As noted above, IPR issues on the Internet were excluded from the Tunis Agenda, on the grounds that they fall within the purview of other existing international organisations such as WIPO and the WTO (World Trade Organization). In practice however, it will be seen that this has not altogether excluded them from consideration by the IGF.
WIPO administers the principal intellectual property conventions, which include the Berne Convention regarding copyright,174the Paris Convention regarding patents, trademarks and
registered designs,175and the Rome Convention also regarding copyright.176The WIPO Copy-
166. ASTA, Technology and Policy Proposal (2004) 167. See http://www.maawg.org/.
168. See http://www.irtf.org/charter?gtype=rg&group=asrg.
169. The most popular being Spam Assassin, see http://spamassassin.apache.org/.
170. The most popular being Symantec Brightmail, see http://www.symantec.com/business/products/ overview.jsp?pcid=2242&pvid=835_1.
171. For a list, see http://www.spambouncer.org/reference/blocklists.shtml. 172. See http://www.domain-assurance.org/.
173. See http://www.ietf.org/html.charters/dkim-charter.html.
174. Berne Convention for the Protection of Literary and Artistic Works, 9 Sep 1886, as revised 13 Nov 1908, completed 20 Mar 1914, revised 2 Jun 1928 and revised 26 Jun 1948, 1969 ATS No 13 (entry into force for Australia 1 Jun 1969)
175. Paris Convention for the Protection of Industrial Property, 20 Mar 1883, as revised 14 Dec 1900, 2 Jun 1911, 6 Nov 1925, 2 Jun 1934, 31 Oct 1958, and 14 Jul 1967, 1972 ATS No 12 (entry into force for Australia of substantive provisions 27 Sep 1975)
176. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 26 Oct 1961, 1992 ATS No 29 (Rome Convention) (entry into force for Australia 30 Sep 1992)
Chapter 2. Internet governance as it was right Treaty (WCT)177and the WIPO Performances & Phonograms Treaty (WPPT),178both
of which came into force in 2002, update these earlier instruments in light of new digital technologies including the Internet. Australia is not a signatory to these WIPO treaties, but its Copyright Amendment (Digital Agenda) Act 2000 (Cth) amendments to the Copyright Act 1968 (Cth) are consistent with them.
Amongst the changes introduced by the Copyright Amendment (Digital Agenda) Act most relevant to the Internet were to bestow on copyright owners a new exclusive right to commu- nicate works to the public (eg by making electronic copies or uploading them to an online repository), and allowing temporary reproductions of copyright works made automatically in the course of accessing them online (for example, when a user’s Web browser caches a copy of a site it accesses to disk).
WIPO was also of course instrumental in drafting the UDRP by which trademark rights could more easily be enforced against domain name registrants (this was backed up in the United States by domestic legislation179that enhanced trademark owners’ rights against domain name
registrants still further). It is less commonly known that in 2001 WIPO proposed new rights to domain names, such as extending protection to the names and acronyms of intergovernmental organisations and to the official long and short names of countries.180 It is fair to say that
these recommendations were in advance of public or political consensus on the issues raised, and no country has adopted them into law.
The other intergovernmental organisation referred to above in respect of its contribution to IPR law is the WTO, whose TRIPS convention181 covers copyright and industrial property
(eg patents, trademarks and registered designs). It largely incorporates the substantive con- tent of the WIPO-administered conventions, but with the important difference that it treats non-compliance as a barrier to trade, and allows the WTO to impose sanctions on member countries in breach. It also provides for the resolution of disputes between nations through the WTO.
Numerous private sector and civil society organisations have played a significant role in public policy governance of IPR on the Internet. Perhaps the most significant has been that of the music industry as often represented by the RIAA (and in Australia by APRA, the Australian
177. WIPO Copyright Treaty, 20 Dec 1996
178. WIPO Performances and Phonograms Treaty, 20 Dec 1996
179. Anticybersquatting Protection Act 1999 (US) 113 Stat 1501, Public Law 106-113
180. WIPO, Joint Recommendation Concerning the Protection of Marks and Other Industrial Property Rights in Signs on the Internet (2001)
181. Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 Apr 1994, 1995 ATS No 38 (entry into force for Australia 19 May 1995)
Chapter 2. Internet governance as it was
Performers Rights Association), and the motion picture industry as often represented by the Motion Picture Association of America (MPAA).
One of the biggest challenges posed to these IPR owners by the Internet has been the preva- lence of the exchange of copyright music, software and video, often using P2P technology. The music and motion picture industries have used the force of domestic law against those involved at all levels: the authors of file sharing software,182those who publish cracks for DRM (Digi-
tal Rights Management) or copy-protection technologies,183Internet Service Providers,184and
end users.185
The same industries were also strong campaigners for the passage of the United States Digital Millennium Copyright Act (DMCA)186 which provides a streamlined process for the resolu-
tion of disputes between those who are (or claim to be) copyright owners, and ISPs who host allegedly infringing content. They also campaigned for the extension of that regime to Australia through the Australia–United States Fair Trade Agreement (FTA),187 pursuant to
which further reforms to the Copyright Act 1968 were passed in 2004. In addition to provid- ing a DMCA-like safe harbour scheme for ISPs, these amendments also extended the term of copyright protection from 50 years from the date of the author’s death (or from the date of first publication in the case of a corporate author), to at least 70 years.188
On the other side of the coin, there are bodies which oppose the extension of IPRs over Internet activities, such as the EFF189and its Australian counterpart, the EFA.190There are
also organisations such as Creative Commons, and the FSF that seek to subvert the dominance of the IPR paradigm, through facilitating the release of copyright works on the Internet under free licences, some of which licences are designed to be “viral” or self-perpetuating in adaptations of the works.191
182. MGM v Grokster (2004) 380 F 3d 1154
183. The most celebrated being the DeCSS crack for the Content Scrambling System (CSS) used on DVD (Digital Versatile Discs): Universal City Studios Inc v Reimerdes (2000) 111 F.Supp.2d 294. Taken to an extreme, in 2007 the licensor of the Advanced Access Content System (AACS) began to issue take-down demands to those publishing a hexadecimal number—09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0—which with the appropriate software could be used to circumvent copy protection on high definition DVDs: see http://www. chillingeffects.org/notice.cgi?sID=3218.
184. RIAA v Verizon Internet Services (2003) 351 F 3d 1229, and for an early perspective see Malcolm, Jeremy M, Opinion: APRA v Telstra (1998).
185. Cassavoy, Liane, Music Labels Declare War on File Swappers (2003)
186. Digital Millennium Copyright Act 1998 (US) 112 Stat 2860, Public Law 105-304
187. See eg the submission of ARIA (the Australian Recording Industry Association) submission to the Senate enquiry on the FTA at http://www.aph.gov.au/Senate/committee/freetrade_ctte/submissions/sub133.pdf. 188. See Malcolm, Jeremy M, Dark Shadows of the Australia-United States Free Trade Agreement (2004). 189. See http://www.eff.org/.
190. See http://www.efa.org.au/. 191. See Section 4.2.4.4.
Chapter 2. Internet governance as it was These interests have also sought to build representation within WIPO, through their adoption in September 2007 of a “Development Agenda” for the organisation, which includes amongst its recommendations the preservation of the public domain and the exchange of experiences on open collaborative projects.192