WIPO's World Intellectual Property day ideal for discussing WIPO failures

Each year WIPO declares April 26'th as their "World Intellectual Property Day", and I consider this to be an ideal time to hilight the harm that WIPO's narrow-minded policies cause to creativity and other human rights documented within the UN's Universal Declaration of Human Rights.

Some lawyers and economists will suggest that property is an ideal tool to allocate scarce resources, but refuse to discuss is the impact of applying property law to something which is not scarce. In this case it is government intervening in the marketplace to create artificial scarcity, something that should be carried out very carefully and with adequate analysis. Talking about copyright and patents as a form of "property" is a matter of putting the cart before the horse, when we really must maintain focus on the intent of the policy. In terms of the mandate of WIPO that would be the two parts of UN UDHR Article 27:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

This article should lead WIPO to have balance in their policy between both aspects of the article, as expressed in limitations and exceptions to copyright and patent law. Unfortunately WIPO has been very slow in moving forward with treaties to codify limitations and exceptions.

For those narrowly focused on the second part of the article, the fact is that this artificial government created scarcity is to creativity like water is to humans: too little and you dehydrate and die, too much and you drown and die. WIPO's one-track mindedness has lead them to misunderstand this, and they continue to throw water at already drawing creators.

We must continuously analyze whether, and how much, the application of artificial scarcity to creativity gives us the intended results. As technology and business models change, so must the legal framework which should enable creators to harness a full spectrum of business models. The law should never follow WIPO's narrow thinking of falsely believing that a single business method can ever protect "the moral and material interests resulting from any scientific, literary or artistic production".

Most offensive in recent years is WIPOs encroachment on other rights. For instance, technological measures which have appeared in recent treaties are not the subject matter of Article 27(2) but a matter of article 17 (property rights). As discussed elsewhere, "copy control" is a marketing term and what we have in fact is computer control. What is being proposed is applying non-owner locks to devices which infringe the rights of the owners of these devices, and to put encryption on content which ties the ability to access content to the use of infringing devices. As I detailed in my Bill C-11 brief, one is a direct infringement of property rights, and the other is a contributory infringement. While both of these activities should be clearly illegal as a matter of government protecting property rights described in the UN UDHR, it is quite unfortunate that a UN agency like WIPO has been at the forefront of attacking these rights.

Once the property rights of technology owners is infringed, the infringement of other rights will follow. As more of our lives are intermediated with technology, more personal information and communications will be carried out with these devices. Protecting the property rights of technology owners may become more important in the future than protecting the property rights of home owners, where peoples rights are violated even if nothing is "stolen" from the property.