[A2k] James Boyle in FT on WIPO Treaty: Constitutional circumvention

[James Love]

Jamie Boyle has written another very strong critique of the proposed
WIPO treaty on Broadcasting.   Jamie

* This proposal was so bad, so empirically threadbare, so unbalanced,
that I had cherished a faint hope that the members of WIPO would
abandon it. At least, I hoped there might be a comparative study of
the nations that had previously adopted the protection and those that
had not, to see if there was any need for such a change? What was I
thinking!!? Why do we need evidence? With remarkably little public
attention, the Broadcasting Treaty train is chugging ahead strongly,
with states providing new draft proposals over the next two months
for a possible decision in September.

* We should be focusing on rules about conduct, not rights over
content. If signal piracy and rebroadcasting is a problem, we should
have a rule that narrowly focuses on that conduct, prohibiting unfair
business practices by commercial competitors. The last thing we
should do is create yet another set of long lasting property rights
over the content.

* Of course, the casting treaty is a paradigmatic example of the
dysfunctions in our international deliberations on these issues; we
have the absence of evidence, the mandatory rights and optional
exceptions, the industry-capture, the indifference to harm caused by
rights-thickets. But the representatives of the United States, who
have played an ignominious role as cheerleaders for this silly
treaty, have a particular, indeed a constitutional, reason to be
ashamed.

* the current drafts of the Broadcast Treaty would be
unconstitutional if implemented in American law.


http://news.ft.com/cms/s/fa07af4a-fadc-11da-b4d0-0000779e2340.html

Tuesday Jun 13 2006 . All times are London time.

Comment & analysis / Columnists

James Boyle: Constitutional circumvention
By James Boyle
Published: June 13 2006 16:18 | Last updated: June 13 2006 16:18

James BoyleIn September last year, I wrote about a very bad proposal
being debated in the World Intellectual Property Organization (WIPO).
The proposal was to extend the length of an existing set of
intellectual property rights for broadcasters, and even apply them to
webcasting. As I pointed out, there is no empirical evidence that
these rights produce any social benefit. Indeed, the US has never had
such a right and yet has a flourishing broadcast industry.

Extending the rights to webcasting, despite the manifest differences
between the economic structure and global reach of the two media, was
a jaw-dropping move with obviously bad consequences. We should be
focusing on rules about conduct, not rights over content. If signal
piracy and rebroadcasting is a problem, we should have a rule that
narrowly focuses on that conduct, prohibiting unfair business
practices by commercial competitors. The last thing we should do is
create yet another set of long lasting property rights over the content.

Copyright offices around the world admit that there is a huge problem
with =93orphan works=94 =96 copyrighted material for which the copyright
holder cannot be found. Given the absurdly long copyright term, it is
quite possible that the majority of the cultural production of the
twentieth century consists of orphan works. Because of the difficulty
of clearing copyright, those works remain locked up in the library.
Even though the copyright holder has long disappeared, or would not
mind, it is impossible to show the old movie, adapt the old book,
play the old song, put the old poem in an anthology. Many libraries
simply refuse to allow screening of movies until the copyright term
has expired; probably no one would object, but the legal risk is too
great.

Now imagine creating an entirely new layer of rights over everything
that is broadcast or webcast, on top of whatever copyrights already
cover the work. You find a copy of a movie in the library and manage,
at great expense, to work out that it is in the public domain, or to
get the copyright holder=92s permission. Perhaps the work is covered by
a Creative Commons license, granting you permission to reproduce. Not
so fast! Even after trudging through all the orphan works problems in
copyright, you would have to prove that this copy had not been made
from a broadcast or webcast. More clearance problems! More middle-
men! More empirically ungrounded state-granted monopolies! Just what
we wanted. There are even some serious free speech problems.

What if only Fox or CBS has the footage of a particular public event?
Do we let the broadcaster eviscerate the ideas of fair use,
prohibiting other networks from showing fragments so as to comment on
the events, or criticise the original coverage? The proposed treaty
text allows for fair use-like exceptions but does not require them.
Once again, we harmonise upward property rights for powerful
commercial entities, but leave to individual states the discretion
whether and how to frame of the equally crucial public interest
exceptions to those rights. Increased property rights for
broadcasters are required. The public interest in education, access,
and free speech is optional. (Among other things, most of the recent
drafts would outlaw home recording of TV and radio unless a special
exception was put into the law, state by state.)

This proposal was so bad, so empirically threadbare, so unbalanced,
that I had cherished a faint hope that the members of WIPO would
abandon it. At least, I hoped there might be a comparative study of
the nations that had previously adopted the protection and those that
had not, to see if there was any need for such a change? What was I
thinking!!? Why do we need evidence? With remarkably little public
attention, the Broadcasting Treaty train is chugging ahead strongly,
with states providing new draft proposals over the next two months
for a possible decision in September. The status of the webcasting
provision is still unclear. But the webcasters are pressing hard.
Expect another poorly reasoned proposal to rise from the ashes, with
the US playing a key role. The press seems to have missed the story.
Bizarrely, the proposal is getting more robust criticism from
industry sources, who can see how it will affect competitiveness on
the web, than from librarians and civil libertarians who ought to
appreciate better than anyone its effect on speech and cultural
heritage.

Of course, the casting treaty is a paradigmatic example of the
dysfunctions in our international deliberations on these issues; we
have the absence of evidence, the mandatory rights and optional
exceptions, the industry-capture, the indifference to harm caused by
rights-thickets. But the representatives of the United States, who
have played an ignominious role as cheerleaders for this silly
treaty, have a particular, indeed a constitutional, reason to be
ashamed.

Unlike their descendants who now work the floor at WIPO, the framers
of the US constitution had a principled, pro-competitive attitude to
intellectual property. They knew rights might be necessary, but they
worried about industry-capture and unnecessary monopoly and so they
tied congress=92s hands, restricting its power in multiple ways.

Rights have to be of limited duration. (Congress has managed to get
around that one by repeatedly extending the limit: Jefferson must be
spinning in his grave.) They can only cover original material, which
must be fixed in some material form. No rights over inventions that
are already known, or over unoriginal compilations of fact. Of
course, if the material is not within the core domain of copyright
and patent, congress may go further, as it has with trademarks.

But over the material covered by copyright, where we are dealing with
fundamental constitutional limitations, these rules reign supreme and
congress may not circumvent them by turning to another constitutional
source of power. What does this mean in practice? That is a
complicated question. There are pending legal disputes about
=93bootlegging statutes=94 and about foreign works that have been pulled
out of the public domain as a consequence of the Uruguay Round of
trade agreements.

In my view, the current drafts of the Broadcast Treaty would be
unconstitutional if implemented in American law. They create new
copyright-like rights over unoriginal material, indeed material that
is frequently copyrighted by someone else. That violates a core
restriction of the copyright clause of the constitution. They also
ignore the fixation requirement.

But forget the attempt to predict what the Supreme Court would do if
it heard the case. Are the US=92s negotiators ignoring their
constitutional responsibilities, and seeking to get a bad treaty
passed with inadequate public debate of its desirability,
constitutionality or consequences? About that there is no doubt at
all. Shame on them. Jefferson and Madison would not approve. Should we?

James Boyle is William Neal Reynolds Professor of Law at Duke Law
School, co-founder of the Center for the Study of the Public Domain
and the author of A Manifesto on WIPO. His most recent work is Bound
By Law, a =93graphic novel=94 on the effects of intellectual property on
documentary film.


---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040

"If everyone thinks the same: No one thinks."  Bill Walton