Consumers' digital rights are threatened by this Pacific trade deal

This week's leak of a recent version of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP) has sparked much outrage over the maximalist copyright and patent policies that the United States government, in particular, is seeking to impose on countries around the world, says CI's digital expert Jeremy Malcolm.   

Using the cover of trade negotiations, which were once used to negotiate mutual reductions in import tariffs, the TPP seeks to make significant, permanent changes to the intellectual property laws and policies of the countries of the Asia-Pacific region – not to mention the many other significant legal and regulatory changes contained in other chapters of the agreement.

These changes would limit the ways that consumers can use digital products, and allow copyright owners to meddle with our access to the Internet, whilst jacking up the prices of IP-intensive goods such as books and medicines.

The United States is not the only country pushing anti-consumer intellectual property rules – for example Mexico wants a life plus 100 year copyright term, which would leave Franz Kafka's works still under copyright today, and Australia is bucking the recommendations of its own IT pricing inquiry in pushing for tougher limitations on the circumvention of digital locks.

Whilst there may have been some justification in negotiating tariff rates behind closed doors, there is no justification to change intellectual property laws in the same opaque and unaccountable fashion.

These are issues on which the public has a right to know what is being negotiated on their behalf and to participate in shaping the negotiations.

There remains a good case that the TPP, as a whole, ought to be rejected regardless of its content unless there is a radical improvement in the transparency and accountability of the negotiation process.

But at the end of the day, there are powerful commercial and political forces behind the TPP, and significant stakes beyond just intellectual property, which might just push the agreement over the line.

If that happens, we need to pay a lot more attention to the good (or at least, the less bad) proposals in the IP chapter of the TPP, and to support those as a fallback position to the rejection of the whole deal.

In this context, a point that many commentators have missed is that most of the other countries negotiating the agreement are pushing back against the most extreme proposals with much more balanced rules, some of which are actually good for consumers.

These contributions could be the saviour of the TPP for consumers if, despite our wishes, the agreement is pushed through regardless.

For example there are innovative proposals from Chile, Vietnam and Peru to uphold the public domain, a Mexican proposal to preserve parties' flexibility to refuse recognition of software patents, and alternative and more flexible approaches to the vexed questions of digital locks and ISP liability.

The TPP doesn't deserve to succeed – but if it will anyway, we need to take a more nuanced approach to it than just opposing the text's most extreme positions.

We also need to recognise those provisions that could serve consumers relatively well.

Whilst maintaining our call to stop the TPP if the negotiators won't let us be a part of it, we can also, quite consistently with that, demand that any new treaty or agreement should be based around provisions that are in the broad public interest rather than narrow corporate interests – and there are some such provisions in the leaked TPP text, that deserve qualified support from the consumer movement.

Can reading to children really be against the law?

Despite some ridiculous applications of IP law, CI’s Jeremy Malcolm sees a chink of light in stakeholder discussions on copyright usage. 

Copyright law is a balance between the interests of creators and those of consumers.

Creators expect to be able to earn a living from their work, which usually involves selling or licensing the right to reproduce or publicly perform it, and copyright makes this possible.

At the same time, copyright allows consumers to make use of works in various ways that do not amount to an economic activity, including private uses such as singing a song in the shower, reading books to children, and copying a CD onto your portable music player.

At least, it does so in theory. In practice, some of these private uses have come under threat, often due to changes in technology.  

Mercifully, singing in the shower is still OK; but uploading a video of yourself singing to YouTube is a copyright infringement. Reading to your children is fine, but it was recently revealed that in Belgium, public libraries in which volunteers read story books to children are being charged money for that privilege. And copying a CD onto your portable music player, along with similar acts of format shifting, is still illegal in many countries of the world.

It is issues like these that prompted Consumers International, in partnership with BEUC (the European consumers association) and Copyright for Creativity (a joint industry and consumer initiative) to hold a meeting in the library of the European Parliament, hosted by Dutch MEP Mariette Schaake.  

The objective was to discuss these issues with copyright owners and MEPs, and to work towards agreement on short-term solutions that could be put in place while we wait for the law to catch up. Reflecting this, we titled the meeting “I Want it Now!: Creators Addressing Consumers’ Needs in the Digital Age.” 

The first part of the meeting took the form of three moderated debates on the topics:

·         There are uses of music in education that should never require payment;

·         Users and creators must be able to use copyrighted material to produce a new compound work for non-commercial purposes without needing a license; and

·         Consumers should be able to use lawfully-acquired/licensed copyrighted material for any purpose within their home and personal network.

Interestingly, it was not only consumer representatives who argued in favour of these propositions. In fact, those in favour in the first debate were Martyn Ware, founder of music groups The Human League and Heaven 17, and Konrad Boehmer, composer and ex-president of Dutch collecting society BUMA/Stemra.  

Those against included Boehmer’s colleague Robbert Baruch, current Manager for Public Affairs of BUMA/Stemra, as well as Marianne Rollet from the International Confederation of Authors and Composers Societies.

Following the debates, we discussed what could be done now to address the concerns that consumers had voiced.  

The copyright owners’ representatives did not accept all of the concerns, and correctly pointed out that some of them (such as the inability to access some content streaming or download services across borders, even within Europe) pointed to problems in the administration of copyright, more than to shortcomings in the law itself.  

Nevertheless, there was a consensus to work towards developing a joint best practice standard to allow for more flexible use of existing copyright exceptions or limitations, beginning with the right to make quotations (which is the only compulsory copyright limitation in international law).

This is an excellent starting point, since an appropriately broad and flexible application of the quotation right could facilitate many creative uses of copyright works for purposes such as non-commercial remixes, mash-ups, home movies, fan fiction and art, and online video sharing, the legality of which in most of Europe is currently ambiguous at best.  

If we can successfully develop a shared understanding with copyright owners on the flexible application of the quotation right, the outcome will provide a template for future law reform and may even open the door to further fair use rights for consumers being agreed in the future.

You paid to download it, so do you own it?

Paul Sweazey on the crucial difference between owning copyrighted material and licensing it. 

Paul will be presenting on this at Consumers International's global conference Consumers in the Information Society: Access, Fairness and Representation, 8-9 March, Kuala Lumpur, Malaysia.

Is Resale the key to Consumer Ownership?

If you can't resell it, you don't own it; if you can, then you do. That seems to be the message from US Federal Court Rulings over the past two years in a case called "Vernor v. Autodesk". 

After an initial ruling and an appeal that overturned it, the implication was that buying to own required three things: 

(1) only pay once

(2) possession doesn't expire, and

(3) the license doesn't forbid resale. 

This was just one case in one jurisdiction (the US), but it is clear that legal minds are grappling with the difference between licensing and owning, and with the equivalence of ownership and the right to resell.

Consumer voice should help define ownership

If consumers are to have the right to own the movies, music, books, and games that they buy and download, then shouldn't consumer advocates be involved in defining ownership, drafting the boilerplate license agreements, and specifying the attributes of digital personal property? Should you be waiting for Hollywood, or the music labels, or book publishers to do these things without you?

A2K conference

I'm going to be speaking at the upcoming global conference, Consumers in the Information Society: Access, Fairness and Representation organised by the A2K Network. I'll speak about a technological middle ground called the IEEE P1817 Standard for Consumer-ownable Digital Personal Property. The standard will define the technology by which a movie, song, book, or game can be made both copyright-respectful and consumer-ownable. During the talk I will describe the concerns of groups such as the Motion Picture Association of America (MPAA) and the Electronic Frontier Foundation (EFF) over P1817, but I hope you won't be disappointed when I fail to demonise either side. 

There are certain baselines that neither side should compromise, and those baselines are strictly honored by the Digital Personal Property (DPP) standard:

• Suppliers (copyright holders) will never stop defending their right to control public distribution (the essence of IP ownership).
• Consumers will never stop claiming their right to unfettered and unmonitored private usage, sharing, customisation, and exchange of what they buy (the essence of personal ownership).
• Both will defend their baseline rights whether the product is physical (shippable) or downloadable (electronically deliverable).

If your goal is to find a peace that nurtures both global commerce and individual freedom, then you should pay close attention to what you'll hear at the conference. We will discuss some revolutionary ideas — ideas so new that almost no one has heard of them, and ideas so obvious that it took a digital revolution to make us forget them.

Ownership an illusion

We are all witnessing a trend toward online services and away from the sale of digital content. This trend raises critical questions: Is it in the interest of consumers that their only choice for digital products is to subscribe to a service? Is it no longer important for consumers to have the option of full privacy and autonomy in their access to copyrighted works? Is it right for IP ownership to be enduring and consumer ownership to be an illusion? If you don't want this state to solidify as the future norm, then you had better define what consumer ownership is, and you had better provide the legal and technological means for it to exist. Let's discuss how.

I look forward to a lively discussion in Kuala Lumpur.

Paul Sweazey is Chair of the IEEE's standards committee for Digital Personal Property.

Production underway on CI Access to Knowledge film

CI Head of Media, Luke Upchurch on new developments in CI's work on intellectual property.

As part of CI’s Access to Knowledge (A2K) programme we are producing a short film to look at the ways in which strict copyright laws are affecting consumer rights around the world.

The film will examine the extent to which some companies are demonising consumer behaviour as they seek to hold on to and expand outdated copyright laws. It will look at arguments around the need for a renegotiation of intellectual property laws in the digital age and the roles businesses, governments and consumers are playing in this rapidly changing environment.

Filming kicked off in Paris at a recent A2k Network meeting and at the TACD Paris Accord summit. With contributions from leading figures in the field; from hip hip legend Hank Shocklee, to renowned IP activists Fred Von Lohmann and Michael Geist, the film will seek to set out the critical issues at play in the debate over the future of copyright and access to knowledge.

Release is scheduled for May 2010, so keep an eye on A2knetwork.org for further details.

CI's new copyright watch list reveals US hypocrisy and how out-of-date legislation is damaging consumer interests

Consumers International (CI) today released the results of its inaugural Intellectual Property (IP) Watch List: a global snapshot of how national IP and copyright laws serve or subvert consumer interests.

The survey is the latest report from CI's Access to Knowledge programme - A2Knetwork.org

The Watch List of IP laws in 16 countries demonstrates that copyright legislation in transitional economies such as India, South Korea and Indonesia were amongst the most favourable to consumers. The United Kingdom came bottom of the Watch List because of an almost total lack of consumer flexibility, despite a 500 year history of copyright legislation.

The Watch List shows that consumers in the US enjoy a relatively liberal copyright regime that allows for fair use of copyrighted material. But special interests in the US are pushing to eliminate that same openness and flexibility for consumers around the world.

By highlighting this hypocrisy through the release of the IP Watch List, CI hopes the Obama administration will take this chance to distinguish itself from policies of the past.

In May, the US government will publish its own review of international copyright legislation, the 301 Report. To date, this has been heavily influenced by corporate lobbyists pushing for stricter copyright laws around the world. CI’s IP Watch List is an effort to demonstrate where and how copyright law can work better for consumers.

Jeremy Malcolm, CI IP Programme Coordinator says:
“Fair use in US copyright law has contributed an estimated $4.5 trillion to the US economy, by allowing the use of copyrighted material by educational institutions, Internet innovators, and sellers of devices like the iPod and TiVo. Yet the US government is actively stopping other countries from having the same opportunities. CI wants to see an end to this hypocrisy.”

The Watch List also reveals that, in addition to US pressure for stricter laws, the IP legislation in the majority of the countries surveyed is still designed for 20th Century copyright issues. It does not take account of the new ways in which content is created and consumed in the Internet Age, such as blogs, online video sharing, wiki entries, mashups, remixes and more.

Jeremy Malcolm, CI IP Programme Coordinator says:
“In the Internet Age, consumers are creators as well as users of content. Existing copyright laws are from a bygone era that goes against the prevailing environment of creativity and sharing.

“Good IP law should not be about strict copyright protection as one small group of special interests demands, but about fair and open access that contributes to innovation broadly, and a vibrant and prosperous public domain. That’s why we’re calling for ‘fair use’ copyright laws to be extended around the world. ”

Seeing Access to Knowledge in action in Asia Pacific

Luke Upchurch, CI Head of Media, on CI’s recent Asia Pacific and the Middle East member meeting, held in Kuala Lumpur, Malaysia:

Once again I was impressed with the strength, enthusiasm and commitment of the consumer movement in the region. Two days of debate, creative thinking and advocacy planning showed just how advanced consumers groups in Asia Pacific are becoming. It was also excellent to meet some determined and enthusiastic delegates from the consumer movement in the Middle East.

Together with the generous support of CI members from Malaysia, South Korea, Hong Kong and Australia, the CI KL Office were able to bring together over 30 consumer organisations from across Asia Pacific and the Middle East. This included the welcome attendance of some of our smaller member organisations from Jordan and Nepal, as well as observer delegates from the consumer movement in Saudi Arabia and the Malaysian government.

Proceedings on Day One focused on CI’s new Access to Knowledge project – A2K Network. This exciting new initiative seeks to show how copyright and intellectual property law is working against basic consumer rights by denying fair access to educational, cultural and commercial knowledge. The project is calling for fair and open access to academic books and cultural works, as well as CDs, computer software, DVDs and online content.

The level of support among members for the A2K Network – which is being coordinated globally from CI’s KL office – was extremely encouraging. Many are already contributing to the global IP Watchlist – an intiative unique to the A2K Network designed to reveal the state of anti-consumer intellectual property legislation around the world.

Day Two gave us the chance to discuss member activities for World Consumer Rights Day 2009, and I was encouraged by the range of plans to take action as part of the CI’s Junk Food Generation campaign – from the Lunch Box Challenge, to the Supermarket Sweep. And, of course, the promotion of CI’s junk food marketing code.

This regional consumer group summit was a great exchange of ideas. In his address to the meeting, CI’s DG Joost Martens spoke of the vital role CI continues to play in facilitating dialogue and action among national consumer organisations. This gathering certainly showed how constructive face to face dialogue can be: small members learning from our larger organisations, sharing experience, pooling knowledge and drawing strength from our common objectives. It was Access to Knowledge in action!

Patents, copyrights and knowledge governance: The next four years

Anne-Catherine Lorrain, Intellectual Property Expert at the Trans Atlantic Consumer Dialogue (TACD), writes about the TACD conference that recently took place in Washington from 12-13 January 2009:

'As a new Administration has just taken office in Washington, and the European Union (EU) renews its institutions in a few months, what should the political agenda be for intellectual property?

This was the subject of discussion at the two-day conference hosted by the Trans Atlantic Consumer Dialogue (TACD) in Washington, DC - Patents, Copyrights and Knowledge Governance: The Next Four Years.

High-level specialists from both sides of the Atlantic, including law and economics Professors and two Nobel Prize winners – Joseph Stiglitz and Eric Maskin – and Bernt Hugenholtz, as well as NGOs, among them TACD members (Knowledge Ecology International, EFF, Public Knowledge, Health Action International) and industry people, among whom William Patry from Google and Richard Wilder from Microsoft took part in the discussions. Have a look at the full programme.

They discussed a wide range of crucial issues, such as:

• the future of patents on medicines
• consumer access to digitized content
• “access to knowledge” (A2K)
• the protection of the public domain and software standards.

The globalisation of the challenges faced by consumers and rights holders have made intellectual property policy one of the main features of global trade policy, and stimulated both international and domestic debates about how best to promote innovation and access to knowledge, including “knowledge embedded” goods such as:

• medicine
• software
• agriculture
• inventions that address climate change
• scholarly research
• databases
• films or recorded music.

Both the United States and the European Union (EU) are facing demands to modify policies on patents, copyrights and other forms of intellectual property protection, coming from different perspectives.

There are high profile right-owner lobbying efforts directed at higher standards and tougher enforcement of intellectual property rights, and growing interest among consumer groups, academics and many innovative businesses to protect the public domain and retain or even expand user rights.

There is also much interest in exploring newer approaches to the support of creative and inventive communities, that do not rely on notions of exclusive rights.

With the organisation of this event, the Trans Atlantic Consumer Dialogue has been calling for policy recommendations from the speakers, to be addressed to the US and EU governments.

You can read the recommendations and find out more on the TACD IP blog.'

Intellectual property is a consumer issue

Jeremy Malcolm, Project Coordinator based in Kuala Lumpur, introduces two new Access to Knowledge (A2K) campaigns as part of CI's commitment to promote fairer intellectual property (IP) laws for consumers:

"The intellectual property system is often portrayed as a battleground in which the creators of content are pitted against lawless "counterfeiters" and "pirates". Multinational media companies have relied on this perception in order to push governments for stronger and yet stronger intellectual property (or IP) protection in both domestic and international law - a trend which shows no signs of abating.

Yet the picture is profoundly misleading. In fact, the biggest impact of harsh intellectual property laws has not been on commercial counterfeiters, but on ordinary consumers. These unbalanced laws prohibit everyday activities such as uploading a home video with music to YouTube, backing up your DVD collection, creating a fan website - even, in many countries, using a VCR or an iPod. Even if these laws are not enforced (which, too often, they are), they wrongly allow consumers to be branded as thieves and outlaws.

CI has recognised this for some time; for example, it published a groundbreaking report on Copyright and Access to Knowledge in the Asia-Pacific region in 2006, and has sent delegates to a number of recent high level meetings of the World Intellectual Property Organization (WIPO).

Now, CI's commitment to promoting fair IP laws for consumers - or, to use a short-hand term, "Access to Knowledge" or A2K - has been taken further with the launch of two new global campaigns.

The broader project, funded by Ford Foundation, aims to bolster consumer organisations' voices worldwide in trade negotiations and other forums where consumer interests are being marginalised through one-sided IP regimes. The main outcome will be the development of a global consumer dialogue on A2K and could lead to future CI campaigns on communications rights.

The second project, funded by the Open Society Institute (OSI), aims to produce an Access to Knowledge Watch List, which will identify countries whose IP policies and practices are harmful to consumers.

This Watch List will be used as a counterbalance to the United States' Special 301 Report, which is an annual report highlighting those countries that supposedly do not provide strong enough protection for the interests of US intellectual property owners.

These related campaigns will be introduced by CI at the third annual meeting of the UN Internet Governance Forum in Hyderabad, India next month.

Although not listed on the official programme, this information and networking session will be held on 5 December from 1pm at Room 7 of the IGF venue, and all CI's members and friends are invited.

Members and like-minded organisations are also invited to express their interest in joining an online working group to collaborate with CI on these important projects."