Fourth, this paper will not examine in any significant detail all the complex legal issues of database encryption and the prohibition on anticircumvention devices that Professor Dreier1 mentioned and the threat that these new legal technological developments pose to database access. The new buzz phrase “digital rights management” is a particularly dangerous development for users of electronic information, including database users, and it essentially focuses on protection rather than management. It is being driven, as the European Association of Libraries explains, by technology and its limitations, and in the process may attempt to trump the proper and legal use of copyrighted materials.
At the same time, it should be recognized that the conditions under which southern scientists and researchers do their work, and hence the circumstances under which they acquire access to their databases, are often very different from those facing their colleagues in the North in much richer countries. I will look at this question in more detail when I examine the notion of national treatment of copyrighted works. Furthermore, a wide range of legal issues, including those involving intellectual property rights, both create and reinforce these differences.
Because of the nature of intellectual property and its duration as a property right stretching many years into the future (and, indeed, perhaps permanently under the terms of the European Union’s database directive) intellectual property determines not only present but also future distributions and allocations of both information and wealth. A database right as a property right expresses a power relation between persons, in this case between the owners and the users of the database, and represents not only the state’s grant of monopoly rights to a private party (the owners) but also that party’s power over other people. In other words, the owner of intellectual property in databases can decide who conducts research and what they can research about.
Finally, and by way of information, the production and use of digital data necessarily implies access to computers themselves operated by some type of computer software. Here again, intellectual property issues should be appreciated as setting the context for public domain and access issues.
Under the terms of the agreement on Trade-Related Aspects of Intellectual Property, better known as the TRIPS agreement, computer software is protected as a literary work under the leading global international copyright regime, the Berne Convention. TRIPS and Berne presume a proprietary model of software and, in the case of the best known proprietary operating system, Microsoft Windows, users in the countries of the South must, as elsewhere, pay for an expensive licensing agreement to access this software. They must also abide by a series of legally and technically restrictive rules if they wish to access data and scientific information.
Other speakers will address the alternative nonproprietary approach, such as open-source or free software, and I will make but two short and related points. One, if they are interested in wider access to data and information issues, donor agencies and governments in rich countries of the North should cease privileging intellectual-property-protected proprietary software in their computer aid programs to poor countries and, for example, to educational institutions. Some government aid agencies, when pushed, even admit the advantages of nonproprietary systems. For example, in the United States under the U.S. Agency for International Development, there is the Leland Initiative, which ships PCs equipped with Microsoft products to poorer countries. The coordinator of this initiative has admitted that “on balance, we are for the cheapest and most affordable approach which would be open source.” So, the very agency shipping these computers loaded with Microsoft Windows to Africa and Latin America admits that this is, in fact, not the best software system for those countries.
Second, we from the North are not encouraging nonproprietary formats. While conducting research last year for the U.K. Commission on Intellectual Property Rights about the reasons for the still limited (though rapidly expanding) use of free and open-source software in the countries of the South, I often heard this response: “If this open-source software is so good why are so many organizations, companies, governments, and rich countries still hooked on proprietary software?” (At my university, the University of Kent, only Microsoft Windows is available for users.) If UNESCO and other organizations want to give at least equal billing and equal status to nonproprietary formats, they should begin the process themselves by contributing to better and more equitable global access to information and by helping to break the reliance of poorer countries on proprietary software.
See Chapter 6 of these Proceedings, “Overview of Legal Aspects in the European Union,” by Thomas Dreier.