Cutting Copyright's Red Tape

One other thing: John Degen’s one-sided opinion piece (is that redundant?) inadvertently highlights the absolutely vital need for Canada’s Copyright Act to be simplified so that anybody can understand it.

As Degen points out, in the absence of a blanket licence, however arbitrarily applied, universities, professors and students have to deal with the letter of the law of the Copyright Act. That isn’t easy. I’ve talked about this with a couple of university prof friends, one of whom actually studies copyright policy, and they’re both at a loss to understand fully the guidelines that have been prepared by The Powers That Be at their particular universities.

That’s a huge problem – I’d go so far as to say that it’s the biggest problem facing copyright law today. A complicated copyright law may have made sense back when it was mainly a commercial law governing the content industries – lawyers gotta earn their pay, after all. But now that copyright law so directly affects the lives of individuals, students and teachers, it should be simple enough that anyone with a dollop of common sense can understand it – and agree with it.

After all, what copyright does isn’t that complicated: It sets the terms under which someone is allowed to cover whatever it is we decide should be covered by copyright law (books, musical performances, etc.). Its guiding principle is similarly straightforward: it has to encourage both the production of creative works and their dissemination.

The problem is, after decades of horsetrading, the principles of copyright have become tied up in a mess of red tape, and every new reform is a chance for groups to throw in a few more rules and exceptions.

It it wasn't clear before this Access Copyright debacle that Canadian copyright law was in desperate a rethink and a simplification, it is now. The Conservative government is likely going to take another kick at the copyright-reform can, sooner rather than later. Wouldn’t it be great if they used the opportunity to simplify the law so that students and teachers wouldn’t have to feel like they were risking a lawsuit every time they go to the library to study?

A Tale of Two Treaties

Big(ish) copyright news out of Canada and Mexico that serves as a timely reminder of the central role of trade negotiations in promoting harmonized intellectual property laws. Canadian and European trade negotiators are apparently closing in on a comprehensive economic and trade agreement, which will include intellectual-property provisions. Michael Geist reports that negotiators remained stymied on the agreement’s IP chapter, including copyright-enforcement provisions that the Europeans would like to model on the Anti-Counterfeiting Trade Agreement (ACTA). Any changes will require legislative amendments.

The lack of progress on IP is not surprising. For an IP importer like Canada, increased protection and enforcement costs represent a pretty unambiguous drain on the Canadian economy and will likely result in higher prices, as the European Union itself concluded in a study on the potential effects of a Canada-EU trade agreement:

The Canadian trade balance would not necessarily benefit from IP provisions in CETA. Trade in specific goods, that are currently freely marketed and exported from Canada, could be adversely affected. For example, several Canadian companies brand and export their products with labels that could be considered as European geographical indications. These companies could lose market shares in domestic and foreign markets if they are forced to abandon their commercially significant labels. Conversely, it is unlikely that Canadian companies would significantly benefit from an increased protection of geographical indications in the European market. In sum, both Canadian exports and imports might be slightly and negatively impacted, but only in specific sectors.

The flip side of this is that Canadian negotiators may simply decide to trade off a bad deal on IP in exchange for perceived trade gains elsewhere. Given the way copyright has become politicized since the first time the Conservatives tried introducing a copyright-reform bill, this is a somewhat risky proposition. Then again, having a majority government makes passing such an agreement much, much, much easier than it would’ve been under a minority government.

The news from Canada makes what’s happening in Mexico even more interesting. While Canada is inching toward ACTA implementation, the Mexican Senate voted on July 20 not to ratify the ACTA (document is in Spanish, but there’s always Google Translate). Reasons cited include concerns about the lack of information provided to the Senate during the negotiations (illegal under Mexican law), the lack of due process under ACTA and the cost of requiring ISPs to monitor and enforce copyright infringement in a way that’s currently illegal under Mexican law and the Constitution, as well as other issues like net neutrality, censorship and privacy concerns. They also raise the concern that ACTA could lead to restrict both freedom and Internet usage, potentially broadening the “digital divide” and restricting the introduction of beneficial new technologies that would support the development of the information society (a key Mexican development goal).

As I noted earlier, many of these findings support the view that the Mexican telecommunications industry is making its voice heard, and that concerns about economic development have trumped the previously dominant view in the Mexican Senate regarding the need to increase copyright protection.

So, for the time being, anyway, ACTA is a dead letter in Mexico. (Though it could come back.)

The different approaches of the two countries serves as yet another reminder of the effectiveness of using trade agreements to force copyright reform in partner countries (next example: the Trans-Pacific Partnership talks, whose IP aspects have been described as "ACTA the sequel", only with a WTO-like enforcement mechanism). At the same time, however, Mexico’s current debate suggests the limit of this strategy. In situations where market access doesn’t exist as an incentive and where the domestic politics do not favour reform, it is much harder for one country to reform another’s copyright laws.

In other words, the Canada-EU trade talks allow the EU to link something Canada wants (market access) to something that the EU wants (Canadian IP reform along EU- and ACTA-friendly lines). Even though such reforms are not on their own beneficial to Canada for the reasons the EU report suggests above, there’s a pretty good chance they’ll happen, the result of a trade-off needed to get an agreement done.

In Mexico, no such linkage is happening, although it is part of the Trans-Pacific Partnership talks, along with the United States (Canada is not). And so ACTA is rejected, the victim of the mobilization of domestic constituencies.

Which brings us to the big question. Most major countries now have relatively open access to each other’s markets, so market-access is less of a problem for most countries than it was even two decades ago. Copyright laws, meanwhile, are regularly undermined by things like technological change. In a world where the IP powers can’t offer countries improved market access, but where they still want stronger copyright protection, how likely is continued copyright harmonization? If we want to predict the future, do we look to Mexico’s rejection of ACTA, or to the Canada-EU trade talks? Maybe I'm underestimating the appetite for more trade agreements?

WikiLeaks cables: U.S. behind drive for Canadian copyright reform (who knew?)

I see that WikiLeaks has finally released the cables from the U.S. embassy in Ottawa. They’ll make for some fine reading as I prepare for my thesis defence (May 26 at Carleton University, Loeb Building A631 at 2 pm – bring your friends!). For now, you can catch up with some analysis from Geist (here (main one), here, here, here, here, and here) and Techdirt. Zeropaid also has a nice opinion piece on the whole release (h/t Russell McOrmond).

I’m happy to note that the cables, at first glance, seem to corroborate my dissertation’s argument as it relates to Canada (summarized here), so that’s good. Two things stand out to me.

First, one of my dissertation’s main points is that the United States usually can only get its way on reforming another country’s copyright policies if it offers something that the other country wants. True enough, but as the cables also suggest, a country can attempt to use the offer of copyright reform to try to get the United States to move on an issue of interest to it. In one cable, Canada says that U.S. movement on regulatory cooperation as part of the Security and Prosperity Partnership of North America (SPP) was what it wanted in exchange for Canadian copyright reform.

These two points are mostly saying the same thing, but the second emphasizes that there can be a significant amount of give and take on such policy debates, even on an issue of great importance to the larger country. Whether it works or not is another issue (the U.S. here saw Canadian attempts to link copyright to an unrelated issue as a stalling tactic. That they would comment negatively on such a linkage also suggests that linkage remains the exception, not the rule, in Canada-U.S. relations).

Second, in reading these cables and others, I’m continually struck by how open the U.S. system of government is. I’d go so far as to say that the great value in the WikiLeaks cables isn’t in what they tell us about the United States, but what they tell us about our own, very secretive government. Going far afield of copyright, the Tunisian revolution was partly sparked by revelations not about what the United States was doing in Tunisia, but about what the Tunisian government was getting up to.