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First, they are just flat wrong. As I described, most open source and
free software relies fundamentally upon the intellectual property right
called “copyright.” Without it, restrictions imposed by those licenses
wouldn’t work. Thus, to say it “runs counter” to the mission of promoting
intellectual property rights reveals an extraordinary gap in understanding—the
sort of mistake that is excusable in a first-year law
student, but an embarrassment from a high government official dealing
with intellectual property issues.
Second, who ever said that WIPO’s exclusive aim was to “promote”
intellectual property maximally? As I had been scolded at the preparatory
conference of WSIS, WIPO is to consider not only how best to
protect intellectual property, but also what the best balance of intellectual
property is. As every economist and lawyer knows, the hard question
in intellectual property law is to find that balance. But that there
should be limits is, I had thought, uncontested. One wants to ask Ms.
Boland, are generic drugs (drugs based on drugs whose patent has
expired) contrary to the WIPO mission? Does the public domain
weaken intellectual property? Would it have been better if the protocols
of the Internet had been patented?
Third, even if one believed that the purpose of WIPO was to maximize
intellectual property rights, in our tradition, intellectual property
rights are held by individuals and corporations. They get to decide
what to do with those rights because, again, they are their rights. If they
want to “waive” or “disclaim” their rights, that is, within our tradition,
totally appropriate. When Bill Gates gives away more than $20 billion
to do good in the world, that is not inconsistent with the objectives of
the property system. That is, on the contrary, just what a property system
is supposed to be about: giving individuals the right to decide what
to do with their property.
When Ms. Boland says that there is something wrong with a meeting
“which has as its purpose to disclaim or waive such rights,” she’s
saying that WIPO has an interest in interfering with the choices of
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