1. IP Justice “Tragedy of the Commons” The Threat to Civil Liberties Posed by Expanding Copyrights IP Justice Executive Director Robin D. Gross robin@ipjustice.org World Forum on Communication Rights Communications, Copyright, and Trade: (Resisting) the Enclosure of the Global Knowledge Commons 11 Décembre 2003 Genève, Suisse www.ipjustice.org

2. Dispelling the IP Myths: Romantic notions of authorship  Rights actually benefit giant corporations who exploit (not creators) “Intellectual property” is like other types of property  Your house not intended to pass into public domain  No fair use right to use your car  Public v. Private rights and objectives Unauthorized copying = “theft”  Much unauthorized copying is lawful No creativity or innovation without IP rules  Millennia of creativity without copyright More “protection” = more creativity  Too much protection prevents creativity & innovation (must find balance) www.ipjustice.org

3. Overzealous “Intellectual Property” Rights Threaten Freedom of Expression Greatest threat to communication rights (civil liberties) are private rights – copyrights, patents, and trademark rights - trumping freedom of expression Gov’t/State happy to oblige IP holders – Gov’t always wants more control over use of information Nature of digital technology makes copyright law “King” in information society Recent dramatic shift in copyright laws unhinge delicate balance of rights between creators, consumers, and distributors of creative works www.ipjustice.org

4. Copyright Laws Threaten Civil Liberties  “Anti-Circumvention” laws to enforce technical restrictions  Shrinking private copying rights (fair use / fair dealing)  Liability for innocent third-parties (tools, services)  Exclusive database rights over facts and data  Stronger IP enforcement measures  Copyright term extensions  Broadcasters’ rights www.ipjustice.org

5. “Anti-Circumvention” Laws to Enforce Technical Restrictions www.ipjustice.org Digital Rights Management (DRM) schemes restrict lawful uses Control over private performances (private experience) Outlaws “reverse-engineering” – prevents interoperability Impedes competition – creates monopolies on adjacent products Prevents freedom of expression about critical technical weaknesses Stifles scientific research – liability is too risky Prevents works from passing into public domain – stay locked up forever Ex: 1998 US Digital Millennium Copyright Act (DMCA) 2001 European Union Copyright Directive (EUCD) 1996 WIPO Copyright Treaty & Performances and Phonograms Treaty (Proposed) Free Trade Area of the Americas (FTAA) Treaty

6. Shrinking Private Copying Rights (Ex: Fair dealing / Fair use / Personal use) Lawful copying for education, research, commentary, criticism, and personal use are controlled or prevented altogether by DRMs “Breathing space” required for copyright to avoid conflict with freedom of expression guarantees Illegal to bypass the technical restrictions, even to engage in a lawful use. (Anti-Circumvention laws) FTAA – limit personal use to single copy, only for use by one person, and under limited circumstances Copyright holders argue “digital is different” – no digital fair use rights for public www.ipjustice.org

7. Liability for Innocent Third-Parties (tools, services)  Internet Service Providers (ISP’s) Must police and control systems Turn over customer information for prosecution Liable for the infringing activity of others  “Chilling Effect” on expression  Device and Equipment Manufacturers Must check with Hollywood lawyers before engineering or building devices that can interoperate with “content” (music, video, text, etc.)  Software Tools necessary for legitimate uses Archiving and Library tools sued because they can copy or access “content” Ex: 321 Studios (for making) and Tritton Technologies (for distributing) tools Ex: P2P file-sharing software (US and Japan already found software distributors liable for infringing activities of others) www.ipjustice.org

8. Database Rights – Ownership of Facts and Data www.ipjustice.org Exclusive rights over databases and information in them Facts, scientific data, general information, etc. Database rights are newly created - only exist in EU – and only very recently (EU Database Directive) US Supreme Court ruled exclusive rights on facts unconstitutional (can only copyright arrangement and selection – not facts themselves) Feist v. Rural Telephone But, (unwritten) database proposal in FTAA Treaty

9. More Severe Enforcement of Intellectual Property Laws www.ipjustice.org Criminalizing non-commercial infringements  Go to Jail WTO/TRIPS Article 61 – Prison for commercial infringement US 1997 No Electronic Theft Act – Prison for sharing 1 MP3 FTAA – Prison for NON-commercial infringements (“significant” infringements – Ex: P2P file-sharing) New subpoena powers to obtain personal information based on allegations of infringement – no need for finding by judge New powers to destroy property and equipment used in infringement (even for innocent 3 rd parties (ISPs) and without hearing) No need for private complaint before police bring charges Public financed customs authorities deputized as “copyright cops” to protect private interests

10. Copyright Term Extensions www.ipjustice.org GATT WTO/TRIPS International Standard – 50 years after the life of author for exclusive rights US – 1998 Copyright Term Extension Act (“Mickey Mouse Act”) - Now 70 years after life of author (originally was 14 years in US) - Legal challenge upheld by US Supreme Court as constitutional - But wisdom of extension questioned by Court Europe adopted term 0f 70 years after life FTAA Treaty – Proposal to require all countries in Western Hemisphere to adopt new US/EU term (except Cuba)

11. “Broadcasters’ Rights” www.ipjustice.org World Intellectual Property Organization (WIPO) Treaty in 2004 to create new “broadcasters’ rights” Grants new “Transmission Rights” - For broadcasters who neither create, nor own the “content” 50-year exclusive right to material passing over wires and satellites US to extend new “transmission right” to computer networks (websites)

12. US “Maximalist” Agenda Exported Overseas www.ipjustice.org But most countries are developing and have different economic and social needs than IP exporters (only US & UK) Ensure massive transfer of wealth from South to North US became strong by being a “pirate nation” – other countries not permitted the same path of development Only VERY recently did the US become “religious” about copyright And only for giant corporations who exploit – still no moral rights for the true creators in US

13. Communication Rights in Information Age www.ipjustice.org Nations Must Retain Sovereignty Over Domestic Information Policies Nations must be permitted to set intellectual property rules according to own traditions and culture Set rules according to own economic and social needs and individual circumstances IP importers should not be required to adopt rules of IP exporters in order to participate in international trade

14. Communication Rights in Information Age www.ipjustice.org Protection for “Intellectual Commons” Enrich Public Domain – valuable resource all share together Recognition that all intellectual works are based on pre- existing works Gov’t should enable access to public information (instead we see commercialization of public info – public already paid – but no access) Artists are harmed the most by shrinking public domain

15. Communication Rights in Information Age IP Rules Should Promote, Not Inhibit, Creativity Too much “protection” chokeholds innovation and stifles artistic development www.ipjustice.org

16. Communication Rights in Information Age Promote Free and Open Source Software Development Models as alternatives to proprietary systems National Security (Ex: Lotus Notes providing US Gov’t. with backdoor access to Swedish Embassy & Microsoft’s infamous “NSA Key”) Personal Security – More secure than proprietary systems Low Cost or Free – Developing nations can spend scarce resources on water and food (instead of Microsoft licenses) Customizable to Individual Needs Interoperability with Different Systems www.ipjustice.org

17. Communication Rights in Information Age IP Rules Should Shrink, Not Increase, the Knowledge Gap Moving into a “pay-per-use” society at a time when zero cost to disseminate knowledge Level of education depends on parents’ income Archiving, Library Activities Outlawed www.ipjustice.org

18. Communication Rights in Information Age Ensure Private Copying Rights Most copies are not infringements (although industry preaches and acts as if they are) Must have access to the tools that are necessary to engage in private copying if rights are to have any meaning Lessons of History: Industry attempted to ban piano rolls, radio, VCRs, MP3 players, etc –> But private copying has been shown to increase value www.ipjustice.org

19. Communication Rights in Information Age Protection for Intellectual Freedom Freedom of thought, freedom of expression require access to ideas and information Reverse-Engineering – take it apart, figure out how it works, learn how to make it better Right to learn and teach ourselves www.ipjustice.org

20. Communication Rights in Information Age Communication Rights are Human Rights in an Information Society Freedoms of Expression & Press & Thought Minds require knowledge to function and develop (just as bodies need food and medicine) Access to knowledge is key in information society Technology gives unprecedented opportunity to expand human knowledge and development (but also unprecedented means to restrict access to knowledge) www.ipjustice.org

21. International Freedom of Expression Guarantee www.ipjustice.org UN Universal Declaration of Human Rights Article 19 “Everyone has the right to freedom of opinion and expression; this right includes freedom … to seek, receive and impart information and ideas through any media and regardless of frontiers.” We, the people, must hold our governments accountable to this standard

22. www.ipjustice.org IP Justice “Tragedy of the Commons” The Threat to Civil Liberties Posed by Expanding Copyrights IP Justice Executive Director Robin D. Gross robin@ipjustice.org World Forum on Communication Rights Communications, Copyright, and Trade: (Resisting) the Enclosure of the Global Knowledge Commons 11 Décembre 2003 Genève, Suisse