This week, the member states of the World Intellectual Property Organization (WIPO) postponed a decision on the Wikimedia Foundation’s application to become an official observer of this organization. China raised concerns, at 61st series of meetings of the Assemblies of WIPO Member States, that the Wikimedia Foundation “has been carrying out political activities through its member organizations which could undermine the state’s sovereignty and territorial integrity.” The Wikimedia Foundation would need to provide further clarifications about the volunteer-led Wikimedia Taiwan chapter and about Wikimedia’s “Taiwan-related positions.” Discussion will resume at an extraordinary session of the General Assembly in early 2021.
This decision came as a shock to many observers of WIPO, since there has only been one case in recent memory where an observer status application to WIPO has not been accepted. In 2014, the Pirate Party International was rejected due to being a federation of political parties. As highlighted by the United States in its statement in support of Wikimedia Foundation’s application, “allowing the Wikimedia foundation to participate as an observer would be entirely consistent with the established precedent at WIPO of supporting other existing observers and Member States that also have some affiliation with Taiwan.”
According to Amanda Keton, General Counsel of the Wikimedia Foundation,
“(t)he objection by the Chinese delegation limits Wikimedia’s ability to engage with WIPO and interferes with the Foundation’s mission to strengthen access to free knowledge everywhere.”
Indeed, observer status is a necessary condition for Wikimedia to participate in WIPO discussions, including discussions where norm setting in copyright is concerned. Ongoing discussions on exceptions and limitations to copyright (in the Standing Committee on Copyright and Related Rights), on the impact of artificial intelligence on intellectual property (in the context of the WIPO Conversation on Intellectual Property and Artificial Intelligence), and on the use of copyrighted content on online sharing platforms (a topic that WIPO has recently revived through an International Conference on The Global Digital Content Market) are of utmost important to access to knowledge organizations.
It was particularly disappointing that the European Union and its Member States remained silent in the discussion. Apart from a statement from Group B (which includes Western European countries, Norway, the United States, Switzerland, Japan, Canada, New Zealand, Australia, Turkey, Israel and the Holy See), urging the approval of all requests for observer status and alluding to the principles of “transparency and inclusiveness” at WIPO, the EU was nowhere to be heard in the discussion.
Considering that the European Union promotes the participation of civil society organizations in its legislative processes, we would have expected a statement of support in the vein of the one delivered by the United States. The EU’s silence is even more disappointing considering that Wikimedia has participated actively in EU legal processes, particularly in discussions surrounding the recent EU copyright reform. In addition, many of the European chapters of the Wikimedia movement are currently involved in the implementation of the new EU Copyright Directive.
The Wikimedia Foundation is a legitimate civil society stakeholder in the area of access to knowledge. Not admitting its application to the status of observer of a UN organisation that shapes the legal framework for access to knowledge and information would be unacceptable. Therefore, we hope (and strongly urge) that the WIPO General Assembly will accept Wikimedia Foundation’s application at the next meeting without any further delays.