Popeye, Get Your Popeye

As of tomorrow, the beloved spinach spokesman will be in the public domain in most of the world.  In the EU, pretty much the rest of Europe, a smattering of Latin American countries and a handful of African countries, the seventy-year copyright protection on Popeye ends on January 1st, 2009.  (Some countries count from the date of death, rather than the end of the year, in which case Popeye entered the public domain on October 13th of this year.)  Popeye has already been in the public domain for twenty years in about half the rest of the world.

So where can't you use Popeye anyway you please?  Well, that depends on what you want to do with him.  An article in The Telegraph explains that Popeye is also a trademark, so you still can't use Popeye in a way that would constitute trademark infringement.  Other than that, there are at least four countries where  the copyright term extends beyond 70 years:  The US, Mexico, Colombia and Cote d'Ivoire.  Assuming Popeye is currently protected in these countries (all are members of Berne and TRIPS) Popeye will enter the public domain first in Colombia (2018), then in the US (2024; Popeye would have been in his renewal term when the terms were lengethend, giving him a total of 95 years of protection from creation; the first Popeye cartoon was published in 1929.), next in Cote d'Ivoire (2037), and finally in Mexico (2038).

Related Links
E.C. Segar (Popeye's creator).
The Sailor Man's webpage
Chicken

Following the French?

Earlier this month, the American Bar Association Journal reported in a little article that the RIAA is going to stop randomly suing people for illegal music downloading.  Seems the RIAA finally realized that tactic was not producing the desired results and getting them extra problems.  This is good news.  However, the new approach is not without its own problems.

"The RIAA now plans a more practical enforcement effort concerning illegal downloads," the article explains.  And just what is this more practical enforcement?

"With the help of Internet service providers, those who repeatedly download music illegally and ignore ISP warnings are expected to have their Internet service first slowed down and then stopped entirely..."

That's practical?!  In a country that historically places such a high value on freedom of speech, independence and privacy, in a society that revolves around technology, this "practical" solution is opening several very large cans of worms.

As it turns out, the solution may not be quite as draconian as the quote makes it sound.  According to the Wall Street Journal, the new plan is actually a series of agreements between the RIAA and different ISP providers.  The deal is that the RIAA will stop suing consumers and the ISP providers will start contacting customers who appear to be illegally uploading copyright protected material.  If the customers ignore the warnings, the ISP providers can slow down and eventually cut-off the internet service.

The IPKat reported some months ago on a similar plan in France.  In late October, the French Senate approved a law that would cut off the internet service of people who illegally download copyright protected material.  Under the French model, internet access revocation is the final out in a three-strikes law.  Strike one: warning email.  Strike two: warning snail mail letter.  Strike three: the dark ages for an entire year.

In general, people seem to like the idea of receiving warnings and a chance to stop infringing behavior better than lawsuits.  However, many have also expressed some concerns.  French Senator Retailleau decried cutting off internet as discriminatory.  He described internet access as an "essential commodity" and its removal as "traumatic."  Readers of IPKat also commented on the variety of privacy issues raised by this method of fighting infringement.

Groups like the Electronic Frontier Foundation and Public Knowledge express similar concerns about the American plan and raise some others.  The president of Public Knowledge is worried about the due process of the system, stating, "we want to make certain that customers are not cut off from their Internet service or have their service altered solely on the basis of a claim by a copyright holder that file sharing is taking place."  The EFF points out that the punishment here seems to greatly outweigh the crime.  Guess Gilbert and Sullivan wouldn't approve.

Some proponents of the new arrangements believe that the warnings given to infringers by their internet providers will be enough to prevent the customers from continuing their illegal behavior.  If this is true, the system is fine because the ISP providers will never need to reach the controversial step of shutting off someone's internet service completely.  But what happens when someone decides to call their bluff?

 

 

Other related links:

Will France Introduce Digital Guillotine in Europe
French Internet Law Clashes with EU Position
RIAA Shuts Down its Lawsuit Machine
Three Strikes, Three Countries: France, Japan and Sweden
RIAA to Stop Suing Music Fans, Cut Them Off Instead
RIAA Confirms It Will Take Piracy Fight to ISPs

A Christmas Classic

What better thing to do on Christmas Eve than take a look at how copyright, or rather the absence of it, has helped shaped a holiday tradition.  I'm speaking, of course, of It's a Wonderful Life.

In the mid-1970s, the movie was believed to have fallen into the public domain.  Under the 1909 Copyright Act, a work's copyright term could be renewed once after the first 28 year term expired.  The copyright on the box office flop It's a Wonderful Life wasn't renewed.  (The flopping might have had something to do with the film opening 13 days after Christmas.)  PBS stations started airing the movie regularly at the holidays.  Soon other stations followed suit.  Roger Ebert describes this quasi-public domain period as the best thing that ever happened to the film.  Technically, only the film was in the public domain, not the underlying story.  (Some argue that the movie never really was in the public domain because copyright still existed on the underlying script of which the movie was a derivative work.)  Television stations took advantage of the lower royalty rates, having only to pay acting as though the movie were in the public domain propelled the film into Christmas-stardom.

Television stations' ability to play the film with less remuneration than other films gave them an easy and cheap way to fill their programming slots with a nice wholesome Christmas-related show.  Since it was so cheap and easy to show, every channel could show it and show it often.  The film became a staple of the holiday season.  Even other Christmas films now incorporate it's importance.  In the Home Alone movies, each movie shows the Kevin-less family watching It's a Wonderful Life in a different foreign language.

Currently, It's a Wonderful Life can only be seen on NBC.  The colorized versions have their own copyrights (though they are not shown on tv), and the original gained copyright recognition in the mid-1990s.  A court ruled that because the film is a derivative work and many parts of it are still protected by their own copyrights, the film cannot be shown without infringing someone else's rights.  

The movie is on in the US tonight at 8pm Eastern on NBC.  Or you can watch it here, performed by bunnies.

Some Reflections on Copyright in Nigeria

Having just returned home from a short internship with the Nigerian Copyright Commission, a few reflections on the state of copyright in Nigeria seem appropriate.

Nigeria's statutory copyright law is fairly well developed.  This is hardly surprising since Nigeria is a member of several of the major treaties.  (Berne convention, 1993; TRIPS (WTO), 1995.)  Generally, the gaps that do exist in Nigeria's copyright laws are in areas that the rest of the world is also trying to sort out, such as computers and new technology's implications on copyright.  These gaps tend to arise less from poorly drafted or inadequate statutes, but rather from the stark absence of case law, especially case law that interprets the Copyright Act to apply to new issues.

Yet, as we've seen, copyright law in Nigeria isn't exactly "working" right now.  (Collecting society issues, problems with pirates, copyright and trade issues.)  The biggest problem is a lack of enforcement of the existing law.  This problem seems to stem from several other issues, most of which are outside the legal system, or at least outside copyright law.

Nigeria is rife with corruption.  People not only do not trust the government, they do not trust each other.  This hinders legitimate enforcement operations by the government, discourages people from bringing civil suits and severely limits entrepreneurial opportunities for private businesses.  But corruption is a national problem, supposedly being addressed by the Economic and Financial Crimes Commission, not something for which the Copyright Commission can take responsibility (at least not outside of its own organization).

Nigeria also has little legitimate infrastructure relating to the arts.  If Nigeria were to remove all the pirated movies, books and CDs from her streets, there would be almost nothing left for consumers to buy.  Consumers who want to purchase legitimate goods often cannot find them.  There is no advertising about new releases or where to purchase them, and no set stores or locations dedicated to selling legitimate copyrighted materials. The Copyright Commission cannot (and should not) be responsible for the production and distribution of goods.  This is an area for investors and developers.  Unfortunately, no one is stepping forward to organize the needed systems, at least not legitimate versions.  There are a lot of optical disc production plants, but most of them produce pirated goods.  The Copyright Commission has a program that allows illegitimate optical disc plants to become legitimate, but there is little information on how well the program is working.

Another issue playing into the lack of enforcement is only partly beyond the reach of the Copyright Commission.  Nigerians seem to have what the Director General of the Copyright Commission referred to as a developing country mentality.  People expect the government to do things for them.  The copyright law was made by the government, the government should enforce it.  This mentality is a huge part of why there are so few civil infringement suits.  Authors often contact the Copyright Commission to report infringement.  The Commission offers to help them organize a case and may offer investigative help, but the authors want the Commission to do everything, bring a case itself and stop the infringer from committing infringement.  The Commission is trying to educate authors about the need to take responsibility for their personal rights, but fighting the overall rely-on-the-government mentality is a job bigger than one single government commission.

In essence, Nigeria has a lot of background issues to address before their existing copyright laws can become truly effective.  But, the country is working towards this, and more people who care about issues are starting to come forward to do something.  It may take awhile, and a lot of work, but Nigeria can become a place where creativity is nurtured rather than stolen.

And Now, Back to Our Regularly Scheduled Program

Ip's What's Up would like to thank our readers for their patience during our down time.  Goldenrail has returned safely to the land of abundant internet, and we will resume our regular schedule tomorrow, Sunday, December 21.

Follow-Up to: Developing Decent Digital Distribution Solutions

In our previous post, Developing Decent Digital Distribution Solutions, Ip's What's Up reported about a Vanderbilt University class called "Stealing in Music City" where the students had to develop a new digital distribution system for the music industry.  The three student groups presented their solutions last week Tuesday, December 2nd.  The video of their presentations is now available on YouTube and VUCast.

The video itself is almost an hour long, and Ip's What's Up doubts many of its readers have time to watch the whole thing.  We wanted to summarize the groups' projects for you.  Unfortunately, the Nigerian internet didn't like that plan.  So, we offer you a summary of the first group and most of the second group.  (Our apologies to Group 3.  We are sure you put a lot of effort into your project as well and will report on it as soon as we're able.)

Groups one and two each consisted of three, visibly nervous, first-year students.  It is apparent from their presentations that they learned a lot about copyright and the music industry during their semester and that they put a lot of work into developing their solutions.  We hope their professors are proud of them and will continue the seminar in the future.

Group 1

The first group pulled ideas to improve the music industry from a variety of sources.  They talked about revising the copyright law to make it easier for artists, consumers and labels to understand, particularly the areas relating to ownership, fair use and the public domain.  That's probably good for everyone, except the attorneys.

On the production end, the group adopted the licensing model mentioned by David Byrne in a Wired.com article.  Through the group's version of this model, artists could only license their recordings to a label for a limited time, rather than assigning the entire copyright to the label.  (The label would not be allowed to own any masters.)  The group adopted this plan because they believe labels play an important role in promoting artists but also think artists should have more say in their careers.

On the distribution side, the group incorporated two ideas supported by Professor Michael Bressman.  (Professor Bressman teaches the IP Clinic at Vanderbilt law and visited the undergraduate class as a guest speaker.)  The group suggested an increase in the number of legal online music distribution sites and that these sites should use monthly fees rather than per song payment arrangements.  The group seemed unaware that there are more music download sites than iTunes, but perhaps that was just their example.  [Some music sites: iTunes (the standard), eMusic (which is monthly subscribtions), amazon.com (drm free), napster (the newer, legal version), payplay.fm, puretracks, there are many more.  Note: Some of these will not work outside the US.]

The group also looked at changing social norms, turning illegal downloading into something un-cool instead of something normal.  The ideas here were a bit reminiscent of anti-drug and anti-gang programs (Downloading Abuse Resistance Education?), and made this Ipper feel rather old.  Their suggestion: include internet safety and copyright in the existing elementary school computer classes.  These classes already teach students how to type and use the internet; they should teach how to do it safely and legally.

In addition to incorporating music downloading etiquette into computer classes, the government should also use things like pamphlets and public service announcements to educate people about piracy.  They suggested these tools be a bit less extreme and a bit more honest than the RIAA's versions.

Overall, it seemed the group attempted to address several different aspects of the music downloading issue: the relationships between people in the industry, the availability of legal downloadable music for consumers, and the social norms that still seem to lean towards acceptability for illegal downloading.

Group 2

Group 2 took a different approach and developed a unique system for digital distribution.  They described it as using the technology of file sharing but ensuring artists and labels get paid.  Their system consists of a government run network that sounds sort of like a Facebook for record labels and publishing companies.

Record labels, publishing companies and independent artists with more than twelve songs can sign-up to be part of the network.  They will get their own page that they can design however they'd like.  They can use the page to promote different artists, activities and events, and to offer downloads of their catalogues.  (The reason for the minimum of twelve songs has to do with balancing the costs and benefits of the system for independent artists.)

The consumers choose from one of various subscription levels.  Each subscription allows them to share a certain number of files per month, with the platinum level giving them unlimited access.  The prices for these subscriptions are intended to be fairly low in order to shift the economic supply curve: lower cost = more downloads.  It's a little confusing if the "sharing" involves offering tracks already in consumers libraries for upload/download by another, or if it really just means downloading from one of the label/publisher pages.  (This may be clarified later in the group's presentation, if anybody is able to watch the whole thing and can add some clarity to this point, please leave a comment.)

The government is in charge of setting up this network and managing it, as well as acting as a sort of collecting society for all transactions on the network.  The group chose the government to run the network in order to eliminate the cost created by a middle-man like iTunes and because they felt the government would bring a certain neutrality, less focused on profit and more focused on boosting the economy and supporting the industry.

Although similar in some ways to existing on-line stores, their system seems to present some unique ideas.  If it does indeed involve file sharing with a collecting society-type entity tracking, it offers some definite benefits over existing on-line music options, like locating those hard to find remixes.  There would be a lot of details to work out before such a system would be viable (such as ensuring that tracks are properly identified), but it's certainly an interesting idea to ponder.

 

 

{related to digital distribution...]

Alphabet War

About a month ago, Ip's What's Up posted an entry about the status of collecting societies in Nigeria.  The main issue is the ongoing feud between the two former collecting societies, MCSN and PMRS, and the Nigerian Copyright Commission (NCC).  Well, it looks like the beef is getting bigger.

The Guardian newspaper published a story this past Friday about allegations flying back and forth between MCSN and the NCC.  The news article is a bit cryptic, especially for those of us who are not fluent in Nigerian English, but it appears that the NCC and MCSN are on opposing sides in two different matters.

MCSN v. NCC

First, there is the old matter of MCSN suing the NCC (as its counterpart, PMRS is doing) over the Collecting Society Regulations and the section of the Copyright Act that authorizes these regulations.  (For those who are interested, the MCSN suit is: Musical Copyright Society of Nigeria LTD/GTE v. Nigerian Copyright Commission, SUIT NO. FHC/L/CS/478/2008, but this Ipper has no idea where you can find any reporting on the case.)  Basically, MCSN claims that the relevant sections of the Nigerian Copyright Act violate MCSN's fundamental human rights as protected by Sections 40 and 44 of the 1999 Nigerian Constitution, as well as violating Articles 10 and 14 of the African Charter on Human and Peoples' Rights.

NCC v. MCSN

The Guardian article discusses a second conflict between the NCC and MCSN.  According to the article, the NCC is currently investigating MCSN based on a complaint from the International Federation of Phonographic Industries.  The complaint alleges that MCSN is pirating films, both reproducing them and publishing them.  (Publishing, under the Nigerian Copyright Act, is making a work available to the public.)

MCSN claims that this complaint never existed and was only fabricated by the NCC in order to make it appear that the NCC's raids on the MCSN offices were justified.  NCC says it's legitimate.  MCSN says that NCC is harassing MCSN and its affiliates by questioning collecting societies in the UK (Performing Rights Society and Mechanical Copyright Protection Society) and raiding MCSN offices in Nigeria.  NCC says it had to question the UK societies because MCSN claimed to have received authorization for their alleged pirating behavior from those societies.

Clear as Mud

This Ipper is quite confused by all of this, and doesn't really know what to believe.  Both parties involved in this battle have been known to spin things a little bit away from the truth.  What is certain is that MCSN does not have authorization to act as a collecting society, and that, in general, the NCC has authority to conduct investigations in matters of alleged piracy.  The Director General has stated that MCSN cannot receive authorization to become a collecting society until it meets transparency requirements.  MCSN seems to think there it is actually some sort of NCC vendetta that is preventing MCSN from receiving authorization.  Both parties claim to be acting in the best interests of copyright and the artists.  Maybe some readers can shed some light on the situation.

One thing is clear, whatever is going on here, it's not doing anybody any good, especially not the artists.

They're Your Pirates, You're Responsible

We are all aware that intellectual property issues are global issues, but do we realize on how many levels this is true?  Sometimes they go beyond clashes in countries' policies and down to a very basic level of individuals' actions.

It's no secret that many of Nigeria's counterfeit-producing optical disc plants are owned by Chinese.  What is surprising, at least to this Ipper, is that Nigerians seem to be blaming China for this fact.  Indirectly, the presence of Chinese-owned optical disc plants in Nigeria is China's fault.  The plants have relocated due to increased copyright enforcement in Asia.  But, there is likely no Chinese policy that says those wishing to create pirated discs should go to Nigeria, and depending on where the companies incorporated, the Chinese government may have little to no control over them.  Yet, in his opinion piece for The Daily Sun, Tunde Thompson lumps Chinese-owned optical disc plants together with a string of failed Chinese government sponsored projects. 

IP is very important in Nigeria; some sources claim over 60% of the population get their income from creative industries.  Piracy is certainly a hot-button issue.  It seems the actions of a few Chinese citizens in Nigeria could damage relations between the two countries.  What can China do about it?  How far should one country stick its neck out to protect the intellectual property laws of another country?  And where do the pirates go next if Nigeria manages to crack down on them?

Nigerian Trademark Alphabet Part 2: The Companies' Names

As promised, here is the list of companies to go with the trademark alphabet.

A – AIT A

B – Mr. Bigg’s B logo

C – Chams C

D – Disney D

E – Eva E

F – Fanta F

G – Glo G

H – Hyundai H logo

I – Intercontinental bank I logo

J – Johnson and Johnson’s J

K – Kenyan Airways K logo

L – DHL L

M – Marriott M logo

N – Nokia N

O – Oceanic O logo

P – Peugeot P

Q – Apple Quicktime Q

R – Rolls Royce Rs

S – Sheraton S logo

T – MTN T

U – Unilever U logo

V – Virgin/Virgin Nigeria V

W – Microsoft Word logo

X – Exxon double x’s

Y – Yahoo Y logo

Z – Zenith Z logo

Nigerian Trademark Alphabet

I got the idea for this trademark alphabet from my own Trademarks professor, Judge Kent A. Jordan.  It teaches students how important and valuable trademarks are by showing the students how easily they associate the marks with the products/services the marks represent.

Obviously, the marks belong to their respective companies.  I am making no claim to copyright in any selection or organization of the marks.  I am posting this here in case it can be of use to anyone else in Nigeria or elsewhere. Please take, use and adapt it.

This alphabet was created for use in teaching Nigerian secondary students about trademark law.  I tried to select marks that would at least be familiar to the average Nigerian, even if the companies themselves are not Nigerian.  For some, such as the letter "Q," I just had to settle for what I could find.  Suggestions of better marks are welcome.

Just to make it a little interesting, and to keep you tuned, the companies will  appear on Sunday's post.

Developing Decent Digital Distribution Solutions

A couple of press releases recently caught the Ippers' attention.  Two groups are each working to ensure that fans get their digital music and artists get their money, but they're working from different angles.

Getting the Infringers to Fight Infringement

Freshman at Vanderbilt University in Nashville, TN, politely called "first-year students," are developing a new distribution system for the music industry.  The project is part of a seminar called "Stealing in Music City."  In addition to their own perspective as the ones trying to get the music, the students will have the input of various industry stakeholders and experts, including Alice Randall and this Ipper's own copyright professor, Steven Hetcher.  Hopefully the students have some very interesting and viable ideas.  The class will present its three solutions in class next week Tuesday.  Ip's What's Up will let you know when we hear about any of them.  (Full press release.)

Europe Re-Evaluates Collective Management

This week, WIPO is also looking at the affect of the digital age on music distribution.  The Conference to Examine Future Development of Collective Management of Copyright and Related Rights in Europe meets this week Monday and Tuesday in Brussels.  The 400+ participants are listed to include: "collective management organizations, lawyers, academia, intergovernmental and non-governmental organizations, developers of digital technology and services and creative industries."  Where are the users?  Looks like the student group at Vanderbilt might be smaller but more comprehensive in its stakeholder input. (Full press release.  Conference Info.)

It's great that collecting rights organizations in Europe are engaging in discourse about the changes in the industry and the role they can play in facilitating positive developments.  Some other countries could use a few good collecting organization conferences, especially in the developing world.  (Africa, the Middle East, India.)

Nigeria and the Special Case of the USTR Special 301 Report Pt. 2

This is part two of a two part series looking at Nigeria's status in regards to the US Trade Representative Special 301 Report.  In part 1, we discussed the praise the Nigerian Copyright Commission and its Director General, Adebambo Adewopo, have received for getting Nigeria removed from the USTR Special 301 Report.  Today, we are looking at what's really going on.

Quick Recap

For two years, the Nigerian press and various government officials have been citing Nigeria's removal from the Special 301 List as proof of the Nigerian Copyright Commission's success in its war on piracy.  This "list" is the USTR Special 301 Report.  The report actually includes three lists, each containing countries whose laws or practices have adverse affects on IPRs: Priority Foreign Countries, Priority Watch List, and Watch List.

The Real Deal

It seems somewhere along the way, someone in Nigeria got confused.  Nigeria was never on any of the lists contained in the Special 301 Report, at least not this century.  Previous reports appear to only be available from the Library of Congress.  (Thank you to a very kind reference librarian at Vanderbilt University for that information.)  A few Special 301 Reports have mentioned Nigeria, but always to cite activities from the past year that have protected IPR.  (Special 301 Reports from 2002 through the current year are available at the USTR website; the 2001 report is available here.)

The closest Nigeria has come to being on these lists has been inclusion in the International Intellectual Property Alliance's (IIPA) reports suggesting which countries the USTR should place on the various lists contained in the Special 301 Report.  IIPA is a group of trade associations that, among other things, assists the US Trade Representative with its Special 301 Report.  IIPA prepares its own report of suggestions for the USTR to consider in compiling its report.  (IIPA Reports from 2001-2008 available here.)

IIPA first gave Nigeria a "special mention" in 2005, citing outrageous piracy levels in sound recordings and the proliferation of optical disc replicating plants.  Concerns over optical disc plants kept Nigeria in this section through 2006.  Last year, IIPA suggested putting Nigeria on the Watch List.  This year, the organization made the same suggestion.  So in fact, Nigeria is closer than ever to being listed in the Special 301 Report.  Rather than celebrating the "accomplishment" of being taken off a list they were never on, members of the Nigerian intellectual property community should be working hard to reverse the trend of increased attention from IIPA.  This will help Nigeria stay off the Special 301 Report lists.

Nigeria and the Special Case of the USTR Special 301 Report Pt. 1

For the past two years Nigeria has been praising the Nigerian Copyright Commission (NCC) and its Director General, Adebambo Adewopo, for getting Nigeria removed from the Special 301 Lists. But inside sources say Nigeria was not removed from the Special 301 List, because Nigeria was never on the Special 301 List. This makes the Ippers ask "what's up?"

A two part series, we'll look first at what the Nigerian Press has been saying, and then at what's really going on.

The Special 301 List

What the Nigerians refer to as the Special 301 Lists is actually part of the United States Trade Representative (USTR) Special 301 Report. This report "highlights shortfalls in intellectual property protection" and "acknowledges progress" by US trading partners. (Spicy IP has a good overview of the Special 301 Report and the controversy surrounding it.) The Report includes the following lists of countries whose laws or practices have adverse affects on IPRs: Priority Foreign Countries, Priority Watch List, and Watch List.

Nigeria's "Removal"

The first reports of Nigeria's removal from the Special 301 List came in May 2007. A Nigerian newspaper, The Vanguard, and an online news source, nun gu entertainment, both carried the story. "US delists Nigeria from piracy blackist, as govt moves to enforce IP regulation," read the online headline. Both articles cited the Deputy Economic Consular at the US Embassy as the source of the news. The online story also carried a direct quote, "We have decided to keep Nigeria off any of the 301 lists this year." Keep Nigeria off, not remove.

From there, other articles, editorials and speeches included the news. An article in Sun News used the "delisting" as evidence that Adewopo was doing a great job at the NCC and anyone saying otherwise was involved in a smear campaign against him. Lagos IP law firm Aluko & Oyebode included the wonderful news in their July newsletter.

In a few short months the removal of Nigeria from the Special 301 List was being touted as one of the NCC's greatest achievements. The Chief Minister of Justice and Attorney General of the Federation congratulated Adewopo on his achievement. The President of the Federation also commended the NCC for its anti-piracy work.

By the beginning of 2008, the story had changed a bit. Several papers carried an article citing a June 2007 letter from the Former US Ambassador to Nigeria as the source of the information about Nigeria's delisting. Added to this was also a statement from the Attorney General that "Government was aware that until now, the country had always been on the U.S. Special 301, adding that the President has deemed the Commission as deserving of commendation in creating an enabling environment for the country’s unprecedented delisting." (The same info was carried in Sunday Benjamin's article in The Daily Trust.)

Stories about Nigeria's amazing feat spread beyond the country's borders. AllAfrica.com picked it up just a few months ago:

Recently, the Nigeria Copyright Commission (NCC) got a rare pat on the back when the United States removed Nigeria from the Special 301 Lists of countries blacklisted for condoning intellectual property theft in recognition of the renewed battle against the increasing spate of piracy and counterfeiting.

In various seminars and paper presentations around the country, members of the Nigerian government continue to sing praises of the NCC's anti-piracy programs to the tune of the Special 301 delisting.

But the question remains, was Nigeria really removed from the lists in the USTR Special 301 Report?

Anybody Feel Like Starting a Collecting Society?

Nigeria is desperately in need of one.

What is a Collecting Society?

For those who are unfamiliar, a collecting society is an intermediary between the user of a work and the owner of the copyright in the work.  An artist's work can be used by millions of people any where in the world at any time.  Logistically, it's impossible for one artist to monitor all the possible places where the work might be used.  The collecting society pools the resources of many artists and does this monitoring for the artists collectively.  There are many different types of collecting societies, such as performing rights organizations and reproduction rights organizations.

The Situation in Nigeria

There are currently no collecting societies in Nigeria.  This has been the situation for the past three years.  Grab some popcorn, and enjoy a little drama-filled story.

One, Two, None - the Background

Once upon a time Nigeria was a British colony.  The British Performing Right Society (PRS) represented the colony's musical artists.  Sometime after gaining independence, Nigeria decided it didn't want any foreign owned companies operating inside it's borders.  So the Nigerian section of PRS became MCSN, Musical Copyright Society of Nigeria.  And everything was fine.... Or so it seemed.

The Nigerian government was concerned that the lone collecting society was taking advantage of the artists, taking too much of the royalties for itself and not accounting completely for what it had collected.  The government decided to do something about this and issued the 1992 Copyright (Amendment) Decree.  (Laws of the Federation of Nigeria 2004 Cap. 28 Sec. 39.)  This decree authorized the Nigerian Copyright Commission to set up regulations for collecting societies and required collecting societies to register with the Nigerian Copyright Commission.  The Commission's regulations went into effect in 1993.  (Copyright (Collecting Society) Regulations, 1993.)

MCSN applied for approval but was denied.  The Commission said that MCSN was being sneaky, not disclosing enough information about the royalties it was collecting for its artists.  Like the Itsy-Bitsy Spider continually going up the water spout, MCSN kept renewing their application, but down came the Commission and denied it every time.

The Commission did recognize the importance of collecting societies, so, in 1994, it helped form a new organization, PMRS, Performing and Mechanical Rights Society of Nigeria.  This made MCSN really angry.  Some people thought there should only be one collecting society in the country, and MCSN was there first.  MCSN kept trying for approval, and the Commission finally granted the approval in 2005.  Within six months the President of Nigeria revoked the approval and removed the Director General of the Commission.  The Director General's law firm had represented MCSN in the past and the President felt there had been a conflict of interest.

Somewhere in all of this PMRS and MCSN discussed merging.  The merger talks fell apart, and during this time PMRS's registration lapsed.  And then there were none.

How the Situation Sits Today

Both MCSN and PMRS claim to be proper collecting societies in Nigeria (as can be seen from their websites.)  Both are currently suing the Nigerian Copyright Commission.  Neither can collect royalties for their supposed clients.  Artist are not getting paid, and they're losing out on other opportunities.

International companies, such as MTV, don't know who to pay, so they don't pay anyone.  Nigerian superstar D'banj recently explained to the House Committee on Information & National Orientation that he and several other Nigerian music stars have well over $30,000 each sitting in a bank account in South Africa.  In MTV's bank account.  MTV doesn't know who to pay, so it's holding the money until it knows who to pay.  It's nice that MTV isn't spending the money, but the artists would really like to get it sooner than later.  In the meantime, the artists don't get paid.

Whenever MCSN or PMRS attempt to bring a lawsuit on behalf of one of their artists for infringing performances, the court throws the suit out citing a lack of standing by the plaintiffs.  Restaurants, hotels, bars, clubs and even radio stations know they can't be sued for playing music without paying royalties.  They play whatever they want, whenever they want.  (On the upside for listeners, this produces a lot of really neat remixes, recently featuring a number of Obama's speeches mixed-in.)  The artists don't get paid.

D'banj has also highlighted another way in which the lack of collecting societies is hurting artists.  Nigerian artists are losing opportunities to reach world-class stardom (and at least get royalties from other countries).  International superstars (including R.Kelly and Snoop Dogg) have approached Nigerian artists about doing collaborations.  These types of collaborations could turn Nigerian artists like D'banj or 2Face into the next Akon, a household name around the world.  But the deals fall through.  Why?  As D'banj put it, the artists ask a simple question for which there is no answer, "How do we get our royalty?"

The Questions

Now, being a lowly little intern with no collecting society experience, this sad soap has left this Ipper with some questions.  Perhaps some fellow IP enthusiasts can shed some light on the subject.

Why can't the artists just collect the money MTV owes them by themselves?  Does it have something to do with agreements they may have signed with MCSN or PMRS?  Is MTV somehow prevented from working directly with artists?

Is there any reason interested people with the available capital couldn't come in and start a new collecting society in Nigeria?  One that complied with the provisions of the Copyright Act (Sec. 32B in this version) and the Collecting Society Regulations?  Would the government allow it?  And if it is possible, where can we find these interested people with available capital?  The artists are suffering.

And lastly, can the international superstars stop worrying about getting their own money from Nigeria and collaborate with these amazing Nigerian artists anyway?  Please!

 

 

Image credits: map outline from About.com:Geography; D'banj photo courtesy of goldenrail; 200 Naira notes courtesy of Encyclopedia Britannica; 5, 20, 50, 100 and 1000 Naira notes courtesy of Statni vlajky sveta; diagonal bills courtesy of Hit Naira; all images (minus D'banj photo) found using Creative Commons, but I couldn't always find information regarding the license for the images.

Open source proponents are for strong copyright protection

Open source proponents get a bad rap when it comes to copyright. Often, they are called anti-copyright or copyleft. On some level, it makes sense. Open source software is advertised as being free as in freedom, and free as in free beer. Yet, when thinking about copyright law and restrictions, the last word that comes to mind is free. However, open source proponents are not actually anti-copyright. Think about it… They can't be. Copyleft or open source could not exist without copyright. Open source is actually a world away from what would truly be free in the world of IP, and that's the public domain.

Copyright laws enable the creators of open source software to make code available through an open source license (usually the General Public License). This license is what forces the users of the open source code to keep it open. In contrast, one could not force a user to make code in the public domain open even if one used that code to create a derivative work.

Thus, enforcing an open source license is really using copyright laws in full force. One is barring people from using code the way they might want to unless they agree to make the code open. That is clearly using copyright law to restrict the way one's work is used. It may bar some people from using the code at all. One might even argue that forcing code to remain open is more restrictive than keeping code closed, because people with closed code typically need not invoke copyright law. No one will ever have access to the code to be copied, so copyright becomes a moot point with closed code.

Thus, in reality, open source actually embraces copyright in its current form. It uses the protections of copyright more than closed source code does. It's not really anti-copyright. The only difference between open and closed source code with respect to copyright are the conditions being forced on the user. However, the restrictions are ever present in both. Open source restrictions utilize copyright to its fullest, giving the creator exclusive control over their work to keep it their code open.

A Spectrum of Perspectives

There is a common axiom that you should not discuss politics or religion at a dinner party. But what about intellectual property? One part of the Ip's What's Up team found out that this topic can be just as impassioning as the others.

This past weekend I had the opportunity of attending a friend's birthday party. A birthday party is probably one of the last places you would expect to find much conversation about intellectual property, but we had plenty. The various opinions seemed to represent a good cross-section of different perspectives on Intellectual Property Rights (IPR), so I think it could be helpful to offer a little recap.

[This video and the sound recording in it are under a different license than the blog post.  Video: cc by-sa 2008 goldenrail.  Sound recording in the video: "nunoo" cc by-sa 2004 maki, www.myspace.com/theopenwound.]

[Technical difficulties?  If the video does not appear above, you can watch it at youtube.]

Stronger is Better

First, I spoke with an Economic Counselor for the United States. He had met with the local government earlier in the week to check on the progress in its war on piracy. The local government has worked closely with the United States and other developed nations in effort to strengthen its IP laws and increase the level of copyright enforcement in the country. This gentleman clearly represented the camp working for stronger IPR, as well as the international relations and trade aspect concerns that are part of IPR.

Intellectual property is now one of the biggest commodities developed nations have. In order for these countries to reap the maximum benefits, the whole world needs to have strong intellectual property laws. Countries with large creative industries work hard to help make this happen. People on the developing country side can also be in this group. They want stronger protection in order to encourage foreign investment and often to protect their growing creative industries.  Stronger IP laws protect their domestic creations as much, or even more so, than foreign ones.

What Good is Protection if I Can't Get the Goods?

Next, I spoke to someone on the complete opposite end of the spectrum, a British NGO-worker who decried the lack of books in the country. "We just need more books, I don't care if they're copied or not!" she exclaimed. Here is one of the common arguments against increased copyright enforcement in the country. The legal supply clearly doesn't meet the demand. For those who want the products but cannot find legitimate copies, especially for things like text books, copyright seems like nothing more than a barrier to development.

Supply that cannot meet demand is not just a problem in the book industry. Two years ago the demand for Nigerian Home Videos in Nigeria was estimated at 50 million buyers, but only about 500,000 legitimate copies were produced. (NCC Committed to National Copyright Policy & Reform, 10 NCC Copyright Bulletin December, 2006 Vol. 3 No. 6, ed. Charles O. Obi.) Similar circumstances exist elsewhere, with music industries in many developing countries, and even to some extent in developed countries when dealing with out-of-print books and such.

Consumers who are generally concerned with copyright often justify obtaining infringing copies of these types of materials. They point out that the author wouldn't be receiving anything if they didn't buy the infringing copy because they cannot buy a legitimate copy. They may also blame the author for the shortage of legal goods.

Eh, So What?

Near the end of the evening, I had an encounter with a third group. Those who really don't care about or pay attention to IPR. Sometimes they are ignorant of the laws; sometimes, they just do not care. In this case, they were most likely the later. A high up government official from a developed country handed a higher-up official from the same country a clearly pirated DVD of an American Television series. For these people, piracy and infringement are matters for other people, for governments, enforcement agencies and private rights holders. They did not create the copy; they did not sell it; they are just 'innocent' purchasers.

This seems to be a very large group, and it blends into other groups, people who believe it is ok to make a copy of a cd for a friend, those who indiscriminately clip artwork from internet sites. It is highly likely that we have all fallen into this group at some time or another, and many people may be in this group with regards to some IP while falling into another group in regards to other IP.

In Between the Extremes

Of course, there are plenty of groups that care about IP but fall somewhere between the extremes represented at the party. There are organizations who want to change the system without chucking IP protection completely out the window or creating a single strict set of laws for the whole world. The trick for all these groups is balancing the interests of everyone involved, including the points of view above.

What the Google Book Agreement Tells Us about Copyright

There's been quite an uproar since release of the proposed settlement agreement between Google and the Author's Guild/Association of American Publishers.  A lot of people are discussing the settlement itself (including us here at Ip's What's Up), but this settlement agreement tells us about more than just the relationship between the parties.  It also provides us a lens through which to analyze the current state of our copyright system.

Good Things

The best thing about the proposed settlement agreement is simply that it's a settlement agreement.   The parties have found a solution without going through the whole litigation process, a solution that makes each participant feel that they are coming away in a better position than if they continued with the litigation.  Page six of the settlement agreement expresses this well:

WHEREAS, Plaintiffs and Class Counsel conclude that this Settlement
Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class in
light of the risks inherent in prosecuting the Action and the benefits obtained under this
Settlement Agreement.

I'm not necessarily talking about the actual settlement being good.  There's a lot of discussion out there on whether that's the case.  [The comments section of Lessig's post has some good discussion on the merits of the agreement, as does Medialoper.]  It's encouraging just to see private parties recognizing each others' rights and sorting out their differences without getting the government involved.

One commonly recognized purpose of copyright is to create a balance between the interests of creators and consumers.  Over the past decade, there has been a lot of criticism that copyright laws have lost sight of this.  The Google settlement, by focusing on creating the right balance, shows us that the copyright system can still work towards achieving this goal.

Wendy Seltzer suggests that the registry system created by the agreement seems more like something we should expect the government to provide.  But I disagree.  It makes more sense to me for the stakeholders to create a registry like this than to lobby the government for the creation of such an entity at taxpayers' expense.  The parties involved in this settlement are going to have a better idea of what's needed and of what's important for the registry than the government would.  Google has the funds (which the settlement requires them to use) for a large venture like this.   Additionally, as Lessig remarks, this arrangement allows "anyone who wants to build a competing and complementary database."  Besides, US collecting and performance rights societies aren't government run, and they seem to work well.  It's exciting to see the willingness of private parties to invest in the future of a copyright industry.

 

Here, We Still Need Some Work

The agreement also points to one glaring problem with the current copyright system: borders and boundaries.  Everything in the agreement only affects Google Book users in the United States, even though it affects authors from around the world.  This is because copyright, despite the many treaties, is national law.

The parties involved in the agreement brought suit in the United States  (District Court for Southern District of New York, to be exact).  The court does not have jurisdiction beyond the United States, and thus cannot make rulings or approve settlements that would affect laws in other areas.  This is good; we don't want the courts of one nation being able to dictate laws for other countries.  Unfortunately, the results of this division aren't always good.

Thanks to the Berne convention, authors from nearly every country in the world have their works protected in the US by US copyright law.  The same goes for their works in many other countries under those countries' copyright laws.  All the foreign authors whose works are protected in the US are part of the class involved in this agreement (unless they choose to opt out).  Yet, this agreement has absolutely no affect in their own countries. 

It seems strange to put geographical boundaries on something as open and location-agnostic as the internet, but it happens all the time.  Pandora isn't available outside the US.  Music fans around the world complain about not having access to the hundreds of music videos MTV posted online (and unfairly blame MTV for this).  Our laws are territorial, our communications are not. 

Unfortunately, the Google agreement does nothing to help in this area.  It's unclear if there is a forum that would have allowed the parties to come to an agreement applicable to the entire world.  Perhaps something like the International Arbitration Centre for Copyright & Image Rights (IACCI) could be utilized for this purpose.

Hopes for the Future

The Google settlement agreement leaves me with two main hopes for the future of copyright:

1. That the music industry can find a way to reach similar agreements instead of just suing the $&%* out of everyone and making the government their private task force;
2. That as agreements like this continue to be worked out in other areas of copyright, IP law, and trade, we can find some way to harmonize the world's access to information.

The Uncertain Future of Business Method Patents

This is an unscheduled News Update post.

Yesterday, the Court of Appeals for the Federal Circuit affirmed the denial of a patent for a business method of risk management relating to changes in energy costs.   The court ruled that in order to qualify as patent-able subject matter, a process must meet both parts of a two-part test (displacing the State Street "useful, concrete, tangible" test):

1. "tied to a particular machine or apparatus"
2. "transforms a particular article into a different state or thing"

There's plenty of coverage on the blogosphere:

Some US opinions seem very excited and optimistic for the downfall of business method patents: Techdirt and TechCrunch.

One British point of view seems a bit calmer; no point in getting excited until the case gets to the Supreme Court: The Guardian.

PatentBaristas gets down and dirty with the nitty gritty, including some court vs. legislature banter.

A rather in-depth look at the court's opinion is available at Patently-O.

And, if you're really interested, you can check out the whole opinion.

 

It will be interesting to see how the case affected the patent auction in Chicago yesterda, as well.  From the looks of IP Finance's report, the case shouldn't cause too much of a tidal wave in the area of IP trading.

Getting War and Peace Peacefully

Yesterday Google announced some very exciting news: an agreement reached between them and the other side of the Google Books lawsuit.  (Press release.)  This is very exciting!  I'm not going to get into the press release because IPKat has already done a great post with a copy of the press release and some commentary.  Instead, here is some information about the nitty gritty of the proposed settlement.  (The settlement is currently awaiting approval by the US District Court for the Southern District of New York.)  Later, we'll look at what the settlement could mean for general IP law and IP policy.

For a detalied expert opinion on the settlement, see Lessig's blog.

Benefits of the proposed settlement:

For the rightsholders (i.e. authors and publishers):

• cash payments for any works that have already been digitized (from $5 to $60 depending on the work)
• a portion of the proceeds collected by Google from the Google Library Project (63/37 split)
• usage fees based on how often their particular work is accessed
• inclusion fees for allowing the book to be included in the subscription database (basically like buying a copy of the book and the rights to reproduce it digitally and display it)  (expected to range between $25 and $200)
• the creation of a registry that's sort of like a collecting society (a book version of ASCAP/BMI/SESAC) that will maintain a registry of rightsholders and facilitate payments to the proper people
• the ability to opt out of the Google Library Project in whole or in part, provided they do so by April 5, 2011 [note: there is some concern that this gives the rightsholders too much power and defeats the purpose of copyright.  This author disagrees and feels that this provision allows rightsholders to exercise the rights given to them by the copyright law over digital versions of their works in the same manner they have exercised these rights over print copies.]
• promotion of other works via hyperlinks to publisher and author webpages
• a warm fuzzy feeling that their works are being appreciated and they are being compensated

For Google:

• the right to digitize works and compile the digital library (non-exclusive and subject to some restrictions, which may include rightsholder approval)
• revenue from the sale of subscriptions of its database, sales of individual books and advertisements (split 37/63 with the rightsholders, see above)
• a warm fuzzy feeling that it is making the world a better place

For us:

• a simple and easy way to google the library - we'll be able to search through millions of books the same way we can currently search through millions of webpages, and we will be able to view a certain section of the book surrounding our search terms (basically between 10% and 20% of the book)
• the ability to access the full text of books in the Google Library Project at local institutions that subscribe to the database, similar to JSTOR or ProQuest
• the ability to purchase on-line access to copyright protected books
• free and easy access to public domain books  (I've tried this out already by googling part of the first line of my favorite book, "it is a truth universally acknowledged."  Got the whole book right on my screen; it's pretty nifty!)
• access to the complete Google Library Project database at our local public libraries
• the ability to annotate and share annotations of books with others with whom we are collaborating, limit 25 (Google is all about the sharing)
• better disability access to works held at participating libraries (participating libraries who have digitized their collections with Google are allowed to use their digital copies for a variety of things including providing access to people who cannot use the physical books)
• faster access to knowledge via hyperlinks relevant to the works found in searches
• digital backups of works and easy replacement of destroyed or deteriorated hard copies (this may help solve some of the problems with library reproduction rights under the fair use doctrine in regards to digital copies)
• a warm fuzzy feeling knowing that our laws can work for us and make everybody (pretty much) happy

Now, the question is, since all this only applies to US access, how will it affect my Google Books here in Nigeria?

Why Congress, Why Part II

As promised, we are returning to the PRO-IP bill to look at Congress's reasons for the bill.  This may be our last look at S. 3325; there's a lot of other interesting stuff going on in the international IP world (check out the sidebar).  Also, if you haven't already done so, please submit your thoughts on some good things about IP protection!

Here is a brief look at two more reasons Congress listed as its sense for why the US needed to strengthen its IP laws: (S. 3325 § 503.)

• effective criminal enforcement of the intellectual property laws against violations in all categories of works should be among the highest priorities of the Attorney General
  

Why?  Why should criminal enforcement of intellectual property be more important than violent crimes, drug issues or the government's favorite enemy, terrorism?  I'm not sure I can buy this reason.  How do others feel about it?

• terrorists and organized crime utilize piracy, counterfeiting, and infringement to fund some of their activities

Oh!  That's why.  The IP criminals are terrorists!  At first I was very skeptical about this; it was the government crying terrorism like the boy cried wolf.  But I looked into it a bit and found that there is some support for this claim.  Most of the information and studies are about 3 years old.  The reports seem to show two separate connections between terrorist organizations and copyright infringement:

(1) terrorists engage in piracy in the same manner that they engage in a variety of other illegal trade, such as arms trafficking or drug running,

(2) people who have been arrested for piracy have been supportive of or have leanings towards terrorist organizations.

I will agree then that piracy, counterfeiting and infringement funds terrorist activities.  If terrorists are fundraising with pirated goods just as they are with drugs, then yes, piracy is technically funding terrorism.  It’s also possible that pirates who support terrorist organizations might donate funds they raised from their piracy.  Again, this can technically be called piracy funding terrorism.  If the terrorists sold flowers, would we enact laws against those? 

As another author pointed out, copyright infringement is its own issue.  Yes, it is illegal, so yes, the government should address it.  But protecting the rights of creators should not be mixed up with anti-terrorism laws.  I’m sure all illegal activities can be linked together in some way.  Drug dealers might drive over the speed limit; people who drink under age might also jaywalk; and terrorists might engage in copyright infringement.  That doesn’t mean that the laws dealing with each of these crimes should be all mashed together.

As for the organized crime claim, this seems like a problem from a logic game.  If a group of people have organized their copyright infringement activities so that there are large-scale manufacturing plants and elaborate distribution networks, as is the case in Nigeria for example, are the pirates using organized crime to support their piracy, or are the criminals using piracy to support their organized crime?

For those who are interested, here are some further links for information on the terrorism/piracy connections:

the government claiming a connection (2005)

report of person engaged in infringement and supportive of Hezbollah (2006)

the scary stuff: RIAA video claiming the link (2008)

and something a bit reassuring: Current US AG’s take on the issue (2008)

Gimme an I! Gimme a P!

I know in my last post I said I would continue looking at Congress' reasons for the PRO-IP bill (S.3325) this week, but I changed my mind.  I'm human; I'm allowed to do that.  Looking back over the first month of posts, I'm a bit disappointed.  They're all so negative.  I got carried away with the over-the-top-ness of the new PRO-IP bill and focused mainly on the downsides to intellectual property laws.  But IP laws aren't all bad.  I'd venture to say even the PRO-IP bill isn't all bad.  So I would like to take this post to present:  Some Good Things about IP Protection.

Of course, to start with, we have the time-honored intellectual property laws "promote the progress of science and the useful arts".  People are beginning to question this statement, but I think it's true.  Some people do things because they want to do them, or just because they can, but the majority of people work for some sort of incentive.  The question is finding the optimal amount of incentive, that illusive "balance" between creator and user.  So we can put down as good thing #1: promotes creativity.

Intellectual property rights (IPR) also promote other things, like investments.  If I want to create something, but I don't have the capital to do it, I have better chance of getting a money if I can offer the source of the funds something in return.  Knowing that my creation will have value, and could have a very large value, gives the people with money incentive to invest.  This is especially important in places like the drug industry, where lots of investment is needed.  There is also the emerging IP Finance industry, which allows IPR owners to use IP as collateral.  Good thing #2: promotes investments.

Some IPR even protects us.  Trademarks let consumers know about a product without having to do lots of research every time they want to buy something.  They allow companies to build a brand name, so the companies care about their products and services.  This results in better products for the consumers and better ability by the consumers to find those products.  Good thing #3: protects the general populace.

Besides the economic incentives for creators, IPR also provides assurance that the creator can maintain some control over their creation.  Even creators who forgo possible economic incentives usually hold on to some sort of control over their works.  Do a search on http://search.creativecommons.org and compare how many authors reserve some control rights compared to the number than only request attribution (which is also a right, but reserving no rights puts a work in the public domain).  Without this assurance, creators might be dissuaded from creating, for fear of creating a Frankenstein's monster over which they have no control.  Good thing #4: assurance for creators.

That leads us into a fifth benefit of IPR: identification.  Patents require a name; trademarks are registered to a company and copyrighted works; even if done anonymously or pseudonymously, copyrighted works have an author somewhere that can be contacted somehow.  That means if you like what a person created and want more of it, you know where to look.  Good thing #5: facilitates locating the creator.

Some people argue that IPR, especially copyright, inhibits building off of other people's work, because it gives the original creator full rights to all derivative works.  But this is only one side of the coin.  Copyright also encourages collaboration.  When one creator wants to use another creator's work in their own, they will need to contact the original creator (or rights holder, or licensing agency) to get permission (and pay money).   This will open a dialogue between the second creator and the first creator (or someone who has connections to other works) and could stimulate further ideas.  Two heads are better than one, they say.  Good thing #6: stimulates ideas and collaboration.

For brevity's sake, I'll stop there.  But I'd like to know: What are some of your reasons that IP protection is good?

Why, Congress, Why?

Today's look at the PRO-IP bill (S. 3325) will focus on the "Sense of Congress."  Perhaps there are reasons for the changes made by this law, things Congress knows that we don't understand yet.  Perhaps....

Here are four reasons Congress listed as its sense for why the US needed to strengthen its IP laws: (S. 3325 § 503.)  (Later this week, we will look at the rest.)

• the United States intellectual property industries have created millions of high-skill, high-paying United States jobs and pay billions of dollars in annual United States tax revenues;
  

Yes, this is probably true.  IP is so prevalent in society that I'll even accept that at least 1 out of every 300 Americans is employed in a high-skill, high-paying job because of an IP industry.  (Current population approx. 300 million.)

• the United States intellectual property industries continue to represent a major source of creativity and innovation, business start-ups, skilled job creation, exports, economic growth, and competitiveness;
  

Again, a true statement.  But while both these statements are factual, the nexus between them and the changes made to law seems to be missing.

• counterfeiting and infringement results in billions of dollars in lost revenue for United States companies each year and even greater losses to the United States economy in terms of reduced job growth, exports, and competitiveness;
  

Ah yes, the good ol' piracy is killing our industries and our economy.  I don't need to get into this because ars technica did a wonderful piece about "The dodgy digits behind the war on piracy."

• the growing number of willful violations of existing Federal criminal laws invoking counterfeiting and infringement by actors in the United States and increasingly, by foreign-based individuals and entities is a serious threat to the long-term vitality of the United States economy and the future competitiveness of United States industry;
  

This statement could be true; I have no idea.  I'm not a fortune-teller.  However, I think Congress overlooked something very important here:  "the growing number of willful violations."  The question should not be "how do we stop this growth?"  The question should be, "why is there a growing number of willful violations?"  Let's think about this for a moment.  What are some reasons people break the law?

1. Extreme Desperation: such as drove Jean Valjean to steal a loaf of bread in Les Miserables.  While that could be a reason for people supporting their families through the sale of pirated cds in third world markets , it probably does not explain the "growing number of willful violations" in the US. 
   
2. Ignorance: On the other extreme there's the ignorance plea, the kind used to excuse a child for stealing a candy bar from the supermarket.  "He didn't know any better; I'll pay for it," and all is well again.  With the high-profile lawsuits like Napster, Grokster and the Thomas case, as well as the ever present anti-piracy trailers at the beginning of every movie and warnings posted on everything we buy, it's highly unlikely anyone can claim ignorance of copyright infringement laws.
   
3. Bullshit: The general population either doesn't care about the law or doesn't understand the reasoning behind the law.  Or, even more likely with such a large increase in willful violations, the people DISAGREE with the law.  They don't think it's for their benefit, or even the benefit of the country as a whole.
   

Now, without getting into all the different philosophical theories about laws and legal systems, I would like to suggest that if there is a large showing of people who break a law or do not believe in a law, the lawmakers should step back and re-evaluate said law, and possibly who this government is "of," "for," and "by."

Image by: Lovelypetal cc-by, available at http://farm1.static.flickr.com/181/445070705_c2b64a0560.jpg?v=0

PRO-IP Bill is Now Law (and still wasting our tax dollars)

Well folks, he did it.  Bush signed the PRO-IP bill into law.  Now, I can only hope it goes unenforced.  Torrent Freak has a good post on just how crazy this new law is.  One thing people have been celebrating (people that aren't lobbyists or the RIAA) is the removal by the Senate of a section that would have given the DOJ the ability to bring civil infringement claims.  It was the DOJ itself that had to step in before Congress could be talked out of that idea.

A sigh of relief swept the country when the provision was struck.  There was a general feeling of "at least our tax dollars won't be fighting Hollywood's battles for them."  But it's a false sense of relief.  Our tax dollars are not as safe as we hoped or believed.  What am I talking about?  Title IV of the new law: Department of Justice Programs.

There's plenty in this title that could serve as fodder for burning our tax dollars (improved forensic research for IP crimes!), but I'm going to focus on one provision:  Sec. 401 Local Law Enforcement Grants.

The Federal Government has had a program in place for many years that provides grants to State and local governments to aid them in the prosecution of computer crimes.  (42 U.S.C. 3713.)  To obtain these funds, State and local governments need to have enacted laws that prohibit and penalize certain types of computer crimes, like on-line fraud or hacking.  The grant funds may be used for enforcing laws against and prosecuting computer crimes, and for the development of educational and awareness programs.

Copyright infringement was just added to the list of computer crimes.  In the law's language:

The Office of Justice Programs of the Department of Justice may make grants to eligible State or local law enforcement entities, including law enforcement agencies of municipal governments and public educational institutions, for training, prevention, enforcement, and prosecution of intellectual property theft and infringement crimes. (S.3325 Sec. 401(b).)

So there it is.  Our tax dollars are still hard at work to "protect" the mass media companies from theft.  A grant program that used to protect the security of our identities and the sanctity of our on-line information, now panders to the iniquitous MPAA/RIAA (or as one blogger called them, the MAFIAA).

Slight Changes, Big Effects?

Continuing our examination of S.3325, the PRO-IP bill, we're going to look at two separate provisions that I believe are interrelated.  The first of these is Sec. 105 of the new bill, Importation and Exportation; the second is Sec. 303, Joint Strategic Plan.

Don't Bring It In, Don't Take It Out - Sec. 105

Sec. 105 amends Sec. 602(a) of the Copyright Act (17 U.S.C. § 602), formerly Infringing Importation of Copies or Phonorecords.  Importing infringing works is considered, along with unauthorized importation of legally made works, to be an infringement of the exclusive distribution right (given in 17 U.S.C. § 106(3)).  That provision has been in the Copyright Act since 1976.  The new bill adds another way to infringe this right: exporting infringing works.

My initial reaction upon reading this was, "oh, wow, they're trying to help developing countries by doing what they can to limit the amount of pirated materials entering those countries."  After all, the Nigerian Copyright Commission's recent study of piracy in Nigeria found the US to be the fourth largest source of pirated goods in Nigeria (tied with India, and falling far behind Singapore, China and Malaysia.)  [See Survey of Copyright Piracy in Nigeria, The Ford Foundation (2008), p. 49.]

As I continued looking at the new bill,  I realized just how over-generous my reaction was.  The more likely real reason for the inclusion of exportation is much more self-serving.  I believe Sec. 303 holds a clue.

Never Fear, the Americans are Here! - Sec. 303

The goal of the Joint Strategic Plan outlined in Sec. 303 is to fight piracy, reduce the amount of infringing goods in existence... in the world.  It includes a subsection entitled "Enhancing Enforcement Efforts of Foreign Governments."  (§ 303(f).)  This includes giving "training and technical assistance to foreign governments." It's not a new idea.  The current Copyright Act provides for this a bit, just not in such infringement-fighting focused language.  (See 17 U.S.C. §  701(b)(3).)  The US government has been engaging in foreign trainings on IP law for some time. (Description of the program already in existence can be found on the Intellectual Property Rights Training Program website.)  A DOJ workshop in Nigeria last year on "Investigative Skills for Intellectual Property Crimes" discussed amending the Nigerian Copyright Act.  In Zambia, Intellectual Property Rights trainings are conducted by the USPTO. (Page 7 of link.)

So, if this provision doesn't really add anything new, why did it catch my attention?  Because of Sec. 105. 

Simon Says - Sec. 105 in light of Sec. 303

Section 105's inclusion of exportation is probably less for the US and more for developing countries.  Developing countries, developing their intellectual property laws, turn to countries like the US for examples, guidance and assistance.  It will be much easier for the United States to control the movement of infringing material made in other countries if the DOJ can say "look, we have this provision in our copyright law, you should put it in yours, too."  Several directors at the Nigerian Copyright Commission have told me that when the US comes in with suggestions for IP laws, the countries "just eat them right up."

Other countries enacting similar laws would benefit the US in several ways.  Not only could this lower the amount of infringing materials moving around the global market, it would also shift the burden of enforcement from the US to countries where the infringing works originate.  The pirates will be handled at the export stage, before they've had a chance to import goods into the US.

I neither condemn nor condone these provisions; I'm fairly agnostic towards them.  While I do think it's a bit sneaky, I also think it's a fairly decent approach.  There is  a sense of legitimacy added when a country is willing to do itself what it asks others to do.  Additionally, neither of  these provisions are creating any drastic changes.  The US government will continue to work with other countries in the area of IP laws, perhaps with just a little more focus on piracy.  And trading in infringing goods is still illegal, it's just illegal in both directions now.  What I'm interested to see is the impact this provision has on the development of global IP standards.