Years Later, White House Sends Two Copyright Treaties To Senate For Ratification: One Good, One Bad
from the let's-see-how-this-goes dept
It’s not clear why it’s taken this long, but late Wednesday, the White House sent two WIPO treaties over to the Senate for ratification: The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled — usually just called “The Marrakesh Treaty” or “The Marrakesh Treaty for the Blind” — and the Beijing Treaty on Audiovisual Performances, usually just called “The Beijing Treaty.” The Beijing Treaty was completed in 2012. The Marrakesh Treaty in 2013. It’s not clear why it took the White House until 2016 to move on them, but such is life.
We covered both treaties while they were being negotiated. The Marrakesh Treaty is a good one — creating a system that carves out a place in copyright laws to make it easier for the blind and visually impaired to be able to get access to books that they might not otherwise be able to access due to copyright laws. For absolutely insane reasons, this treaty, which should have been an easy one for everyone to get behind, took basically forever. The big problem? Big copyright legacy players, such as the MPAA, are scared to death of anything that moves copyright in a direction away from more control by copyright holders. They literally flipped out at the idea of any movement towards making copyright work for the public, even blind people, so that they put on a full court lobbying press that almost worked. Thankfully, it did not. Now, we’ll see if they’re able to do the same and block the Senate from ratifying it. But, seriously, voting against the Marrakesh Treaty is basically spitting in the face of the blind. The MPAA has done some shameful stuff for many years, but if they block this, it’ll be a new low.
On the flip side, there’s the awful, stupid and unnecessary Beijing Treaty. This one creates an entirely new form of intellectual property, a sort of special copyright for performers. Remember that awful 9th Circuit ruling saying an actress had a copyright interest in her performance in a movie — the one that later (thankfully) got overturned? Part of Judge Kozinski’s reasoning in his decision was the Beijing Treaty — which, obviously, hadn’t even been ratified yet. Kozinski pointing to the Beijing Treaty was ridiculous for a whole variety of reasons, but with the White House now supporting ratification, things may get even more ridiculous.
Under this treaty, Hollywood, and Hollywood actors in particular, will likely be getting their very own form of copyright, which almost certainly means that ratifying the treaty will lead to new copyright laws that are even more restrictive. It will allow performers to deny the ability to make use of any sort of performance they were in, even if they don’t (as they usually don’t) hold a copyright in that work. It also expands certain definitions in ways that are incompatible with US copyright law, including an explicit “making available” right (something Hollywood has wanted for ages) and broadening the concept of “moral rights” for actors. While many other countries recognize moral rights (which let copyright holders deny uses they disagree with), the US has rejected them in all but a few limited areas (mainly visual artists). And, finally, the agreement includes anti-circumvention provisions, basically expanding that already ridiculously problematic concept, so that someone breaking DRM in a way that violates someone’s “performance rights,” even if for otherwise legal purposes, such as commentary and criticism, may be breaking the law.
You may be wondering why Hollywood is such a big supporter of this, since it actually will hand more monopoly rights to performers — people Hollywood has a history of screwing over. Well, it’s because the agreement does allow (of course it does!) the transfer of such rights from performers to producers. So, guess what will go into every Hollywood movie and TV contract? The performers will fork over their rights, and the big Hollywood studios will end up with yet another form of monopoly control to silence people. And, with it will come all these neat little presents that Hollywood has always wanted in regular copyright law, that it might now be able to force through via the ratification of this treaty.
Both of these agreements are big deals — but in different ways. I’m guessing the reason they’re moving forward together is that it’s something of a tradeoff for the MPAA. They “allow” the blind to get a few more rights, while secretly chuckling all the way to the bank as they get a massive expansion in copyright via the audiovisual treaty. Hopefully, there will actually be a big public discussion about both of these, and the Senate realizes that the Marrakesh Treaty is necessary, while the Beijing Treaty is dangerous and should not be supported.