Policy Blog Entries by Rashmi Rangnath

A balanced copyright regime that respects the rights of creators and users is vital for innovation and advancement of learning. The carefully balanced regime that has existed in the U.S. for the past 200 years has allowed libraries to lend books, teachers to educate their students, and innovators to bring products such as the VCR, the TiVO, and the Sling Box to the market. Sadly, agreements such as the Anti-Counterfeiting Trade Agreement and several Free Trade Agreements show that the U.S. has given short shrift to this balance in pursuit of copyright policy abroad. Another process that shapes intellectual property (IP) policy abroad, called the Special 301, is currently underway in the Office of the United States Trade Representative (U.S.T.R.).

Under the Special 301 process the U.S.T.R. seeks input from U.S. copyright, trademark, and patent owners about whether policies and practices in foreign countries deny them adequate IP protection.

The 19th session of the Standing Committee on Copyrights and Related Rights (SCCR) concluded this past Friday. Since my last post, the SCCR discussed the treaty for protection of audio visual performers (AV Treaty) and also a treaty for protection of broadcasting organizations.

The AV Treaty proposes to provide copyright protection to actors and other performers in movies and other audiovisual works. An effort to conclude the AV treaty had failed in 2000, as countries failed to reach agreement on the issue of how rights would be transferred from performers to producers. The issue is significant because, a motion picture involves the creative input of a large number of people and requires rights to be aggregated in one entity, usually the producer, to enable licensing rights to it. The law with respect to transfer of rights varies in different jurisdictions.

In a significant shift from its past position, the U.S. government yesterday expressed its willingness to consider a treaty on limitations and exceptions to copyright for the benefit of the blind, visually impaired, and other reading disabled persons as one of the options to address problems faced by this community. The statement was made on the second day of deliberations at the Standing Committee on Copyrights and Related Rights (SCCR), of WIPO at its ongoing 19th session. The delegations of Brazil, Ecuador, and Paraguay had introduced a treaty proposal in May this year at the SCCR’s 18th session. As I reported then, the U.S. government had avoided taking any position on the treaty, contending that copyright was just one hurdle facing the blind and there were many other issues that needed to be solved.

The Daily Finance is reporting on a newly leaked memo from the European Union analyzing and critiquing ACTA’s Internet chapter.

According to the memo, ACTA’s Internet chapter would have provisions dealing with secondary liability, ISPs safe harbors from copyright liability, and DMCA style civil and criminal penalties for breaking digital locks. The memo points to how provisions in this chapter would conflict with European Union (EU) law and go beyond the requirements of existing international treaties. For instance, the secondary liability provisions would require ACTA member countries to enact laws against contributory copyright infringement, a legal concept that does not exist in EU law and in the laws of some member countries.

Public Knowledge and other public interest organizations have been calling for transparency in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations since the United States Trade Representative (USTR) started the negotiation process. The Freedom of Information Act (FOIA) requests file by PK, EFF, and KEI are a testimony to this fact. Continuing this saga, PK and 15 other public interest, library, artist advocacy, and civil rights organizations sent a letter to the President yesterday, urging him to keep his promise of making government more open, transparent, and participatory and release the ACTA text.

Copyright owners have often used the DMCA’s notice and take down procedure to silence criticism instead of preventing copyright infringement. A recent DMCA take down involving the group Yes Men is yet another example of this phenomenon. On October 22, a website created by the Yes Men which parodied the U.S. Chamber of Commerce’s stance on a climate change bill was taken down pursuant to a DMCA notice.

The Yes Men is a group that exposes corporate greed by posing as corporate representatives and pulling off the “world’s most outrageous pranks.” Their most recent prank that caused the ire of the Chamber involved the Kerry-Boxer climate change bill. The Chamber opposes the bill even though its decision to do so has been controversial.

As many of you know, PK and its friends have been fighting to lift the veil of secrecy that shrouds the Anti-Counterfeiting Trade Agreement (ACTA) negotiating process. The lack of public disclosure has meant that consumer advocates and the general public are left to plead their case in a near vacuum, without the ability to review and consider the documents and positions that the U.S. Trade Representative (USTR) is advancing on our behalf. Meanwhile, representatives of intellectual property (IP) owners belong to a trade advisory committee called ITAC 15, which holds confidential meetings. Through their membership on ITAC 15, IP owners may be able to influence provisions in ACTA.

The 18th session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) concluded last week. The most substantive discussions centered around: 1) a treaty for limitations and exceptions to copyright to facilitate access to works by the blind, visually impaired, and other reading disabled and 2) a proposal to consider possible norms for limitations and exceptions to copyright. I have written about some of these discussions in my previous post.

In addition, the Committee also discussed proposed treaties for protection of broadcasting organizations and audiovisual performers. Discussions concerning the broadcasting treaty during this session mirrored that of the last session of the SCCR which Sherwin has reported here.

Compliance with international treaty obligations has often been used as a justification to erode user rights granted by copyright law, the most famous example being the enactment of the DMCA. So when international organizations embark upon the business of treaty making, we in the public interest community pay attention. One such organization, the World Intellectual Property Organization (WIPO) is discussing several copyright issues in its ongoing 18th session. The session started yesterday with the election of the Chair and the adoption of the agenda. Up for discussion this time are two positive issues: limitations and exceptions to copyright; and a treaty for the blind, visually impaired, and other reading disabled.

It’s that time of year again: time to nominate individuals for our annual IP3 awards. As you may know, each year, Public Knowledge selects three individuals to receive the IP3 Award. These winners are people who have advanced the public interest in each of the three “IPs:” Intellectual Property, Internet Protocol, and Information Policy. Previous IP3 winners have included everyone from EFF lawyer Fred von Lohmann and Virginia Congressman Rick Boucher to the band OK Go and Gnarls Barkley member DJ Danger Mouse. Be sure to nominate your picks by June 22nd and look out for list of winners in October.

To submit a nomination for the IP3 Awards, email your picks to IP3nominees@publicknowledge.org.