Consumers’ Rights Still Not On Equal Footing With Copyright Owners’, Study Finds

The newly published third annual Consumers International IP Watchlist shows that most countries offer weak support for consumer interests in access to knowledge and the global copyright system seems ill-equipped to respond to the new consumer creativity evolving on internet. However, the study found that some countries are demonstrating good practices when it comes to consumers.

The IP Watchlist [pdf] ”assesses the fairness of the world’s intellectual property (IP) laws and enforcement practices” from the perspective of the ”ordinary consumer,” according to the Consumers International (CI) website.

The watchlist scores countries with grades ranging from A to F. This year, says the report, over two-thirds of countries received a failing F score against at least one of the categories of questions. The watchlist uses a list of about 50 criteria, applied to 26 countries (Albania, Argentina, Armenia, Australia, Belarus, Brazil, Canada, Chile, China, Egypt, France, India, Japan, Lebanon, Malaysia, Moldova, New-Zealand, Pakistan, Romania, Serbia, Slovenia, South Africa, South Korea, Thailand, the United Kingdom, and the United States).

The best-rated countries are Moldova, the United States, India, Lebanon and New Zealand, while the worst-rated countries are Thailand, Chile, the United Kingdom, Brazil and Belarus.

The watchlist aims to “provide a snapshot of how a number of the world’s major IP regimes support, or fail to support, consumers’ access to educational, cultural and scientific knowledge,” but also to advertise good practices and encourage countries to review their IP laws to serve the public interest.

For example, the watchlist said the best-rated country, Moldova, shows how a country can both respect its international obligations, and have a newly adopted consumer-friendly copyright law.

New Copyright Laws Less Consumer-Friendly

In many cases, new copyright laws appear to show a shift in the perspective of policymakers about the copyright balance between rightsholders and consumers, the watchlist said. It compared a 2009 Serbian copyright law and a 1957 Indian copyright act.

In the Serbian law, the reproduction by consumers, even of legally-acquired materials for non-commercial purposes, is not treated as a right, but rather as inflicting damage upon creators. In comparison, the Indian act provided that fair dealing with works for the purposes or “private use, including research” is not considered as an infringement of copyright. Between the two legislations, the consumers’ position has shifted from “equal partners in the copyright bargain with creators, to one in which they are treated as the enemies of creators.”

Building on Copyrighted Works: Cultural Phenomena

The internet has provided a platform for user-created content, which often borrow from copyrighted works, and the watchlist said the current legal system seems poorly equipped to provide enough flexibility in the copyright system to address this upward trend.

According to CI, “the explosion of creativity from ordinary consumers commenting and building upon works from pop culture, and freely sharing their creations with the world has been one of the defining cultural phenomena of this century.” This is shown, for instance, by the popularity of YouTube.

The watchlist quoted Google CEO Eric Schmidt as saying that “as much information is created every two days as was created in the entire history of the world up to 2003,” with much of that content building upon copyrighted works.

It seems that copyright law is not really supportive of this “new democratic art form,” except in a few countries. However, there are signs that this discrepancy between copyright laws and practice among consumers is beginning “to be seen as a legal anachronism.”

Canada, for example, has a pending proposed provision to legalise the creation of non-commercial derivative works “that do not financially damage the original copyright owner.” According to a Canadian news service, newly leaked Wikileaks US diplomatic cables show that the United States has intensively lobbied Canada to tighten its copyright laws in recent years.

CI also asked its watchlist country reporters the reverse question: whether there were any penalties for copyright owners who interfere with a consumer’s rights under copyright law, such as the right to copy a work for backup purposes, or for private study.

In all but one of the countries covered by the watchlist, the answer to that question was that copyright owners do not face any penalty for infringing consumers’ rights. “Planned reforms to Brazil’s copyright law may be the first provisions to provide a real remedy to consumers whose user rights are obstructed by copyright owners.” it said. And now those draft provisions appear to be in danger of being shelved (IPW, Inside Views, 8 February 2011).

Best Practices Around the World

The watchlist gives a series of best practices in the countries they investigated.

In Brazil, a local company has introduced a semi-metallic disc that competes with CDs, which is much cheaper to produce, can be used for music, games or video, and comes at very low retail prices. This is an answer to the root problem that some see in piracy, the high prices for copyrighted products. “The manufacturers ask rhetorically: ‘if the CD cost the same price as the pirate copy, would you know which was the original product?’” the report said.

South Africa, since 2007, has had a policy on the use of free and open-source software (FOSS) within the government that requires that it uses FOSS unless proprietary software is “demonstrated to be significantly superior,” and asks that proprietary software be abandoned to the benefit of FOSS whenever possible. New software developed by the South African government should be based on open standards and licensed under a FOSS licence, when possible.

Meanwhile, the Office of the US Trade Representative today released its annual list of its unilaterally evaluated inadequacy of some of its trading partners in enforcing intellectual property rights. The so-called Special 301 process reviewed IP rights protection and enforcement in 77 trading partners.