The constant push to expand government granted monopoly privileges for those who benefit most from them never ceases. It seems like every other day or so, we hear about US lobbyists for those industries pushing for greater legal support around the globe. The latest is with the Trans-Pacific Partnership (TPP) Agreement that the USTR is currently negotiating. The MPAA wrote a letter, which was co-signed by the major pharmaceutical trade group and the US Chamber of Commerce, pushing for the agreement to include rules that go well beyond current US copyright and patent laws. This, of course, is part of the standard game of leapfrog that the industry plays: get other countries to push stricter laws, then complain that the US is not living up to "international obligations," and get them to bump up their own laws and continue the cycle. In fact, the Obama administration has apparently made it clear that they will not even consider allowing intellectual property rules to be decreased as a part of this agreement and will only look to ratchet up protections. This is, as KEI points out, even though many of the participants in the negotiations are developing nations, who would be greatly helped with lower intellectual property standards, and previous US administration have been more than happy to agree to such agreements:

After being told the Obama Administration would not consider anything that lowered IPR norms in the TPP negotiations, and only measures that raised norms, KEI reminded USTR has the Clinton and Bush Administration both were willing to lower IPR norms, when they were persuaded it was appropriate. This included:

• President Clinton's December 1, 1999 speech to the WTO endorsing new changes in U.S. trade policy to address concerns over access to medicines.
• President Clinton's Executive Order 13155 of May 10, 2000, concerning Access to HIV/AIDS Pharmaceuticals and Medical Technologies.
• President Bush's decision to agree to the November 14, 2001 Doha Declaration on TRIPS and Public Health.
• President Bush's decision to accept the waiver to 31.f of the TRIPS agreement on 30 August 2003.
• President Bush's July 16, 2004 agreement between USTR and Canada to modify NAFTA to allow exports of medicines under compulsory licenses.
• President Bush's May 10, 2007 agreement on the bipartisan New Trade Policy, which eliminated patent extensions, eliminated linkage of drug registration and patents, and relaxed test data protection for the Peru Free Trade Agreement.

For the Obama Administration to claim that it can only harmonize upwards is really disappointing, given the promises that Obama made during his presidential campaign.

Earlier this year, in discussing ACTA, some observers noted that it was quite telling that those involved in the ACTA negotiations were clearly routing around WIPO, the organization that was already in place to deal with those kinds of discussions. The explanation was that the negotiators were upset that the copyright holders no longer had full control over the WIPO agenda, and WIPO had dared to let consumer rights groups into the discussion. So the purpose of ACTA was to get around having to include such groups. It appears that WIPO, itself, is quite concerned about what's going on with ACTA, suggesting that he's worried that these countries no longer believe the WIPO process works.

"A number of countries feel [there is] an important area of public policy they are not able to address in a multilateral forum, and so have gone outside the multilateral framework to satisfy their desire for creating some form of 'international' cooperation," Gurry told Intellectual Property Watch in an interview last week. "That's the challenge, for us. And whether it concerns enforcement, ACTA, or any other area, that, on the whole, is a bad development for a multilateral agency, that member states start to do things outside."

I'd argue that he's being a bit too hard on himself. It's not that the WIPO process doesn't work (though, I do have some problems with the WIPO process as well), but that the copyright holders were upset that they no longer had near unilateral control over the process. It wasn't that they felt WIPO couldn't address the issues, but that it would be much harder to get them addressed in the way industry folks wanted.

As part of the discussion, he also pointed to the recent fight over helping the blind access more content through exceptions in copyright law -- an WIPO process that has been stymied by industry interests who don't like to see any new exceptions applied to copyright. To WIPO, that gridlock on such an obviously reasonable solution is worrying:

The frustration it has caused is a consequence of practical issues not being addressed, he said, citing recent difficult discussions in the Standing Committee on Copyrights and Related Rights on increased access for visually impaired persons. "Can anyone not subscribe to that principle, as a general rule?" he asked, with visually impaired readers only obtaining access to about five percent of all published work in reasonable time.

"Can anyone stand up and say that they should not have more [access], that we should not do something about it?" It is such an obvious question, he said "but we are not getting an agreement" although the last meeting showed genuine involvement of member countries.

If anything, what this demonstrates is not any problems with the WIPO process, but a group of organizations so used to getting their way on copyright issues so totally and completely, that they're not used to facing people questioning the actual impact of the regulations and international agreements they push. When that happened, they decided to take their ball and go home to play with only their friends. That's what ACTA is really about.

With the Obama White House appearing thoroughly convinced of the entertainment industry's views on "piracy," it's a bit surprising to hear that it has come out in favor of a proposed treaty to create copyright exceptions for the visually impaired. This is the WIPO treaty that we recently wrote about, noting that all those organizations pushing for ACTA were very much against this particular treaty. The Commerce Department even responded to the entertainment industry by saying that nothing about the treaty appears to "weaken" international copyright law, as they fear.

Unfortunately, the details suggest a bit of horse trading may be going on. The report suggests that the Commerce Department is saying that it will support this particular treaty, but it will seek to strengthen copyright law pretty much everywhere else (by which it means full support for ACTA). There's been a near universal alignment on these two treaties: those in favor of the WIPO one are against ACTA, and those in favor of ACTA are against this treaty. Reading a bit between the lines, it looks like the Obama White House is saying it will support both treaties. While the WIPO treaty is important, it's a much smaller deal than the ACTA treaty. So, even if the White House is supporting it, it looks like it may just be doing so to remove some complaints on ACTA, which is the big problem.

It seems pretty bizarre that companies and industry organizations would be against helping those with reading disabilities or vision impairment -- but that's exactly what you get in the discussion over creating some loopholes in copyright law to make it easier to reformat content to help those who would have difficulties reading it otherwise. Their concern, of course, is anything that can be seen as weakening copyright law. As we've noted in the past, there's never really been any weakening of copyright law... ever. The only exception I can think of is when the US officially established that government documents could not be covered by copyright. But every other change has only strengthened it -- so perhaps it's no surprise that the usual suspects, including the MPAA and the RIAA are upset about this, claiming that this WIPO treaty on this subject would "begin to dismantle the existing global treaty structure of copyright law, through the adoption of an international instrument at odds with existing, longstanding and well-settled norms."

Now, that's funny, because you could pretty much say that ACTA is doing the same thing... and yet these same groups are strongly in favor of ACTA, which would also be at odds with existing, longstanding and well-settled norms." Funny how their view changes completely when discussing treaties that would beef up copyright law vs. those that would create important and useful loopholes in it.

By now you should know that one of the entertainment industry's favorite tools for forcing ever more draconian copyright laws around the world is to use international treaties. Such treaties are not put together by elected officials, but appointed diplomats, often with tremendous input (to the point of allowing them to write the details) from industries that are protected. Then, once those treaties are in place, copyright maximalists just get to sit back and say "but we must make our copyright laws stronger if we ever expect to live up to our international obligations..." The latest such attempt is the infamous ACTA bill, which the entertainment industry has had a heavy hand in crafting -- but the public is told that the treaty negotiations are matters of national security and cannot be revealed. Uh huh.

Apparently, in a recent "Working Group" on intellectual property issues in Washington DC, one area of "concern" is Canadian copyright law -- because Canada appears to be one country where (thank you Michael Geist!) the public has been galvanized to speak up and explain that copyight law is a deal between the public and content creators, and the public shouldn't be ignored in the process. But, no worries. Apparently, one lobbyist said that perhaps the best way to deal with those rebellious Canadians thinking for themselves is just to use ACTA to force Canada to implement its own DMCA-like law, something that Canada has (thankfully) rejected in the past few years. So here we go again...

JJ points us to an unfortunate story that the Obama administration appears to be siding against an intellectual property treaty agreement that would have helped blind and visually impaired individuals by allowing "the cross-border import and export of digital copies of books and other copyrighted works in formats that are accessible to persons who are blind, visually impaired, dyslexic or have other reading disabilities, using special devices that present text as refreshable braille, computer generated text to speech, or large type." As the article notes, exceptions to copyright law for the production of books for the blind is common, and effectively this would expand that to ebooks. Many had hoped that the administration would support it... but:

Assurances coming into the negotiations this week that things were going in the right direction have turned out to be false, as the United States delegation has basically read from a script written by lobbyists for publishers, extolling the virtues of market based solutions, ignoring mountains of evidence of a "book famine" and the insane legal barriers to share works.

It continues to be a massive disappointment that politicians keep bowing down to corporate pressure when it clearly goes against the very purpose of copyright law.

While the negotiations on the awful ACTA treaty are getting more attention these days, another awful treaty seems to be coming back from the dead. WIPO's Broadcasting Treaty has been out there for years. The idea is to add more new copyrights for content that's "broadcast," even though it's usually already covered by copyright. The end result would actually do significant harm to the public domain, because a broadcaster who broadcasts public domain content could then claim a "broadcast right" over that content -- basically reclaiming it from the public domain. The entire treaty is based on the faulty idea that ownership of content is somehow socially beneficial, when there's little evidence that this is true.

Some powerful entertainment industry folks have been trying to push this treaty through, as a way to force various governments to pass new laws that grant them these new copyrights, that will really be useful in keeping competitors from broadcasting certain content. So far, the treaty has repeatedly stalled out. Last year, we were encouraged when the Senate Judiciary Committee admitted that it was greatly troubled by the proposed treaty, noting that it would significantly harm consumers' rights. Soon after that, the treaty died, though we warned that certain interests would keep on pushing it.

And, indeed, that's exactly what's happening. At a recent WIPO meeting, it appears that the Broadcasting Treaty is back on the table, and doesn't appear to be going away any time soon. There are considerable disagreements over what it should include, so it might not move forward, but it's disheartening that it appears the US representatives at WIPO seem to have reversed their earlier position, and are now saying that webcast content should get this totally unnecessary and damaging "broadcast right" as well as content broadcast on other media. Hopefully the wrangling over terms will cause this treaty to die again -- but considering how much of an effort big media companies have put behind it, you can bet it won't go down without a fight.

One of the most disgusting displays of an industry crafting laws to benefit their industry in backrooms is the secret negotiations over the ACTA treaty. This is the international agreement on copyright that's basically been written by entertainment industry insiders, and will effectively force governments around the world to change copyright laws in favor of the entertainment industry. Yet, the actual negotiations are being held in secret. When confronted about it, various government negotiators have basically said it has to be secret because that's the way things are done. A few months ago, in defending the secrecy, one of the negotiators noted that it was being kept secret because negotiators had agreed to keep it secret. That's not a defense; that's a cop out.

Plenty of organizations around the world are pushing for more transparency and (*gasp!*) the actual inclusion of others who would be impacted by ACTA, but they're not finding it easy. Slashdot points us a press release from The Foundation for a Free Information Infrastructure. FFII had filed a request to the EU Council to release some of the secret documents related to the ACTA negotiation, and the EU Council flat-out refused to do so. It would appear that when the government seeks to put in place an industry's preferred legislation, it doesn't like being called out on it.

However, the more that individuals and organizations around the world speak up and demand that the details behind ACTA be made public, hopefully the more politicians will realize that they can't sell out society's overall best interest in favor of a few industries who are abusing the treaty process for their own interests.

We've been pointing out how there needs to be a lot more sunlight shone on the discussion surrounding the new "ACTA" treaty, which is basically a way for the entertainment industry to sneak through new copyright laws without getting Congressional approval. Basically, the entertainment industry writes this international treaty, and the US Trade Representative gets it approved. Then, suddenly you get stories from lobbyists for the industry about how we need to change our copyright laws to live up to international agreements. Sneaky, right?

Now, according to William Patry, the US Trade Rep is resisting calls to open up the process by which ACTA is written, by claiming that ACTA is really pretty minor and won't require any substantive changes in US law. Of course, that's turning out not to be true at all. At that link, Patry looks at the RIAA's suggestions for ACTA, many of which would substantially change copyright law, in rather astounding ways.

It's a laundry list of an ideal world for the RIAA. Basically, everyone else would be responsible for policing any form of unauthorized usage for the entertainment industry. Things that are now civil offenses would become criminal, and the RIAA would have much lower burdens of proof. ACTA is turning into an agreement designed to prop up the RIAA by forcing everyone else to try to force the market to pretend that technology doesn't do what it was designed to do, and to try to hold back the more efficient market innovations that impact the established industry's business model. And they want to do it all in secret and without letting Congress even have a say in the process. And, to make it even better, it's apparently now on the fast track for approval.

Last week, I wrote a post highlighting the faulty premises behind a secretly negotiated treaty between the US and many other countries, the so-called Anti-Counterfeiting Trade Agreement (ACTA). Since then a bunch of news articles have been written about ACTA, with most of the focus on how it will have border guards going through your iPod and computers to see if you have any infringing content. A bunch of folks have been submitting stories on this all week, despite the fact that we wrote about it last week. However, what's most interesting to me is how quickly this turned from a little story -- first posted to Wikileaks and a few blogs, into something that's been in major newspapers (oddly, mostly focused in Canada).

Even more interesting, however, is how this has so quickly turned into activism, with some newspapers already already calling for people to stand up against ACTA to protect our privacy rights. Think about that for a second. This was a treaty on the "boring" topic of copyright, that was basically pitched by the entertainment industry to politicians who wrote it up in secret. It leaked out to a single website, and within a week there were major newspaper editorials calling for people to stand up against it, and thousands, if not millions, of people informed about the potential harm this treaty could cause. So much for slipping it under the radar.

This is really the culmination of a few different factors, including the entertainment industry's misguided and rapidly backfiring battle against consumers, that has catapulted copyright from a boring "wonkish" issue into one that people recognize effects so many aspects of their daily lives. Combined with the wonderful communications ability of the internet, it makes it harder for the entertainment industry to simply pull one over on people like this. Of course, as we've noted, the industry keeps on trying, and they love sneaking through legislation and treaties before anyone recognizes it -- but the rapid response to ACTA (which is far from over, of course) suggests that some of the industry's advantages are slipping away. Hopefully, this issue will continue to receive the attention it deserves so that there's a real debate on whether or not such a treaty is needed (it's not).