What is it with intellectual property holders? The government already grants them an unfair, innovation-limiting monopoly that extends way beyond reason... and then they still expect others to go to ridiculous levels to prop up their own business models. The latest is that trademark holders are pushing for new third party liability rules in treaties via WIPO. Specifically, the apparent proposal would mean that third party service providers wouldn't just need to take down things on request, but would also have to proactively monitor and hand identifying info over to trademark holders without a court order. The sense of entitlement here is astounding.

For many years, WIPO, the World Intellectual Property Organization, was (as you would imagine) a strong proponent of expanding copyright in a variety of directions. It was a copyright maximalist's dream organization. Over the last few years, however, there's been a noticeable thawing in this attitude towards copyright. The various developing nations, who have been quite worried about the damaging impact on over-expansive copyright, have certainly made their voices heard at WIPO and, as a result, various groups representing consumer rights and a more sane approach to copyright have been able to participate in WIPO efforts as well. Larry Lessig has even suggested that WIPO can be the key leader in copyright reform. Of course, this is also part of the reason why ACTA was done outside of WIPO. The ACTA nations didn't want to deal with pressure from non-copyright maximalists in crafting the language.

Of course, WIPO certainly hasn't gone too far away from its traditional position, but it has been showing more and more signs of moving away from copyright maximalism. TechnoLlama points us to a recent keynote speech given by Dr. Francis Gurry, the Director General of WIPO, on the issue of "future directions in copyright law."

It's an interesting read. And, to be sure, there is plenty in there that I disagree with strongly. For example, he seems to recognize that all sorts of new business models are springing up around content creation (good!), but then says that we simply can't let the free market work to sort out what business models work, because... Well, actually there is no because. He just seems to take it for granted. Free market = bad.

I am firmly of the view that a passive and reactive approach to copyright and the digital revolution entails the major risk that policy outcomes will be determined by a Darwinian process of the survival of the fittest business model. The fittest business model may turn out to be the one that achieves or respects the right social balances in cultural policy. It may also, however, turn out not to respect those balances. The balances should not, in other words, be left to the chances of technological possibility and business evolution. They should, rather, be established through a conscious policy response.

However, there are many things that he has said that show a clear realization that copyright needs to change, that it can't be anti-consumer, and that it shouldn't be about protecting legacy business models. He does end up in the "balance" camp on copyright reform -- which I think is a mistaken view based on the belief that copyright and content creation is a zero sum game. However, focusing on "balance" is certainly a much better position than focusing only on making copyright law stricter.

Digital technology and the Internet have created the most powerful instrument for the democratization of knowledge since the invention of moveable type for printing. They have introduced perfect fidelity and near zero-marginal costs in the reproduction of cultural works and an unprecedented capacity to distribute those works around the globe at instantaneous speeds and, again, near zero-marginal costs.

The enticing promise of universal access to cultural works has come with a process of creative destruction that has shaken the foundations of the business models of our pre-digital creative industries. Underlying this process of change is a fundamental question for society. It is the central question of copyright policy. How can society make cultural works available to the widest possible public at affordable prices while, at the same time, assuring a dignified economic existence to creators and performers and the business associates that help them to navigate the economic system? It is a question that implies a series of balances: between availability, on the one hand, and control of the distribution of works as a means of extracting value, on the other hand; between consumers and producers; between the interests of society and those of the individual creator; and between the short-term gratification of immediate consumption and the long-term process of providing economic incentives that reward creativity and foster a dynamic culture.

Perhaps even more surprising is that the speech discusses The Pirate Party -- and not just to mock or condemn it -- as is typical in the pro-copyright world, but to realize that there are reasons The Pirate Party exists, and it's important to understand its message and why so many people are drawn to it. Dr. Gurry most certainly does not come out as agreeing with the Pirate Party, but he does appear to understand why it exists, and realize that the extremes in the other direction are part of what created the demand:

Beyond law and infrastructure, we have culture, and the Internet has, as we know, developed its own culture, one that has seen a political party, the Pirate Party, emerge to contest elections on the basis of the abolition or radical reform of intellectual property, in general, and copyright, in particular. The platform of the Pirate Party proclaims that "[t]he monopoly for the copyright holder to exploit an aesthetic work commercially should be limited to five years after publication. A five years copyright term for commercial use is more than enough. Non-commercial use should be free from day one."

The Pirate Party may be an extreme expression, but the sentiment of distaste or disrespect for intellectual property on the Internet that it voices is widespread. Look at the incidence of illegal down-loading of music. We may argue about the right methodology to use to measure that phenomenon, but we are all certain that the practice has reached alarming dimensions.

In order to effect a change in attitude, I believe that we need to re-formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates. Indeed, some, as we have seen, even make a pride of it. They would respond, I believe, to a challenge to sharing responsibility for cultural policy. We need to speak less in terms of piracy and more in terms of the threat to the financial viability of culture in the 21st Century, because it is this which is at risk if we do not have an effective, properly balanced copyright policy.

Again, I don't necessarily think he's right about all of this, as there is evidence that there are tons of financially viable content creation going on that completely ignores copyright. However, it still is a big step forward for WIPO to actually be weighing these issues, and while not agreeing with The Pirate Party by any stretch of the imagination, obviously being influenced by its positions at the opposite end of the spectrum.

And despite his apparent dislike for letting markets develop business models around content, he does seem to clearly recognize that this is, at its core, a business model issue -- and that copyright can all too often be used to block competition and hold back change -- something you'd never have seen a WIPO leader admit in the past. Here are two snippets that make this clear:

The purpose of copyright is not to influence technological possibilities for creative expression or the business models built on those technological possibilities. Nor is its purpose to preserve business models established under obsolete or moribund technologies.

[...]

The final element of a comprehensive and coherent design is better business models. This is undoubtedly happening now. But the story is not over and, for the future, we should constantly remind ourselves that the history of the confrontation of our classical copyright world with the digital environment has been more a sorry tale of Luddite resistance than an example of intelligent engagement.

And, finally, it's nice to see him recognize a key point that we've made over and over again, which is often denied by maximalists: you can't undo what technology allows:

History shows that it is an impossible task to reverse technological advantage and the change that it produces. Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it. There is, in any case, no other choice -- either the copyright system adapts to the natural advantage that has evolved or it will perish.

It's an interesting read, and while there are still plenty of issues, it's still amazing to see the shift in WIPO from one end of the spectrum into a more nuanced middle ground.

If you go through a timeline of the history of copyright law over the last two centuries, one thing is clear: it has only moved in one direction, and one direction only. That is that it has repeatedly been changed to take away more and more consumer rights and to ratchet up copyright law to greater and greater levels. The only exception I can think of was the US government's decision to make all federal government documents public domain, rather than granting them copyright. While important, this was still a minor move. Update: Thanks to one of the copyright scholars in the audience for pointing out a few other cases of pushback against copyright, including the 2002 TEACH Act which included some small exceptions for distance learning, as well as a variety of countries rolling back perpetual copyright.

For the past few years, there has been one other push, happening via WIPO, that would push back just slightly on copyright law when it came to books for the blind (in Braille). Basically, this treaty makes it easier to get books in Braille for the blind. Who could possibly be against such a thing? Well, of course the RIAA and the MPAA, who fought against it claiming that a treaty like this 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."

This was especially hilarious, considering that it came from two organizations that remain massively strong supporters of ACTA -- which has done a tremendous amount of damage to the "existing global treaty structure of copyright law," by going around it entirely, and created an agreement that was very much "at odds with existing, longstanding and well-settled norms."

However, it appears that the WIPO treaty is actually getting some traction (even if just a little bit), and MEP Christian Engstrom is noting that the legal affairs committee JURI in the European Parliament has unanimously adopted an amendment that supports the treaty. It still appears to have a long way to go, but as Rick Falkvinge notes, this is "the first time in several decades" that "politicians voted unanimously that the public’s access to knowledge and culture is more important than the copyright monopoly." It is a very small thing, but considering how rarely our elected officials are even willing to consider such a move, it's noteworthy.

The US's ambassador to the UN in Geneva, Betty E. King, recently gave a press conference in Geneva to talk about a variety of issues. What caught our attention, not surprisingly, was the discussion on intellectual property issues, which seemed to raise a lot more questions than it answered. Towards the end of her talk, she basically complained about WIPO, and how various developing countries are hijacking WIPO to focus on "development," at the expense of things like patents and copyright. She says that she, and the US government, are pro development, but not if it comes at the expense of patents and copyrights.

Of course, that makes no sense. The whole point of patents and copyright is supposed to be to create incentives for development. So development should always be at the core of the discussion. It's not, as King implies, that the two should be in conflict. Instead, if the two are in conflict, it suggests that there's something wrong with the way our intellectual property laws are working. What's really scary is she seems to think that more and longer patents automatically means better results:

Now long before I got here the United States has been stationing its experts around the world to help more countries be better able to apply for patents. We have our patent officers in our Embassy in Egypt as well as in other places around the world, and that has worked because we have seen an increase in the number of patent applications from a broader range of countries. That is good. However, the group in Geneva seems hell-bent on shortening these patents and creating more exceptions.

My point is if you create too many exceptions to a rule, you may as well not have the rule.

The problem is that she doesn't seem to realize that those exceptions actually have been shown, time and time again, to improve overall development. Which is what she should be in favor of supporting. But, it quickly becomes clear that King is simply unfamiliar with the history of copyright or pretty much any of the details of how intellectual property works, when she makes the laughable claim that exceptions to copyright will mean we'll have no more books:

While we certainly want access to books for a lot of people around the world, I think denying the authors of these books their rights, or abrogating the rights of these authors, would mean that eventually we will never have a book.

Someone should send King a study on the history of copyright in the US, including the fact that, during its developmental stage, the US refused to respect the copyrights of any foreign book... and how, despite that, Charles Dickens made a ton of money in the US by using the cheap copies of his books that were abundant to fund lavish tours of the US which were quite profitable for him. There are ways other than copyright to make money. And there are many reasons, other than copyright, to write books. It's kind of scary when an official so high up in US government policy circles doesn't seem to know that.

Later, in the questions, a reporter goes back to King's statements about WIPO, and references how ACTA was done outside of WIPO. We've actually discussed this before, pointing out that the reason the US and a few other countries went outside of WIPO was because those countries were upset that WIPO was actually listening to countries like India and Brazil, and paying attention to the actual evidence that showed you could actually create more culture and more opportunities by pushing back on copyright expansionism. The reporter asks whether or not ACTA means that WIPO is becoming irrelevant, and she responds that basically if the "Development Agenda Group" keeps pushing that darned "development" angle over intellectual property rights, then it will "kill" WIPO:

I think the people at WIPO are aware that without successful conclusions to these longstanding negotiations the people who apply for patent protection may find ways around WIPO. That is obviously the sort of existential threat to WIPO. I think the Director General understands that very clearly. But we're also in an era where you have emerging economies that want to have their voices heard. It is important to note that the Development Agenda Group is led by Egypt, Brazil, India and Indonesia -- countries that themselves have patents to protect but also have thriving businesses in generic drugs.

...

But if we get to a system where the protections of patents are abrogated in the name of development then we certainly will kill that organization.

In other words, if these countries who are concerned about economic development don't get in line and accept draconian US patent and copyright laws that will significantly curtail development in those countries, then the US will move to shut down the venue in which they negotiate such things, and focus instead on agreements like ACTA that shut them out. How nice.

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 WIPO’s '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.

It's become pretty clear that most country governments (with very few exceptions) are not interested in looking to fix the problems of copyright, often because of regulatory capture by those who benefit from stronger copyright. So is there anyone who can actually push back? Well, Larry Lessig is hoping that WIPO will step in and lead the way towards fixing copyright, suggesting that the alternative is that it's going to be, say, the folks at The Pirate Bay who will lead the way on where copyright is headed (i.e., nowhere). His argument is that copyright is so fundamentally broken, that many younger people today simply assume that dumping it altogether is better than reform.

He does make a key point about where the problem comes from. It's that, in the past, your everyday citizen almost never came up against copyright. But what's changed when things go digital is the fact that every use involves copying. That wasn't true in the past. And copyright has never been designed to handle a situation where every use is a copy. The copyright holders quickly recognized that when every use is a copy, this is actually an opportunity for them to extract additional rents through copyright law, rather than through traditional transactional business models. It's a good point, worth thinking about in understanding why there's so much disrespect for copyright law today.

I doubt that WIPO will really step up here, even if it's actually been a bit more reasonable lately. Of course, this also explains why ACTA was set up outside of WIPO. Those who benefit the most from abusing copyright law for excess monopoly rents are already preparing for what would happen if WIPO actually looked at whether or not copyright really makes sense in a digital era.

One of the biggest problems we have with copyright policy today is the simple fact that it's almost entirely "faith-based," with no real evidence showing that current copyright laws benefit society. In fact, most specific studies show the opposite -- that copyright laws, as they exist today, tend to do more harm than good (except, potentially for middlemen). That's why international agreements that lock in certain forms of copyright law around the globe are so problematic. They don't allow countries to experiment with different types of copyright law to see if they work better. That, of course, is one reason why ACTA is so troubling. However, before ACTA there were other such international agreements, such as WIPO and, most famously, the Berne Convention.

The Berne Convention rules have massively expanded the scope of copyright law around the globe -- for example, it's the Berne Convention that says copyright should be automatically applied on new works, rather than requiring registration. The WIPO Copyright Treaty more or less tried to update the century-old Berne rules for the modern age, and (of course) did so by expanding the rules even further. Nearly all the countries in the world have agreed to both of these faith-based agreements, blocking off the ability to experiment to see if different (or no) copyright rules might be better. Merely mentioning the idea of a different form of copyright law (or no copyright law) will quickly bring out defenders of the status quo pointing to our "international obligations" -- which is the universal dodge from copyright system defenders who don't want to discuss how copyright law might react to being changed.

So what would it take for a country to actually opt-out of WIPO and Berne? A hell of a lot of guts, I imagine. The diplomatic pressure to stay in those agreements would be tremendous. In fact, I can't recall ever hearing of countries seriously thinking about opting out of either. Which is why I was so interested to see Amelia Adersdotter point to a recent panel discussion at the CopySouth event held in Brazil, where a Bolivian musician active in these issues suggested that Bolivia might actually consider leaving Berne and WIPO (link is a Google translation of the original).

The speaker, Juan Carlos Cordero, used to work for the local collection society in Bolivia, and has worked on various groups studying the impact of intellectual property. He notes that Bolivia's new constitution actually goes against many old international treaties, and that the country seems willing to not be tied down by such agreements if they're not in the best interests of the country.

It's not clear that anyone in the Bolivian government is really thinking of dropping out of Berne or WIPO, or what would actually happen if they did. But given how rare it is for anyone to even suggest a country dropping out of Berne/WIPO, this seemed worth noting.

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.

For nearly all of the history of copyright law, the law itself has been designed by and for a certain group of middlemen -- even as it was officially supposed to be about creating incentives for the creation of new, quality content. For this reason, copyright law has changed radically over the past three centuries, as those middlemen repeatedly strove to ratchet up and increase their monopoly rents. However, with the introduction of the internet and the personal computer, something unfortunate happened to the middlemen. They discovered that suddenly this cozy process of middlemen and politicians constantly ratcheting up monopoly protections ran into a bit of a speedbump: that ratcheting up interfered with the daily lives of millions of people online.

Because of that, over the past few years, a growing group of people have become increasingly vocal, in pointing out that the true purpose of copyright law should be to make sure it actually does increase the incentives for the creation of new works, rather than taking it on faith (and the sworn word of the middlemen). This has upset the middlemen greatly -- for historically they faced little to no opposition to their ongoing efforts to continually increase the monopoly rights granted to them.

Now facing serious opposition to these efforts for the first time, it appears that some of those involved in the cozy process of constantly ratcheting up copyright law (in one direction only) have decided that rather than present evidence as to why this is actually needed, they will simply break out two favorite mechanisms of the copyright maximalist arsenal: scream about "international obligations" over and over again... and when that fails, start the name calling.

Both are evident in an angry rant from Dr. Mihaly Ficsor, the President of the Hungarian Copyright Experts Council, and a former Assistant Director General of WIPO (i.e., the "old boys club" of folks who ratchet up copyright at every turn possible, based on faith alone, but not evidence of its need). Dr. Ficsor is particularly peeved at Michael Geist, for pushing back on the demands of other countries to radically change Canada's copyright laws. Dr. Fiscor's rant was posted to the blog of Barry Sookman, a Canadian copyright lawyer and lobbyist for the recording industry who has been a strong defender of secretive processes like ACTA negotiations and other attempts to change Canadian copyright laws on the whims of foreign middlemen, rather than any evidence of necessity.

I had thought that perhaps Dr. Ficsor's response would raise substantive issues concerning changes to copyright law, or perhaps (and this would be wonderful) present the actual evidence of why such changes are necessary. Tragically, there is none of that. It is blind faith-based pronouncements instead -- insisting that it's necessary because it's necessary, and then falling back on the mantra of "international obligations" for pretty much every other issue. Even on the one claim that he makes which he insists is substantive (that, despite not clearly saying so, these treaties do in fact require anti-circumvention clauses), he seems to purposely misrepresent history, pretending that he didn't lose this battle over a decade ago already.

At the end, it moves on to the pure insult phase:

I am sure that the policy makers of Canada do not allow being misled and frightened by the noisy group of these "free-access" "revolutionaries" (I hope so since, here in the former "socialist" countries of Central and Eastern Europe, we have had quite bad experience of certain "free access" "revolutionary" collectivist systems constrained on us for several decades). I am sure that they will not let Canada to become an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant "cultural revolution."

Now, if you're at all familiar with the Maoist Cultural Revolution, to compare that to those who are simply pushing for their own consumer rights on copyright issues or asking for actual evidence of the need for increasingly draconian copyright system changes, is downright ridiculous and insulting. No one is acting as a revolutionary, demanding "free access" or any sort of "Maoist" revolution. To make such a claim is pure ignorance. While some may disagree with the position Geist and others have taken, they have presented a position based on consumer and individual rights and an understanding of basic legal principles and economics. You can disagree with the conclusions, but to mischaracterize them in such a ridiculous manner raises all sorts of questions about what the copyright "old guard" has to hide. If they cannot respond to basic questions with actual evidence or actual answers, and instead resort to name calling like Dr. Ficsor does above, it seems only reasonable to conclude that there is no evidence to support their position. And when hundreds of thousands of Canadians spoke up to point out the emperor has no clothes, perhaps it's not surprising that the emperor would lash out in anger, but it simply demonstrates how the "faith-based" nature of those pushing for ever more stringent copyright laws means that they cannot engage in reasoned debate on a position that has no reason behind it.

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.