Commission on Intellectual Property Rights






Study Paper 5


Study on Intellectual Property Rights, the Internet, and Copyright




Alan Story

Lecturer in Intellectual Property
Kent Law School, University of Kent
Canterbury, Kent




This report has been commissioned by the IPR Commission as a background paper.  The views expressed are those of the author and do not necessarily represent those of the Commission.


TABLE OF CONTENTS

Acknowledgements................................................................................ 	3
Executive Summary................................................................................	4
Preface...............................................................................................	8

Section 1 - Copyright and Poor/Least Developed Countries- An Overview of Some of the Issues.................................................................................................	11

Section 2 -  Copyright, Proprietary and Free/Open Source Software........................	19

Section 3 - Copyright and the Internet.........................................................	34 

Section 4 - Copyright, Education and Traditional Printed Materials: Some Examples from Sub-Saharan Africa................................................................................ 	47

Section 5 - Copyright and Intangible Indigenous Heritage/ Knowledge...................	64

Section 6 - Some Related Issues and Final Observations....................................	70

Bibliography.......................................................................................	73

Appendix 1 - Study on Intellectual Property Rights, the Internet, and Copyright (edited version).............................................................................................	79

Appendix 2- Response to questions on copyright and traditional printed materials. 
D.R. Nicholson, Copyright Services Librarian, University of the Witwatersrand, Johannesburg, South Africa.....................................................................	81

Appendix 3-  Proprietary and Open Source Software - Federico and Oscar Heinz (Fundación Vía Libre,  Argentina)..................................... ........................................	90 

Appendix 4 - International Telecommunications Union Report: Internet Indicators (October 2001) ................................................................................................	96

Appendix 5 - Algorithms in Africa, Wayne Marshall (Guinea)...........................	97

Acknowledgements 

Eki Yemisi Omorogbe, a PhD candidate at Kent Law School, was responsible for all of the interviews set up and conducted for Section 4 and some other related research questions; she did a first rate job in far-from-easy working conditions and her assistance was especially appreciated. 

Five other people deserve particular mention and thanks for their excellent assistance and interest in this project: Denise Nicholson (South Africa), Louise Szente (South Africa), Colin Darch (South  Africa), Federico Heinz (Argentina), Oscar Heinz ( Argentina). Special thanks to Peter Suber (USA) for his assistance in formulating some of the recommendations in Section 3.  
   
A number of people in a range of countries were interviewed by phone, filled in detailed e-mail questionnaires or commented on particular sections. These include Derek Wang
 (South Africa), Barbara Aronson (Switzerland), Wayne Marshall (Guinea),  Richard Stallman (USA), Tony Roberts (UK), Guido Sohne (Ghana), Pedro Buccellato ( South Africa), Enrique Chaparro (Argentina), Aldo Rosenberg (Argentina), Kwasi Boakye-Akyeampong (UK), Miguel de Icaza (USA),  George Sadowsky (USA), Renato Martini (Brazil), Glenda Myers ( South Africa), Philip Altbach ( USA), Sandy Norman (UK), Sol Picciotto (UK), Iane Smith (USA), Henry Watermeyer ( South Africa), Richard Crabbe (Ghana), Adri van As (South Africa), David Haworth (Germany), Rahul Matthan ( India). Thanks also to Peter Drahos( Australia) and Geoff Tansey (UK). 

John Wightman and Nick Jackson, colleagues at KLS, and Lorna Collopy, a PhD candidate at KLS, provided excellent suggestions and advice on several particular issues related to contract and property law.   

Tom Pengelly of the Commission on Intellectual Property Rights has given various research suggestions and helped in a variety of  ways as a colleague.    






Details for the author of this report: Alan Story, Kent Law School, University of Kent, Canterbury, Kent, UK, CT2 7NS  (Phone: +44 01227 823316; E-mail: acs3@ukc.ac.uk) 

Comments on this report are, of course, most welcome. 
 


Executive Summary

The report, totalling 100 pages, is divided into six sections, plus four appendices; it focuses primarily, though not exclusively, on the use of access to copyright-protected materials for educational purposes in the 50 poorest and least developed countries (LDCs) as identified by the World Trade Organisation.  

1 - Copyright and Poor/Least Developed Countries- An Overview of Some of the Issues (8 pgs.)  

Copyright should primarily serve the instrumentalist function of satisfying social goals and values: the creation, spread and sharing of knowledge and information, and public use and access. In the current era, and particularly with regard to LDCs, the presumptions of copyright are ripe for wholesale reconsideration. The biases and interests of developed countries are monopolising the international copyright agenda; the interests of LDCs have been ignored and, in any event, copyright, a Western concept, is not a prerequisite for the production of works in LDCs.
  
Industrialised countries, the main producers of copyright-protected works, have also been the nearly exclusive beneficiaries of expanded intellectual property protection. LDCs are primarily copyright users and have received minimal benefit. Increased copyright protection and enforcement in their countries, as mandated by the Agreement on Trade-Related Intellectual Property (TRIPS) and the Berne Convention, work primarily in the interests of developed countries and copyright holders, predominantly multi-national enterprises. Credible economic projections as to how increased copyright protection will assist LDCs are rare and particular. In the current conjuncture, greater copyright protection equals increased outflows of foreign currency from LDCs to developed countries.  

The Berne Convention, established in 1886, represents a legal "hangover" from the era of direct Western colonialism. Neither its reform nor its amendment is a practical possibility; rather, a global movement aiming for its repeal should be launched.  

The main tasks of the moment for least developing countries are to create exemptions to copyright restrictions, figure out creative way to avoid copyright presumptions, and improve affordable access to materials. And providing assistance to such endeavours is the main task of the developed world if they wish to help, rather than further dominate, such countries.  
  
2 - Copyright, Proprietary and Free/Open Source Software (15 pgs; 7 recommendations)

Copyright-protected proprietary software is not the answer for the computing needs of LDCs. Such software necessarily incurs very high licensing costs and encourages unauthorised uses, is inflexible, cannot be adapted to local needs, provides narrow training opportunities, creates further technology dependence, and raises anti-competitive practices outside the abilities of LDCs to curb. Free/open source software (F/OSS) by comparison, is a much-preferred alternative and represents a transfer of technology to LDCs that fosters, rather than limits, their development and access to and production of information, including on the Internet. But "switching" to F/OSS rather than "fighting" existing computer copyright laws is a more practical way forward.  

It is recommended that governments in developed countries should develop " a favourable bias" towards the expansion of F/OSS in LDCs, provide funds for the training of F/OSS technicians from LDCs, propose and fund an international conference of F/OSS developers to built links between various LDCs and developing countries, establish public-private partnerships with F/OSS developers and LDCs, lobby the World Bank, the IMF and other international agencies to stop tying aid to the use of proprietary software, and set a "good example" with their own increased use of F/OSS. 

3 - Copyright and the Internet (13 pgs; 8 recommendations)  

Internet access and usage still remains extremely low in LDCs compared to developed countries; copyright, however, is not the main barrier to access. Wider usage will not occur until improvements are made to basic communications infrastructure. In the longer term, the Internet could potentially bring great benefits to LDCs, such as the peer-to-peer creation and sharing of knowledge and information among all peoples of the world. What needs to be emphasised is that providing access in LDCs to copyright-protected online materials would result in neither lost revenues nor extra costs for rights holders in developed countries; further, because information is a non-rivalrous consumption good, there would be no diminished access by developed countries. 

Yet even before the "Internet revolution" arrives in LDCs, there are worrying examples of information blockages being established, such as the proliferation of user-pay passwords (or tollgates) and laws outlawing anti-encryption technologies. Moreover, the Internet also poses certain "threats" to LDCs which could further stratify the world into "information-haves" and "information-have-nots"; these dangers need to be appreciated. There are, however, a number of positive and free-access online initiatives that do exist and should be encouraged.       

It is recommended that all UK-hosted and Internet-based data sets of the type normally available to the public (e.g. through libraries) should remain open and free for fair dealing and educational purposes ( e.g. the making of non-profit educational course packs for students). The terms and conditions of digital licensing schemes should be subject to adjudication before national copyright tribunals. Governments in developed countries should provide financial assistance to groups that have created "best practice" models of free online access. Publications that are derived from government funded research should be freely available online. Governments in developed countries, as well as those in LDCs, should not enact similar legislation to the restrictive US Digital Millennium Copyright Act.       

4 - Copyright, Education and Traditional Printed Materials: Some examples from Sub-Saharan Africa (17 pgs; 8 recommendations)

While copyright restrictions are not the main barrier to accessing "hard copy" materials, which remain the dominant format of urgently needed educational materials in LDCs, they reinforce economic hurdles and create a further barrier by themselves. Examples include the need to pay copyright royalty fees for literacy campaigns and for anti-HIV/AIDS health education, as well as difficulties in translating materials into the wide range of African languages, in accessing materials for distance learning programmes, and in transferring rights from publishers in developed countries to their African counterparts.

The 1971 Appendix to the Berne Convention, itself a major compromise by LDCs and effectively gutted in earlier drafts by developed countries, especially the United Kingdom, was supposed to help remedy the global information divide. But the Appendix has been an abject failure and its narrow approach to copyright exemptions does not meet the information needs of LDCs. Nor should the Reproduction Rights Organisation (RRO) model be exported to LDCs as it creates further barriers, adds unnecessary transaction costs, and acts primarily as a revenue collector for rights holders in developed countries. 

Rather than creating even more restrictive copyright regimes, LDCs should seek to strengthen users' rights in their countries. For developed countries, assisting in dramatically improved access to printed materials in LDCs will require a minimum of sacrifices -- indeed often none - and, in fact, will be in their long-term interests.
 
It is recommended that a new country-wide licence system be created for LDCs that would allow free use of copyright-protected, hard copy works from developed countries for an initial 20-year period; all non-profit educational, research, public health, and related uses would be exempt from paying royalties. RROs are not required for such a system and LDCs should actively discourage the establishment of RROs in their own countries. World Intellectual Property Organisation (WIPO) activities in LDCs should stress both the "pros" and "cons" of copyright, not only the "pros" as is done at present. UK legislation governing one-sided, unfair contracts - such as those that require assignment of copyright to a publisher as a condition of publication - should be amended to cover intellectual property transfers. The criteria for determining what is a "developing country" should be reviewed; South Africa has a strong case for inclusion.

5 - Copyright &Intangible Indigenous Heritage/ Knowledge (6 pgs; 3 recommendations) 

Developed countries are regularly misappropriating, without consent, indigenous traditional knowledge from LDCs; this practice is a direct threat to the continued cultural survival of indigenous communities. Current legislation is wholly unsatisfactory and proposed model laws remain simply models. Copyright and its presumptions (e.g. requirement of originality and fixation) do not provide a vehicle for effective protection. 

Acting in consultation with indigenous communities, it is recommended that governments in developed countries should enact domestic legislation that would prohibit unauthorised importation of such items and assist in the creation of sui generis protection systems for indigenous traditional knowledge.   

6 - Some Related Issues and Final Observations (3 pgs) 

LDCs should not follow the example of the US and the EU which have increased the duration (term) of copyright. The possibilities of prosecuting anti-competitive copyright practices within LDCs seem slight. Concentrated and powerful western interest groups dominate the global copyright agenda and indeed, the whole field of copyright law and treaty making has been the subjected to regulatory capture by these groups. As a result, inflexible and one-sided copyright laws threaten to keep LDCs in a marginalised position and unable to benefit from a range of quite stunning technological developments in this area. 





Appendices ( 26 pgs ) 

Three lengthy appendices focus on:

a) the negative impact (e.g. for literacy programmes, for distributing anti-HIV/AIDS health materials) of existing copyright regimes on educational access to hard-copy materials in South Africa and LDCs ( D.R. Nicholson -Copyright Services Librarian, University of the Witwatersrand, Johannesburg, South Africa)

b) the range of problems that copyright-protected proprietary software creates for LDCs and why free/open source software is highly preferred (Federico and Oscar Heinz- Fundación Vía Libre,  Argentina) 

c) the dangers of exporting Western concepts of technology to countries such as Botswana and Uganda ( "Algorithms in Africa", Wayne Marshall -Guinea)

A fourth appendix provides October 2001 country-by-country statistics on PC and Internet usage (International Telecommunications Union Report). 

Preface 

1. Over the last five or so years, the establishment of the World Trade Organisation (WTO) and the signing of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS), as well as the greater interest shown by governments, NGOs, the media, academics, and others across the globe have given intellectual property, both domestically and internationally, a much greater visibility. Today, intellectual property is a growing site of conflicts and controversies as well as a new source of power and wealth due, in part, to its re-conceptualisation as a commodity of world trade and the enhanced profitability and access possibilities that digital technology has opened up. Yet, it is patent-related, rather than copyright-related, questions which have taken centre stage: the patenting of genes, biopiracy, patents on pharmaceuticals and related issues are flash points for governments and peoples of both the North and the South, including the poorest and least developed nations.1 The work and priorities of the UK's Commission on Intellectual Property Rights reflect this same focus. But as I have argued elsewhere (Story, 2002), copyright is "the sleeping giant" on the international intellectual property agenda, especially for the poor and least developed nations, and it is to the credit of the Commission that it has decided, after some deliberation, to commission a study on copyright issues. 

2.  This report takes an essentially instrumental approach to the purpose of copyright, that is, it views copyright as the legal allocation of private property rights by the state to serve a range of public purposes (Drahos). The subject matter, duration, and scope of copyright protection permitted and the related enforcement mechanisms --- which, it should never be forgotten, act as copyright restrictions for the rest of society, sometimes including the original creator --- should only be those which are necessary for the instrumental purpose of satisfying other values and goals: the creation of knowledge, the spread and sharing of knowledge, wider patterns of literacy, public access, and public use. Further, copyright, as an intangible   property right, expresses a power relationship between persons and represents not only the state's grant of sovereignty to a private person but also power over other people and future distributions of power and wealth (Cohen). " Information means power" may be a cliché, but it has particular resonance for the remit that the Commission has requested in the writing of this report. In the context of this research, these understandings mean that we must appreciate, quite specifically, how copyright (a right primarily held today by Western corporations and, much less so, by individuals in developed countries) can serve the varied goals of poor nations and poor communities within them, how copyright can impede the realisation of these goals, and what steps can be taken to reduce these negative effects; the latter will sometimes mean avoiding copyright restrictions or reconfiguring power relations among the various parties -- creators, rightholders, users, and governments -- within the overall "cycle" of copyright.
   
3.  There are a number of instrumental purposes that international copyright can conceivably serve and, in a brief report such as this, it is hardly possible to enumerate and canvass them all. As this report will examine the situation of copyright in poor and least developing nations and as improved education attainment is one of the leading, if not the leading, levers of economic and social development, particular emphasis is given here to the critical relationship between copyright and educational improvement and the global spread of knowledge more generally. Such a focused approach was also chosen given the time constraints within which this report was prepared.    

4. One commentator has recently written:
 
Intellectual property law as a whole seems ripe for wholesale reconsideration, both nationally and internationally. One might start with its fundamental premise: that the system of rights it establishes enhances the goals of desirable innovation, creativity, and the widest possible distribution of ideas, information, products and technology in the most efficient and, generally, best way. This premise is of course empirically unprovable, even if we all agree on what the "best way" means. It assumes that throwing a private property right around every activity with potential value in exchange and creating a market in such rights ultimately benefits not only the right-holders but also, in equal or at least reasonable measure, the communities of which they form part... (Vaver, 1997.)  

Those communities are more and more becoming --- or have the potential, technically, to become --- the global community and, although not the exclusive focus of this report, the denial of benefits resulting from a lack of access to ideas and information is demonstrable. The most recent International Telecommunication Union country-by-country statistics on access to the Internet and the use of PCs (see Appendix 4) shows how uneven is the global access to this wonderful technology. In the current situation, partially, though certainly not exclusively, due to copyright restrictions, "there is a kind of OPEC of knowledge in which a few rich nations [including the UK] have a great deal of control over how and where books are printed, the prices of printed materials, and the nature of the international exchange of knowledge." (Altbach) At various moments in this report, I have proposed various remedies for this highly unequal access, which is the predominate situation faced by all poor and least developed nations; existing remedies or more commonly, the absence of remedies, are, in particular, "ripe for wholesale reconsideration." 

5.  The Commission has requested that this study provide advice on both (i) national IP regimes and legislation in developing countries, (ii) the international framework of IP rules and agreements (See Appendix 1). At certain moments in this study, such advice is given. Yet, as soon as one recognises, to take one example, that the most recent revision to the Berne Convention, the leading international copyright convention, required more than two rancorous decades to complete --- with no resulting appreciable gains for poor and developing nations (see Sections 4 and 5) --- and that all changes to Berne (which included 148 countries as of 15 October 2001) require the unanimous consent of all signatories, proposing a "wish list" of possible changes and improvements to Berne seems of relatively limited practical use at the moment. The peoples of poor and least developed nations cannot wait another 20 years for improvements. Rather, this report particularly focuses on actions and steps that the United Kingdom government, including the Department for International Development (DIFD), could take --- if it has the intention and the political will --- to make meaningful, global improvements to access to knowledge, to education, and to inter-communications between the peoples of the world, the latter so obviously a priority given the current offensive against Afghanistan as a response to the events of 11 September in the US. In the same vein, it is recommended that other developed countries could take similar actions.        

6.  This study is entitled "Intellectual Property Rights, the Internet, and Copyright" and the initial terms of reference made little reference to copyright in traditional "hard copy" formats, such as books. The Commission has taken the correct position, I believe, in agreeing that any analysis of copyright in poor and developing countries must also look closely at copyright issues in traditional printed formats. Section 4 is devoted to a brief study of how such issues are currently being manifested in Sub-Saharan Africa. 

7.  Because copyright in poor and least developed countries is such an under-researched area of study and because "the real experts" in this field live precisely in such areas, it was necessary to conduct quite extensive research -- mostly via telephone interviews and e-mail questionnaires --- on several major questions. The co-operation that we received was truly outstanding and we were given a great deal of rich, "on the spot" material not available elsewhere. In several cases, it was impossible to attempt to summarise such responses in a sentence or two and instead, two longer appendices have been included. Appendix 5, "Algorithms in Africa" by Wayne Marshall, a UNIX computer programmer and technical consultant living in Guinea, West Africa, provides a particularly sensitive appreciation of the role of computers, the Internet and technical development schemes generally in least developed countries. 


Section 1 - Copyright and Poor/Least Developed Countries- An Overview of Some of the Issues and Impacts 

1.1   Countries included in this report 

The countries covered by this report include primarily those on the World Trade Organisation's recently issued list of the 50 least developed countries.2 On occasion, reference is also made to some "middle-ranked" (or developing) countries in South America, Africa and Asia where some similar economic, social, political (and copyright-related) conditions prevail, though recognising that important differences exist as well.

1.2	Rich countries are main IPR beneficiaries

Numerous studies have concluded that "... industrialised countries are the main beneficiaries of IPRs." (World Bank 2001). Several sets of recent statistics demonstrate the validity of this conclusion as well as the current paucity of intellectual properties within the least developed world. According to 1999 International Monetary Fund figures on the global trade in royalties and licences ( primarily derived from intellectual property), the US received a total of US$36.5 billion dollars on its global exports and had a net surplus of more than US$23 billion.(IMF) The UK was second, but trailed far behind with a surplus of US$900 million. No poor or even developing country had a surplus and, in fact, not a single poor country had any calculable intellectual property revenues whatsoever. But these IMF statistics do not distinguish between copyright and patent (or trade mark) revenues. Three other studies have shown that US "copyright industries" ( including movies, TV, home video, music, publishing and computer software) generate revenues that are, for example, five times the export revenues of the US drug and pharmaceutical sector and that the total foreign sales and exports of US copyright-protected products totalled $US79.85 billion in 1999. The overall value of 
"copyright industries" to the gross US domestic product has increased an astounding 360 per cent between 1977 and 1999 and currently totals more than US$460 billion. (Economists Incorporated, Valenti, The International Intellectual Property Alliance.) Such figures dwarf the total gross domestic product of all of the fifty least developed countries and indeed of numbers of such countries when aggregated.

 1.3   But will poor countries benefit? 
 
As "industrialised countries are the main beneficiaries of IPRs and given the challenges facing developing countries [let alone the 50 least developed countries], the former may find it in their interest to provide assistance to the poorest countries for the implementation of TRIPS." (emphasis added) Further, "TRIPS decidedly shifted the global of the game in favor of those countries." (World Bank, 2001) These conclusions are also uncontroversial. Expanding the scope of copyright protection/restrictions, increasing enforcement mechanisms, and setting in place the wider infrastructure of a "mature" copyright regime (e.g. the creation of collecting societies and rights organisations) within poor and least developed countries is, in at least one sense, in the interest of rich countries. Higher levels of copyright protection/restriction within poor countries definitely do offer significant market and profit opportunities for Western created and owned copyright works; China, which joined the WTO in early November 2001, is the most notable emerging market.(Of course, if such developments further exclude poor countries from the much heralded "information society" and make no appreciable difference, for example, in their levels of education or basic literacy, one can ask whether this is actually in the interest of rich countries in either the short- or long- term. As well, if overall income and literacy levels in such countries do not rise markedly, such markets will remain marginal as copyright users/consumers.) Yet, the central question we need to ask here is: how would the creation of such a "mature" copyright regime be in the interest of a Benin or a Bangladesh or the 48 other least developed countries? 

       Significantly, most conventional analyses of the relationship between expanded enforcement of intellectual property rights and growth prospects/ possibilities for the underdeveloped world focus almost exclusively on the supposed benefits of increased patent protection.3 To cite one example, a 21-page chapter in the World Bank's analysis of IPRs and developing countries devotes but a single paragraph to the potential growth prospects that expanded copyright protection might open up for such countries. (Indeed, one very much gets the feeling from reading this study that its authors concluded that they had to say something about copyright and economic development.) Some of the cases chosen - for example, how expanded copyright protection in neighbouring countries could assist the export prospects of Lebanon's film and television industry - are highly particular and difficult to generalise. And another example cited, how the establishment of professional collecting societies in Jamaica and Senegal might provide incentives for local musicians to record their music, overlooks the critical point that collecting societies and rights organisation even in such more developed countries as South Africa act principally as revenue collectors for foreign rights holders (Section 4.5). Indeed, a number of the world's least developed countries became signatories to the Berne Convention more than 25 years ago (e.g. Benin 1961, Chad 1971 ) and none have seen significant increases in their publishing industries or the level of copyright-protected works in subsequent decades. Finally, to cite an often-mentioned case, the United States did not recognise foreign copyrights for more than one hundred years after it was founded (and, in one sense, not until 1986 (Merges) ), based on the thoroughly understandable logic that the enforcement of foreign-held copyrights would primarily benefit non-US rights holders and that it was better to borrow without permission.

           The  research for this report did not find a single credible economic projection/model as to how increased copyright protection would significantly expand either economic development or usage within the least developed world  (or within the developed world) of copyright-protected materials produced by least developed countries in the current conjuncture. One recent proposed World Bank model/projection provides a negative example. At a June 2001 in Washington, D.C., the World Bank held a "Workshop on the Development of the Music Industry" and, after noting that this industry was currently not "a significant revenue earner" in Africa, a number of contributors suggested that the history of Nashville, Tennessee, home of the multi-billion dollar US country music recording industry, provided a good model for poor countries to emulate. They called it the " Nashville in Africa" project. As Paul Collier, director of the World Bank's Development Research Department explained:

You only need one or two real successes --- you only need a Nashville --- and you have transformed the export structure of an economy ( of most African states) away from primary commodity dependence and that will have major effects....The Nashville example is potent here in showing how a poor locality can be turned around. This is the sort of thing that can capture the politicians' imagination. (Collier, World Bank, June 2001). 

This approach may capture the imagination of certain politicians in least developed countries --- but then so does creating and outfitting a modern army--- but it hardly likely to capture the imagination of serious economic researchers. What is first overlooked by the proposed "Nashville in Africa" project is the fact that Nashville is located in the centre of the world's largest market for recorded music...which is hardly the case with a city in Senegal or Mail. Second, this simplistic notion of cross-cultural and cross-geographical industrial "transplantation" has been widely criticised in the international economics literature. Third, while it all very well to talk about the need to the establish collecting societies and a better music industry infrastructure in Africa ( and indeed there are some insightful comments in this report), there are no figures provided as to whom will primarily benefit if a sophisticated collecting society infrastructure was to be established in Africa : Western-based recording companies, such as EMI,4 operating either inside or outside Africa making money from African uses of their African and Western music within or local musicians and local companies.5 Finally, the World Bank session rather overstated the economic prosperity of Nashville and Tennessee.6  So again we need to ask: which countries will primarily benefit from expanded copyright protection?    

       As explained in Sections 2 and 4 in particular, copyright or the absence of copyright restrictions is not the main barrier to access or use of information --- let alone its production --- in such countries. As one interviewee put it, " when most schools across Africa do not have anywhere near enough books or a photocopier or even a single computer, copyright is not really an issue, I wish it was." (Darch) So the burden of proving that increased copyright protection, as envisaged and required by TRIPS, will be of demonstrable benefit to the poor and least developed countries remains with the  proponents of TRIPS. The main beneficiary will be rich nations who, not coincidentally, are the main supporters of TRIPS.

1.4   Reciprocity in international copyright relationships       

Conversely, and taking proprietary software as an example, strict enforcement of copyright laws in poor countries would, at least for the foreseeable future, dramatically decrease the already low computing capacity in such countries given that most computers there currently run on unauthorised software. Already scarce goods would be subjected to further state-created scarcity, the main economic effect/consequence of copyright laws. Nor would strict copyright protection of proprietary software stimulate its local creation by a locally owned and locally staffed software development industry. In fact, the structural and market model of Western-owned copyright-protected proprietary software directly discourages such development. The choices facing many well-trained software developers in the poorest countries are: a) to become an installer of Microsoft's Windows, b) to leave the country, c) to join into the rapidly burgeoning free/open source software movement. (Section 2 and Appendix 3)  If a copyright regime could be fashioned which gave copyright protection only (or even predominately) to locally created and produced works, increased level of copyright protection would potentially be a much more important catalyst for local economic development and potentially lead to a net benefit. Such a regime would, for example, rupture the current equation which means that increased copyright protection in poor countries = increased outflows of foreign currency to pay for the use of foreign produced works = further inequalities in the global balance of payments.7 But, of course, this model is most definitely not the model of international copyright regimes which, to give one example, the Motion Pictures Association of America had in mind when it became such a strong proponent, indeed active lobbyist, for the TRIPS agreement. TRIPS is overwhelmingly concerned with protecting existing markets and opening up new ones for the "copyright industries" of the developed world and, despite the trade enhancing rhetoric found in the preamble to TRIPS, it is not aimed at either the creation of new producers in poor countries or giving them new markets in the developed world. In the relationship between the developed and least developed worlds, the possibilities of actualising the reciprocity principle of international copyright law remain essentially a theoretical and rhetorical one. 
          In this regard, we need to emphasise a key distinction between international copyright and patent protection. When the poorest and least developed countries became signatories to both the Berne Convention and TRIPS (and today, the two are intertwined), they were agreeing to protect within their own national borders all copyrighted works produced essentially anywhere in the world for, in most cases, a term of the life of the author, plus 50 years. Patent law, by contrast, does not operate on the same principle; patent protection generally remains limited to a single (and sometimes regional) jurisdiction in most cases. The main point is this: the presumptions of existing international copyright regimes underscore what Cohen meant when he wrote that property laws determine "future distributions" of wealth. Both the highly uneven national levels of copyright-protected works (see section 1.2) and the structural and long-term "lock-in" effects of reciprocal copyright protection make a compelling case for creating and carving out, at least for the next 20 years, significant copyright exemptions for the least developed and developing countries. For example, the necessity of establishing a broad copyright and illiteracy exemption for the poorest nations is explored in Section 4. Other key exemptions are mentioned at various moment in this report and they reinforce the overall theme of this report: creating exemptions to copyright restrictions, figuring out creative way to avoid copyright presumptions, and improving affordable access are  the main tasks of the moment for the least developed world. And providing assistance to such endeavours is the main task of the developed world if they wish to help, rather than further dominate, such countries.    
             If such steps are neither theorised nor taken, the very first preamble to TRIPS - "desiring to reduce distortions...to international trade" will have no meaning in practice and, indeed, TRIPS will only further distort international trade, let alone income levels and levels of access to information and knowledge across our globe. As a South African entrant to an international intellectual property essay contest has written, 
Woe is the life of the modern day student living in 'Darkest Africa' for obviously we are still being kept in the slave quarters of the world. Harsh words? My friends, try and live in a society where such Acts as the Intellectual Property Acts of the world impedes your advancement in life." (Szente)   

1.5   Copyright as a Western concept    

Two mistaken assumptions ground much of the published analyses of copyright issues in the least developed world.  First, while access by such countries to knowledge, especially technical and scientific, produced in the developed world remains a key international goal, this does not mean that developed countries are the principal repository of 'knowledge' in the world or that the developing and least developed are somehow 'backward' and lacking in inventiveness and ideas (Gana). To think otherwise is a typical conceit of  developed countries and closely linked to the notion that, without copyright and strict copyright laws, the expression of ideas and creativity would be severely stifled or would cease altogether. Many of these countries already possess vibrant cultures and create a wide variety of expressions.  There are, for examples, hundreds of choirs in South Africa and their flourishing is completely unrelated to copyright protection (Darch interview). 

      Second, and in the same vein, it also needs to be appreciated that copyright, as a legal and philosophical concept, is the product of Western societal development at a particular historical moment and remains a foreign, indeed strange, concept in many other societies (Geller). For example, a number of societies, including indigenous societies, in the less developed world take a radically different approach as to "what constitutes property or what may be rightfully be the subject of private ownership" (Riley); such societies consider, for example, that the  "copying" and sharing of  expressions within a given community is a signal of respect and recognition, not of piracy or rip-off or the infringement of a private property right (Section 5). TRIPS thus is not only a trade agreement, it is also a multi-faceted project to export to all corners of the globe a particular set of values and presumptions about the need to "propertise" the expression of ideas and to universalise cultural and creative norms rooted in the developed world. 

1.6   The contradictory premises of copyright  

When examining international copyright regimes, policy makers and rights holders generally make several other assumptions: a) there is a set of core copyright doctrines that should be similarly followed by all nations (or at least by all WTO members) and are being followed by all developed countries; b) that "harmonisation" of copyright is unquestionably a fair and good thing. A full-length law review article (and here taking the US law review meaning of the phrase "full length" e.g. 500 footnotes) would be required to do justice to each of these matters. Briefly, here are a few overview conclusions: Far more than mere commodities of trade, let alone of international trade, writings, story telling, music, art, and other forms of expression are central to the cultures of all nations and peoples; these national cultures are, thankfully, not homogenous across the globe. Further, the meaning, use and protection of such expressions are also conceived of quite differently in different countries. To attempt to put in place an inflexible "one size fits all" regime for the encouragement, protection, and use of such expressions is an extremely fraught policy-making exercise. Although the developed countries expect less developed countries to apply some supposedly naturalised and universal copyright doctrine in basically the same way as the former do, what one discovers upon closer examination is that not only are there significantly different approaches to copyright among various developed countries, but that some national copyright regimes operate in blatant disregard of conventions to which they are signatories. In other words, national copyright regimes in developed countries are the product of quite different histories and, among other things, of the relative strength and bargaining/lobbying power of different groups and copyright industries.

           Although the US is a signatory to the Berne Convention, which requires quite sweeping protection of moral rights (Art. 6bis), the US provides only the most marginal statutory protection of moral rights...and then only for visual artists (The Visual Artists Rights Act ,1990.) That TRIPS specifically exempts the requirement that moral rights be protected (Art. 9 (1) ) is not the result of logic, but again of lobbying power. The possibilities of relying on a parody defence to copyright infringement are very different in France, Spain, and the US in comparison with the UK. Similarly, because of the historic strength of the US restaurant, hotel and "juke box" industries, the "juke box" exception in that country has long required the compulsory licensing of music.(US Copyright Act, s. 116) Yet when Lebanon recently considered the possibility of the compulsory licensing of computer software (Section 2), the US stated that such licensing contravened international copyright law. Equally, the UK's Copyright, Designs and Patents Act 1988 (CDPA 1988) is not the product of consistency or logic.8 As Porter wrote in an overview of the CDPA 1988, "copyright law is not derived from one overarching principle, but from the negotiation of a series of contradictory premises." (Porter) These contradictory premises need to be appreciated by both the developed and least developed worlds. 

            When, in Section 4 of this report, the history of the bargaining behind the Appendix to the Berne Convention is discussed, it becomes clear that it was not the logic articulated by developing countries which resulted in such limited achievements but rather their relative powerlessness (viz. a viz. the copyright industries of the developed world) to successfully negotiate a substantive change in the international copyright regime. In the same manner, if the least developed countries, concerned about the wholesale importation of Western values, for example through books, films, or via The Internet, wished to establish a cultural exemption to copyright ( Section 4), they could logically rely on the provisions of European Council Directive 89/552 (1989), the "Television Without Frontiers" Directive, as a precedent. Whether they would be successful is quite another matter. More importantly, unless developing and least developed countries create a strong oppositional coalition around copyright issues in coming years and articulate their own exemptions to serve their own needs ( e.g. an "illiteracy exemption" from copyright) the increasingly rapacious demands of the entertainment and software industries of the developed world will continue to dominate the international copyright agenda.9 What is a more important priority for our world as we begin a new century: outlawing circumvention devices for ebooks or allowing the tens of millions of illiterate peoples across the least developed world to read their first book?  

         As for the question of copyright harmonisation, the periodic review and amendment of regional and international laws and conventions has, without exception, always resulted in harmonisation with the highest existing standard protecting rights holders and....never in a lower one that would be of more benefit to users ( See, for example, the EC Harmonisation Directive). The duration is always increased, the scope of protection always widened. Hence, as poor countries are mainly users of copyright, their own national interests have repeatedly suffered from these harmonisation initiatives. Conversely, the US has given no intention that it favours the export of (or global  harmonisation) with its own somewhat more liberal "fair use" provisions for copyright users in other countries.10 Finally, in the case of the poorest and least developed countries, whatever international harmonisation occurred in the formulation of the Berne Convention took place at a time when most of them were the colonial outposts of various European countries and had no voice or input. 

1.7       Repealing the Berne Convention 

To conclude this overview: For the countries of the least developed world, the Berne Convention represents a legal hangover from the era of direct Western colonialism. The imposition of a highly restrictive regime ---and most commentators agree Berne is "highly restrictive" --- may have had a certain resonance in some parts of the world in 1886 when Victor Hugo and other authors of the day successfully lobbied for its creation. But in the current era, Berne is increasingly anachronistic and inflexible, especially for the least developed nations of the world and their own priorities (Section 4, Appendix 2). As was mentioned above, the overwhelming majority of such countries did not exist as independent countries when it was established. Moreover and unlike some other international agreements which were reformed in the post WW2/independence era of the 1950s and 1960s (see Section 4), Berne represents an unreconstructed 19th century international regime which, as was mentioned in the preface, cannot essentially be amended; the latest set of amendments took more than two decades and , at that,  represented mere tinkering. As "a minimum but no maximums" standards convention, Berne is, by its very nature,  protectionist as well as trade distorting, especially for countries that are predominantly copyright users rather than producers. If tariffs on trade were treated in the same fashion as increased duration laws and WIPO treaties and directives are treated, the WTO's dispute settlement mechanisms would rapidly become clogged. 

             Why, more specifically, is Berne anachronistic? It is the product of an era when authors, rather than large multi-national corporations, the "copyright industries" of the US and Europe, were the principal rights holders. And, of course, the digital and Internet eras, in which there are zero marginal costs for increased access and distribution, including to poor nations, were still more than 100 years in the future. Nor were the notions of intellectual property as a public good that is non-rivalrous in consumption fully appreciated in 1886, despite Thomas Jefferson's insight of almost 75 years earlier that "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me." In the era of the Internet, it simply does no harm whatsoever to a publisher from a developed country, for example Reed Elsevier, if a Mauritian student reads and uses an online article from a Reed Elsevier journal without paying for it. There are neither extra costs of production or distribution nor lost market opportunities; that student's library in Mauritius will, in all likelihood, be unable to afford a subscription to the hard copy version and the usually extra costs of a digital licence for the very same material (Section 3). We must break from the hegemony of the notion held by most publishers that all unpaid uses are illegal uses and represent lost sales. If this logic had prevailed in the 19th century, public libraries would never have been established. (Section 3.6) Finally, Berne is constructed from a romantic conception of authorship, which has not only been thoroughly discredited (Woodmansee) but has only marginal resonance within the cultures of the world's least developed peoples (Coombe, Section 5). As detailed in Section 4, the provisions of 1971 Appendix to the Berne Convention, said to be Berne's post-colonial reconstruction and a response to the "international crisis of copyright" in the 1960s 
(Johnson), have been a failure for poor countries. As Ricketson concludes, " it is hard to point to any obvious benefits that have flowed directly to developing countries from the adoption of the Appendix."11 Rather than attempting to reform or amend Berne or further building on its creaking foundations or philosophy, as was done in the 1996 WIPO Copyright Treaty, what is required is the launch of a global movement to work for the repeal of the Berne Convention and the reconstruction of a new copyright convention that provides for the urgently needed access to and sharing of knowledge and that works for the benefit of the least developing and developing worlds where, it should never be forgotten, the majority of the world's peoples reside.   

Section 2 -  Copyright, Proprietary and Open Source Software

2.1	Introduction: The Copyright Context 

Beginning in the early 1980's, a number of governments in the developed world 
decided, after extensive lobbying by some (though not all) sections of the software industry, that computer software was analogous to the traditional copyright category of an "original literary work of authorship" and hence should be protected as a literary copyright.12 Whether this an appropriate categorisation and whether software should receive the same protections, in terms of duration or scope of protection, as a novel, a short story, or a poem is still a subject of debate; in the opinion of this researcher, the establishment of sui generis regime would provide much more balanced protection/restriction, be more appropriate for this particular type of technology, and be collectively beneficial to society, certainly for users, but also for the many of the most creative sectors of the software industry itself, especially smaller companies. What is usually "forgotten" is that many of the "break-through" developments in computer software design occurred before software was protected by copyright and that some of the most exciting developments of the past decade, such as the Linux operating system, were explicitly established on a non-proprietary and, hence, sharable basis. Indeed, in the current conjuncture, as this section discusses, the two models of software --- one proprietary and closed source and the other based on a sharable source code --- face each others as "David v. Goliath" rivals; the ultimate victor will determine much of the future of software use and access, including for the least developed nations.

        But to return briefly to the evolving legal regime, national copyright legislation in a number of developed countries, such as Japan, the US and across Europe, was amended in the 1980s to explicitly put computer software under the literary copyright umbrella; regionally, various treaties and directives (North American Free Trade Agreement, various EC directives) did the same thing, and internationally, both the 1995 TRIPS agreement (Art. 10 (1)) and the 1996 WIPO Copyright Treaty (Art. 5) state that computer programmes must be protected by copyright. Although TRIPS (Art. 66 (1)) states that least developed countries will not be required to apply this section (and many other sections of TRIPS) until 2006, this deadline is fast approaching and, in the end, they (and all other WTO members) will have no alternative but to protect computer software under their own national copyright laws. In any event, the WIPO Copyright Treaty provides no "transitional arrangements" for least developed countries.13 

2.2         Closed source copyright-protected software is not the answer 

In both the analysis that follows and the recommendations made at the end, this report concludes that copyright-protected closed source proprietary software is not an appropriate technology, in most cases, for least developed countries, either for their basic computational needs, including in the critical sphere of education, or for their wider economic development. Indeed, the fact that such software must be protected, either now or at least by the year 2006, as a private property right in such countries provides a further reason why copyright protection and the related rights of ownership (e.g. duration of protection continues until the life of the software "author", plus 70 years) is so problematic. Instead, free/open source software is a much-preferred alternative for these countries. However, before we can commence this analysis, a brief (and highly simplified) technical backgrounder is required concerning  the differences between the two basic types of computer software. 

2.3   A brief technical backgrounder 
      
a) Proprietary software - How to protect or not protect the source code ( the internal programming language code) of software is at the heart of most legal, policy, and practical debates about software; the issue encompasses both operating system programmes (e.g. Windows) which manage the internal function of the computer, and application programmes ( e.g. Microsoft Word) which perform specific data processing tasks for users. The source code may be protected by trade secret law, by copyright law ---our focus here---, by patent law, or left as a sharable, non-propertised  resource.14 The code of a programme is what makes it particularly valuable and transforms it ---potentially at least --- into a creative tool that can be used to solve a range of problems and to act as a catalyst or building block for further developments and new applications. In other words, the source code is what makes software a "living", adaptable technology that is capable of improvement and modification and not simply a fixed and a pre-packaged solution.  

      However, giving copyright protection ( and trade secret and patent protection as well)  to software programmes and their codes transforms them into closed source proprietary software with all of the traditional indicia of property ownership; unless special exemptions or licences are created (and they rarely are), this code cannot be copied, shared, modified, redistributed, or reverse engineered by other software developers or users. Usually such programmes are licensed rather than sold and the licence contains all of the above prohibitions, as well as others. The license may permit use of the software on a single computer or require extra charges for each additional computer using the software ( e.g. for schools and colleges.) Further, the code used for application programmes, which make up the bulk of computer programmes today, must be compatible with the code found in the operating system. "Ahead of the crowd, Bill Gates located the sweet spot in the business of bits and bytes; as a provider of a "platform", Windows is essentially a collection of building blocks that developers need to create applications." (Economist, 18 October 2001). Given the dramatic increase in computer usage over the past decade at least in the developed world (see Appendix 4 for country by country comparisons) and given the ancillaries that spring inherently from code "ownership", especially for an operating system such as Windows that has become the  world standard, we can see how closed source copyright-protected computer software can come to represent substantial power over people (Cohen) 

b) Free/Open source software -    A recent report entitled 'Free Software/Open Source: Information Society Opportunities for Europe?' gives a useful summation of the main features that characterise free (open source) software. This alternative approach means that users have "the freedom to: 
* Use the software as they wish, for whatever they wish, on as many computers as they wish, in any technically appropriate situation. 
* Have the software at their disposal to fit it to their needs. Of course, this includes improving it, fixing its bugs, augmenting its functionality, and studying its operation. 
* Redistribute the software to other users, who could themselves use it according to their own needs. This redistribution can be done for free, or at a charge, not fixed beforehand. 
It is important now to make clear that we are talking about freedom, and not obligation. That is, users of an open source program can modify it, if they feel it is appropriate. But in any case, they are not forced to do so. In the same way, they can redistribute it, but in general, they are not forced to do so. 
To satisfy those previous conditions, there is a fourth one, which is basic, and is necessarily derived from them: 
* Users of a piece of software must have access to its source code. (Working group on Libre Software).  

        To facilitate these various freedoms and to make sure that the source code does not become the private or exclusive property of any one particular software developer or a group of developers, the pioneers of the free software movement, and in particular the US computer programmer Richard Stallman, developed what is now known as the General Public Licence (GPL). Its main purpose is to ensure and reinforce a sharing ethos with the source code of programmes such as Linux ( the basic free/ open source operating system). Under the terms of the GPL licence, the user has the right to improve the code to her/his specifications but all such improvements must be shared with the general pool of users. " Intellectual property is not a part of the business model so piracy is not at issue." (Halbert)

       It should be noted that open source software, that is, an application programme running on the Linux operating system ( e.g. Oracle) may be protected by copyright if its developer /owner requires or wants such protection. Linux, by itself, does not have the features of  proprietary software. (As well, a great deal of free software, such as Apache, runs on Windows and there is plenty of free software that operates on a somewhat different licence than GPL.) 

         The import of these radical differences in approach will become clearer in the next section when we try to apply both paradigms to the least developed world. 

2.4   Why free/ open source software is the preferred alternative for poor countries 

There are a number of reasons why closed source proprietary software is not an appropriate technology for poor and least developed countries and why open source software (OSS) and GPL/ Linux systems are far superior, both in the short and longer terms. Among the more important factors favouring OSS and GPL/ Linux are the following:  

a) Proprietary software prices are beyond the reach of all but a small elite in the least developed countries. 

Proprietary software and the requisite licences (e.g. for schools) are extremely  expensive, indeed beyond the capacities of all poor and least developing countries and the vast majority of developing countries. Mexico provides a particularly graphic example:

Mexico's Scholar Net project [involving 140,000 schools] .... estimates it would have cost at least US$885 to install Windows 98, Microsoft Office, and a server running Windows NT in each school computer laboratory, which works out to about $124 million for 140,000 laboratories for software alone (emphasis added). By comparison it costs US$50 to purchase a single set of installation CDs and a manual for RedHat Linux which can be duplicated and reinstalled without limits under the terms of the open software license. [Installation costs must be added to this cost.] (White) 

If Mexico, a developing country, has concluded it cannot afford closed source proprietary software for its schools, how can the least developed countries --- Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, and Myanmar (to take the "M's" from the WTO's list of least developed counties) --- do so either? Microsoft generally follows a practice of charging the same price for its software products around the world without regard to widely disparate average income levels (Reuters, 16 October 2001; see also comments of Tony Roberts in section 2.5) The same is true with regard to educational software licenses; Microsoft licensing officials in Vietnam and Ecuador have confirmed that the "per seat licensing fee" for universities in those two countries is essentially the same basically the same as Microsoft charges Harvard or Oxford University; an elementary school in Soweto is treated the same way as is a school in a suburb of Boston.15 In fact, numbers of our interviewees checked local prices of in countries such as South Africa and Argentina and found that prices were even higher than in the US ( e-mail correspondence on file); part of this price differential can be explained by higher hardware costs ( which included pre-loaded  software) in these less competitive markets. And numbers also gave concrete examples where the high prices of software were the main barrier to the adoption of computer systems by local governments, hospital and  health care facilities in poorer regions, and numerous other organisations.16  

       In comparison, the basic Linux software system can be downloaded from the Internet for free, though there will likely be follow-up and servicing/repair charges. But proprietary closed source systems also require and encourage service contracts. ( See also b) below.) Most importantly, individual licensing charges are not levied for use by each individual computer, this is software that is shared.   

        As numerous studies have demonstrated and as our interviewees emphasised, the high cost of proprietary closed source software is one of the leading causes of the extremely low level of computer use and ownership in poor countries (see Appendix 4) and the leading cause of the widespread unauthorised computer software that is used in such countries.17 In least developed countries, copyright laws giving protection to closed source software act as a definite barrier to access, not as a facilitator of use or access. 

b) Proprietary software does not allow access to or sharing of the all important source code 

Whether and how the all-important source code can be used is critical to software for operating systems and application programmes. As mentioned above, the proprietary closed source model keeps this code a non-accessible code a secret and non-sharable; free/ OS software requires that it be made available to all that want or need it (or at least under the terms of the GPL and other licences.) Miguel de Icaza, a Mexican-born open source software developer who now is president of Boston-based Ximian, explains that 

The beauty of free software....is that part of the freedoms you receive is the freedom to learn from other people's techniques, strategies, and focus on problem solving. Something that has been unheard of in this industry (although it is a pretty common thing in science). So people have a chance to join the effort, and be part of the team of people that are producing knowledge, culture and, as a result, wealth. (Miguel de Icaza Tells All)  

It is this unrestricted access to the source code which not only creates the potential for a "spin off" IT sector to grow in developing and least developed countries ( see section (e) below), but also allows users and developers to create their own software tailored to their own needs and their own national and regional languages.18 As well, access to the source code allows users or members of a users group to "de-bug" faulty programmes and builds self-reliance in permitting them to do their own repairs and servicing. (Developing such skills ,of course, does requires training.) This self-help approach, not permitted or feasible with closed source proprietary software, can dramatically cut ongoing computer usage costs,  a factor of significance importance in poor nations. 

c) Similar licences for widely disparate situations
   
A number of interviewees confirmed that the proprietary software licences made available in poor and least developed countries are, in most cases, exactly the same as the licences offered, for example, in the US or the UK; the same "one size fits all" restrictions apply no matter what are particular computing requirements, needs, and financial capacities of the end user, whether she/he is located in Accra or Atlanta.19 The problem does not arise only with proprietary operating system software. A professor at the School of Architecture at the University of Natal in South Africa explained that, because of licensing restrictions, most of the schools poorer students, particularly from Zimbabwe, were not able to afford the purchase of home copies of the specialised 3-D modelling software needed for architectural design; the software licence restricts use to "at school" use. (Wang interview.) Such global market strategies and business models, let alone the underlying philosophy, can hardly meet the urgent computing needs of poor and least developed nations.

 d) There is an absence of broad computer literacy and technical skills offered by proprietary software training schemes   

Some closed source proprietary software companies, such as Microsoft, directly operate or fund or make significant "philanthropic" financial contributions across the globe  to a range of software training programme and schemes, including those located in least developed countries. Sometimes the contributions total in the tens of millions of dollars, such as a recent Microsoft contribution to the Mexican government. But as Federico and Oscar Heinz write:  

The knowledge content of those programs, however, doesn't go any further than providing skills in the use of their proprietary software, and contributes little if anything to the comprehension of the general mechanisms that come into play. They don't teach the user how to use a word processor, for instance, but how to use a very specific, proprietary word processing program. Far from contributing to software literacy, these educational programs are marketing tools designed to produce users that are dependent on a particular program. People who attend these courses are typically unaware even of the existence of alternative solutions, and completely at a loss when confronted with a different program to solve the same need. (Appendix 3) 

Similarly in Africa where computer Schools and "computer academies" are " a dime a dozen", such institutions "use Microsoft as a matter of course" and graduating students lack broad computing skills. (Buccellato interview) 

       This is a serious problem. Not only is badly needed computer literacy not broadened in poor countries, but a technological "bias" is also created and students end up with a particular type of non-transferable tech/skills transfer from the developed to the less developed world. There is a long-time slogan in the international development movement that goes: "If you give a man a fish, you feed him for one day. If you teach a man to fish, you feed him for the rest of his life." The closed source proprietary software training model re-writes that slogan:
 "Teach a man (or a woman) to fish, but only how to fish in your river and charge annual licensing fees every time he or she wants to put their net in your water." Such proprietary software training schemes fail to live up the promises made in TRIPS  that developed countries shall "provide incentives to enterprises and institutions" within least developed countries "for the purpose of promoting and encouraging technology transfer....in order to enable them to create a sound and viable technological base." ( TRIPS Art. 66 (2) )

e) The inflexibility and technical "biases" of proprietary software further lock poor and least developed countries into a pattern of dependency and economic stagnation; open source systems promote technological self-reliance and independence.
 
But the essential problem with closed source proprietary software for poor countries extends far beyond the narrowness of training schemes for proprietary software. Here is how Miguel de Icaza, puts the case for the role of free software in developing countries ( and by extension in least developed countries.) 
   
I believe that Free Software will help countries with developing economies (like Mexico) to get a competitive advantage that they have lacked for so long. Most of these countries missed the industrial revolution, and for one reasons or another, they depend on external technology to keep up with the times. Free Software helps in the fraction on depending on external technologies. For example, countries with developing economies can now avoid depending on proprietary software: they can keep the money they spent on proprietary software to themselves, and use it to either develop themselves, or they can use that money to produce free software that will solve their problems (and hopefully other countries problems). The case of Mexico is the one I am most familiar with: Mexico does produce very little technology, depends a lot on foreign technology and pretty much our main exports are raw materials. Raw materials are extremely cheap (and in some cases it took nature a few million years to produce). For example, a barrel of petrol costs about $25 these days, and a copy of Microsoft Office and Microsoft Windows 2000 costs around $700. Which means that for each copy of Office+Windows 2000 the country is paying with 24 barrels of petrol. In general, I believe that we must become software producers (and also technology and innovation producers), and not just consumers. Becoming free software users is a good first step, the next step is to become software producers.(Miguel de Icaza Tells All) 

Another open source pioneer, Ivan Moura Campos, prime developer of Brazil's Popular PC project, believes countries such as Brazil will not overcome the so-called "digital divide" by relying solely on imported technologies, such as copyrighted proprietary software. "We realised that this (the lack of access) was not a First World problem. We are not going to find a Swedish or Swiss company to solve this for us. We would have to do it ourselves." (Anderson) One of our interviewees underlined the "brain drain" problem and its relationship to the proprietary model. "Our human resources are limited in this regard and the last 6 or so years has seen a huge outflow of computer personnel from South Africa - mostly to Australia or North America. It's simply not an option; access and affordability are just not there." 
( Buccellato) Linux, originally developed by a Finnish programmer, and free software systems generally emerge as examples of  genuine technology transfer, a sharing of computing resources originally developed in the developed world. And OSS developers are still permitted the freedom to acquire copyright in the particular programme they have created. 

          Ignoring here the complex question of the "network effects" of software (see Merges, Chap. 7), one example of the problems endemic to closed source proprietary software, especially in operating systems, is that a company such as Microsoft is permitted to bundle a wide number of other computing products into its Windows ( and now Windows XP) operating system. Such practices not only capture the global market in operating systems but many of the ancillary activities related to day-to-day computing as well.(See also 2.5 c 
below)   

The nub of the case against the company is this: why should it be allowed to bundle products like media player into its operating system for "free" instead of being required to distribute them as stand-alone extras?....Who knows how much innovation, especially from smaller firms, has been stifled at birth because of the impossibility of competing with what Microsoft is bundling in free? (Keegan) 

Once again, if software developers in technologically advanced countries such as the US and Europe cannot compete with Microsoft in the application programme market, how can software companies in the developing and least developed countries be expected to either? When one proprietary operating system such as Windows becomes the operating standard in least developed countries, no forward internal economic linkages created are created , a minimum of wider IT economic development is generated. All that results is the establishment of a local sales office for a proprietary software company. 

f) If a company or operating system acquires a national or global monopoly position, the copyright restrictions of proprietary software, especially for operating systems,  are transformed, into patent-like restrictions rather than the traditional "limited monopoly" restrictions of copyright   

The copyright paradigm does give a "limited monopoly" property right, for example, to the particular expression of a particular song(X). But the strong presumption is that other composers can compose different songs which will compete with X, if not on quality at least on price.( It is inconceivable that Beethoven or The Beatles could have acquired copyright in "the symphony" or "the pop sing" respectively.) But if one copyright-protected operating system, such as Windows, establishes a global monopoly--- and estimates suggest it currently has 95 per cent of the global PC operating systems market  ( Keegan) --- then this becomes a monopoly that operates outside market pressures or traditional copyright presumptions. Speaking about how its operating system (Windows) is most  responsible for Microsoft's financial health during the current downturn in the fortunes of many high-tech companies, a Merrill Lynch high-tech analyst explains that " [s]ince Microsoft has a monopoly in its core business, the company is not vulnerable to the stiff price competition that can hurt other tech leaders in time of weak demand." (Glasner; see also U.S. v. Microsoft Corp. ). If this dominant position is problematic in the US, it is even more serious for poor and least countries which have a much smaller and even less competitive market  and are often dependant on aid packages for computerisation ( which sometimes require the use of Microsoft systems).

       One concrete example shows how difficult it is for developing countries to challenge or even slightly modify the powers of closed source proprietary software monopolies. In Lebanon, there was vigorous opposition in its Parliament during both 1997 and 1999 to draft government legislation on the subject of computer software. A number of MPs argued that software should not be protected by copyright and, in particular, that  copyright owners, such as Microsoft, should be  required to grant a compulsory software licence to poorer students and to educational institutions in Lebanon. As a result of pressures applied by Microsoft, Adobe, and other software multinationals, Lebanon was put on a US Trade Representative Special 301 Watch List ( that is, given a warning that the US could decide to impose trade sanctions) for considering such a reform...and in the end, Lebanon was forced to comply. (The International Intellectual Property Alliance, 'Lebanon') This episode reveals, again, the lack of flexibility and absence of users' rights in international copyright regimes with regard to software in poorer countries.    

g) Poor and least developed countries are unable to curb anti-competitive practices stemming from the monopoly position of certain proprietary software within their borders.  

A recent study notes: 

Making IPRs stronger invites consideration of competitive rules to discipline anti-competitive practices.... Claims that a rights holder has engaged in anti-competitive behaviour are complex, and resolving them requires significant judicial and legal expertise. Administrative costs may limit a country's ability to undertake competition enforcement....(World Bank. 2001) 

This conclusion requires little commentary. If the sophisticated anti-trust mechanisms and personnel of the US Department of Justice proved unable to significantly challenge the monopolist practices of Microsoft within the borders of that country, one can hardly believe that the Attorney General's department (or relevant authorities) in any of the 50 least developed countries in the world would be any more successful, assuming, in the first instance that commencing such am expensive and complex action would be a prosecutorial priority for any of these countries. Further one can safely predict that such a prosecution would likely be a trigger for a Section 301 sanction by the USTR. By contrast, free/ open source software raises none of these anti-competitive concerns.
  
2.5.	Three contrasting computing solutions for poor countries 

These contrasting approaches can be made more concrete by comparing three contemporary computer examples: a) a new portable Indian open source computer, Simputer; b) the software decision recently made by the UK-based Computeraid International; c) the recently-launched new Microsoft operating system, XP-Windows/Net.  

a) Simputer -   Simputer is a pocket-sized computer recently developed by four Indian computer technologists that allows online access, basic word processing, text-to-speech capabilities, and operation in four Indian languages. The projected cost is less than $US200 which necessarily means it is using open source rather than proprietary software. Although the word Simputer stands for simple computer, MIT sociologist of science Kenneth Kensington says, " I don't know of anyone else in the world who is producing a comparable computer at this price." ( Stikeman) A prototype Simputer has already been built and its backers expect that sales will commence in March 2002 if sufficient capital can be raised and commercial licences, currently being negotiated, can be signed. Certainly Simputer will not replace a desktop PC, but members of the non-profit development trust behind this new "Third World appropriate" technology expect it will become popular in rural India, an area essentially cut off from the new information age, and will be purchased by neighbours banding together to buy the machines for communal use. "We are quite used to sharing here," explained one member of the trust. (Stikeman, Matthan interview)

b) Computeraid International- Computeraid International is a small London-based charity whose main mission is to distribute used personal computers ( that is, still-working computers surplus to the current requirements of UK organisations and individuals), to groups and individuals in  poorer countries. (There are similar organisations in other developed countries.) Computeraid does excellent work and has distributed thousands of computers to more than 60 poorer countries; schools are one of the priority recipients. Most of the machines they receive come "loaded" with proprietary software ( particularly Windows) and, until quite recently, Computeraid technicians re-loaded these computers with Windows and a software package such as Word and sent them across the globe. As Tony Roberts, director of Computeraid explains, 

Until recently, there really was no other choice...but now there is. Instead of using proprietary software, we now re-load all of the machines with open source software; it is much cheaper for us and the end-users and is a much appropriate technology for use in places such as Africa....With the exception of a few parts of South Africa, there is not a single government or a school system anywhere in Africa ( emphasis added) that can afford the costs of a Microsoft licence for their school systems. (Roberts interview)  

c) The New Windows XP/.Net operating system-  The problems which closed source proprietary software creates for users in poor and the least developed countries are brought into sharper focus by the technical and economic characteristics/presumptions which are manifested - or perhaps " bundled" would be a better word ---  in the recently-released Microsoft  Windows XP/Net operating system. Writing for a US audience, a number of commentators and detailed studies have shown that this new operating system will mean:
a) because of new licensing restrictions, users will be required to purchase separate XP software for each PC they own; 
b) the use of Windows XP will require 265 megabytes of hardware memory, an uncommon amount on computers older than one year; as one Business Week computer expert noted
" Windows XP...will place a lot more demands on your computer, so millions of people, especially with those more than two years old, may need new ones."  
c) Windows XP gives a decided preference to its own peripheral and Internet connection products and leads to consumers to incur recurring subscription fees rather than a one-time licensing fee. (There is a range of other technological, privacy, and "bundling" issues related to copyright-protected Windows XP/. Net , but as the cost of software is such an overarching issue in poor countries, these have been omitted from the analysis.) 
Again, if these are legitimate criticisms in the US context,  they are even more telling ones for poor and least developed countries and reveals the decided disadvantages of this newest piece of closed source proprietary software for such countries.(Reuters, 26 October 2001; Wildstrom; Cooper and Murray, Buckman)  

2.6 	Switching from proprietary to free/open source software 

There is a long list of other organisations, governments, and other bodies across  the developed, developing and least developed  world which have decided, for a variety of reasons, to switch to open source and free software. A short list includes: four Brazilian cities (Amporo, Solonopole, Ribeirao Pares, and Recife) have passed laws giving preference to or requiring the use of OSS ( including from service suppliers); China has a policy commitment to use Linux across all government departments; researchers in the computer science department at Brazil's Federal University of Minas Gerais have created a US$250-300 computer called the "Popular PC"; Mexico has announced a five-year programme to install Linux operating systems in the computer labs of 140,000 elementary and middle schools; by 2003 ( see 2.4 a) , it is expected that all Mexican government database systems will be Linux-based and the results of the recent Mexican election were computed with OSS; the Computer Science section of the prestigious Indian Institute of  Science's uses Linux software; Banco Mercantile, one of Argentina's largest banks, is in the process of switching to Linux systems; IBM has invested $US200 million in Linux ventures in Asia and is now essentially a Linux- based company.  

        A number of national and municipal government have debated or passed resolutions favouring OSS, including France, Florence Italy, Mexico, and Argentina. And if any further convincing is needed that open source software is neither "an experiment" nor the software simply for "nerds", " geeks", " hackers" or "Microsoft phobes",  consider the following: 
a) The European Commission's initiative " eEurope - An Information Society for all" states that "during 2001, the European Commission and Member States will promote the use of open source software in the public sector..." (Cabinet Office ( UK) 
b)  In December 2001, the UK Cabinet Office released a document calling for public consultation on the use of open source software within all branches of the UK government. At the same time, it also released a detailed study that recommends far greater use of open source within government and predicts, for example, that "within five years, 50 % of the volume of the (global) software infrastructure market could be taken by OSS." (Peeling)  
c) Some sections of corporate America are also starting to break away from the hold of closed source proprietary software on their operations and are growing increasingly concerned how the "software vendors' revenue model --- with its perpetual licences, forced upgrades and pay-up-front maintenance contracts ---- actually encourages buggy products." (Festa, Matthan interview; White, Rebeto, Levinson)   

2.7	The computer policies of DFID and USAID in poor countries 

What is DFID's own policy on the closed source proprietary software issue, especially with regard to overseas development schemes? 

Our current policy is, where possible, to take a pragmatic approach to funding the software component of ICT bid elements: if the project is likely to function in a predominantly Windows environment or be focused on skills development for people likely to work in this environment the appropriate funding would be made. If, however, the project is breaking new ground, we would consider steering it towards open source. (E-mail from DFID official.)

The US government and, in particular, the Leland Initiative of USAID (which has spent millions of dollars on the expansion of computer access in poor countries, including Africa), takes a rather contradictory view. On the one hand, " We usually purchase PCs and Microsoft products when we furnish systems of this type (for developing countries)." (E-mail from lane Smith, Co-ordinator, Leland Initiative, Washington, DC). Yet, on the other hand as Smith explained, " On balance we are for the cheapest and most affordable approach for the Africans, which would be open source." 

2.8 	Computer copyright as a tax on poor nations 

For poor and least developed countries, the copyright protection accorded to closed source proprietary computer software once again reminds us, to paraphrase two lines from Macaulay's well-known 1841 speech to the House of Commons, that:" The principles of computer copyright is this. It is a tax on computer users for the purpose of giving a bounty to multinational proprietary software companies." In the context of poor and least developed countries, this "tax" means that hundreds of millions of people cannot afford software, that they are not given the freedom to use, modify, and further develop this software for their own particular requirements, and that they will be structurally tied and indebted, both financially and technologically, to developed countries for decades into the future. Important reforms are urgently needed. 

2.9  "Switching" rather than "fighting"
 
To significantly improve computer use and access in poor and least developed countries, one obvious recommendation would be to suggest that major amendments be considered as to the protection of computer software within relevant national laws of the UK or poorer countries, within the TRIPS Agreement ( e.g. Article 10 (1) ) or  the WIPO Copyright Treaty (Article 4). Certainly a compelling and intellectually coherent case could be made for such reforms, particularly with regard to the current and long-term requirements of poor and developing countries, whether with regard to the scope and duration of copyright protection ( the "literariness" and function of Java script is rather different from that of a Salman Rushdie novel) or the inclusion of special usage exemptions for such countries. Or legislation could be proposed that would prohibit closed source code being imbedded in copyright-protected software; that is and not unlike the requirements of patent law, the "societal-given" right acquired by obtaining copyright protection necessarily entails taking up "the societal responsibility" of allowing others access to the code.20 However, given that the multi-national software industry is one of the strongest lobbying forces in the world today, as evidenced by its impact on the copyright provisions of the TRIPS Agreement (which, for example, does not include a single measure strengthening the public domain or users access rights to computer software), making such recommendations at this conjuncture seems rather beside the point. The current approach to software protection had its origins in the US and as a 1994 article concluded,

 [T]he United States government devoted substantial effort over the past decade to browbeating most of the developed world into following its path. Neither the US government nor the many entities desiring uniform protection for their products across national borders are interested in starting a new fight. ( Menell) 

More recently, poor and least developed countries have also been browbeaten. If  developed countries were unable to challenge such a regime ( or, in most cases, were unwilling to), there is obviously little chance that individual poor countries could successfully alter the software status quo, despite the fact that it is so highly detrimental to them. In the main, then, copyright reform recommendations have been omitted. Rather than attempting "to fight" software copyright ( or specifically, closed source proprietary software), the UK government could play a supportive role in the growing movement within the developing and least developed worlds " to switch" software and to provide both users and software developers with a choice as to which type of software best meets their needs. The current predominance of closed source proprietary software does not give them such a choice

Recommendations: 

1. The UK government should develop "a favourable bias" towards the use and expansion of free/ open source systems in poor and least developed countries. This should include a thorough cost-effectiveness review of all its international development programmes that include a closed source proprietary software component.  Other developed countries should consider similar initiatives. 
 
The decision taken in the TRIPS Agreement (and elsewhere) to protect computer software as a copyright-protected literary work represents, among other things, an extremely valuable legal subsidisation of the multi-national software industry; that is, the provisions of TRIPS and laws of individual states ( and the resulting penalties for infringement) determine the distribution and allocation of current and future wealth, nationally and internationally, as well as access or non-access to computer technology. These laws and treaties represent a market/wealth creating intervention. An alternative approach would have had significantly altered these distribution and access patterns, including for poor and least developed countries. The negative impact (or non-impact, given the still extremely limited ownership and use of PCs in poor countries- see Appendix 4) of closed source proprietary software in the countries, documented above, suggests that a slight policy "tilt" in favour of open source software is warranted. The costs to the UK of developing such a policy are relatively small and the potential benefits to the peoples of poor and least developed countries potentially very significant. As one study concluded," [d]eveloped countries can make cost-effective contributions to less developed countries by helping them adopt free software technologies. Since there is no royalty or per-copy fees, the cost of this transfer is really low for the contributor country. Contributions could be focused in training, localisation, and adaptation to local needs, with a great multiplier effect." (Working Group on Libre Software.)

2. Specifically, the UK government should provide funds for the training of technicians and computer users groups in poor countries in free/ open source computer systems.  Other governments should consider similar allocations of their development assistance funds. 

Articles 7 and 8 of TRIPS, found in its "basic principles" section, as well as Article 66 (2), mandate the transfer of technology, and specifically, in the latter article, " to least developed countries." Yet since 1996, such tech transfer schemes have been established on very spotty basis and a commitment that the developing countries viewed as a significant concession in TRIPS has become a matter of only tertiary concern to developed countries. In the "Africa Group" proposals ( 4 October 2001) for an "alternative text to the Draft Doha Declaration", these nations agreed that "developed  country Members shall put into immediate effect meaningful incentives for the purpose of promoting and encouraging technology transfer." (emphasis added.) As detailed in the main body of the report, the use and export of closed source proprietary software does not represent technology transfer to the world's least-developed countries, whereas free/open source software does. The provision of funds for the training of technicians and software groups in the least developed world on open source software methods and computer programming in general would represent one step towards fulfilling one of the UK's tech transfer obligations under the TRIPS agreements.  

3. Working in close consultation with open source developers and user groups in poor and developing countries, the UK government should propose the holding of a conference of free/ open source software developers in 2002 from these countries and assist in the costs, such as transportation, of such a conference. 

In launching the UN Development Programme's "Human Development Report 2001", its author stated that "[t]he long term solution to innovations for development priorities and conditions of the developing countries will come from the south." (Fukuda-Parr). Closed source proprietary software is very much a technology of "the north." Facilitating a "south to south" dialogue and the trading of experiences between OSS developers, users, and entrepreneurs in Latin America, Africa and Asia would be a worthy international development objective for the UK to undertake. Other projects might follow; one interviewee (Chapparo) proposed the establishment, with appropriate funding, of an international 'software clearing house' ( such as sourceforge) at governmental level so that developed and Third World countries could exchange applications and expertise.

This is a particular pressing development issue for poor and developing countries as, according to one recent study, "open source software on the desktop may soon become a significant player on the desktop in the developing world." ( Peeling) 
   
4. 	The relevant departments of the UK government, such as DFID and the Department of Trade and Industry, should be encouraged to contact government and free/ open source developers in poor countries with a view to establishing public-private partnership between the UK government and computer entrepreneurs and investors.  

There are a number of "up and coming" open source software projects that are soliciting funding from investors in the developed world. India's Simputer project is one such project and the lawyer for the Simputer development trust said that he would be pleased to speak with either UK government representatives or private investors from the UK.  

5.	  The UK government ( and governments in other developed and least developed countries) should lobby the World Bank and IMF, as well as international aid agencies, to stop tying their aid packages to the use of closed source proprietary software and to stop discriminating in favour of proprietary software in the distribution of their own document and in access to web-based documents.  

To access many of the documents posted on the web sites of both the World Bank ( e.g. poverty statistics in Africa) and WIPO ( e.g. the date on which countries became signatories to the Berne Convention), an Internet user is required to have Microsoft's Windows as her/his computer operating system. One World Bank/ Microsoft document states: "The World Bank's mission is to fight poverty with passion and professionalism. To achieve its goals, the bank is using Microsoft technologies in innovative ways." A World Bank grant to a number of African countries for statistical gathering required them to use Microsoft software to acquire that grant. As a United Nations agency, WIPO is required to post its documents in the various UN official languages; when it  comes to computer languages, why should one language (and a privately owned language at that) be privileged over other non-proprietary languages? For the reasons explained in the main body of this section, requiring (or favouring, by default) the use of closed source proprietary software reinforces the control of developed countries and their technologies over the least developed world. The current policies of USAID with regard to the provision of software "aid" in poor countries provides other governments in the developed world with a negative example.  

6. 	The Department for International Development should create a mirror of its existing website using open source software. 

One of the more common responses we have heard as to why there is still a limited use of OSS in poorer nations is this: "if this type of software is so good, why are so many organisations, companies and governments still hooked on proprietary software? Are the alternatives second-rate?" DFID could set an excellent example and give an important boost to the status of OSS systems in poorer nations if it decided to give OSS equal-billing its own external communications.... and, in fact, it might decide, as have Amazon.com and the US Pentagon, for example, that using Linux and OSS systems could lead to significant cost and efficiency savings over proprietary software.

7.  The Department for International Development should commence discussions with organisations such as Computeraid International and other NGO's interested in computer and access to information issues to determine how it assist and help finance their important work. 

Further commentary on this recommendation is not required. 

See also the excellent recommendations made by Federico and Oscar Heinz at the conclusion of Appendix 4. 

Section 3 - Copyright and the Internet 

3.1   Taking maximum advantage of the Internet 
     
In the context of national and international copyright law, the main question this section addresses is "how can least developed countries take maximum advantage of the Internet and its potential, especially for their educational requirements?" ( This question also raises closely related issues of encryption.) 

3.2   The highly unequal patterns of Internet access and use across the globe

What immediately becomes clear is that there is, at present, highly unequal access and use of the Internet across the globe as demonstrated by the year 2000 figures found in Appendix 4. Taking a sampling of developed, developing, and least developed countries, we find the following statistics:    

Country                    Internet Users /10,000 inhab.          Total # of PC Per 100 inhab.                

UK                                 2,576.72                                                    33.78
US                                  3,465.78                                                    58.52
Algeria                           16.19                                                         0.65
Egypt                              70.89                                                         2.21
South Africa                  549.38                                                        6.18
Trinidad & Tobago       772.58                                                       5.42
India                                49.39                                                         0.45        
Mozambique                  15.24                                                         0.30 
Rwanda                           6.47                                                             ...
Myanmar                        0.21                                                          0.11

And what also becomes immediately clear is that copyright is not the leading cause of or barrier to this highly unequal Internet access in least developed countries (and within such countries). Hence, loosening copyright restrictions will not, in the short run at least, significantly increase access in least developed countries, though they certainly would in countries such as the US or UK. Nor will further increasing copyright restrictions protection, which might mean the wider use of encryption measures, mean much difference either. Only a tiny minority is, at present, connected and this should be kept foremost in our minds when we examine (later in this section) various Internet "toll gate" and fencing measures, such as those included in the WIPO Copyright Treaty (e.g. Article 11), the provisions of the 1998 US Digital Millennium Copyright Act (DMCA) or other "access to content" blocking mechanisms. Pervasive arguments that rights holders will suffer significant harm without the introduction of such measures simply are not true in the case of least developed countries because access and usage of online materials is currently so limited. In other words, what may or may not be valid justifications for the introduction of such restrictive measures or business models (e.g. toll-gated and proprietary Internet-based datasets) in the developed world are certainly not valid justifications in the least developed world. (This is explored in more detail below.) 

3.3    Other factors beside copyright are more important.  

A numbers of other factors are much more significant than copyright laws and policies in explaining the relatively low access and usage ---and , in some cases,  almost non-existent usage--- of the Internet in poor countries. Briefly canvassing these other explanatory factors, they include (and not necessarily in their order of importance because many of the factors are inter-related): 
1) Low per capita incomes in least developed countries.  
2) Internet access and computer use is much less of a policy priority for many governments in least developed when more basic issues such as access to food, shelter and health care remain so critical.21 
3) The high costs ( at least relatively) of computer hardware and software. 22
4) Serious limitations of telephone and telecommunication systems, including bandwidth.23 
5) Weaknesses of national electrical power grids and uneven patterns of electrification, especially in remote, rural, and least developed regions of poor countries.
So the issue of Internet access and usage in least developed countries is a complex one. Yet behind all "the hype and fervour about the digital divide", "what is clear is that disparities between the "haves" and the "have-nots" are growing ..." and while "all countries, even the poorest, are increasing their access to and use of ICT ( information and communication technologies)" , " 'the information have' countries are increasing their access and use at an exponential rate that, in effect, the divide between the countries is actually growing." (emphasis in original) ( bridges.org.) . Or as one report worried back in 1995, which is a long way back in Internet history, " The Internet and the South: Superhighway or Dirt-Track?" (Panos)

3.4    The Internet as a new communications model 
    
What then of copyright issues on the Internet for least developed countries and, given the geographically seamless nature of the Internet, how are copyright regimes established by developed countries effecting them? Noting how digital technology and the Internet have "transformed the nature of copyright so that it now applies to everybody's everyday behaviour" [assuming, of course, that "everybody" has access to that technology], one commentator has written that " more than ever before, our copyright policy is our information policy." (emphasis in original) ( Litman). The digital/Internet era creates many challenges to Gutenberg-derived copyright and information policies and, indeed, arguably makes many of them incoherent and anachronistic. Both the costs and ease of distribution of information and the costs and ease of access --- both, of course, only a potential "ease" if the technology itself is not accessible --- have been transformative. On the  production side, new computing technologies have changed the speed and method of  knowledge/information creation and led to new peer to peer relationships that are "superior to both market-based and hierarchical managerial processes." ( Benkler)  While the first US copyright statute (1790), for example, gave copyright owners the sole right " of printing, reprinting, publishing and vending", today "the threat and the promise of network digital technology is that every individual with access to a computer will be able to perform the 21st century equivalent" of these same tasks and others as well. (emphasis added) (Litman) In many ways, then, an entirely new model of communication, of education, of sharing, of empowerment, and of building --- communities, relationships, networks, local, national or global projects --- is being constructed in cyberspace (with important spin-offs on terra firma.) This model has inspired comments, sometimes slightly exaggerated, about "the explosion of creativity" and about the coming (or already realised) "global village." What further needs to be appreciated is that the resulting vast information "commons"  was  "built into the very architecture of the original network. Its design secured a right of decentralised innovation." (Lessig) Traditional copyright notions  played a minor role in that design. Certainly the argument that copyright protection is a pre-condition or required incentive for the creation of works has once again been refuted. As one commentator perhaps somewhat whimsically suggested --- and this even before the "era of the Internet" had fully arrived ( at least in developed countries), "in the absence of the old containers, almost everything we think we know about intellectual property [ and especially about copyright] is wrong." (Barlow) 

3.5  Barriers to the maximisation of Internet usage 

Yet to fill out this vision ---- frightening to some, liberatory to others ---- and the unprecedented educational and informational opportunities they bring, including for  least developed countries, we must add three other key elements. In many ways, and despite a number of technological and economic post-Gutenberg transformations, the digital/Internet era is also seriously threatening access to information. In the hard copy era, it was (and still is) impossible to prevent the photocopying and sharing of materials...and hence the realisation of key copyright users' rights such as fair dealing/fair use. A user only had to visit a good library and a wealth of materials was freely at hand. Or a friend or colleague could lend you a book. But if Internet-distributed materials are fenced in by passwords and encryption technologies, copyright-protected ( or, in fact, non-copyrighted) content becomes inaccessible for fair use/ fair dealing and related purposes by the public unless all members of the public have access to the all-important password; this closed, "by admission only" orientation (and business model) flatly contradicts the long-standing and much praised "copyright bargain." As the International Federation of Library Associations and Institutions has written:

we now know that technology also has the potential to further stratify society into the information-haves and the information-have-nots. If reasonable access to copyright works is not maintained in the digital environment, a further barrier will be erected which will deny access to those who cannot afford to pay. (IFLA) 

In fact, the very nature of these encryption technologies make them more effective than traditional intellectual property protection mechanisms and rightholders can achieve 
" virtually absolute control over their works, unencumbered by the limitations embodied in copyright law." ( Denicola ) Second, the world of digitalised  information operates in at least two spheres, the sphere of sharing and peer-to-peer production (Benkler), but also in a sphere which may, for example, require an author to assign all rights ---not only copyright but also digitalisation rights--- to a publisher as a condition of publication. Reproducing such relationships in cyberspace is far from liberatory, either for information producers and authors or end users. Given the "information power" of the Internet, publishers gain even further power to determine the use of and access to information when compared to traditional hard-copy materials. And given that providing Internet access to already formatted materials or widening existing access to new users materials has zero marginal costs for information distributors (unlike, for example, the paper and printing costs of hard-copy  materials), profit-making opportunities increase exponentially. Third, and after surveying recent and proposed international and domestic (US) copyright and encryption technology laws, Lessig argues --- quite properly in the view of this researcher --- that the Internet is " under siege" and that "under the guise of protecting private property [ particularly copyright], a new series of new laws and regulations are dismantling the very architecture that made the Internet a framework for global innovation." Perhaps somewhat too pessimistically, Lessig suggests that " the Internet revolution has ended just as surprisingly as it began." For our purposes here we need to ask: "will these new laws and processes benefit least developed countries?" and, if Lessig is correct, "will the Internet era end for least developed countries before it has really begun for them? ( Section 3.2) All of these issues require further, if brief, exposition. 
    
3.5    Not a profit-making opportunity in poor countries in present circumstances 

Copyright rights holders (and here concentrating primarily on large multi-national enterprises such as publishers, the music recording industry, software companies and the other "copyright industries" in the developed world because they own and control the majority of copyright-protected material on the Internet) have approached the Internet with essentially two attitudes: a) as a threat and challenge to their power over information resources; b) as a new profit-making opportunity. The latter response can dealt with summarily. Especially in the context of education-related materials, poor and least developed countries do not offer (and will not likely offer for some years)  significant profit-making opportunities for rights holders . Both average income levels and Internet connection levels are too low (Appendix 4) and if no school systems or governments in Africa, for example, can afford the costs of Microsoft licensing fees at their schools (see comments of Tony Roberts in Section 2.5 b ), they will hardly be able to afford digital licences for toll-gated proprietary datasets and journals. 

       In this regard, we should certainly welcome some aspects of the July 2001 initiative of the WHO and the world's six  biggest biomedical publishers to allow free online access to hundreds of their journals for as many as 600 institutions in least developed countries (WHO Press release). (Developing countries will pay reduced rates compared to those charged in developed countries.)  This initiative has, for example, established the principle of  "tiered  pricing." But what also needs to be appreciated is that this initiative:
 a) does not represent any significant financial outlay to publishers because of the zero marginal costs of increased Internet access (in this case to poor countries) ; 
b) does not represent lost sales or profits because there was no significant existing market in least developed countries due to the high costs of such journals. ( For example, a  yearly subscription to Elsevier Science's "Brain Research", one of the journals included in this initiative, costs US$17,000; further we should note that commentary is quite misleading when it suggests that these publishers "have put profits aside" with this new initiative); 
c) means that publishers are distributing materials which they have received at no cost from academic authors and researchers; it is the latter who are making the actual "donation". (See also recommendations in Section 4). 
Alternative models, including for medical information, are discussed below in the "Internet access/copyright models" section.     

3.6  The Internet as a "threat" and a "challenge"
     
The issue of the Internet "as a threat and a challenge" requires more elaboration as this orientation has animated a range of restrictive copyright-related laws, treaties and measures of recent years. In the "threat" context, it is first worth recalling a quotation from London bookseller James Lackington (1746-1815) when circulating libraries were starting to be established in the UK: 

When circulating libraries were first opened, the booksellers were much alarmed, and their rapid increase, added to their fears, had led them to think that the sale of books would be much diminished by such libraries. But experience has proved that the sale of books, so far from being diminished by them, has been greatly promoted, as from those repositories many thousand families have been cheaply supplied with books, by which the taste of reading has become much more general, and thousands of books are purchased every year by such as have first borrowed them at those libraries, and after reading, approving of them, become purchasers. ( Steinberg)

While similar alarmist talk about the Internet by latter day booksellers and publishers has, of late, diminished (though not completely as can be seen on some publishing-related e-mail lists), it is certainly true that "suddenly we are paying a lot of attention to the claim that individual end users do not observe copyright rules in their daily behaviour."( Litman) This claim, to take one instance, ignited the 2000-2001 Napster copyright litigation in the US. But as we have seen, dozens of less "removable" and de-centralised new "Napsters" have sprung up in its place while, at the same time, global CD music sales have hit record levels; "sampling" of one free music cut often leads to the sale of one complete CD and allows seldom-exposed musical artists to get exposure (and fans) that the "big five" music companies have not accommodated. As one commentator has written, " far from being a victory" for the recording industry, the Napster copyright infringement litigation is "the beginning of the industry's end" as it is being challenged by alternative sharing models that often by-pass music publishers, but still allow artists to receive remuneration." (Moglen) Technological changes regularly have forced outmoded  business and copyright models to change (the VCR provides a good example) and the same will likely occur in the music and publishing industries.  

      A second "threat" comes from the perception that free access to copyright-protected materials on the Internet represents "lost sales", that is, that "unpaid" uses are lost sales, potential or actual. The library model exposes the fallacy in such thinking. There is not the space here to discuss "lost sales" in the context of developed countries and, has already been mentioned above, this is not a significant issue in least developed countries because the costs of most online toll-gated materials are already far beyond the means of all but the most affluent in such countries. In fact, unless a range of "free" or very low costs means of accessing copyrighted materials are developed for the citizens, teachers and students in these countries will seriously suffer from Internet access restriction measures (albeit controversial measures, see below) designed to "lock up information" by encryption technologies and  protect markets in developed countries. That is, users in poor countries will be unable to access either non-encrypted Internet datasets because they will not exist in significant numbers and will be unable to access or purchase copyright-protected paid materials because they will not be able to afford the user-pay admission charges.    

      A third perceived "threat" is based on the notion that all potential "leakage" of Internet-based information must be plugged by publishing industry practices, particularly by contracts with authors, and by international treaties and national statutes. In the case of authors, one of the more important developments in recent years has been the addition of  "digitalisation rights" clauses to the standard form contracts that publishers require authors to sign. Under this arrangement, unless an author assigns not only copyright and first publication rights, but also digitalisation rights, to the publisher, the article (which, it should never be forgotten are given for free, in most cases, to the publisher ) will not be published. (Story 2000) A slight variation, often used with free lance commercial writers for magazines and newspapers, is to refuse to pay compensation to such writers when digitalised materials they wrote are re-sold or licensed to a third party. Both mechanisms significantly change the author-publisher power relationship to the former's detriment, increase the revenues of publishers, and give publishers even greater power over the use of and access to copyright-protected information, including --- and of particular interest for this report --- the power to stop its use on the Internet and to solely determine the costs, if any, of such access. There are, however, welcome signs of  change in this area. In June 2001, the US Supreme Court ruled in the case of Tasini et al v. The New York Times et al that freelance writers have the right to claim remuneration for electronic reuses of their work and that granting of first publication rights does not include the granting of digitalisation rights as well. By analogy and as is explored in Section 4 in more detail, requiring academic authors, who are one of the main producers of education-related materials for use in least developed countries (and elsewhere), to assign to publishers anything other than first publication rights is equally "unreasonable." A change in the current regime would potentially open access to vast free stores of information and knowledge on the Internet, including for poor countries. As various studies have shown, few academic authors are not interested in direct financial remuneration for their academic writings; their main interests lie in the "psychic" benefits of publication, the widest possible exposure of their work, and the indirect financial rewards of career advancement. (Association of Learned and Professional Society Publishers)  
   
      On the information distribution side, the main impact of this perceived "threat" has been a series of strong moves to significantly tighten the restrictions on access to Internet-based materials and to ban --- and in some cases, criminalise the use of --- devices which allow 
"the circumvention of effective technological devices [e.g. encryption technologies] that are used by authors in connection with the protection of their rights."(Article 11, WIPO Copyright Treaty; see also the US DMCA). Such anti-encryption measures, encryption technologies more generally, and the powers given Internet Service Providers to unilaterally shut down websites which, in their opinion, contains copyright-infringing or other illegal materials, have been issues of sharp controversy in the US following passage of the DMCA and the July 2001 arrest in the US of a Russian programmer, Dimitry Skylarov.24 Certainly some of these issues lie outside the scope of this report, but we should note that the DMCA has extra-territorial implications ( e.g. the US has the largest number of web servers in the world and so non-US mounted sites may be affected) and that encryption technologies make no distinctions between fair and unfair uses ( See Recommendations 1 and 6).

 3.7    The Internet as a threat to poor countries  

As we look more closely at developing patterns on the Internet, we can start to appreciate some of the ways that the Internet is, in fact, creating a number of "threats" to least developed countries, and in particular, to their educational programmes. First, there is a growing trend for publishers to cancel print-only subscriptions to their journals and offer instead electronic-only subscription packages. For example, this is what a leading academic publisher, Cambridge University Press, has started doing in the autumn of 2001. "The library market is moving to electronic-only subscriptions. There has been a rapid shift over the past year, so our selling models have had to change," a CUP manager explained. (Davis)  The electronic-only model presumes, of course, that users/customers have excellent access to both computers and the Internet, as well as the financial resources to pay for such access; as detailed above, these presumption are not valid across the least developed world. Of course, it would be alarmist to suggest that the world of hard-copy materials is shrinking rapidly, but there are a number of worrying signs. If these trends become more pronounced, such a reduction in printed materials will not be in the interest of least developed countries where libraries still rely predominantly on hard copy materials and, and as they have very limited funds for book purchases and journal subscriptions, "survive on gifts and exchanges and soft money from overseas donors." (Darch) 

      Second, encryption technologies will dramatically reduce the possibilities of making donations or sharing books. The ebook model, for example, is based on the view that each individual user should purchase her or his own copy; sharing is not allowed and encrypted technology ( of the type that Dimitry Skylarov "cracked") tries to make sure this does not happen. If it becomes widespread, such a phenomenon would not only prevent donations from overseas but, more importantly,  also block the widespread pattern of sharing and re-using books and similar resources in poor and least developed countries.  (Though in some ways the product of necessity and low incomes, this " sharing ethos" represents a positive social/cultural value that should be cherished, especially when compared to the individual consumer culture of the developed world which regards second-hand goods as inferior ones.) The vast majority of African libraries are already suffering badly --- in part because their funding is often a low priority with governments in poor countries --- but the "era of the Internet" may make the situation even worse unless there are dramatic changes to our information access policies and the Internet's liberating possibilities actually realised. As one librarian with long-standing experience in more than five African countries has written, 

The commodification of information in the global economy is a gloomy prospect for librarians who have been trained in the liberal tradition of the free flow of information as well as for scientists who believe in full disclosure as the basis for scientific method. It seems that we will not be able to enter the electronic library of the future without a credit card. ( Darch) 

3.8    Internet access/ copyright models
 
It is now worth briefly examining several different copyright and Internet access models that currently exist and considering whether or how they can be beneficial to least developed countries, their peoples, and their educational needs. Certainly a number of sites and projects follow a "best practice model"; a few examples include the following: 

a) Project Gutenberg (http://promo.net/pg/ ). This project and site contains more than 4,000  out-of-copyright book ( i.e. in the public domain) that are available for free downloading and use. It is simply a tremendous resource and an excellent site for teachers to use to find materials, especially works of fiction, for their students. 

b) The British Medical Journal ( http://www.bmj.com/) The BMJ online site allows free access to the full text of all articles published in the weekly BMJ from January 1994 to present. The fact that this site receives tens of millions of visitors annually from across the globe is a testament to its value; it is indeed a world model and an exception to the far-from-rosy picture of online access at UK-hosted sites. It is recommended that discussions should be started to enquire if the BMJ's sister publication, Clinical Excellence, which would also be of great use to medical personnel in least developed countries, could also be encouraged to  provide free online access. ( A US-based site, PubMed Central, http://www.pubmedcentral.nih.gov/, which is a digital archive of life sciences journal literature managed by the US  National Library of Medicine, should also be noted in the medical field. It allows free full text access to more than 40 journals in this area. ) 

c) The Free Online Scholarship Movement - This is a rapidly burgeoning movement across a number of academic disciplines which again allows free full text access to scholarly materials. For example, academics may post their articles to an "open archives" on the Internet just before sending it off to a publisher for publication ( and transfer of rights) in a hard copy format. The best guide to the FOS movement, edited by Peter Suber, is available at 
http://www.earlham.edu/~peters/fos/guide.htm. A growing  number of journals now allow free full text access and use and, in an interesting development, the entire editorial board of more than one journal has resigned when a commercial publisher refused to allow free online access; the same board then established a new journal based on these principles. Such existing projects and other potential projects are worthy of UK government support and should be further publicised in least developed countries. (See Recommendation 4)

     But there are a number of other models which are of only partial, very limited, or of no use to the least developed countries. These include: 
a) The practice of many publishers to allow free online access only to the abstracts or summaries of article but require payment for access to the actual article. (Oxford University Press is but one of many publishers that follows this practice.) This approach, which is essentially a means of advertising goods for sale, negates by a technological measure ( i.e. a reader/user is not able to see the whole article) statutorily protected users rights. 
b) An increasing number of publications are issuing their materials in both hard copy and digital formats, which is a positive development. Given that the mailing costs of hard copy publications from developed to less developed countries are often quite steep or delivery is slow, the possibility of getting essentially immediate access is to be welcomed. However, this is potential benefit is negated because a number of journals charge often excessive "double billed" rates for the digital access version of hard copy materials (which are themselves prepared in a digital format) and "credit card" phenomenon mentioned by Darch (above) comes into play. There may also be restrictions on the use of such digitalised materials by distance learning students, a growing student constituency in both developed and least developed countries. Because of a statutory loophole, however, such practices cannot be challenged legally. (See Recommendation 2)

Recommendations: 

1. To ensure the protection of users' rights (e.g. fair dealing access for educational and research purposes) with regard to copyright-protected/restricted materials, the UK gove