17 September 2002
up that shrink-wrap licence
group of academics, government representatives and businesspeople
this week came out with a set of recommendations which, if taken seriously
by governments around the world, could have a drastic effect on the
by the Commission on Intellectual Property Rights, would also have
a drastic effect on the lives of millions of people in the developing
All areas of intellectual property are addressed in the Commission's
report -- including health, as well as agricultural and genetic resources
and traditional knowledge. All these issues receive intermittent coverage
in the mainstream Western media (usually when some tribal uprising
threatens to affect a company's stock price) and most had an airing
at the recent summit on sustainable development in Johannesburg.
is less often talked about is the effect that technology has on development.
The opportunity is vast: it took centuries, if not a full millennium,
for books to reach an audience of millions, thereby spreading knowledge,
scholarship and development throughout the Western world. Television
accomplished a similar degree of penetration within decades, and the
Internet in a matter of a just few years.
the opportunity for developing nations to benefit from the spread
of the Internet and IT in general is huge -- witness India's software
industry -- Western corporate interests threaten to stymie the Internet
revolution in developing nations before it starts. This is why the
Commission's proposals are so interesting, and why they should be
the Commission's proposals would see the dreaded shrink-wrap contracts
that restrict what people can do with the software they buy declared
void; reverse engineering would be encouraged, as would government
sponsorship of open-source software; and copyright protection would
be significantly relaxed. For a start, that would mean a stop to the
spread of laws such as the Digital Millennium Copyright Act, which
makes it illegal in the US to circumvent copyright protection mechanisms,
even when the purpose of circumvention does not violate copyright
laws. That particularly heinous piece of legislation is currently
making its way to Europe in the form of a new directive which is likely
to be enacted in the national laws of member states next year.
the claims for protection of intellectual property in the West, copyright
laws have -- with a few exceptions like Bollywood -- failed to stimulate
the growth of copyright-protected industries in the developing world,
according to the Commission on IP Rights.
developing countries, especially the smaller ones, are net importers
of copyrighted materials and the main beneficiaries are foreign rights
holders, who are overwhelmingly based in rich Western nations.
treaties such as the Berne Convention call for flexibility in copyright
enforcement to allow some copying for personal educational use --
this is the "fair use" concept that all copyright laws contain.
Sadly, fair use is being eroded by media and software industries too
arrogant to believe that laws and international treaties apply to
Microsoft's Palladium platform, which is being developed for Digital
Rights Management. Like much e-book software currently available and
in development, Palladium enables to copyright holder to claim all
his or her (or its) rights, but removes the fair use rights of the
individual. Some products allow for an e-book, for instance, to be
'lent' from one PC or PDA to another, but this is hardly suitable
for educational use. And it is entirely unsatisfactory for many in
the developing world.
organisations are taking steps in the right direction. The extension
of free online access to academic journals for developing countries
is a good example of what can be achieved, says the Commission. There
is also of course Project Gutenberg, the brainchild of Michael Hart,
who in 1971 decided that it would be a really good idea if lots of
famous and important texts were freely available to everyone in the
many media organisations seem more infatuated with the idea of hacking
the PCs of anyone who dares to share their intellectual property with
a friend, than with aiding the spread of knowledge and art.
software and media industries in the West prefer to avoid the issue
of fair use rights in technology and if pressed, they will say there
is no easy solution. But according to the Commission on IP Rights
there is -- for the developing world at least: simply tip the scales
back in favour of individuals and institutions who need access to
software, e-books and so on for their development.
levels of copyright enforcement have had a major impact on the diffusion
of knowledge and knowledge products throughout the developing world,
according to the Commission. The Commission is unequivocal in its
assessment: stronger protection of and enforcement of international
copyright rules would have a damaging effect on the ability of developing
countries to develop their human resources and technological capacity.
of software is singled out as a major problem in developing countries.
It is, says the Commission, the principal reason for illicit copying.
I can believe that, having worked in a developing country for an NGO
that had no option but to break shrink-wrap licence agreements and
install a single piece of software on several Macs. Given the choice
between honouring a software shrink-wrap contract and producing information
on how to avoid typhoid to people living in some of the remotest regions
on earth, I would happily break the contract every time.
is exactly what the Commission on IP Rights recommends: governments
should declare many of the more onerous shrink-wrap licences void.
example of an onerous shrink-wrap licence is -- you guessed it --
the one that comes wrapped around Windows. Microsoft discovered just
what people think of its shrink-wrap licence when in July 2001 when
it faced widespread criticism for threatening legal action against
Australian charity PCs for Kids, which refurbished old computers for
disadvantaged children and was re-installing Windows without paying
a new licence fee to Microsoft (which at the time by the way had some
$40bn in cash in the bank).
Realising it was in for a public relations hiding, Microsoft relented
and said it would provide 150 packs of Windows 95 and ten refurbished
computers which it claimed was worth a total of AU$65,000 (£22,000)
as a "gesture of goodwill" to Australian charity organisations.
Just how ten old PCs and 150 copies of an outdated operating system
that is not even sold any more could possible be worth £22,000
is quite beyond me. Windows 95 was obsolete even in 2001; Microsoft
did not want to sell it any more, and if it had not provided these
would the charities have spent £22,000 minus the cost of ten
PCs on newer versions of Windows? Probably not.
Australia is not a developing nation, but this episode illustrates
the problem with the price of software in developing nations: that
many people -- and particularly those involved in development work,
such as NGOs -- simply cannot afford to buy it. Software that is illicitly
copied in such circumstances does not detract from the profits of
the software industry because the people doing the copying would never
be able to pay the real price of the software. The software company
concerned would simply have fewer users.
industry would do well to learn from other groups that provide services
to developing nations. Take the voluntary sector, which is an important
provider of skills to the developing world; a widely used rule of
thumb here is that professionals, who would command good salaries
in the West, are paid the same wage while working abroad as an average
teacher in the area where they work.
be refreshing to see a major software company with the courage to
price its products according to the means of the people in the area
in which the software is being sold. Of course, there are dangers
in such a system -- some of this cheap software would almost certainly
find its way back to rich nations, and that would indeed hurt the
profits of the company concerned. But then there are always those
shrink-wrap licences which can be used to curb such activity and which
are, of course, much more easily enforceable in rich nations.
it boils to is that necessity is the mother of invention. To date,
the invention has been no more than figuring out how to illicitly
copy software. But increasingly, invention is likely to mean developing
it takes software companies to wake up to the benefits they stand
to reap from taking a socially responsible attitude to the developing
world, the more developing nations and their nationals will turn to
open source. This is good for the people, but not so good for the
software companies who will only be able to look forward to more and
better cheap alternatives to their products.
© 2002 CNET Networks, Inc. All Rights Reserved.
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