Published on 27 February 2012 @ 10:48 am
Inside Views: ‘Balanced’ Copyright: Not A Magic Solving Word
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Intellectual Property Watch
By Alan Story
It was obviously a moment of some embarrassment for the US Department of Commerce and the World Intellectual Property Organisation. Hardly two weeks after more than 100 NGOs and a few individuals, mostly located in the global South, requested that these two agencies postpone the upcoming Africa IP Summit, this is exactly what has happened to the session originally scheduled for Cape Town, South Africa in early April. But what about their substantive criticisms of the ideology, themes and speakers for this conference which were made in a 7 February open letter to WIPO Secretary General Francis Gurry? According to the NGOs, the original Cape Town event was promoting ‘an unbalanced IP agenda’ and they instead wanted a ‘balanced forum’ that would endorse a ‘balanced’ intellectual property agenda across the world. This article takes up the question: is balance the answer?
Establishing balance has long been promoted as the ‘magic solving word’ (Cohen) to cure the ills of the global copyright system. A 1785 British copyright case employed the concept, if not using exactly the same word. If you conduct a survey of contemporary legal literature, you will find opinions that various national copyright systems provide ‘a just balance’, ‘a good balance’, ‘a weak balance’, ‘the proper balance’, ‘the appropriate balance’, ‘an unfair balance’, and an ‘equitable balance’. Commentators on copyright often worry that some legal change has ‘tilted the balance’ or ‘upset [the balance] unnecessarily’ and that we need to ‘redress the balance.’ One Canadian legal scholar (Drassinower) has written: ‘In spite of the pervasive, recurrent, and vigorous debate about copyright, there appears to be widespread agreement that copyright is structured as a balance.’ It is not just supposed copyright reformers who use this word. The preamble to the 1996 WIPO Copyright Treaty informs us that its provisions ‘maintain a balance’ of rights ‘as reflected in the Berne Convention.’
In fact, the Berne Convention, the main provisions of which were drafted by a handful of industrialised countries in 1886 and is essentially unchanged in ideology or substantive assumptions since then, is one of the most lopsided and unequal international legal instruments one can imagine. Almost a decade ago in my Burn Berne article, I wrote that, for the peoples of the global South, Berne ‘operates as Western-based and unreconstructed colonial relic which they had no role in drafting and which was imposed on them without consultation in an earlier era’ ; I concluded the leading international copyright convention was both ‘unbalanced and unbalanceable.’
In 2012, I hold the same view. It is both illusory and delusory to think that a so-called balanced or re-balanced Berne and /or global copyright system can constructed; it is not only wishful, but also wistful, thinking and is based on a naive understanding of how this system operates, as well as its ideology and power relationships within it. Employing the metaphor of balance does not work either as a description or a justification of the global copyright system, especially its North-South dimension. Whilst we can sympathise with the anger these 100 NGOs are feeling, here are ten reasons why their call for a ‘balanced IP agenda’ reinforces the existing global intellectual property system, even if this is not their intent. (This article focuses mainly on the workings of the global copyright system; many of the same or related arguments could also be made about the North-South dynamics of the patent system, but I have omitted them here.)
1) Starting a discussion about how to change international copyright by talking about how to balance or re-balance this system is precisely the wrong place to start. You simply get led into a dead end … and this exactly where WIPO wants you to go. Why? Balanced copyright is an oxymoron, a contradiction in terms…. or, to put it in a copyright context, similar to labelling a literary work an original copy. Every one of the central principles or elements of copyright is one-sided and unbalanced, that is, they favour the owners of copyrighted goods. (As a brief aside, do remember that the author of a copyright work is seldom also its owner; it is Microsoft and Bill Gates who own the copyright to Microsoft Word, not the computer programmers who wrote it. Similarly, a US court ruled in 2010 that the copyright to many of Bob Marley’s greatest hits, such as Get Up, Stand Up, I Shot the Sheriff, and No Woman, No Cry, was owned by Universal Music, much to the disappointment of Marley’s widow, Rita, and her nine children.)
The main elements of copyright include the ideology that the world’s knowledge and creations should be owned as private property, that they should be traded as commodities in global capitalist markets, that copyright owners should have exclusive rights, that fair dealing /fair use principles mean what is fair to owners, that creativity will dry up without the incentive of copyright, that there are no alternatives to copyright, that spreading copyright regimes (and the stricter the better) benefits the whole world, and a few other foundational principles and justifications of this Western legal and philosophical export to the global South. Take away these principles and you know longer have copyright. Conversely, accept these principles and you have accepted 98% of the story that WIPO and the US Department of Commerce will be disseminating in Cape Town when their re-scheduled IP summit is held. All that is required, they suggest, is some fine-tuning, a bit of ‘tweaking’ around the edges of the remaining 2%.
To quote from a standard monograph on international copyright (Ricketson and Ginsburg): ‘From its inception [in 1886 and until today], the most immediate statement of Berne’s object and purpose was to be found in its title (‘a Convention…for the protection of literacy and artistic works’)…’ In other words, the object of Berne in 1886 was NOT nor is it 126 years later to ensure children in India or Bangladesh have text books for their schools or that blind children become literate by being able to access reading materials or so that knowledge can be shared among the world’s people or creating good university libraries or any of hundreds of other socially-valuable goals. The idea that you can have balanced copyright or a balanced Berne is as sensible as the idea of balanced colonialism or balanced bondage.
2) As mentioned above, WIPO believes the Berne Convention is a balanced international convention. I strongly disagree and, within a week, I am sure I could locate 50 copyright experts across the world who would also take a contrary view. How could both points of view be correct? Arguing that certain legal measures create an equitable balance in copyright is to reach a meaningless conclusion; it is a mere propagandistic slogan that acts as a cover. Balancing presumes some standard or specific set of values by which that supposed balance can be evaluated. When people disagree whether or not some legislation is balanced, they are really disagreeing about which values should be used to measure whether that legislation is good or bad. I suggest we drop the word ‘balance’ from our vocabulary about copyright and instead talk about contradictory or opposing value systems. Balancing is simply a liberal mush word especially favoured by some law professors as well as by activists who have spent too long in Geneva.
3) Exactly what interests and rights are purportedly balanced and reconciled by the copyright system? One typical formulation, such as that found in the 1996 WIPO Copyright Treaty, emphasises ‘the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information…’ Yet we cannot talk about copyright operating like a balance, like a metaphorical seesaw in the playground, if we fail to include in this purported balance the interests of those with the most concentrated wealth and power, namely, the corporate owners of copyright across the globe. (Perhaps we could label them here the seesaw heavy-weights or dead-weights.) These include global corporations such as Sony, the video game maker and film producer, Pearson, the UK-based educational publisher, and a handful of computer software owners such as Microsoft and Apple. (To conflate their interests with those of authors is, as already explained, a serious mistake.) So this is a third problem with using the balance metaphor for copyright: the interests of the seesaw heavyweights are not even mentioned, they are, perversely, the hidden or concealed party. Thus calling this system a balance is simply unbalanced.
4) To pit the interests and rights of users against those of authors (again used as a term to designate all creators, whether composers, sculptors, or video game developers) is also a serious mistake. It is based on binary formulation which suggests that users of copyrighted materials are not also creators and that creators of copyright materials are not also users. To return to the same sentence quoted in point 3) above, where else do creators get the requisite tools for their work other than from ‘education, research and access to information’?
5) International copyright treaties are called minimum rights agreements. This means that the rights which such treaties specify are merely minimum rights; there are no restrictions on member countries establishing much stronger and stricter rights for the owners of copyrighted goods…but stronger rights only for copyright owners, not for users. In other words, there are no maximums. Rights for copyright owners operate in the same fashion as how a unidirectional ascending escalator works; upwards, always upward, and only upwards. Especially in recent decades, this is exactly what has been happening as the numerous examples show us, whether ACTA or the far lower thresholds for copyright protection. (In the UK, the owner of copyright in 4′33″, an experimental musical composition by John Cage (1912-1992) which consists of four minutes, thirty-three seconds of essentially total silence, recently threatened to bring a copyright infringement action against a composer who included a minute of silence in his own CD; the copyright owner settled out of court after receiving a financial pay-off). Ask yourself the question: how can this then be considered a balanced system? You don’t have to be too insightful to come to the conclusion: it isn’t…and it isn’t supposed to be.
The question of duration of copyright provides us with one easily-grasped example. The Berne Convention states that member countries must, at a minimum, establish a copyright term of life of the author, plus a minimum of another 50 years. As is sometimes not appreciated, this already is a very long period of time; it means that a pop song written this year by a 25-year-old songwriter could still be restricted by copyright in the year 2112. Yet it is perfectly legal for a country to extend its copyright term to life of the author, plus 100 years, which would restrict the same song until 2152. This is what Mexico has done. Or the copyright term could be raised until it was forever, minus one day. Consider what would have been situation if Egyptian government had gone ahead with its announced plan of 2008 to use copyright law to protect its pyramids as cultural property. The Egyptian term of copyright would then have become life of the author, plus 5000 years. Absurd? Yes. Perfectly legal, however, under the Berne Convention. Conversely, if a country decided to reduce its term to simply life of the author, which would still often leave a term of 30 to 40 years or even longer, such a law could result in that country being expelled from the Berne Union as well as the World Trade Organisation. Moreover, copyright owners might complain future years of royalty payments had been lost due to term reduction and claim their private property had been taken without compensation. Such a circumstance shows the impossibility of balance.
6) The same dreary ill-balanced pattern is found throughout the Berne Convention. If you have an hour or two in the next few days, read through Berne, clause by clause, and keep a running tally of: a) how many rights are guaranteed and mandatory to the users of copyright in every Berne Convention country? ; b) how many rights are guaranteed to the owners of copyright? The answer to question a) is very brief. Other than what is included in Article 10 (1) of Berne, namely, the right to use quotations already available to the public, there is not a single mandatory right that all users in the world possess, and even this narrow right is qualified. This is another reason why some of us believe that not only is the international copyright system grossly unbalanced, but it is also unbalanceable.
Additionally, users have what some of us call users’ rights, although the technical legal term is copyright limitations and exceptions. Why NGOs and copyright activists continue to employ this latter phrase remains a mystery. Words carry messages. What could better communicate the notion that exclusionary principles of copyright should always be the starting point or the norm, both the lens and the focus through which potential copyright infringement issues are viewed, than to label such other uses as limitations and exceptions to copyright? In the same vein, a student studying copyright law could build up a convincing case, based on fairness to users, as to why blind organisations in the global South should be able to decide for themselves to over-ride the copyright rights, that is the private property rights of owners, and produce accessible reading materials. But there is one significant problem: what is fair and what is not fair is determined solely from the vantage point of the copyright owner. Nine times out of ten, property rights trump non-property rights, such as the right to an education.
7) In North-South economic and cultural terms, we cannot talk about balanced copyright when the United States is, by a very wide margin, the largest net exporter of intellectual property goods and licences in the world. (To be a net IP exporter means that revenues from IP exports to foreign countries exceed those paid by your country for IP imports from elsewhere.) Indeed, IMF statistics reveal that only two countries in the world, the US and the UK, are IP net exporters. Every other country is a net IP importer. So-called US core copyright industries, such as film, software, publishing and music recording, had 2010 revenues from non-US markets alone of US$134 billion, which is more than the total Gross Domestic Product of almost three-quarters of the countries in the world or the sales of the entire US pharmaceutical industry.
Not a bad performance for an industry supposedly on its last financial legs knees due to copyright piracy, and globally, hardly a manifestation of a balanced international copyright system. In fact, the international copyright system could only start to take on the semblance of some balance in the global South if: a) radically altered global distribution channels for copyrighted goods were established; 2) governments in the global South gave the type of support to their own cultural creators which the government of Cuba gives to Cuban artists and performers; 3) quotas were established to promote the use of domestic cultural products, as South Korea does in a minor way in its cinemas, 4) if consumers in Europe and North America overcame their long-standing cultural chauvinism and did things such as starting to purchase books published in China by Chinese authors ( At present, the Chinese buys hundreds of times more book titles from the US and the UK than vice versa.) This is only a starting list. Until such changes occur, the international copyright system will continue to serve two main purposes: a) a revenue earner for a small coterie of predominantly European and US media & technology multi-national corporations (without forgetting the riches amassed by media moguls from the global South, such as Venezuelan Gustavo Cisneros or the owners of Brazil’s Rede Globo media conglomerate); b) a vehicle for cultural imperialism and indoctrination. As a US commentator (Kristol) boasted a few years ago: ‘our missionaries live in Hollywood.’
8) We also cannot talk sensibly about balancing rights and interests unless we also talk about the practical possibility of various parties and interests actually exercising those rights. As already mentioned, users have very few guaranteed actual legal rights under international and domestic copyright agreements and thus little real chance of enforcing any legal rights. In the global South, even limited users’ rights are all but non-existent as various surveys have shown. So to talk of balancing the rights of users against those of copyright owners is simple sophistry. As for the supposed rights which the copyright system gives to musicians in disputes with recording companies, consider what happened to two leading musicians of the past century. If, as already mentioned, Bob Marley (1945-1981), called the ‘Third World’s first pop superstar’ (Wenner), was unable to hold onto the copyright to many of his best known songs, what chance does the so-called average musician have? Or how about what happened to the path-breaking US bebop jazz pianist Thelonius Monk (1917-1982) who signed a long-term recording in 1962 with Columbia Records, a major recording label at the time. When the contract was over in 1970, Monk amazingly owed Columbia more than US$100,000. Copyright did not help Monk much. Yes, copyright may have assisted ex-Beatle Paul McCartney of the UK, Brazil’s Roberto Carlos or Colombia’s Shakira, but such pop stars are few and far between. How many wealthy musicians live in your town or city? Or how many rich poets?
As for the power of major intellectual property owners, not only do they have chilling enforcement powers – indeed engendering fear is a principle motivation why they take legal actions – but they have the power to essentially dictate the clauses found in international IP agreements; read Information Feudalism: Who Owns the Knowledge Economy? (Drahos and Braithwaite) on the key role several large US and European pharmaceutical companies played in the 1980s and 1990s in establishing the TRIPS Agreement.
9) In a similar vein, this call for balance in copyright mirrors the same illusion that we live in a pluralistic or balanced political system. Or that international political power is balanced and an equilibrium. A political system is pluralistic where, to quote one political theorist (Galligan), ‘multiple interests or groups compete for power and influence and no one is dominant’ and the power of one group is always balanced by the power of others. However, political systems no more operate like a seesaw in the playground than the global copyright system does. Would the corporate forces fighting so hard to enact ACTA-like legislation across the globe do so if they actually believed in a so-called balanced copyright system? At least the first 25 measures needed to enact such a new system would mean taking power and control away from themselves and international capital generally. Yet actually putting in place major structural and legal changes, such as no longer making copying an exclusive right of owners, would mean we would no longer have a copyright system.
10) How could we label a system as being equitable and balanced if the following, admittedly hypothetical, situation arose? What if a coalition, in fact an overwhelming united front, of countries across the entire world decided that a few minor amendments should be made to the Berne Convention so that users would gain a few more access rights to copyrighted material. Say, for example, more than 160 Berne signatory countries representing 90% of the world’s population came to this same conclusion. But one country, the United States of America, which is the world largest net exporter of copyrighted goods, was opposed to this change. (Given the mood in the US Congress these days, any so-called loosening up of the system is hardly on the cards.) Or, if instead of the USA, the tiny European principality of Andorra (population less than 100,000) was opposed. Could or would Berne be amended? No, it could not be. All changes to the Berne Convention require not a 50% majority, not a two-thirds majority, but the consent of every single signatory country in the world. Either the USA – or tiny Andorra – could say “no” and that would decide the issue for the whole world. Additionally, the terms of the Berne Convention establish such a strict legal straight-jacket that no Berne signatory country is even permitted, as is the case in many international agreements, to enact any modifications (called reservations or opt outs in international law) as to how Berne applies on its own national territory.
To modify either undemocratic rule would require the consent of every single Berne signatory country. This isn’t balance, this is international absolutism. It is no surprise that the last changes to Berne, and very minor ones at that, were made more than four decades ago. A treaty cannot be considered balanceable if it is essentially unchangeable.
A decade ago when I chose the title (actually a friend suggested it to me) of Burn Berne: why the leading international copyright treaty must be repealed, I did so because it was a bit of fun, a provocative pun to use for often staid law journals, and because, well, it might make people sit up and read it. Today, instead of being preoccupied with boring and ineffectual bromides about achieving balance, we could do worse than to choose Burn Berne as a mobilising call to action. Then we really could have a ‘pervasive, recurrent, and vigorous debate about copyright.’
Alan Story (firstname.lastname@example.org) teaches intellectual property law at Kent Law School in the United Kingdom. His publications, including ‘Burn Berne’ and those of colleagues in the CopySouth Research Group, can be found at: http://copysouth.org/portal/. Special thanks to Annabell Bell-Boulé.