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Kathryn Kleiman Twenty-five years ago, the then-new Internet Corporation for Assigned Names and Numbers (ICANN) adopted a virtual dispute policy for domain names as its first “consensus policy” and that policy is now due to be reviewed. A comment filed last week by PIJIP professors and fellows Christine Farley, Kathryn Kleiman and Patricia Aufderheide, together with Rebecca Tushnet, Harvard Law School, Michael Karanicolas, Schulich School of Law at Dalhousie University, and Mitch Stoltz, the Electronic Frontier Foundation, laid bare a deep set of concerns about the troubling role of WIPO in writing this report and key recommendations that it made. In this report , WIPO casts itself as the leader of the review of ICANN’s Uniform Dispute Resolution Policy, or “UDRP,” yet as pointed out in the PIJIP comments, the role of WIPO raises key structural concerns as WIPO is the world’s leading provider of domain name dispute services.  Specifically, the comment calls for structural separation: “[In 1999] WIPO became the first ICANN-approved generic top level domain (gTLD) domain name dispute providers, and changed its role from rule-maker to dispute forum. This changes the place of WIPO in the process – as a forum convener, not a rule creator… which means that it is difficult—if not impossible—for WIPO to ask hard questions about core structures and to make comparisons to other existing (NIC Chile) and possible systems.” The comment also questions the lack of comprehensive data analysis in the WIPO-ICA Review – analysis of data that after 25 years is available in abundance:   “After 25 years and over 64,000 UDRP cases brought to WIPO for domain names in the generic top level domain (gTLDs), we expected data: substantive, clear, neutral and statistically valid data. After all, as the first ICANN-approved UDRP dispute provider, WIPO holds this data from the very first UDRP dispute in December 1999 to current ones in June 2025… Yet, this WIPO-ICA Report defaults to the old method of anecdotal evidence: Interviews with the ‘usual suspects’ of well-known people who spend a considerable part of their lives thinking about the UDRP.” Further, the comment raises deep free speech concerns about a recommendation by WIPO to reveal the names of speakers without their consent. It calls for all UDRP Providers in the future to follow the current practices of WIPO (privately adopted) and disclose the names of domain name registrants against whom a UDRP is filed with very limited exceptions (data now redacted due to GDPR and other comprehensive data protection laws).  Our comment strongly disagreed on free speech grounds: “For the cost of a UDRP filing, currently $1500 for a single-panelist at WIPO, the report recommends that rules and ethics protecting privacy, anonymity and free speech be thrown aside. The identity of a person or party speaking, critiquing, or criticizing can be revealed to the complainant, even if the registrant is fully protected under their national laws and rights of free expression and privacy, including the right to anonymity and pseudonymity.” This is only the first volley in UDRP review that is likely to take place over the next few years at ICANN. If you are interested in this material, and especially the fairness and balance of future UDRP rules, and would like to be involved in further discussion, please contact Kathryn Kleiman, Senior Policy Fellow of PIJIP, at Kleiman@american.edu. Links: [1] WIPO-ICA UDRP Review Report of April 2025 can be found here. [2] Our comments can be found here. [3] All comments to this report can be found here.

Teresa Nobre outlines a chilling range of practices by publishers to try to restrict the ability of researchers to conduct computational research. From ‘choice of law’ clauses which seek to circumvent EU law, to increased liability and penalties on libraries which fail to police their users. Nobre suggests a series of urgent measures to tip the balance back in favour of libraries and their users, and ultimately in favour of the right to research. This presentation was delivered at the User Rights meeting in Geneva on 17 June 2025. The full text is available below. The transition to licensing We have transitioned from a sales-based model in printed publications to a licence-based model in digital publications. What happens is that even if you have a fit-for-purpose framework that allows libraries to make certain uses of copyrighted works, they still need to rely on licences to have a first access to the material, and that gives publishers a lot of power in determining what libraries can and cannot do with the licensed materials, even if you have exceptions that allow them to make certain uses. Communia’s research We know that these licences tend to be subject to confidentiality agreements, which means that we don’t know what are the terms of these licences.  Communia is a non-profit based in Brussels, we have been involved in copyright reform for many years, we have been coming to the SCCR for many years, and we decided in February this year, we invited licensing managers, so people that are from the library sector, public library and academic library sector in Europe, we invited them to come to Brussels and we held a Chatham House rules meeting. We also invited the European Commission to attend this meeting and observe this meeting. And this environment where people could not attribute each other was the right environment for licensing managers to come and talk about the issues that they are facing with the licences, so the unfair licensing practices, the unfair terms that they are being subject to. So I will be mentioning some of those practices, and I will start with a very hot topic right now, which is the topic of AI, but also text and data mining for scientific research. Maybe I should also tell you that in addition to inviting librarians to come and talk to us in private, in front of the Commission, we also invited them to share with us in confidence clauses that they considered unfair, clauses that are part of those licensing agreements or licensing offers. Efforts to Circumvent the European TDM Directive Maybe here for those that are not European, I should give you a bit of a legal context of Europe. In Europe, six years ago we passed a new directive that guarantees that researchers in Europe can make text and data mining uses of copyrighted materials for scientific research. So we have a mandatory exception for these research uses. And this mandatory exception is protected against contractual overrides. And what does that mean? It means that if a licence says that you cannot make those uses, you don’t need to follow the licence because the law, the European law, protects you.  And what we realised, and we were very surprised, that publishers were actually concerned about prohibiting these uses in Europe when we have a law that allows these uses and prohibits contractual overrides. But that was indeed the case. So we noticed, and they told us, that since 2023, so place it at the same time where generative AI is raising, suddenly all the contracts are saying library users cannot conduct text and data mining on e-books and e-journals that are available in the libraries.  They cannot conduct any related AI uses with those materials.  ‘Choice of Law’ clauses And surprisingly, what was interesting to see was that, well, they were actually concerned about putting those prohibitions in those contracts, although the law would not allow for those prohibitions, because they could circumvent the EU policy, the EU law, and our contractual overrides prohibition by selecting a law that’s outside of Europe. So we know that ‘choice of law’ is typically a clause that the parties need to negotiate and takes time to negotiate. Everyone wants to choose their own law. But in this case, by choosing a law that’s not the national law where the library is located, meaning that’s not the EU law which would protect these uses against contractual overrides, they are able to circumvent basically the EU law and the prohibition of contractual overrides. And that’s enough. So imagine all of the work that we have done throughout the years to have exceptions in place, exceptions that are protected against contractual overrides, is simply circumvented by a choice of law clause. I’m going to give you an example of what prohibition of AI uses in these licences means. And, you know, there’s different ones. And you can see in our report, we gave some examples of it. Prohibition of AI-enabled browsers But publishers go as far as prohibiting the use of browsers with connected AI functionality. People, nowadays, there’s no browsers that do not use AI.  And publishers are prohibiting the library users from using browsers with AI functionality. This is how far it goes. We saw different variations of this. For instance, you see one that’s very simple, straightforward. You cannot conduct text and data mining, which is exactly what the EU law allows you to do. And when it comes to the choice of law, I think typically what we are seeing is that they are choosing U.S. law, maybe because the U.S. law right now, it’s not very clear if it allows these sort of uses or not. If it’s a UK publisher, they will select the U.K. law, which also doesn’t permit as many text and data mining uses as the EU law. So this is the first, let me say, the first category of obstacles and really

By Andres Izquierdo, Counsel, PIJIP, American University At the close of WIPO’s 39th Program and Budget Committee (PBC) session, a modest yet symbolically significant proposal—to allocate regular budget funds, on an exceptional basis, to support the participation of Indigenous Peoples in sessions of the Intergovernmental Committee (IGC)—was withdrawn. Despite wide cross-regional support and a week of intensive consultations, consensus remained elusive. The proposal, introduced initially by Colombia on behalf of GRULAC, aimed to address a persistent problem: the underfunding of the Voluntary Fund, which currently serves as the only dedicated mechanism to support Indigenous and Local Community (IPLC) participation in WIPO negotiations. The initiative would have allowed up to three IPLC representatives to be funded from unallocated regular budget resources—only when the Voluntary Fund lacked resources and under strict procedural safeguards. A cross-regional group including Australia, Indonesia, Canada, Brazil, Switzerland, and the African Group expressed support, citing the urgent need for more inclusive representation in negotiations that directly affect Indigenous rights. Mexico later introduced a refined version of the proposal, limiting its application to moments when the Voluntary Fund is depleted and capping participation at three Indigenous representatives per IGC session. The revised language included safeguards: no new assessments, clear reporting obligations, and strict adherence to WIPO’s Financial Regulations. “Guaranteeing the participation of Indigenous Peoples is not just a symbolic gesture,” said the delegate from Mexico. “It’s a basic precondition for our discussions to reflect the reality on which we are supposedly adopting rules.” In withdrawing the proposal, Mexico lamented the “lack of agreement from just a few states,” despite what it called a “balanced measure subject to strict conditions and aligned to the rules of the organization.” The Australian delegation expressed disappointment: “While this proposal could not reach consensus, the discussions this week confirmed a widely shared view on the importance of the meaningful participation of Indigenous Peoples and Local Communities.” Australia further emphasized the constructive tone of the negotiations: “The proposal demonstrated that we can work together and bridge differences across groups.” Canada called the initiative “a valuable proposal and one that provides a creative pathway to supporting the essential participation of Indigenous Peoples as unique voices within the IGC.” Despite broad interregional support, it regretted that the measure could not “generate consensus.” Canada described the proposal as “purpose-driven and limited in scope… financially responsible, transparent, and supported by Member States across regions.” Peru, speaking as a GRULAC member, underscored that “this is a question of principle.” It warned that the IGC’s legitimacy could be undermined “if we cannot hear the voices of the custodians of the knowledge we aim to protect.” The African Group, through Namibia, noted that “the continued lack of funding remains a serious concern and will hinder the effective participation and meaningful contribution of IPLCs.” The group of Like-Minded Countries, represented by Indonesia, echoed this regret, noting that the proposal aimed “to enhance inclusivity and ensure balanced participation… essential for the legitimacy and effectiveness of the process.” Despite such broad support, some delegations raised objections. The United States, United Kingdom, and Sweden opposed using core budget funds for observer participation. Their position, consistently restated throughout the week, was that such support should be confined to the Voluntary Fund or voluntary Member State contributions. The U.S. delegation, in particular, argued that the core budget should not be used to fund non-state actors, raising concerns about precedent and financial governance. Other delegations, such as Japan (on behalf of Group B), Italy, France, and Estonia (on behalf of CEBS), stopped short of opposing the proposal outright but requested additional time to analyze its legal and budgetary implications. “We seek clarity on how such a reallocation could be conducted under WIPO’s Financial Regulations,” noted France. Japan emphasized the need for “specific implementation mechanisms and procedural transparency,” while CEBS said more time was needed to form a group position. Still, many Member States signaled that the proposal had moved the conversation forward. “This is a moment of normative clarification,” said Peru. “The participation of Indigenous Peoples is not an accessory—it is central to the legitimacy of the IGC’s work.” As the Committee adopted its final report, the Chair acknowledged that the proposal had been formally withdrawn. Several delegations, including Australia, Canada, Indonesia, Peru, Namibia (for the African Group), and others, reiterated their continued commitment to Indigenous inclusion and called for renewed contributions to the Voluntary Fund. As WIPO heads into its 66th General Assemblies, the question lingers: Can the organization evolve its financial architecture to match its commitment to inclusive governance? The outcome underscores both the promise and the limitations of consensus-based governance at WIPO. While the proposal did not move forward, it reframed the terms of debate: from whether Indigenous Peoples should be included, to how WIPO can sustainably fund that inclusion within its institutional framework. 

By: Andres Izquierdo, Counsel, PIJIP, American University Despite a full agenda and spirited debate, WIPO’s 39th Program and Budget Committee ended with little to show in terms of any concrete modifications to the proposed 2026/2027 Program and Budget. Key issues—including budget transparency, integration of development goals, Indigenous participation, language access, and technical assistance—remained unresolved or were deferred for future negotiation. While Member States voiced the need for reform and greater equity, the session closed without any policy changes, underscoring a familiar pattern of careful dialogue but persistent deadlock at the heart of WIPO’s governance. One of the recurring topics at this year’s session was WIPO’s move from a detailed 31-program budget to a broader 8-sector model. China, Brazil, and Canada, among others, continued to call for more granular reporting—especially on how funds are transferred within and between sectors. The Secretariat defended the new approach as more efficient and coherent, and offered  an ongoing dialogue rather than any immediate changes. For now, the push for greater transparency in budget documents remains unresolved, with Member States requesting more detail in future cycles. The place of the Sustainable Development Goals (SDGs) in WIPO’s work also sparked debate. While most countries, including Brazil, Nigeria, and Mexico, insisted that explicit SDG language is appropriate for a UN agency, the United States argued for removing all such references to keep WIPO’s mandate narrowly focused on intellectual property. In the end, references to the SDGs were retained in the approved Program and Budget for 2026/27, reflecting the majority view but signaling an ongoing divide over the agency’s development role. A cross-regional proposal to allow WIPO’s regular budget to support Indigenous participation in the Intergovernmental Committee (IGC) if the Voluntary Fund runs dry was another unresolved issue. Colombia, Ecuador and Mexico led the effort in representation of most GRULAC countries, but ultimately the proposal was withdrawn after it became clear there was no consensus, with some Member States wary of setting a precedent. As a result, no change will be made for the 2026/27 biennium, though further consultation is expected. The question of multilingualism in the Brands and Designs Sector was equally contested. China, Russia, Brazil, and others pushed for strong commitments to expand language services and pre-allocate resources for future language additions, arguing that this would promote equity and better align with UN values. However, Group B, CEBS, and others favored a step-by-step approach, avoiding binding commitments. The final text recognizes the value of multilingualism but leaves further expansion and funding decisions to be considered in future working groups. Financial sustainability for the Lisbon System, which covers the international registration of geographical indications, was also on the agenda. The United States called for stricter self-sufficiency and more robust forecasting methods, aiming to prevent cross-subsidization from other, better-resourced Unions. Brazil, France, Egypt, and other developing countries defended the current approach as vital for development objectives. In the absence of consensus, the status quo prevails and the issue will remain under review. Discussions on technical assistance and performance indicators saw Member States, including China, Russia, and Nigeria, calling for improvements—whether through more balanced KPIs across global IP systems or a more proactive, needs-based model for technical assistance. While these points were acknowledged, no formal changes were adopted, and the Secretariat promised only to consider the feedback going forward. Efforts to expand WIPO’s external offices again resulted in a deadlock. Some countries, such as India, Colombia, and Iran, advocated for greater geographic equity and delinking evaluation from expansion. Others, led by Group B and CEBS, insisted that careful evaluation must come first. With no consensus, the issue was deferred to future sessions. There was at least modest progress in the area of oversight and governance. WIPO’s Internal Oversight Division closed 66 recommendations in 2024, drawing praise from Member States. Still, there were calls to accelerate recruitment for key evaluation and investigation roles and to address ongoing concerns around cybersecurity and internal controls. No new oversight mandates were issued, but the Secretariat was urged to maintain its focus on improvement. Given the absence of consensus, the PBC decided to refer several unresolved issues to the upcoming 66th series of WIPO Assemblies for further discussion and decision. These include proposals by the United States to remove all references to the 2030 Agenda for Sustainable Development and SDGs from the budget document, to adjust estimated applications and income for the Lisbon System and the budget for the Lisbon Union, and to remove the Development Acceleration Fund and associated references and budget lines. These matters now await further negotiation and possible resolution at the Assembly level. In the end, PBC/39’s proceedings reflect the ongoing complexity of multilateral governance at WIPO. While Member States continue to debate critical issues—transparency, development, inclusion, and accountability—the session closed with more questions than answers. The true test for WIPO will be whether continued dialogue eventually yields the substantive reforms that many are calling for.