[Infowarrior] - New IP Proposals by WIPO -- Constitutional circumvention

[Richard Forno]

James Boyle: Constitutional circumvention
>By James Boyle
>Published: June 13 2006 16:18 | Last updated: June 13 2006 16:18
http://news.ft.com/cms/s/fa07af4a-fadc-11da-b4d0-0000779e2340.html

In September last year, I wrote about a very bad proposal being debated in
the World Intellectual Property Organization (WIPO). The proposal was to
extend the length of an existing set of intellectual property rights for
broadcasters, and even apply them to webcasting. As I pointed out, there is
no empirical evidence that these rights produce any social benefit. Indeed,
the US has never had such a right and yet has a flourishing broadcast
industry.

Extending the rights to webcasting, despite the manifest differences between
the economic structure and global reach of the two media, was a jaw-dropping
move with obviously bad consequences. We should be focusing on rules about
conduct, not rights over content. If signal piracy and rebroadcasting is a
problem, we should have a rule that narrowly focuses on that conduct,
prohibiting unfair business practices by commercial competitors. The last
thing we should do is create yet another set of long lasting property rights
over the content.

Copyright offices around the world admit that there is a huge problem with
³orphan works² ­ copyrighted material for which the copyright holder cannot
be found. Given the absurdly long copyright term, it is quite possible that
the majority of the cultural production of the twentieth century consists of
orphan works. Because of the difficulty of clearing copyright, those works
remain locked up in the library. Even though the copyright holder has long
disappeared, or would not mind, it is impossible to show the old movie,
adapt the old book, play the old song, put the old poem in an anthology.
Many libraries simply refuse to allow screening of movies until the
copyright term has expired; probably no one would object, but the legal risk
is too great.

Now imagine creating an entirely new layer of rights over everything that is
broadcast or webcast, on top of whatever copyrights already cover the work.
You find a copy of a movie in the library and manage, at great expense, to
work out that it is in the public domain, or to get the copyright holder¹s
permission. Perhaps the work is covered by a Creative Commons license,
granting you permission to reproduce. Not so fast! Even after trudging
through all the orphan works problems in copyright, you would have to prove
that this copy had not been made from a broadcast or webcast. More clearance
problems! More middle-men! More empirically ungrounded state-granted
monopolies! Just what we wanted. There are even some serious free speech
problems.

What if only Fox or CBS has the footage of a particular public event? Do we
let the broadcaster eviscerate the ideas of fair use, prohibiting other
networks from showing fragments so as to comment on the events, or criticise
the original coverage? The proposed treaty text allows for fair use-like
exceptions but does not require them. Once again, we harmonise upward
property rights for powerful commercial entities, but leave to individual
states the discretion whether and how to frame of the equally crucial public
interest exceptions to those rights. Increased property rights for
broadcasters are required. The public interest in education, access, and
free speech is optional. (Among other things, most of the recent drafts
would outlaw home recording of TV and radio unless a special exception was
put into the law, state by state.)

This proposal was so bad, so empirically threadbare, so unbalanced, that I
had cherished a faint hope that the members of WIPO would abandon it. At
least, I hoped there might be a comparative study of the nations that had
previously adopted the protection and those that had not, to see if there
was any need for such a change? What was I thinking!!? Why do we need
evidence? With remarkably little public attention, the Broadcasting Treaty
train is chugging ahead strongly, with states providing new draft proposals
over the next two months for a possible decision in September. The status of
the webcasting provision is still unclear. But the webcasters are pressing
hard. Expect another poorly reasoned proposal to rise from the ashes, with
the US playing a key role. The press seems to have missed the story.
Bizarrely, the proposal is getting more robust criticism from industry
sources, who can see how it will affect competitiveness on the web, than
from librarians and civil libertarians who ought to appreciate better than
anyone its effect on speech and cultural heritage.

Of course, the casting treaty is a paradigmatic example of the dysfunctions
in our international deliberations on these issues; we have the absence of
evidence, the mandatory rights and optional exceptions, the
industry-capture, the indifference to harm caused by rights-thickets. But
the representatives of the United States, who have played an ignominious
role as cheerleaders for this silly treaty, have a particular, indeed a
constitutional, reason to be ashamed.

Unlike their descendants who now work the floor at WIPO, the framers of the
US constitution had a principled, pro-competitive attitude to intellectual
property. They knew rights might be necessary, but they worried about
industry-capture and unnecessary monopoly and so they tied congress¹s hands,
restricting its power in multiple ways.

Rights have to be of limited duration. (Congress has managed to get around
that one by repeatedly extending the limit: Jefferson must be spinning in
his grave.) They can only cover original material, which must be fixed in
some material form. No rights over inventions that are already known, or
over unoriginal compilations of fact. Of course, if the material is not
within the core domain of copyright and patent, congress may go further, as
it has with trademarks.

But over the material covered by copyright, where we are dealing with
fundamental constitutional limitations, these rules reign supreme and
congress may not circumvent them by turning to another constitutional source
of power. What does this mean in practice? That is a complicated question.
There are pending legal disputes about ³bootlegging statutes² and about
foreign works that have been pulled out of the public domain as a
consequence of the Uruguay Round of trade agreements.

In my view, the current drafts of the Broadcast Treaty would be
unconstitutional if implemented in American law. They create new
copyright-like rights over unoriginal material, indeed material that is
frequently copyrighted by someone else. That violates a core restriction of
the copyright clause of the constitution. They also ignore the fixation
requirement.

But forget the attempt to predict what the Supreme Court would do if it
heard the case. Are the US¹s negotiators ignoring their constitutional
responsibilities, and seeking to get a bad treaty passed with inadequate
public debate of its desirability, constitutionality or consequences? About
that there is no doubt at all. Shame on them. Jefferson and Madison would
not approve. Should we?

James Boyle is William Neal Reynolds Professor of Law at Duke Law School,
co-founder of the Center for the Study of the Public Domain and the author
of A Manifesto on WIPO. His most recent work is Bound By Law, a ³graphic
novel² on the effects of intellectual property on documentary film.