I teach intellectual property law, a subject that is attracting attention from economists, political scientists and people who simply want to make money. These, after all, are the rules that define the hightechnology marketplace. Are we doing a good job of writing those rules? SadlyThe answer is no. Three tendencies stand out.
First and most lamentably, intellectual property laws are created without any empirical evidence that they are necessary or that they will help rather than hurt. Second, the policymaking process has failed to keep track of the increasing importance of intellectual property rights to everything from freedom of expression and communications policy to economic development or access to educational materials. We still make law as though it were just a deal brokered between industry groups – balancing the interests of content companies with those of broadcasters, for example. The public interest in competition, access, free speech and vigorous technological markets takes a back seat. What matters is making the big boysat the table happy. Finally, communications networks are increasingly built around intellectual property rules, as law regulates technology more and more directly; not always to good effect.
It is rare to come across an example that illustrates all three of these failings but The World Intellectual Property Organisation has now managed to combine all three lamentable tendencies at once. managed to bring us one. There is no finer example than The Broadcasting and Webcasting Treaty, currently being debated in Geneva, . It combines all three lamentable tendencies at once – is an IP hat trick.
Much of what is broadcast over the airwaves is copyrighted – the broadcaster licenses the movie film or song from a copyright holder and then plays it to you at home. What you probably do not know is that nearly 50 years ago broadcasters in some countries got an additional right, layered on top of the copyright. Even if the material being broadcast was in the public domain, or the copyright holder had no objection to redistribution, the broadcaster was given a legal right to prevent it – a 20-year period of exclusivity. The ostensible reason was to encourage broadcasters to invest in new networks. The US did not sign this treaty. Has the US broadcast industry stagnated, crippled by the possibility that their signals will be pirated? Hardly. Copyright works perfectly well and no additional right has proved necessary. Has WIPO commissioned empirical studies to see if the right was necessary, comparing those nations that adopted it with those that did not? Of course not. This is intellectual property policy: we do not need facts. We can create monopolies on faith.
But now a new diplomatic conference is being convened to reopen the issue. Doubtless the goal is to abolish this right? There was never any empirical evidence behind it. Broadcasters in countries that did not adopt it have flourished, albeit casting envious eyes to the legal monopolies possessed by their counterparts in more credulous nations whose politicians are more deeply in the pockets of broadcasting interests. The right imposes considerable costs. It adds yet another layer of clearances that must have to be gained before material can be digitised or redistributed – compounding the existing problems of “orphan works”, those whose owners cannot be identified. So is the broadcast right on the way out? No.
In the funhouse world that is intellectual property policy, WIPO is considering a proposal to expand the length of the right by 30 years and a US-backed initiative to apply it to webcasts as well. After all, we know that the internet is growing so slowly. Clearly what is needed is an entirely new legal monopoly, on top of copyright, so that there are even more middlemen, even deeper thickets of rights.
What is the rationale for this proposal? Parity: “If the broadcasters have the right, we should too.” But wait. There was never any evidence that even broadcasters needed the right. And the capital requirements and business models of the two industries are entirely different. And the reach of the webcasts would in effect be global. And there is no evidence at all that webcasters need any kind of protection. And, and …
But to make these arguments is to be naive. WIPO is deep in the grip of the belief that more rights are better. Yahoo and a few other webcasting entities have very slick lobbying operations. The US representatives have, shamefully, caved in to them. To their credit, not many countries have yet accepted the need for a webcaster’s right, but it is unclear if their resistance will last. The “affected industries” have loud voices.
Eventually, a new treaty will be produced. A new round of “harmonisation” will begin – upwards, always upwards. An entirely unnecessary set of rights will have been created and created without evidence, perhaps reaching the heart of our new communications technology. And the lobbyists will return to their desks to plan again. Perhaps the growing furore about the webcast right will drive it off the agenda eventually. Yet the larger pattern of making decisions without empirical evidence, as a contract among the affected industries, will continue. This is a scandal. But at WIPO, it is business as usual.
The writer is William Neal Reynolds professor of law at Duke Law School, a board member of Creative Commons and the co-founder of the Center for the Study of the Public Domain