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Francis Gurry, Assistant Director General of the World Intellectual Property Organisation (WIPO), was invited to speak during INET99 in San Jose California, In concluding, he mentioned that two issues concerning the use of the Internet for open consultation processes merited to be explored:
1. The time taken to reach a consensus
2. The relative weight given to contributions from governments and individuals.
The following interview of Francis Gurry sets out to follow up those points.

You might also like to read Consensus Building and Verbal Desperados.

Open, consultative government
an example from WIPO

You have just completed a consultation process about trademark issues and Internet domain names. How did that process differ from the traditional way WIPO works?

Normally when policy is formulated within WIPO, it happens in committees of member states. That procedure has been used in the UN system since the beginning. Each state has one vote. At WIPO, we have an observer system whereby interested professional or technical organisations can contribute to debates but they don't have any voting rights. The process we used for the domain name consultation is a typical Internet process. Its origins are in Internet technical meetings where they were seeking rough consensus on technical advances. As such, it was an open process in which anyone in the world could participate. We had comments that came form governments, from intergovernmental organisations like the ITU, from non-governmental organisations, from corporations and individuals. All were participating on the same footing.

The process was different from the way WIPO traditionally works in terms of participants, as well as in terms of the modalities used (we used the web site as the principal means of communication, although we did have physical meetings as well). The process was also different from the original Internet meetings. They sought to achieve rough consensus on technical solutions which could be tested before implementing them, whereas with the legal, social and institutional environment there is no way of testing its efficacy in advance.

Did you experience any difficulty in carrying out this consensus-making process within the WIPO structure?

While forty of our member states participated in this process, not all states were participants in the way they would have been if we had convened a meeting and invited them all to develop a solution. In some ways that reflects the penetration of the Internet and importance of the issue to some countries. They did subscribe to our different approach, but they will have a judgement on it at some future stage. That is where it is rather important that some sensitivity be exercised in respecting what they have said. For example, the European Union and member states have had joint positions throughout this process and it is important that one listens to them as representatives of 400 million people. So it is important to find a way attributing a weight to them which is different from that of the individual. What's more, you don't really know whose interests that individual is representing. That is another difficulty of the open process. In certain respects it is very transparent because you can verify our conclusions by reading all the texts and listening to the tapes. It is non transparent in another sense in that you are not always sure of the perspectives the individuals are coming from. There is always a possibility that individuals be used by others to subscribe to their point of view without that being transparent.

How do you see the relationship in the future between the intergovernmental model and the self-governance model?

The method developed by and with the Internet is a great contribution to open, democratic decision-making. There are however some areas in which we have to make progress if it is to be a viable process. One area is the length of time taken. As it is open to anyone in the world it is difficult to reach a consensus. We have to be very careful using this model, despite its superior speed and efficacy, that we don't actually drag the process out so that it becomes as long as the old multilateral treaty-making process which takes years and years.

Another area to be careful about is that we haven't yet worked out an objective mechanism to attribute weight to contributions made by the various participants. If you look at our web site, there are comments from governments side by side with comments from individuals. The purpose is to be inclusive involving a wide range of participants but in that process governments have to exercise a certain self discipline in not interfering legislatively in the process. Now if governments feel they are loosing too much influence in this process, and that they are not being treated seriously, there is a real danger that they will draw back and say: "Have your open participatory model for the non-governmental sector, but we as governments will still decided and legislate." And this may well have the undesirable consequence (especially for the Internet) that there will be many different national solutions.

Do you see particular areas in which the consultative model is likely to work better than others?

It works much better in technical areas. It can also work quite well in areas like the one we were working, which essentially concerned dispute resolution, where you need to develop a mechanism that is going to be used by the private sector. Getting the private sector to participate in the formulation of a policy that they will subsequently by involved in can only be a good thing.

When it comes to straight out rule-making, the legislative model has certain advantages. In the context of the Internet, however, its great disadvantage is that different national based solutions will subsequently have to be harmonised internationally. One of the features of electronic commerce and the digital economy is that issues are arising at the international level either before or at the same time they are arising at the national level. Historically, governments have preferred to come to international discussions with their national position worked out. If they subscribe to a solution on an international level first. they then have to take it back and sell nationally. Then there is always a danger that their own private sector will not agree with it. Whereas, one of the advantages of the open, participatory process is that you directly involve the private sector. Presumably what they are saying at the international level will be the same as at the national level and the solutions developed at the international level ought to be satisfactory to the interests at home that will have to support that solution.

We are at a stage of experimenting processes. A former US Secretary of State writing about the rejection of the League of Nations by the United States, said that democracy turned over the control of foreign policy to the people. However, if people were to exercise good control over foreign policy then they'd have to learn the business. That struck me as one of the dangers of the open process. A lot of people who participate in it have no experience or training in the degree of discipline that one has to have in dealing with people of different cultures and traditions and different ways of expression. In addition, using email, which is an immediate form of communication, people are more inclined to be emotional and to give expression to brutal feelings than they would if they had stop and consider for a little while how they are going to express themselves in addressing another person. So there is a considerable degree of experimentation in how successful this kind of process can be in an international, multicultural environment.

Compare the tone with which people disagree using email with a meeting of states where they are excessively subtle in expressing differences with another person. They are worlds apart. So we have to see to what extent governments are going to be prepared to participate in this process when they can be subject to very crude criticism. And whether that process is going to be conducive to developing constructive participation and solutions on the part of everyone. In the use of the Internet, we have a very direct means of communication being applied to a world which has traditionally applied very indirect means of communication.

Francis Gurry, Geneva
Interview by Alan McCluskey

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Created: June 29th, 1999 - Last up-dated: June 29th, 1999