section 2.36 below): According to their website, UNCTAD is “respon-sible for the substantive servicing of the Commission”.85 This seems to mean that thesecretariat for CSTD is provided by UNCTAD, the reason for this presumably beingthe need to ensure that CSTD is organized to appropriately to address the particularneeds of developing countries, similar to how UNCTAD itself grew from the view thatthe institutions dealing with economic development which existed at the time (UC-TAD was established in 1964), such as GATT, the International Monetary Fund (IMF)and the World Bank were not properly organized to handle the particular problems ofdeveloping countries.86

In the survey, six respondents indicated engagement with UNCTAD, and five fur-ther respondents expressed interest.

Mechanisms for consumer and broader public interest representation:Every fouryears, there is a major UNCTAD conference. The next of these, UNCTAD XIII, willbe held 21–26 April 2012 in Qatar on the theme "Development-centred globalization:Towards inclusive and sustainable growth and development". CSOs have opportunitiesto contribute to the preparatory process and to provide inputs to the pre-conferencenegotiating text. In addition, a Civil Society Forum will be organized as part of theofficial programme of the Conference.87

2.35 United Nations Development Programme (UNDP)[Siochrú 2007a] (which is also a good source for further details about UNDP) gives thefollowing overview:

With a staff of almost 5,000, it has national offices in 166 countries.

The UNDP has dual role at the national level. On the one hand, within the context of itsmandate, it provides expert advice, training, and grant support to developing countriesto help achieve a range of national and international goals, such as most notably the Mil-lennium Development Goals (MDGs). In this context, it is often regarded as the largestsingle source of development funding and government technical assistance within the UNsystem. On the other hand, it supports the coordination of UN activities at the nationallevel through the Resident Coordinator system, which it manages, working closely withthe government, agencies and other development partners.

One survey response notes about UNDP:

It can provide macroscopic analyses of political-economic factors that constrain the In-ternet diffusion. It focuses on the Internet’s implications in strategic domains to achieveMDGs.88

85 Source: http://www.unctad.org/Templates/Startpage.asp?intItemID=4839. Accessed 2011-12-12.86 Source: http://en.wikipedia.org/wiki/United_Nations_Conference_on_Trade_and_Development.

Accessed 2011-12-12.87 Source: http://www.unctad.org/Templates/Page.asp?intItemID=6186. Accessed 2011-12-20.88 Source: Survey [DWC-IGM 2011], cell UN107.

�� : �� 199In the survey, thirteen respondents indicated engagement with UNDP, and elevenfurther respondents expressed interest.89

Mechanisms for consumer and broader public interest representation:Opportunities for civil society engagement are available through the CSO (Civil

Society Organisation) Division and the CSO Advisory Committee.In the survey, respondents answered the question about whether there a formal

mechanism for you to speak and/or to submit documents directly to members of theinstitution with “no”, in striking contrast to the responses for the other development-oriented UN institution UNCTAD where the corresponding answers were “yes”.90

2.36 United Nations Economic and Social Council (ECOSOC)and Commission on Science and Technology for Development(CSTD)

The Economic and Social Council (ECOSOC) of the United Nations is one of the prin-cipal organs of the United Nations.

In regard to Internet Governance, its primarily relevant sub-body is the Commissionon Science and Technology for Development (CSTD), which is inter alia responsiblefor many follow-up activities to WSIS, the World Summit on Information Society (seesection 1). CSTD is also connected to UNCTAD, see section 2.34.

Seven respondents indicated engagement with ECOSOC, and eleven further respon-dents expressed interest.91

Mechanisms for consumer and broader public interest representation:The rules for CSO participation in CSTD have been criticized as being unreasonably

burdensome for CSOs who did not already participate in WSIS (even if it is not verydifficult to apply for “ECOSOC consultative status” and be approved, filling in the4-yearly reports is a lot of work – and if you don’t, then you lose this status92).

These institutional shortcomings are however not what primarily prevents a moreeffective role of civil society in CSTD. In particular, they don’t block civil society par-ticipation in any significant way. Civil society needs to increase participation, and thecivil society representatives needs to prepare themselves better and coordinate betterwith each other.93 This will have several important benefits: One one hand it is an im-portant opportunity to build momentum for the movement of CSOs as a whole. Onthe other hand, this strategy can contribute to strengthening the role of CSTD relativeto governance institutions which are much less accepting of civil society including inparticular the ITU, see section 2.16 and [Malcolm 2012].

In addition, as one survey respondent noted, within CSTD there is at least poten-tially an opportunity to shape future of IGF, so that it become even more relevant anduseful.94

89 Source: Survey [DWC-IGM 2011], columns BY and SI.90 Source: Survey [DWC-IGM 2011], columns MM to MP.91 Source: Survey [DWC-IGM 2011], columns BX, BZ, SH and SJ.92 Source: [Esterhuysen 2011a].93 Source: [Esterhuysen 2011a], [Schombe 2011], [Esterhuysen 2011b].94 Source: Survey [DWC-IGM 2011], cell UN72.

200 �� 2.37 UniversitiesAt least when governance systems are considered from a long-term perspective, therole of universities is absolutely central. Governance debates are to a large extent basedon what the participants in the debates have learned while studying at university.

Moreover, within debates, statements by university professors usually have greatweight on the basis of the assumption that the professor has very profound under-standing and that the statement will be as objective as possible and independent ofparticular interests.

The latter part of this assumption is however not necessarily true. For example,when the Swiss vote on approval or rejection of Microsoft’s OOXML document formatas an international ISO/IEC standard was to be decided, there was a sudden massiveinflux of new members in the responsible mirror committee. Most of them were re-sellers of Microsoft products and they were joining because Microsoft had encouragedthem to do so. At least one university professor acted similarly, as the assistant whohas represented his institute at a meeting of the standardization committee admittedopenly during the train ride home after the end of the meeting: His professor had senthim there to vote in favor of OOXML because the professor believed that course ofaction to be beneficial for receiving future research funding from Microsoft.95

In addition to this kind of dependencies on private sector funding, the views thatare promoted by universities are often also biased by technological enthusiasm, seebelow.

In view of the great influence of universities, organizations aiming at representingthe public interest will be wise to make it a priority to carefully observe the actionsof universities. In particular, advocates for the public interest can and must insist thatconcerns about potential impacts on civil rights like privacy are given an appropri-ately great weight in courses that are taught to students and in conferences that areorganized by universities.96

Mechanisms for consumer and broader public interest representation: There aretypically no specific, formal mechanisms for public interest advocacy. However thisdoes not imply that such specific formal mechanisms must be necessary, since theacademic world quite generally has a culture of open debate in which public interestadvocates (who have the prerequisite academic research and writing skills) can partic-ipate. So in regard to universities, pursuit of the generally-available paths of advocacyby demanding transparency, criticizing and influencing through dialogue should becomplemented by making appropriate, well-researched contributions to the academicliterature.

2.38 W3CW3C is a standardization consortium with a focus on website content formats.

In the survey, four respondents indicated participation in W3C, and seven furtherrespondents expressed interest.97


95 Source: The author’s personal knowledge and experience of having personally participated as a publicinterest representative in the Swiss mirror committee.

96 For an unfortunately very typical example of a conference where discussion of privacy issues was unjus-tifiably totally missing from the agenda see http://www.the-internet-of-things.org/iot2008/.

97 Source: Survey [DWC-IGM 2011], columns CD and SN.

�� : �� 201W3C actively solicits CSO participation in key standardization projects such as the

“do not track” working group98.

2.39 World Economic Forum (WEF)WEF is an invitation-only annual meeting held every year at the end of January inDavos, a mountain resort in Switzerland.

In the survey, three respondents indicated participating or otherwise engaging withWEF, and ten further respondents expressed interest.99

Mechanisms for consumer and broader public interest representation:Some CSO representatives may be invited, but overall CSO participation mecha-

nisms are seriously lacking.

2.40 World Intellectual Property Organization (WIPO)[Gross 2007] notes:

WIPO was established in 1967 by the WIPO Convention, which states that WIPO’s ob-jective was “to promote the protection of intellectual property throughout the world...”(WIPO, 1967, Article 3).

Headquartered in Geneva, Switzerland, WIPO currently administers 24 treaties and fa-cilitates the negotiation of several proposed treaties covering copyrights, patents andtrademarks.

Although WIPO was originally established explicitly to promote the protection of intellec-tual property, when it joined the UN family in 1974 its objective had to be redefined as apublic-interest or humanitarian goal. Article 1 of the key agreement establishing WIPO’srelationship to the UN restates WIPO’s purpose as: “for promoting creative intellectualactivity and for facilitating the transfer of technology related to industrial property to thedeveloping countries in order to accelerate economic, social and cultural development...”(WIPO, 1974).

There is significant interest among survey respondents in engaging WIPO, with rea-sons including the following:

• “WIPO has had a disproportionate influence because of the interest in IPR.”100

• “Because they have means and their goals and main area of interest presently dif-fer from what I believe to be most important. Because they are subject to a lot ofpressure and lobbying from the corp. world.”101

• “I think copyright is the most important battleground at present.”102

One survey respondent gave “WIPO conferences” as response to the question: “Howdo you coordinate with other public interest representatives who are engaged in dis-cussions on the same information society policy issues as you?”103

In the survey, ten respondents indicated that they have engaged with WIPO, andfourteen further respondents expressed interest.104

98 Source: http://www.w3.org/QA/2011/09/do_not_track_standards_for_the.html, accessed 2011-12-19.99 Source: Survey [DWC-IGM 2011], columns CE and SO.100 Source: Survey [DWC-IGM 2011], cell UN58.101 Source: Survey [DWC-IGM 2011], cells UL36, UN36.102 Source: Survey [DWC-IGM 2011], cell UN72.103 Source: Survey [DWC-IGM 2011], cell UU44.104 Source: Survey [DWC-IGM 2011], columns CF and SP.

202 �� Mechanisms for consumer and broader public interest representation:

[Gross 2007] provides the following observations:

In theory, WIPO’s strategic direction and activities are decided by the member states, butin practice, the WIPO Secretariat, based in Geneva, is given enormous power to influenceand direct the work and objectives of the organization under the WIPO Convention.

Furthermore, on any particular issue, not only top WIPO staff but also the chair of therelevant WIPO committee wield the power to drive the organization’s agenda through theframing of the debate in that committee. The election of the chair is the first item on theagenda of meetings. Member state delegates, including the chair, participate at WIPO withthe costs paid by the member state. Committee chairs decide which proposals become textfor a treaty and which proposals are deleted from draft treaty texts; they decide how theproposals are framed, and whether or not civil society may speak at WIPO meetings.

Civil society or non-governmental organization (NGO) participation is allowed at WIPOthrough an accreditation process that takes place once a year to obtain official “observer”status. Besides governments and civil society, WIPO also allows for intergovernmentalorganization (IGO) participation in its meetings. While WIPO boasts that over 250 NGOsand IGOs currently have official observer status at WIPO, the vast majority of these NGOsare trade industry organizations from wealthy countries participating for the purpose ofmaximizing private gain.

Clearly this situation cannot be conductive to reaching results that are in the pub-lic interest. WIPO needs to be reformed in order for the change of WIPO’s purposestatement that was agreed in 1974 to be translated into a changed actual reality.

2.41 World Trade Organisation (WTO)WTO has the stated goal to promote free trade and stimulate economic growth. Manycritics assert that WTO however pursues these objectives in ways that have unaccept-able social side effects.105

In the survey, two respondents indicated that they have engaged with WTO, andfive further respondents expressed interest.106

Mechanisms for consumer and broader public interest representation:WTO’s mechanisms for CSO engagement107 are woefully inadequate.In addition, [Patriota 2012] observes (writing from the perspective of a developing

country government representative):

The negotiating jargon and logic one has to work with at the WTO has the additionalburden for developing country negotiators of not being transparent to those outside im-mediate WTO circles, including members of the broader public that could have a stake infinal outcomes.

This problem affects CSOs in the same way as developing countries. Effective publicinterest representation at WTO will therefore require, in addition to securing opportu-nities to interact with the negotiators, that the CSO representatives must be preparedto overcome the barriers to communication that result from this WTO-specific “negoti-ating jargon and logic”.

105 See http://en.wikipedia.org/wiki/Criticism_of_the_World_Trade_Organization.106 Source: Survey [DWC-IGM 2011], columns CG and SQ.107 See http://www.wto.org/english/forums_e/ngo_e/intro_e.htm.

�� : �� 2033 Towards system engineering of public interest

oriented governance3.1 Observed mindblocksSeveral survey respondents have pointed out a fundamental problem of many gover-nance institutions, that makes it difficult for public interest advocates to be truly heardby the people who work at the governance institutions in various roles:

People usually are not willing to listen to what you have to say, or probably the truthdoesn’t suit them. Instead they try to manipulate you so that you follow what is suitablefor them. This may also be related to the economic interests of some private IT companiesand to the corruption of the governmental institutions.108

It is important to note that if corruption is understood (like it is commonly defined) tomean the abuse of public power, office, or resources by government officials for per-sonal gain, then it is not only corruption when received. It is also a form of corruptionwhen government officials act contrary to the public interest out of a desire to createa positive personal reputation among decision-makers of the private sector, where of-ficials who are corrupt in this way want maximize their chances for lucrative futureemployment.109

As pointed out in the above-quoted survey response, there is a lot of manipulationgoing on. Often debates are framed in ways that make it difficult even for officials whoare not themselves corrupt in any way (i.e. who truly act out of a desire to do thingsright and according to the public interest) to truly listen to what some public interestadvocates are saying, because some public interest viewpoints do not fit at all intothe discourse that is happening within the governance institution. Here is a surveyresponse that describes this phenomenon:

The issue of financing costs has been so cleverly handled by lawyers from North Americathat the issue is no longer debatable.110

The above-cited survey response does not make clear what context the respondent (anindividual in Singapore) had in mind when he wrote about “the issue of financingcosts.” It is clear from his response however that he has observed how representativesof particular private interests have purposefully created mindblocks that effectivelyprevent even merely debating the public interest aspects of the matter.

One example of such a mindblock that has been analyzed in depth is the notion of“intellectual property” in its role of framing debates about copyright and about patentson software innovations into a narrow-minded problem solving rhetoric that ignoreshow information goods and innovations are fundamentally different from materialgoods, see [Eckl 2004], in particular pp. 139-140.

3.2 The goal: Governance institutions acting in the public interestGovernance institutions must necessarily aggregate voices and viewpoints of a largenumber of stakeholders, creating a shared framework of understanding. Legal andother rules need to be defined and enforced.

108 Source: Survey [DWC-IGM 2011], cell UO109.109 Source: The author of the present report has personally witnessed this form of corruption happening.110 Source: Survey [DWC-IGM 2011], cell UQ58.

204 �� It is of course of vital importance that these rules and the corresponding framework

of shared understanding must be developed according to the public interest (see belowfor a brief discussion of the meaning of that.)

Unfortunately, as illustrated for example by the frustrations expressed in the surveyresponses that have been quoted in the previous section and in many others111, unlessgreat effort is exerted to make governance systems conductive to the public interest,the results are very often far from fair.

3.3 What are the incentives for the decision-makers?It is easy to observe that very often public policy processes have resulted in regulationthat clearly illegitimately favors some particular interests over the public interest, andthere is a branch of economics, called public choice theory, that studies this phenomenon,see e.g. [Schroeder 2009]. While the decision-makers’ understanding about what isthe public interest and their related beliefs play an important role, decision-makersare also influenced by the incentives that exist for them in the political environmentin which they operate. In situations where politics has clearly gone astray, reachingresults that clearly illegitimately favor some special interest without any significantactual public interest benefits, the policy processes have often been influenced both bylobbying from those with business interests that can benefit financially, as well as byfactually unfounded but widely-held, strongly emotional and sometimes even pseudo-religious views about the public interest, see [Yandle 1983] and [Yandle-Buck 2002].

3.4 What exactly does it mean to represent the public interest?In view of this complex reality of how a policy measure’s officially stated objective,its actual effects, and its public perception can be misaligned with each other, publicinterest representation must strive for objectivity in first of all understanding what thepublic interest is.

Of course it is not practically feasible to define the public interest with absolute pre-cision. There is a variety of legitimate perspectives on what is the public interest, andhow the various aspects of the public interest should be balanced relative to each other.For example, the protection of human dignity as a fundamental principle is certainlyin the public interest, and this implies taking measures to ensure accessibility to peo-ple with disabilities. Some such measures can be taken without significant additionalcost (and there is really no excuse for not taking those easy measures, or for not takingthe ease of accessibility measures into account in ICT standardization), while otheraccessibility measures will have significant costs, and it is always possible to furtherimprove accessibility at even greater cost. Even in the absence of any convincing guid-ing principle on what percentage of the cost of any given project should be investedin accessibility measures, in some cases it is clear that there is an unacceptable lackof accessibility, while on the other hand it is also easy to conduct though experimentswhere a huge investment in accessibility is also clearly not in the public interest, if it ise.g. clear that those financial resources would benefit the public interest much more ifused in a different way.

Therefore, even if there is no straightforward way of determining what the publicinterest is, it is often possible to convincingly criticize decisions and proposed deci-sions for being clearly not in the public interest.

111 Source: Survey [DWC-IGM 2011], e.g. cells UO36, UO98, UO100, UQ2.

�� : �� 205For this reason, public interest representation can be defined as exercising this ac-

tivity of evaluating decisions and proposed decisions for reasonableness from a publicinterest perspective, criticizing where necessary, and ensuring that appropriate correc-tive action is taken when needed.

This will be most effective if it is undertaken not from just a single perspective, butfrom a variety of public interest perspectives.

For the purposes of the present paper, a decision or proposed decision shall becalled public-interest-acceptable if it has been evaluated from the widest variety ofpublic interest perspectives that was practically possible to solicit, and no clear faulthas been found from any of these perspectives.

3.5 Major challenges for the public interest in Internet governanceThis section outlines some major challenges that need to be overcome into orderto shape the development of information society in ways that are public-interest-acceptable as defined above.

3.5.1 Powerful special interests

It is clear from the frustrations quoted in section 3.1 that there are powerful specialinterests who so far have succeeded to a large extent in shaping policy processes ac-cording to their viewpoints.

These are on one hand private sector entities and groups thereof, as mentioned inthis response to the question “What challenges have you faced in effectively participat-ing in policy discussions on information society issues?”:

Facing “big money” and people who are convinced that profit is more important thanpublic interest.112

Furthermore, there are also government entities that themselves have particular in-terests. Law enforcement agencies are interested in being granted rights and technicalmeans for surveillance that will, unless carefully limited and balanced, underminefundamental human rights in the area of privacy. This problem exists even when thereasons that are given by the law enforcement agencies are clearly legitimate inten-tions such as when the stated goal is the prosecution of violent crime or to take actionagainst videos of sexual child abuse (often called “child pornography”). There is al-ways a slippery slope. Even when the use of privacy-intrusive investigation techniquesis limited by law to a list of “serious crimes”, such lists tend to get expanded at laterrevisions, and in the absence of effective controls, such restrictions on law enforcementagencies may be ineffective anyway. If a “web blocking” infrastructure is establishedwith the intention of taking action against sexual child abuse videos, then thereafter acensorship infrastructure will already be in place that could also be used for copyrightenforcement (regardless of whether the claims of copyright are legally valid or not)and for political censorship. Copyright enforcement and political censorship have along history of going hand in hand, see [Eckl 2004].

3.5.2 Rapid change and great complexity

As the realm of the Internet and information and communication technologies ingeneral are rapidly evolving and the various interconnects are becoming ever more

112 Source: Survey [DWC-IGM 2011], cell UO36.

206 �� complex, it is not surprising that the technological understanding of most traditionalgovernance institutions including the regulatory agencies of national governments istypically uncomfortably shallow.

Governments are therefore often forced to rely on external expertise. Unfortunately,even when experts are consulted who have no strong ties to the powerful special inter-ests, their perspectives are nevertheless generally far from objective, as discussed in thefollowing section.

In addition to that there is a problem of communication, due to differences of lan-guage and ways of expression between many members of the technical communityand the political community.113 Lobbyists therefore have a disproportionate influ-ence114 because they communicate in ways that the decision-makers understand. Thisis a problem for the public interest when all or almost professional lobbyists representspecial interests.

3.5.3 The pervasive bias of self-interested technological enthusiasm

Even when not employed by one of the powerful corporations, technologists never-theless have a strong personal incentive to avoid opposing what they see as technicalprogress in their field of interest. In particular, people who want to be successful inan emerging area of technology have a strong self-interest in being enthusiastic aboutwhat may become possible though that technology. It is not conductive to one’s per-sonal success in such a field to openly oppose fast adoption of the technologies thatone is working on, even when caution would be advisable due to potential negativeeffects on some aspect of the public interest.

In viewpoints that are based on this attitude of self-interested technological enthu-siasm, for example privacy or accessibility challenges may be acknowledged with anadmission that a solution will need to be found. However this will not be describedby technology enthusiasts as a precondition to their own agreement to deployment ofthese technologies. Rather, they see these problems only as a kind of marketing chal-lenge. These technical experts are not personally motivated to ensure that a true solu-tion to the actual problem is found, anything would suffice that satisfies or otherwisesilences those critical voices that are effectively able to influence the public opinion.

Unsurprisingly this technology enthusiast perspective is generally adopted andpromoted by private sector entities such as companies that can potentially benefitfrom the adoption of new technologies, as well as by technical research institutions,where the researchers have similar economic interests. Consequently the names thatare given to new technical possibilities will usually reflect and promote the technologyenthusiast viewpoint, see for example [Ashton 2009].

Unfortunately it happens that even governance institutions adopt this viewpoint oftechnological enthusiasm uncritically instead of conducting a more objective analysisof benefits and risks of technologies. For example, it says in [ITU 2005], the executivesummary of ITU’s 2005 report on the Internet of Things:

One of the most important challenges in convincing users to adopt emerging technolo-gies is the protection of data and privacy. Concerns over privacy and data protection arewidespread, particularly as sensors and smart tags can track users’ movements, habits andongoing preferences. When everyday items come equipped with some or all of the fivesenses (such as sight and smell) combined with computing and communication capabili-ties, concepts of data request and data consent risk becoming outdated.

113 Source: Survey [DWC-IGM 2011], cell UO100.114 Source: Survey [DWC-IGM 2011], cell UO98.

�� : �� 207Here the threat to privacy is conceptualized as a threat to ideas and concepts aboutdata protection, rather than as a threat to human dignity and vital consumer interests.

3.6 Concerns about domination of global debates by the WestParallel to the problem of undue influence of particular interests on governance de-bates but distinct from it, there is also the problem of the debates being dominatedby voices from developed countries115, in particular Western countries. This seriousimbalance in the geographical representation of viewpoints results in part from thefunding problems described in section 1 being a particularly great challenge in someregions, but there are cultural aspects to this problem as well. One survey respondentfrom Singapore describes this as follows:

The debate is still largely dominated by the West. The issues faced there are not quite thesame as in Asia. Also, in Asia, most people are not used to grabbing a mike and gabbingaway. So there is much less of the cut-and-thrust of public debate in Asia compared withthe West.116

Geographic distance from key decision-making locations and the correspondingdifficulty of building effective working relationships with key people adds to thisproblem, as another survey respondent from Asia explains in response to the questionabout the challenges that his organization has faced in effectively participating inpolicy discussions on information society issues:

Not “knowing the right people”, the fact that the people we need to talk to do not respondto communications (particularly emails), the expense of traveling to meetings in Europe,the limited impact that can be demonstrated from attending meetings held by the institu-tions themselves.117

The response to the same question from the Pacific Chapter of the Internet Societygoes in the same direction:

Getting to events because of lack of funds to do so and because of the contestability withother deserving applicants for public funds. Because we don’t have that access sometimeswe miss out on participating on important issues that arise within discussions at theseevents. Our voices aren’t heard.118

The Secretariat of the Pacific Community commented:

Culturally, Pacific Islanders find it difficult to contribute to international fora.119

Language barriers also contribute significantly to these challenges, as pointed out bya survey response from Taiwan120 and this survey response from Morocco:

En plus de la contrainte financière, les associations de protection des consommateursn’ont pas de position de force pour imposer la prise en compte de leur préoccupationset intérêts. Par ailleurs les capacités en matière de langue de travail (anglais) doivent êtrerenforcées.121

115 Source: Survey [DWC-IGM 2011], cell UO44.116 Source: Survey [DWC-IGM 2011], cell UO58.117 Source: Survey [DWC-IGM 2011], cell UO11.118 Source: Survey [DWC-IGM 2011], cell UO40.119 Source: Survey [DWC-IGM 2011], cell VU97.120 Source: Survey [DWC-IGM 2011], cell UO67.121 Source: Survey [DWC-IGM 2011], cell UO115.

208 �� (English translation: In addition to the financial constraint, the consumer protection as-sociations don’t have the power to ensure that their concerns and interests are consid-ered. Furthermore, their skills in the working language (English) need to be strength-ened.)

3.7 Lessons from system engineering theoryPolitical decision-making processes are obviously complex systems.

In fact they belong to the particular class of systems which are intentionally createdand maintained at a significant cost in view of a particular purpose.

There is a theory for system engineering of such systems; it is Eliyahu Goldratt’s“Theory of Constraints”, see [Goldratt 2004] and [Goldratt 1990]. As shown there, theperformance of complex systems is determined by their constraints, of which there aretypically relatively few, and local optimization is almost always not a viable path toachieve adequate performance. These lessons are equally applicable political decision-making systems as to the industrial production systems (the context in which Goldratthas developed and explained the “Theory of Constraints”.)

A simple illustration of such a constraint is that the strength of a chain is determinedby the strength of its weakest link. The weakest link is the constraint on the chain asa whole. The same phenomenon also occurs in systems that are much more complexthan a simple chain.

In view of the above-quoted frustrations that survey respondents have expressed,from the perspective of public interest representation, right now the key constraintis the severe difficulty of effectively communicating to the key people in decision-making governance institutions about public-interest concerns.

This constraint needs to be addressed and “elevated” in the parlance of the “Theoryof Constraints”, i.e. the situation in this regard needs to be improved so much thatthis is no longer the key constraint. It is quite possible when this problem has beenadequately addressed, the goal of public-interest-acceptable governance (see section3.4) of information society matters may not have been reached yet. Something elsemay turn out to be another unacceptably hindering constraint, which will also needto be addressed before the goal is reached. But this next constraint will not be veryvisible, and addressing it will not have any significant effect, unless the current criticalconstraint is addressed first.

3.8 The need to demand reasoned decision-making about incentivesAs seen above, it is difficult to effectively communicate to decision-making governanceinstitutions about substantive topics of the public interest, and a key reason for thisproblem is that the people to whom these communications need to be addressed oftenhave few or no incentives to pay attention, while the incentives to conform to the de-sires of well-funded lobbyists of special interests often include peer pressure and areoften also otherwise significant.

One way in which the communication problem can be addressed is therefore todemand that the people who work for governance institutions must be personallygiven incentives to act according to the public interest. This in itself should resultin very healthy and necessary debates about what exactly the public interest is, andhow it can be determined. Governance institutions are supposed to act according tothe public interest, so they clearly need to develop an understanding of how the public

�� : �� 209interest can be determined, and what corresponding appropriate measurements are.

One means that can be used to this end is the right to reasoned decision-making:According to Article 41 of the EU’s Charter of Fundamental Rights122, there is a rightto good administration which includes in particular “the obligation of the administrationto give reasons for its decisions”. Many other governance bodies have a similar princi-ple, and where it is missing, it should be demanded that it must be established. For adetailed discussion of the importance of this right see [Marshaw 2007]. (It is importantto note that Marhaw’s remark about the EU’s Charter of Fundamental Rights not hav-ing been ratified, and that ratification effort possibly stalling indefinitely, is outdated:In the meantime, the Charter has been ratified as part of the Lisbon Treaty.)

In view of the theory-based considerations of section 3.7 these demands for trans-parency and justification of the governance institution’s internal incentive system mustbe in addition to (and not instead of) continuing attempts to be heard on substantivematters. The goal is to reach the point where, as a result of changed internal dynamicswithin the governance institution, the people there are willing and able to listen to theconcerns of public interest representatives. At that stage the analysis of determiningwhat is then the critical constraint must be repeated. It is likely that a certain amountof attention on matters of personal incentives will need to be maintained, but furtherincreasing the attention that is given to this aspect is not likely to help with addressingthe next constraint. Rather the next constraint will again need to be analyzed, and astrategy will have to be developed to address it.

4 Summary of conclusionsThis section summarizes the main specific conclusions of the previous sections of thisreport.Underutilised mechanisms for public interest representation:

• While the details must naturally vary across issues and governance institutions (andthe survey was not set up to solicit specific information about the various combi-nations), it is clear from the frustrations about mindblocks that were expressed (seesection 3.1) that CSOs need to learn to oppose much more vigorously all attemptsto frame a discourse in a way that is manipulative and not supportive of an open-ended search for public-interest-acceptable solutions (see section 3.4.)

The key needs for institutional reforms are:

• Reasoned decision-making about what the incentives are for who work for gov-ernance institutions should, where necessary, be increased until the people thereare willing and able to listen to the concerns of public interest representatives, seesection 3.8.

• Fundamental reforms are needed in all governance institutions which deal withmatters where strong consumer representation and more general public interestrepresentation would be important but is currently impossible or unreasonablydifficult. These include EPO, G8, G20, ITU, Mercosur, SAARC, TEC, WEF, WTO andmany institutions of national governments. The ACTA Committee is likely to jointhis list once it is constituted.

122 See http://www.europarl.europa.eu/charter/

210 �� • Given that G8 and G20 make decisions that affect the entire world, they should also

take the perspectives of governments of other countries into consideration, similarto how civil society views need to be taken into consideration.

• The IGF should establish a mechanism by which it issues formal recommendationsand thereby influences decision-making governance processes, see section 2.19.

• “ECOSOC consultative status” accreditation for CSOs should be simplified, reduc-ing in particular the administrative burden of the 4-yearly reports, see section 2.36.

• CSTD should involve civil society representatives in agenda discussions, see sec-tions 2.36.

• OECD should formally recognize CSISAC, as well as recognizing (by means ofthe publication of a revised document that corrects the problems) that it was veryinappropriate to ignore CSISAC’s objections to the Communiqué on Principles forInternet Policy-Making of 2011, see section 2.27.

• WIPO needs to be reformed in order for the change of WIPO’s purpose statementthat was agreed in 1974 to be translated into a changed actual reality, see section2.40.

• IEEE-SA and ISO national member bodies should waive membership fees for CSOs.

Key Institutions where CSO participation should be specifically improved are:

• Universities, see section 2.37.

• CSTD, see section 2.36.

• The UN Human Rights Programme’s Universal Periodic Review (UPR) process, seesection 2.32.

5 Missing institutionsFor the following issues, survey respondents have indicated that there are currently nogovernance institutions where the issues could be addressed:

• Access to knowledge123

• Global optimization of resource allocation124

• Internet filtering125

• Interests of small developing countries126

• Obligatory technical standards: What technological standards should every incorpo-rated company be required to follow?127

• Process issues around consumer participation in policy development.128

• Research aggregation: There is not a representative instance that gathers the re-search done by universities and public/private institutions.129

123 Source: Survey [DWC-IGM 2011], cell UQ11.124 Source: Survey [DWC-IGM 2011], cell UQ122.125 Source: Survey [DWC-IGM 2011], cell UQ20.126 Source: Survey [DWC-IGM 2011], cell UQ130.127 Source: Survey [DWC-IGM 2011], cell UQ37.128 Source: Survey [DWC-IGM 2011], cell UQ11.129 Source: Survey [DWC-IGM 2011], cell UQ107.

�� : �� 2116 Towards an online Map of Internet GovernanceInformation of internet governance institutions as contained in this report needs tobe kept up-to-date and expanded with further practical hints and additional informa-tion that allows effective strategy development. This is the goal of the online Map ofInternet Governance which is under construction at http://idgovmap.org.

References[Ashton 2009] Kevin Ashton: That ’Internet of Things’ Thing. RFID Journal, June 22,2009. http://www.rfidjournal.com/article/view/4986. Accessed 2011-11-29.

[APC 2011] Association for Progressive Communications: Join us in putting the interneton the human rights agenda. December 8, 2011. http://www.apc.org/en/press/join-us-putting-internet-human-rights-agenda. Accessed 2011-12-12.

[CoE 2009] Council of Europe: Code of Good Practice for Civil Participation in the Decision-Making Process. Document CM(2009)148, 2009. https://wcd.coe.int/ViewDoc.jsp?Ref=CM%282009%29148. Accessed 2011-12-18.

[DWC-IGM 2011] Dynamic Working Coalition for Internet Governance Mapping:Public interest representation in the information society – 2011 survey: Final data.http://idgovmap.org/survey_data/Public_interest_representation_in_the_

information_society_-_2011_survey_final_data.ods. Accessed 2011-11-04.

[Eckl 2004] Julian Eckl: Die politische Ökonomie der “Wissensgesellschaft” (in German).Tektum Verlag: Marburg 2004.

[ECOSOC 2009] United Nations - Department of Economic and Social Affairs - NGOBranch: Introduction to ECOSOC Consultative Status. http://esango.un.org/paperless/Web?page=static&content=intro. Accessed 2011-12-12.

[Esterhuysen 2011a] Anriette Esterhuysen: Re: [governance] Meeting report ECOSOC pre-sentations, posting to the Civil Society Internet Governance Caucus mailing list, 2011-08-03 17:10:08 +0200. Archived at http://lists.cpsr.org/lists/arc/governance/2011-08/msg00031.html. (The easiest way to access the posting is to follow this link,then click on the button on the gatekeeper page that comes up, then use the browser’s“back” butten, then reload.) Accessed 2011-11-07.

[Esterhuysen 2011b] Anriette Esterhuysen: Re: [governance] Meeting report ECOSOC pre-sentations, posting to the Civil Society Internet Governance Caucus mailing list, 2011-08-04 07:45:24 +0200. Archived at http://lists.cpsr.org/lists/arc/governance/2011-08/msg00039.html. (The easiest way to access the posting is to follow this link,then click on the button on the gatekeeper page that comes up, then use the browser’s“back” butten, then reload.) Accessed 2011-11-07.

[Goldratt 1990] Eliyahu M. Goldratt: The Haystack Syndrome. Great Barrington, MA,USA, 1990 (North River Press).

[Goldratt 2004] Eliyahu M. Goldratt: The Goal. Third revised edition. Great Barrington,MA, USA, 2004 (North River Press).

212 �� [Gross 2007] Robin Gross: World Intellectual Property Organisation (WIPO) . In: GISWatch:Global Information Society Watch 2007 : Participation, pp. 65-73. http://www.giswatch.

org/en/2007. Accessed 2011-11-30.

[Helfer 2004] Laurence R. Helfer: Regime Shifting: The TRIPS Agreement and NewDynamics of International Intellectual Property Lawmaking. Yale Journal of Interna-tional Law 29 (2004), p. 1ff. http://ssrn.com/abstract=459740. Accessed 2011-12-17.

[Hofmann 2007] Jeanette Hofmann: Internet Corporation for Assigned Names and Numbers(ICANN) . In: GISWatch: Global Information Society Watch 2007 : Participation, pp. 39-47.http://www.giswatch.org/en/2007. Accessed 2011-11-30.

[ITU 2005] International Telecommunication Union: The Internet of Things. ITU Inter-net Reports 2005, executive summary. http://www.itu.int/osg/spu/publications/internetofthings/InternetofThings_summary.pdf. Accessed 2011-11-24.

[Malcolm 2012] Jeremy Malcolm: Arresting the decline of multistakeholderism in Internetgovernance, in this volume.

[Malcolm 2008] Jeremy Malcolm: Multi-Stakeholder Governance and the Internet Gover-nance Forum. Perth 2008 (Terminus Press).

[Marshaw 2007] Jerry L. Mashaw: Reasoned Administration: The European Union, theUnited States, and the Project of Democratic Governance (2007). Faculty Scholarship Series.Paper 1179. http://digitalcommons.law.yale.edu/fss_papers/1179.

[McNamee et al 2011] Joe McNamee, Kirsten Fiedler and Marie Humeau: Activistguide to the Brussels maze.The EDRi papers, Issue 01. http://www.edri.org/files/2012EDRiPapers/activist_guide_to_the_EU.pdf. Accessed 2012-01-27.

[OHCHR 2008] Office of the High Commissioner for Human Rights: Working withthe United Nations Human Rights Programme: A Handbook for Civil Society. http://www.ohchr.org/EN/AboutUs/CivilSociety/Pages/Handbook.aspx. Accessed 20111212.

[Patriota 2012] Guilherme Patriota : TRIPs in DDA – Personal Perspective of a DevelopingCountry Negotiator . In: Pradeep S. Mehta, Atul Kaushik, Rashid S. Kaukab (eds.):Reflections from the Frontline: Developing Country Negotiators in the WTO , to appear,New Delhi 2012 (Academic Foundation in association with CUTS International).

[Schombe 2011] Baudouin Schombe: Re: [governance] Meeting report ECOSOC presenta-tions, posting to the Civil Society Internet Governance Caucus mailing list, 2011-08-03

17:09:32 +0100. Archived at http://lists.cpsr.org/lists/arc/governance/2011-08/msg00033.html. (The easiest way to access the posting is to follow this link, then clickon the button on the gatekeeper page that comes up, then use the browser’s “back”butten, then reload.) Accessed 2011-11-07.

[Schroeder 2009] Christopher H. Schroeder: Public Choice and Environmental Policy: AReview of the Literature. Duke Law School Public Law & Legal Theory Paper No. 247,2009. http://ssrn.com/abstract=1401375. Accessed 2011-12-20.

[Siochrú 2007a] Seán Ó Siochrú: United Nations Development Programme (UNDP). In:GISWatch: Global Information Society Watch 2007 : Participation, pp. 56-64. http://

www.giswatch.org/en/2007. Accessed 2011-11-30.

�� : �� 213[Siochrú 2007b] Seán Ó Siochrú: United Nations Educational, Scientific, and Cultural Or-ganisation (UNESCO). In: GISWatch: Global Information Society Watch 2007: Participation,pp. 48-55. http://www.giswatch.org/en/2007. Accessed 2011-11-30.

[Sweazey 2012] Paul Sweazey: Introduction to Digital Personal Property, in this volume.

[Yandle 1983] Bruce Yandle: Bootleggers and Baptists: The education of a regulatory economist.AEI Journal on Government and Society, Vol 7 (1983), no. 3 (May/June), pp. 12-16.http://www.cato.org/pubs/regulation/regv7n3/v7n3-3.pdf. Accessed 2011-12-20.

[Yandle-Buck 2002] Bruce Yandle, Stuart Buck: Bootleggers, Baptists, and the globalwarming battle. Harvard Environmental Law Review, Vol. 26 (2002), pp. 177-229.Reprinted in: Aynsley Kellow, Sonja Boehmer-Christiansen (eds.): The InternationalPolitics of Climate Change, Glos (UK) and Northampton (USA), 2010. Also availableonline: http://ssrn.com/abstract=279914. Accessed 2011-12-20.

9 Mapping “Public InterestRepresentation in theInformation Society”:A Network AnalysisExperimentDr Elena Pavan

Department of Political and Juridical Sciences and International Studies,

University of Padova, Italy

A�� In this short paper I apply a network approach to the study of how pub-lic interest is being represented within the global landscape made up by a vast plural-ity of institutions, considering some of the data gathered through the survey realisedby the Dynamic Working Coalition on Internet Governance Mapping. I will discusshow network analysis can be applied for deepening our understanding of how civilsociety interests and actions are played out within a multi-actor context, as in the in-formation society, where public and private interest constituencies find different spacesand constraints to define, defend and sustain their agendas and priorities. I will useparts of the data gathered through the survey to make a case for using some networkanalysis concepts and tools (in particular that of centrality) to gain a better under-standing of governance dynamics of relevant global policy domains such as informa-tion and communication management.

1 Introduction

In this short paper I provide an integration to the analysis of survey results pro-posed by Norbert Bollow in his work “Public Interest Representation in the Informa-tion Society.” I apply a network approach to the study of how public interest is beingrepresented within the global landscape made up by a vast plurality of institutions,considering some of the data gathered through the survey realised by the DynamicWorking Coalition on Internet Governance Mapping. I will discuss how network anal-ysis can be applied for deepening our understanding of how civil society interestsand actions are played out within a multi-actor context, as in the information society,

216 �� where public and private interest constituencies find different spaces and constraintsto define, defend and sustain their agendas and priorities. I will use parts of the datagathered through the survey to make a case for using some network analysis conceptsand tools to gain a better understanding of governance dynamics of relevant globalpolicy domains such as information and communication management.

Networks are popular tools in the study of global information and communicationflows – let’s just imagine the information society as the “network society” (Castells1996). The popularity of networks is linked more to their use as powerful images de-picting the complexity of contemporary governance arrangements in the area (Kenis &Schneider 1991). This predominant use of networks as metaphors and powerful imageshas somehow shadowed the peculiarity of a “network point of view” on politics (and,more broadly, on society) and has often hampered the translation of this point of viewinto systematic empirical studies complementing the insights generated by more con-ventional approaches. In other words, the heuristic potential of networks (Padovani &Pavan 2011) both as images and analytic tools is not fully exploited or endorsed withinsystematic research programmes.

While I acknowledge the power of networks as conceptual tools as well as their in-credible utility for disentangling complexity, especially with reference to multi-facetedglobal domains such as global communications, I think it is worth clarifying that theadoption of a network approach (both in general but also in particular for studying thegovernance of information and communication issues) entails much more than images.

Adopting a network perspective means adopting a different way of reasoning aboutpolitical dynamics, one that is centered on a radical shift of attention from actors to re-lations they establish (see Padovani & Pavan 2011). Such a conceptual shift entails in thefirst place the necessity to move our concerns from who are actors to what relation joinsthem, how they interact, how much they are involved in (mutual) relations amongst them-selves, how strategic is their position within the interactional milieu we are examining.However, this shift requires the development and the employment of specific tech-niques to empirically study the relational patterns that emerge from the bulk of tiesjoining together actors in networks (Wellman 2002).

What has this conceptual shift to do with a critical reflection on how public interestis represented in the information society? Far from being a simple surrendering to theinevitable charm of networks, I believe that a network approach is particularly usefulas it allows us to face systematically three challenging elements that characterise thefield of global communication governance (see Pavan 2012):

• The overall thematic uncertainty regarding the issues that are, from time to time,discussed in the various subfields of global communications as well as about con-nections that might exist amongst them;

• The overall procedural uncertainty regarding the roles and the responsibilities ofinstitutional and non-institutional actors in the complex political management ofinformation and communication matters; and

• The multiplication of spaces where these uncertainties are tackled through the de-velopment of innovative political dynamics involving the collaboration of institu-tional and non-institutional actors.

From a conceptual perspective, because networks are flexible tools, we can move ina complex environment without getting lost, just moving along network ties and un-covering the strategies through which political discourses and actions are built up to

�� : �� “�� ” 217lower the uncertainty that characterises information and communication issues man-agement.

However, the adoption of a network point of view can help us understand a furtherelement that is crucial in all political dynamics, ie, that of power. With regard to theconcrete occurrence we are studying here, ie, the representation of public interest inthe information society, how and how much public interest is included, endorsed andchallenged within the institutional landscape depends on a power component that wecannot overlook but that we need to conceptualise and operationalise systematically.

In fact, in a society like the one we live in, characterised by multiplicity of actorsand issues, dynamism and complexity of levels (Kooiman 2003), we need to movetoward an idea of power that overcomes the traditional belief that power resides inactors’ attributes to reach a relational view of power, for which it results from the bulkof relations that structure a determined interactional milieu. This implies that powerarrays are not defined once and for all and that it is starting from relations establishedin the field that we can gain a different sense of possibilities and challenges for thedemocratic inclusion of public interests in the information society.

I am not suggesting here that actors’ attributes and characteristics are not important.In his paper, Norbert Bollow illustrates with great detail how much the very featuresof institutions populating the information society do influence how and how muchpublic interest is represented. However, the attention he and the survey designers payto the procedures for participation within these institutions already points toward anidea that is the relation established within the institution has a determinant influence onthe inclusiveness of information society institutions.

Consistently with the premises of a structural point of view on society (see Wellman2002), I argue that the role attributes play should be reassessed: while in a traditionalpower conceptualisation who you are determines what you can or cannot do, if weconsider power relationally then it is what you can or cannot do that determines howimportant you are. Therefore, to understand possibilities and constraints to action wehave to focus on relations actors establish and how the patterns of relations translateinto different types of political power (eg, bargaining, gatekeeping, popularity etc.).

If we look at relations, we can elaborate more in depth about elements such as de-pendencies, collaborations and conflicts joining together actors in the field and we canderive overall considerations about how power is structured in the information society.Wondering how public interest is represented in the information society, I propose weinclude a specific look to relations established between public interest sustainers andthe multiplicity of institutions in the field so to complement concerns on how manytimes public interest reaches existing institutions as well as on the limits of currentinclusion procedures. Yet, we are still in a situation where we need to push forwardthe translation in empirical terms of a network perspective and we need to assess themeaning of network analytic tools for the dynamics we are studying.

In my previous work, I engaged in this “translation” effort. Coming back to thethree challenging elements that I suggested are characterising the governance of globalcommunications (ie, thematic uncertainty, procedural uncertainty, multiplication ofspaces for discussion), I started from the multiplication of spaces for managing in-formation and communication issues to inquiring how network exchanges betweenactors and ideas are currently reducing the overall thematic and procedural uncer-tainties. While my studies concentrated on the Internet Governance domain, thanks tothe survey realised by the Dynamic Working Coalition on Internet Governance Map-ping we can now try to expand this approach to other domains beyond that of Internet

218 �� governance to study more broadly how public interest is represented at large in themultiplicity of information society institutions.

Here I will provide a short account of one of the many possible ways of workingwith the survey data in network terms. The paper is organised as follows. Firstly, Iwill indulge on some methodological notes, to clarify the different steps I made totrace the networks from data that were not originally gathered for this purpose butthat were, nonetheless, characterised by a great “network potential”. Secondly, I willprovide a set of visual representations of the data considered and will apply sometechniques to explore the structure of the links established between respondents andinstitutional interlocutors. Thirdly, I will sketch out a possible research agenda, callingfor its collective refinement in a multi-disciplinary and multi-sectoral perspective.

2 Methods and dataFor the exploration of survey data, I considered only the completed questionnaireswhere respondents declared to represent (at least) one organisation. The total numberof respondents considered then was 37 (28% of total answers).1 Given the exploratorypurpose of this network exercise, the limited number of questionnaires considereddoes not preclude the possibility to elaborate on how network measures can be appliedfor reading dynamics of interest representations in the information and communica-tion governance field.

To draw a first set of relations to analyse, I focused on the question “In which ofthe following institutions have you been involved in policy discussions on informationsociety issues?”. Starting from the list of options provided in the questionnaire, I builta matrix where a tie exists between a respondent and an organisation if the respondentdeclared to have taken part in the discussion within that organisation.

Although both respondents and institutions do share their formal organisationalnature, they provide two different types of nodes: the respondents represent civil soci-ety/public interest constituencies in the information society; the second, ie, the organ-isations, represent the main institutional points of references in the field. Hence, thematrix used for this exercise can be thought as a 2-modes matrix (Wasserman & Faust1994) and treated consistently with its peculiarity, ie, joining together a set of actors(in this case our respondents) with a second set of so-called events.2 In this exerciseI have deliberately left aside suggestions made by respondents on other institutionalpoints of references they have in the field. However, this information can and shouldbe included in future elaborations.

3 Bringing public interest into the institutionalmilieu

When we represent graphically the network we derived from the survey data, weobtain a situation like the one in the first figure. Small red nodes are respondents,

1 Amongst the 37 questionnaires selected, one did not include any sort of answer to the question consid-ered (not even in the field for personal suggestions) and one was a duplicate of a multiple-affiliated respon-dent for which we have decided to meld the answers provided (as there was not a significant differencebetween the two profiles). Both decisions are admittedly arbitrary and point to methodological elements Iwill discuss in the last section of the paper.

2 In this case “events” should be understood in terms of “having participated in the discussion within acertain institution.”

�� : �� “�� ” 219larger black nodes are institutions listed in the survey as the possible places wherepublic interests can be discussed. There is a tie between a red node and a black node ifthe respondent has declared to participate in the discussion within that organisation.

What does this representation tell us? At a first glance, this representation mightappear rather confusing given the dense bundle of ties. However, we can notice thatthere are no isolate and sparse nodes – at least, as far as we can see. This means thatthere is actually a nucleus of “dialogue” where most of the respondents are tied toinstitutions (remember that the ties stand here for an involvement in the discussion).In fact, if we look at the data, there are two respondents that are disconnected fromthis main component of ties and nodes because in their answers they had not chosenany of the proposed alternatives but, rather, had specified their collaborations in thecolumn “other”. Also, there is one disconnected institutions that, for the selectionthat I made at the very beginning (only questionnaire completed and by organizationrepresentatives) results disconnected, ie, the European Patent Office. However, overall,we see that disconnection is not the main characteristic of this network and, althoughwe keep in mind that we have to further examine the status of the few isolated in ournetwork, we can focus on what the connected component can tell us.

From a graphical point of view, we see that there are some black and red nodesin the centre of the picture while, if we proceed toward the outside, we find a morescattered distribution. This “spatial” location of nodes can be interpreted in terms ofthe existence of a dialogue core, made up by some institutions and some respondents,opposing to a scattered periphery where, although dialogue is taking place, is lessstructured and dense. If we focus on the institutions in the core, we can think of themin terms of “hotspots”, as they provide, more than others, places where public interestrepresentatives are involved in the discussion, ie, they receive more ties from red nodes

220 �� (it is enough to notice the different density of ties in the core and outside the core).

How can we detect who these hotspots are? We see that many black nodes are tiedto respondents (red nodes) and, therefore, somehow all institutions listed in the surveyare recognised places for discussion in the field and, on the other hand, there is acertain level of inclusion of public interest representatives in the discussion.

How can we distinguish hotspots from other, less often participated institutions?One possible way is to lean on the concept of centrality, which allows to identify moreimportant actors in the network and, conversely, to identify those who are in the “pe-riphery”, ie, who are less important.

There are at least three ways in which one actor can be central: because it receivesmany ties from the other nodes in the network (degree centrality), because it stands inbetween other actors relations (betweenness centrality), because it is closer than othersto anyone else in the network (closeness centrality) (Freeman 1979).

When we look for hotspots in our network, we need to remember that our networkis made up of two sets of nodes (respondents and institutions) and, therefore, we neednot only to distinguish between types of centrality but also for the set of actors weare considering (Everett & Borgatti 2003). “Hotspots” mean more often participatedinstitutions, therefore, we can opt for degree centrality.

When looking at the specific set of nodes provided by institutions, one institutionis more central the more respondents have indicated it as a place where they havebrought their issues. The second figure depicts the same network we visualised beforecharacterising the size of the institutional nodes by the size of their degree, ie, by theirimportance as places for discussion.

The result we obtain computing and plotting centrality measures shows that theplaces that are more often participated are the ICANN, the ISOC, national governmen-

�� : �� “�� ” 221tal institutions, the IGF (both at regional and global level) and the OECD. Althoughother institutions have actually engaged in discussions with public interest represen-tatives, they have done so in a more limited way (see the smaller size of blue nodesrepresenting the institutions in figure 2).

For those readers who have been involved in the discussion of information andcommunication issues for a long time, this result might appear quite obvious: we havethe traditional Internet governance institutions plus some recent and important multi-stakeholder governance experiments such as the Internet Governance Forum. And yet,I argue that this result is less obvious than what it seems.

In the first place, it should be noted that the list of options provided in the surveywas much broader than the list of institutions dealing with Internet governance issues.The fact that ICANN, ISOC and the IGF itself have emerged as the central nodes whileother organisations, for example linked to human rights defense (such as the EuropeanCourt for Human Rights) or to pure commerce (such as the WTO), are less importantseems to suggest a sort of thematic characterisation of information and communicationissues in terms of Internet governance issues.

This finding can be interpreted in various ways. On the one hand, we may think itis the by-product of the emphasis put on Internet governance after the World Summiton the Information Society, which has somehow catalysed most of the informationand communication debates in this direction (see Pavan 2012). On the other hand, oneshould wonder if IG institutions are more open to participation than other institutionswhose scope is broader. In other words, this finding opens a question on how readyinstitutions are to host public interests representative especially in the case of olderinstitutions that were born under a logic of nation-states representativeness formallyexcluding non-governmental and non-institutional constituencies.

There was another interesting detail that the study of centrality revealed to us. Ifwe compare the levels of centrality amongst the hotspots identified we can notice thatthe “traditional” Internet governance institutions, such as ICANN and ISOC are lesscentral than the IGF at the global level and at the regional level but are equally lesscentral of various national governments that have opened the doors for the discussionabout information and communication issues (see the table below).

This might suggest that public interest representatives are in search for new in-terlocutors but also that procedures of representation embodied by the traditionalInternet governance procedures are being progressively overcome. Also, the fact thatother Internet governance institutions, such as the IETF, or standardisation bodies likethe W3C are less central than new and more comprehensive discussion forums like theIGF seems to suggest a certain preference not only for spaces that allow participationfrom a procedural point of view, but also from a thematic perspective.

4 ConclusionsIn this paper I took the chance provided by the survey realised by the Dynamic Work-ing Coalition on Internet Governance Mapping to make a case for using network anal-ysis for studying the representation of public interest within the information societyinstitutional landscape. The premises of this exercise can be found in Norbert Bollow’swork on how we need to understand what are the possibilities and obstacles for publicinterest representatives to access and bring their issues in the policy arena so we canassess more systematically what is the level of inclusiveness and participation within a

222 ��

Hotspot Degree

IGF Global 0.629

National Governments 0.571

ICANN 0.514

IGF Regional 0.514

ISOC 0.457

OECD 0.400

crucial area such as the management of information and communication issues.I argued at the beginning that there are good reasons for adopting a network ap-

proach – the potential of the network image, helps us simplify a very complex land-scape such as that of information society; the possibility to elaborate on the effects ofrelationships, in terms of dependencies, collaborations, conflicts, exchanges; the pos-sibility to look more in depth at power distribution between actors in the field. In thisregard, I also argued that a relational view of power should overcome the limits of tra-ditional conceptualisations for which power is inherently determined by who actorsare and are not. Instead, I proposed to link power to the place actors occupy withina certain system of relations. I believe that if we are preoccupied with understandingpossibilities and constraints to action, then looking at relations is one crucial step totake.

I made a small experiment and used sections of the data from the survey to visu-alise and explore the structure of relations between respondents and institutions listedin the survey. In concluding this exercise, I would like to pull together the variousstrands I opened in this work.

First, I have argued that most of the popularity of networks in the study of politicaldynamics in the information society field is due to a metaphorical use of networks andI have called for a “translation” of this metaphor into empirical terms. Here, I haveattempted this translation but in an exemplificative way thus facing several limits andmaking several arbitrary decisions. The data of the survey was not originally gatheredfor this purpose but I saw what I called a “network potential” in them. I selected justone specific type of information surveyed and I filtered at the beginning on the totalityof answers received. Moreover, I considered the relation “having been involved in thediscussion within a certain institution” from an admittedly rough perspective (basi-cally yes/no). In this sense, I have not included in my experiment all the informationgathered through the survey about modes of participation (eg, existence or absence offormal mechanisms for speaking) or funding. All this information could have mademy experiment more precise, more detailed and I acknowledge that my analysis hereshould not be taken as definitive. However, my goal was not to explain but to exploreand, in exploring, to make a case for using network analysis for integrating our currentknowledge on mechanisms of public interest representation.

Although small and limited, our little network analysis experiment allowed us tosee some interesting elements. We represented the involvement of respondents ininstitutional discussions in terms of networks and, looking at the visual representationof links between organisations and institutions, we realised quite clearly that thereis a dialogue going on and that gathers a plurality of respondents and institutions.

�� : �� “�� ” 223Looking at this maze made up by different discussion flows, we realised that there is acore of dialogue where some institutions are involved and we sneaked into that core tofind out that the central institutions in the discussions are Internet governance-focused.

Thus, we noticed that amongst the central institutions, the most important are thoseIG bodies that are built around inclusive procedures and conceptualisations of theInternet governance. Although, as I said above, this can be interpreted in various ways,the bundle of ties representing participation dynamics led us easily to identify wherethe bulk of discussion is taking place. It is certain, someone could argue that we wouldhave arrived at the same conclusions without nodes and ties – and I do not deny thiscould be true, but once we visualised the data in terms of networks we could easilydisentangle the maze we were starting from and getting “straight to the core.”

The representation of public interest is an inherently relational dynamic: it meansbringing ideas, priorities, agendas and visions within an institutional milieu that hasrules of procedures of a certain type. The added value of a network analysis exerciselike this one is, perhaps, not in the answers it provides, although some insights thathave emerged are pretty interesting and deserve further exploration (eg, the thematicconcentration around IG, the suggested overcoming of traditional governance mecha-nisms etc).

Rather, the values is provided by the potential that characterises the switch of atten-tion from actors to the relations that join them together, by the potential of mappingwith immediacy how public interest is currently brought into the institutional milieuand of identifying who is in the core, who is not, and who should be.

As I argued at the beginning, networks have a lot to say about power. We foundthat some specific institutions stands at the core of participation dynamics and, in thissense, are recognised points of reference in the debate. If, as it emerged from our anal-ysis, broader scope institutions that are centered around human rights or are absentfrom this authoritative core, then it is starting from relations that we could for exampleassess the need for integrating a human rights perspective into the information societyagenda.

Mapping through network concepts and tools what is going on “out there” , canprovide us with useful starting points to master our knowledge about participatorydynamics in the information society. As I argued elsewhere, the potential of networksstands in the fact that “where ties are present, some kind of potential is being ex-ploited. Where ties are absent, some kind of potential is inactive, but it is still there.Networks help us go beyond the perennial game of opposites because they show, atthe same time, what results are achieved and what are not achieved but more impor-tantly for the reform of political mechanisms, where action could be undertaken toimprove the overall effort to move global politics toward a radical and genuine democ-racy” (Pavan 2012: 161).

5 ReferencesCastells, Manuel. 1996. The Rise of Network Society. Oxford: Blackwell Publishers.

Freeman, Linton C. (1979.) "Centrality in social networks. Conceptual clarification".Social Networks, 1 pp. 215-239.

Kenis, Patrik, and Volker Schneider. 1991. “Policy Network and Policy Analysis: Scru-tinizing a New Analytical Toolbox.” In Policy Networks: Empirical Evidence and The-

224 �� oretical Considerations, ed. Bernd Marin and Renate Mayntz, 25–62. Boulder, Colo.:Westview Press.

Kooiman, Jan. 2003. Governing as Governance. London, Thousand Oaks, New Delhi:Sage Publications.

Padovani, Claudia & Elena Pavan. 2011. “Actors and Interactions in Global Communi-cation Governance: The Heuristic Potential of a Network Approach.” In The Handbookof Global Media and Communication Policy, ed. Robin Mansell and Mark Raboy, 543–563.Oxford: Blackwell Publishing.

Pavan, Elena. 2012. Frames and Connections in the Governance of Global Communications.A Network Study of the Internet Governance Forum. Lanham (MD): Lexington Books.

Wasserman, Stanley, and Katherine Faust. 1994. Social Network Analysis: Methods andApplications. Cambridge: Cambridge University Press.

Wellman, Berry. 2002. “Structural Analysis: From Method and Metaphor to Theoryand Substance.” In Social Networks: Critical Concepts in Sociology (vol. I), ed. John Scott,70–108. London and New York: Routledge.

ContributorsDr George Yijun Tian is a Senior Lecturer at the University of Technology Syd-ney (UTS) Law School. He joined UTS in January 2008. His research is focusing onintellectual property, anti-trust law, international trade, and digital legislation. Prior totaking up the full-time position at UTS, he has taught sessionally postgraduate coursesin intellectual property at UTS, and undergraduate courses in corporate law at theUniversity of New South Wales (UNSW).

Paul Sweazey has been a designer and architect for computing, communication,storage systems, and cryptographic security systems at companies such as Tektronix,MIPS, National Semiconductor, Apple, and Seagate. He has co-founded startups innetwork switching, network-attached storage, and digital content protection. As aninventor, he defined the original 5-state MOESI model of cache coherence as used inthe AMD64 architecture, invented the QuickRing interconnect of Apple and NSC,created the SpandX hypertoroidal switch fabric, and devised the original conceptsthat may enable consumers to own digital downloads without usage restrictions. InIEEE standards Paul worked on the IEEE 896 Futurebus as the cache coherence taskgroup leader, founded the Superbus Study Group which led to the IEEE 1596 ScalableCoherent Interface standard, participated in the IEEE 1394 Serial Bus Working Group,and started the Digital Personal Property Study Group. A graduate of the Universityof Portland (Oregon), Paul is currently a design engineer for Nuvation Engineering inSan Jose, CA, and serves as chair of the P1817 Standard for Consumer-ownable DigitalPersonal Property.

Robin Brown has 25 years of experience in consumer and business regulatory affairs.He spent 10 years as the chair and chief executive of Australia’s national consumerbody, the Australian Federation of Consumer Organisations. Robin has been involvedin projects to advance consumer protection and competition policy and regulation in anumber of developing countries. In recent years Robin has served as a Councilor of theAustralian Consumers’ Association. He holds a BA and a Master of Public Policy fromthe Australian National University.

Jeremy Malcolm is Consumers International’s Project Coordinator for IntellectualProperty and Communications, coordinating its global programmes on Access toKnowledge (A2K) and Communications from CI’s Asia-Pacific office in Kuala Lumpur.Jeremy graduated with degrees in Law (with Honours) and Commerce in 1995 fromMurdoch University, and completed his PhD thesis at the same University in 2008

which was the first doctoral examination of the Internet Governance Forum. He later

226 �� adapted his thesis into a book titled "Multi-Stakeholder Governance and the Inter-net Governance Forum". Jeremy’s background is as an information technology andintellectual property lawyer and IT consultant with a research interest in Internet gov-ernance. He is admitted to the bars of the Supreme Court of Western Australia (1995),High Court of Australia (1996) and Appellate Division of New York (2009).

Norbert Bollow is a systems analyst and technologist who participates in the Freeand Open Source Software (FOSS) movement, in international standardization, and inInternet Governance related debates. His advocacy work is motivated primarily by astrong desire for the protection of personal data and communications privacy.

Elena Pavan holds a degree in Communication Sciences (University of Padova, Italy,2004) and a PhD in Sociology (University of Trento, 2009). She developed her exper-tise in the study and the use of social network analysis in various fields of research(from supra national governance political processes to human-computer interaction)and in conjunction with other analytical techniques, such as lexicon-content analy-sis. Her most recent research interests pertain to the relationships between collectiveaction/political participation and social media use. Within this area, she is workinginterdisciplinary to combine technical and social knowledges into the study of socio-technical systems and is employing network analysis techniques and tools. She re-cently published in international journals (e.g., Gazette) and in relevant Italian journals(Quaderni di Sociologia). Her PhD dissertation on Internet governance multistake-holder processes has just been released as a book for Lexington Publications.

AcknowledgmentsConsumers International would like to thank everyone who has contributed tothis volume, to the event “Consumers in the Information Society: Access, Fairness andRepresentation” which it accompanies, and to the programmes and campaigns forwhich these papers are just the tip of a much bigger iceberg.

This work, in particular, depends directly on the support of our funders. Our Accessto Knowledge programme is funded by the Open Society Institute (OSI), which alsokick-started our campaign to amend the UN Guidelines for Consumer Protection. Theresearch component of that UN Guidelines campaign is generously funded by the In-ternational Development Research Centre (IDRC). The campaign “Holding BroadbandService Providers to Account” along with our work on “Consumer Representation inthe Information Society” are funded by Ford Foundation.

The views expressed in the papers here are those of the contributors, and not neces-sarily those of Consumers International or our funders. The individual citation stylesused by each contributor have been retained, though the spelling has been standard-ised using British English. The editor accepts responsibility for any errors that mayremain in the text.

This volume was typeset using the open source LATEX typesetting system, styled us-ing a customised class based upon tufte-book. The body is set in Palatino at 10 pointson a 14 point leading, and the headings in Iwona.

Consumers in the information societyThe opportunities and challenges that face consumers in today's online digital environment raise a range of new issues for the global consumer movement. For example, products that were once sold as goods, are now packaged as digital services, lacking many of the incidents of ownership that consumers expect. They are often delivered over broadband networks for which there are no uniform consumer protection standards. Many of the institutions making decisions for this digital environment do so without first hearing from consumers about their rights, interests and concerns.Members of Consumers International (CI), the only global campaigning voice for consumers, came together from around the world to discuss and set an agenda for advocacy on these issues, at the first global summit "Consumers in the Information Society: Access, Fairness and Representation" held in Kuala Lumpur, Malaysia on 8 and 9 March 2012. This book contains the research reports and working papers presented at that conference, including Consumers International's work on:

• How the consumer movement can fight back against the insidious abuse of intellectual property rights by some large businesses, who use technology and "fine print" in consumer contracts to limit fair uses of cultural and educational materials that copyright law would otherwise allow.

• Mapping the landscape of governance in the information society, to reveal where consumers are poorly represented in the institutions that wield power online, and to suggest how we can be given a louder voice in guiding these institutions to take account of our needs.

• CI's leadership of an ambitious campaign to firmly reestablish a progressive agenda for today's connected consumers, through proposed revisions to the United Nations Guidelines for Consumer Protection.

Consumers InternationalLot 5-1 Wisma WIM

7 Jalan Abang Haji OpengTTDI, 60000 Kuala Lumpur, Malaysia

Consumers in the Information SocietyAccess, Fairness and RepresentationISBN 978-0-9567403-9-7

9 780956 740397

ISBN 978-0-9567403-9-7

infosoc2012

Documents

c consumer rights

safeguarding consumer

global consumer survey

consumer protectionrobin

worlds consumers

broadbandby jeremy malcolm

jeremy malcolmprinted

information societyconsumers