Much of what we hear about the globalization of copyright law around the world does not favor users. The dominant trend of lengthening terms, increasing criminalization and “deterrent” penalties and expanding third party liability has the intent and effect of privatizing more and more of the public domain. But one trend moves in the opposite the direction – the recent shift toward a global expansion of fair use.
Last summer the World Intellectual Property Organization (WIPO) finalized negotiations for the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. The treaty was negotiated through a far more open, transparent process than current and recent plurilateral trade negotiations involving the U.S. government (ACTA, TPP, TTIP). This was the focus of my blog on the WIPO Treaty, published originally on June 26 and reposted below for Copyright Week.
Yesterday it was announced that negotiators had reached “miracle” conclusion for a new international treaty for the visually impaired. This agreement was reached under conditions of unprecedented (although not always perfect) transparency and public participation. And according to initial stakeholder opinions voiced from across the spectrum – the end outcome is nearly universally considered to be “balanced” – a key objective of modern intellectual property policy. The process and substantive outcome lies in sharp contrast to the conditions of intense secrecy that surrounded the last multilateral agreement on IP to be concluded – the much maligned Anti-counterfeiting Trade Agreement (ACTA) , as well as the most important one currently ongoing – the Trans Pacific Partnership (TPP). (See generally Jeremy Malcolm, Public Interest Representation in Global IP Policy Institutions). And thus it is an appropriate time to question what international IP negotiators in the TPP and elsewhere should learn from the success of WIPO and the failure of ACTA.
The elements of WIPO’s transparency processes are varied. they start with ongoing releases of draft negotiating documents dating back to the beginning of the process. ACTA was marked by releases of negotiating texts only through leaks, until the EU parliament demanded increased transparency – after which point negotiators released four public texts in the final 12 months. The TPP negotiators claim they will complete their treaty this October (which no one believes). There has not been a single public release of text, thus failing to live up to even the meager standard for public releases that defined ACTA. The leaked texts of TPP that we have show a secret agreement to keep the texts of the proposals being considered until four years AFTER the conclusion of the agreement. Thus, even subsequent interpreters of the TPP may be prevented from seeing its legislative history.
WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear (but not be physically present in) break rooms where negotiators were working on specific issues. ACTA was not subject to any observation of negotiating rooms by non-parties. TPP negotiators even rejected a request by a U.S. Congressman to observe a negotiation.
WIPO set up a system of open and transparent structured stakeholder input, including published reports and summaries of stakeholder working groups composed of commercial and non-commercial interests alike. ACTA was, and TPP is, informed by structured input from multinational corporations who receive secret drafts of texts and submit reports to the United States Trade Representative. There are no consumer representatives among these advisers and none of their reports are public.
Transparency in WIPO continued through the final days of intense, often all night, negotiations in the final diplomatic conference. When negotiators reached a new breakthrough on the language concerning the controversial “3-step test” limiting uses of limitations and exceptions in national laws, that news was released to the public (enabling public news stories on it), along with the draft text of the agreement. There are now reports that a majority of the chapters of the TPP are concluded, and perhaps a majority of the articles in the IP section – but the public has no public text to see what those agreements might be.
The conclusion of the WIPO VIP text was marked by public statements by stakeholders from industry, disability advocates and civil society alike that the product is “balanced.” The conclusion of ACTA was followed by industry campaigns to tout the benefits of the agreement that met the great majority of their requests, while hundreds of thousands of people marched across Europe in civil society led protests of its secret law making and unbalanced product. The controversy surrounding both the process and product led democratically elected parliaments to overwhelmingly reject the accord, both in the full EU parliament, and in an Australian committee. ACTA is by all accounts dead on arrival.
What text we have from the TPP displays the most unbalanced set of IP provisions ever offered in an international agreement. It is quite literally an industry wish list on a host of issues. TPP is facing mounting resistance in its member states,including powerful voices in the U.S. criticizing its lack of transparency. Senator Elizabeth Warren released a hard hitting critique last week, summarizing what many civil society groups have been arguing for years:
“I have heard the argument that transparency would undermine the Trade Representative’s policy to complete the trade agreement because public opposition would be significant. In other words, if people knew what was going on, they would stop it. This argument is exactly backwards. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States.”
If ACTA is any indication, the resistance to TPP may not hit its crescendo until the agreement is finalized and it is too late to address the public’s concerns. If TPP does not open its doors to the public, taking some lessons from WIPO, then the best thing that can happen to it from the perspective of the cause of transparency in international law making is that it fails too. Maybe then intellectual property negotiators the world over will learn the lesson from the WIPO VIP that to achieve balanced law making products that will be readily accepted by citizens, the process must start and continue throughout with openness to input of those citizens.
Creative Commons, the global network of non-profit organizations best known for their promotion of standard-form copyright licenses that allow creators to voluntarily waive certain exclusive rights and share their content more easily with others, has thrown its weight into the global push to expand users rights in copyright reform. Last week, the organization, through Creative Commons Headquarters and blessed by its Board of Directors, released a statement endorsing “ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.”
The statement signals that the CC network play a larger role in countering the trend toward “maximalism” in copyright reform around the world – that is, the promotion of change in copyright laws solely in the direction of expanding owners rights without correlative increases in the rights of users. The danger of this path was signaled in the 2011 Washington Declaration on Intellectual Property and the Public Interest – an influential roadmap for progressive IP policy reform in the new millennium. The Washington Declaration recounted:
The last 25 years have seen an unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders. . . . Over the same period, broad coalitions of civil society groups and developing country governments have emerged to promote more balanced approaches to intellectual property protection. These coalitions have supported new initiatives to promote innovation and creativity, taking advantage of the opportunities offered by new technologies. So far, however, neither the substantial risks of intellectual property maximalism, nor the benefits of more open approaches, are adequately understood by most policy makers or citizens. This must change if the notion of a public interest distinct from the dominant private interest is to be maintained.
Specifically on the issue of Users Rights, the Washington Declaration described:
Limitations and exceptions are positive enabling doctrines that function to ensure that intellectual property law fulfills its ultimate purpose of promoting essential aspects of the public interest. By limiting the private right, limitations and exceptions enable the public to engage in a wide range of socially beneficial uses of information otherwise covered by intellectual property rights — which in turn contribute directly to new innovation and economic development. Limitations and exceptions are woven into the fabric of intellectual property law not only as specific exceptional doctrines (“fair use” or “fair dealing,” “specific exemptions,” etc.), but also as structural restrictions on the scope of rights, such as provisions for compulsory licensing of patents for needed medicines. Despite their importance in countering expansive trends in intellectual property, limitations and exceptions are under threat, especially from efforts to recast international law as a constraint on the exercise of flexibilities in domestic legislation. The signatories strongly support efforts to defend and expand as appropriate the operation of limitations and exceptions in the years to come.
Many Creative Commons affiliates were part of the drafting of the Washington Declaration and are actively engaged in copyright reform debates around the world. But has CC’s Tim Vollmer described in a submission to the U.S. Copyright Office:
Creative Commons has always been slightly reticent about its role in the copyright debate, even though many of its greatest supporters are vocal in the copyright reform movement. Today, we’re adopting an unambiguous position: open licensing is a fantastic tool, but it’s not a substitute for substantive improvements in copyright law worldwide.
The statement grew out of a grass roots mobilization of Creative Commons Global Affiliates, which operate in over 80 countries around the world. The request was formally made by affiliates at the Creative Commons Global Summit 2013. That request, in turn, followed from the participation of many affiliate leaders in advocating for increased users rights in copyright reform debates domestically and internationally, including through participation in the Copyright Users Rights Track of the annual Global Congress on Intellectual Property and the Public Interest. At the Second Global Congress on Intellectual Property and the Public Interest in Rio, December 2012, a meeting of CC Affiliates discussed how they often participate in copyright reform debates as representatives of organizations other than their local Creative Commons affiliate. The affiliates reported on widespread ambiguity about whether affiliates are to act as stewards only of the CC licensing tools, or rather can act as stewards of the commons of creativity that CC licenses are but one means to promote.
The ambiguity among affiliates follows in part from some public statements by CC’s founder, Larry Lessig, who once referred to the U.S. fair use doctrine as “simply mean[ing] the right to hire a lawyer to defend your right to create,”(Lessig 2004, p. 141–142), and later as “a clumsy and expensive legal defense.” But Lessig’s more recent presentations on copyright reform have embraced fair use specifically, and users rights more generally, as a key element of a needed global copyright reform agenda. Indeed, in his presentation at the CC Global Summit in Argentina, given while affiliates were drafting their request for a public statement, Lessig explained the value of the U.S. legal system – including in Supreme Court opinions – embracing fair use as a “right” of users. And he then noted a key problem in the rest of the world – which CC licenses cannot fix – is the lack of similarly expansive users’ rights.
It is these differences in laws [that are the problem]. The rights here are different. The freedoms here are different. And my view is they shouldn’t be different. This cultural form of expression – this creativity through the capacity to remix – should be a general right. A general human right.
Lessig also agreed with a key point that found its way into the statement: “Creative Commons licenses are not a solution to this problem,” he explained. “In the rest of the world, licenses cannot provide the freedom that the culture should recognize. . . the law must change.” (25:12). “CC is not the solution… The problem requires real change in real law.” (27:17).
Similarly, the CC statement embraces licenses as a means to a larger end that Creative Commons should be pursuing.
[T]he CC vision — universal access to research and education and full participation in culture — will not be realized through licensing alone.” It rejects the suggestion that “the very success of CC licenses means that copyright reform is unnecessary — that the licenses solve any problems for users that might otherwise exist. This is certainly not the case. . . CC licenses are a patch, not a fix, for the problems of the copyright system. . . . However well-crafted a public licensing model may be, it can never fully achieve what a change in the law would do, which means that law reform remains a pressing topic. The public would benefit from more extensive rights to use the full body of human culture and knowledge for the public benefit. CC licenses are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.
Many of the CC Affiliates who were leaders in the mobilization that created the impetus for the CC Copyright Reform statement will be meeting to chart strategy and build infrastructure for the work ahead at the Third Global Congress on Intellectual Property and the Public Interest in Cape Town, South Africa in December 2013.