OECD Supports Making ISPs Copyright Cops

On the whole, the OECD has been pretty good about recognizing both the importance of freedom and openness of communications online and how certain industries have sought to use questionable claims and stats to push for protectionism. So, earlier this week, when the OECD put together a statement on “principles for internet policy-making,” people hoped that it would follow along with the UN in focusing on protecting civil rights of individuals… not protecting outdated business models of certain companies.

And yet… it quickly came out that the OECD was considering dangerous language in the principles, seeking to cut back on important safe harbors to protect against misguided third party liability. When the draft language came out, nearly all of the “civil society” (i.e., consumer rights) groups that were a part of the discussion stated publicly that they could not endorse the language.

Tragically, the final document (pdf) did, in fact, keep the dangerous language.

To be sure, there are plenty of good things in the principles — and even many of the “titles” for the principles sound reasonable. For example, among the principles are things like:

  • Promote and protect the global free flow of information
  • Promote the open, distributed and interconnected nature of the Internet
  • Promote investment and competition in high speed networks and services
  • Promote and Enable the Cross-Border Delivery of Services
  • Develop capacities to bring publicly available, reliable data into the policy-making process
  • Ensure transparency, fair process, and accountability
  • Strengthen consistency and effectiveness in privacy protection at a global level
  • Maximise individual empowerment
  • Promote Creativity and Innovation

It’s tough to argue with most of those. But the devil is in the details. As KEI points out:

The Internet has actually demonstrated how much creativity is fostered without intellectual property, in fact despite IPR. Intellectual property is not a “driving” tool of the Internet. The Internet was NOT created by patents or copyright or trademark. Why would intellectual property be such a central theme for such a document? We concede that the Internet must not be a lawless “place” but this document where words such as “fair use, limitation and exception for users (it is “fixed” for the ISPs?), open source, free software, public domain, etc never appear, is wrong in tone and in its focus.

For example, just take a look at the very first item on the list: “Promote and protect the global free flow of information.” Sounds good. But nearly half of the paragraph to back that up isn’t about the global free flow of information, but about making sure there are ways to block the free flow of information:

While promoting the free flow of information, it is also essential for governments to work towards better protection of personal data, children online, consumers, intellectual property rights, and to address cybersecurity. In promoting the free flow of information governments should also respect fundamental rights.

Of course, countries that are blatantly censoring the internet, from China to Australia all claim that they’re working towards “better protection of children online” etc. Such a statement basically undermines the entire point of the principle. The document goes on in this nature, inserting “intellectual property” in all sorts of places it doesn’t belong. Perhaps most troubling is that there’s a section officially on limiting third party liability, which has a whopper in the middle. Basically it talks up the importance of limiting liability to service providers to encourage innovation… and then puts a huge “but not in the case of IP” in there:

Within this context governments may choose to… identify the appropriate circumstances under which Internet intermediaries could take steps to educate users, assist rights holders in enforcing their rights or reduce illegal content….

In other words, this document is a joke, which is why civil society deserted it. It seems clear that it presents some nice principles upfront, but then undermines them in the fine print.

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