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