What border-security agreements can and can’t deliver

Posted on September 10, 2011 by bhaggart

According to the Globe and Mail, Canada and the United States have reached an agreement on that border-security deal they announced back in February. Interesting that the agreement will likely be announced almost 10 years to the day that the United States floated, and Jean Chrétien’s Liberals rejected, a “perimeter security” proposal in response to the 9/11 terrorist attacks. Now it looks like we have one. Wonder if anything in it’ll need Congressional approval?

The story, which relies on anonymous sources, doesn’t contain any other details. At all. So let’s use this opportunity to set out some criteria to judge the final agreement, shall we?

I’ll be watching to see if Canadian and American officials overpromise on what this accord can do. While it may be good (or bad) on its merits, the one thing it won’t do is bring any long-term certainty to the Canada-U.S. economic relationship.

A pessimist’s reading of recent Canada-U.S. history would note that the relationship is marked with agreements that were supposed to deliver long-term security of market access. The 1988 Free Trade Agreement. The 1994 North American Free Trade Agreement. The 2001 Smart Border Accord. Each of these has proven not to be up to the task of securing Canadian access to the U.S. market. The first FTA was challenged by the United States’ desire to do a trade deal with Mexico, NAFTA-led integration was no match for the U.S. security panic post-9/11, and the Smart Border Accord was not able to mitigate continued U.S. border-security fears.

See the thread running through each of these? No, it’s not that the United States is run by fiends who want to steal Canadians’ precious bodily fluids. It’s that the United States and Canada are sovereign countries with different political systems. So long as the two countries have separate political systems, the United States will always place its own interest first. That’s kind of obvious, I know, but it bears repeating.

If that interest is perceived to be threatened (like, say, if a terrorist comes over the Canada-U.S. border), no agreement in the world will protect Canada. We’ll be back to square one, negotiating a deal that will finally (finally!) guarantee Canadian access to the U.S. market.

The basic point is that anyone who claims that this latest agreement will provide a long-term framework for secure Canada-U.S. commercial relations doesn’t know their history.

This is not to say that Canada should never conclude a security agreement with the United States. The Smart Border Accord, for example, was a pretty nifty piece of statecraft on Canada’s part, as it basically implemented a bunch of policies Canada had wanted for a long time, but which the United States had never bothered to take seriously.

Rather, it’s an argument, which I first made back in February, that the agreement should be evaluated on its own merits. This  requires considering the specifics and deciding whether they make sense and whether, overall, the good outweighs the bad.

So, you ask questions like: do specific provisions increase security? How do they affect Canadians’ Charter rights, and things like right to privacy? How will they actually improve the smooth-functioning of the border? And so on.

An agreement where specific good rules outweighs the bad is a good agreement. I think that’s fair. But I’d be leery about balancing the bad in the agreement against a claim that it secures Canadian access to the U.S. market. As I noted back in February:

All the security-economic tradeoffs in the world can’t get around the fact that Congress and Parliament continue to make laws for their respective countries. And when push comes to shove, Congress will side with their constituents.

Posted in Canada-US relations, Perimeter security | Comments Off on What border-security agreements can and can’t deliver

Hyperbole-free copyright reporting: It can be done!

Posted on September 8, 2011 by bhaggart

We have a winner! Tannara Yelland sticks to the facts and contributes some original reporting that captures the complexity of the Access Copyright situation without vilifying anyone (h/t Geist). Good stuff.

Kudos to Yelland and the Canadian University Press for boldly going where their professional colleagues daren’t!

Posted in Access Copyright | Comments Off on Hyperbole-free copyright reporting: It can be done!

The dismal state of the copyright debate

Posted on September 7, 2011 by bhaggart

I really have to get back to writing proposals and journal articles, so I’ll keep this brief.

Just last week I was hoping that the Globe and Mail (or some paper, any paper) would do some actual reporting on the ongoing Access Copyright debacle. It’s an important issue that  would benefit from some journalist doing what journalists do best: laying out the facts of the situation.

Instead, we get Kate Taylor’s opinion piece, which is squarely in the “Opinions Differ on the Shape of the Earth”camp of journalism. Rather than trying to lay out the very real and very concrete issues at stake, Taylor creates a false dichotomy (“writers v. professors”) and doesn’t even try to grapple with what’s actually at play. (That she leads off her “writers v. professors” story with an anecdote about a copyright-critical author (which would put him on the side of the professors) kind of undercuts her entire premise.)

One of the big problems with the copyright debate, and Taylor’s opinion piece displays it in spades, is the  tendency to discuss copyright in terms of philosophies and morality, and us versus them. If you keep the debate abstract enough, it’s easy to come up with lines like “writers, artists and publishers against university professors and librarians.”

But at the end of the day, we’re not debating abstract philosophies (though they may inform our positions). Rather, the copyright debate is about specific rules and regulations, and who benefits from them. Most important, you cannot have an informed, useful discussion about copyright unless you actually discuss what the rules are, or what you want them to say.

When you don’t do that, when you push the actual policy debate off to the side with a “Whatever the wrongs and rights of the fight,” as Taylor does here, you’re left with a fact-free discussion that’s all emotion and appeals to the gut.

What does the Creators Copyright Coalition’s Bill Freeman’s comment, “You are talking about a pretty powerful lobby; you have a whole bunch of university professors ganging up on writers,” actually tell us about the ins and outs of the Access Copyright debate? What are his specific concerns? Why are “a whole bunch of university professors ganging up on writers”? Is that hyperbole, or are professors really out to kick sand in Margaret Atwood’s face?

When you actually look at the facts of the debate, it becomes obvious there are no white knights. You have budget-constrained universities facing a potentially massive increase in royalty payments. You have libraries, which already pay a small fortune for licences to online databases, asking themselves if they can afford the Access Copyright licence, especially since Access Copyright refuses to let people know what’s actually in their repertoire. You have Access Copyright, fighting for relevancy in a digital world. You have some authors concerned about their future in an era where copying is so easy. You have other authors who are annoyed at the paltry sums they actually get from Access Copyright. And you have publishers, the main beneficiaries from copyright, wanting to protect their piece of the pie.

Oh, and there’s the whole society angle that Taylor neglects completely: How should society balance the need for (cost-effective) research with the (potential) need for an incentive for creation and distribution?

Look: I know that copyright is a complex issue, and that reporters and columnists are generalists who can’t be expected to get every nuance of an issue that even copyright lawyers have trouble with. Been there, done that.

But there’s already enough mud slinging and opining in the blogosphere; we don’t need any more from the pages of Canada’s National Newspaper. Taylor had a fantastic opportunity to help clarify what’s at stake in the Canadian copyright debate by looking at how copyright actually works. Instead, she produced yet another piece of big-think journalism that trades in generalities and platitudes and ends up muddying a debate that is desperately in need of clarification.

Posted in Access Copyright | Comments Off on The dismal state of the copyright debate

The spread of copyright norms: Evidence from Sweden

Posted on September 6, 2011 by bhaggart

Yet more evidence, via Wikileaks cables, of another country’s decision to acquiesce to U.S. copyright-reform demands. This time it’s Sweden, and the cables reveal a virtual checklist of demands, including the prosecution of the owners of the Pirate Bay. An enterprising political scientist could have a lot of fun putting together some comparative case studies on the outcomes of U.S. copyright lobbying in different countries. Or, say, adding to an existing study.

Speaking of which, back to grant-writing…

Posted in Uncategorized | Comments Off on The spread of copyright norms: Evidence from Sweden

Moral-rights justifications of copyright: It’s always about the money

Posted on September 6, 2011 by bhaggart

One of the most fascinating things I found in my study of copyright policy in Mexico was the odd way in which Mexico’s traditional approach to copyright as an author’s human right (in the Continental European “moral rights” tradition) supported its current view of copyright as a copyright owner’s economic right. Basically, it seemed that arguments to maximize copyright as an author’s human right (dealing with things like attribution and right to publish; and who would argue against maximizing human rights?) had morphed into arguments to maximize owners’ economic rights. This, even though the two spheres (economic and moral rights) don’t really overlap, and even though maximizing economic rights in copyright doesn’t make a lot of sense for copyright importers or, say, countries where almost half of the population lives below the poverty line and can’t, as a rule, afford stronger copyrights.

Well, it’s interesting to note that Mexico isn’t the only place where this type of cognitive dissonance happens. As Joe Karagains notes (h/t Glyn Moody), the European Union, of all places, has a net deficit in audiovisual (motion picture) trade. What’s more, copyright infringement may hurt the European motion-picture industry (although Karaganis shows that this probably isn’t the case), but it does not represent a drain on the European economy as a whole. Money that would have moved outside the country in the form of royalty payments (mostly to the U.S.) actually stays in the EU, where it can be spent on domestic goods and services, which can then be taxed by EU governments.

Karaganis argues (correctly, I think) that the EU isn’t following their own economic interest on IP protection, and he has a few explanations why this is so (and what they should do instead). One of the reasons fits with what I heard in Mexico: that it’s all about the author’s dignity. He quotes French President Nicholas Sarkozy:

I know and understand that our french conception of author’s rights isn’t the same as in the United States or other countries.  I simply want to say that we hold to the universal principles proclaimed in the American constitution as much as in the Declaration of the Rights of Man in 1789: that no one should have the product of their ideas, work, imagination–their intellectual property–expropriated with impunity.

Each of you understands what I say here because each of you is also a creator, and it is in virtue of these creator’s rights that you have founded businesses that today have become empires.  The algorithms that give you your strength; this constant innovation that is your force; this technology that changes the world is your property, and nobody contests it.  Each of you, each of us, can thus understand that the writer, the director, or the performer can have the same rights.

Karaganis comments:

With this fulsome praise of tech and media CEOs at the e-G8, Sarkozy expressed the basic European cognitive dissonance on IP: the embrace of universal rights as a way of pretending equality with the real powers in the room. More cynically, it is the embrace of the foreign agenda as a way of rewarding the local junior partners. Indigenous elites used to play this game with the French back when they had the empire.

My deep-thought takeaway: Treating economic issues like copyright in moralistic terms is like leaving money on the table. It can’t be good for business. Imagine how far the EU could go with some hard-headed economic thinking.

Final word to Karaganis (seriously, read the whole thing; it’s excellent):

De-moralizing the IP debate is also an important step. At the Americans’ insistence, it’s a trade policy debate now, and nothing should be freely conceded by the lesser partner in those trades. What, in other words, do the French get in return for enforcing Hollywood’s copyrights? The answer should not be limited to: the dignity of the French auteur. Don’t bring a knife to a gun fight.

Posted in copyright, Moral rights | 1 Comment