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.

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.

Something's Missing Here

The first of the US Presidential Debates was held this weekend.  The debate's focus was "national security and foreign policy," which Jim Lehrer said included "global finance."  But what about the global IP issues?

Now, I didn't actually get to watch the debates.  I'm on the other side of the planet and my internet connection is too weak to support CNN's live stream.  It's possible that IP was touched on during the debates and just not mentioned by any of the internet sources I read, but I doubt it.

Why is IP a Foreign Policy Issue?
Perhaps the state of the economy has made topics like IP development look like non-issues, but one doesn't have to look far to see that America's position on IP is critical to the its future relations with foreign countries.  Each week, IP Think Thank posts a list of the top intellectual property news from around the world.  The length of this week's Global Week in Review General Edition shows that there is a lot happening.  A lot in which America is involved in policy decisions and sculpting the direction of IP.

Most notable in relation to foreign policy are the WIPO meetings, which include the WIPO General Assembly, the IP-5 (Patent Offices of US, Japan, Europe, Korea and China) meeting on harmonizing patent procedures, and a variety of committee meetings spanning issues in every topic of IP.  There's also the matter of the US Special 301 Report, which effects the US's trade policies.  This Report is directly related to trade sanctions placed on foreign countries.  Some claim these sanctions violate America's duties under other treaties and force other countries to change their domestic laws for the benefit of American special interest groups.  (See IP Justice.)

In addition to issues in which the government is already directly involved, there are organizations in America and other countries pushing for global reform of intellectual property laws.    An intellectual property expert group in Canada recently delivered a report on the bio-tech industry that encourages loosing of patents in relation to medicines.  Australia's innovation review urges changes in the requirements for issuing patents, dramatic adjustments the court process for infringement cases, and the opening up of the flow of information in society.  The Electronic Frontier Foundation is involved in a lawsuit demanding public access to the Anti-Counterfeiting Trade Agreement negotiations draft work.  ccInternational, a division of Creative Commons, is working to introduce creative commons license options to jurisdictions around the world.  These reforms have direct implications for every segment of American society.  There are also private organizations and lobby groups pushing for tighter IP laws.

So if the candidates were to debate IP issues, what should the people know?  Here's a few things:

• WIPO's IGC committee has been discussing protection of Traditional Knowledge, Traditional Cultural Expressions, Expressions of Folklore and Genetic Resources for almost a decade.  Developing countries are pushing for strong protection in these areas.  What should America's position be on a treaty extending global rights to Traditional Knowledge and Traditional Expressions of Culture?
• The domestic IP policies of many countries depends on their placement on the Special 301 Report.  The President has the ability to unilaterally impose trade sanctions on countries he feels provide inadequate protection for US IP.  How will you use this ability?
• The five largest patent offices in the world are engaging in a series of meetings to reform their patent systems.  Additionally, Senator Jon Kyl recently introduced a patent reform bill in Congress.  (See Patent Docs for a report on the new bill.)  
• Non-profit organizations such as EFF and Creative Commons urge for changes to intellectual property laws that will create a freer flow of information.  While at the same time groups like the RIAA and other Hollywood representatives are pushing for stricter laws protecting intellectual property.  Do you think changes are appropriate?  If so, what kinds of changes would you encourage?

WIPO's New Direction with WIPO's New DG

The WIPO General Assembly began its thirty-fourth session this week.  One of the first orders of business on its agenda: electing a new Director General.  On Monday, Francis Gurry of Australia gave his acceptance speech.  (You can read his full speech here.)

Gurry's Goals
Mr. Gurry's acceptance speech contained all the expected rhetoric of unity and working together to improve the global state of IP.  It also contained thoughts on some specific areas needing attention.  Primarily, and encompassing all others, is the explosive growth of technology.  A backlog of patent applications in Patent Offices around the world is one direct effect of this growth.  Another is the increase of copyright infringement, made easier by developments in digital technology.  Mr. Gurry encourages building upon the existing Patent Cooperation Treaty (PCT) to address the first. The second issue, he says, requires a reexamination of WIPO's role as "the international organization responsible for intellectual property."

Beyond these classic IP issues of patent procedure and copyright infringement, the new Director General discussed issues of global concern where IP might be of assistance.  Mr. Gurry seems enthusiastic that IP holds possibilities for LDCs (Least Developed Countries) in terms of closing the knowledge gap and improving economies.  IP protection of traditional knowledge and "a global knowledge infrastructure" are two steps towards these goals.

Indeed, both of these are projects in process.  The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has been discussing international IP protection of these areas for eight years, and the newly established Committee on Development and Intellectual Property (CDIP) is working to implement a list of recommendations that includes expanding its PATENTSCOPE® database, creating agreements for access to other existing databases, and establishing "inter-regional IP Search Databases."

Mr. Gurry highlighted the relationship between advancements in technology and the fight against climate change, disease, and other such global concerns.  He urged WIPO to add its IP contribution to these challenges and proposed that a new Division in the Secretariat would focus on these concerns.

Where's WIPO
When BIRPI, the predecessor to WIPO, was originally formed, its purpose was to help facilitate international protection of patents, trademarks and industrial designs (under the Paris Convention), and literary and artistic works (under the Berne Convention).  The current focus appears to be a bit blurry.  As seen from the Director General's speech, WIPO's concerns now include:

• "the stimulation and diffusion of innovation and creativity"
• "the establishment of order in the market"
• "dealing with the growth of demand and internationalization of the patent system"
• "returning value to creators, performers and their business associates"
• dealing with "the scourge" of "risks to health and safety and consumer protection" arising from counterfeit goods
• "contribut(ing) to the reduction of the knowledge gap"
• contributing to "greater participation on the part of developing and least developing countries in the benefits of innovation and the knowledge economy"
• capacity building of LDCs
• "making intellectual property work to the advantage of all countries"
• "broadening intellectual property to make it more responsive to the needs of the developing world"
• "address(ing) global challenges" such as "climate change, desertification, epidemics, access to health care, food security and the preservation of biodiversity"

Intellectual property encompasses so much and touches on so many areas of life.  In its attempt to handle issues in several areas, WIPO seems to be pulling itself in different directions.  Is it a development org? An environmental agency?  An enforcement body? An administrative support system?  Mr. Gurry did recognize this confusion to some extent in his acceptance speech.  Commenting on WIPO's role in copyright, he pondered two alternatives:

Should that role be confined to awareness-raising and the training of customs officials, the police and the judiciary?  Or should it encompass a more robust engagement and, if so, alone or in cooperation with other concerned international agencies?

In some ways, it is good that one organization is trying to address all these issues.  It means that each representative is (or should be) aware of what's going on and how these issues coincide.  This could lead to more well-rounded and effective agreements, if agreements are ever reached.  Some committees, like the IGC, appear stalled with sharp divisions between developed and developing countries.  However, the CDIP actually seems to be getting somewhere.  At its first meeting, the committee began sorting through the list of recommendations it is to implement and took action on six of the forty-five items.

In Sum
Mr. Gurry has a lot of ideas for guiding WIPO.  The organization has been under scrutiny lately, and the world is very interested to see in what kind of direction this new Director General will take "the international organization responsible for intellectual property."