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					    Strong Copyright in Whose Interest?

    Rainer Kuhlen
University of Konstanz                                     Some aspects of
                                                        international copyright
           Germany                                            regulations
Department of Computer
and Information Science




   Information Engineering - Department of Computer and Information Science at the University of Constance
                  Strong IPR in the Interest of
                          Innovation?

                         Intellectual property rights (IPR)




Copyright and                                                                           Industrial
Related Rights                                                                           Property

                                                                                       Inventions
                                                                                        (Patents)
                                                                                      Trademarks
                                                                                   Industrial designs
                                                                                                  ....
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  who owns
                                                                                                        Copyright
 knowlege?
                                                 stakeholder                                            industries
    or is it
                                                   interests
information?
                                                    in IPR

         Publishin                                      Internatio                                         Exception
            g                                               nal                                               s–
         markets                                       regulation                                          Teach act
                                                        copyright                                          „Schranke
                                                       enforceme                                             n“ for
     information
                                                             nt                                            education/
     autonomy                                        potentials                                            conclusio
                                                                                                            science
                                                            for                                                n
Cornyn/Lieber                                         developm
     man                                                  ent
 § 38 UrhG-D

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                                                          who
                                                        owns

                                                knowledge
                                                   and

                                             information?


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     who owns

knowledge and

 information?

       Brief Thomas Jefferson an Isaac McPherson, Monticello
                                  13.8.1813:
  „If nature has made any one thing less susceptible than all others of
  exclusive property, it is the action of the thinking power called an
    idea, which an individual may exclusively possess as long as he
  keeps it to himself; but the moment it is divulged, it forces itself into
    the possession of every one, and the receiver cannot dispossess
  himself of it. Its peculiar character, too, is that no one possesses the
           less, because every other possesses the whole of it.
  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.”


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          who owns

     knowledge and

      information?

     „To promote the progress of science and useful arts, by securing
     for limited times to authors and inventors the exclusive right to
     their respective writings and discoveries“
     United States Constitution, Art. 1 Sect. 8

    „Copyright protection shall extend to expressions and not to
    ideas, procedures, methods of operation or mathematical
    concepts as such”
    TRIPS - Agreement on Trade-Related Aspects of Intellectual Property
    Rights Sect. 1 Art. 9 Abs. 2




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                 who owns

            knowledge and                           thus
             information?

            Knowledge is owned by anybody or everyone, respectively
 but

           Knowledge can only accessed when mediately represented

How?              Knowledge is represented in information products

therefore




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             who owns

        knowledge and
                                                therefore
         information?
      use of knowledge is only possible through access to information



making knowledge, theoretically abundantly available, a scare
resource, too

 rather than

allowing knowledge and information being means for individual
and societal development



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                                             Stakehold
                                                 er
                                               interest



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    stakeh
     older
    interes                                                              norms,
      ts in
       IPR
                                                                        values??
                                governments
    global
  regimes                       law,                                             collecting societies
   (WTO)                     regulation


                                               intellectual
                                                                                                             authors
                                                 property
international
organizations
   (WIPO)                          market                        code                                          DRM-
                                                               software                                       industry


                              content,                                          ICT
                        Information industry                                  economy


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           stakeh
            older
                                                                                           global discourses
           interes
          govern-
             ts in           collecting
           ments
              IPR            societies
                                                                          NGOs                                   science
                                                                  civil society groups
 global       Intellectual
regimes                               authors
               property
 law
                                                          norms, values                      competence
     Content
    market            code          DRM-
    economy          ICT           industry                                                                                 Consumer
                   sconomy                                                                                                  protection
                                                                                                                           organizations
                                        educational                               intellectual
                                       organizations                               products

                                         acceptability
                                                                                                                       libraries,
                                                       media -                                                       information
                                                      community                                                         centers
                                                        radios
                                                                                  UNESCO




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                                                  copyright
                                                     industri
                                                     es




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     copyright

   industries




      The core industries are those industries whose primary purpose is to
       create, produce, distribute or exhibit copyright materials. These
     industries include newspapers, books and periodicals, motion pictures,
    recorded music, music publishing, radio and television broadcasting, and
                                   business and entertainment software.
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     copyright

   industries




      USA market approx 40% of the world copyright market (33% print; 40%
                         optical; 50% magnetic/digital)
                          $ 2047.65 billion word-wide


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     copyright

   industries




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     copyright

   industries




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                      as                                                                       NGOs                       science
                                                                                       civil society groups
                   means
                     for
                   develo                                                         norms, values                competence
                   pment                                                                                                           Consumer
           govern-
                                                                                                                                   protection
                                 collecting
            ments                societies                       educational                          intellectual                organizations
                                                                organizations                          products
                                                                    acceptability
 global
                  Intellectual           authors
                                                                                                                               libraries,
regimes                                                                     media.
law
                    property                                                                                                 information
                                                                          community
                                                                                                                                centers
                                                                            radios                  UNESCO
      market
        Content           code         DRM-
       economy          ICT           industry
                      sconomy

                                                                      new ways of deliberative
            (likely) results                                           democracy
              of disourse                                             new ways of media production and
        reformulation of                                               interactive usage
       international IPR                                              new attitudes toward knowledge and
                                                                       information (sharing, open access)
          as a means for                                              new ways of collaborative work in
           development                                                 science,education and economy

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                                                publishing
                                                    industri
                                                    es




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        Reed
    Elsevier




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   Thomson
    Group




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      Wolters
    Kluwer




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  publishing                              Scientific publishing in transition
                                  Mark Ware Consulting Ltd. Publishing and Elearning
   industries                                        Consultancy:
                                International Association of Scientific, Technical and
                                              Medical Publishers (STM)

  The global market for English-language STM (scientific,
  technical and medical) journals is about $5 billion. The
industry employs 90,000 people globally, of which 40%, or
36,000 are employed in the EU. Another 20–30,000 full time
             employees are indirectly supported

                           there are about 2000 publishers, made up of learned
                          societies, university presses and commercial publishers
                       (though, to blur the picture somewhat, many society journals
                         are published by commercial publishers). Their respective
                           shares of article output are about 30%, 2% and 64% .
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  publishing                     Open access posits making original research freely
                                               accessible on the web.
   industries                  There are two approaches: open access publishing (gold)
                                              and self-archiving (green).


         There are some 2000-2400 open access journals in
          existence, publishing about 2–5% of total articles.


             They use a variety of funding models, grants, membership
             subscriptions, sponsorship/advertising, commercial reprints,
                  classified advertising, subscriptions to print editions,
              volunteer labour, and subsidy or support in kind by the host
             organisation. The best-known approach, is the “author-side
             payment” model, where a publication charge (mostly in the
                 range $2–3000) is levied on each accepted article . .


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  publishing                 The are are about 23,000 scholarly journals in the world,
                                collectively publishing 1.4 million articles a year. The
   industries                 number of articles published each year and the number of
                             journals have both grown steadily for over two centuries, by
                             about 3% and 3.5% per year respectively. The reason is the
                               equally persistent growth in the number of researchers,
                             which has also grown at about 3% per year and now stands
                                                  at around 5.5 million

  Over 90% of STM journals are now online, and in many
  cases their publishers have retrospectively digitised earlier
         hard copy material back to the first volumes.

                        The average total cost of publishing a journal article with
                        a print and electronic edition has been estimated at $3750.



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                                                   Internatio
                                                       nal
                                                   regulation




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     stro                                                                                                       „has caused a
      ng                                                                                                     subtle reorientation
    copy
    right                                                                                                     of copyright away
 Berne Convention for the Protection of Literary and                                                          from the author
  artistic works (Paris Text 1971)
                                                                                                              towards a trade-
                                                                                                                   oriented
 Agreement on Trade-Related Aspects of Intellectual Property
  Rights (WTO-TRIPS-Treaty) – 1994                        perspective“

 WIPO Copyright Treaty (WCT) - 1996
                                                                                                                           1996
                                                                                                                      Pérez de Cuéllar
 WIPO Performances and Phonograms Treaty (WPPT) - 1996
                                                                                                                      UNESCO-Bericht
                                                                                                                       Our Creative
 Digital Millennium Copyright Act - USA 1998
                                                                                                                            Diversity
 EU -European Copyright Directive (“the Directive”) 2001

 First Adaptation of the European Copyright Directive in
  Germany 2003 – First Adaptation („Zweiter Korb“) on its way


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      stro
       ng
     copy
     right
 Berne Convention for the Protection of Literary and
  artistic works (Paris Text 1971)

Article 9
(1) Authors of literary and artistic works protected by this
Convention shall have the exclusive right of authorizing the
reproduction of these works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to
permit the reproduction of such works in certain special cases,
provided that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a
reproduction for the purposes of this Convention.
                                                            ....


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   stro
    ng
  copy
  right
 Agreement on Trade-Related Aspects of Intellectual Property
  Rights (WTO-TRIPS-Treaty) – 1994

The TRIPS Agreement is Annex 1C of the Marrakesh Agreement
Establishing the World Trade Organization, signed in Marrakesh,
Morocco on 15 April 1994.
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
                                Article13
Limitations and Exceptions
Members shall confine limitations or exceptions to exclusive rights
to certain special cases which do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder.
                                                             ....
                                                                                 Three step test

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   stro
    ng
  copy
  right
 WIPO Copyright Treaty (WCT) - 1996

 WIPO Performances and Phonograms Treaty (WPPT) - 1996
The TRIPS Agreement is Annex 1C of the Marrakesh Agreement
Establishing the World Trade Organization, signed in Marrakesh,
Morocco on 15 April 1994.
http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
                                Article13
Limitations and Exceptions
Members shall confine limitations or exceptions to exclusive rights
to certain special cases which do not conflict with a normal
exploitation of the work and do not unreasonably prejudice the
legitimate interests of the right holder.
                                                             ....
                                                                                 Three step test

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     stro
      ng
    copy
    right
 Digital Millennium Copyright Act - USA 1998




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 stro
  ng
copy
right
 EU -European Copyright Directive (“the Directive”) 2001




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 stro
  ng
copy
right




                                                    copyright

                                                  enforceme
                                                      nt



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 stro
  ng
copy
right

             Extension of IPR in time


             Extension of IPR to living objects and other objects in nature


             Extension of IPR to software (still controversial, at least in
              the EU)

             Introduction of some sui-generis-regulation, such as for
              data bases (as in the EU)




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 stro
  ng
copy         Lowering the level of originality for IPR
right


             Extension of IPR to business models


             Extension of publication rights


             Extension of technical protection of IPR (Digital Rights
              Management) and legal protection of technical measures


             Reducing copyright exceptions (science, private copies,...)




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 stro                                                                                       Bono: an American
  ng
                  Extension of IPR in time                                                record producer, singer,
copy                                                                                        actor, and politician
right

Sonny Bono) Copyright Term Extension Act 1998 - also:
"The Mickey Mouse Protection Act"

Bono, respectively Mary Bono, his widow, wanted copyright to
last forever – but this (“forever”) was considered a violation of
the Constitution – “limited time”

Proposal Jack Valenti (Motion Picture Association of America):
"forever less one day"




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 stro
  ng
                  Extension of IPR in time - +20 years
copy
right


Before:
single author´s copyright 50 years after his death
corporations´ copyright 75 years after invention

Then:
single author´s copyright 70 years after his death (Mickey
mouse – invented 1928 – to be expired 2003)

corporations´ copyright 95 years after invention (Mickey
mouse extended till 2023)




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                                                        Exceptions –
                                                         Teach act

                                                       „Schranken“
                                                           for
                                                       education/sci
                                                          ence
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          Exception
              s
          Teach act




                    C.L.Ashley: The Teach Act ... EDUCAUSE Vo: 2004, Issue 13
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          Exception
              s
          Teach act




                    C.L.Ashley: The Teach Act ... EDUCAUSE Vo: 2004, Issue 13
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   Except
    ions
   Teach
     act




                                                 Laura N. Gasaway 2002
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   Except
    ions
   Teach
     act




                                                 Laura N. Gasaway 2002
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   Except
    ions
   Teach
     act




                                                 Laura N. Gasaway 2002
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   Except
    ions
   Teach
     act




                                                 Laura N. Gasaway 2002
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   Except
    ions
   Teach
     act




                                                 Laura N. Gasaway 2002
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   § 52a
  Germa
     n
  Copyri
  ght Act
Germany
The German Copyright Act from 1965 as amended by September 10,
2003, states in Section 52a (1) no. 1 the permissibility of

“making available to the public small portions of published works,
other short works, or individual contributions to newspapers or
periodicals, exclusively for purposes of illustration for teaching,
for students and other participants in instruction in schools,
universities, post-secondary institutions, and noncommercial career-
training institutions. Access must be restricted to a limited circle of
participants.“

Levies for each use needs to be paid for a collecting society

Teaching Exceptions in European Copyright. Law – Important Policy Questions Remain
Silke Ernst & Daniel M. Haeusermann - 2006
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                                                        information
                                                         autonomy
                                                            - NIH
                                                      Cornyn/Liebe
                                                           rman
                                                      § 38 UrhG-D

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          inform
            ation
          autono
Germany my                                                         Germany
UrhG § 38 Beiträge zu Sammlungen                                   UrhG § 38 Articles in journals
(1) Gestattet der Urheber die                                      (periodicals)
Aufnahme des Werkes in eine
                                                                   (1) If the author agrees to have their
periodisch erscheinende Sammlung,
so erwirbt der Verleger oder                                       work published in a periodical, then
Herausgeber im Zweifel ein                                         the publisher normally receives the
ausschließliches Nutzungsrecht zur                                 exclusive copy and dsitribution rights.
Vervielfältigung und Verbreitung.
                                                                   Neverthess, after a period of 12
Jedoch darf der Urheber das Werk
nach Ablauf eines Jahres seit                                      months the author resumes his
Erscheinen anderweit vervielfältigen                               originals rights, in particular to make
und verbreiten, wenn nichts anderes                                copies of his work and distribute it, if
vereinbart ist.
                                                                   nothing else has been agreed upon
participants.“
                                                                   in their contract.



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        inform
         ation                                            Germany
        autono
          my                                              The second chamber of parliament, the
                                                          representatives of the states, have
Similar, originally                                       suggested that the embargo time should be
U.S. National Institute of Health                         shortened to at least 6 months and, more
(NIH) (Bethesda, Maryland)
                                                          important, that this norm is mandatory and
- after protest from publishera
afterwards 12 months again                                cannot be waved.


        Initiative by John Cornyn (R -Texas) and Joe Lieberman („D“-
        Connecticut)
        "Federal Research Public Access Act of 2006" – FRPAA

        http://cornyn.senate.gov/doc_archive/05-02-2006_COE06461_xml.pdf




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        inform                      "Federal Research Public
         ation                      Access Act of 2006" – FRPAA
        autono
          my
     „Congress finds that (1) the Federal Government funds basic research
     and applied research with the expectation that new ideas and
     discoveries that result form the research, if shared and effectively
     disseminated, will advance science and improve the life and welfare of
     people of the United States and around the world; and (2) the Internet
     makes it possible for this information to be promptly available to every
     scientist, physician, educator and citizen at home, in school, or in a
     library.“

“The Cornyn-Lieberman bill would create unnecessary costs for
taxpayers, place an unwarranted burden on research
investigators, and expropriate the value-added investments Professional Scholarly
made by scientific publishers-many of them not-for-profit    Publishing Division of the
associations who depend on publishing income to support Association of American
pursuit of their scholarly missions, including education and Publishers (AAP-PSP)
outreach for the next generation of U.S. scientists“


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   inform                      The Alliance for Taxpayer
    ation                      Access
   autono
     my
1. American taxpayers are entitled to open access on the Internet to the
peer-reviewed scientific articles on research funded by the U.S.
Government.
2. Widespread access to the information contained in these articles is an
essential, inseparable component of our nation’s investment in science.
3. This and other scientific information should be shared in cost-effective
ways that take advantage of the Internet, stimulate further discovery and
innovation, and advance the translation of this knowledge into public
benefits.
4. Enhanced access to and expanded sharing of information will lead to
usage by millions of scientists, professionals, and individuals, and will
deliver an accelerated return on the taxpayers' investment.




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                                                          potentia
                                                             ls
                                                            for

                                                          develop
                                                           ment


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       poten
        tials
         for
       devel
       opme
          nt

 Knowledge and information have potentials for development (to
 make a difference)


economically                    socially                   politically                  individually                   culturally



                                                            balances




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  balances

                               knowledge is principally a public good (belongs to the
                                commons) - information products can be privatized


balances socially/politically determined, according to changing levels
of acceptance for IPR regulations

                                                        balances

   partially excludable                                                                         freely accessible


                                                      negotiable

 technical protection                                                                            legal protection




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   balances



                                                          balances

technical protection                                                                                legal protection
  Digital Rights Management
                                                                                    but also for commercial
                                                                                    publication services in
    Primarily in the entertainment                                                science, education,and the
                industry                                                                     media
     music, videos, games, cell
              phones, ...




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     balances


                                                            balances

      technical protection                                                                    legal protection
 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS-Abkommen)
  – 199<4

 WIPO Copyright Treaty (WCT) - 1996

 WIPO Performances and Phonograms Treaty (WPPT) - 1996

 Digital Millennium Copyright Act - USA 1998

   European Copyright Directive 2001, to harmonise and update the copyright laws of
    member states to take account of the Internet and other new technologies



   First Adaptation of the European Copyright Directive (“the Directive”) in Germany 2003
    – further process („Zweiter Korb“) delayed by the Federal Election 2005



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   imbalances




        In the last years (since mid 90ies) the balance has been lost for the
        benefit of economical interest




economically                          socially               politically                  individually                 culturally




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   extension
    and
                             (Technical and legal) extension and enforcement of strong
enforcement of
     IPR                      IPR regulation is primarily in the interest of commercial
   regulation
                                        exploitation of existing knowledge




    not supportive for the production of new knowledge

    not in the interest of cultural development

    not in the interest of creators/authors

    not in the interest of user

    not appropriate for overcoming digital divides




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                                                          potentia
                                                             ls
                                                            for

                                                          develop
                                                           ment
                                                             ?

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 potential for

development
                                            WIPO – towards a Development Agenda
                                    Initiative of Brazil, Argentina (and other countries of
                                          the South, supported by many civil society
                                                     organizations) - 2005
       “Now more than ever before, it has become clear that in the
  increasingly global, knowledge economy, access to knowledge and
        technology is indispensable for social and economic
  development and for the well-being of peoples in all countries”
                          (No. 13 des Proposal)




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   potential for
                                          Geneva Declaration on the Future of the World
  development
                                            Intellectual Property Organization - 2005

 “Morally repugnant inequality of access to education, knowledge
  and technology undermines development and social cohesion”

 “Anticompetitive practices in the knowledge economy impose
  enormous costs on consumers and retard innovation”

 “Authors, artists and inventors face mounting barriers to follow-on
  innovation”

 “Concentrated ownership and control of knowledge, technology,
  biological resources and culture harm development, diversity and
  democratic institutions”

 “Private interests misappropriate social and public goods, and lock
  up the public domain”

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   potenzial
    for                                  Geneva Declaration on the Future of the World
 development                                  Intellectual Property Organization


“Humanity stands at a crossroads – a fork in our moral code and a
 test of our ability to adapt and grow. Will we evaluate, learn and
profit from the best of these new ideas and opportunities, or will we
 respond to the most unimaginative pleas to suppress all of this in
   favor of intellectually weak, ideologically rigid, and sometimes
                brutally unfair and inefficient policies?”



                     open access
                     free software
                     creative commons
                     knowledge sharing



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                                                        conclu
                                                         sion


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      concl                          Changes in information and
      usion                          communication spaces

               reformulation of international IPR – more a
                means of development than one of control
               new ways of deliberative democracy
               new ways of media production and interactive
                usage
               new ways of collaborative work in science and
                economy
               new attitudes towards knowledge and information
                (sharing, open access)




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 consequence
      s



Societies which care more for the protection of intellectual property
of existing knowlege and information

and for the protection of exploitation rights

      rather than for the production of new knowledge which can be
      transformed into innovation

      and for the sustainability of knowledge in order to allow future
      generations access to knowlege and information

do not thrive and prosper economically, scientifically, politically and
culturally.




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                                                              to put it differently:
   consequence
        s

The more permissive and the more sustainable production and
usage of knowledge and information
the higher
 the level of economics
the lever of science,
 the level of democracy and transparency in society

                                                        consequently, there must not be a
                                                        contradiction between commercial
                                                      demands and free access to knowledge
                                                                 and information.

No contradiction between information economy and information
ecology
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          Thank you very much for
               your attention




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