Two weeks ago, the Chinese delegation at the World Intellectual Property Organization (WIPO) rejected seven Wikimedia chapters from being accredited as Permanent Observers. The countries supporting China’s decision reportedly include Tajikistan, Pakistan, Venezuela, Zimbabwe, Bolivia, Nicaragua, Kyrgyzstan, Bolivia, Russia, Iran, and Algeria. With this decision, the Wikimedia chapters of France, Argentina, Germany, Italy, South Africa, Sweden, and Switzerland do not have a Permanent Observer’s seat at WIPO’s negotiating table.
Established in 1967, the World Intellectual Property Organization (WIPO) is a self-funded agency of the United Nations. Comprising 193 Member States, it deliberates on global standards for intellectual property and copyright policy.
However, this isn’t the first time China has blocked Wikimedia chapters, or its parent organisation the Wikimedia Foundation, from Permanent Observer status at WIPO. As recently as May 2022, China denied ad hoc observer status to six other Wikimedia chapters at WIPO’s Standing Committee on Copyright and Related Rights (SCCR). In 2020 and 2021, China blocked the Wikimedia Foundation’s application for observer status as well.
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The reason cited by China over the years and this year: ‘the affiliated websites of the WMF [Wikimedia Foundation] contained a large amount of content and misinformation that ran counter to the One-China principle. The delegation hoped that all parties [present at WIPO] would continue to observe this principle, when discussing the issue.’ What this implies: the Wikimedia websites host ‘misinformation’ on Taiwan, the island territory hugging mainland China’s eastern coast. This information possibly challenges the Chinese government’s decades-long belief that there is only legitimate ‘One China’—and truant, secessionist Taiwan is an inalienable part of it.
“Our mission advocates for the right to participate in creating, consuming and sharing reliable knowledge and information [online], and we see that as directly connected to rights to education, freedom of expression, and the United Nations’ Sustainable Development Goals as well,” explains Amanda Keton, General Counsel for the Wikimedia Foundation in conversation with MediaNama. “Leaving out this perspective risks a lot in terms of really securing those fundamental human rights at WIPO and on the Internet.”
Why it matters: China’s actions fall in line with its growth as a technologically-advanced global power. Its ability to influence smaller, developing countries to support its domestic censorship policies online could critically impact the nature of discussions that take place at WIPO. This is important because WIPO lies at the forefront of determining global copyright standards—as well as the exemptions to them. It is these exemptions that allow us, as users of the Internet, to freely access knowledge and speech online, rights which fall under the fundamental right to speech in many jurisdictions. However, these ‘limitations’ to copyright enforcement are hard-earned—and are often championed by a variety of civil society organisations observing and influencing proceedings at WIPO. Regardless of the criticisms surrounding Wikimedia and its chapters, blocking them leaves out a powerful lobby for online access to knowledge at the international level.
China Incident Animates ‘True’ Nexus Between Copyright and Censorship
‘That China is using these reasons to block the Foundation and the chapters impinges on the free exchange of ideas at WIPO. It’s quite a heavy-handed kind of censorship,’ says Thiru Balasubramaniam, Geneva Representative of Knowledge Ecology International, an organisation working towards reforming knowledge management globally.
‘It definitely affects the quality and inclusivity of discussions at WIPO, because you have arguably one of the largest volunteer-driven projects on the Internet being prevented from being heard and participating in these discussions,’ adds Anubha Sinha, Senior Researcher at the Centre for Internet and Society, who tracks and attends WIPO proceedings. ‘The project represents volunteers working to publish more information in the public domain, to make it available to everyone. It’s not just about Wikimedia chapters or the Wikimedia Foundation, but about a larger issue too—people like us who depend on their work to access information and knowledge freely online.’
The impact of the blocking—and its potential harms—have to be understood against the backdrop of the copyright regime operating in the digital age. This regime presents challenges to speech online too and is often challenged by civil society organisations.
‘Copyright is explicitly linked to human rights issues because the basis of it emerges from the most important right in most jurisdictions: the right to free speech,’ says a senior policy expert on international copyright policies, in conversation with MediaNama. ‘The precondition to free speech that is made obvious in most international jurisdictions is that there has to be a right to access speech. A parallel is that of a baby: there is no way it can learn to speak unless it first has access to speech. Similarly, as a modern citizen on the planet, you cannot really speak unless you have access to sufficient amounts of speech.’
And so, the ‘China incident becomes interesting in all kinds of ways because it animates, perhaps crudely but very unmistakably, the nexus that has always existed between censorship and copyright [violating the right to speech and expression online],’ notes Prashant Iyengar, a legal scholar based at Columbia University. ‘It’s very rare that we get to see it function in its “true form” like this.’
How Has Copyright Impacted the Internet—And How Do Civil Society Organisations Help Us Access More Information On the Internet?
‘There’s no doubt that copyright has always influenced, or rather shaped, how information or knowledge is produced and disseminated,’ says Sinha. ‘Once the Internet became the pervasive medium to exchange and distribute knowledge and information, it was only natural for copyright policy to start impacting the way information was circulated over it.’
However, as time progressed, a copyright regime supposedly designed to remunerate creators for their work ended up curtailing the freedoms of the larger public instead—especially in the Internet Age. There’s a reason the rise of the Internet coincided with the explosion of piracy (and piracy-related lawsuits).
‘In the history of copyright, things have mostly swung in favour of two parties: the creator and, more importantly, the rights holder,’ the policy expert explains. ‘In our modern-day scenario, the rights holder is usually the large corporation. Thanks to these two stakeholders, a maximalist agenda has crept into copyright regimes over the years, one that reinforces and deepens knowledge inequalities across the world. Today, most of the ordinary people you encounter are only able to access copyrighted works online—tools that they need for a full and complete life—by acts of piracy or copyright infringement. That itself demonstrates the serious problems of the current regime [and who it favours]: the fact that you and I perhaps don’t know anybody that lives their life in complete compliance with copyright law.’
Perhaps this is why discussions on limitations and exceptions regularly happen at WIPO—these provisions allow members of the global community to use copyrighted content ‘without the authorization of the rightsholder and with or without payment of compensation.’ Civil society organisations observing WIPO proceedings have had a particularly influential role in making the Internet’s information more accessible to its users. ‘
‘With observer status, you can’t vote. But you can inform debates, speak, and meet delegates,’ says Balasubramaniam. ‘Civil society organisations also bring two critical things to the table,’ explains the policy expert. ‘The first is evidence, whether quantitative or anecdotal, on why certain exemptions to copyright laws may be necessary. Secondly, they bring legal arguments and contribute to the development of copyright law at this multistakeholder forum. They do have the power to leverage positive outcomes at WIPO—the point of view of a non-profit organisation usually takes effect when a Member State or regional bloc puts their weight behind it.’
‘The Internet Treaties developed in the 1990s and the Marrakesh Treaty of 2013 are examples of the normative work that goes on at WIPO,’ recalls Balasubramaniam. ‘Much of this work was brought about in consultation with civil society organisations and rights-based organisations participating at WIPO.’ A significant step forward for disability rights, the Marrakesh Treaty, made it easier for ‘blind, visually impaired and print disabled people’ to access copyrighted materials, and reproduce them in accessible formats for these groups without violating copyright laws. The Internet Treaties prevent the unauthorised use of copyrighted material—and are believed to be useful for developing countries attempting to grow and protect their knowledge in an unequal, predatory international system. They also allow signatories to develop their own limitations and exceptions to copyrighted content online, to ‘maintain a fair balance of interests between the owners of rights and the general public.’
‘WIPO can claim credit for a few recent limitations and exceptions to copyright that open up our access to knowledge,’ says Iyengar. ‘These are policy objectives that industries, and increasingly nation-states, have little incentive to implement. What these developments especially animate is that what happens in WIPO today may not affect people immediately today, but it affects the future possibilities of our freedom of speech, our creative industry. Under the guise of these extremely technical-sounding rules on copyrights and patents and trademarks, what they’re really doing is shaping the boundaries of our speech online. That’s something you can’t afford to be inattentive to.’
Wikimedia’s own experiences of navigating copyright may provide useful insight in such discussions.
‘It’s hard to think of a population of people who encounter copyright rules and laws as frequently as Wikimedia volunteers,’ says Keton. ‘Many of them are complying with Wikimedia’s policies and principles and also thinking in the context of the regulatory regime of the place they live in. That’s because navigating these regulations are fundamental to the work that we do, they’re directly connected to our mission to make information freely available to the world. They’re really the closest observers of how evolving intellectual property laws will affect the work we do to improve access to knowledge across our projects. This is a valuable perspective that could be helpful for other WIPO members to really understand how individual citizens think about and interact with intellectual property rules on a daily basis.’
‘The various projects that the Wikimedia Foundation runs all involve essential freedoms such as the quotation right,’ says Sinha. ‘So, a lot of the Foundation’s work clearly depends on a balanced copyright policy. This not only protects the interests of private rights holders, but protects the right of ordinary users to access this information freely.’
‘I don’t carry a brief for Wikimedia, there’s enough to critique them about as well,’ clarifies Iyengar. ‘But, if we seek a future where international IP is not going to be exclusively dictated by large media and patent industries and trademark industries, then organisations like Wikimedia have to be shoehorned in, somehow. They need to find a seat at the table. Or, at least an ear at the door, as it was in this case.’
Is There More to China’s Blocking Than Meets the Eye?
The journalism on WIPO discussions and China’s role in blocking Wikimedia chapters and the Wikimedia Foundation has been sparse over the past few years. Yet, when articles do crop up, China’s actions at international fora are always squarely understood through the prism of ‘geopolitics’—and hard-nosed political calculations.
For example, reports state that these actions are spurred by the government’s anxieties over Taiwan. This is part of the rising power’s consistent attempts to insert its domestic interests, and ‘undermine’ Taiwan, at multilateral decision-making bodies. At times, its moves are interpreted as ‘resisting Western values’. Sometimes they even serve as mild payback to the United States—especially after its candidate for WIPO’s Director General candidate defeated China’s a few years ago. That the likes of Pakistan, Iran, and Russia have supported China’s blocking during these meetings comes as no surprise to some commentators—after all, these are ‘illiberal regimes’ too.
Then there are the countries that support the organisation. For example, whether this year or the last, the United States, the European Union, and several other Western countries have openly supported the applications of the Foundation and its chapters. ‘The WMF’s observer status should be decided on the merits of its application and its ability to contribute to WIPO discussions on IP issues, which it has proven,’ read a statement by America last year. The neat binaries drawn by some media commentators appear true here—WIPO proceedings reflect a simple dichotomy between the West and ‘everyone else’.
‘However, just because countries have voiced their support for the Foundation or the chapters, it doesn’t mean that they support substantive lawmaking on improving access to knowledge at WIPO-SCCR,’ reminds Sinha. Simplistic geopolitical explanations of WIPO discussions, even if true, force realpolitik onto a forum where interests are advanced in much more nuanced ways. This limits the ways in which negotiations at WIPO can be understood and how they coalesce to impact access to knowledge online.
For example, a country’s technological and industrial advancement often appears to accompany a less flexible stance on copyright—and more companies sign up to these views to preserve their own interests. Sinha’s remarks bear special credence for those worried about the future of the ‘free’ world now that China is flexing its muscle at WIPO.
‘Until the 2010s, China was relatively pro access to knowledge,’ recalls the policy expert. ‘This bears many parallels to the first few centuries of American copyright history. America was relatively on the side of access to knowledge because it was developing its domestic industry,’ explains the policy expert. ‘The United States used to pirate texts. 100 years down the line, America established its industries and became a net exporter of copyrighted works versus a net importer of copyrighted works. It then shifted its position from a country that pushed for exceptions and limitations to the copyright regime, to one that wanted the regime to have the maximum protections and rights for creators and rights holders. We see this similarly unfolding in China. As long as it was a net importer of intellectual property, it was much more balanced in its approach to all forms of copyright. And then once its own patent portfolio became bigger than everybody else’s, particularly in the context of 5G technology, it took a u-turn, just like the USA did all those years ago.’
In 2019, China became the top filer of international patents at WIPO’s Patent Cooperation Treaty (PCT) System, filing 58,990 applications. This dislodged the United States from its 44-year-reign as the top patent filer globally. According to WIPO, over the past ten years, China has filed ‘389,571 patents in the area of AI, accounting for 74.7 percent [sic] of the global total and ranking the first in the world.’ This rapid technological advancement may explain the kind of support it received from developing countries as it blocked the Foundation and chapters—even as that support comes at the cost of speech at WIPO and, potentially, larger access to information online.
‘It’s fairly simple to predict how a country will determine its stance at WIPO: it depends on whether they are net importers or exporters of IP. That answer is then easily overlaid on whether they are developing or developed countries,’ concludes the policy expert. ‘The negotiations that take place at these fora are highly asymmetric. Poorer countries may end up supporting a position of a powerful, copyright maximalist country, not because they’re communists or socialists or capitalists, but because they want access to that country’s markets and capital.’
What’s Next for Copyright Policy, Access to Knowledge, and Wikimedia?
Given the many critiques on modern, maximalist copyright regimes, developing alternative frameworks that address these deficiencies appears much-needed. However, a standard regulatory perspective on copyright protection appears to persist—especially as regulators address other pressing harms of the digital age.
‘We can see this in intermediary liability discussions on how to hold platforms and users accountable,’ adds Sinha. ‘Conversations often revolve around taking down speech which is illegal. Part of the legal determination in such cases is driven by copyright. Platforms continue to develop automated systems to detect information that infringes on copyright and take it down – systems that don’t take into account whether the use falls under a copyright exemption.’ Such viewpoints are visible in the IT Rules, 2021, which govern digital intermediaries in India.
Discussions on intermediary liability are often solely couched in the language of protecting privacy and other rights of users of the Internet in an unequal world—in the meanwhile, fundamental conversations on free access to knowledge online are waylaid. Regulation that caters to these projects—or at the least, the values they stand for—may be the call of the hour.
‘Globally, I see a trend to treat intermediary liability as a panacea for all of the Internet’s problems—and I don’t think that’s the case,’ argues Keton. ‘That’s partly because regulators view these issues keeping in mind the big for-profit tech platform. We build regulation that applies to these huge platforms that have a very top-down approach to content moderation, and it’s possible that these laws don’t eventually consider community-led content moderation efforts. We need to preserve open knowledge projects, because it’s tremendously important that we have the ability as individual citizens to shape our experience on the Internet.’
In that light, embedding necessary discussions on geopolitics within the context of access to knowledge appears to be critical—especially if the public and civil society are serious about preserving hard-earned fundamental rights to speech, expression, and information online. ‘There’s a yawning boredom of late for anything that sounds like principle,’ remarks Iyengar. ‘Even 20 years ago, if you said freedom of speech is being affected, people would be slightly alarmed. Today, this violation of rights is part of our [collective] every day. The shock factor of principles being violated is diminished across the world, and in India, as well. You would much rather hear or write about geopolitics than about principle-based stances.’
That being said, Keton remains optimistic that the Foundation and its chapters will be able to convince WIPO Member States of the value they bring to the table. Just last week, the Wikimedia Foundation was granted accreditation by the UN Economic and Social Affairs Council, which works on issues of sustainable development. ‘We anticipate that at some point in the future, we are going to be welcomed with open arms into WIPO, because determining global policies on copyright, patents and trademarks has implications for all of us,’ Keton surmises.
The policy expert describes how this can happen. ‘There are already many NGOs, countries, and organisational delegations at WIPO that the Wikimedia Foundation or its chapters can easily tag on to,’ they reflect. ‘As a result, they can still be very powerful in terms of shaping access to knowledge [and raising awareness on their WIPO bids]. Let’s not forget, Wikipedia is a top-ten website worldwide by visitors. If they put a banner on their website, they get the globe’s attention.’
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