Thank you Mr. Chairman. I would like to congratulate you on your election.

European Digital Rights (EDRi) represents 21 privacy and civil rights
organisations in 14 European countries.

We welcome the opportunity to speak on the proposal tabled by the United
States of America on Internet-based tools to facilitate development.

We share with the US the belief in the power of the Internet and
Internet-accessible information.

1.) IP enforcability is not one of the strengths of the Internet
environment. The protection of technological protection measures
established in the WIPO Internet treaties was an attempt to address this
challenge. Ten years later this attempt remains highly controversial,
and it has not been proven to work.

Two days ago during the informal lunchtime session, we heard from a
representative of IFPI that the online music market is finally taking
off. Where this is true, it not related to DRM at all. The largest
online music provider, Apple’s iTunes Music Store, allows users to write
standard Red Book audio CDs which then can be converted into formats
such as „ogg vorbis“ or „mp3“ with standard tools. Apple’s CEO Steve
Jobs has made public statements that his company has studied DRM closely
and came to the conclusion that DRM does not work. Therefore Apple
iTunes is instead using something that has been termed „Digital
Inconvenience Management“ (Richard Stallman).

The second largest service, eMusic.com with more than 1 million titles
from 3,800 independent record labels around the globe selling more than
3.5M songs per month, is not using any protection technology at all, but
is selling clean, unencumbered high-quality MP3s – which did not prevent
but rather enabled them to become number two in a difficult marketplace.

So the utility of DRM for turning the Internet into a market place and
therefore the WIPO strategy of protecting these protection measures is
not proven to have worked.

Conversely, the harm DRMs are causing to the interests of consumers and
industry alike has shown itself time and again. The recent Sony BMG
rootkit case is still fresh in our memories. Audio CDs marketed by that
company as part of their DRM have infected computers on at least half a
million networks with a rootkit, a tool that is typically used by
computer crackers. The dramatic example has shown that the design of
DRMs intended to control the use of works on the devices of users is
highly invasive. It leads to an expropriation of the users in the name
of property protection. DRM intends to secure control over IP but at the
price of the security of the users’ computers. US Assistant Secretary
Baker of Homeland Security directed at Sony BMG said: „It's very
important to remember that it's your intellectual property    it's not
your computer.“

2.) On the other hand, large-scale highly distributed collaboration is
one of the impressively proven strenghts of the Internet. What has been
termed „commons-based peer production“ (Yochai Benkler) has unleashed a
tremendous wealth of creativity in science, software, encyclopedias,
textbooks, music and many other areas. These knowledge resources are
freely accessible to people in the developing and the developed world
alike. The neccessary prerequisite for this collaboration is that the
rights to these jointly produced works are held in common. Without
licenses like the GNU GPL and Creative Commons each participant would
have to get permission from every other co-participant, meaning that
such collaborative projects would simply not exist.

From the US’s perspective that only strong IPRs and their enforcement
are safeguarding creative production, this seems counter-intuitive. But
since the sustained effect of free and open collaboration is undeniable,
the problem is not with the facts but with the intuition.

3.) Intellectual property protection is not a goal in itself. It is
indeed possible to overprotect IP. In its recent review of the EU
Database Directive, the European Commission concluded: „With respect to
‚non-original’ databases, the assumption that more and more layers of IP
protection means more innovation and growth appears not to hold up.“

5.) To conclude, I would like to say that we agree with the US proposal
on several points. Protection of IP is indeed only one factor that leads
to economic growth. Therefore in order to fulfil its mandate in a
balanced way, WIPO in its assistance to Member States should convey the
importance of the public domain as outlined in the Chilean proposal, the
dangers of overprotection, and the opportunities for education,
innovation and employment through commons licensing.

Economic and other surveys, stock-taking and impact assessments of WIPO
norm-setting and technical assistance are certainly useful, but also
these need to be balanced, taking dangers of legal, technical and
contractual overprotection into account – not only best but also worst
practices --, assisting Member States and their industries in finding
the adequate level of IP protection, so that they do not need to repeat
the devastating experience that Sony BMG had, and can reap the potential
of commons-base free and open collaboration that the Inernet holds for
economic and cultural development.

While we believe in the power of information and communications
technology, we disagree with the US that an online database can achieve
development. If WIPO itself is not working as a partnership in the
spirit of cooperation, then an Internet database or a new office will be
of no use in establishing one.