The OECD's division on information and communication policy has done a better job than all other intergovernmental organizations at taking multistakeholderism seriously. In its attempt to develop Internet policy principles for its High Level Meeting on the Internet Economy in Paris this week, it fostered robust discussions among its governmental delegations, the Business and Industry Advisory Committee (BIAC), the Civil Society Information Society Advisory Council (CSISAC), the Internet Technical Community Advisory Committee (ITAC) and its own Secretariat. Each groups' views were taken seriously and had a major impact on the outcome.
Today civil society representatives announced that they could not endorse the final product, the OECD Communiqué on Internet Policy-making
principles. They were the only group to defect. CSISAC believes that certain aspects of the Communiqué could be used to undermine online freedom of expression, freedom of information,
the right to privacy and innovation on the Internet. I participated in these discussions as an advisor to the CS delegates and concurred with this decision.
The main point of disagreement was intellectual property protection and whether Internet service providers should be pushed to become more responsible for policing the network on copyright holders behalf. There is a lot of good language in the OECD principles. But most of the good stuff describes principles or situations that are already in place. Conversely, the bad stuff describes changes in current Internet governance practices that would nudge things toward more control. Therefore, the overall effect of the principles would be to legitimize moving things in the wrong direction, without making any clear advances in the direction of greater freedom and stronger protection of individual rights and an open internet.
Civil society members all agreed that the statement tends to put too much emphasis on intellectual property enforcement. That problem, however, is partially ameliorated by language which stresses appropriate constraints on IPR. The real problem with the Communique is its apparent endorsement of efforts to get ISPs to police the network:
“Sound Internet policy should encompass norms of responsibility and appropriate measures that enable private sector co-operation and voluntary measures for the protection of intellectual property. Appropriate measures include lawful steps to address and deter infringement, and accord full respect to users’ and stakeholders’ rights and fair process. In keeping with the multi-stakeholder processes set out in this document., all parties have a role to play, including individuals, providers, intermediaries, and judicial authorities.”
This mushy language endorses greater responsibility by internet intermediaries for IPR enforcement. While objectionable, it was not quite enought to “tip” us into rejection. But in the “Limit intermediary liability” principle, real damage has been done. This is no longer a principle about how and why intermediary liability should be limited, but about how it should be expanded. The second sentence (“Internet intermediaries, like other stakeholders, can and do play an important role by addressing and deterring illegal activity, fraud and misleading and unfair practices conducted over their networks and services as well as advancing economic growth.”) completely undermines the meaning and intent of the first and third sentences, which it is sandwiched between. The next sentences basically describe ways governments can pressure intermediaries to take on more responsibility. Given that a battle over intermediary responsibility has been fought in Europe and elsewhere for some time now, with those advocating greater responsibility usually on the losing side of legislation and litigation, it would be pretty shocking for the OECD to endorse moving in that direction. It was actually this section, not the IPR/Creativity one, that convinced me not to support the OECD communique.
CSISAC is a new part of OECD. Some may view its refusal to endorse the Communique as a “failure” of multi-stakeholder particiation, but the opposite is really true. CSISAC's principled stance makes the point that getting a seat at the table does not mean becoming acquiescent or unprincipled. Let's hope that OECD and the governmental delegations understand that and continue to negotiate as peers going forward.
The fact of the matter is that there is no consensus on two key
principles in the OECD communique: 1) the role of IPR protection and 2) the
limits of intermediary responsibility. Whether or not the OECD principles
will do any damage in national and international policy making, it does no good to pretend that there is a consensus at the principle level
when, clearly, there is not.