We've covered the efforts by many people over a very, very long period of time to set up a special treaty to help the blind and people who have other reading disabilities have greater access to works that may be covered by copyright. While the US administration rushes through things like ACTA and TPP, it has slow rolled this particular treaty -- bouncing back and forth between supporting such a treaty and not supporting it. Part of this issue, it appears, is that some of the key people in the Obama administration who recognized the value of such an agreement left, and the people who took over are known for their extreme maximalist positions. And, the concern with creating this treaty is that (*gasp*) it might open the door to governments giving people back their rights to make use of products they own.

So it took some people by surprise that the US showed up at the latest WIPO meeting apparently ready to support an agreement. Of course, the devil is in the details and the details showed that the US still didn't want anyone to call the thing a treaty, even as everyone else wants it to be a treaty. The US is also acting very tentatively on this, making it clear that it wants "final review" of the text, and that it might walk away if big copyright holders protest they don't like what they see. After some pressure from just about everyone else, the US has agreed that it will at least show up for discussions on making the agreement an actual treaty -- and that's quite reasonably being seen as progress.

The actual conference to discuss all of this will be held in June, and between now and then, expect all sorts of posturing (mostly by the US) in which they try to limit what's in the agreement and water it down as much as possible. The end result is unlikely to be particularly interesting. It's likely to be very limited and carve out all sorts of things (for example, it will only apply to text, rather than "audio-visual" works -- because, apparently, the MPAA has no interest in making its products more accessible). Having seen all of the scheming and roadblocks US officials have put up over the years concerning what should be a fairly straightforward agreement to help people who are disabled access more content, I'm not particularly hopeful anything useful will come out of this process in the end. But, the big copyright industry can rest easy at night knowing that blind people won't be able to access their materials.

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.

We were a bit surprised, recently, to hear at a WIPO (World Intellectual Property Organization) meeting that they actually appeared to be taking more of an evidence-based approach to copyright, rather than just assuming that "more is better." And now, the Director General of WIPO, Francis Gurry, gave an interview where he explained why he thought that high fines and jailtime weren't the answer to piracy. He's exactly right, which is a bit surprising. But as you read the details, it sounds like he might be right for the wrong reasons -- which isn't all that surprising.

It's not that he thinks that the better approach is for companies and content creators to adjust their business models -- but that he's afraid the draconian punishment schemes are basically a PR nightmare for WIPO's continuing fruitless effort to convince people that infringement is evil:

"I don't believe we are going to win this, (to) find the solution by putting teenagers in jail," Gurry said in an interview on a visit to India. "I think that is not going to win public sympathy."

"Part of the battle here is to sensitise the public to the fact that there is a real issue involved. It is not simply a victimless crime...."

Amusingly, the whole reason the RIAA kicked off its lawsuit strategy was based on similar thinking: that it was an "education" campaign that would convince people that there was "harm" done from file sharing. Of course, it didn't work. At all. And no education campaign is going to work, because it's just the basic nature of economics. If the technology has made the product infinite, it's not a moral issue or a legal issue: it's a business model issue. The answer is to change business models, not hope and pray that you can somehow convince people that it's "bad" to do something that obviously can be done quite easily.

So, yes, Gurry is correct that draconian punishment has created a massive PR backlash that has helped make things even worse, but an education campaign isn't going to make a difference. Only a business model change can fix a business model situation -- and we're already seeing that happen just fine in many parts of the world. It's not an education campaign that will help the content industry. It's smarter business models.

The phrase "ta ta" is a well known way of saying goodbye. So, it was a cute idea for an Indian online travel site to use the domain name OkTaTaByeBye.com. Except... of course, one of the biggest companies in India happens to be called Tata. So, of course, the Tata corporation went to WIPO complaining of trademark infringement. And WIPO, as it almost always seems to do, sided with the big company, and said that the domain name infringes (thanks, stat_insig). The travel site is planning to appeal, and hopefully whoever hears the appeal will recognize that the site is pretty clearly not associated with Tata. Still, it's yet another example of a big company thinking that its rights extend quite far.

A bunch of folks have sent in various versions of the story that the G20 has agreed to some sort of "world court for intellectual property." Of course, the details still aren't entirely clear (and it sounds like there's still a bunch of horse trading going on), but it would be an extension of WIPO, which has been in charge of enforcing various international treaties. The details are key, but it still does make you wonder why we need a world IP court. Such courts in the past have been shown to not be very effective in dealing with IP issues, because they tend to become dominated by those who believe that "more IP is better" despite the overwhelming evidence to the contrary. So these courts tend to just be the enforcers of industries built on the regulatory monopolies commonly called intellectual property. Well no wonder so many people were sending it in: it was an April Fool's joke. Well done... though, in retrospect the bit about France demanding that the language of the court be French if it were in China should have been a dead give away.

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.