Copyright turmoil: freedom of speech trumping protection arguments (except in Canada?)

Posted on February 11, 2012 by bhaggart

It’s been a busy few weeks for copyright policy around the world, hasn’t it? Latvia, Poland the Czech Republic and – isn’t this something – now Germany have refused to sign the Anti-Counterfeiting Trade Agreement (ACTA), although Germany is only saying it won’t sign it right now. In Canada, the Harper Conservatives have moved to close debate on their copyright bill, C-11, moving it to committee, where Michael Geist reports that content-industry groups will attempt to strengthen it even further. And I think there was some small event in the United States, where Wikipedia turned off the Internet or something, which led to the scuttling of the House Stop Online Piracy Act and the Senate Protect IP Act.

Protests online, protests in the streets, and successful protests at that. What’s going on? And (being a bit parochial) what does it mean for Canada?

Doubtlessly, the protests’ success is the result of many factors, including the structural vulnerability of governments to protests and the example, for Europe, of the SOPA protests, but I’d like to highlight one in particular. Namely:

Protesters have managed to reframe copyright reform as a debate about freedom of speech, not protection of property. For decades, the dominant take on copyright has been that increased protection was necessary to promote creative production. (Whether this is actually true is another matter entirely.) However, as we saw last year in Mexico – whose Senate rejected ACTA before rejecting ACTA was cool – this position can be successfully challenged by some core ideals that also lie at the heart of copyright law, namely that it should promote the public dissemination of knowledge and culture.

While this duality has always been present in copyright, the spectre of kneecapping the Internet – something that millions, if not billions, of people now depend on for their day-to-day lives – at the service of a small, politically powerful segment of society offered a vivid illustration of this protection/dissemination tradeoff. Over the long term, this reframing has the potential to change drastically the direction of copyright law.

(For the political science wonks in the crowd: this is a prime example of how, within an historical-institutionalist framework, agents can exploit conflicting paradigmatic ideas embodied in an institution to effect radical, yet path-dependent change without resorting to “this changes everything” punctuated-equilibrium explanations. Now, back to human-speak.)

As for Canada, well, critics have their work cut out for themselves. When copyright first showed up on the public agenda back in December 2007, the Harper Conservatives were uniquely vulnerable: a minority government, facing an opposition of unknown strength (spoiler alert: the Liberals were all yelp, no bite) and a contentious vote on continuing the war in Afghanistan. Faced with direct and unexpected public opposition, they tabled the bill and eventually held public consultations.

Despite this back-down and some small reforms the Conservatives have consistently supported a hard-line approach on the legal protection of digital locks, which were always at the heart of public opposition to the Conservative copyright bills. Now, Harper and the Conservatives have a majority government, four years to go until the next election, and a “just-enough” electoral strategy of microtargeting specific ridings and groups, ignoring everyone else. Even with critics’ (not entirely unfounded) attempts to link Bill C-11 with the SOPA and ACTA debates, it’s hard to see what it would take to change the government’s mind on this issue. That isn’t stopping people from planning in-the-street protests and an online petition.

In all, it’s just another reminder that copyright treaties may be global, but copyright politics are local.

Posted in ACTA, Anti-Counterfeiting Trade Agreement, C-11, Canada copyright, historical institutionalism, SOPA, Stop Online Piracy Act | Tagged , , , , , | Comments Off on Copyright turmoil: freedom of speech trumping protection arguments (except in Canada?)

Spain and the U.S. copyright “bully”: Threats ain’t what they used to be

Posted on January 9, 2012 by bhaggart

My Twitter feed has been abuzz over the past week about how the U.S. “threatened” Spain with placement on the Special 301 Priority Watch List in order to get Spain to pass an unpopular law clamping down on unauthorized file sharing (I may be a holdout on this, but I try to save the word “piracy” for actions involving actions on the high seas that carry the potential for violence and murder). Representative reporting, from Ars Technica:

As El País reported yesterday, the US ambassador sent a letter to Spanish government officials on December 12, 2011, in which Spain was blasted for not getting the job done. The US could move to put Spain on its Section 301 “priority” watch list, a more severe designation which could carry the threat of trade penalties.

Within weeks, the new Spanish government came through.

It’s certainly a narrative that plays into easy pre-existing prejudices: the bullying United States threatens a smaller country, forcing it to implement wildly inappropriate policies against its will. After all, that’s just how they are, isn’t it?

Sorry to disagree, but I don’t see this as a case of bullying. It’s actually much more interesting, and nuanced, than that.

Let’s start with the “threat.” As threats go, saying you’ll put a country on the Special 301 Priority Watch List is right up there with: “Stop thief, or I’ll say stop again!” The Special 301 lists, especially in the World Trade Organization era, are largely a PR exercise, a means of reiterating annually to foreign governments the U.S. intellectual-property position.

But the Special 301 Priority Watch List carries with it the threat of trade sanctions, right? Here, Wikipedia is your friend:

If the US investigation concludes that a country has violated a trade agreement Section 301 of the Trade Act of 1974 allows the US Government to impose unilateral trade sanctions if the country is not member of the World Trade Organisation (WTO) or any other trade agreement establishing dispute settlement provisions, such as free trade agreements, which are relevant to the alleged violation (emphasis added).

So where’s the threat? The United States can threaten to sue Spain at the WTO, but only if Spain is not in compliance with WTO rules, and on this issue I’m pretty sure they are. And a quick perusal of the current Watch Lists shows not only how many countries are on it, but also that it’s more about encouraging cooperation than hitting countries with sanctions.

Some threat.

I’m also not losing much sleep over the fact that the U.S. Ambassador to Spain is sending critical letters to the Spanish government. This is what countries and ambassadors do: they try to influence other countries’ policies. Of course, it’s a separate issue when politicians deny that a bill’s provisions (on DRM, say) are not the result of another government’s influence when they patently are, but that’s a separate issue. In any case, we shouldn’t mistake influence for power: there’s a difference between whispering in someone’s ear and holding a gun to their head. Special 301, particularly in the case of Spain, is no gun.

So if the threat is toothless, and the U.S. Ambassador is just doing what ambassadors do, then what happened in Spain? I think the key to understanding the outcome is to remember that domestic politics count, and that not just American media companies want stronger worldwide copyright laws. As the Ars Technica report points out, the Spanish Culture Minister, Ángeles González-Sinde Reig, was a former head of the Academia de las Artes y las Ciencias Cinematográficas de España (Spanish Academy of Cinematographic Arts & Sciences). From what I can tell, she agreed with the U.S. copyright position, so there is some support for stronger copyright within key Spanish constituencies.

It’s also not unheard of for new governments to pass unpopular legislation early in a term, with the expectation that any opposition will blow itself out within a few years. My best guess is that the new government either believes in the new law or saw it as a cheap way to gain some points in Washington – which is not the same as caving in to a bully’s threat.

All this, of course, doesn’t change the underlying assessment of the bill itself. As I’ve written before, there are very good reasons to be concerned about stronger copyright laws.

But how change happens matters. If Spain’s new law was the result of international power politics, then reversing the law, or implementing other laws the United States won’t like, invites retaliation; the potential for reform would be pretty small.

If, however, Spain’s copyright laws aren’t the result of hegemonic dominance by the United States but of the particular strengths and weaknesses of various groups (including the United States) within the Spanish political system, it suggests that domestic Spanish groups that don’t like the current law can change it without declaring war on the United States.

I think that Spain’s case fits within the second category. The Big Bad United States versus smaller countries may be a compelling narrative, but in this case it’s not terribly accurate. That’s good news for those interested in long-term copyright reform.

Posted in copyright, United States copyright | Tagged | Comments Off on Spain and the U.S. copyright “bully”: Threats ain’t what they used to be

Mexico’s uncertain copyright future

Posted on December 22, 2011 by bhaggart

I’m trying to finish a journal article before heading to the coast for Christmas, but since I’ve been posting about Mexico and copyright, it’s worth noting that despite the Mexican Senate’s rejection of the Anti-Counterfeiting Trade Agreement, the debate isn’t over by a long shot. The Mexican copyright debate continues to be, shall we say, interesting:

“There is still a chance that ACTA might live in Mexico,” said Leon Felipe Sánchez, professor at the Legal Department of the Universidad Natcional Autónoma de México and partner at Fulton and Fulton SC in Mexico City. With upcoming elections and a potential new government in office later in 2012 there might still be enough time to go back to the Senate and get another, this time ACTA-approving vote, he said, despite the opposition. The current Mexican Congress last summer rejected ACTA after an extensive consultation process.

Sánchez also sees several new initiatives by some of the very anti-ACTA advocates that aim at reforming Mexican IP law. The most prominent case of a convert currently reported about in Mexican blogs is Senator Frederico Döring Casar from the National Action Party (PAN), who started a legislative initiative that according to reports from Mexico would install a notification system managed by the Mexican Institute of Intellectual Property (IMPI), based on allegations of infringement from rights holders. The proposed bill will be further discussed in January.

With these and a number of similar reforms, the Mexican legislature might go ahead with implementing IP enforcement provisions and making ACTA practically irrelevant – or potentially easy to adopt later as an agreement that then would not change then existing Mexican law. Who could be against it then?

Further information on these developments here (in Spanish). Basically, the Senate has voted to enhance Mexican copyright authorities’ enforcement powers (though, as always, we’ll have to see how this translates into actual enforcement). Also, as mentioned above, a PRI senator who voted against ACTA has proposed an ISP monitoring law modeled on the French HADOPI law, a “three strikes” regime under which people accused of copyright infringement three times are fined or have their Internet access cut off.

Interestingly (to me, anyway), Senator Döring justifies his proposal by saying that copyright is a human right. This is particularly fascinating because Mexican copyright law has been pretty focused on copyright as an economic right since it reformed its legislation in response to U.S. demands during the North American Free Trade Agreement negotiations. This just goes to show that old ideas die hard, and that traditional, author-based conceptions of copyright can be easily used to defend owner-focused (i.e., corporate; few authors control their own copyrights) copyright reforms.

Back to the main question: How will these new developments affect ACTA’s chances in the Senate? My honest answer is I have no idea. The traditional, entrenched Mexican copyright interests (the collection societies, the content industries, the Mexican copyright authorities (IMPI, INDAUTOR), the United States), all of which tend to favour stronger copyright protection, are still there, and they still have clout. Similarly, it’s not likely that all of a sudden “the public” has displaced these entrenched interests. So it shouldn’t be a surprise if the Senate continues to pass pro-copyright legislation.

It does seem that at least a few Mexican academics also have concerns (in Spanish) with ACTA. This includes Ernesto Piedras, the go-to guy for info on the economics of the Mexican creative/cultural sector. The big (new) player in all of this is the telecoms industry. They have clout and allies within the government bureaucracy (the Communications and Transportation Department), and their interest is in ensuring that any new copyright law does not affect their bottom line. I would be surprised if this interest is not addressed in any eventual copyright reforms.

But I think the most important point is that there is any uncertainty at all as to what will happen. Back in 2003, the Mexican Congress approved, with minimal debate and almost unanimously, an extension in the term of copyright to a world-leading life of the author plus 100 years. Even one copyright-department official I talked with thought that was a bit much.

Now, however, the battle has been joined. Strengthening copyright protection is not a slam dunk. That’s a pretty huge deal.

As I’ve said before, how this plays out has the potential to tell us a lot about the future of copyright reform elsewhere. Stay tuned.

Posted in ACTA, Mexican copyright | Comments Off on Mexico’s uncertain copyright future

SOPA lobbying: The behind the scenes story

Posted on December 16, 2011 by bhaggart

As a quick follow-up to my previous post, anyone interested in how the Stop Online Piracy Act has come ever-closer to being the law of the land in the U.S., and anyone interested in how the U.S. policymaking process works, should check out Zach Carter’s thorough piece at the Huffington Post. It’ll be very interesting (to say the least) what happens next.

(h/t Techdirt)

Posted in Uncategorized | Comments Off on SOPA lobbying: The behind the scenes story

The Stop Online Piracy Act: History repeating itself?

Posted on December 5, 2011 by bhaggart

A little taste of a project I hope to start working on soon, if the funding comes through:

As Jessica Litman details persuasively in Digital Copyright, since at least the beginning of the 20th century, the U.S. copyright policymaking process has been set up to achieve a rough balance among the interests of various groups. In the mid-1990s, Bruce Lehman, head of the Patent and Trademark Office and former computer software lobbyist, attempted an end-run around Congress by going to the World Intellectual Property Organization (WIPO) to get a treaty that would bolster the hand of the copyright industries back home.

Interestingly enough, as I argue in my dissertation, Lehman’s strategy essentially failed. “User” groups, widely defined, rallied against the U.S. Administration’s one-sided approach. The resulting legislation, the Digital Millennium Copyright Act (DMCA) may have its flaws, but it undoubtedly reflects the will of the major (political, economic) U.S. players. The telecoms and ISPs got their notice-and-takedown regime, the copyright industries got their heavy-handed Digital Rights Management/Technological Protection Measures rules. Less-powerful interest groups received various exemptions, including a “rule-making” process that allows the Librarian of Congress to revisit the DRM rules every three years to introduce exemptions as needed.

Of particular interest to me is the role played by nascent “public interest” groups, most notably the Digital Future Coalition, spearheaded by lawyer Peter Jaszi, among others. According to Litman, it played a coordinating role among critics of the Lehman position. The DFC also publicized the issue, although they were not really at the table when the legislation itself was being hashed out.

Fast forward to 2011, and you have the Stop Online Piracy Act, a Draconian piece of legislation designed solely to address the interests of the copyright industries, and, if enacted as is, would essentially cripple the entire Internet. Fun stuff. And now, in the past couple of weeks, more and more groups are expressing their displeasure. Even the Business Software Alliance, hardly a roguish cabal of eyepatch-sporting seafarers, has criticized the bill.

So far, despite the high stakes (or perhaps because of them), the U.S. copyright process is acting exactly as one would expect. The main wild card this time around, however, is that the public (a tricky term, but I’m thinking out loud here) seems to be taking a much bigger interest in this fight than they did in 1998. Back then, the public-interest position was being led by copyright lawyers and experts. They’re still alive and kicking in 2011, but there are a lot more groups focused on copyright issues in Washington: the Electronic Frontier Foundation (which was pretty green the last time around), Public Knowledge, the Future of Music Coalition, just off the top of my head. And as Techdirt is reporting, SOPA has spurred some pretty impressive public involvement.

While U.S. copyright laws have always reflected a balance of interests, these interests have always been narrowly defined. In short, the overarching “public interest” in copyright – ensuring that copyright law promote both the production (not protection) and dissemination of creative works – has been seriously underrepresented at the copyright policymaking table. Those at the table may be more or less interested in increasing protection levels or maximizing the potential for dissemination, but there are few voices who advocate for the big picture. As Litman says, U.S. copyright lawmaking basically involves groups engaging in zero-sum dealmaking.

As I see it, the SOPA debate raises a couple of intriguing questions.
1. Is the public more engaged over SOPA than they were over the DMCA?
2. What effect will this public engagement have on the final bill (assuming Congress passes something)?

This last question is key. Will increased public notice in copyright (assuming it exists) and greater involvement by public-interest groups like Public Knowledge lead to a different outcome in 2011 and 2012 than in 1998? What version of the “public interest,” if any, will be represented at the negotiating table?

Comments welcome. I can’t wait to find out.

Posted in copyright, DMCA, public interest, SOPA, Stop Online Piracy Act, U.S. copyright, United States copyright | Comments Off on The Stop Online Piracy Act: History repeating itself?