Global IP Enforcement Push Impacting Consumer Access, 2010 IP Watchlist Finds

The second edition of the Consumers International IP Watchlist has been published, with the conclusion that consumers are bearing collateral damage to the enforcement push by entertainment and media lobby groups encouraging stringent national legislations. Copyright laws and enforcement are changing, but mostly for the benefit of right holders, said the advocate group which encourages copyright exceptions.

Reports on the state of access to knowledge and their national intellectual property legislation were obtained in 34 countries, Consumers International (CI) said. India, Lebanon, Israel and the United States were the four best-rated countries, and Chile, Jordan, the United Kingdom and Kenya being the four worst-rated countries. The results suggest that a country’s level of development and its level of copyright protection are not closely linked, they said.

According to CI, a “world federation of consumer groups,” with over 220 member organisations in 115 countries, consumers are being penalised by copyright laws in many countries. As examples, the report said that millions of visually impaired consumers are unable to legally access books in formats such as Braille that were legally produced in another country, or that entire collections of older books, films or music are in danger of not being reproduced or broadcasted because their copyright owners cannot be located.

CI has been inventorying best practices encountered during the survey. Among these is the United States copyright law allowing many uses of copyright materials as “fair use”. These include new and innovative uses of copyrighted works, such as recording “your favourite television show to watch later,” the report said. It called for other countries to use copyright exceptions such as fair use in their legislation.

Works that are still protected by copyright but for which the rights holders remain unaccounted for, described as orphan works, are locking away material that could be very valuable to cultural and educational use, according to CI. In some countries, such as Argentina, Brazil, and Chile, orphan works pass into the public domain, for everyone to use. Bangladesh, Canada, India, and South Korea have allowed orphan works to be licensed from a central authority, upon proof that efforts to locate the authors remained empty.

Private copying is a concern, according to the report. The ability to copy copyrighted material by consumers for their personal use is sometimes taxed in forms of levies on blank CDs and DVDs, or equipment used to write on those media. CI said that “if consumers are to pay for the privilege of private copying, ‘which can be a good idea when administered fairly, it is important that they receive value for money.”

CI also warned against the use of the graduated response, or three-strikes-and-you’re-out, policy against internet file sharers in which the internet service providers are requested to warn their customers “when they are accused by a copyright owner of having downloaded a copyright-infringing file.”

Digital rights management (DRM), controlling the uses that consumers can make of copyright digital material with technological protection mechanisms (TPMs), also is worrisome, according to CI. The source of the DRM is the World Intellectual Property Organization’s Copyright Treaty, said CI, which “requires parties to enact laws against the circumvention of TPMs.”

“The global consumer movement doesn’t have a long history of activism on IP issues, but the stakes are getting higher,” Jeremy Malcolm, project coordinator for CI told Intellectual Property Watch. “Our member organisations are receiving complaints about spiralling textbook prices, digital media that are locked to a particular device or format, being double-charged for content through copying levies, and industry campaigns that treat consumers like criminals.”

The Consumer Alternative to the Special 301 Report

The next IP Watchlist report might show quite different results as legislations are changing in a number of countries such as Brazil, Chile, India, and the United Kingdom, said Malcolm.

According to CI, the IP Watchlist “was developed in part with the intention of redressing” the deficiencies in the Office of the United States Trade Representative’s ‘Special 301’ report, expected to be released this week.

The Special 301 report is a unilateral annual review issued by the United States asserting how well US trade partners are protecting US intellectual property rights. USTR’s standard of adequate and effective IP protection “has reached absurdly high levels, that bear no relation to standards set in international law, and would be impractical and even dangerous for developing countries to meet,” the IP Watchlist report said.

The IP Watchlist is meant to present an “alternative perspective of the state of global copyright laws and enforcement practices, based on the effect that those laws and practices have on consumers, including those form developing countries.” The fact that this is the first Special 301 report under an Obama appointee, may present signs of a more balanced approach, said the report.