Sixth Annual Meeting of the Internet Governance Forum
27 -30 September 2011
United Nations Office in Nairobi, Nairobi, Kenya
September 27, 2011 - 11:00AM
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The following is the output of the real-time captioning taken during the Sixth Meeting of the IGF, in Nairobi, Kenya. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.
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>> We are going to be starting in one minute.
>> DIXIE HAWTIN: Good morning, everybody. Hello? Okay. This isn't ideal, but hopefully something will get sorted out through the workshop. I'd like to start by saying good morning and thank you very much for attending our workshop.
Also a quick apology, that I sent out an E-mail saying that it was starting earlier than it was. Anyone who ran out of a previous workshop, I apologize.
We are going to start this session with the first 20 minutes or so with a background about the coalition, and some of our recent activities.
Then the bulk of the session will be looking at the issue of copyright, and how it is impacting on human rights in the Internet environment. And hopefully by the end we will do strategic thinking about what kind of activities and networks and other actions are needed in this area.
I also want to say quickly now that immediately after this workshop, we will be having an internal meeting to discuss a bit about the organisation of the coalition, and to think a bit about what type of activities we might want to do over the next year, and how we can keep these kinds of conversations up throughout the year.
So if you are interested, and you would like to come, everyone is more than welcome to stay for that.
I'm going to start with a brief background about the Internet Rights and Principles Coalition. We are a loose coalition of individuals and organisations who are committed to upholding human rights in the Internet environment.
There are two main elements to that. The first is ensuring that human rights standards are respected in Internet Governance, and the second is ensuring that the Internet is governed in such a way as to maximize its potential in a human rights enabling environment, so they are different and integrated and connected certainly in our approach.
As an IGF coalition, we are open to all stakeholders, and given our subject matter, it's perhaps unsurprising that many of our members come from civil society and academia, but we still have some businesses and Government members, and we are always welcome to more. In fact, we welcome everyone who is interested in these issues.
At the very start of the coalition, our main goal was to create a charter to apply existing human rights standards to the Internet environment, and the idea of it is not as a legally binding document, but rather as a platform for discussion, and building consensus about what the right ways of applying human rights standard to this environment are, and what we should be demanding essentially.
This is an emerging evolving document. It began with a collaborating exercise where everyone could put their thoughts into a wiki. And what came out of that was a really rich multifaceted document. And then the second stage was we got a group of human rights experts; unfortunately, none of them are able to be here today. But they are all big names in this field. So Miriam Mazuki and Wolfgang Benedict and Ricky and other people, and they kind of took that wiki document and condensed it into version 1.0 of the charter, which we launched at the last IGF. And coming out of that IGF, that we got loads of great feedback about ways to improve it, things that we needed to include, areas where perhaps our approach wasn't as strong as it should be, and so, right after the last IGF we had a period of quite intensive consultations and discussions within the coalition, looking at some of the more controversial issues.
And then we came out with a better version which is the current kind of background version, that is still being consulted on. And if you guys are interested in reading it and commenting, that would always be very appreciated.
And it's quite a wide-ranging, long, many-layered document. So at the last IGF, during our workshop, it became clear from some of the participants that what they really thought was necessary now was a kind of shorter more cohesive document that we could use now for advocacy reasons.
So Jochai from Access who is very involved in putting those ten IRPs together, and you will find them around the room, is just going to introduce those now.
>> JOCHAI BEN-AVIE: Can you hear me? Nod vaguely. So, I think rich and multifaceted is probably a good summary of the IRP charter.
It is a really comprehensive depth of wealth of thought and really a promising document that I think has the potential to become a bible.
(No audio.)
Can you all hear me now? There we go.
I was saying that I think rich and multifaceted is a very good summary of the IRP charter. It is a very comprehensive document with a wealth of information, and I think has a lot of promise to eventually become a bible for many of us and what we think about a rights-based approach to Internet policy.
But I think that there was sort of the belief at last year's IGF and in the years since, as work continues on the charter, that decisions about Internet policy are being made right now, and there is a need for a sort of tighter, punchier, punchy Working Group is what we called it, statement of the ten top Internet principles that we thought all governments should use, and include in their national laws, and also provide a framework for some of the more regional work and civil society orientations that are coming together around these issues.
The document defines ten key rights of principles that must form the basis of Internet Governance. They are, I think what is the most promising, is that they were crafted in a true multistakeholder fashion, by -- every stakeholder was represented in the process, in the IRP Working Group, the coalition as a whole, and also in the, working on the principles. I'll stop every four words and then maybe you can hear everything I say.
The principles are rooted in international human rights standards, derived from the coalition's charter. And Dixie, did you want me to read them?
>> However...
>> JOCHAI BEN-AVIE: I'll quickly run through these so you have an idea of what we think is important. But they are scattered around, and Dixie and I have several, if you want your own copy.
The Internet offers unprecedented opportunities for the realisation of human rights, and plays an increasingly important role in our everyday lives. It is therefore essential that all actors, public and private, respect and protect human rights on the Internet.
Steps must be also taken to ensure that the Internet operates and evolves in a way that fulfill human rights to the greatest extent possible.
To help realise this vision of rights-based Internet environment ten rights and principles are: One, universality and equality. All humans are born free and equal in dignity and rights which must be respected, protected and fulfilled in the online environment.
Two, the Internet is a space for the promotion, protection and fulfillment of human rights and advancements of social justice. Everybody has the duty to respect the rights of all others in the online environment.
Three, everyone has a right to equal access and use a secure and open Internet.
Four, everyone has the right to seek, receive and impart information freely on the Internet without censorship or other interference. Everyone also has the right to associate freely through and on the Internet for social, political, cultural and other purposes.
Five, everyone has the right to privacy online. This includes freedom from surveillance, the right to use encryption, and the right to online anonymity. Everyone also has the right to data protection, including control over personal data collection, retention, processing, disposal and disclosure.
Six, the rights to life, liberty and security, must be respected, protected and fulfilled online.
I'm going to stop reading principles. You can all read them later. But I think that in summarizing my last few minutes here -- can you hear me if I talk really loudly? Now there is a mic. I think that Dixie charged me with one point on how can we actually be using these more effectively.
It is a great document, reflects multistakeholder process and has legitimacy in terms of how we can use this for advocacy tools, but I don't think it had quite the adoption that we would have liked to this point.
I think that as society and others, stakeholders -- I think we are seeing a lot of -- I'm going to talk really loudly, if that works for everyone. I think that we are seeing a lot of Governments taking a crimes-based approach to Internet policy. So we are going to talk later in the half of the session about copyright enforcement in many jurisdictions around the world.
I think perhaps one of the things we can do to reframe this debate towards a rights-based approach is exactly that.
Let's start with a framework of rights. I think Brazil is an interesting case of the civil framework. They are trying to pass the law right now. But I think that maybe this document could form a really interesting tool as the basis for that kind of Internet policy framework, that includes the rights-based approach.
>> DIXIE HAWTIN: Sorry about this. They are going to reset the system. Hopefully, once we get to the copyright space, it will be much easier. It is working now? Hello? Great.
Okay. So thank you. That was a really good introduction to the ten IRPs.
I want to open it briefly to the floor now, if anyone did want to contribute on any ideas about the ten IRPs, what place they might have in Internet Governance, what their value might be, and, or any ideas about what we can do to promote them in the Internet Governance field, if anyone does have a comment they would like to make, please put your hand up, so I can see it. Please, Matthias.
>> Hello, I'm from the University of Graz. I think with this document we have an incredibly powerful tool to frame the debate. But what we need to do now is to make sure that this document can interact or that we can interact with this document with the multitude of principles that is being developed by different organisations as we speak now. We have just come from a panel where the Council of Europe presented its principles, and the OECD said they would have a recommendation with principles as well. We need to make sure our principles which are focused on human rights also are taken, taking a big place in the whole debate. We need to be proactive about that. Thank you.
>> DIXIE HAWTIN: Thank you. I completely agree, being proactive about it is really important. Anyone else that wants to make a comment at this point? To Jeremy.
>> JEREMY: Yeah, I agree. And there has been a lot of discussion around the growth of principles documents recently. Everyone seems to be putting out a set of principles on Internet Governance around various issues around information security and so on.
Yesterday, both at GigaNet and APC side event, and also at the Internet Governance caucus meeting, we were talking about maybe trying to jump on the bandwagon. We have already got our own sets of principles such as the IRP principles.
But the problem is that even though they were developed in a multistakeholder fashion, they are not recognized at the same level as the intergovernmental documents. One thing that could change that is if the IGF in a main session were to consider these principles. I'm not necessarily talking about the IRP principles as such, but maybe something that includes those that civil society, broadest civil society can get behind.
We are going to be proposing something like that in the closing session at this year's IGF. Civil society wants to help to bring the principles debates back to the plenary level of the IGF for next year, so that next year, rather than having Council of Europe, OECD, all these institutions having their own separate debates on principles and putting out their own separate documents, youth commission, USA, all this should come together and be debated and condensed into something that we can all agree on.
So just to foreshadow this, that is the direction we think we are heading in, and I'm going to be posting some more information about that to those, for those who are members of the Internet Governance caucus mailing list, governance list. Stay tuned. If you are not, come and see me. Thanks.
>> DIXIE HAWTIN: Thank you, Jeremy. Anyone else, any comments on that? Great, in which case we are now going to move on to the main kind of topic and theme of the IRP workshop this year.
We had lots of discussions and conference calls, and we basically decided that the issue that we should focus on this year was copyright.
There are three main reasons for this. The first is that it's clearly a major issue in the Internet Governance field. It is becoming one of the key battlegrounds that is shaping what the Internet is going to look like for a lot of us once you have access.
Secondly, because it is a truly global issue, not only is it impacting the Internet environment in almost all countries across the world, but we also see that a lot of the approaches are coming from the international level, from different international fora and bilateral and multilateral agreements. So this is a good Forum for dealing with those elements of it.
Finally, because it's an issue that doesn't get a lot of attention, focused attention at the IGF, so we wanted to use this space to really think about this issue from a human rights perspective. The idea for the rest of this session is essentially information sharing, developing ideas of best and worst practice, and thinking about what can actually be done in this field, and what needs to be done, and what the human rights answer and the human rights messages should be.
I'm going to pass back to Jochai now who will give us a brief introduction.
>> JOCHAI BEN-AVIE: This is a very tall order to try and summarize international copyright enforcement in five minutes. I'll do my best, but bear with me. If there is a lot of assumed knowledge that you would like clarification on, that is what the question period is for. Or you can come see any of us afterwards.
I think we are seeing around the world a lot of countries considering new copyright enforcement laws, whether it's updates on old laws, or countries that are implementing copyright enforcement mechanisms in response to international trade agreements. So ACTA has not been fully ratified, but there is certainly some movement there. Trans Pacific partnership agreement is also under way. But also in smaller bilateral and multilateral agreements, especially with the United States, which makes signing or including some kind of copyright enforcement mechanism into law is part of, a condition of trade agreement with the U.S. and therefore access to U.S. markets.
This is something that Columbia for example is dealing with right now, and struggling mightily.
So, I think that to give, I've been asked to give a brief summary of the different mechanisms that are in place. If you have any, what is my favorite copyright enforcement mechanism, I'll say, and we should be careful that we talk about copyright and not the broader intellectual property, which encompasses a lot more than copyright.
I think that this panel will be talking about copyright more specifically.
So if you ask me my favorite copyright enforcement mechanism, I say the Canadian notice system. This is where a rights holder will inform an ISP that one of the users has allegedly violated a copyright, and the ISP will pass that on to the user. The user, in recent studies, showed up to 70 percent of users will usually take that content down.
But there is no obligation on the provider to actually remove that content short of, when there is a court order in place.
In Chile and Australia, we have a court based model, where you are a rights holder, you see someone allegedly infringing your work, and then you inform a court, and then a court can give you prejudicial order to have that content removed, that is handed down to the ISP, and or actually to the user, usually. If the user doesn't comply, the ISP will take it down.
Then there is the Digital Millennium Copyright Act style, notice and take down regime, which we see spreading throughout the world. This is again, these are super reductionist summaries of these models. But we have a rights holder will inform the ISP of allegedly infringing content, and that content will be taken down immediately. Various systems have various means of filing counter notice. But we are seeing this especially through international trade agreements being propagated around the world, everywhere from Chile to Hong Kong.
I think that with the exception of the Canadian systems, it is important that many copyright enforcement mechanisms have a graduated response leading to the termination of the Internet connection. This is a relatively new trend, though the DMCA has a provision which is never used to terminate Internet access. France's three strike Hadopi law was the most infamous example of this. Chile, which has been touted for its court-based system, prescribes cutting off the international access to repeat infringers.
Italy has taken this to its extreme, proposing a one strike law last week. Quickly, this proposed law would cut off the Internet access of any user accused of a single act of alleged copyright infringement. And the allegation does not need to come from the rights holder. It can come from anyone.
Again, the ISP would be, or the online service provider, not just Internet service provider, would be charged with determining lawfulness of the content, with having a life or death decision on whether someone has a copyright -- sorry, not copyright -- access to the Internet, and without judicial oversight or intervention. And providers who do not use filters that are blocking services that infringe copyrights would be held civilly liable, and cannot promote or advertise services that may lead users to think a particular service infringes copyright, which seems like a loophole you could drive a truck through.
What is stopping a corporation from alleging that one of their business rivals has engaged in copyright infringement and cutting them off the Internet? Or how about a jilted lover saying, this is a fight, you have a video on YouTube, done in Italy. This might be a little reductionist; a little exaggeration, but I think it could happen.
And what worries me is that this law is based pretty closely to an earlier draft of the ACTA, Anti Counterfeit Trade Agreement. And given the ACTA committee's authority to renegotiate the draft, text of the agreement after it's ratified, this is language that we can possibly see come back.
So I will note that the Dutch, European parliament, Regis Kacka, one of our heroes in the parliament, has already written a letter to the commission asking about the discrepancy between this Italian law and the E-law. But this focuses on the need for stakeholders to come together to fight the maximalist approach to copyright enforcement that we are seeing around the world.
To that regard there are a number of really promising civil society-led initiatives to do just that, and push for a more rights-based approach. We saw 40, 50 organisations come together around the EG8 earlier this year, which was the first time that the G8 heads of state discussed Internet policy, and the EG8 was the Forum that President Sarkozy put together for mostly industry and a handful of folks from civil society to come together and officially advise the G8.
But this was not exactly what we had envisioned and what we would like in a sort of best practice, multistakeholder participatory process.
We then had the OECD, which has a more standing civil society, information society advisory council, which, and OECD, was also contemplating Internet policy at a high level this year. And Katitza will talk more about that.
Jeremy Malcolm, making my way down the panel here, has been pushing for an interesting campaign to get copyright provisions added to the UN guidelines on consumer protection. He will be speaking about that.
Finally, earlier this year, the global congress on intellectual property and the public interest met, was convened with experts from 180 countries from 32 -- sorry, 180 experts from 132 countries and six continents, roughly, to create a comprehensive declaration on where to go with copyright and enforcement from here, and how we can get this back into the idea of copyright as the public interest.
I think I'll end my comments here so you can get more in depth and useful information from the other panellists.
>> DIXIE HAWTIN: Before we do that, in the spirit of IGF, we want comments from everyone in the room. Clearly, there is all sorts of issues around human rights and copyright. Of course, it affects things like access to information. It affects things like freedom of expression. And we are also seeing that a lot of the practices that are brought in to deal with it are affecting other human rights such as allowing due process.
I would like you to throw open again to the floor if anyone wants to give any examples from your own countries, how copyrights is being dealt with there, and about impacts on human rights as well; this is something we would like to hear. Jeremy.
>> A quick comment. First of all, ACTA is not there yet, and we have one unique occasion to kill it in the European parliament when the European parliament will have to give its consents, a yes or no vote, that will happen sometime in early 2012.
It's a tough fight. But it's winnable. We will need to put up the strongest civil society coalition ever. We need to find a way for non-EU citizens to participate to the fight in the European parliament by shaming the members of the European parliament in case they would vote it, things like that.
We would also, in all of those issues that have in common, that private companies be turned into copyright police, we have to get industry along with us. On the ACTA there was this coalition called EuroISPA, which is 2500 Internet service provider companies and ETNO, which is the sum of the historic operators in the EU, took a very strong position against, very strong and in very soft words as companies can do. So we need to get this kind of coalition on the bandwagon, or we will not make it.
Also, but maybe this is for the later parts of the conversation, I think that it is urgent that we push a positive agenda. We have a demonstration on how awful those policies can be for freedom of expression, for right of fair trial, privacy and so on, but always come the same tune, protecting the artists and copyright. We need the music and so on.
We need to break those and push for positive agenda, and once again this is not done through policy Paper, but through big bold political moves.
>> I completely agree.
>> DIXIE HAWTIN: Cynthia.
>> Hi, Cynthia Wong with the Centre for Democracy and Technology, based in Washington, D.C.
I wanted to highlight two things we are working on, opposing in the U.S., which is the Protect IP Act, which would implement DNS blocking for copyright infringement, and also the DNS seizures that the Department of Homeland Security has also implemented, without, well, under their existing authority.
The reason I mention these, and most of the people in the room are familiar with these new proposals, is that one of the arguments we try to make to our Government is that this sets a very bad precedent elsewhere in the world, and these kinds of mechanisms once you put them in place can be misused or spiral out of control, and be used for other purposes as well.
I am asking for the people in this room, my colleagues outside the U.S. especially, that if you are also worried about this, please speak up and please make that publicly known to the U.S. Government, and it would help with our advocacy efforts as well.
>> DIXIE HAWTIN: Great. Thank you. Carlos Alfonso.
>> Hi, Dixie. Please don't take this as criticism, but as we have this session on copyright, it's interesting to see that the Internet rights and principles doesn't have Internet intellectual property as one of the principles, which by the way I totally agree you that, and I would like to offer an example that I think is interesting here, as we are sharing the experiences of our countries.
In Brazil we have the civil rights framework initiative that, as Joachi has just mentioned, has been starting this legislative process in the National Congress. We hope it will be passed as law. But presently, it is a Bill of Law that has been sent to the congress last month. We got the same criticism, because the civil rights framework of the Brazilian Internet does not have intellectual property as one of those, of their principles, and not as one of their goals.
When we were drafting and consulting with the people who had participated in the process, and just to make it clear, this was a Bill of Law that was built upon a collaborative process in which more than 2,000 people contributed to -- sorry, just correct myself, we had more than 2,000 contributions to our platform, to our Web site, to generate this Bill of Law, there was criticism saying copyright or intellectual property should be one of the principles.
But at the same time, we understand that we have to ensure first some fundamental rights as dealing with freedom of access, freedom of expression, right to access, freedom of expression, and of course once you are on the Internet, you have protection of the rights that you exercise on the Web.
But in any case, I recall one of the criticisms, if I'm not mistaken, by IIPI, that says the civil rights framework was not giving enough protection to intellectual property, but in the same time, we have a provision that declares that the right to the Internet is a fundamental right.
So it is a way to counter measure some of the mechanism that Joachai and Jeremy was referring to the growth of the Internet and the degrading of the Internet connection.
>> DIXIE HAWTIN: It is important to highlight that this isn't against copyright per Se. If you look at the universal declaration of human rights, there is respect for the rights of authors. It is about the level of protection which has perhaps gone too far, and the human rights committee made a general comment a few years ago when they said the rights of authors do exist. They are just not equal to what they are currently under international law, and it's also about the practices which are violating other human rights.
I'm going to give one more comment from the floor and then move on.
>> Jorge Vasio from Peru. Just to talk about, why is important but is difficult to involve ISPs in this kind of discussion, even when it's probably the national opposition of an ISP will be I don't want any restrictions for my users, because any restriction could be less users, less subscribers, and less business for me.
But when I was in a meeting in Peru, where we haven't implemented the clause of the free-trade agreement with the United States that is similar to some of the texts, and there was a meeting with the private sector and the Government trying to say how are we going to implement this clause.
Even when the private sector said, okay, I don't want to be responsible of what the users are publishing in our Internet, but I also don't want any relaxation to the users, but not all the ISPs has the same position.
If the ISP is integrated with other Telecom services, such as cable TV, then they have a strong position for copyright protection. Then they have in one hand, they don't want any restriction for the user, but on the other hand, they want strong restriction for content division without protecting copyrights.
So it's difficult to involve the private sector.
>> DIXIE HAWTIN: Thank you very much. We are going to move to the panel again. We are going to basically look at three initiatives which are happening at the moment on the global level in more detail.
Katitza is going to start us off, if she is ready. She is going to be talking about the OECD communique.
>> KATITZA RODRIGUEZ: Thank you, Dixie. Well, I work for the Electronic Frontier Foundation. For those who don't know what is EFF, EFF is a not-for-profit, grass-roots, membership-funded organisation that defend freedom of expression, privacy, innovation and consumer rights in the Internet.
EFF was founded in 1990 by people who foresaw that the Internet would become a huge part of our life. EFF now have more than 14,000 members in 67 countries. EFF fight for freedom in the courts, in the U.S. courts, even when that means taking on Governments or large corporations.
We mobilize concerned citizens to defeat bad legislation, and advise policymakers, the press and the public.
Today, I will talk about the war that EFF is doing as part of the coalition, Civil Society, Information Society Advisory Council, CSISAC. EFF is a proud member of CSISAC. And it is a coalition of over 80 civil society and guilds from across the world that advises the OECD committee for information, computer and communications policy over Internet related issues.
CSISAC gives civil society participants critical information to make policy assessments and evaluate research and policy developments that impact the Internet.
CSISAC and the majority of its members recognize the value of developing international principles for Internet governance that was discussed during the last ministerial meeting, high level meeting, on Internet economy. We believe that, we recognize the values of those principles and especially the importance of establishing multistakeholder processes to resolve policy disputes that could impact the Internet.
CSISAC particularly values the direct input and participation of civil society in stakeholder process such as those put in place at the OECD, and also Council of Europe. CSISACs believe that the basic requirement for participating in any multistakeholder policy dialogue, it should be done in compliance with international human rights standards, respect for the rule of law, and the effective protections of human rights including due process.
Unlike intergovernmental meetings such as EG8 process in which civil society is not invited to participate, we have commitment to developing policies in a general multistakeholder process, but despite that, why CSISAC did not endorse the OECD communique on Internet Governance?
Aside from general and abstract support for multistakeholder processes, consultations surrounding the development of the OECD Internet principles communique while short took great efforts to account for civil society concerns. Ultimately, CSISAC was not able to endorse the OECD communique, but they view the final communique as inconsistent with an open Internet and capable of justifying user penalty that are in direct contradiction to the elements of the civil society declaration which is the founding principles of CSISAC, more principles.
The OECD communique supports policies that governments might use as justification enforcing Internet service providers to police their networks and platforms.
We are not comfortable with provisions in this proposal that seek to span the role of intermediaries to monitor the activities of the customers. Voluntary measures aimed at compelling intermediaries to deter infringement are especially suspect, and raise conflict with fundamental rights such as freedom of expression and privacy. This include blocking of Web content or disconnect Internet users after repeat allegation of copyright infringement. It could similarly encompass cancellation of the domain names and conditions before the definitive proof of wrongdoing have been clearly established.
It can also under some circumstance envision activity of intermediaries on the activities of their user. Historically liability of intermediaries must be maintained. These are integral to innovation in the Web 2.0 world. To align expression to privacy, reliance on voluntary compliance and the traits of regulation is equally likely to lead to the detrimental results for the users.
Many troubling elements of the communique appear to stem from overemphasis on the need to protect and enforce intellectual property rights, and particularly on the need to stomp out online copyright infringement.
Many CSISAC members believes that overly aggressive enforcement of copyright law is a significant threat to an open Internet, as well as to the freedom of expression and to privacy. There is a global push to impose penalty for online copyright infringement that are far out of proportion to the perceived social harms of such infringements.
Now it is helpful to inherent limitations in copyright protections such as fair use or fair dealing. These are integral to innovation, and must be carefully included within any copyright infringement response systems.
CSISAC was especially concerned over references to so-called lawful content throughout the communique. This language ostensibly would require Internet intermediaries or other private parties to determine the legality of content and use of behavior on the platforms and networks, and act accordingly. Internet intermediaries are neither competent nor appropriate parties to make such rulings. This is the role of the judiciary, period.
The very definition of open net adopted by the communique was problematic to CSISAC. Central to an open Internet is the need for networks to adopt neutral nondiscriminatory policies so that they are not able to interfere unfairly with activities of downstream innovators. Far from preserving this important and integral principle, the communique could be used to justify deviation from it.
There are a number of principles that CSISAC sees as integral to the maintenance of an open Internet. First Internet users must not suffer any legal penalties without first having accusation of infringement proven through a procedure that accords users full rights to due process.
Second, usage privacy rights should not be discarded in an effort to enhance copyright infringement detection. Monitoring of user activity at either an individual or network level is out of proportion to any perceived harm that results from online copyright infringement.
Third, anonymous usage should not be identified without some proof of illegality being first presented. Anonymous communications online are fundamental to the ability of minority views and dissidents to spread their views online without fear of retaliation at the hands of intolerant society.
Four, prior restraints on expression through filtering and other similar mechanisms must be avoided. Fifth, penalties must be in proportion to the infringement in question. In particular, Internet is integral part of day-to-day life and expression, this connected individuals or families from Internet access is a remedy that is out of proportion to any basic form of copyright infringement.
Six, legal penalties must not be imposed where clear infringement has not accord, such as when infringement can be traced only to a router, or to an IP address that is not clearly linked to the individual being accused, or where many service are bundled with potentially illegitimate ones.
Seven, the neutral nondiscriminatory conditions under which the Internet have become an engine for innovation and free expression should be preserved.
8, imposing norms of accountability on Internet intermediaries for the content of their users is a step that should not be taken lightly, and should never amount to liability for the activity or expression of others. Intermediaries should not be put in conflict with their users in this manner, as is inevitable if they are to police others' activities, nor are they well suited to doing so.
This OECD communique having issued at the moment where a number of countries have adopted or are in the process of adopting legal regimes that envision this connection from Internet as a function for an alleged or proven online copyright infringement by various means. France has adopted its Hadopi regime which envision a user be disconnected after repeat allegation of copyright infringement. Italy has iterated a similar regime. In Ireland similar measures were adopted by a number of ISPs voluntarily, albeit under threats of litigation. In the U.S., a number of ISPs in close negotiations with the U.S. Government and industry have decided to adopt their own military measures that envision the potential for use disconnection after repeated allegations of infringement.
The discussions that result in these voluntary ISP mechanisms failed to include the direct input from civil society that is suspected in venues truly committed to process. In summary, members will continue to post provisions in Internet Governance documents which could be used to compel Internet service providers and other intermediaries to police their networks and determine without due process what constitutes copyright infringement or other unlawful behaviors.
Further, if steps may be taken to deter these remedies, not encourage them if an open, free and dynamic Internet is to be preserved. We believe that these measures violate the privacy of Internet users, chill free speech and may disconnect people from the vital role that Internet now plays in our personal and professional lives. We will continue to fight for civil diversity as is set out in our founding document. It is our duty to defend human rights laws throughout the world. Thank you.
>> DIXIE HAWTIN: Thank you. Really interesting, and bearing in mind that the communique is such a powerful statement on principles given the political and economic power behind it, and that there is so much in it, that it is good, and that the process was so commendable, but just around this issue, it's opening the door to a lot of really dangerous activity in the human rights area, which Katitza laid out really clearly. Thank you.
I'm going to pass over on a more positive note now, we are going to talk about some of the global efforts to promote a positive agenda around IP, and I'm going to start by handing over to Jeremy Malcolm.
>> Thanks very much. In my brief intervention earlier I mentioned how there is a lot of principles documents springing up around Internet rights and freedoms issues. The same is true on IP. It is sometimes seems that every six months there is a new declaration that comes outs of the civil society meeting, and it actually never really goes anywhere. That is the same problem that the, this coalition has felt in many of us in other contexts have been frustrated by the fact that we spend time and effort into these documents and the only people that ever refer to them are ourselves.
We wanted to, but on the other hand, going to the other extreme and trying to propose a treatise is really impossible. Some years ago there was an effort to put together an access to knowledge treaty, and there is no way that that could ever have succeeded, because the political barriers to convincing Governments to go along with such a thing are just so formidable. There has been a little bit more success in trying to get a treaty, limited treaty access to written works for the blind, at WIPO. But even so, that's been a really hard slog in itself, and the outcome there is still uncertain.
So we wanted to try and find some medium between putting together justice civil society statement to access on knowledge which would probably gather dust, and then trying to propose a treaty on the other hand which governments be going to resist and certainly the private sector stakeholders are going to resist even more strongly.
We came up with the idea of trying to reframe issues of access to knowledge not as intellectual property issues, but as consumer protection issues. The advantage of doing this is that we can then go into a venue where the odds are not stacked against us. At WIPO or in the WTO, the discourse is very heavily weighted in favor of the rights holders.
There are alternative venues where consumer protection is weighted and regulation is weighted in favor of consumers. We thought if we could reframe access knowledge in those terms we may have more success. This document is responsible for helping to put into place 25 years ago, we sort of started the ball rolling, and then handed over to Governments, and governments settled on a set of soft law principles. It was quite a strongly-felt, sorry, a strongly fought battle to get these passed.
They were opposed by business interests, such as international Chamber of Commerce, by developed states such as the USA under the Reagan administration, also Japan and Germany. Developed countries were against having an instrument on consumer protection even though it's a soft law instrument. But in spite of that and with strong support of the G77 on the other side, the United Nations guidelines were adopted in 1985 by consensus of the General Assembly.
What the guidelines do is call upon Governments to develop and to strengthen and maintain a strong consumer policy on issues such as physical safety, information, provision of information, standards, redress, and so on. They were amended once in 1999, to add sustainable consumption as another chapter of the guidelines. My organisation's objective now is have them amended once again to add a chapter on access to knowledge.
The process that we followed was, we had an internal Working Group of consumers, international members who worked for a few months to draw on existing documents that had been already written, including the IRP principles, and also other documents that we had been involved in ourselves, or that other of our colleagues have been involved in over the last five years or so. We didn't want to completely reinvent the wheel. Everything was taken into account. We have referenced what we used.
If you look at our Web site, there is a bibliography there that says these are the sources we consulted. Once our internal Working Group had a set of draft provisions that we were happy with, we had a global meeting in Hong Kong, which was an open meeting, and we split into some small working groups around tables to go over the provisions with a fine toothed comb. As a result of that, some of them were changed. Some were taken out. New ones were added.
Once that was finished, we put them out for a three-month public comment period starting in July this year and wrapping up at the ends of last months. As a result we have a tentatively final set of provisions we will put forward for adoption by governments. The process of doing this is we are going to have a background document prepared with research to support that in a number of countries around the world. We haven't yet selected which countries. But certainly they will be developing countries, that are going to be represented in that research, to explain why these provisions are needed, why consumers are losing out.
And with the support of that background document we are going to ask Governments to support the amendments through the United Nations system which will be through UNCTAD, U.N. conference on trade and development, and so that may well take several years. The last set of amendments in 1989 when we added sustainable consumption took about four years from beginning to end.
It's a long term project. You are probably interested in knowing what is actually in these guidelines.
Many of you have your laptops out. You can go and read them for yourselves. We have a marked up version at A2K network.org/guidelines.
But, I'll spend a couple of minutes to go over some of the main provisions that we have. I'll divide them into two sections. Firstly, there are the consumer protection provisions as one part, and the second part is the more of the copyright access knowledge provisions per Se.
The consumer protection provisions include something that we actually took out of a new proposed EU directive on consumer protection, and this was one of the last amendments that we made after, during the public comment period, which was to require that when you purchase a digital product, which has DRM restrictions or interoperability restrictions, the supplier has to clearly specify what those restrictions are, because you have probably been in the same situation as me, you bought a DVD, Blu-ray or something and you wanted to copy on to another machine and it wouldn't work.
We think consumers need to be very clearly informed about any of those sort of DRM based restrictions and interoperability restrictions.
We have also got a provision that the dissemination of consumer safety information and also consumer facing codes and standards should be free of copyright restraints. These are documents that consumers should be able to freely disseminate, like if you buy a secondhand piece of equipment, it could be dangerous for you to operate the equipment without copying the safety information, so we want that to be available freely without copyright restraints.
Also, and this is very important, when you buy a device or a digital product, the suppliers is not allowed to remove functions from it after you bought it. They are not allowed to change the terms of use after you have agreed to them. And they are not allowed to lock away safe legal uses of this product. If there is something that you can do safely, and without directly infringing copyright, you should be able to do that without being restricted by technological mechanisms to stop you from doing so.
The other part is the access knowledge part, where looking at provisions to increase the availabilities of works through promoting the public domain, preservation of content, open access, free access to Government works, libraries and so on, apart from increasing availability, also expanding fair uses of work. We have a copyright section which should be minimum copyright sections in every country of the world. We think there should be a provision allowing the creation of noncommercial derivative works and also should be permissible to cut digital locks when needed to exercise fair use or fair dealing rights; also calling for fair enforcement practices, and generally respecting communications rights. So we have stuck in some provisions on consumer privacy, net neutrality, cultural diversity, and standards.
We have really tried to actually throw out the kitchen sink in there, but the main thrust of this is just because the consumer guidelines written in 1985 updated in 1989 they are now no longer up to date for consumers in the online digital environment. So we are hoping that the guidelines can be updated for the new millennium, and we would invite your support in this objective. So I thank you very much.
>> DIXIE HAWTIN: Thank you very much, Jeremy. It is really interesting to hear about the kind of two sides; on the one side, fighting back against where negative policies and regulations are coming into play, and on the other side, taking the initiative to really push a positive agenda.
I'm going to pass over to JoAnn and she is going to talk about another positive initiative.
>> Hi, everyone, I'm Jo Ann from the Centre of Technology and Society, Research Centre in the university law school in Brazil. I'm going to talk on the Washington declaration here.
This was a document produced while a bunch of experts on IP convened on the global congress on IP and public interest. It was an initiative, a joints initiative of the American university, SD, and SVG, and during the congress, we had this goal to have as a net output, this Washington declaration to try to balance IP protection and public interest.
The Washington declaration by the end was divided in 8 sessions. The first one was called putting intellectual property in its place, so it brings to the context of the declaration the need to extend the view of IP, the use of human rights to scrutinize intellectual rights protections. It mentions the need to balance human rights, freedom of expression, rights to due process, so it is just a preamble, a session of balancing rights.
The other session, it's good to mention, as we are discussing only copyright here, but the Washington declaration focuses on IP as a whole. So I will just mention the sections, and stay at the ones that has to do with copyright more directly, mostly on enforcement on the Internet.
But just to mention the sessions, the second one was valuing openness and public domain; the third one, strengthening limitations and exceptions; the next, setting public interest priorities for patent reforms, then supporting cultural activities. This section deals with supporting open business models, alternative forms of compensations of the authors and creators. And then we come to the next session which is checking enforcement accesses. This I believe is the section of the declaration that has more to do with what we are discussing here.
Within this section, it ensures that legal penalties, processes and remedies are reasonable and proportional to the acts of infringement that they target, and do not include restrictions on access to Internet. That's what we should try to ensure.
We should also try to ensure that countries retain the rights to implement flexibilities, to enforcement measures. And also we must limit the duties, rights and abilities of Internet service providers to monitor and control the communications of the users based on the content of these communications.
Also, ensure that agreements and protocols between individuals, intermediaries, right holders, technology providers and Governments relating to enforcement on the Internet are transparent, fair and clear.
So these were guidelines that we think the provisions on the specific topic of the declaration on enforcement of IP.
Other sessions of the declarations were to require evidence-based policy making. This is important because as I can mention in Brazil, most of the policies for enforcement have like those magic numbers on piracy that are not product of real research. So this is in particular point of the declaration that came out after another research that we did with our colleagues at the American university which was called mapping media piracy on emerging economies. That was exactly trying to address this issues on how the policy is not based on evidence, on real data.
And then, the other session of the declaration was about implementing development agendas. At the beginning we are talking about, we are thinking about building this declaration focusing on WIPO, but then we thought that we must expand it and focus on other forums.
So instead of the development agenda on WIPO, we were talking about development agendas, multiple ideas and possibilities, to try to implement this declaration.
So it was just presented, or is being presented now at the General Assembly that is going on now in Geneva.
It's open for support under the Web site, infojustice.org. And it's still an ongoing process. As Jeremy mentioned, those principles and documents are not closed. We are still discussing the points. We are still discussing how to implement it.
There is going to be another global congress on public interest in Rio that will be hosted next year. I'd like to invite you all to be there to discuss those topics.
I believe that's it. If I could bring just the point and complement what Carlos mentioned about the Brazilian process on this specific issue of enforcement of IP and the Internet.
While we have this positive example of the civil rights-based framework that has just reached congress, we have the copyright law reform, bad example that by the end, the latest version, that leaked, didn't reach congress yet, but it has a provision on notice and takedown that was very, pretty much objected during the debate of the civil rights-based framework that implemented removal of content only through judicial order.
So this is the Brazilian context. And it's very important for us to discuss those documents, maybe in partnership, and try to bring it to our Governments to try to change policies in the national level, and to establish what are the good examples, and things like that.
So, just to finish, the civil rights view of Internet, that just reached congress, is available on our Web site in English. So access to knowledge, Brazil, that PR.
>> DIXIE HAWTIN: Thank you very much. I'd like to open to the floor again. If you've got more dimensions to bring to the debate, more ideas about what you think is needed, I can see a hand up at the back there.
>> Hello, my name is Alejandro Presente from the National University of Mexico. I'm here if you are looking for them, for the voice from the speakers. I would like to make two quick comments.
One to Jeremy, and others interested in ACTA, you may be interested in seeing the track that we left in inviting and leading the senate in Mexico to make some very statements that it will not recommend, it recommends the executive not to sign the agreement, and it recommends the senate in its following, in its continuing existence, to not ratify if executive signs. That is just to add to the facts record on what can be done and argued.
Number two is, I think that procedurally for this Dynamic Coalition to continue its work, it will be very important that in the remaining very few minutes, participants that are not from civil society be on record with statements about what is being discussed here. And that would mean the technical community, and certainly business and Government, to be sure that the multistakeholder principle is kept to order.
>> DIXIE HAWTIN: I agree, I thank you very much. I'll hear from Anja now, and if there is anyone from business and governments who would like to make comments, we are appreciative.
>> I'm Anja Kovich from the intermodal project in India. The Washington project is a big step forward because it puts so many things together, and in some ways also questions the intellectual property system as it exists as a whole at this moment which is important to do. It is also something I don't see in the consumer rights approach that Jeremy was talking about.
So listening to the conversation here, even earlier when Katitza was talking, what I'm a little worried about is some of these initiatives seem to rely on us seeing especially the consumer rights approach, will be good, then you also give us what we legally have a right to.
And it's interesting because I don't know about all of you, but I know that I have in the past copied music illegally. I have copied books illegally. I think when I was a teenager, exchanging tapes amongst each other with music was kind of a very regular past time. So basically, we are saying we are all not going to do that anymore and instead, in return, you give us this. No?
Now, that's maybe, one could say, okay, maybe that's not a bad way to organise society. But what I find really difficult is that in that kind of approach, then the question of business models doesn't come up at all.
And so for the developing world, there is a massive issue there, because business models in the developing world are often largely based on keeping pricing structures in the developed world intact. Which means that for me, let's say an academic textbook in India is the same price as the academic textbook in the west. And when I was affiliated with an Indian university we worked with the books we could get, not with the books we needed.
And buying a book was 40 percent, the cost of one standard academic text was 40 percent of the average monthly fellowship of a PhD student. You can imagine how many books we could buy. In a way, I feel by saying we will all agree now to behave, you are criminalizing the behavior of all those people in other parts of the world in ways that are unprecedented, without actually questioning what is the root cause of that.
I think in kinds of formulating strategies, we have to be very careful not to perpetuate that kind of thinking and keep asking those very fundamental questions about that system as well. Thank you.
>> DIXIE HAWTIN: Really great intervention. Jeremy, can I ask you to respond in 20 or 30 seconds? Because there are quite a few Hans up in the room.
>> There is truth to that, the global consumer movement is not a radical movement. We work within the limitations of our own stakeholders. And so I think the place for questioning of intellectual property paradigm is for others and we will happily work with them, but I don't think we will be at the vanguard of that kind of approach, unfortunately. But thank you for your intervention.
>> Ten seconds.
>> Literally. I'm worried, I almost prefer you not to do anything then, because I'm worried that what you will do is going to harm us.
>> JEREMY: I take issue with that. I don't think that we are propping up the intellectual property system simply by working within it, in the same way that creative comments doesn't prop up the intellectual property system by working within it and free and open software doesn't do so. We are working within a paradigm because of the fact that it suits our, because it's a means to an end, not because of any ideological commitment to it. Anyway, I think we have taken up enough time. But that is my response to you.
>> DIXIE HAWTIN: I really wish we had more time. To the fellow at the back that's been...
>> Thank you. My name is Ernest Storm. I come from the Norwegian regulatory authority. Just a quick comment on the main goal behind this.
Of course, as Governments, one of the tasks is to of course facilitate the continued innovation on the Internet, that Internet continues to be attractive arena also for IPR holders, so that of course is one of the drivers for this.
But of course, at the same time, it is as important to maintain the respect, and respect for human rights, freedom of speech and consumer rights. Just for a quick information, currently there is a public consultation in Norway to try to put in place a speedy, more speedy process than it has been in the past to have, to try to stop infringement on intellectual property rights.
But of course, the different alternatives is to either have a more speedy process through the court system, or with a public authority, to make that assessment. But of course, either mechanism that is selected, it is really really important to ensure at the same time the due consideration to freedom of speech and human rights. So that is also one main thing that is behind the motivation for what system would be working to take into consideration both the rights of the holders and the other rights that exists out there. Thank you.
>> DIXIE HAWTIN: Thank you. Interesting ideas around balance there because obviously human rights should take priority. But, no, I mean but within the human rights framework, there is room for balance there and we are giving guidance from the human rights council about what that balance might be. I see a speaker, one there, I'll give Carmen first because she hasn't spoken yet and then I'll go to you. If anyone else wants to make a comment, please put your hand up so I know.
>> A quick note that as I understood from the start that we have this discussion today to some kind of gather ideas, how to broach this matter, might be within the Internet and the rights within it. I think the problem with the Internet and IPs, the main problem is that the IP seems to be that everybody wants to regulate the IP separately from everything else, from defamation, from freedom of expression, from everything else.
So it would have to be some kind of segmented approach. I think from legal perspective, as a working lawyer, for me that is the main problem I think with IP. For example, let's take an example of U.S. that due to this CDA, the Communication Decency Act, basically we have an immunity for defamation. But due to the DMCA, the Digital Millennium Corporate Act, due to that we have some kind of system working in IP. I think this kind of segmented approach will not work in any country nor globally.
I think it should be the accountability and liability would have to be on the same stable basis for any kind of infringement. It doesn't matter whether it's IP, trademark, defamation, any other human right. I think the basis would have to be the same.
>> DIXIE HAWTIN: Thank you. Jeremy. And then last comment from Bertrand afterwards.
>> Yes. I think the comment you made, sorry, I forgot your name, was very interesting about how developing countries actually use sharing as something positive. And even though I appreciate very much the Washington declaration, and I was very happy to participate to it, and I think the enforcement part of it is an excellent text, some who were present there will remember that the issue was very controversial that I put on the table.
But I think it is an illustration of the claim made of fear and efficiency of the propaganda for adversaries and I think it is essential that putting forward a positive agenda will consider the question of the value of sharing. There are literally, they are literally waging a war against sharing. When we project ourselves in some future, and looking back at history, what was considered illegal and killing the music industry, whatsoever, was it the mechanical piano music and radio or cassette tape or later on VHS tape was the movie industry, always prove to be positive.
So we have to insist I think on the fact that the sharing of files on the Internet is not the problem. We have empirical data that demonstrate it. Even the nefarious French Hadopi authority on page 45 of its studies in January, 2011 demonstrate that people who do the more file sharing are people who spend more for cultural goods. So I think that it is time to put a positive agenda and to re-claim the right to share, and this can be made very easily into the copyright framework by extending the exception for private copy to a private sharing, as long as it's done by individuals, with no intent of profit, then there is no reason it should be illegal, and on one bit of an amendment. We just get rid on the word is sharing I think is very important.
>> DIXIE HAWTIN: Great stuff. Bertrand.
>> Good morning. I'm Bertrand Lachapel, currently on the ICANN board, but this comment has nothing to do with the ICANN board. I'm sorry I couldn't join earlier.
I just wanted to add two points at the end of this discussion. The first thing is that on a personal basis, I'm absolutely surprised at the progressive shift from the origin which was the protection of creators, protection of creators, capacity for them to get a remuneration against the abuse of printing of their creation without giving them money.
That is the foundation. It is completely different from trademark. This is two different intellectual property rights. The shift was then moved to copyright, and now to intellectual property rights, as if this has become a human right of sort.
I'm speaking on a personal basis here, but I think a little bit of going back to the original intention would allow to get out of the trap that we have today which is basically nonzero sum game, or even a negative sum game. I would argue it's a negative sum game, even the people who are the intermediaries, people who are printing and so on, they are losing.
But the rest of the public doesn't gain, and the authors don't gain either. This is a stupid situation. If we go back to this, we can imagine that there are new modes of recombination, and new re-intermediation for the circulation of data, that will emerge one way or the other, i.e., that will distribute the remuneration along the chain of distribution.
In that respect, the second point that I want to make is the fact that digital content has unique ability to be duplicated for no cost and also to be combined and the creation of value comes from the combination. It comes from mash-ups. It comes from reinterpretation. It comes from combination of databases.
And I have a joke that I often mention, which says that the economy of the digital environment is one plus one is about four or more. Because you know, if you have one, I have one, if we share, we both have two, it makes four in the end. Unless my database is corrupted and I corrupt yours when we merge.
So there are many ways to create an immense amount of value, or to destroy some value by combining. But the capacity to maintain, the duplication and the combination of data is something that is emerging in particular in the battle about open data.
The battle about open data is a very important battle which is about value creation, and not an economic and monetary value creation but also social and public value creation.
And I think as we are here in the IGF there is one topic that was explicitly in the WSIS document in Geneva which is access to scientific data, which is something that is in scientific information which is something that is not on the agenda and should be.
>> DIXIE HAWTIN: Thank you very very much.
We are coming to the end now. I'm just, I hope you found it a rich conversation. Clearly, there's a lot more to discuss and there is a lot of different dimensions to this, and there is a lot of different initiatives going on, and I particularly appreciated some of the concepts about taking a step back and looking at this as a whole.
And yeah, we within the coalition, we will be continuing these discussions, and we hope to have some impact on some initiatives in this area. So I want to pass now to Robert Bodle who will show you the new Web site. If you want to sign up and continue to be involved in these conversations, we would really appreciate that. I also want to say that one of the titles of the meeting in Washington, I really liked, which is the putting IP in its place.
>> ROBERT BODLE: Could we display the screen, please?
>> DIXIE HAWTIN: Because the idea is that there is some place for the moral rights of authors but it's not in the right place at the moment. Thanks. I'm just going to pass it over to Robert quickly. And also, a reminder, that directly after this, we are going to be having a small kind of informal IPR meeting to discuss a bit about the organisation and activities for the next year. So if you want to be involved, please come here and we will find somewhere to go. Thank you, bye.
>> ROBERT BODLE: Thank you for coming. My name is Robert Bodle, and I want to share with you the irpcharter.org Web site, which was built especially to feature the work on the IRP charter we have been working on for a few years now.
A few features of the site, the site was designed so that it could encourage and facilitate participation, so that the charter itself would not just be a dusty document, but that would be a living document, and it could be enabled by the new media context that it's written in.
So we have our home page, and we can go to the charter site here, and the charter, there is a little discussion of the charter, and the history of the charter, and down below, we have links to the digressed plug in page which allows paragraph by paragraph annotation. So all you have to do is log in through Word Press, and start writing. Start annotating. I'll take us to the beta version now, and show you how that works.
The idea is that the document can transform, can evolve, and as any wiki, it will, there will be exist, there will be versions of it, always available to go back to.
If you click on one of the principles or rights, you can find that there is annotation window to the right. I encourage all of you to sign in to word press. Just log on here, and start contributing to the Internet rights and principles charter, and hopefully, this can be as inclusive of a process as possible, and multistakeholder.
I'm trying to go back now to the regular site. We also have campaigns that change from time to time. One of the campaigns, the more recent campaigns is the distilling the charter into ten Internet rights and principles, so that it could be more mobile, more and used as action points, or as a message points.
Also, we have a "about" which gives the history of the coalition, and we have a participate page, which enables you to log on to the listserv, to join the listserv and also to join us on twitter, on Facebook, on Flickr and on YouTube.
One of the things that we are also highlighting is a statement of support, down below for Somali refugees and famine relief and knowing that Internet Governance has a direct impact on the development of the world, and so we want to keep in mind what is happening along the Somali/Kenya border and the Dbab refugee camp, and I'd like to you follow this link which takes you to a statement of support and also an effort for fund-raising, and we encourage your participation and ideas on what we can do to create links of support between Internet Governance and development happening in that region. Thank you.
>> DIXIE HAWTIN: Thank you very much, and thank you, everyone, for attending. That's the end.
(Applause)
>> DIXIE HAWTIN: Thank you to all the panellists.
(Session ends at 12:38)
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