Copyright behind closed doors

ustr-logoPublic Knowledge and the Electronic Frontier Foundation announced earlier this week that they are “reluctantly” dropping their lawsuit against the U.S. Trade Representative, which sought information on the Anti-Counterfeiting Trade Agreement (ACTA) being secretly negotiated by the U.S. and a dozen other countries. The public-interest groups made the decision to withdraw the litigation after the Obama Administration informed the court that it intends to defend the Bush Administration’s claims of national security in refusing to turn over documents on the treaty.

“Federal judges have very little discretion to overrule Executive Branch decisions to classify information on ‘national security’ grounds,” EFF said in a press release. “Rather than pursuing a lawsuit with little chance of forcing the disclosure of key ACTA documents, EFF and Public Knowledge will devote their efforts to advocating for consumer representation on the U.S. Industry Trade Advisory Committee on IP, the creation of a civil society trade advisory committee, and greater government transparency about what ACTA means for citizens.”

Good luck with that.

Apart from giving the lie to Barack Obama’s increasingly doubtful promise to run an open and transparent administration, the continued secrecy around ACTA is of a piece with what seems to be a growing trend among rich countries to turn the debate on global IP issues into a private conversation among themselves, even to the point of undermining the global institution rich countries originally created to deal with global IP issues: the World Intellectual Property Organization.

ACTA, after all, is intended to establish standards for cross-border IP enforcement, precisely the sort of thing WIPO was set up to do. The problem with WIPO, however, from the point of view of the rich countries, is that it’s a UN agency, and the UN is full of all those annoying little “developing” and “emerging” countries whose IP laws and enforcement standards historically were not as responsive to the corporate interests of rich countries but that nevertheless demand a say in developing global rules.

An excess of democracy, you might call it.

In fact, the rich countries all-but do call it that.wipo

“We’ve been under tremendous pressure from developing countries to set [minimum] requirements for limitations and exceptions” to copyright, Michael Keplinger, an American who serves as deputy director general of WIPO complained at the World Copyright Summit in Washington, DC earlier this month. “Developed countries, by and large, have good systems of exceptions and limitations in their laws [e.g. fair use, the first-sale doctrine]. Many developing countries lack those limitations in their laws and say they are looking to WIPO for guidance.”

One reason many of those developing countries don’t have such limitations and exceptions is that they modeled their laws after the WIPO Copyright Treaty, which doesn’t have much to say on those issues. And they’re now agitating for a new treaty that would set global standards for limits and exceptions to copyright.

“There are many rights holders who fear that a new treaty on mandatory limitations and exceptions could create piracy havens in developing countries,” Keplinger noted.

“Anyone who is familiar with discussions in WIPO knows they often resemble the discussion between Gary and David,” added Microsoft attorney Susan Mann, referring to the often-heated debate between Consumer Electronics Association head Gary Shapiro and National Music Publishers Associaton CEO David Israelite featured earlier in the conference.

What to do? Take your marbles and go home, and then invite a few friends over for a private game.

“What I believe we need is a Davos for copyright, where you could have invited participants” offered Eduardo Bautista, president of the Spanish performance rights society SGAE, referring to the  global economic forum held in Davos, Switzerland each year and frequented by finance ministers, billionaires and movie stars.

The clear implication was that You Know Who would not be invited to participate.

Feargal Sharkey, head of UK Music (and former lead singer of  the great Irish punk band of the early 1980s, The Undertones), helpfully piped up–perhaps prematurely–that the British government was is internal discussions about creating just such an affair, perhaps even funding it as the Swiss government does the Davos conference.

“I’m heading back to the UK straghtaway after the conference and I can mention your proposal to the government it you’d like,” Sharkey told Bautista.

What we have, then, is a growing effort to privatize the discussion of global copyright issues in the hands of a small number of developed countries that are home to large and politically influential copyright industries. The opinions of those whose interest in intellectual property is primarily that of a user are not to be considered.

I understand the economic logic of the developed countries’ position. And I recognize that democracy is hard and often frustrating work.  But I also wonder if the privatization movement won’t end up sacrificing legitimacy for the sake of efficiency.