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Boyle on Constitutional Circumvention

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[from Random-bits] James Boyle in FT on WIPO Treaty:  Constitutional
    circumvention

http://news.ft.com/cms/s/fa07af4a-fadc-11da-b4d0-0000779e2340.html

Tuesday Jun 13 2006 . All times are London time.
          Comment & analysis / Columnists

James Boyle: Constitutional circumvention
By James Boyle
Published: June 13 2006 16:18 | Last updated: June 13 2006 16:18

James Boyle

In September last year, I wrote about a very bad proposal being
debated in the World Intellectual Property Organization (WIPO). The proposal
was to extend the length of an existing set of intellectual property rights
for
broadcasters, and even apply them to webcasting. As I pointed out, there is no
empirical evidence that these rights produce any social benefit. Indeed, the
US
has never had such a right and yet has a flourishing broadcast industry.

Extending the rights to webcasting, despite the manifest differences between
the economic structure and global reach of the two media, was a jaw-dropping
move with obviously bad consequences. We should be focusing on rules about
conduct, not rights over content. If signal piracy and rebroadcasting is a
problem, we should have a rule that narrowly focuses on that conduct,
prohibiting unfair business practices by commercial competitors. The last
thing
we should do is create yet another set of long lasting property rights over
the
content.

Copyright offices around the world admit that there is a huge problem with
“orphan works” – copyrighted material for which the copyright holder cannot be
found. Given the absurdly long copyright term, it is quite possible that the
majority of the cultural production of the twentieth century consists of
orphan
works. Because of the difficulty of clearing copyright, those works remain
locked up in the library. Even though the copyright holder has long
disappeared, or would not mind, it is impossible to show the old movie, adapt
the old book, play the old song, put the old poem in an anthology. Many
libraries simply refuse to allow screening of movies until the copyright term
has expired; probably no one would object, but the legal risk is too great.

Now imagine creating an entirely new layer of rights over everything that is
broadcast or webcast, on top of whatever copyrights already cover the work.
You
find a copy of a movie in the library and manage, at great expense, to work
out
that it is in the public domain, or to get the copyright holder’s permission.
Perhaps the work is covered by a Creative Commons license, granting you
permission to reproduce. Not so fast! Even after trudging through all the
orphan works problems in copyright, you would have to prove that this copy had
not been made from a broadcast or webcast. More clearance problems! More
middle-men! More empirically ungrounded state-granted monopolies! Just what we
wanted. There are even some serious free speech problems.

What if only Fox or CBS has the footage of a particular public event? Do we
let
the broadcaster eviscerate the ideas of fair use, prohibiting other networks
from showing fragments so as to comment on the events, or criticise the
original coverage? The proposed treaty text allows for fair use-like
exceptions
but does not require them. Once again, we harmonise upward property rights for
powerful commercial entities, but leave to individual states the discretion
whether and how to frame of the equally crucial public interest exceptions to
those rights. Increased property rights for broadcasters are required. The
public interest in education, access, and free speech is optional. (Among
other
things, most of the recent drafts would outlaw home recording of TV and radio
unless a special exception was put into the law, state by state.)

This proposal was so bad, so empirically threadbare, so unbalanced, that I had
cherished a faint hope that the members of WIPO would abandon it. At least, I
hoped there might be a comparative study of the nations that had previously
adopted the protection and those that had not, to see if there was any need
for
such a change? What was I thinking!!? Why do we need evidence? With remarkably
little public attention, the Broadcasting Treaty train is chugging ahead
strongly, with states providing new draft proposals over the next two months
for a possible decision in September. The status of the webcasting provision
is
still unclear. But the webcasters are pressing hard. Expect another poorly
reasoned proposal to rise from the ashes, with the US playing a key role. The
press seems to have missed the story. Bizarrely, the proposal is getting more
robust criticism from industry sources, who can see how it will affect
competitiveness on the web, than from librarians and civil libertarians who
ought to appreciate better than anyone its effect on speech and cultural
heritage.

Of course, the casting treaty is a paradigmatic example of the dysfunctions in
our international deliberations on these issues; we have the absence of
evidence, the mandatory rights and optional exceptions, the industry-capture,
the indifference to harm caused by rights-thickets. But the representatives of
the United States, who have played an ignominious role as cheerleaders for
this
silly treaty, have a particular, indeed a constitutional, reason to be
ashamed.

Unlike their descendants who now work the floor at WIPO, the framers of the US
constitution had a principled, pro-competitive attitude to intellectual
property. They knew rights might be necessary, but they worried about
industry-capture and unnecessary monopoly and so they tied congress’s hands,
restricting its power in multiple ways.

Rights have to be of limited duration. (Congress has managed to get around
that
one by repeatedly extending the limit: Jefferson must be spinning in his
grave.) They can only cover original material, which must be fixed in some
material form. No rights over inventions that are already known, or over
unoriginal compilations of fact. Of course, if the material is not within the
core domain of copyright and patent, congress may go further, as it has with
trademarks.

But over the material covered by copyright, where we are dealing with
fundamental constitutional limitations, these rules reign supreme and congress
may not circumvent them by turning to another constitutional source of power.
What does this mean in practice? That is a complicated question. There are
pending legal disputes about “bootlegging statutes” and about foreign works
that have been pulled out of the public domain as a consequence of the Uruguay
Round of trade agreements.

In my view, the current drafts of the Broadcast Treaty would be
unconstitutional if implemented in American law. They create new
copyright-like
rights over unoriginal material, indeed material that is frequently
copyrighted
by someone else. That violates a core restriction of the copyright clause of
the constitution. They also ignore the fixation requirement.

But forget the attempt to predict what the Supreme Court would do if it heard
the case. Are the US’s negotiators ignoring their constitutional
responsibilities, and seeking to get a bad treaty passed with inadequate
public
debate of its desirability, constitutionality or consequences? About that
there
is no doubt at all. Shame on them. Jefferson and Madison would not approve.
Should we?

James Boyle is William Neal Reynolds Professor of Law at Duke Law School,
co-founder of the Center for the Study of the Public Domain and the author of
A
Manifesto on WIPO. His most recent work is Bound By Law, a “graphic novel” on
the effects of intellectual property on documentary film.

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