[Infowarrior] - WH: Mandated exemptions can strengthen copyright

[Richard Forno]

http://arstechnica.com/tech-policy/news/2009/12/obama-admin-mandated-exemptions-can-strengthen-copyright.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss

Obama admin: Mandated exemptions can strengthen copyright
In voicing initial support for a WIPO draft treaty, the US makes clear  
that "better copyright" does not always equal "more copyright."

By Nate Anderson | Last updated December 30, 2009 9:30 PM
The Obama administration has offered up a strange mix of copyright  
policies in its first year (both ACTA and Creative Commons, for  
instance), but it has at least made clear that "better copyright law"  
does not always mean "more copyright protection." In the middle of  
December, for instance, the administration took a stand in support of  
a World Intellectual Property Organization treaty on copyright  
exceptions for the blind. The final bit of the US statement of support  
is worth quoting in full (emphasis added):

We recognize that some in the international copyright community  
believe that any international consensus on substantive limitations  
and exceptions to copyright law would weaken international copyright  
law. The United States does not share that point of view. The United  
States is committed to both better exceptions in copyright law and  
better enforcement of copyright law. Indeed, as we work with countries  
to establish consensus on proper, basic exceptions within copyright  
law, we will ask countries to work with us to improve the enforcement  
of copyright. This is part and parcel of a balanced international  
system of intellectual property.

It's a call for "balanced" copyright taken directly to the WIPO—and  
it's one opposed by the deepest-pocketed copyright holders. Here's why.

No U-turns on the copyright highway
The copyright treaty in question (PDF) was proposed by Brazil,  
Ecuador, and Paraguay in May 2009 as way to guarantee worldwide access  
to copyrighted materials by the blind. In its current draft form, the  
treaty lays out mandatory copyright exceptions that every signatory  
must adopt. These include making "accessible" copies of works even  
without the permission of the copyright holder (usually on a non- 
profit basis, and after paying a government-determined fee to the  
rightsholder). As for DRM, groups making works available for the blind  
or sight-impaired would be allowed to bypass or break DRM in order to  
access a work.

This might not sound hugely controversial; after all, the market for  
large-print or Braille works is (relatively) small and compensation  
would still need to be paid. But what bothers big rightsholders is the  
fact that a WIPO treaty might switch from specifying only mandatory  
copyright enforcement principles (the current approach) to also  
specifying some mandatory exceptions to copyright.

Isn't that right, Steven Metalitz, DC copyright lawyer extraordinaire  
and repeated representative of the MPAA and RIAA?

The uniform approach within this global framework has been to set  
minimum standards of copyright protection, subject to certain  
exceptions or limitations which are permissible, but not mandatory. As  
a corollary, none of the existing treaties bars national legislation  
that provides stronger protection than the global minimum standard, or  
that declines to recognize a permissible limitation or exception...  
The draft treaty would turn this long-standing principle on its head,  
demanding that signatories limit copyright protection to an extent not  
even permissible under the existing treaties...

Viewed in context, the draft treaty appears to many as the not-so-thin  
edge of a wedge to be driven into the long- standing structure of  
global copyright norms. It advocates a U-turn in the approach to  
global copyright norms that would almost certainly not be restricted  
to the issue of access for the visually impaired, or even for the  
disabled community generally. Adoption of this proposal would be used  
to justify its radical approach—mandating in national law exceptions  
and limitations that reach far beyond what would be even permissible  
under global norms today—in many other fields of copyright law.

Read that again if it didn't sink in. (It's from Metalitz's commentary  
on the draft treaty (PDF), helpfully provided to the government.)  
Providing stronger mandatory copyright protections and enforcement  
mechanisms (think ACTA) is totally normal, right, and proper;  
providing stronger exceptions to copyright is "radical" and a "U- 
turn." And in this context, a U-turn would be a Very Bad Thing indeed.

There's no interest in balance here, and no real attempt to act like  
there should be. Copyright protections move naturally and logically in  
only one direction, toward stronger enforcement mandates. Governments  
are allowed to pass certain exemptions to copyright, but if they  
don't, and a host of blind people have limited access to certain  
works, too bad.

The US Chamber of Commerce, while going out of its way to laud the  
goals of the treaties, has the same objections (PDF): international  
mandates are only for enforcement, not for exceptions.

The current international intellectual property framework is based on  
harmonizing national laws or establishing 'minimum standards' of  
protection subject to flexibilities that permit limited exceptions...  
The treaty proposal takes the exact opposite approach by seeking to  
establish 'necessary minimum flexibilities,' which threaten to  
undermine existing norms in copyright... If the 'minimum  
flexibilities' approach were adopted, even in an agreement limited in  
scope to accessibility of copyrighted works for persons with certain  
disabilities, this approach could be adopted in other areas well.

In other words, patent and trademark regimes might also be subjected  
to the humiliation of having to accept mandated limits and exceptions.

The Chamber of Commerce has some ideas about how WIPO might better  
handle the issue of making works more accessible to the blind; the  
main suggestion is supporting "further studies" on how nations around  
the world handle the issue. Such a "best practices" report, whenever  
it might eventually be finished, could then be used to start thinking  
about a better approach.

WIPO actually already commissioned and received such a report—230+  
pages of just such material, replete with case studies from around the  
globe, which was published in 2007. That report focused on copyright  
law and how nations handled exceptions for the blind, but the Chamber  
doesn't want copyright law changed; they would prefer that future  
reports focus on "the efforts of the private sector" instead.

The treaty as it stands does raise all sorts of legitimate questions.  
(Should the traditional "three-step test" for deciding if national  
copyright exemptions meet international treaty obligations be  
scrapped, for instance, in favor of mandated exemptions that rely on  
no such test? Can better results be achieved using existing treaties?)  
What's interesting about the debate isn't the treaty itself but the  
resistance—indeed, the bewilderment—of those who truly see mandated  
copyright enforcement as some natural state of affairs for  
international treaties and who will brook no move to a system that  
balances mandated enforcement with mandated exemptions.

And what's more interesting still is that the current stance of the  
Obama administration on these issues is to challenge this idea. Take a  
look again at the statement we opened with: "We recognize that some in  
the international copyright community believe that any international  
consensus on substantive limitations and exceptions to copyright law  
would weaken international copyright law. The United States does not  
share that point of view."

Now, the issue of what constitutes "balanced copyright" is hugely  
debatable, and it's an argument worth having. Indeed, the  
administration may be making a veiled reference to ACTA in its  
statement that the US will work to "establish consensus on proper,  
basic exceptions within copyright law, [and] will ask countries to  
work with us to improve the enforcement of copyright." In other words,  
we support a treaty for the blind even as we push for ACTA.

Based on our own reading of the ACTA leaked drafts to date, it's not  
yet clear this is really "balance" in any meaningful sense of the word  
(and it's certainly not "transparency"), but it is heartening to see  
the US actually supporting the idea that copyright legislation will  
need tweaking over time—and that tweaking does not always move in one  
direction.

When you're going the wrong way, driving faster isn't the answer; a U- 
turn is.