[x-pubpol] Harold Feld Ars Technica op-ed on ACTA,TPP, and USTR

Sun Jul 8 12:52:45 PDT 2012

http://arstechnica.com/tech-policy/2012/07/op-ed-eus-rejection-of-acta-subtly-changed-trade-law-landscape/

MPAA/RIAA lose big as US backs copyright "limitations"

Well, it's been a fun week on the international trade agreement front.
Monday began yet another negotiating round for the Trans-Pacific
Partnership<http://tppinfo.org/>(TPP)
trade agreement, this time in San Diego. To the amazement of everyone, the US
Trade Representative (USTR)
announced<http://www.ustr.gov/about-us/press-office/blog/2012/july/ustr-introduces-new-copyright-exceptions-limitations-provision>
on
July 3 it would now include a provision in the intellectual property (IP)
chapter recognizing the importance of "limitations and exceptions" to
copyright and embracing the international 3-part test for what constitutes
suitable limitations and exceptions. (For those not familiar with this term
of art, "limitations and exceptions" are things like Fair
Use<http://www.copyright.gov/fls/fl102.html>
 and First Sale Doctrine <http://en.wikipedia.org/wiki/First-sale_doctrine> in
the United States. As the name implies, limitations and exceptions to
copyright limit the rights of the copyright holder and create exceptions to
the general rule against copying without permission.)

It is difficult to convey to people who don’t routinely deal with USTR and
the copyright maximalists that dominate trade negotiations just how
stunning a turn around this is, given the fairly well-established
limitations and exceptions in U.S. law and the fact that—as USTR
acknowledged in its announcement—the three-part test for what constitutes
suitable limitations and exceptions is already well-established and
incorporated into international law. Indeed, given all this, the incredible
thing is that this is, as USTR acknowledges, the *first* time USTR has
included any explicit reference to limitations and exceptions. In addition,
as my colleague Rashmi Rangnath points out over at the Public
Knowledge blog<http://www.publicknowledge.org/blog/possible-inclusion-limitations-exceptions-tpp>,
while this is a positive step for USTR, we have not seen the new draft TPP
text, so the actual implementation of these principles in the TPP draft
could still be a major step backward from existing US law.

Let me use an analogy to explain why this is, nevertheless, a big deal. For
USTR to publicly embrace limitations and exceptions as "an important part
of the copyright ecosystem" is the equivalent of The Pope saying: "in some
cases, birth control is a good thing because it allows married couples to
have sex without procreation, deepening their emotional bond with one
another."
What happened? ACTA

So even if this is just public posturing, it marks a dramatic departure
from the USTR’s traditional position—which is to avoid the entire subject
of limitations and exceptions as much as possible while implying, without
actually saying, that the very existence of the concept of "limitations and
exceptions to copyright" makes the universe a less perfect place.

Such things do not happen by chance. [US Trade Representative] Ron Kirk did
not wake up Tuesday morning July 3 and say, "I had a dream of a world with
no limitations and exceptions to copyright and learned a Very Important
Lesson In Life." Mind you, I am not questioning the sincerity of USTR; this
is about shaping policy, not building a relationship or going on a date. I
am totally down with people doing the right thing for the wrong reason. But
success also depends on understanding why USTR felt compelled to change
their public position.

The next day, on July 4, we got what I consider the most likely
explanation. The European Parliament utterly rejected
<http://www.zdnet.com/acta-rejected-by-europe-leaving-copyright-treaty-near-dead-7000000255/>
the Anti-Counterfeiting Trade Agreement
(ACTA)<http://www.publicknowledge.org/issues/acta>.
And while supporters within the European Commission may still plot to keep
it alive<http://www.slashgear.com/acta-regulations-may-still-live-hints-ec-chief-04237089/>,
the short term result is that the insistence on serving the interests of
the Motion Picture Association of America (MPAA) and the Recording Industry
Association of America (RIAA) by trying to force copyright maximalism on
other countries<http://www.publicknowledge.org/blog/tpp-and-policy-laundering>
killed
the treaty after about six years of negotiation. That’s a lot of wasted
time and effort.

Worse, many US industries outside of Hollywood and the recording industry
wanted ACTA to actually fight real counterfeiting. So not only did everyone
end up wasting time on a treaty no one wants to sign anymore, businesses
hoping to use the agreement to fight the folks making warehouses full of
fake Rolex watches and such what are totally out of luck. And why? Because
the MPAA/RIAA insisted ACTA needed lots of crazy stuff on intellectual
property, and no one wanted to say no to the MPAA/RIAA. Oh, if only some
wise public interest advocate had warned them that including all this crazy
stuff around IP in ACTA put getting a real trade agreement to address real
counterfeiting at risk! Oh wait...<http://www.youtube.com/watch?v=whkhglDWm-Y>

True, ACTA might have slipped through without much public notice or
discussion, like nearly every other international trade agreement, but for
the consciousness raising exercise that was the fight against
SOPA<http://tales-of-the-sausage-factory.wetmachine.com/sopablackout-and-the-internet-spring/>.
Europeans and others who thought copyright maximalism was a uniquely
American disease suddenly took an interest in what their own governments
were doing and experienced a collective freak
out<http://www.huffingtonpost.com/harold-feld/europes-acta-freak-out-ho_b_1284198.html>.
Critically, folks got quite upset that ACTA would apparently require them
to change their copyright laws in ways they regarded as inimical to
recognized limitations and exceptions and that therefore violated
fundamental human rights
principles<http://en.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement#Threats_to_freedom_and_fundamental_human_rights>.
The usual blandishments and arrogant dismissals of these criticisms by ACTA
supporters as ill-informed, driven by pirates and profiteers such as
Google, and necessary to protect poor starving artists failed to soothe the
opposition. To the contrary, it only aroused further fury. As a result, the
EU vote rejecting ACTA was one of the most lopsided votes in its history
(478-39).
USTR gets a clue

All of this, combined with new objections to the TPP process by a growing
number of Congressmen<http://tales-of-the-sausage-factory.wetmachine.com/ustr-manages-to-make-the-itu-look-good-which-will-bite-our-rear-ends-in-dubai/>,
has apparently prompted USTR to get a clue. As ACTA’s resounding rejection
proves, the old playbook of whittling away limitations and exceptions to
copyright both here and abroad by refusing to acknowledge their existence
or importance just doesn’t cut it in a post-SOPA world. At a minimum,
international agreements must at least pay lip service to the vital role of
limitations and exceptions in "the copyright ecosystem." (Of course, the
actual language of the treaty might still undermine limitations and
exceptions in practice while pretending to acknowledge their importance on
the surface.)

In addition, the recognized international 3-part test USTR refers to is
pretty vague, since it constitutes the minimum standard that all countries
must acknowledge (even if they’d rather not) under accepted norms of
international law. So a treaty provision can be totally compliant with the
international 3-part test and still represent a major step forward for
copyright maximalism by reducing existing limitations and exceptions as
incorporated in the law of the United States and many other countries.

Mind you, despite the fact that this acknowledgement does not give up much
practical ground, MPAA and RIAA are reportedly
furious<http://www.techdirt.com/articles/20120703/12112119569/ustrs-surprise-turnaround-now-advocating-limitations-exceptions-to-copyright.shtml>
with
the announcement and latest draft of the TPP IP chapter. Since selected
industry representatives get full access to the proposed
text<http://www.techdirt.com/articles/20120622/23220319444/ustr-gives-mpaa-full-online-access-to-tpp-text-still-wont-share-with-senate-staffers.shtml>,
it may well be that the new text contains some real policy shifts as well
as a change in rhetoric. But I suspect the fury of the MPAA and RIAA comes
from the fact that they appear to believe that Wikipedia and Google are
responsible for all
this<http://tales-of-the-sausage-factory.wetmachine.com/mr-shermans-magical-thinking/>,
and no real world evidence will tell them otherwise. As a result, they
regard even a rhetorical shift by USTR acknowledging the importance of
limitations and exceptions as a betrayal and as caving in to "Big
Knowledge" bullies like Wikipedia.

Also, even if USTR turns out to be merely paying lip service to the
concept, MPAA/RIAA have definitely lost a major round here. To have
limitations and exceptions openly in the room and acknowledged as a
critical element in any trade agreement rather than treated as something
questionable to be ignored changes the tenor of negotiations and makes it
harder for the IP Mafia to push for unilateral expansion of copyright at
the continuing expense of long-established limitations and exceptions. For
a lobby unused to losing, this change in position from a previously
rock-solid ally—no matter how politically necessary in the
short-term—represents another galling lose in a year marked by several
unanticipated reversals.
How should opponents of copyright maximalism respond?

I have many rules of advocacy. One is: "Always make it easy for other
people to agree with you." This is doubly true when I believe the other
side is making the concession grudgingly. So the first response is to thank
USTR and acknowledge its significant shift in position. The second step is
to help USTR move down the path of wisdom by refining the text—aware that
the IP Mafia will do everything in its power to reverse course and shift
USTR back to its traditional position.

Keep in mind that the majority of people working for USTR don’t *like* to
waste effort any more than the rest of us, and the realization that a
significant portion of the rest of the world may reject whatever final deal
negotiators agree to if it goes too far on copyright is no doubt causing
many to rethink their positions. In addition, USTR has many other
industries it services besides Hollywood. They need trade agreements—and
USTR is required to negotiate these. The Hollywood crazy train on
intellectual property enforcement now very visibly threatens the ability to
get future trade agreements ratified by Congress or by foreign governments.
The manufacturing sector, the retail sector, and others that have until now
tolerated Hollywood’s demands in the interest of maintaining a united
industry front will not sacrifice their own international trade interests
for the Entertainment industry—and will push USTR to negotiate agreements
that actually have a chance at ratification.

All this creates a positive opportunity going forward. For the first time,
civil society has something USTR needs—an ability to legitimize the treaty
text. The global lobbying muscle of the MPAA/RIAA is no longer enough.
While that does not make civil society an equal in the negotiations by any
stretch of the imagination, it is a much stronger bargaining position than
ever before.

This is not to say that people long convinced of the rightness of copyright
maximalism (which rejects limitations and exceptions) will change their
minds on the merits. Although this may come too, in time. But policy is not
about getting people to do the right thing for the right reasons, it is
about getting them to do the right thing for their own reasons. In this
case, USTR has excellent reasons to shift position and bring civil society
more strongly into the mix. The job for civil society is continuing to
enhance the value of what we offer by keeping the pressure on for
substantive language that genuinely embraces existing limitations and
exceptions. MPAA/RIAA have excellent incentive for this as well, although I
expect them to take much longer to recognize this.

All in all, 2012 continues to be a landmark year for intellectual property
policy. The anti-SOPA campaign has genuinely changed the way in which IP
policy gets negotiated, rather than fading away as memory of the
legislation recedes. No, that doesn’t mean everything is now hunky-dory and
we now go home. But did anyone ever think it would? What the ACTA defeat in
Europe and the pressure on USTR to shift position show is that the campaign
to prevent the further erosion of free expression in the name of copyright
maximalism has staying power. It now falls to all of us to ensure that we
keep moving things in the right direction.

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