Is WIPO Really The Right Organization To Fix Copyright?

from the probably-not dept

We recently pointed to a Larry Lessig speech, in which he argued that WIPO should lead efforts for copyright reform, noting that separate country governments were unlikely to lead copyright law in the right direction, since they tended to be beholden to the interests of legacy industries who benefited from strengthened copyright law. Lessig made a strong argument for why copyright law was broken, and certainly not up to handling today's modern communication systems. But is WIPO really the right organization for this?

Ahmed Abdel Latif, an intellectual property expert and former Egyptian diplomat, has penned a response arguing that WIPO is not the right organization either, and noting its rather long history of being beholden to the same interests:
Past changes to the international copyright system, as embodied in the Berne Convention for the Protection of Literary and Artistic Works (1886), have mostly resulted in the strengthening of copyright rules to the benefit of rights holders. All attempts to reform it to the benefit of users of copyrighted materials, such as consumers and developing countries, have either failed or been of limited effectiveness such as in the case of the Berne Appendix (1971) which contains special provisions for developing countries.

Why this dismal record? The answer is quite simple: for more than a hundred years, WIPO and its predecessors overseeing the Berne Convention were strongholds of intellectual property rights holders, such as authors and publishers, and their trade organisations. Even after becoming a United Nations agency in 1974, WIPO continued to promote a paradigm of intellectual property (IP) that tended to espouse the views of rights holders-based organisations in the developed world; a perspective even generally questioned by liberal economists all over and touted as perverse for innovation by the business academic world.
He then points out that while WIPO has, in the last couple of years, shown more of an openness to understanding the viewpoint of how greater copyright can harm society, it still has a really long way to go, and hasn't shown to really have recognized this point of view yet. As an example, he points out that WIPO itself still supports a backwards and unproductive "war against piracy":
WIPO's website advertises, on its home page, the Sixth Congress against Piracy and Counterfeiting (2nd -3rd February 2011), which WIPO is organizing along with Interpol, the World Customs Organization (WCO), the Business Action to Stop Counterfeiting and Piracy (BASCAP) and the International Trademarks Association (INTA). The first session has the chilling title of 'Knowing the Enemy'. The question that is begged to be asked is whether WIPOís 'leading' role in the war against piracy can be made fully compatible with its 'lead' role on in global copyright reform, particularly through ad hoc arrangements like the suggested 'blue sky' commission.
He argues that reform should come directly from member states. I've actually argued for something similar before. While I can understand why copyright holders talk about the importance of harmonized "global copyright," given the lack of evidence as to the value of copyright, it seems that this is an area where comparative examples could be of great help. If different countries were free to implement whatever type of copyright law they felt was best (or, perhaps, no copyright law at all), we could finally have real data on how well copyright actually works at different levels in practice, rather than going with a purely faith-based approach that copyright (and greater and greater copyright) actually benefits the public through creating incentives for greater output.


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  1.  
    identicon
    Anonymous Coward, Nov 17th, 2010 @ 3:33am

    If it is the right one I really don't know what I do know it is that it is one of the few if not the only venue to be used today.

    Short of creating a new one and forcing the G7 to adhere to it, which can be accomplished by others through withholding raw materials to said countries, which will force them reconsider their positions.

    Other countries can arrest the capacity of the G7 to conduct manufacturing, research and development in this way.

     

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  2.  
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    Crosbie Fitch (profile), Nov 17th, 2010 @ 3:35am

    A War on Piracy is a War on Liberty

    How do you tell a child that there is no way of saving the sandcastle theyíve laboured long and hard over from the approaching tide?

    Question the assumptions, even the language, and you might get closer to a truer understanding, and realise that a war against piracy is a war against liberty, a war against human nature and natural law.

    This is a war that Canute would wage against the tide. The inexorable tide in turn, takes the liberty of eroding the fiat sandcastles of mercantile privilege.

    Thereís a reason rights holders are so called. These arenít rights they are born with but rights annulled in all the inhabitants, to be held by a few. In 1709 Queen Anne derogated the right to copy from the individualís right to liberty, and it is this that publishing corporations purport to hold. But of course, they do not. It is inalienable, and all the privileged hold is the power to persecute the disobedient.

    There is no power on Earth that can subjugate the people to refrain from communicating, sharing, developing, copying, learning, or progressing, in order that monopolies may persist unchallenged. Giving them pretexts may smooth the passage of their legislation, but they donít actually make monopolies do the opposite of what they do. If you want progress or learning you do not put a brake on it Ė you only do that if you wish to quell or tax an activity.

    The only reform that fixes copyright and eliminates piracy is its repeal.

     

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  3.  
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    cc (profile), Nov 17th, 2010 @ 3:46am

    Asking WIPO to reform/limit copyright would be like asking them to cut their own legs off. They are in the business of "promotion of IP protection" so any IP reform task would be a massive conflict of interest for them on two grounds:
    1) Disagrees with their mission statement,
    2) May ultimately result in their employees losing their jobs.

    While there is no impartial and incorruptible way to reform IP, if this is left up to individual countries there is a better chance of democracy actually working rather than leaving it in the hands of an organisation like WIPO or a "panel of experts". Whatever the case, we need to bring more real economists and fewer industry lobbyists into the loop.

     

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  4.  
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    out_of_the_blue, Nov 17th, 2010 @ 4:25am

    So you admit you've no real data!

    "If different countries were free to implement whatever type of copyright law they felt was best (or, perhaps, no copyright law at all)" -- Er, first, how do you propose to implement this in isolation? 2nd, hasn't China, for instance, been doing pretty much what they wish? 3rd, doesn't the China instance point up that previous copyright holders *object* to "free" or "no" copyright countries, and take action against them? Far as I can see, any country *is* free to have no copyright on their own products, but de facto *not* free to take from others.

    Then: "we could finally have real data on how well copyright actually works at different levels in practice" -- That's admitting you don't have any actual instances of your ideas being practiced. Instead of the actuality that you disparage as "faith-based", you've a proposal to *test* your theories. You can't just stop the game and fiddle with variables at will: this is *reality*.

    Again, people, I ain't *for* the current copyright regime, because it's been changed by moneyed interests, and will be again *soon* with ACTA and COICA. But that leads me to advocate rolling back to what was *working* (oh, in the 70's or so), flawed though it was -- and to attacking the problem of greedy grifters stealing from artists and musicians separately.

     

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  5.  
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    Mike Masnick (profile), Nov 17th, 2010 @ 4:50am

    Re: So you admit you've no real data!

    Er, first, how do you propose to implement this in isolation?


    Um, by letting each country implement their own copyright law. That's perfectly easy enough to accomplish.

    2nd, hasn't China, for instance, been doing pretty much what they wish?

    Yes, and the data there supports my position, as the music industry in China is thriving.

    3rd, doesn't the China instance point up that previous copyright holders *object* to "free" or "no" copyright countries, and take action against them?

    I'm not sure what point you are making. Yes, copyright holders in other countries object. So?

    Far as I can see, any country *is* free to have no copyright on their own products, but de facto *not* free to take from others.

    Kind of funny that you state that. I'm in the middle of reading an excellent (not yet published) book on the history of copyright law, and it shows that exactly the opposite of what you claim was much more standard. Early copyright laws in both the UK and the US *specifically* stated that it did not apply to foreign works, and, in fact, governments encouraged the copying of foreign works.

    And, you know what the data there shows that this was actually good for the foreign authors...

    Then: "we could finally have real data on how well copyright actually works at different levels in practice" -- That's admitting you don't have any actual instances of your ideas being practiced.

    That's quite a tortured misreading of what I've said. We do have *some* data, but more would be useful. The data we do have -- in areas where we can compare *like* situations with different levels of copyright protection, have shown less protection leads to greater output. So all the data so far seems to support the position, but I'm always open to more data.

    Again, people, I ain't *for* the current copyright regime, because it's been changed by moneyed interests, and will be again *soon* with ACTA and COICA. But that leads me to advocate rolling back to what was *working* (oh, in the 70's or so), flawed though it was -- and to attacking the problem of greedy grifters stealing from artists and musicians separately.

    Um. Learn the history of copyright law. Might help you not look foolish.

     

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  6.  
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    out_of_the_blue, Nov 17th, 2010 @ 5:29am

    Re: Re: So you admit you've no real data!

    Line by line contradiction.

    "Um, by letting each country implement their own copyright law. That's perfectly easy enough to accomplish." -- Are they not free to now? That's my point.

    The most important is you give a twist to "but de facto *not* free to take from others" -- DE FACTO means current, contemporary, today, NOW, not some irrelevant historical study which doesn't include even the prospects of ACTA / COICA. -- China was / is taking (just ask Microsoft!) US products freely, and action was / is being taken to bring them into alignment with Western copyright notions. China implemented that "free if foreign sources" practices pretty well and are NOW changing to our ways because of pressure brought. You can argue without de facto context, but it means nothing.

     

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  7.  
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    James Love (profile), Nov 17th, 2010 @ 5:45am

    Finding the "right" fora

    The publishers push every fora to advance their agenda. They make asks of everyone.

     

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  8.  
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    The eejit (profile), Nov 17th, 2010 @ 8:09am

    Re: Re: Re: So you admit you've no real data!

    What about Russia post-Communism?

    OH wait, that's not pertinent to your point. Russia couldn't afford to buy at MS prices back in '93. So it made knockoffs, and copied directly from Windows. And its tech got grasdually back on its feet.

     

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  9.  
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    Mike Masnick (profile), Nov 17th, 2010 @ 10:29am

    Re: Re: Re: So you admit you've no real data!

    Are they not free to now? That's my point.

    No, they're not free to now, due to agreements via WIPO and the UN. That's my point.

     

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  10.  
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    crade (profile), Nov 17th, 2010 @ 12:01pm

    Obviously ACTA is the right forum for copyright reform, not WIPO ;)

     

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  11.  
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    Nick Coghlan (profile), Nov 18th, 2010 @ 12:01am

    Brazil. Russia. India. China.

    The US helped itself grow by ignoring European demands when convenient. Those 4 countries will do the same to the US. Hopefully the rest of the world will learn a few useful lessons along the way.

    (Brazil in particular is already a leading light in "getting it" when it comes to the domestic benefits of embracing locally and internationally supported open source solutions over foreign proprietary solutions)

     

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  12.  
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    Freedom (profile), Nov 27th, 2010 @ 3:38am

    WIPO's work on Copyright Reform

    My first comment regarding this topic is based on a news article I just read on registration of creative (copyright) works: I quote "Ms. Cruickshank urged copyright stakeholders, such as musicians, to legally resister their work with CAIPO. Registration, she warned, may be their only defence in court."
    (http://www.spiceislander.com/?p=3097)

    WIPO seems to have already moved forward and taken a position on Copyright Reform, one that includes encouraging stakeholders to register their creative works as a precautionary measure. To learn more one will have to carefully listen and read all of WIPO's interventions, especially the repeated need for an infrastructure, for example "He (Francis Gurry Director General of WIPO) said WIPO plans to build a global database of music and films to facilitate convenient, legal use of the cultural products."

    So that is what is called 'Copyright Reform'. I wonder what civil law countries would say when one says that registering copyright may be their only defence in court? And do they mean with a collective management agency or with a government agency, for example, several national copyright offices have a so-called voluntary registration system. I looked up what some of these were and just picked one out of the blue, i.e. Finland: Here is what was said in their response to a WIPO Questionnaire on said subject: "Question: 1. What is the name and legal status of the copyright registering/recording body in your country?
    Answer: There is no requirement for registration of copyright in Finland."
    (http://www.wipo.int/copyright/en/registration/replies_survey_copyright_registration.html )

    Also of interest is WIPO's response to a call for comments on the proposal for a global database (http://globalrepertoiredatabase.com/rfp.html)

    Here are the responses, mostly from industry:
    (http://globalrepertoiredatabase.com/rfir)

    And WIPO's response:
    (http://globalrepertoiredatabase.com/rfir/EU%20GRD%20-%20WIPO%20Contribution.pdf)

    At any rate, if there is to be Reform, it should probably start with the current issues on the table at the WIPO SCCR meetings. Civil society discussion on some of these issues will be interesting to read and follow.

     

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