It is fitting that on today, the Jewish holiday of Purim I discuss the recent, heroic response of the Government of Israel to the bullying by the U.S. International Intellectual Property Alliance in its submission to the United States Trade Representative regarding the U.S. Special 301 Watch List. (See article in ars technica along with a link to the submission here).
More than one scholar and more than one government has wondered whether the Special 301 watch lists violate the TRIPs Agreement. Perhaps in the future the issue will be tested before a WTO panel and the issue will finally be decided. See here for a 1999 panel decision on Sections 305 and 306, and article by Professors Frederick Abbot and Jerome Reichman here). The result of the panel decision was a determination that article 23 of the WTO Dispute Settlement Understanding obliges WTO Members -- read the U.S. -- to seek redress for alleged violations of the WTO Agreement through multilateral, and not unilateral procedures. Because USTR stated it would apply Section 301 consistently with the WTO Agreement, the panel imposed
no sanctions. The argument still exists, though, that since the designated watch list countries are forced to spend large sums to defend themselves against designation each year, based solely charges made by the IIPA, there is a WTO violation.
But that issue aside, the sheer arrogance and affront to the sovereignty of foreign governments by the IIPA’s annual reports and effort to penalize those governments that do not toe the IIPA’s line is breathtaking. (See earlier post here). One needs to actually pore through the IIPA country reports to fully grasp what I mean: the nitpicking attacks on (translated versions) of foreign statutes which are held up to the light of U.S. law to decipher the slightest deviation – if only semantic – supports the view of the rest of the world that the IIPA is not only insensitive to the rest of the world, but has as its goal the remaking of the world in the U.S. image. This actually not quite right – it is a remaking of the world that contains only those parts of U.S. law that the corporate content owners who are members of the IIPA favor. For example, a little over a year ago I noted the amazing spectacle of the IIPA lobbying USTR to penalize Israel for adopting the U.S. fair use provision. (see here). It is one thing to try and get other countries to see things your way -- that's ordinary self-interest practiced by nations and individuals alike -- , and quite another to threaten those who don't do what you want with trade retaliation on the pretext that those countries are havens for piracy.
Israel is a very vulnerable nation for many reasons, some obvious, some not. One not so obvious reason is the threat that the U.S. will take retaliatory actions if Israel does not do X, Y, and Z. There is a misimpression in the popular press that the U.S. lets Israel do whatever it wants, but this is belied by reality. For example, in a prior Administration, an Administration official called into question general assistance to Israel if Israel didn’t go along with proposals for an international copyright treaty.
Of course, even large countries like Canada have been threatened: the U.S. is reported to have told Canada that the U.S. won’t do anything Canada wants in other areas unless Canada adheres to the WIPO treaties in the exact form that the U.S. has, and that such implementation is the highest priority in U.S.–Canada relations. That’s ridiculous bluster. I hope that the example of Israel, a much smaller and very vulnerable nation, standing up to the IIPA inspires the Canadians in drafting their anticipated copyright reform legislation. And one thing that might strengthen Canadian resolve is the experience of Israel with the migration of the watch list into an evolving wish list.
In 1999, USTR's primary focus with regard to Israel was with respect to lack of criminal enforcement and lenient criminal penalties. After Israel investigated the matter it became clear that better criminal enforcement (provided that the offenses would be narrowly defined and not as broad as desired by IIPA) made sense. Consequently, a lot of resources were directed to revision of the criminal sections of the copyright and trademark laws, as well as the establishment of special IP police units and training prosecutors. There were many successes and some lapses, but on the whole the system works well and has become institutionalized. By 2002 USTR even took note of Israel’s successes for which Israel was rewarded with occasional compliments and having its "rank" lowered to "watch list". However, no sooner was the "enforcement" problem solved than arose new problems. As soon as one problem was solved (enforcement), IIPA would raise new issues and very quickly it became apparent that the "watch list" is really a "wish list" from which there is no exit. Moreover, like with appeasement processes, the more concessions that are made the more concessions that are demanded. A review of Israeli’s February 2008 submission to USTR and a comparison with IIPA’s submission to USTR on Israel bears this out, and I invite readers to make their own comparison and judgments. Short of adopting U.S. law in toto there is no way for countries to ever escape continued criticism; appeasement is a road to nowhere.
One very significant issue raised in Israel’s latest submission that transcends Israel is this: Israel held fast against the prior Administration’s threats and did not join the WIPO treaties; those are the only treaties that obligate implementation of technological protection measures. Yet, IIPA has recommended that Israel be punished for not implementing TPMs. On what basis? Does it really violate Section 301 of the U.S. Trade Act if a country does not join the 1996 WIPO treaties? This question is highly relevant for countries like Canada that have become members but haven’t ratified the treaties or enacted implementing legislation: let’s say Canada doesn’t ratify the treaty, which would place it in the same position as Israel and the following very large list 12 years after conclusion of the treaties (go to this link on the WIPO site): Austria, Bolivia, Denmark, Estonia, the European Community, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Kenya, Luxembourg, Namibia, Netherlands, Nigeria, Norway, Portugal, Spain, Switzerland, United Kingdom, Uruguay, and Venezuela. Are all of these countries and the EC in violation of the U.S. Trade Act?
On what basis does the failure to ratify the WIPO treaties mean the failure to provide adequate and effective protection to U.S. works within the meaning of the Trade Act, and sufficient to justify the imposition of penalties under Section 301? Does adequate and effective protection really mean that all other countries have to ratify not only every treaty does, but also they must also implement those treaties the way the U.S. does? Is the U.S. joining a treaty, in others words, an invitation that other countries can’t refuse? (Let's recall here the U.S. refusal to join the Kyoto treaty). The U.S. Trade Act itself does not contain an obligation for other countries to adhere to the WIPO treaties on penalty of violating Section 301. Can it be said that the day before the U.S. joined those treaties, the U.S. did not provide adequate and effective to its own works and the works of other authors? If, as I believe is true, the Trade Act does not obligate other countries to adhere to the 1996 WIPO treaties, how can the failure to adhere violate Section 301 of that treaty?
As Israel asks in its latest submission, “can non-membership in a voluntary treaty be the basis for invocation of [Section 301] and placement on a watch list?” I am aware of no basis for that position, and if there is none, then those countries that are facing intense U.S. pressure to implement the DMCA should thank Israel for having the courage to stand-up for the rest of the world.
וַיְהִי, בִּימֵי אֲחַשְׁוֵרוֹשׁ: הוּא אֲחַשְׁוֵרוֹשׁ, הַמֹּלֵךְ מֵהֹדּוּ וְעַד-כּוּשׁ--שֶׁבַע וְעֶשְׂרִים וּמֵאָה, מְדִינָה.
Showing posts with label IIPA. Show all posts
Showing posts with label IIPA. Show all posts
Friday, March 21, 2008
Wednesday, February 13, 2008
No One Likes a Bully: The IIPA and Canada
Despite the use of the word “International” in its name, the International Intellectual Property Alliance (IIPA) is an umbrella group comprised of 7 U.S. trade associations: the Association of American Publishers, Business Software Alliance, Entertainment Software Association (video game industry), The Independent Film & Television Alliance, The Motion Picture Association of America, National Music Publishers’ Association, and Recording Industry Association of America; it pursues a purely U.S. corporate copyright agenda.
The IIPA had a modest infancy: it arose out of early legislative efforts in the mid 1980s to condition favorable U.S. trade benefits on other countries providing U.S. works “adequate and effective” IP protection, a concept very much in the eye of the beholder. With a ramped up GSP program and then the “Special 301” revision in the 1988 Omnibus Trade and Competitiveness Act, the IIPA quickly filled a vacuum: the Office of the United States Trade Representative (charged with enforcing trade laws) needed statistics to establish which countries were naughty and which were nice. Lacking any investigative resources of its own, USTR uses figures given to it by IIPA. The figures offered up by the IIPA on projected U.S. losses from “piracy” have been criticized for being wildly inflated, speculative, and based on demonstrably false assumptions, such as every pirated copy equaling a loss of a sale (and usually at U.S. prices). But what’s wrong with fudging for a good cause? And who are pirates to complain? (It also appears that the U.S. is the nicest country of all since it never appears on its own list, while major Western and many other countries have been tarred with varying degrees of naughtiness).
It is entirely proper for U.S. industries to protect their own interests. IIPA’s website, though, shoots for a loftier goal, that of helping to create “a legal and enforcement regime for copyright that not only deters piracy, but that also fosters technological and cultural development in these countries, and encourages local investment and employment.” The last two clauses evoke a globally beneficent outlook, one reminiscent of the “a raising tide lifts all boats” bromide according to which very high levels of protection are actually good for other countries because it protects authors from those countries. The bromide is false, though, and not only because the IIPA doesn't do outreach to help local investment or employment in foreign countries: it is also false because the ill-effects of hyper-copyright are felt in the U.S., from orphan works, to oppressive remedies, and misuse of circumvention rights to squelch competition and preserve outmoded business models. It must also be pointed out that the rising tide lifts all boats approach is one the U.S. deliberately eschewed in the first 100 years of its existence, resulting in the British referring to the U.S. as the Barbary Coast of Piracy, and that the U.S. did not join the Berne Convention until the extremely late date of March 1, 1989. The U.S. conversion to international copyright is quite recent; post-conversion, we have been acting like Paul, not Saul. Other countries, especially those who have been members of the Berne Convention since the 19th century, can be excused for thinking our conversion came about not out of faith but rather out of an opportunity to force U.S. law on the rest of the world; in short, copyright imperialism.
In practice, the IIPA’s efforts have gone far beyond issues of piracy. Its annual 301 report goes into great detail about the perceived deficiencies of all stripes in foreign laws, accusations that understandably offend those countries. Nor is the IIPA content with attempting to get other countries to adopt U.S. law lock-stock-and-barrel (and regardless of vast differences among legal systems): Last year, I reported on IIPA’s efforts to stop the Israeli Knesset from adopting the U.S. fair use provision in its statute. Apparently, it is only those laws that are favorable to U.S. corporate interests that “will foster[] technological and cultural development in these countries, and encourage[] local investment and employment.”
Sometimes countries fight back (and the Israelis, Baruch HaShem, passed their fair use provision anyway). IIPA’s repeated attacks on Canadian copyright law led Ms. Nancy Segal, a senior Canadian Foreign Affairs official, to remark last year:
In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts. I also recognize that the U.S. industry likes to compare anyone they have a problem with, concerning their IPR regime, to China and the other big violators, but we're not on the same scale. This is not the same thing. If you aren't on the watch list in some way, shape, or form, you may not be of importance. Most countries with significant commercial dealings are on the watch list.
Member of Parliament Joe Comartin (Windsor—Tecumseh, NDP), then added:
My perception, and I think this is based on fairly decent material, is that if anybody was going to be on that watch list, the U.S. should put themselves on it, in the sense that they have more counterfeit material and goods going through their country, getting into their country, and manufactured in their country on a proportional basis than Canada does, by a long shot.
In reading these remarks, I remembered my seven years working on Capitol Hill, where on my daily trek up Pennsylvania Avenue to get lunch, I would pass by tables at which counterfeit DVDs were offered for sale, one block from the Capitol building itself, and right across the street from the Copyright Office. The Canadians officials quoted above were reacting, perhaps, to IIPA’s 2007 report, which began, “Canada’s long tenure on the USTR Watch List seems to have had no discernible effect on its copyright policy.” Ordinary people, when faced with such a lack of response from an immediate neighbor – in this case, a friendly, wealthy (Canada’s dollar is worth more than the U.S. dollar), high educated and networked country -- might re-evaluate an obviously failed policy, but no, IIPA’s recommendation was to throw more fuel on the fire, recommending that Canada be placed on an even naughtier list, the Priority Watch List, a recommendation repeated in the 2008 report, and to upbraid the Canadians for allegedly having a copyright law fit for Pirate Bay, not Thunder Bay.
So what are the IIPA’s beefs? The principal ones ostensibly concern Canada’s failure to implement the 1996 WIPO treaties. Examination of the IIPA’s 301 reports reveals, though, that what it has in mind is simply adoption of U.S. law, not amendments to Canada law that are consistent with the treaties obligations. The WIPO treaties modestly require only remedies for circumvention of Technological Protection Measures (TPMs) that involve the exercise of exclusive rights. Although the U.S. attempted to have the treaties include remedies for circumvention of access controls, other countries rejected the U.S.’s efforts. One would never know this from the IIPA’s reports, which mix the two together and lead readers to believe both are required; they are not.
Even more, the IIPA has stated (2004 report), “The WIPO digital treaties provide the principal legal tools required to fight piracy.” No evidence to support this assertion is presented, and the assertion is absurd: piracy (even as IIPA defines it), has existed for millennia, and the tools used to combat it have been traditional copyright rights and remedies. On this (and many other scores), Canada’s law is exemplary. I have not seen any proof that the U.S. TPM laws have led to a decrease in piracy within the U.S.; to the contrary, U.S. corporate interests constantly complain before Congress about the exponential increase of piracy, a “pandemic” that can only be cured by ever stronger laws. If we take content owners at their word, TPMs have been remarkably ineffectual, and therefore not something we would want to stuff down other countries’ throats. Indeed, in a stunning mea culpa not lost on Canadians, last year former U.S. Commissioner of Patent Bruce Lehman, the architect of the DMCA and of the U.S. negotiations at the WIPO treaties, stated during a symposium in Montreal that the DMCA had been a failure due – to copyright owners’ actions. See here.
The actual purpose of TPMS has nothing to do with piracy, and is stated in the concluding sentence to the one I quoted above from the IIPA’s Section 301 report: “Electronic commerce in copyrighted content requires a working digital marketplace in which only legitimate copies of works are transmitted, and only under the terms negotiated or permitted by the rights owner.” In other words, TPMs are all about preserving business models, not about piracy. In the United States, we have been waiting since 1998 for a working digital marketplace, after granting to IIPA’s members extensive rights in the DMCA on the promise that once the laws were in place, copyright owners would create the market. They haven’t: we are still nowhere close to even a nascent digital marketplace, much less a working one. But why not, since the laws are in place? The answer is content owners already have what they wanted, which is control over whether a legitimate marketplace will ever exist; but if it does, it will certainly be on their terms as IIPA clearly indicates. The purpose of the DMCA from their perspective was not to facilitate the actual development of a digital marketplace, but to give them veto power over whether one would ever exist, and if so, what it would look like. That’s why the DMCA represented a fatal blow to copyright as a system: rather than adapting copyright rights to the digital environment, the DMCA gave copyright owners the right to control the environment itself, with consequences that were entirely predictable given the past track record of the industry’s suits against innovations from talkies, to cable television, photocopy machines, and VCRs.
Lacking an authorized marketplace due solely to content owners’ failure to create one, it is hardly surprisingly that unauthorized ones grew up. Content owners response was not to provide consumers with what they wanted, but to declare war. Even Edgar Bronfman Jr., honcho of Warner Music, admitted this was a huge mistake, and it is the unwillingness of copyright owners to provide a legitimate market that led Bruce Lehman to publicly declare his own handiwork had failed. The idea that adherence to the WIPO treaties and a verbatim adoption of U.S. law is both necessary and sufficient to create a legitimate market and fight piracy has thus been roundly rejected by both Mr. Bronfman and Mr. Lehman, yet the IIPA continues to argue it to USTR and to the Canadian government.
The IIPA 301 report also insists on Canada adopting the U.S. notice and takedown safe harbor approach found in Section 512, but the IIPA doesn’t reveal that the WIPO treaties have nothing to do with ISP safe harbors. Indeed, it was content owners’ refusal to incorporate safe harbors into the DMCA that held up that legislation for three years, from 1995 to 1998. Content owners argued then that the WIPO treaties had nothing to do with ISP safe harbors. What a difference a few years makes.
The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the
WIPO treaties is a mystery.
The IIPA had a modest infancy: it arose out of early legislative efforts in the mid 1980s to condition favorable U.S. trade benefits on other countries providing U.S. works “adequate and effective” IP protection, a concept very much in the eye of the beholder. With a ramped up GSP program and then the “Special 301” revision in the 1988 Omnibus Trade and Competitiveness Act, the IIPA quickly filled a vacuum: the Office of the United States Trade Representative (charged with enforcing trade laws) needed statistics to establish which countries were naughty and which were nice. Lacking any investigative resources of its own, USTR uses figures given to it by IIPA. The figures offered up by the IIPA on projected U.S. losses from “piracy” have been criticized for being wildly inflated, speculative, and based on demonstrably false assumptions, such as every pirated copy equaling a loss of a sale (and usually at U.S. prices). But what’s wrong with fudging for a good cause? And who are pirates to complain? (It also appears that the U.S. is the nicest country of all since it never appears on its own list, while major Western and many other countries have been tarred with varying degrees of naughtiness).
It is entirely proper for U.S. industries to protect their own interests. IIPA’s website, though, shoots for a loftier goal, that of helping to create “a legal and enforcement regime for copyright that not only deters piracy, but that also fosters technological and cultural development in these countries, and encourages local investment and employment.” The last two clauses evoke a globally beneficent outlook, one reminiscent of the “a raising tide lifts all boats” bromide according to which very high levels of protection are actually good for other countries because it protects authors from those countries. The bromide is false, though, and not only because the IIPA doesn't do outreach to help local investment or employment in foreign countries: it is also false because the ill-effects of hyper-copyright are felt in the U.S., from orphan works, to oppressive remedies, and misuse of circumvention rights to squelch competition and preserve outmoded business models. It must also be pointed out that the rising tide lifts all boats approach is one the U.S. deliberately eschewed in the first 100 years of its existence, resulting in the British referring to the U.S. as the Barbary Coast of Piracy, and that the U.S. did not join the Berne Convention until the extremely late date of March 1, 1989. The U.S. conversion to international copyright is quite recent; post-conversion, we have been acting like Paul, not Saul. Other countries, especially those who have been members of the Berne Convention since the 19th century, can be excused for thinking our conversion came about not out of faith but rather out of an opportunity to force U.S. law on the rest of the world; in short, copyright imperialism.
In practice, the IIPA’s efforts have gone far beyond issues of piracy. Its annual 301 report goes into great detail about the perceived deficiencies of all stripes in foreign laws, accusations that understandably offend those countries. Nor is the IIPA content with attempting to get other countries to adopt U.S. law lock-stock-and-barrel (and regardless of vast differences among legal systems): Last year, I reported on IIPA’s efforts to stop the Israeli Knesset from adopting the U.S. fair use provision in its statute. Apparently, it is only those laws that are favorable to U.S. corporate interests that “will foster[] technological and cultural development in these countries, and encourage[] local investment and employment.”
Sometimes countries fight back (and the Israelis, Baruch HaShem, passed their fair use provision anyway). IIPA’s repeated attacks on Canadian copyright law led Ms. Nancy Segal, a senior Canadian Foreign Affairs official, to remark last year:
In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts. I also recognize that the U.S. industry likes to compare anyone they have a problem with, concerning their IPR regime, to China and the other big violators, but we're not on the same scale. This is not the same thing. If you aren't on the watch list in some way, shape, or form, you may not be of importance. Most countries with significant commercial dealings are on the watch list.
Member of Parliament Joe Comartin (Windsor—Tecumseh, NDP), then added:
My perception, and I think this is based on fairly decent material, is that if anybody was going to be on that watch list, the U.S. should put themselves on it, in the sense that they have more counterfeit material and goods going through their country, getting into their country, and manufactured in their country on a proportional basis than Canada does, by a long shot.
In reading these remarks, I remembered my seven years working on Capitol Hill, where on my daily trek up Pennsylvania Avenue to get lunch, I would pass by tables at which counterfeit DVDs were offered for sale, one block from the Capitol building itself, and right across the street from the Copyright Office. The Canadians officials quoted above were reacting, perhaps, to IIPA’s 2007 report, which began, “Canada’s long tenure on the USTR Watch List seems to have had no discernible effect on its copyright policy.” Ordinary people, when faced with such a lack of response from an immediate neighbor – in this case, a friendly, wealthy (Canada’s dollar is worth more than the U.S. dollar), high educated and networked country -- might re-evaluate an obviously failed policy, but no, IIPA’s recommendation was to throw more fuel on the fire, recommending that Canada be placed on an even naughtier list, the Priority Watch List, a recommendation repeated in the 2008 report, and to upbraid the Canadians for allegedly having a copyright law fit for Pirate Bay, not Thunder Bay.
So what are the IIPA’s beefs? The principal ones ostensibly concern Canada’s failure to implement the 1996 WIPO treaties. Examination of the IIPA’s 301 reports reveals, though, that what it has in mind is simply adoption of U.S. law, not amendments to Canada law that are consistent with the treaties obligations. The WIPO treaties modestly require only remedies for circumvention of Technological Protection Measures (TPMs) that involve the exercise of exclusive rights. Although the U.S. attempted to have the treaties include remedies for circumvention of access controls, other countries rejected the U.S.’s efforts. One would never know this from the IIPA’s reports, which mix the two together and lead readers to believe both are required; they are not.
Even more, the IIPA has stated (2004 report), “The WIPO digital treaties provide the principal legal tools required to fight piracy.” No evidence to support this assertion is presented, and the assertion is absurd: piracy (even as IIPA defines it), has existed for millennia, and the tools used to combat it have been traditional copyright rights and remedies. On this (and many other scores), Canada’s law is exemplary. I have not seen any proof that the U.S. TPM laws have led to a decrease in piracy within the U.S.; to the contrary, U.S. corporate interests constantly complain before Congress about the exponential increase of piracy, a “pandemic” that can only be cured by ever stronger laws. If we take content owners at their word, TPMs have been remarkably ineffectual, and therefore not something we would want to stuff down other countries’ throats. Indeed, in a stunning mea culpa not lost on Canadians, last year former U.S. Commissioner of Patent Bruce Lehman, the architect of the DMCA and of the U.S. negotiations at the WIPO treaties, stated during a symposium in Montreal that the DMCA had been a failure due – to copyright owners’ actions. See here.
The actual purpose of TPMS has nothing to do with piracy, and is stated in the concluding sentence to the one I quoted above from the IIPA’s Section 301 report: “Electronic commerce in copyrighted content requires a working digital marketplace in which only legitimate copies of works are transmitted, and only under the terms negotiated or permitted by the rights owner.” In other words, TPMs are all about preserving business models, not about piracy. In the United States, we have been waiting since 1998 for a working digital marketplace, after granting to IIPA’s members extensive rights in the DMCA on the promise that once the laws were in place, copyright owners would create the market. They haven’t: we are still nowhere close to even a nascent digital marketplace, much less a working one. But why not, since the laws are in place? The answer is content owners already have what they wanted, which is control over whether a legitimate marketplace will ever exist; but if it does, it will certainly be on their terms as IIPA clearly indicates. The purpose of the DMCA from their perspective was not to facilitate the actual development of a digital marketplace, but to give them veto power over whether one would ever exist, and if so, what it would look like. That’s why the DMCA represented a fatal blow to copyright as a system: rather than adapting copyright rights to the digital environment, the DMCA gave copyright owners the right to control the environment itself, with consequences that were entirely predictable given the past track record of the industry’s suits against innovations from talkies, to cable television, photocopy machines, and VCRs.
Lacking an authorized marketplace due solely to content owners’ failure to create one, it is hardly surprisingly that unauthorized ones grew up. Content owners response was not to provide consumers with what they wanted, but to declare war. Even Edgar Bronfman Jr., honcho of Warner Music, admitted this was a huge mistake, and it is the unwillingness of copyright owners to provide a legitimate market that led Bruce Lehman to publicly declare his own handiwork had failed. The idea that adherence to the WIPO treaties and a verbatim adoption of U.S. law is both necessary and sufficient to create a legitimate market and fight piracy has thus been roundly rejected by both Mr. Bronfman and Mr. Lehman, yet the IIPA continues to argue it to USTR and to the Canadian government.
The IIPA 301 report also insists on Canada adopting the U.S. notice and takedown safe harbor approach found in Section 512, but the IIPA doesn’t reveal that the WIPO treaties have nothing to do with ISP safe harbors. Indeed, it was content owners’ refusal to incorporate safe harbors into the DMCA that held up that legislation for three years, from 1995 to 1998. Content owners argued then that the WIPO treaties had nothing to do with ISP safe harbors. What a difference a few years makes.
The intense, negative reaction of Canadian citizens to IIPA’s efforts is well-taken. Why any government would want to adopt approaches that have been admitted to be a dismal failure in the U.S. by the law’s own ardent author, and that are not required by the
WIPO treaties is a mystery.
Monday, February 26, 2007
Fair Use, Israel, and the IIPA
The February 12, 2007 International Intellectual Property Alliance 2007 Special 301 Report contains detailed discussions of which countries throughout the world have been naughty and which have been nice (excluding of course the U.S. which is the nicest of all). One country's treatment bears pointing out, Israel. The Knesset is in the process of passing a number of amendments to its copyright law - an amalgam of laws going back to the extension, in 1924, of the British Copyright Act of 1911 during the British Mandate over ארץ ישראל (The most recent amendment took effect on November 3, 2002). Israel is a member of the Universal Copyright Convention and the Berne Convention. The current effort is intended both to modernize aspects of Israeli copyright law and to implement other international obligations.
What caught my eye in the discussion of Israel (found here) is on pages 70-71, entitled "Proposed Application of U.S.-Type 'Fair Use' Factors." This refers to the Knesset's expected adoption of a provision modeled very closely on Section 107 of title 17. One might expect that an effort by a foreign government to adopt a rather singular aspect of U.S. copyright law would be met with praise. Not so, when it comes to the non-proprietary side of the constitutional ledger. Here are the IIPA's words in full:
At the outset, we note that Section 19(a) attempts to adopt the U.S. 'fair use' test by stating that 'fair dealing with the creation is allowed, among others, for the following purposes: self study, research...." Section 19(b) includes a list of factors that are similar to those in place in the United States and the explanatory notes clarify the intention to enact a non-exclusive list of purposes, which would allow enough flexibility to the courts in determining whether a particular use is 'fair.' We understand there may already be agreement to adopt the draft, and we register our concern that the result of this change could result in considerable case law interpretation in Israel on 'fair dealing' being thrown out in favor of as yet undeveloped factors in Section 19(b). By contrast, in markets like the U.S., which employs very similar factors to those set out in proposed Section 19(b), many years of jurisprudence have provided society with considerable clarity on the boundaries of 'fair use.' There is a significant risk that in Israel the adoption of these factors at this time might be viewed by the community as a free ticket to copy. This would have disastrous consequences, and thus we urge the Israeli government to re-examine the introduction of these factors, rather than relying on Section 19(a), which sets out the long-established 'fair dealing' principle, followed by specific exceptions dealing with certain special cases (Section 19-32, but see comments below). Finally, if the factors in Section 18(b) are to be ultimately adopted, Section 19(b)(1) especially needs to be amended to properly narrow the scope of the 'fair use' inquiry:
(b) In order to examine the fairness of a use of the creation for the purposes of this paragraph, the following shall be considered:
(1) The aim of the use and its type, including whether the use is of a commercial nature or is for non-profit educational purposes.
These remarks should lead to debate in U.S. circles: the concern that Israeli judges can't handle the doctrine or that the Israeli population will see adoption of fair use as a "free ticket to copy" is not borne out by any empirical evidence, nor by any references justifying such concerns (e.g., prior decisions of Israeli courts), nor of course by the proposed statutory language, which directs judges to look at the traditional four factors, including the effect of the use on the market for the copyrighted work.
The IIPA's preferences are for (1) the existing law, which contains a narrower set of enumerated exceptions or (2) the above amendment, which is designed to "properly narrow the scope of the 'fair use' inquiry." That proposed amendment (the bold portion) would add language taken from Section 107(1): "including whether the use is of a commercial nature or is for non-profit educational purposes."
That language, added at the 11th hour to Section 107 of title 17 as a sop to educators led to years of confusion in U.S. courts, ultimately to the Sony presumptions ("every commercial use is presumptively unfair;" "every commercial use presumptively results in harm to the market"), and years and years of rigid, mis-directed case law, corrected ultimately in the 2 Live Crew case. Adopting that language in the Israeli statute would result in the adoption of the one part of Section 107 that has failed miserably, and might lead plaintiffs in Israel to argue things like "commercial use bad," but "non-profit educational use maybe good, under some circumstances." It is unclear how the IIPA sees its amendment working in practice, but how could reference to commercial versus non-profit educational uses narrow anything by itself unless commercial uses are painted as the bad guys? That approach, it must be noted is strongly contrary to existing U.S. law, pace Justice Souter's quote from Samuel Johnson that "No man but a blockhead ever wrote, except for money."
The unusual aspect of all this of course, is a U.S. trade organization lobbying the Office of United States Trade Representative to lobby a foreign government not to adopt a critical part of U.S. copyright law.
What caught my eye in the discussion of Israel (found here) is on pages 70-71, entitled "Proposed Application of U.S.-Type 'Fair Use' Factors." This refers to the Knesset's expected adoption of a provision modeled very closely on Section 107 of title 17. One might expect that an effort by a foreign government to adopt a rather singular aspect of U.S. copyright law would be met with praise. Not so, when it comes to the non-proprietary side of the constitutional ledger. Here are the IIPA's words in full:
At the outset, we note that Section 19(a) attempts to adopt the U.S. 'fair use' test by stating that 'fair dealing with the creation is allowed, among others, for the following purposes: self study, research...." Section 19(b) includes a list of factors that are similar to those in place in the United States and the explanatory notes clarify the intention to enact a non-exclusive list of purposes, which would allow enough flexibility to the courts in determining whether a particular use is 'fair.' We understand there may already be agreement to adopt the draft, and we register our concern that the result of this change could result in considerable case law interpretation in Israel on 'fair dealing' being thrown out in favor of as yet undeveloped factors in Section 19(b). By contrast, in markets like the U.S., which employs very similar factors to those set out in proposed Section 19(b), many years of jurisprudence have provided society with considerable clarity on the boundaries of 'fair use.' There is a significant risk that in Israel the adoption of these factors at this time might be viewed by the community as a free ticket to copy. This would have disastrous consequences, and thus we urge the Israeli government to re-examine the introduction of these factors, rather than relying on Section 19(a), which sets out the long-established 'fair dealing' principle, followed by specific exceptions dealing with certain special cases (Section 19-32, but see comments below). Finally, if the factors in Section 18(b) are to be ultimately adopted, Section 19(b)(1) especially needs to be amended to properly narrow the scope of the 'fair use' inquiry:
(b) In order to examine the fairness of a use of the creation for the purposes of this paragraph, the following shall be considered:
(1) The aim of the use and its type, including whether the use is of a commercial nature or is for non-profit educational purposes.
These remarks should lead to debate in U.S. circles: the concern that Israeli judges can't handle the doctrine or that the Israeli population will see adoption of fair use as a "free ticket to copy" is not borne out by any empirical evidence, nor by any references justifying such concerns (e.g., prior decisions of Israeli courts), nor of course by the proposed statutory language, which directs judges to look at the traditional four factors, including the effect of the use on the market for the copyrighted work.
The IIPA's preferences are for (1) the existing law, which contains a narrower set of enumerated exceptions or (2) the above amendment, which is designed to "properly narrow the scope of the 'fair use' inquiry." That proposed amendment (the bold portion) would add language taken from Section 107(1): "including whether the use is of a commercial nature or is for non-profit educational purposes."
That language, added at the 11th hour to Section 107 of title 17 as a sop to educators led to years of confusion in U.S. courts, ultimately to the Sony presumptions ("every commercial use is presumptively unfair;" "every commercial use presumptively results in harm to the market"), and years and years of rigid, mis-directed case law, corrected ultimately in the 2 Live Crew case. Adopting that language in the Israeli statute would result in the adoption of the one part of Section 107 that has failed miserably, and might lead plaintiffs in Israel to argue things like "commercial use bad," but "non-profit educational use maybe good, under some circumstances." It is unclear how the IIPA sees its amendment working in practice, but how could reference to commercial versus non-profit educational uses narrow anything by itself unless commercial uses are painted as the bad guys? That approach, it must be noted is strongly contrary to existing U.S. law, pace Justice Souter's quote from Samuel Johnson that "No man but a blockhead ever wrote, except for money."
The unusual aspect of all this of course, is a U.S. trade organization lobbying the Office of United States Trade Representative to lobby a foreign government not to adopt a critical part of U.S. copyright law.
Subscribe to:
Posts (Atom)
