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)
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.
The International Centre for Trade an Sustainable Development and the United Nations Conference on Trade and Development have just published an interesting-looking paper that deals with the issue of how trade agreements affect the implementation of intellectual property rights by developing countries. One of my main conclusions from my dissertation was that while trade agreements with IP components (think NAFTA or the U.S.-Australia Free Trade Agreement) definitely lead to IP changes in the target country, they also make it harder to achieve subsequent reforms because the United States (or the European Union) has already played its strongest card, preferential market access. I’ll be interested to see how this paper fits with my findings.
Time for some follow-up research, perhaps?
From the foreward:
The paper finds that PTAs are clearly drivers of significant reform in developing countries, as was rightly suspected by those who noted the far reaching nature of the provisions in these agreements; second, and importantly, the implementation challenge for developing countries is real and complex. In effect, implementation does not stop with the transposition of international trade obligations into the domestic legal system. Rather, it continues with the need to modify laws and enforcement practices. There is also the need to revisit international agreements with third parties, the interpretation of commitments, reporting requirements, as well as compatibilities with the domestic legal infrastructure and capacity. The paper thus emphasizes that PTAs become “live” agreements that must be actively managed over time. It demonstrates the variation in implementation of often similar obligations among PTA signatories, some adopting more innovative approaches, while others fail to make adequate use of flexibilities in existing obligations. …
One lesson that emerges from the paper is that countries engaged in negotiations over PTAs should already bear in mind the possible implementation challenges at the negotiation stage taking into considerations some of the examples it points out to. After signing the PTAs, the implementation of the process requires a detailed examination of the nature of obligations contracted and adequate use of any flexibility available and where necessary further elaboration of concepts and legal terms.
I see that Howard Knopf is wondering if the passage of Bill C-11, Canada’s latest kick at the copyright-reform can, will be affected by the Obama administration’s decision to delay any decision on the Keystone XL Pipeline until 2013. Michael Geist, meanwhile, also indirectly links C-11 and the pipeline delay.
As I documented in my dissertation, C-11’s digital locks provisions were inserted at the request of the Prime Minister’s Office in response to U.S. political pressure. As I also note in the dissertation, Canadian officials, during the negotiations on the World Intellectual Property Organization’s Internet treaties, raised concerns about the U.S. digital-lock position.
Essentially, Geist and Knopf are wondering if the two issues are linked. Which, hey, is pretty much what my dissertation is all about. My answer: I have no clue if there was some quid-pro-quo deal between Harper and Obama linking copyright reform to something that would actually be useful for Canada.* Geist and Knopf may know something that I don’t. Living in Australia has its advantages (the weather in Brisbane last week was fantastic), but I am a bit removed from Ottawa these days.
If there were some kind of linkage, however, I would have hoped that either Harper understood that North American politics are vulnerable, and usually subservient, to domestic politics. Unless you get it in writing, making the United States happy doesn’t really buy a lot of influence in Washington, a town run on interests, not the warm and fuzzies.
Given the politics around global warming and U.S. concerns about oil dependency, Harper and the Canadian oil sector may be annoyed by the U.S. decision, but I hope to high heaven they weren’t surprised. That would mean they don’t have the faintest clue about Canada-U.S. politics.
And if there were no explicit quid pro quo, I’d be reluctant to invent one now. Historically, Canada and the United States have avoided formally linking issues for a very good reason: you don’t want problems in one part of what is a very complex relationship to spill over into other areas. This has an added benefit for Canada: Canadian vulnerability to the U.S. and U.S. invulnerability to Canada are both a bit overstated, but I know who I’d put my money on in an economic war.
There are a lot of very good reasons to get rid of the digital-locks provisions in C-11. Being miffed at the United States’ (politically) completely understandable position on the Keystone XL pipeline isn’t one of them.
* It’s always seemed more likely to me that Harper’s insistence on pleasing the Americans on copyright was yet another example of his capricious, follow-the-gut, one-man-show approach to policy-making (see the cancellation of mandatory long-form Census and his forays into criminal-justice and parole reform). Dan Gardner’s remark that Harper and his minsters often make “decisions [based] on nothing more than impulse and politics” is the best description of the Conservative governing style I’ve yet come across.
Shorter National Post: Banning the breaking of digital locks, as the Copyright Modernization Act proposes, has little to do with copyright and impairs individuals’ private-property rights.
That’s about 100% correct. It’s a bad proposal that has little, if anything, to do with actually promoting creativity and the dissemination of creative works – you know, the actual justification for copyright.
The whole editorial is definitely worth your time, but I have a small quibble with it. According to the National Post:
The only reason for governments to enact such laws is to protect established old-media players in the music and movie business.
While this will be the effect of the law, I don’t think it’s the reason the government continues to support strong legal protection for digital locks.
Everything we know suggests that the main reason the Conservatives are going to the mat over digital locks is to satisfy the U.S. government. As I’ve noted before, there was a departmental consensus in 2005 that U.S.-style digital-lock protection was not the way to go, and the facts of the case today aren’t any different than they were six years ago. In 2007-08, interference from the Prime Minister’s Office led to the first proposal, Bill C-61, favouring U.S.-style digital-lock protection, and that’s been their position ever since. They’ve now consistently supported stronger digital-lock protection through three bills and in defiance of very strong opposition during the 2009 public consultations.
(Sometimes I wonder if the PMO went along with the Americans just so they wouldn’t have to listen to them complain about Canada’s copyright laws anymore. Given that there’ll always be something in Canada’s copyright laws to complain about, I truly hope that this was not the case. If it isn’t, though, I’d love to know what Canada got in return for agreeing to enact a bad law.)
The government’s continued obstinacy on this issue, in the face of widespread criticism, does not inspire hope that the government will back down, even as nominal allies like the National Post‘s editorial board raise some very important concerns.
I’d love to be proven wrong, though, and Stephen Harper’s bizarre actions in other areas, most notably the unconscionable cancellation of the mandatory long-form census, has always left me just a little bit unsure about which way the government might jump on non-law-and-order issues. Those interested in getting involved could do much worse than head over to Laurel L. Russwurm’s site for some C-11 info and a list of names and e-mails of the MPs sitting on the legislative committee that will be examining the bill.
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