James Boyle: Constitutional circumvention

In September last year, I wrote about a very bad proposal being debated in the World Intellectual Property Organization (WIPO). The proposal was to extend the length of an existing set of intellectual property rights for broadcasters, and even apply them to webcasting. As I pointed out, there is no empirical evidence that these rights produce any social benefit. Indeed, the US has never had such a right and yet has a flourishing broadcast industry.

Extending the rights to webcasting, despite the manifest differences between the economic structure and global reach of the two media, was a jaw-dropping move with obviously bad consequences. We should be focusing on rules about conduct, not rights over content. If signal piracy and rebroadcasting is a problem, we should have a rule that narrowly focuses on that conduct, prohibiting unfair business practices by commercial competitors. The last thing we should do is create yet another set of long lasting property rights over the content.

Copyright offices around the world admit that there is a huge problem with ‘orphan works’ - copyrighted material for which the copyright holder cannot be found. Given the absurdly long copyright term, it is quite possible that the majority of the cultural production of the twentieth century consists of orphan works. Because of the difficulty of clearing copyright, those works remain locked up in the library. Even though the copyright holder has long disappeared, or would not mind, it is impossible to show the old movie, adapt the old book, play the old song, put the old poem in an anthology. Many libraries simply refuse to allow screening of movies until the copyright term has expired; probably no one would object, but the legal risk is too great.

Now imagine creating an entirely new layer of rights over everything that is broadcast or webcast, on top of whatever copyrights already cover the work. You find a copy of a movie in the library and manage, at great expense, to work out that it is in the public domain, or to get the copyright holder’s permission. Perhaps the work is covered by a Creative Commons license, granting you permission to reproduce. Not so fast! Even after trudging through all the orphan works problems in copyright, you would have to prove that this copy had not been made from a broadcast or webcast. More clearance problems! More middle-men! More empirically ungrounded state-granted monopolies! Just what we wanted. There are even some serious free speech problems.

What if only Fox or CBS has the footage of a particular public event? Do we let the broadcaster eviscerate the ideas of fair use, prohibiting other networks from showing fragments so as to comment on the events, or criticise the original coverage? The proposed treaty text allows for fair use-like exceptions but does not require them. Once again, we harmonise upward property rights for powerful commercial entities, but leave to individual states the discretion whether and how to frame of the equally crucial public interest exceptions to those rights. Increased property rights for broadcasters are required. The public interest in education, access, and free speech is optional. (Among other things, most of the recent drafts would outlaw home recording of TV and radio unless a special exception was put into the law, state by state.)

This proposal was so bad, so empirically threadbare, so unbalanced, that I had cherished a faint hope that the members of WIPO would abandon it. At least, I hoped there might be a comparative study of the nations that had previously adopted the protection and those that had not, to see if there was any need for such a change? What was I thinking!!? Why do we need evidence? With remarkably little public attention, the Broadcasting Treaty train is chugging ahead strongly, with states providing new draft proposals over the next two months for a possible decision in September. The status of the webcasting provision is still unclear. But the webcasters are pressing hard. Expect another poorly reasoned proposal to rise from the ashes, with the US playing a key role. The press seems to have missed the story. Bizarrely, the proposal is getting more robust criticism from industry sources, who can see how it will affect competitiveness on the web, than from librarians and civil libertarians who ought to appreciate better than anyone its effect on speech and cultural heritage.

Of course, the casting treaty is a paradigmatic example of the dysfunctions in our international deliberations on these issues; we have the absence of evidence, the mandatory rights and optional exceptions, the industry-capture, the indifference to harm caused by rights-thickets. But the representatives of the United States, who have played an ignominious role as cheerleaders for this silly treaty, have a particular, indeed a constitutional, reason to be ashamed.

Unlike their descendants who now work the floor at WIPO, the framers of the US constitution had a principled, pro-competitive attitude to intellectual property. They knew rights might be necessary, but they worried about industry-capture and unnecessary monopoly and so they tied congress’s hands, restricting its power in multiple ways.

Rights have to be of limited duration. (Congress has managed to get around that one by repeatedly extending the limit: Jefferson must be spinning in his grave.) They can only cover original material, which must be fixed in some material form. No rights over inventions that are already known, or over unoriginal compilations of fact. Of course, if the material is not within the core domain of copyright and patent, congress may go further, as it has with trademarks.

But over the material covered by copyright, where we are dealing with fundamental constitutional limitations, these rules reign supreme and congress may not circumvent them by turning to another constitutional source of power. What does this mean in practice? That is a complicated question. There are pending legal disputes about ‘bootlegging statutes’ and about foreign works that have been pulled out of the public domain as a consequence of the Uruguay Round of trade agreements.

In my view, the current drafts of the Broadcast Treaty would be unconstitutional if implemented in American law. They create new copyright-like rights over unoriginal material, indeed material that is frequently copyrighted by someone else. That violates a core restriction of the copyright clause of the constitution. They also ignore the fixation requirement.

But forget the attempt to predict what the Supreme Court would do if it heard the case. Are the US’s negotiators ignoring their constitutional responsibilities, and seeking to get a bad treaty passed with inadequate public debate of its desirability, constitutionality or consequences? About that there is no doubt at all. Shame on them. Jefferson and Madison would not approve. Should we?

James Boyle is William Neal Reynolds Professor of Law at Duke Law School, co-founder of the Center for the Study of the Public Domain and the author of A Manifesto on WIPO. His most recent work is Bound By Law, a ?graphic novel? on the effects of intellectual property on documentary film.

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