[Random-bits] James Boyle in FT on WIPO Treaty: Constitutional circumvention

[James Love]

Jamie Boyle has written another very strong critique of the proposed =20
WIPO treaty on Broadcasting.   Jamie

* This proposal was so bad, so empirically threadbare, so unbalanced, =20=

that I had cherished a faint hope that the members of WIPO would =20
abandon it. At least, I hoped there might be a comparative study of =20
the nations that had previously adopted the protection and those that =20=

had not, to see if there was any need for such a change? What was I =20
thinking!!? Why do we need evidence? With remarkably little public =20
attention, the Broadcasting Treaty train is chugging ahead strongly, =20
with states providing new draft proposals over the next two months =20
for a possible decision in September.

* We should be focusing on rules about conduct, not rights over =20
content. If signal piracy and rebroadcasting is a problem, we should =20
have a rule that narrowly focuses on that conduct, prohibiting unfair =20=

business practices by commercial competitors. The last thing we =20
should do is create yet another set of long lasting property rights =20
over the content.

* Of course, the casting treaty is a paradigmatic example of the =20
dysfunctions in our international deliberations on these issues; we =20
have the absence of evidence, the mandatory rights and optional =20
exceptions, the industry-capture, the indifference to harm caused by =20
rights-thickets. But the representatives of the United States, who =20
have played an ignominious role as cheerleaders for this silly =20
treaty, have a particular, indeed a constitutional, reason to be =20
ashamed.

* the current drafts of the Broadcast Treaty would be =20
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.
	 =09
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 =20
being debated in the World Intellectual Property Organization (WIPO). =20=

The proposal was to extend the length of an existing set of =20
intellectual property rights for broadcasters, and even apply them to =20=

webcasting. As I pointed out, there is no empirical evidence that =20
these rights produce any social benefit. Indeed, the US has never had =20=

such a right and yet has a flourishing broadcast industry.

Extending the rights to webcasting, despite the manifest differences =20
between the economic structure and global reach of the two media, was =20=

a jaw-dropping move with obviously bad consequences. We should be =20
focusing on rules about conduct, not rights over content. If signal =20
piracy and rebroadcasting is a problem, we should have a rule that =20
narrowly focuses on that conduct, prohibiting unfair business =20
practices by commercial competitors. The last thing we should do is =20
create yet another set of long lasting property rights over the content.

Copyright offices around the world admit that there is a huge problem =20=

with =93orphan works=94 =96 copyrighted material for which the copyright =
=20
holder cannot be found. Given the absurdly long copyright term, it is =20=

quite possible that the majority of the cultural production of the =20
twentieth century consists of orphan works. Because of the difficulty =20=

of clearing copyright, those works remain locked up in the library. =20
Even though the copyright holder has long disappeared, or would not =20
mind, it is impossible to show the old movie, adapt the old book, =20
play the old song, put the old poem in an anthology. Many libraries =20
simply refuse to allow screening of movies until the copyright term =20
has expired; probably no one would object, but the legal risk is too =20
great.

Now imagine creating an entirely new layer of rights over everything =20
that is broadcast or webcast, on top of whatever copyrights already =20
cover the work. You find a copy of a movie in the library and manage, =20=

at great expense, to work out that it is in the public domain, or to =20
get the copyright holder=92s permission. Perhaps the work is covered by =20=

a Creative Commons license, granting you permission to reproduce. Not =20=

so fast! Even after trudging through all the orphan works problems in =20=

copyright, you would have to prove that this copy had not been made =20
from a broadcast or webcast. More clearance problems! More middle-=20
men! More empirically ungrounded state-granted monopolies! Just what =20
we wanted. There are even some serious free speech problems.

What if only Fox or CBS has the footage of a particular public event? =20=

Do we let the broadcaster eviscerate the ideas of fair use, =20
prohibiting other networks from showing fragments so as to comment on =20=

the events, or criticise the original coverage? The proposed treaty =20
text allows for fair use-like exceptions but does not require them. =20
Once again, we harmonise upward property rights for powerful =20
commercial entities, but leave to individual states the discretion =20
whether and how to frame of the equally crucial public interest =20
exceptions to those rights. Increased property rights for =20
broadcasters are required. The public interest in education, access, =20
and free speech is optional. (Among other things, most of the recent =20
drafts would outlaw home recording of TV and radio unless a special =20
exception was put into the law, state by state.)

This proposal was so bad, so empirically threadbare, so unbalanced, =20
that I had cherished a faint hope that the members of WIPO would =20
abandon it. At least, I hoped there might be a comparative study of =20
the nations that had previously adopted the protection and those that =20=

had not, to see if there was any need for such a change? What was I =20
thinking!!? Why do we need evidence? With remarkably little public =20
attention, the Broadcasting Treaty train is chugging ahead strongly, =20
with states providing new draft proposals over the next two months =20
for a possible decision in September. The status of the webcasting =20
provision is still unclear. But the webcasters are pressing hard. =20
Expect another poorly reasoned proposal to rise from the ashes, with =20
the US playing a key role. The press seems to have missed the story. =20
Bizarrely, the proposal is getting more robust criticism from =20
industry sources, who can see how it will affect competitiveness on =20
the web, than from librarians and civil libertarians who ought to =20
appreciate better than anyone its effect on speech and cultural =20
heritage.

Of course, the casting treaty is a paradigmatic example of the =20
dysfunctions in our international deliberations on these issues; we =20
have the absence of evidence, the mandatory rights and optional =20
exceptions, the industry-capture, the indifference to harm caused by =20
rights-thickets. But the representatives of the United States, who =20
have played an ignominious role as cheerleaders for this silly =20
treaty, have a particular, indeed a constitutional, reason to be =20
ashamed.

Unlike their descendants who now work the floor at WIPO, the framers =20
of the US constitution had a principled, pro-competitive attitude to =20
intellectual property. They knew rights might be necessary, but they =20
worried about industry-capture and unnecessary monopoly and so they =20
tied congress=92s hands, restricting its power in multiple ways.

Rights have to be of limited duration. (Congress has managed to get =20
around that one by repeatedly extending the limit: Jefferson must be =20
spinning in his grave.) They can only cover original material, which =20
must be fixed in some material form. No rights over inventions that =20
are already known, or over unoriginal compilations of fact. Of =20
course, if the material is not within the core domain of copyright =20
and patent, congress may go further, as it has with trademarks.

But over the material covered by copyright, where we are dealing with =20=

fundamental constitutional limitations, these rules reign supreme and =20=

congress may not circumvent them by turning to another constitutional =20=

source of power. What does this mean in practice? That is a =20
complicated question. There are pending legal disputes about =20
=93bootlegging statutes=94 and about foreign works that have been pulled =
=20
out of the public domain as a consequence of the Uruguay Round of =20
trade agreements.

In my view, the current drafts of the Broadcast Treaty would be =20
unconstitutional if implemented in American law. They create new =20
copyright-like rights over unoriginal material, indeed material that =20
is frequently copyrighted by someone else. That violates a core =20
restriction of the copyright clause of the constitution. They also =20
ignore the fixation requirement.

But forget the attempt to predict what the Supreme Court would do if =20
it heard the case. Are the US=92s negotiators ignoring their =20
constitutional responsibilities, and seeking to get a bad treaty =20
passed with inadequate public debate of its desirability, =20
constitutionality or consequences? About that there is no doubt at =20
all. Shame on them. Jefferson and Madison would not approve. Should we?

James Boyle is William Neal Reynolds Professor of Law at Duke Law =20
School, co-founder of the Center for the Study of the Public Domain =20
and the author of A Manifesto on WIPO. His most recent work is Bound =20
By Law, a =93graphic novel=94 on the effects of intellectual property on =
=20
documentary film.


---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org / =20
tel. +1.202.332.2670 / mobile +1.202.361.3040

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