Intellectual Property Issues
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A new version of the EcoPort database administered by the Foundation is nearing completion. The proprietary 4D software used hitherto has been abandoned in favour of an entirely open-source software framework using MySQL and other open-source technologies. The current service at http://www.ecoport.org is in stasis in terms of functional change. Since 20 December 2003, it is administered directly by the Foundation to provide continuity of service as reliance on 4D is being phased out completely. This transition to open-source tools and the eclipse of 4D, in addition to the public domain history described below, renders concerns about copyright irrelevant.
The Foundation will manage all aspects of the EcoPort system and services in an open-source framework and within the GNU/Copyleft regime of intellectual property rights management. This will not alter the status of the data content which has always been copyleft in any case. The change is that the software and database code will also become copyleft, a regime change and shift in 'ownership' brought about by abandoning 4D in favour of open-source MySQL within a GNU/copyleft framework.
The Intellectual Lineage of EcoPort
As explained in the Bylaws of the EcoPort Foundation Inc., thePurpose of the foundation is to provide an institutional framework to promote, sustain and support the EcoPort system and service that manages knowledge as a global public good at http://www.ecoport.org. Therefore, the raison d’être for the creation and existence of the Foundation can be found in the EcoPort database and service. And, in turn, EcoPort has its roots in an earlier FAO system and service, the Global Plant and Pest Information System (GPPIS).
A pivot point in this lineage GPPIS > EcoPort > Foundation, insofar as it concerns intellectual property rights and issues, was the public release of the GPPIS database on CD-ROM on the occasion of the 7th International Congress of Plant Pathology, held in Edinburgh, Scotland from the 9th to the 16th of August 1998. At that event and in the 6 months following it, about 2700 versions of the database on CD-ROM were distributed free of charge to any person who requested it from FAO.
(Two pre-Internet FAO databases that paved the way for GPPIS, called PQCard and PQDBase, were also discontinued by FAO in the stop-start manner that were typical of database services then, and, indeed, to this day.)
GPPIS in the Public Domain
The Home Page of both the Internet/www and the CD-ROM version of the system and service is reproduced here in an Appendix. It contains a statement that is fundamental to this narrative about intellectual property issues, namely the announcement: "GPPIS data and source code are in the public domain..." This 'legal' statement, as well as the various liability disclaimers, privacy clauses and other formal statements about the roles describing institutional aspects of the framework wherein GPPIS was distributed in the public domain, were approved by the FAO Legal Department, and thus the database code, software procedures and content on which the evolution of EcoPort is predicated, started its 'life' in the public domain.
(Readers' attention is drawn to the bullet points in the GPPIS Home Page. These items from the FAO's Basic Text, reveal the core aspects of FAO's 'constitution' that were the principles and values that inspired and informed the design philosophy of GPPIS.)
Dynamics of Change
A vital feature of GPPIS and its 'evolutionary variant' EcoPort, is the dynamic way the system changes every day. This applies to both the content and the software. Functional features were added as 'embroidery' variations of the public domain 'original' in a process of daily incremental change that drove the evolution of the system and its content that was, by then, firmly, and widely accepted to be in the public domain. (An Internet/www search and review of historical web pages and their references to GPPIS, as well as the published proceedings of meetings and conferences where the GPPIS system was presented by FAO staff, clearly document the public domain nature of GPPIS — see, for example: http://informatics.icipe.org/icwesa/proceedings/doc31.htm)
Because of the public domain nature of GPPIS, information contributed to the system and service were, in terms of the shortcoming of the act of placing ideas and information in the public domain, not amenable to any form of protection. When procedures and data are explicitly placed in the public domain, anybody could in effect, then use it for any purpose including selling it and claiming copyright to secondary use of ideas and content 'found' in the public domain.
To prevent potential abuse inherent in the public domain regime of intellectual property rights management, a transition from public domain to copyleft became critically necessary to protect the volunteerism and generosity of contributors from potential, unauthorised, commercial use and abuse; see CABI/FAO/GPPIS relations. This would require establishing a regime of intellectual property rights wherein all rights of contributors are reserved, thereby and in turn, enabling them, within the knowledge sharing framework and process facilitated by EcoPort, to retain their intellectual property rights to any commercial or for-profit use of their ideas and information but to grant their permission for their contributions to be used freely for educational and not-for-profit use, provided (i) the source is acknowledged and (ii) that all subsequent 'further-use' of the ideas and information will be similarly 'free' of 'traditional' copyright claims.
GPPIS Morphs into EcoPort
In August 1999, when GPPIS had been in the public domain for about 15 months, a policy change inside FAO saw the Organization moving away from the GPPIS philosophy and technology as the Organization consolidated its internal information technology and software standards in a manner, and at a rate, that could not accommodate the dynamic nature of the GPPIS system and service. At that time, about 150 volunteers were maintaining about 13,000 species records illustrated by about 3,000 pictures. Understandably, the overwhelming portion of the content of the database was therefore authored by scientists who were not FAO staff members. This global community of volunteer knowledge workers, had very clear expectations about "their" system. By then, the database was changing, through voluntary action, at a rate of 30-40 data additions per day, and the stakeholders were simply unwilling to have their system 'down' for months while functionally neutral hardware and software changes were being implemented.
Between about early 1998 and late 1999, negotiations were underway between FAO and the University of Florida (UF) within FAO's policy and strategy to build strategic partnerships between FAO and other institutions. This policy thrust was documented in FAO's Strategic Framework — approved by the FAO Conference at its 30th session in November 1999 — which stated that: "Emphasis needs to be placed on expanding the total resources applied to the principal programmes espoused by the Organization, and not necessarily on the amount of resources managed by FAO. In doing so, FAO must associate all stakeholders at the national and international levels, so as to ensure ownership, commitment and proper follow-up..."
Against this background and the spirit of 'joint ownership' it espoused, and after the initiative for the further development of GPPIS was taken up by the University of Florida, who invited FAO and the National Museum of Natural History (NMNH) of the Smithsonian Institution (SI) to become the founding partners under whose auspices a new service called EcoPort would be offered by UF as a global public good.
Building on, and continuing the nature and functions of the public domain GPPIS, but vastly expanding its conceptual scope to embrace ecology way beyond the plant pest and agricultural crop limits of GPPIS, the central database rapidly evolved its current holistic, ecological ontology.
The Public Domain to Copyleft Conversion: GPPIS to EcoPort
Just as information can be 'sucked' out of the public domain and converted into copyrigted information (see FAO/CABI/GPPIS example) so too did the pivotal change from GPPIS to EcoPort create the framework for a process that first placed EcoPort content under copyleft protection and now, with the transition from proprietary 4D software to open-source software, under the custody of the EcoPort Foundation on behalf of its Members, the essential framework elements of creating and managing knowledge as a global public good are in place:
The three points above, are pillars in the evolutionary process of EcoPort the idea and the Foundation as a custodial institution. Institutions are not born perfect and ready-made in their final form and structure. Therefore, EcoPort —the 'movement towards institution' — is undergoing the last ecdysis of setting in place the third of the pillars bulleted above. But, no matter the rate or change of this evolutionary metamorphosis, any person or institution that attempts to lay claim to private control of any aspect of EcoPort would be acting in fundamental contradiction of the critical spirit and nature of EcoPort as a global public good.
Such claims, no matter how advanced or argued, in narrow organisational or personal contexts would be a direct contradiction of EcoPort's spirit; of its core values that are the essential reasons why Nelson Mandela extended his patronage to our movement and institution. It would also be contrary to the values and intentins of the EcoPort Mission Statement which binds all who take part in the 'ecoport process'.
The Foundation is constitutionally bound and responsible to its members, to manage the system and service within a framework of global public licensing as determined by GNU/CopyLeft stipulations. This is the complete framework wherein all issues of copyright are decided by pre-emption.
Protecting Indigenous Knowledge
The last decade has seen frequent and difficult debates about protecting indigenous knowledge against ruthless and unfair commercial exploitation. This is an issue that is partly addressed by EcoPort's move away from GPPIS public domain status to the current Copyleft regime.
Thus, when individuals and institutions publish their information in EcoPort, they create a public record, but they do not place the information itself in the public domain. This difference between making news public and explicitly placing it in the public domain has implications that are as profoundly critical as the ignorance about the difference is wide: putting something in the public domain relinquishes all rights thereto; once in this 'state' it require much more rigorous and onerous action on the part of the original owner, to define defendable rights
However, published in EcoPort under copyleft consditions, EcoPort's process and information could be used to establish the existence of 'Prior Art': a concept that could play an important role in disputes about intellectual property rights.
In some situations and legal jurisdictions, e.g. in the USA, a person in the USA may apply for a patent covering someone else's 'invention' , unless the defending owner can point to a published record affirming the existence and ownership by someone other than the patent applicant, of Prior Art. The details can be found in Section 102 of the U.S. Patent Act, specifically, 35 United States Code (U.S.C.) Section 102(a), (b) and (f). See also: WIPO/GRTKF/IC/2/6; http://www.wipo.int/eng/meetings/2001/igc/doc/grtkfic2_6.doc in Microsoft Word format, 86Kb).
Thus, copyleft sharing information and knowledge in EcoPort, where contributors explicitly retain all their intellectual property rights to any commercial use of the knowledge, amounts not only to an act of 'Protective Disclosure', but also to an explicit claim of ownership that could be used to fend off claims by others who try to claim intellectual property rights on the basis that there is no proof of Prior Art and previously disclosed ownership.
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