Category Archives: international IP

A glimpse into our future?

Access Copyright is the Canadian equivalent of the U.S Copyright Clearance Center.  Like the CCC, which is helping to finance litigation against Georgia State University designed to force US universities to pay more and higher licensing fees for course materials, Access Copyright is also on a quest for ever greater income.

I and others have predicted for some time that a victory in this copyright infringement lawsuit would result in fewer educational options for our students, not more money flowing from university budgets into the coffers of the CCC. Now we have a Canadian parallel that seems to confirm those fears.

The situation for reserve materials in Canadian universities is already far worse than it is in the US.  A Canadian judge has ruled that putting required course materials on physical reserve in a library abets copyright infringement (when students make personal copies, presumably).  Based on this insane ruling, Canadian schools have been paying  $3.38 per student per year for physical reserves, along with .10 per page for course packs, to Access Copyright.  Now Access Copyright wants to change the fee structure and simply collect $45 per student per year for both physical reserves and course packs.

The upshot of this change, of course, would be a huge cost increase for universities and much higher revenues for Access Copyright.  And just as predicted, universities have started to opt for reduced student access in order to avoid a drastic drain on their budgets.  The University of Alberta has announced that it will no longer purchased the vastly more expensive license from Access Copyright and will, instead, simply stop providing reserve readings and course packs for students.  Students who cannot afford to purchase all the required readings will, it seems, be out of luck.

Who are the winners in this situation, I wonder?  Certainly not the students, who will have less access to course materials and higher costs for their education.  The university is obviously a loser too, since its basic mission is impeded.  And while Access Copyright will get richer, it is not at all clear that authors will benefit from the increased fees either.  Most academic authors – who are usually the ones who write textbooks – do not depend on that small additional income they receive from licensing fees after the large cut is taken by the rights organization.  In any case, often the author never sees any of that money; I have documented several times the situations in which the CCC collects fees for works whose authors it cannot identify. Those are cases where no incentive at all is created, only income for a bloated bureaucracy that feeds on fees that seem to have no rational justification.

When we compare the Canadian situation to the US it is clear that, in spite of some major differences in the law, we may be looking at our own future.  Physical reserves are not the problem in the US, since they are clearly covered by our first sale doctrine.  But fees for course packs and electronic reserves are climbing all the time, to unsustainable levels.  The Canadian system at least has the advantage of a predictable fee structure.  As US librarians know, we have no such predictability in our licensing budgets; the fees are inconsistent and capricious.  If we are to avoid a similar situation, in which professors are forced to adopt a more cramped and costly pedagogy, we need our courts to recognize that the current system is leading to a system that serves no public interest at all and is injurious to the educational system we have long been so proud of.

So who gets the money?

In my only previous foray into the issues of protection for traditional knowledge, I was quite critical of the legal regime used in Ghana to claim control and profit over the knowledge creations of indigenous peoples.  Even while criticizing the law, however, I admitted that there was a great deal of abuse that needed to be remedied, I just questioned how a remedy could be fashioned.  Now I have an opportunity to illustrate that abuse and also give concrete form to my doubts.

This short blog post, with links to other stories, tells how the Colgate company has successfully patented, in the U.S., an herbal toothpaste recipe that apparently has been used for centuries by natives of India.  Needless to say, the Indian government is not happy, and the case seems to illustrate the potential abuse of traditional knowledge that the WIPO and other groups would like to remedy.

One question, of course, is whether a patent should be available at all for this product.  This is not just an abuse of traditional knowledge but also, from a different perspective, perhaps, an abuse of the public domain.  In the U.S., as in most countries, patents are granted only for inventions deemed “novel.”  If this mixture of common herbs has been used in India for centuries, where is the novelty?  Colgate simply wants to sell to Indians something they have been making for themselves for a long time.

But this raises the second question I want to consider.  Is it possible that allowing a patent for this product will actually have a social benefit by making the toothpaste more widely available to those who want to use it?  Many Indians probably cannot be bothered to make the paste but would be willing to pay a reasonable price for a pre-made version.  If there would, in fact, be a social benefit, perhaps the patent should be allowed.  This seems to be the position of the Indian government; their object seems to be to letting an American company make the profit more than it is to the idea of profit itself.

So if a patent is to be allowed, the next step would be to find a way to protect the legitimate interests of the inventors of this traditional formula.  That is where the problems really come up, in deciding what those legitimate interests are and whose they are.

For example, are there some groups in India who should be able simply to stop the commercial exploitation of this product?  If we determine that there is social value to the commercialization, then we face a situation where protection of traditional knowledge might cause social harm.  We might opt to make such a decision out of respect for native peoples, but it is a calculus that needs careful consideration.

If we allow the commercialization, equity suggests that profits should be shared with the native peoples who developed the product.  But just who are those peoples?  Who stands in the position of representing Indians who have made this dental powder for “perhaps 1000s of years?”  The Ghanaian solution is to let the government stand in the place of the indigenous creators of traditional knowledge, and in this patent dispute it sounds like the Indian government would like to follow the same path.  To me this question of “cui bono” is the most important and problematic aspect of the debate about protecting traditional knowledge.  If we could find a way — and it will be different in nearly every situation — to actually let the indigenous creators garner some benefit from their traditional knowledge, then I am all for doing so.  But letting contemporary governments profit from knowledge passed down for centuries amongst people who occupied the same territory that that government now rules — even if, as may be the case, the descendants of those peoples do not, in the current situation, feel well represented by that government — is a very imperfect solution indeed.

Fair is fair, isn’t it?

It was certainly good news to see this news story from the BBC reporting that Prime Minister David Cameron has initiated a review of the UK copyright laws with an eye toward revisions that would accommodate the way innovation happens in the Internet age.  Every country should probably undertake this kind of review periodically, although this blog post from TechDirt raises doubts about how serious the review will be.  In any case, it is worth looking closely at the announcement Cameron made and seeing what we can glean.

First, Cameron was very clear is stating that his attention was turned to this subject when he was told by “the founders of Google” that “they could not have started their company in Britain.”  One thing this remark does is remind us of how important short, compelling messages are in capturing the notice of lawmakers.  I often wish we could get legislators to pay enough attention to really understand what copyright is for and how it could be improved, but that is a foolish hope.  In reality, short messages that cry out for specific action – framing devices that state a clear reason why a politician should care – are vital.

Another thing we learn from this remark is how much Google sees itself as dependent on the U.S. fair use provision.  It is precisely a U.S.-style fair use clause that Cameron wants to consider for the U.K.  The Guardian newspaper immediately took Cameron to task for that suggestion, arguing that the government was too much “in the thrall” of “IT giants.” The Guardian went on to tell Cameron that there was little difference between fair use in the US and fair dealing in Britain, and that fair use “does not allow what Google does either.”

This latter statement is badly misguided.  It is very clear that the heart of Google’s business – the provision of Internet searching and indexing – is fair use and several courts have ruled that way.  Perhaps Mr. Arthur of the Guardian is thinking about the Google Books project, the fair use issue in regard to which has never been resolved.  The utility of fair use for supporting Internet innovation is really hard to dispute, although recent interpretations of fair use in some court cases have not always allowed it to live up to its potential.  It is worth taking a minute to see why fair use may be preferable to fair dealing for supporting innovation.

Fair dealing generally refers to a specified set of acts that will not be considered copyright infringement.  In the U.K, private and research purposes, educational coping, news reporting and library lending are all among the acts consider fair dealing (see item 8 in the linked document).  But these lists are exclusive; they do not offer the flexibility to encompass new uses and technologies not known when the law was passed.  Some of the items on the U.K. list of fair dealings are covered by specific exceptions in U.S. law — library lending, for example, is permitted by section 109 – while others are left to the broad but dubious embrace of fair use.  Fair use is an addition to the specific exceptions and is intended to provide exactly the flexibility that fair dealing lacks.

The irony here is that while I agree that Britain needs a fair use provision that would give them the flexibility to experiment and innovate in the knowledge economy, I also envy fair dealing provisions to some extent.  If the U.S. had the fair dealing exemption for educational copying, for example, we would be spared the battles over course packs and e-reserves, and education would be somewhat less expensive for our young people.  So I think it is a mistake to present fair use or fair dealing as an either/or choice; a balance between the flexibility offered by fair use and the certainty offered by specific exceptions for common and socially valuable activities is the goal our copyright reform should pursue on both sides of the Atlantic.

The final point I want to make about the BBC report is regarding the comment from the chief executive of the British Publisher’s Association, who warned that “The immutable fact remains that the people who generate and invest in creativity deserve and need to be rewarded.”  This comment is one of those bromides, often heard in the copyright debate, that really means “keep paying me and don’t make me change the way I do business.”  My real dispute is with the phrase “immutable fact.”  As the knowledge economy changes rapidly, few “facts” will really be “immutable.”  Indeed, they may not be facts at all; we desperately need better data to assess whether and how well copyright laws actually do provide incentives for authorship and creativity.  Certainly we know that there are broad swaths of creators (in academia, for instance) who create without regard for the economic incentives created by copyright.

And there are probably other “facts” we need to consider.  As a panel at a recent meeting of the World Intellectual Property Organization testified, the “Byzantine maze” of copyright regulations is “stalling monetization of new business models.”  This is the fact to which Prime Minister Cameron is responding, as well as to the charge to treat the need to reform copyright so as to support innovation with the same urgency that we fight piracy of copyrighted works.

Berlin in Beijing – first impressions

Berlin 8 at the Chinese National Library of Science
Berlin 8 at the Chinese National Library of Science

The week that my colleague Paolo Mangiafico and I spent in Beijing for the Berlin 8 Conference on Open Access flew by, so my first impressions are actually being written after our return, based on notes I made during the conference.  This post is an attempt at a summary of the event, while later posts will address specific points that arose.

Towards the end of the Conference there was a brief debate between some panelists about whether progress on open access is too slow or “adequate.”  Perhaps it is merely indicative of my lack of awareness, but I spent much of the conference being amazed at how deeply the values of the open access movement have penetrated around the world.  As I listened to the debate, I was aware that progress on OA might indeed be called slow in the U.S., but that much of the rest of the world is moving forward quite quickly.

A telling sign of the growing influence of the open access movement was the overflowing venues for the meetings held at the Chinese National Library of Science.  In addition to the large number of Chinese researchers who attended the events, there were presentations by OA advocates from all over the world; I personally had in-depth conversations with librarians and researchers from Germany, Italy, Austria, Greece, Japan and Lebanon, as well as with a law professor working on open access issues in the Netherlands.

China was more than just a venue for this year’s Berlin Conference or even a symbol of the global reach of open access as a principle of scholarly communications, especially in the sciences.  The Conference was itself a significant step toward increasing the openness of scientific research in China, which is the fifth leading nation in its share of the world’s scientific publication.  As this blog post from InTech points out, OA is an important step towards increasing the impact of that high level of research.  In his closing remarks to the Conference, Dr. Zhang Xiaoling of the National Science Library reported on the significant attention that the Berlin 8 event was receiving in the Chinese press and also told us that a summary of the proceedings was being sent to officials in charge of the major research organizations and offices in the PRC.  Holding the Berlin Conference in China this year created an opportunity to make a much faster transition toward open access to scientific publications on the level of national policy then has occurred elsewhere.

The panel on which I participated, on legal issues and business models for open access, was indicative of the desire for detailed advice about how to do OA right that was a constant theme from our hosts.  We frequently heard that the thicket of licensing issues which can arise was a major obstacle for OA, and my own presentation provided, I hope, a framework for considering how to deal with multiple copyright interests.  Much greater detail, and more learned analysis, was provided by Wim van der Stelt of Springer and Lucie Guibault from the University of Amsterdam.

The most important impression that I came away from the Berlin 8 Conference with was about the depth of the conviction within the world-wide research community that open access is a major, and affordable, benefit for scholarship. For example, Wim van der Stelt reported on the SOAP project, a survey of attitudes toward open access among researchers.  The finding that 89% of the almost 40,000 researchers who responded to the survey expressed the opinion that open access would benefit their fields was startling to me.  Even more encouraging was that 62% said they had already published at least one article in an open access (“gold”) journal.  Finally, while 40% expressed the opinion that funding for open access publication was a problem, a larger percentage – 50% – said that OA did not need to cost the author anything.

On this point about costs, Alma Swan of Key Perspectives, Ltd in the UK reported on the economic analysis that she and John Houghton (Victoria University, Australia) have been doing regarding OA.  When the costs of OA are balanced against the savings it creates, including subscription savings, reduced transaction costs, and indirect economies based on saved time and effort for researchers, each scenario that was studied – self-archiving, “overlay” journals, and OA in parallel with subscription journals – showed substantial savings at a national level.  When the analysis is applied to specific universities it was found that all institutions would realize savings from “green” open access, which is self-archiving, while about half would also save money from gold OA.  These studies show the practical and localized value of open access that exists in addition to the large societal value, the dollar value of which is presumably also substantial.

ACTA and the embrace of big government

On October 2 the U.S Trade Representative released what has been called the final, or “nearly-final,” text of the draft Anti-Counterfeiting Trade Agreement.  ACTA, as it is known, has been the subject of a good deal of controversy for several reasons.  First, because much of its negotiation has been in secret.  Second, because it seems like an end run around both the WIPO / WTO negotiation process for harmonized IP rights protection and around Congress, since it is billed as an “executive agreement” rather than a treaty and therefore does not need Congressional approval.  Finally, rumors have flown that ACTA would force substantive and draconian changes in US law (and the laws of other countries) that would greatly increase the scope of IP protection without legislative action on those topics.

It is clear that this last draft of ACTA is substantially weaker than previous versions that have been released, and a very great deal weaker than what rumor said was contained in the earlier undisclosed drafts.  Nevertheless, I still come away from a reading of this text thinking that its primary purpose is to shift lots of the costs of enforcing IP rights from the private industries that hold those rights to government agencies, funded by taxpayers.  It is odd (or maybe not odd at all) that large corporations, which generally complain about excessive regulation, seem to embrace “big government” when it serves their interests at lower cost (to them).

Because it is a trade agreement not subject to Congressional oversight, ACTA is not, technically, permitted to change US law.  It is billed as an agreement about enforcement of existing laws, not an attempt to enlarge the legal scope of IP rights.  That claim, however, is subject to lots of skepticism. Indeed, Senator Ron Wyden of Oregon has asked the Congressional Research Service to study the current iteration of the agreement to see if and where ACTA requires commitments incompatible with US law.

One change that ACTA was rumored to contain – a “three strikes” provision that would require ISPs to disconnect users who were accused (by the content industries) of copyright infringement – is not found in this text.  According to this article from Bloomberg, pressure from Google is the reason we do not have to fight off that particular bad idea.  Nevertheless, there are several places, notably in the border security provisions, where this version of ACTA would appear to allow enforcement of IP regulations without judicial involvement, something that seems like a significant change in the way IP law currently works.  The whole issue of how the “remedies” sections of ACTA might alter the legal landscape for US citizens is detailed in this article on “Areas where the Oct. 2, 2010 ACTA text is inconsistent with U.S. law.”

Another place where this text is not as bad as it could be is on DRM.  The US did not succeed in getting its negotiating partners to agree to DMCA like provisions; no doubt the abject failure of those provisions to prevent piracy, could with their unfortunate impact on legitimate activities like teaching, contributed to this failure.  Nevertheless, legal protection for of some kind for DRM systems is encouraged in this text of ACTA and DRM systems, by definition, extend a content owners control beyond what is provided for in national copyright laws.

There are several definitional problems in this final draft of ACTA.  This post from TechDirt discusses one of them, the definition of “commercial scale,” the breadth of which seems to make lots of essentially private activities into criminal acts.  Also, the concept of piracy, which has usually referred to large-scale commercial infringement, is defined in this text as any copying that is not authorized by the rights holder and which would be infringing under the laws of the country involved.  In both these cases we see the ratcheting up of both rhetoric and actual enforcement to a level where all infringement is potentially criminal.  Thus more enforcement costs can be transferred from private industry to national governments.

It remains unclear how this “final” text of ACTA will be implemented.  Although no additional negotiations are scheduled, there are still significant areas of disagreement that are noted in the text.  One important such area is whether or not the provisions apply only to copyright protected goods or also to patented inventions.  The countries that were party to the negotiations have up to two years to “sign on” to ACTA but, in its current state, it is unclear what such signers would be agreeing to and how they could implement ACTA in the national laws.  Perhaps, after all, this long and expensive process of negotiation will result in nothing more than a bargaining chip for industries to use to move enforcement costs off of their books and on to taxpayers.

Can we protect “traditional knowledge?” Should we?

In much of the world, the possibility of providing protection for traditional knowledge — indigenous music, stories, dances and even genetic material — is a very lively topic.  Even though such protections are a form of intellectual property right that clearly impacts issues of scholarship and copyright, I have not previously dealt with these discussions in this space.  That is largely because of the great uncertainty I feel about the whole issue of whether such protections are appropriate and what form they should take.

It is not difficulty to find stories of how native peoples have been exploited for economic gain by companies that will appropriate and market traditional knowledge forms — everything from music to medicine.  Such exploitation causes one to think that there is a hole in copyright laws that needs to be filled.  But any attempt to expand the scope of our copyright protections, which already seem to cover too much and last too long, is likely to have a detrimental effect on scholarship.  Thus I find myself caught between warring impulses — respect for the intellectual creations of native peoples  versus the desire to foster widespread knowledge of different cultures .  This latter impulse is a corollary of the general belief that a robust public domain is a good thing overall for all societies.

I was finally prompted to address the topic of traditional knowledge by this announcement that Ghana plans to start enforcing provisions of its 2005 copyright law that create fairly strict protections for “folklore.”  This short blog post led me to look at the Ghana Copyright Act itself to see how it address some of the problems that seem inherent in such protection.

One obvious problem is how to define folklore, which is the term used in the Ghanaian law.  The definition given at the end of the Ghanaian act is very broad and not terribly specific.  Because so many things fall into the category of traditional knowledge, it is important to have clear definitions of the subject matter of protection.  Does “folklore” in Ghana, for example, encompass dance?  What about traditional medicines?  Should such diverse subject matter be treated under the same law as works of authorship?

Another issue is very clearly dealt with by the Ghanaian law — the issue of who owns folklore.  In section 4 of the attached document, the law states that “the rights of folklore are vested in the President on behalf of and in trust for the people of the Republic.”  However noble the intent, this is an assertion of state ownership over folklore, an assertion which is always open to the challenge about whether the state really best represents the interests of all of the varied and ancient peoples who created this wisdom.  Also, because it is the state that holds these rights, the protection of folklore is perpetual.

The protections provided for folklore in Ghana are the same as the copyrights vested in more typical subject matter.  Rights in folklore are also subject to the same set of exceptions as Ghana provides for other content, and these are a pretty good set of user rights (found in section 19).  No permission is needed, for example, for purely private and personal uses, for quotation in another work (as long as attribution is provided), for use in teaching and “public education” and for news reports, including broadcasts.  Many of the uses that would be important to scholars of Ghanaian folklore would be included in these exceptions except for the fact that they are so often limited by the caveat that for the exception to apply the work must have been “made public.”  The problem here is that so much indigenous knowledge may not have been made public in any recognizable way, so scholars of these works may still be forced to seek permission.

To get permission one must apply to a government-run National Folklore Board, established in sections 59-64.  Since this Board will both approve or reject the proposed use and set fees, its potential for skewing research into Ghanaian culture seems tremendous.  The statements made in this longer article about folklore from the Minister of Chieftaincy and Culture  are very frank in saying that the goal of the board is to exploit folklore as an economic asset of the nation and to “repackage” culture as a source of employment.  It seems possible and even likely that those goals could conflict with efforts to study Ghanaian culture and to make its subtleties better known amongst students of Africa around the world.  Would the Board deny permission, for example, for a scholarly work that is critical of aspects of Ghanaian folklore on the grounds that such an evaluation could cause economic damage?

Even as Ghana asserts stepped up enforcement of its rules regarding folklore, South Africa is considering new protections for traditional knowledge or “Indigenous Knowledge Systems,” about which more information can be found here, here and here.  Ghana’ approach is apparently quite unusual, so comparison with the South African proposal can be very instructive.  And finally, a fuller expression of the reservations one might have about all these attempts to restrict use of traditional knowledge can be inferred, I think, from this eloquent celebration of the benefits of Open Folklore Project in the United States.  I am still unsure how to balance the two approaches, but I remain convinced that balance is what is needed.

Connecting the dots

Several months ago we discussed an article about international copyright that suggested the possibility that the developing countries who are part of the World Intellectual Property Organization (WIPO) could seek to reverse the trend toward harmonizing IP protections at a very high level by “de-harmonization.” Such de-harmonization would by directed at exploiting the space provide for limitations and exceptions in the major international copyright agreements in order to benefit local circumstances.  That article focused on the three fastest growing economies in the developing world – Brazil, Russia, India and China — the so-called BRIC countries.

Now comes this news release announcing that India and Brazil, along with 16 other countries from the developing world, have grouped together to more effectively represent the needs of such countries at WIPO.  As the announcement says, these 18 countries “aim to transform the World Intellectual Property Organization… [in]to a U.N. agency helping members achieve development goals through a balanced and calibrated use of intellectual property.” It sounds like these nations are taking to heart the advice that the WIPO and WTO treaties and agreements leave them room to adjust policy in ways that best suit their own needs, rather than accepting a “one size fits all” approach that favors the rich, content-producing nations.  The news release goes on to complain that strong intellectual property rights protections are being used to deprive people of needed medicines and to “steal developing countries’ traditional knowledge.”

These complaints are familiar to those who follow the negotiations at WIPO even in a cursory fashion, and there has been a new emphasis in recent months on the “Development Agenda” at WIPO and on how to redress the balance between protection of existing rights and access necessary for development.  The formation of this new block within WIPO is clearly an effort to move the organization along this path more quickly.

The timing, however, also makes it very hard to ignore that this new IP group, as well as the emphasis on development that it has been formed to foster, is one of the major factors in the decision by a number of developed nations to forgo WIPO negotiations in favor of the “pluri-lateral” approach being taken with ACTA, the Anti-Counterfeiting Trade Agreement.  As we have explained before, the ACTA treaty is being negotiated amongst a group of wealthy nations outside of the WIPO process.  Such negotiations are allowed by the WIPO treaties, although it is debatable if such sweeping tightening of IP enforcement was ever envisioned when those agreements were negotiated.  In any case, Michael Geist and others have argued that ACTA was born out of frustration with WIPO and the attention that was being paid there to the concerns of poorer countries who fear that rigid enforcement regimes will stifle their economic growth.

The specter raised by these developments is a fragmentation of the international IP community, with rich nations negotiating only amongst themselves for ever stronger measures to enforce intellectual property rights and developing countries talking only to themselves at WIPO about how such enforcement stifles growth and threatens lives.  When we connect the dots that these developments represent, it is an unfortunate and even frightening picture that emerges.

Act 2 of the ACTA controversy

When I last wrote about the Anti-Counterfeiting Trade Agreement, or ACTA, it was primarily to complain about the secrecy in which the negotiations were taking place.  Earlier this month, however, the US Trade Representative (who had opposed release) finally caved in to pressure from at home and overseas and agreed to the release of a draft of the proposed agreement.  Much of the released text is in square brackets, indicating that full agreement has not been reached, and there are several points where different options on a particular matter are outlined.  Nevertheless, enough is now clear about ACTA to be quite sure that the complaints raised before the release were fully justified.  Now the issue is not simply that we do not know what is in ACTA, it is that what is in ACTA is a series of very bad ideas.

One of the most reliable guides to ACTA continues to be Canadian law profess Michael Geist, who discusses some of the provisions and the problems with ACTA in this blog post and in a video which can be found here.  Geist points out very effectively that, in spite of assurances, ACTA is not just about enforcement of existing IP law but would mandate substantive changes in national IP laws.  Also, as he explains, it is not just about commercial infringement, regardless of what we have been told.  More about that in a minute.

One of the frequent claims about ACTA is that it would mandate a “three strikes” regime that would require ISPs to “terminate” subscribers after repeated accusations from the content industries that that user had committed infringement.  Such termination would occur without judicial process.  Defenders of ACTA have insisted that these claims are not true, and now we can see what they meant.  The released text does not require termination, but it does offer a safe harbor for ISPs, such as we have in the US, only if the ISP implements security measures.  The only example given of an acceptable security measure, of course, is a three strikes termination procedure.

To organize a summary of the issues raised by the draft ACTA text, I want to look at two groups of problems, one procedural and one substantive.

Procedurally, ACTA is a blatant attempt to remake IP law without having to involve either the World Intellectual Property Organization (WIPO) or the United States Congress.  It appears that the WIPO does not please the IP industries because of it’s transparency and because of the attention it pays to the needs of developing nations, for whom high and impenetrable IP barriers are not conducive to growth.  These industries pull the strings of the U.S. Trade Representative, and an international agreement is born that is negotiated in secret and would set up an oversight structure independent of the WIPO.  As two law professors point out in this editorial from the Washington Post, the agreement, with it’s substantive changes in national copyright law, would also seem to violate the US Constitution if it is approved here as an executive agreement without the involvement of Congress.

It is constitutional concerns that also frame my substantive objections to ACTA, since many of the things it would require signatories to enact in their national laws seemed to conflict with the Fourth, Fifth and Sixth Amendments to the U.S. Constitution.  By agreeing to ACTA, the U.S. would derogate due process and substantive civil rights in regard to this one area of law.  The best analysis of these problems can be found in a two part post by Margot Kaminski, here and here on the Balkinization blog, but I will offer a brief catalog here.

In the first place, the three strikes termination provision discussed above would result in citizens being disconnected from the Internet on the basis of mere accusation.  This is a significant reduction in the usual standard of evidence for a claim of infringement.  And ACTA has provisions that would increase the level of remedies available a great deal; termination would only be the beginning.  When there is a court proceeding, the damages could be based on any “reasonable” valuation suggested by the rights holder.

In addition, rights holders could seek injunctions without involving the other party; so-called ex parte injunctions would be available.  Finally, there would be several provisions allowing seizures of allegedly infringing property, including authorization for border agents to seize material at the request of rights holders.  This provision would make the U.S. Border Patrol into a sort of private police force working for the content industries, but at taxpayer expense.

The most troubling provision, I think, is where ACTA would require the U.S., and other signatories, to increase the criminal penalties for willful infringement.  The U.S. already has such penalties, but the ACTA standard would expand the definition of “willful” to explicitly include private, non-commercial copying if done on a large scale.  And ACTA says that criminal penalties “shall include” the possibility of prison.  Not satisfied with million dollar judgments against private citizens who share unauthorized movie and music files, the content industries now want to send them to prison.

Many of the enforcement provisions of ACTA would substantively alter U.S. law and would provide a heavy advantage to plaintiffs, one that is not available to those bringing other types of claims.  We are being asked to change our law in a way highly advantageous to one special interest based on an agreement negotiated in secret and without any of the legislative checks and balances that would normally be in play. If the office of the U.S. Trade Representative thought that releasing this draft text would put an end to controversy, they were badly mistaken.

Pre-publication update:  After this post was written, the Library Copyright Alliance released this analysis of ACTA by Jonathan Band.  It is well worth reading for those who would like a sustained analysis of the continuing problems with ACTA.

More big words in international copyright

Following up on an earlier post about the potential for fast-growing developing countries to adopt less restrictive, more growth-oriented IP regulations, I want to look at two concepts that are important for understanding international IP debates.

The first is “counter-harmonization,” which is used several times in the article I referred to about the BRIC countries by Jerome Reichman.  The movement to harmonize international copyright laws resulted in the Berne Convention, which the US finally joined in 1988, and the TRIPs agreement (for “Trade Related Aspects of Intellectual Property”) adopted by the World Trade Organization in 1994.  Those treaties have a lot to say about harmonizing levels of protection for copyrighted materials, but very little in regard to limitations and exceptions.  In other words, parties to the agreements are obligated to provide protection without formalities and to extend protection for at least the life of an author plus 50 years.  No similar obligation exists to provide any particular exceptions to copyright protection, such as educational viewings of films, free library lending, or reproduction of small excerpts for the purpose of research and scholarship.

In fact, the international treatises have generally seemed rather hostile to limitations and exceptions, even though they are as much at the core of the reason for copyright as is protection itself, at least insofar as copyright is intended to encourage creativity and innovation.  Creativity depends on some rights of reuse as much as it does on the assurance of a market for new works.  But in Berne and TRIPs, all exceptions in the national laws of the signers are made subject to a three-step test that has been interpreted, wrongly in my opinion, to be so narrow that many existing exceptions in national laws would violate its terms.

The call for counter-harmonization comes out of the WIPO development agenda, which has recognized that harmonizing only high levels of protection without also building in safeguards for reuse and innovation is contrary to the best interests of developing countries.  Those countries are being encourage, by Prof. Reichman and others, to exploit the flexibility still available under Berne and TRIPS to adopt limitations and exceptions that best suit the needs of their own growing economies.

The other major concept that is currently getting some attention is “cross-retaliation.”  The TRIPs agreement, for the first time in international law, gives countries the right to retaliate against another signer, if and when their IP rights are not protected, by imposing tariffs and other restrictions on other types of goods and trade.  So if country A gets a ruling that its IP rights are not being adequately protected in country B, A can impose tariffs on manufactured goods or crops imported from B.  This was new in the TRIPs agreement and has created some interesting problems.  Pedro Paranagua, who is a law professor from Brazil and a doctoral candidate at Duke University’s Law School, explains in this blog post how retaliation can be used both to enforce IP protections and to penalize an IP producer who competes unfairly in other markets.

As Paranagua explains, the US and other developed countries want retaliation under TRIPs to be a one-way affair — available only to a country whose IP rights were infringed so that they could penalize the infringer in other markets.  The WTO, however, ultimately allowed cross-retaliation to be two-way, so that a country whose markets in other goods are unfairly impeded — cotton is the market at issue in Paranagua’s post — could retaliate against IP from the offending country.

Cross-retaliation is another example of unintended consequences for the United States, and another indication that developing countries, particular those whose economies are growing rapidly, can use the international IP treaties to their own advantage.  As the global economy becomes more and more competitive, it behooves each nation, including ours, to re-examine its stance on IP regulation with an eye to fostering its overall best interests, rather than the needs of only one segment of the world-wide market.

Getting hit with a BRIC

The arena of international intellectual property and the WIPO Development Agenda is one I enter with considerable trepidation, because it is complex and shrouded in a language all its own.  Fortunately, one of Duke’s own law professor’s, Jerome Reichman, is an always reliable guide, and I read with careful attention his article “Intellectual Property in the Twenty-First Century: Will Developing Countries Lead or Follow?”  The article is itself technical and complex, but it is rewarding for its message to the developing world that they have a choice as they create or refine IP laws for their own best interests.  Reichman argues persuasively that simply replicating the high-protectionist regimes in place in the U.S. and the European Union is not the only, or the best, option for countries trying to develop their own economies.

Reichman’s article is available here, on the web site for the Houston Law Review (in vol. 46, number 4).

The danger, of course, is that when levels of IP protection are set too high they can inhibit innovation and growth.  Established technologies and industries can be protected to the point of becoming lazy, while new innovation and creative development can be stifled.  Reichman cites several examples of this trend, in a general way, when he describes patent “thickets,” “blocking” strategies that prevent improvements and how overlapping IP claims can inhibit broad use of “platform technologies” for innovation.  Anyone interested in a specific example of how patent protection can inhibit needed scientific development should read this blog post about hoarding of biological samples because of fears that patented drugs will be developed from them and increase the cost of health care for the developing countries that hold the samples.

Reichman proposes some specific strategies that developing countries, particularly that group of developing nations with very fast-growing economies that are known as BRIC (Brazil, Russia, India & China) countries, could follow to prevent these problems and to foster innovation and growth.  In the patent arena he suggests several places where compulsory licenses would be productive – for secondary research, especially when it can offer an improvement on the original technology, and for third party suppliers whose involvement is necessary to supply a particular market in the public interest.  He also advocates some doctrines that can be incorporated into IP law that would encourage growth.  Here, for example, he suggests an “essential facilities” doctrine in patent law that would make it possible to “pool” overlapping patents when access to a vital technological platform for research is at stake.  In copyright, he suggests that the idea/expression distinction be codified in national laws and that a broad, clear research exception be included, as well as a more flexible exception like the U.S. fair use provision.

In general, Reichman’s suggestions about how a combination of compulsory licenses and “liability rules” could be used to give IP law the flexibility to really encourage research and development point in a positive direction for the developing world.  He also acknowledges that these countries will have to stand up against the pressure brought on them by the U.S and the E.U. to adopt imitative regimes of high-protectionist rules that, he argues, would ultimately be counter-productive.

As I read this article, I kept thinking about the concern expressed by politicians and the media about the high level of U.S. debt held by China and the general sense that these “BRIC” countries are mounting a serious challenge to the dominant place the U.S. has held in the world economy.  If some of these fast-growing economies were to adopt Reichman’s recommendations, that competition could increase dramatically.  Indeed, U.S. dominance might find itself “hit with a BRIC.”  Perhaps the best way for the U.S. to stay competitive with the world is not to try a foist our regime, which seems to be counter-productive in the most literal sense, on others, but to move ourselves toward a more growth-oriented system of IP protections, limitations and exceptions.