Well, it’s been a fun week on the international trade agreement front. Monday began yet another negotiating round for the Trans-Pacific Partnership (TPP) trade agreement, this time in San Diego. To the amazement of everyone, the U.S. Trade Representative (USTR) announced on July 3 it would now include a provision in the intellectual property (IP) chapter recognizing the importance of “limitations and exceptions” to copyright and embracing the international 3-part test for what constitutes suitable limitations and exceptions. (For those not familiar with this term of art, “limitations and exceptions” are things like Fair Use and and First Sale Doctrine in the United States. As the name implies, limitations and exceptions to copyright limit the rights of the copyright holder and create exceptions to the general rule against copying without permission.)
It is difficult to convey to people who don’t routinely deal with USTR and the copyright maximalists that dominate trade negotiations just how stunning a turn around this is, given the fairly well-established limitations and exceptions in U.S. law and the fact that — as USTR acknowledged in its announcement — the three-part test for what constitutes suitable limitations and exceptions is already well-established and incorporated into international law. Indeed, given all this, the incredible thing is that this is, as USTR acknowledges, the first time USTR has included any explicit reference to limitations and exceptions. In addition, as my colleague Rashmi Rangnath points out over at the Public Knowledge blog, while this is a positive step for USTR, we have not seen the new draft TPP text, so the actual implementation of these principles in the TPP draft could still be a major step backward from existing U.S. law.
More . . . .
Let me use an analogy to explain why this is, nevertheless, a big deal. For USTR to publicly embrace limitations and exceptions as “an important part of the copyright ecosystem” is the equivalent of The Pope saying: “in some cases, birth control is a good thing because it allows married couples to have sex without procreation, deepening their emotional bond with one another.”
What Happened? ACTA.
So even if this is just public posturing, it marks a dramatic departure from the USTR’s traditional position — which is to avoid the entire subject of limitations and exceptions as much as possible while implying, without actually saying, that the very existence of the concept of “limitations and exceptions to copyright” makes the universe a less perfect place. Such things do not happen by chance. Ron Kirk did not wake up Tuesday morning July 3 and say “I had a dream of a world with no limitations and exceptions to copyright and learned a Very Important Lesson In Life.” Mind you, I am not questioning the sincerity of USTR. This is about shaping policy, not building a relationship or going on a date. I am totally down with people doing the right thing for the wrong reason. But success also depends on understanding why USTR felt compelled to change their public position.
The next day, on July 4, we got what I consider the most likely explanation. The European Parliament utterly rejected the Anti-Counterfeiting Trade Agreement (ACTA). And while supporters within the European Commission may still plot to keep it alive, the short term result is that the insistence on serving the interests of the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) by trying to force copyright maximalism on other countries killed the treaty after about 6 years of negotiation. That’s a lot of wasted time and effort. Worse, a lot of U.S. industry outside of Hollywood and the recording industry wanted ACTA to actually fight real counterfeiting. So not only did everyone end up wasting time on a treaty no one wants to sign anymore, businesses hoping to use the agreement to fight the folks making warehouses full of fake Rolex watches and such what are totally out of luck. And why? Because the MPAA/RIAA insisted ACTA needed lots of crazy stuff on intellectual property, and no one wanted to say no to the MPAA/RIAA. Oh, if only some wise public interest advocate had warned them that including all this crazy stuff around IP in ACTA put getting a real trade agreement to address real counterfeiting at risk! Oh wait . . . .
True, ACTA might have slipped through without much public notice or discussion, like nearly every other international trade agreement, but for the consciousness raising exercise that was the fight against SOPA. Europeans and others who thought copyright maximalism was a uniquely American disease suddenly took an interest in what their own governments were doing and experienced a collective freak out. Critically, folks got quite upset that ACTA would apparently require them to change their copyright laws in ways they regarded as inimical to recognized limitations and exceptions and that therefore violated fundamental human rights principles. The usual blandishments and arrogant dismissals of these criticisms by ACTA supporters as ill-informed, driven by pirates and profiteers such as Google, and necessary to protect poor starving artists failed to sooth the opposition. To the contrary, it only aroused further fury that ACTA supporters. As a result, the EU vote rejecting ACTA was one of the most lopsided votes in its history (478-39).
USTR Starts To Get A Clue. IP Mafia Still In Denial.
All of this, combined with new objections to the TPP process by a growing number of Congressmen, has apparently prompted USTR to get a clue. As ACTA’s resounding rejection proves, the old playbook of whittling away limitations and exceptions to copyright both here and abroad by refusing to acknowledge their existence or importance just doesn’t cut it in a post-SOPA. At a minimum, international agreements must at least pay lip service to the vital role of limitations and exceptions in “the copyright ecosystem.” Of course, the actual language of the treaty might still undermine limitations and exceptions in practice while pretending to acknowledge their importance on the surface. In addition, the recognized international 3-part test USTR refers to is pretty vague, since it constitutes the minimum standard that all countries must acknowledge (even if they’d rather not) under accepted norms of international law. So a treaty provision can be totally complaint with the international 3-part test and still represent a major step forward for copyright maximalism by reducing existing limitations and exceptions as incorporated in the law of the United States and many other countries.
Mind you, despite the fact that this acknowledgement does not give up much practical ground, MPAA and RIAA are reportedly furious with the announcement and latest draft of the TPP IP chapter. Since selected industry representatives get full access to the proposed text, it may well be that the new text contains some real policy shifts as well as a change in rhetoric. But I suspect the fury of the MPAA and RIAA comes from the fact that they appear to believe that Wikipedia and Google are responsible for all this, and no real world evidence will tell them otherwise. As a result, they regard even a rhetorical shift by USTR acknowledging the importance of limitations and exceptions as a betrayal and as caving in to “Big Knowledge” bullies like Wikipedia.
Also, even if USTR turns out to be merely paying lip service to the concept, MPAA/RIAA have definitely lost a major round here. To have limitations and exceptions openly in the room and acknowledged as a critical element in any trade agreement rather than treated as something questionable to be ignored changes the tenor of negotiations and makes it harder for the IP Mafia to push for unilateral expansion of copyright at the continuing expense of long-established limitations and exceptions. For a lobby unused to losing, this change in position from a previously rock-solid ally — no matter how politically necessary in the short-term — represents another galling lose in a year marked by several unanticipated reversals.
So How Should The Opponents of Copyright Maximalism Respond.
I have many rules of advocacy. One is: “Always make it easy for other people to agree with you.” This is doubly true when believe the other side is making the concession grudgingly. So the first response is to thank USTR and acknowledge its significant shift in position. The second step is to help USTR move down the path of wisdom by refining the text — aware that the IP Mafia will do everything in its power to reverse course and shift USTR back to its traditional position.
Keep in mind that the majority of people working for USTR don’t like to waste effort any more than the rest of us, and the realization that a significant portion of the rest of the world may reject whatever final deal negotiators agree to if it goes too far on copyright is no doubt causing many to rethink their positions. In addition, USTR has many other industries it services besides Hollywood. They need trade agreements — and USTR is required to negotiate these. The Hollywood crazy train on intellectual property enforcement now very visibly threatens the ability to get future trade agreements ratified by Congress or by foreign governments. The manufacturing sector, the retail sector, and others that have until now tolerated Hollywood’s demands in the interest of maintaining a united industry front will not sacrifice their own international trade interests for the Entertainment industry — and will push USTR to negotiate agreements that actually have a chance at ratification.
All this creates a positive opportunity going forward. For the first time, civil society has something USTR needs — an ability to legitimize the treaty text. The global lobbying muscle of the MPAA/RIAA is no longer enough. While that does not make civil society equals in the negotiations by any stretch of the imagination, it is a much stronger bargaining position than ever before.
This is not to say that people long convinced of the rightness of copyright maximalism which rejects limitations and exceptions will change their minds on the merits (although this may come too, in time). But policy is not about getting people to do the right thing for the right reasons, it is about getting them to do the right thing for their own reasons. In this case, USTR has excellent reasons to shift position and bring civil society more strongly into the mix. The job for civil society is continuing to enhance the value of what we offer by keeping the pressure on for substantive language that genuinely embraces existing limitations and exceptions. MPAA/RIAA have excellent incentive for this as well, although I expect them to take much longer to recognize this.
All in all, 2012 continues to be a landmark year for intellectual property policy. The anti-SOPA campaign has genuinely changed the way in which IP policy gets negotiated, rather than fading away as memory of the legislation recedes. No, that doesn’t mean everything is now hunky-dory and we now go home. But did anyone ever think it would? What the ACTA defeat in Europe and the pressure on USTR to shift position show is that the campaign to prevent the further erosion of free expression in the name of copryight maximalism has staying power. It now falls to all of us to ensure that we keep moving things in the right direction.
Stay tuned . . .