Proposal for Treaty of Access to Knowledge (May 10, 2005 Draft)

The following is the text that was prepared in 2005 as a
possible basis for a treaty on Access to Knowledge. The text
was prepared in response to an August 2004 proposal by Argentina
and Brazil for a WIPO Development Agenda, that included in its
original proposal, a possible treaty on access to knowledge. The
process that created this specific draft text included three
elements.

  1. From January May 2005, there were extensive discussions on the
    a2k list serve. In these conversations, many different proposed
    elements of such a treaty were put forth by a wide variety of
    academic experts, government negotiators, NGOs, innovative
    businesses and persons acting in their personal capacity.
  2. A drafting committee was formed,that included about two dozen
    members.
  3. There were two face to face consultations held. The first
    was a February 3-5, 2005 meeting in Geneva, titled: Experts Meeting
    on the WIPO Development Agenda and a Treaty on Access to Knowledge.
    This meeting of about 80 persons was co-hosted CPTech, IFLA and
    TWN. The second meeting was a May 12-15, 2005 meeting in
    London, titled “Consultation on proposed treaty on Access to
    Knowledge.” The London event was hosted by the Trans-Atlantic
    Consumer Dialogue (TACD).

The text below was approved by drafting committee for purposes
of the consultations in London.


[Note on formatting. Compared to the May 9, 2005 draft,
there are some stylistic changes in the numbering of items within
Articles].

(Proposed) TREATY ON ACCESS TO
KNOWLEDGE

10 May 2005 Draft

Table of
Contents

Part 1 – Purposes, objectives,
relationship to other treatie

PREAMBLE

Article 1-1 – Objective

Article 1-2 – Nature and Scope of
Obligation

Article 1-3 – Relationship to other
agreement

Part 2 – Governance

Article 2-1 – Conference of the
Parties

Article 2-2 – Executive Board

Article 2-3 – Secretariat

Part 3 – Provisions Regarding Limitations and
Exceptions to Copyright and Related Rights

Article 3-1 – General Limitations and Exceptions
to Copyrights

Article 3-2 – Provisions regarding Distance
Education

Article 3-3 – The rights of persons with
disabilities

Article 3-4 – First Sale Doctrine for Library
Use

Article 3-5 – Internet Service
Providers

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

Article 3-7 – Non-original or creative
works

Article 3-8 – Orphan Works

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

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

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

Article 3-12 – Compulsory licensing of
copyrighted works in developing countries

Part 4 – Patents

Article 4-1 – Patents

Part 5 – Expanding and Enhancing the
Knowledge Commons

Article 5-1 – Knowledge Commons
Committee

Article 5-2 – Access to Public Funded
Research

Article 5-3 – No Copyright of Government
Works

Article 5-4 – Archives of Public
Broadcasting

Article 5-5 – Access to Government
Information

Article 5-6 – Knowledge Commons
Databases

Part 6 – Promotion of Open
Standards

Article 6-1 – Committee on Open
Standards

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

Article 6-3 – Essential Interfaces for Knowledge
Goods

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

PART 7 – Control of Anticompetitive
Practices

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

Article 7-2 – Committee on Control of
Anticompetitive Practices

Article 7-3 – Essential
Software

PART 8 – Authors and Performers

Article 8-1 – Copyright and Related Rights
Collection Societies

Article 8-2 – Unfair Contracts

PART 9 – Transfer Of Technology To
Developing Countries

Article 9-1 Committee on Transfer of
Technology

UNFINISHED PLACEHOLDER

Part 10 – Misc Issues

Article 10-1 Free Movement of
Researchers

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

UNFINISHED PLACEHOLDERS

Part 11 – Obligation to finance free and
open knowledge goods

PART 12 –
Enforcement of rights and obligations

Part 1 – Purposes, objectives, relationship to
other treaties

PREAMBLE

The parties to this treaty,

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

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

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

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

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

Concerned about private misappropriation of
social and public knowledge resources,

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

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

Seeking to control anticompetitive
practices,

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

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

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

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

Concerned over insufficient public support for
knowledge resources,

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

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

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

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

Seeking to promote the transfer of technology to
developing countries,

Members agree

Article 1-1 – Objectives

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

Article 1-2 – Nature and Scope of
Obligations

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

Article 1-3 – Relationship to other
agreements

(a) Nothing in this Agreement shall limit the
rights of the public to access and use information or knowledge
that are defined in other treaties or National legislation.

This Agreement does not limit the ability of its
signatories to further act to support cooperative creation and
innovation efforts that contribute to a knowledge commons that is
available to all.

(b) In order to limit tariffs on importation of
educational, scientific and cultural materials, members agree to
comply with the Florence Agreement (1950) and its Protocol known as
the ‘Protocol of Nairobi’ (1976).

(c) In order to promote access to medicine for
all, members agree to implement paragraph 4 of the WTO Doha
Declaration on TRIPS and Public Health.

(d) The public policy goals set out in this
Agreement should not be overridden by private contract.

Part 2 – Governance

Article 2-1 – Conference of the Parties

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

Article 2-2 – Executive Board

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

Article 2-3 – Secretariat

The Secretariat functions shall include:

  1. making arrangements for sessions of the
    Conference of the Parties, the Executive Board, and subsidiary
    bodies and provide services as required;

  2. transmit reports received by it pursuant to the
    Treaty;

  3. provide support to Members, particularly
    developing country Members and Members with economies in
    transition, on request, in the compilation and communication of
    information required in accordance with the provisions of the
    Treaty;

  4. prepare reports on its activities under the
    Treaty;

  5. ensure the necessary coordination with the
    competent international and regional intergovernmental
    organizations and other bodies;

  6. enter into such administrative or contractual
    arrangements as may be required for the effective discharge of its
    functions; and

  7. perform other secretariat functions specified by
    the Treaty and by any of its protocols and such other functions as
    may be determined by the CoP or the EB.

Part 3 – Provisions Regarding Limitations and
Exceptions to Copyright and Related Rights

Article 3-1 – General Limitations and
Exceptions to Copyrights

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

  1. The use of relevant excerpts, selections, and
    quotations for purposes of explanation and illustration in
    connection with not-for-profit teaching and scholarship;

  2. The use of relevant excerpts, selections and
    quotations for purposes of criticism and comment, including but not
    limited to parody:

  3. The use of works, by educational institutions,
    as secondary readings by enrolled students;

  4. The use of works, by educations institutions, as
    primary instructional materials, if those materials are not made
    readily available by right holders at a reasonable price; provided
    that in case of such use the right holder shall be entitled to
    equitable remuneration;

  5. The use of works for purposes of library or
    archival preservation, or to migrate content to a new format;

  6. The use of works in connection with legitimate
    reverse engineering;

  7. The use of works specifically to promote access
    by persons of with impaired sight or hearing, learning
    disabilities, or other special needs;

  8. The use by libraries, archivists or educational
    institutions, to make copies of works that are protected by
    copyright but which are not currently the subject of commercial
    exploitation, for purposes of preservation, education or
    research.

  9. The use of works in connection with Internet
    search engines, so long as the owners of works do not make
    reasonably effective measures to prevent access by Internet search
    engines, and the Internet search engine service provides convenient
    and effective means to remove works from databases upon request of
    the right owner.

(b) It shall be presumed that these uses
constitute special cases that do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder.

(c) In determining whether applying any
limitation or exception to exclusive rights to a particular use of
a work would conflict with its normal exploitation or unreasonably
prejudices the legitimate interests of the right holder, the extent
to which the use benefits the larger public interest shall be taken
into account.

(d) In addition to implementing specific
exceptions for the cases listed in subparagraph (a), parties to
this treaty also shall implement a general exception to copyright
law, applicable in special cases where the social, cultural,
educational or other developmental benefit of a use outweigh the
costs imposed by it on private parties, [and providing for
equitable remuneration to the copyright owner in appropriate
circumstances.]”

Article 3-2 – Provisions regarding Distance
Education

(a) Members agree that the convergence of
telecommunications, publishing, broadcasting and computing, is
creating a media environment with enormous implications for
flexible learning, and mass higher education and training,
including through programs of distance education. The cross border
nature of information flows provides compelling justification for
harmonization of minimum limitations and exceptions for distance
education. In order to take full advantage of new technologies in
the delivery of education and flexible learning, it is necessary to
ensure that educators have sufficient rights to use works.

(b) The exclusive economic rights of copyright
owners shall not extend to the following uses in connection with
distance education projects:

  1. Performances of non-dramatic literary works;

  2. Performances of any other work, including
    dramatic works and audiovisual works, but only in ”reasonable and
    limited portions” and

  3. Displays of any work in an amount comparable to
    that which is typically displayed in the course of a live classroom
    session.

(c)The works described in (b) do not include works that are
marketed primarily for performance or display as part of mediated
instructional activities transmitted via digital networks; and
performances or displays given by means of copies not lawfully made
and acquired, if the educational institution knew or had reason to
believe that they were not lawfully made and acquired.

(d) Non-voluntary authorizations for education
institutions and programs to use works in distance education should
not involve overly restrictive or burdensome procedures.

(e) Educational institutions shall be permitted
to record and retain copies of the distance-education transmission,
even if it included copyrighted content owned by others, for (1)
retention of the content for student access for a period of time
that is necessary to achieve the learning objectives, and (2)
copying and storage that is incidental or necessary to the
technical aspects of digital transmission, including transient or
temporary storage of material, provided that the copyrighted
content on a system or network is not available for a longer period
than is reasonably necessary to facilitate the transmissions for
which it was made, and to the extent technologically feasible, the
material is not accessed by anyone other than the anticipated
recipients.

Article 3-3 – The rights of persons with
disabilities

(a) Members recognize the importance of accessibility in the
process of the equalization of opportunities in all spheres of
society, and the right of equitable access to knowledge
irrespective of disability. This requires:

  1. a right to access knowledge through a diversity
    of formats to meet the individual’s specific needs,

  2. a right to transcend national frontiers,

  3. a functional defintiion of accessibility,
    and

  4. a functional definition of disability.

(b) Libraries, education institutions, or other
institutions or organizations duly designed shall have the
authority to convert material from one format to another to make it
accessible to persons with disabilities.

(c) The dissemination of works in formats that
enable access by disabled persons shall be permitted to any country
that duly authorizes the non-voluntary use of such works.

(d) Inclusive design principles to promote
accessibility shall apply to government web pages and other public
documents.

(e) National legislation to protect copyrighted or
non-copyrighted works using digital rights management or
technological protection measures shall provide for appropriate
exceptions that are necessary to ensure access by persons with
disabilities.

Article 3-4 – First Sale Doctrine for Library
Use

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

Article 3-5 – Internet Service Providers

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

(a) An internet service provider’s (ISP)
transmitting, routing or providing connections for, material
through a system or network controlled or operated by or for the
service provider, or by reason of the intermediate and transient
storage of that material in the course of such transmitting,
routing, or providing connections, if

  1. the transmission of the material was initiated by or at the
    direction of a person other than the service provider;
  2. the transmission, routing, provision of connections, or storage
    is carried out through an automatic technical process without
    selection of the material by the service provider;
  3. the service provider does not select the recipients of the
    material except as an automatic response to the request of another
    person;
  4. no copy of the material made by the service provider in the
    course of such intermediate or transient storage is maintained on
    the system or network in a manner ordinarily accessible to anyone
    other than anticipated recipients, and no such copy is maintained
    on the system or network in a manner ordinarily accessible to such
    anticipated recipients for a longer period than is reasonably
    necessary for the transmission, routing, or provision of
    connections; and
  5. the material is transmitted through the system or network
    without irreversible modification of its content.

(b) An ISP’s intermediate and temporary storage
of material for the purposes of caching material, as long as they
do not modify the material or provide it in a manner inconsistent
with access conditions set by the copyright holder;

(c) An ISP’s storage at the direction of a user
of material that resides on a system or network controlled or
operated by or for the service provider;

(d) The referring or linking to an online
location containing infringing material or infringing activity; in
cases in which the service provider has the right and ability to
control such activity, this exemption applies only if the ISP does
not receive a financial benefit directly attributable to the
infringing activity.

(e) The caching of electronic documents for the
purposes of enhancing functionality of internet search engines, as
long as the original webpage address is clearly indicated on the
cached page, and it is clear that the cached page may not be the
most up-to-date version;

(f) The transmitting of a universal resource
locator or other electronic pointer, that has the effect of
instructing a user’s browser to load electronic documents from a
third-party server;

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

(a) Members agree that measures concerning
Digital Rights Management (DRM) systems and prohibitions against
the circumvention of technological protection measures (TPMs),
referred to as DRM/TPM measures, present the following risks:

  1. The DRM/TPM measures may undermine traditional limitations and
    exceptions to exclusive rights,
  2. DRM/TPM measures may present barriers to mechanisms that enable
    or enhance access for the visually impaired or other people with
    disabilities,
  3. The DRP/TPM measures may effectively extend of the term of
    protection beyond that provided in copyright law, including
    perpetual protection,
  4. Unfair contract terms and the inadequate disclosure of the
    limitations of uses of works may harm consumers,
  5. Anticompetitive practices, including market segmentation and
    technological tying to other potentially competitive products, may
    result in high prices and reduced innovation,
  6. DRM/TPM measures may make it difficult or impossible to archive
    or preserve works.

(b) Therefore, legal prohibitions against anti-circumvention of
DRM/TPM measures shall be limited, and not be enforced in the
following cases:

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

(c) Unless the use of DRM/TPM measures do not substantially
interfere with uses that are authorized by the right holders or
permitted by law, circumvention is permitted for the following
works:

  1. Works consisting predominantly of public-domain material;
  2. Works of medical and scientific literature;
  3. Works substantially financed by national governments or
    international organizations;
  4. Works consisting predominantly of factual information available
    from a single source, if equivalent information cannot readily be
    gathered or compiled by others;
  5. Works currently protected under extended terms of copyright
    that exceed those required by the Berne Convention or TRIPS.

(d) In providing legal protection and remedies against the
circumvention of technological measures, contracting parties shall
not prohibit circumvention undertaken in connection with uses of
works that are authorized by rightholders or permitted by law.

(e) In providing legal protection and remedies against the
circumvention of technological measures, contracting parties shall
not prohibit the making available of any technology or service that
is intended primarily to facilitate uses of works that are
authorized by the right holders or permitted by law.

Article 3-7 – Non-original or creative
works

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

Article 3-8 – Orphan Works

(a) Members agree to implement measures that
ensure access to works that are unidentifiable, un-locatable or
unresponsive, referred to as orphan works.

(b) Use by reproduction in copies or
phonorecords or by any other means of use within the rights of the
copyright owner, is not an infringement of copyright when the user
has conducted a reasonable investigation and can conclude that the
work is an orphan work.

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

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

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

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

(a) The sui generis regime shall
include limitations and exceptions to rights that are least as
supportive of access to knowledge as exist for copyrighted
works;

(b) The sui generis regime shall
require that the extended term of protection is based upon the
registration of the work and the inclusion of a notice of extended
term of protection, identifying the right owner and the date the
work will enter the public domain; and

(c) The sui generis regime may be
subject to additional public interest measures that promote access
to knowledge, including additional limitations and exceptions to
rights, obligations to support public knowledge goods, or the
deposit of the work in an archive in a format that will ensure
public access after the expiration of the extended term.

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

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

(a) Extensions of the term of protection will
not be retroactive,

(b) Terms of protection shall not exceed the
requirements of the TRIPS agreement.

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

(a) Members agree that:

  1. In the past quarter of a century, technical
    progress has changed the ways and means of transmitting information
    and knowledge;

  2. Developments that have taken place in the field
    of international trade during this period reflect in greater
    freedom of exchanges;

  3. The needs and concerns of the developing
    countries should be taken into consideration, with a view to giving
    them easier and less costly access to education, science,
    technology and culture;

  4. The Appendix to the Berne Convention has been of
    limited benefit to developing countries, due to complex procedures,
    high transaction costs, limitations on exports and the limited
    scope of works and uses; and

  5. The Appendix to the Berne Convention is not a
    viable mechanism to promote access to works that are distributed on
    the Internet.

(b) A new protocol for access to copyrighted
works in developing countries will be developed for compulsory
licenses for copyrighted works that will feature:

  1. Simpler procedures,

  2. Lower transaction costs,

  3. Faster decision making,

  4. Appropriate scope of works and uses, including
    for translations in major languages,

  5. Permission to export to other developing
    countries that have issued compulsory licenses for the same
    works,

  6. Feasible implementation for works distributed in
    electronic formats, including over the Internet, or in distance
    education.

(c) The protocol described in (b) will be set
out in the Regulations to this agreement.

Part 4 – Patents

Article 4-1 – Patents

(a) Patent rights shall not be granted with respect to:

  1. discoveries, scientific theories or mathematical methods;
  2. aesthetic creations, including but not limited to literary or
    dramaturgical works;
  3. schemes, rules and methods for performing mental acts, playing
    games or doing business;
  4. programs for computers;
  5. presentations of information;
  6. methods for treatment of the human or animal body by surgery or
    therapy and diagnostic methods practiced on the human or animal
    body, except for products, in particular substances or
    compositions, for use in any of these methods;
  7. methods of teaching and education; or
  8. higher life forms.

(b) The privileges granted by a patent shall not
be interpreted to include the ability to:

  1. prohibit the working of the patent for the
    purposes of experiment or research, including commercial research,
    on or with the covered invention, except to the extent that such
    rights are used to ensure nonexclusive access to derivative
    innovations, data, and technologies;

  2. prohibit the working of improvement innovations
    in the same field as the patented technology;

  3. any invention developed through the use of
    biological material if the inventor failed to obtain prior informed
    consent of the country of origin, or fails to fairly and equitably
    share the benefits derived from the use of that biological
    material;

  4. prevent the distribution of medicines or other
    medical technologies that are manufactured and distributed for
    compassionate use, and meet the following conditions:

i. the use is temporary, and addresses an urgent health care
need,

ii. there is no alternative method of obtaining the product at
an affordable price, and

iii. the product is distributed at no profit [free];

(c) The grant of a patent shall be conditional upon

  1. disclosure of the best mode of practicing the invention,
  2. disclosure of the source or origin of any biological material
    utilized in the invention,
  3. disclosure of any government financial support for the
    invention,
  4. a commitment to ensure enabling transfer of know-how after the
    expiration of patent,
  5. when relevant and upon request of a third party, a commitment
    to make available a deposit of any associated biological materials
    in an appropriate designated repository, for exploitation for
    research purposes, and for general use after the expiration of the
    patent,

(d) Usage that does not constitute infringement

  1. the use of a patented technique for a significant purpose of
    ensuring conversion of the conventions used in two different data
    processing systems so as to allow communication and exchange of
    data content between them;
  2. the distribution and publication of information, in whatever
    form.

——————–

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

These provisions are based upon amendments
offered by Michel Rocard in the European Parliament’s second
reading of the software patent directive. The justification was as
follows: (i) Interoperability of data processing systems (e.g.
computers) lies at the foundation of the information economy and
allows for fair competition by all players large and small. A
software developer could find out how to make his data processing
system interoperable with that of a competitor, but afterwards
would not necessarily be able use the knowledge if prohibited by
the patent owner. The language seeks to ensure that patents also
cannot be used to prevent interoperability. (ii) Freedom of
publication can be limited by copyright but not by patents. This
provision limits the ways in which a patent owner can enforce his
patents.

——————–

Part 5 – Expanding and Enhancing the Knowledge
Commons

Article 5-1 – Knowledge Commons Committee

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

Article 5-2 – Access to Public Funded
Research

(a) Members agree that works resulting from
government-funded research shall be publicly available at no charge
within a reasonable time frame, subject to reasonable exceptions,
for example, for classified military research, for patentable
discoveries, and for works that generate revenue for the author
such as books.

(b) The KCC shall publish and periodically
update best practices for providing public access to government
funded research.

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

Article 5-3 – No Copyright of Government
Works

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

Article 5-4 – Archives of Public
Broadcasting

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

Article 5-5 – Access to Government
Information

(a) Members shall facilitate public access to
information held by public bodies and private bodies that are
conducting public business. This shall include laws and regulations
to provide for legal procedures for access to information based on
the principles of openness and transparency.

(b) The right to information shall be guaranteed
by law in accordance with the following principles:

  1. everyone has the right to access information
    held by public bodies;

  2. any exemptions to this right shall be set down
    in law, limited in scope, and proportional to the interest to be
    protected, and subject to a review of the public interest.

  3. any refusal to disclose information shall be
    subject to review by an independent body such as an ombudsman
    and/or a court;

  4. public bodies shall be required, even in the
    absence of a request, actively to publish important information of
    significant public interest;

  5. secrecy laws and other legislation shall be
    amended as necessary to comply with freedom of information
    principles.

Article 5-6 – Knowledge Commons Databases

(a) The KCC shall adopt procedures whereby
persons, organizations or communities that seek to establish
certain qualifying open databases apply for a time limited period
during which no patent applications can be submitted that rely upon
the data from the database. To quality, the databases must address
an important public interest, and be freely available to all.

(b) Members agree that during the time period
determined in (a), no patents will be granted for patent
applications that contain claims to particular uses of the data
obtained from such a qualifying database, unless such claims do not
restrict, or are licensed on such terms that that they do not
restrict, the ability of others to use the data at no cost.

—————————-

Excerpts from the NIH/HapMap
license

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

a. by your actions (whether now or in the
future), you shall not restrict the access to, or the use which may
be made by others of, the Genotype Database or the data that it
contains;

b. in particular, but without limitation,

i. you shall not file any patent applications
that contain claims to any composition of matter of any single
nucleotide polymorphism (“SNP”), genotype or haplotype data
obtained from the Genotype Database or any SNP, haplotype or
haplotype block based on data obtained from the Genotype Database;
and

ii. you shall not file any patent applications
that contain claims to particular uses of any SNP, genotype or
haplotype data obtained from the Genotype Database or any SNP,
haplotype or haplotype block based on data obtained from, the
Genotype Database, unless such claims do not restrict, or are
licensed on such terms that that they do not restrict, the ability
of others to use at no cost the Genotype Database or the data that
it contains for other purposes; and

——————————

Part 6 – Promotion of Open Standards

Article 6-1 – Committee on Open Standards

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

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

(a) The COS shall establish a process and
criteria for a Standards Development Organization (SDO) to request
a managed disclosure of relevant patent claims for standards
relevant to a knowledge good or service. To make such a request,
the SDO must be global, with a membership that is open to any
party, and the qualifying open standard must:

VERSION 1

  1. be adopted and maintained by a not-for-profit
    organization, and with ongoing development based upon an open
    decision-making procedure available to all interested parties
    (consensus or majority decision);

  2. be published, with the specification of the
    standard available either freely or at a nominal charge, with
    permissible to all to copy, distribute and use it for no fee or at
    a nominal fee; and

  3. the intellectual property aspects of the
    standard, including the relevant patents or data, shall be made
    irrevocably available on a royalty-free basis; and

  4. there are no constraints on the re-use of the
    standard.

VERSION 2

  1. be published without restriction (e.g.,
    potential implementers are not restricted from accessing the
    standard) in electronic or tangible form, and in sufficient detail
    to enable a complete understanding of the standard’s scope and
    purpose;

  2. be publicly available without cost or for a
    reasonable non-discriminatory fee for adoption and implementation
    by any interested party;

  3. Any patent or data rights necessary to implement
    the standards are made available by those developing the
    specification to all implementers on reasonable and
    non-discriminatory (RAND) terms (either with or without payment of
    a reasonable royalty or fee); and

  4. The process to develop, maintain, approve, or
    ratify the standard is by consensus, in a market-driven
    standards-setting organization that is open to all interested and
    qualified participants.

(b) The request for a managed disclosure process
shall include the following:

  1. A description of the SDO

  2. An initial specification of the standard,
    including the expected applications for the standard,

  3. The benefits to the public of the development of
    the standard,

(c) Disclosures of patents relevant to the proposed
standard that are not responsive to the requirements to be specific
with regard to the relevance of the patent to the proposed standard
shall be rejected.

(d) Members agree that a patent holder that fails to
make constructive disclosures of relevant patent claims will be
prevented from enforcing the patent against the implementation of
the open standard.

Article 6-3 – Essential Interfaces for
Knowledge Goods

(a) The COS will periodically request public
comment on the interfaces that are essential for software,
computers and other knowledge goods.

(b) The COS will publish and periodically update
a list of essential interfaces for knowledge goods.

(c) Members agree to consider procurement
policies that provide preferences or requirements that computer
software, hardware, or accessories that use and enable open,
standards compliant interfaces.

(d) Members agree that patents that are licensed
on a non-discriminatory and royalty free basis for use in
implementing an interface for an essential knowledge good shall not
be subject to further fees.

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

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

PART 7 – Control of Anticompetitive
Practices

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

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

Article 7-2 – Committee on Control of
Anticompetitive Practices

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

(a) Collect information from member states on
the control of anticompetitive practices in the areas of knowledge
goods.

(b) Publish best practices guides for the
implement of Article 40 of the TRIPS.

(c) Review trends and implications of
concentration of ownership of knowledge good industries,

(d) Other topics relevant to the control of
anticompetitive practices and the promotion of access to
knowledge.

Article 7-3 – Essential Software

(a) The CCAP shall publish and periodically
update a list of software programs and interfaces that are
essential for access to knowledge.

(b) The CCAP shall collect information and
publish best practice guidelines for Members seeking to promote
competition and access to essential software, on such topics
as:

  1. Government procurement policies relating to the
    licensing of software, and requirements for

    i. Open interfaces,
    ii. Obligations for software source code be released to the public
    within a fixed period of time,
    iv. Use of standards compliant file formats for data storage,
    v. Obligations to license interface information on a
    non-discriminatory basis;

  2. Measures to remedy excessive pricing of products
    with significant market power.

  3. Application of essential facilities and tying
    doctrines, with particular emphasis on obligations to un-bundle
    software components that are potentially competitive from
    components have substantial market power.

PART 8 – Authors and Performers

Article 8-1 – Copyright and Related Rights
Collection Societies

(a) Members agree to adopt adequate measures to
ensure transparency of copyright and related rights collection
society policies, practices, and finances.

(b) Copyright and related rights collection
societies in developing countries that are not considered high or
high middle income by the World Bank may disregard national
treatment, and distribute income in disproportionate amounts to
domestic authors, performers and creative communities.

Article 8-2 – Unfair Contracts

(a) Members agree to protect authors and
performers from unfair contracts with publishers.

(b) ……….

PART 9 – Transfer Of Technology To Developing
Countries

Article 9-1 Committee on Transfer of
Technology

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

UNFINISHED PLACEHOLDER

Part 10 – Misc Issues

Article 10-1 Free Movement of Researchers

VERSION 1

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

VERSION 2

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

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

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

UNFINISHED PLACEHOLDERS

Part 11 – Obligation to finance free and open
knowledge goods

a. Amount of obligation to vary by GDP and level
of development

b. Tradable Credits for priority projects

PART 12 – Enforcement of rights and
obligations

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