The next panel is on copyright policy. Michael Geist is sitting in for Jamie Boyle. Gigi Sohn, unlike the other moderators, is playing a very active role — there aren’t presentations, just questions from Sohn.
First: You’ve been named special advisor on copyright to the U.S., E.U., or Canada. What are your top three recommendations?
Fred von Lohmann of EFF:
- Think less about enforcement and more about solutions. Infringement drives much innovation in the copyright market — e.g., Napster spurred iTunes. Pushing or even transgressing the boundaries encourages copyright industries to step up their game. Part of the goal of copyright law should be ensuring there’s room for disruptive innovation. 1906: Music industry asked for copyright owner control over music machines (player pianos), said they’d kill the industry — and they were right — but we got something better in return. We’ve done great things — the p2p “library” is huge — so let’s find ways to get rightsholders compensated without dismantling that. More enforcement won’t help that — more solutions would.
William Patry of Google:
- We need effective copyright laws, not “strong” or “weak” copyright laws. Current shape of copyright law is clearly not very effective. We’ve seriously distorted incentives, ergo we’ve distorted behaviors.
- So we need someone to have the guts to stand up and do something about it. We need to re-evaluate copyright from top to bottom, without concern for our existing international obligations. Start from scratch: figure out what we want to incent and then figure out how to do it.
Maria Pallante of the Copyright Office:
- (responding instead to what the Copyright Office’s work will focus on) Three legislative areas: performance rights in sound recordings — we have it for Webcasting but not for terrestrial broadcasting — would create parity with Internet radio. Orphan works. Section 108.
Bernt Hugenholtz of the University of Amsterdam:
- Repeal E.U. proposal to extend copyright term for musicians from 50 years to 95.
- Create a coordinating committee for copyright policy in the European Commission.
- Stop further harmonization projects. The E.U. still has 20+ national laws, which have some similarities but there are still significant differences. It’s time to start thinking about unification for the E.U. — one copyright law for the E.U. Imagine if we had different state copyright laws in the U.S. [We do have state para-copyright.]
- We could seize the opportunity to do some rebalancing, or make a fresh start.
Michael Geist of the University of Ottawa:
- Obama’s first foreign visit will be to Canada. Among many other issues, copyright and IP may be a topic of discussion. Canada’s PM should use the opportunity to tell the U.S. to stop bullying Canada over its copyright law.
- Tell the ACTA negotiating partners that either it’s open or we’re out — demand transparent. If there’s nothing to hide, why hide it?
- Do nothing for the next 12 months at least. Canada has twice failed to pass a “Canadian DMCA” and has suffered significant criticism. Don’t bring back the same bill — tell the lobbyists to lay off.
Next: How do we win on ACTA? How do we decouple IP from trade?
- von Lohmann: We’re concerned about ACTA and have sued to get information about ACTA. We should keep up the pressure for transparency.
- Hugenholtz: I did try to get the documents from the EC, but failed. The EU is not competent to enter into a treaty on criminal enforcement on IP without the backing of member states — which is why the member states accompany the EC negotiators.
- Patry: ACTA has been poorly executed and we should walk away from it. Any significant changes should be made democratically, starting domestically. If we don’t have something to hide, why hide it?
- Geist: Three groups of participants in ACTA: Some who will be unlikely to be moved at all (U.S., Japan, Korea, maybe E.U.). Some weak-link countries, who think it’s better to be in than out (Canada, Australia, New Zealand) — this is where to apply pressure. And groups that aren’t involved at all: need to express concern about this and put pressure to open it up.
- Pallante: I was not part of the Copyright Office delegation to this meeting. Our role is to provide technical advice upon request of the U.S. government. My predecessor was at the Paris ACTA meeting.
Next: WIPO: Do we need international E&Ls? Where is common ground to be found?
- Pallante: WBU proposal will be on the table at WIPO. Copyright Office will likely issue a RFC to see if there are issues about access for visually impaired, potentially followed by roundtables or hearings.
- Hugenholtz: It’s good to have WBU proposal on the agenda, but if we stop there, that’s bad. I would prefer a coherent instrument listing principles from which E&Ls derive. We wrote a study for OSI proposing this — not hard law, but a declaration of principles. Could serve as reference for bilateral negotiations as well. Some principles: free speech, development, science, competition. E&Ls should be an integral part of any copyright system.
- Patry: WBU treaty would be helpful but we shouldn’t carve it up. E&Ls by its name suggests protection by default.
- Geist: It’s less than ideal, so WBU proposal is a considerable step forward. But it’s only the first step.
- von Lohmann: The chief danger to E&Ls in domestic law is not whether or not this proposal passes — E&Ls everywhere are under assault.
What’s the verdict on the DMCA, WIPO Copyright Treaty, DRM?
- von Lohmann: DRM (TPMs) has been an abject failure is the goal was to prevent widespread infringement. There’s no sign that DRM or legal backing for it has stemmed widespread infringement online. Each year, there are more people engaged in unauthorized filesharing than the year before. But DRM hasn’t been effective, as was promised. Yet it’s continued to be popular. The DMCA/Copyright Treaty have failed at their stated goal — so what was their actual goal? It wasn’t about piracy. Apple removed DRM from music on iTunes, but Apple continues to use TPMs in many other parts of its business, such as locking iPod to iTunes, locking iPhones to selected carriers, locking iPhones to the Apple app store, locking their OS to their hardware… TPMs are principally used to prevent competition, not piracy. It’s competitors [innovators] whose behavior is chilled. We need to reform this area. We don’t have to repeal the Copyright Treaty — it doesn’t require a U.S.-style DMCA — but the anticircumvention provisions of the DMCA have to go, and Canada and others shouldn’t adopt them.
- Geist: [gave a history of proposals for and opposition to the Canadian DMCA]
Enforcement and damages
- Patry: Statutory damages have been used against start-up companies, to extract equity stakes in new companies, in RIAA’s copyright wars. Rep. John Conyers, chair of House Judiciary Committee suggested a full review of statutory damages — this would be good.
- Hugenholtz: No statutory damages in civil law countries. Not mentioned as a remedy in EU Enforcement Directive. I assume European common law jurisdictions have statutory damages. There are some de facto practices that resemble statutory damages. Punitive damages are taboo in Europe.
- Geist: We have statutory damages in Canada. It makes sense for commercial infringement but not for e.g. RIAA’s copyright wars. Proposal in Canada is to carve exemption for non-commercial infringement.
- Pallante: There’s a range of statutory damages in the U.S. — they can be quite low. I was involved with discussions in the last Congress but mostly through the perspective of orphan works. With group registration, e.g. 1 photo of 700, you haven’t registered it in a way that’s useful for someone to find it.
- von Lohmann: Copyright owners in the U.S. have a number of weapons at their disposal. The cost of litigation (attorney’s fees) is the most useful against e.g. individual downloaders. Biggest need for reform is in area of intermediaries. There was a bill by Rep. Boucher to eliminate statutory damages against secondary liability where there’s good faith.
Collective strategies:
- von Lohmann: Collective approaches aren’t a bad option. RIAA wants ubiquitous Internet surveillance — if it’s that or blanket licensing, the choice is clear.
- [Sohn: Some people wanted Google to fight to the death for fair use in the Google Books case.] Patry: No comment. The settlement hasn’t been approved yet.
- Hugenholtz: EFF should be applauded for suggesting collective licensing — we’re clearly moving in that direction. Authors can actually make money here. But oversight is important here — competition law isn’t sufficient — collective licensing bodies are somewhere between public and private.
- Pallante: Collective strategies are indispensable. Fear: Some uses that would be fair wouldn’t be if you could license it. But generally, collective strategies are important.
- Geist: Some courts have found that p2p is arguably legal due to the private copying levy. Songwriters have come out in favor of legalizing p2p. But transparency is key when it comes to distributing the money — who gets paid, how much overhead. Market distortions (levy on blank CD vs. blank DVD).
Lightning round:
We’ve been talking about bringing balance back to copyright for a decade in the U.S. What’s the most important thing to do to turn the tide?
Geist: We’ll win, but the question is how soon. Rightsholders recognize some criticisms are legit. Young people have a much different take on IP.
Hugenholtz: Everything will end up well at some point. Academics agree — someday politicians may.
Pallante: Rightsholders are more organized — we don’t see everybody. The more that people get organized and coordinated, it helps.
Patry: I have no faith in our ability to make any meaningful legal reform. Our hands have been deliberately tied by international obligations. Can’t impose formalities, can’t reduce copyright term, very hard to pass copyright reform (even orphan works is hard). My only hope is that market realities force copyright owners to change, and eventually we won’t care about copyright.
von Lohmann: I have no reason to believe that government action won’t make things any better. The pivot remains what it has been: fans/consumers. It’s the only force that can move businesses.
Q&A:
[I asked a question, which made it difficult to blog at the same time.]
[After that I kind of spaced out. It's been a long day. I've seen myself in the mirror: I look as bleary-eyed as I feel.]
