My intent initially was to publish this in January, but as the preceding posts make clear, there was considerable digging to be done to get a better picture of the context. In what follows, I begin with some comments with regard to shaky basis for the enforcement project, and then move on to a more detailed review of the Commission’s report.
1. The most noteworthy element of the Commission’s Report on the IP Enforcement Directive is what is absent. The Directive itself mandated the review, under Article 18, titled ‘Assessment’:
Three years after the date laid down in Article 20(1), each Member State shall submit to the Commission a report on the
implementation of this Directive.
On the basis of those reports, the Commission shall draw up a report on the application of this Directive, including an assessment of the effectiveness of the measures taken, as well as an evaluation of its impact on innovation and the development of the information society (my emphasis).
Those interested in reading about ‘impact on innovation and the development of the information society’ will be disappointed, as such a section does not exist. Late transposition by several member states is offered as explanation for its absence. Yet this tardiness was no obstacle to a commentary on the efficacy of the Directive’s enforcement measures. A strange anomaly, but easily explained:
“… in the context of the European Observatory on Counterfeiting and Piracy, DG Internal Market and Services works with experts from the private sector to assess the application of the Directive and to complete the information received from the Member States.”
Commission Staff Working Document, p.5 (hereinafter CSWD)
So we’re in good hands. Elsewhere the Report relies on work commissioned by copyright industry players in support of its assertions, such as that produced by Tera consultants, whose methodology was questioned by the Social Sciences Research Network (SSRN).
Due to its role in the advancement of of entertainment and pharmaceutical interests within the GATT-TRIPS negotiations of the 1980s, the United States is typically assigned the role of bully in the international intellectual property sphere (for an excellent account see Drahos and Braithwaite’s “Information Feudalism”). Viewed in combination with its bilateral trade agreements, foisting stringent IP rules on smaller, poorer nations, this is somewhat understandable. But such a reading obscures the role of the European Union. Since the 1980s, key business organizations within the EU such as UNICE have functioned as a key vector for the same policy messages. In more recent times these ideas have been fully integrated into numerous aspects of institutional activity at an EU level. In what follows I will outline some developments at the level of trade policy since 2002.
The new phase was confirmed in a 2004 communication from the Commission Communication “Strategy for the enforcement of intellectual property rights in third countries“ (hereinafter Strategy), which listed eight elements considered essential to the campaign. Several of these recall practices long established in the US. The thrust of the strategy was confirmed in a major policy document issued by DG Trade in autumn 2006, “Global Europe: Competing in the World”, regarded as signalling the relaunch of a bilateral approach to trade negotiation, and marking the dimming of the multilateral phase which in the IPR sphere produced both TRIPS and the two treaties (WCT and WPPT) at WIPO in 1996.
Pursuing the New Approach
1. Watch Lists
The first task defined in the Strategy is the identification of ‘priority countries’, analogous to the s.301 report produced annually since the 1980s by USTR, deemed the source of egregious infringements of European rightsholders.
in July 2009, three months after the McCreevy’s announcement of the European Observatory on Counterfeiting and Piracy (EOCP), a ‘stakeholder dialogue on illegal up and downloading’ was launched under its auspices and the direction of Margot Fröhlinger, Director for Knowledge-based Economy at DG Internal Market.
The goal was to achieve an accommodation between content owners and the infrastructural intermediaries. From the beginning the Commission have indicated that should the parties fail to come to voluntary agreements, the EC will amend one of its directives and impose a solution: E-commerce Directive (2000/31), the Infosoc Directive ( 2001/29) or the Enforcement Directive (2004/48).
Users and Consumers Missing from the Equation
Representatives of media companies, trade associations, collecting societies and ISPs have been involved in the monthly meetings. European Consumer group BEUC refused to participate, and, whether for wont of an invitation or lack of interest, no organization representing consumer or user interests was involved.
The European Commission will soon launch a second intellectual property enforcement directive (IPRED2), which this time will contain those crimninal provisions removed during the passage of IPRED1 in 2004 due to doubts as to their legal basis. With the passage of the Lisbon treaty and recent ECJ legal decisions this uncertainty has been reduced. In the following posts I want to sketch out other changes at an institutional level and provide an update on the mustering of the forces behind the new directive.
The first of these is the creation in 2008 of a unit dedicated to IP Enforcement inside of DG Internal Market. Created under the direction of Alvydas Stančikas, this unit creates a section of the bureaucracy now wedded unconditionally to the ideology of expansionist IP laws. Functionaries, alas, are usually substantially indifferent to the content of their roles, preferring to see their task as to bring suggested initiatives to fruition (thereby accruing institutional prestige with the career advancement that accompanies it) rather than challenging the assumptions behind them.
For more than a decade the Copyright unit, long headed by Tilman Lueder, has been the epicenter for Commission action. Whilst attached to the shibboleths which insist that increased protection is necessary to protect innovation, it at least located enforcement in a wider context of copyright objectives. Removal of enforcement questions from any broader discussion of the ecology of innovation and creativity transitions the apparatus to a structural capture by content industry incumbents.
European Observatory on Counterfeiting and Piracy
The first task of the new Unit has been to oversee the establishment of an ‘Observatory‘ to gather data about alleged IP infringements. Like so many other foul initiatives in the copyright sphere of late, it emanated from Sarkozy’s France. More specifically it was proposed during the period of the French Presidency in 2008. Given that he had made copyright protectionism a battle-cry in the previous year’s election, this came as no surprise. This campaign opened with a Communication by the European Commission on 16 July, mooting the need for better information collection and sharing. The following September the ECPO’S creation was mandated by a Council Resolution.
Sarkozy’s demands were realised on April 2nd 2009 saw the establishment of the ECPO’S launch by Charlie McCreevy, former irish finance minister, then Commissioner for the Internal Market. In September 2009 the Commission set out its aims in another Communication.
For some time those responsible for IP policy at a European level have bemoaned the unsolicited attention of external observers who criticise their policies on the basis of users’ interests or alternative visions of the innovation process. This was especially the case in the successful defeat of the EU Commission’s campaign for software patents. Part of their response has been to increase their activity in areas of soft law (communications, resolutions), try and effect change through closed-door dialogues between interested ‘stakeholders‘ (a lot more on this in my next post), and to either encourage or actively implement the mobilisation of administrative resources to attain their ends. The result is an immiseration of public discussion and a further dilution of democracy. The EOCP is a perfect example of several of these tendencies.
McCreevy’s speech at the launch spelled out the new approach:
“The mere existence of new laws, although important, cannot be expected to combat a worldwide infringement problem. So once again I stress the point that we must turn our attention towards supportive programs that can help bring to bear strong administrative commitments and resources, in conjunction with the flexibility and
resourcefulness of the private sector.”
Participation is limited to those invited by the Commission and industry involvement is obviously preferred: since the foundation of the ECPO there has been almost no involvement of consumer or civil liberties organizations (the BEUC did attend one meeting).
Criticism of Commission’s reliance upon industry produced statistics with regard to infringement, which unsurprisingly exaggerate the scale of losses, means that the basic task is to produce defensible figures. The methodology and collection of the data collation will be determined by a private contractor who is to work closely with industry representatives (like the IFPI and the MPAA).
Secondly the EOCP functions as a forum for the a series of work-groups: legal reform (in preparation of IPRED2); on online copyright infringement (focusing heavily on the legal responsibility of ISPs as well as IPRED2); public awareness.
In general the plan is that the EOCP will be a clearing-house for exchange of ‘best practices’ derived both from the various jurisdictions and a transmission-belt for private-sector enforcement initiatives. And doesn’t it all sound somewhat familiar? Well it should, much of it is in the Anti-Counterfeiting Trade Agreement (ACTA) – even though it hasn’t been passed yet, the EU is behaving as if it’s already there!
These meetings are staffed by functionaries from the Knowledge Economy and IP Enforcement Units inside DG Internal Market. In order to access additional resources the Observatory will now be under the official auspices of the Office for the Harmonization of the Internal Market in Alicante, who are otherwise concerned with Trademarks and Designs.
With the departure of McCreevy in early 2010, the position of commissioner for internal market passed to Michel Barnier, a right-wing member of Sarkozy’s UMP; his cabinet can be expected to provide enthusiastic encouragement for all enforcement related efforts.
Why Should We Care?
The real target of all these efforts are ordinary computer users. The cloud of professed concern about organized crime and the hazards of fake medicines is really an alibi for a campaign around individual use and circulation of cultural works. The EOCP is about preparing the ground for a subsequent legislative campaign threatening massive damages and the obligation to employ censorware against intermediaries such as ISPs, and nonjudicial punishments against users (a la Hadopi) or worse, jail (but this more as a threat than a reality).
In addition to the crudely repressive aspect of this, what grates is the boneheaded commitment to monopoly rights as a means to promote some notional ‘knowledge economy’.
– The Commission has screwed up in the past on this and it knows it: their own report on the Database Directive demonstrates that.
– The software community in Europe showed them they were wrong about software patents as well, but had to defeat the Commission in Parliament due to their impermeability to rational argument.
– And today, how many innovative services will never be born in Europe because of the protectionist approach to copyright law? Google could launch googlebooks precisely because they had a broad fair-use defense to rely upon, that gave them a counterweight to the publishers’ threats and enabled a negotiation. Such a scenario was unthinkable in Europe and it’s the EU’s loss as an economy.
Will anyone inside the EU Commission will take the risk to launch processes which correct these failures?
My next posts will deal with what is going on within the EOCP’s subgroups and the content of IPRED2.
Several weeks ago the Nigerian government announced a $7 billion action against Pfizer for
performing tests on children during a 1996 epidemic without informed consent. This story was one of four cases highlighted in an excellent documentary made by Michael Simkin and Brian Woods for Channel 4 in 2003, called “Dying For Drugs.”
Kano, a town in northern Nigeria, was already in the grip of cholera and measles epidemics when another disease struck: meningitis. Infection spread rapidly and hundreds died. MSF set up an emergency operation there to treat the sick with proven antibiotics. A couple of weeks later Pfizer independently dispatched a team to Nigeria with their new drug Trovan, which had never been tested on children. Pfizer has never produced any consent forms signed by either the children or the parents, claiming that the risks were explained by a local nurse and consent was ‘verbal‘. Over two hundred children were experimented on as part of this trial.
Pharmaceutical tests are required to be cleared in advance by an Ethics Committee. In this case it was notionally based in Aminu Kano Teaching Hospital, but in fact does not appear to have existed. Pfizer produced a letter dated March 26, 1996, but later their doctor admitted that he had produced the letter a year later and backdated it to reflect what he claims was a ‘verbal agreement’.
Pfizer later fired one of its child health specialists, Juan Walterspiel, after he wrote an open letter to senior management outlining criticism and concern at the way in which the trials had been conducted. He is not the only Pfizer employee to have been fired for whistle-blowing.
Apart from the Nigerian government’s action, there is a separate case underway in the High Cort in Kano, taken by the state and the families of the children involved. At least five children die, and many others have suffered from arthritis; Trovan was known to have the side effect of causing joint damage. Lawyers representing the families initially sought to have the case heard in the US under the Alien Tort Claims Act, a move which Pfizer’s lawyers fought.
The Food and Drugs Administration eventually granted approval for use on adults in the US, but not on children. Following the exposure of liver related conditions its use was further circumscribed. Trovan has not been approved for use in Europe.
Further information is available in an article published by the Washington Post in 2000, as part of its series “The Body Hunters”, “As Drug testing Spreads, Profits and Lives Hang in the Balance.”
Other chapters in Dying for Drugs chronicle Big Pharma’s modus operandi in three other areas: silencing critical medical research; pharmaceutical pricing; effects of compulsory licenses (and their absence) on the lives of AIDS patients. Director Brian Woods met John Le Carre and Fernando Mereilles during production of “The Constant Gardener” in 2005, and copies of the film were distributed to members of the cast.
Wine research has been taking up most of my time of late, impeding me from commenting on recent developments in video platforms which demonstrate the deepening some already pronounced tendencies. Having launched a war against software developers from 1999 (with the litigation against Napster), and begun prosecution of individuals downloading music in september 2003 (although there had been isolated and dissimilar cases prior to that), the media wars have now gone internecine, as evidenced by Viacom’s one billion dollar suit against Google.
The latter are no strangers to litigation from copyright owners (see the various fights around google.news, their library digitization project etc) and will hardly be intimidated by their new opponents. Google, of course, are fundamentally an advertising company who have built their success through continually expanding the information available through their services and building the value of their ads through infomation-collection about their user-base. “Information wants to be free” has found its materialization in Google in a finessed version of what was the mechanism for free over-the-air terrestrial television.
The acquisition of youtube.com will eventually be seen as the bargain that it was – given the brand-value accrued through being first on the market to make an impact – and even these one billion dollar lawsuits are small beer in the context of a battle to dominate and monetise the infoscape. Meanwhile the diabolical Fox Group have announced a partnership with NBC (with Sony, Viacom, CBS and Time Warner also rumoured to be interested) to launch a rival to youtube which will be a mix of ad-supported and pay-per-view material. Yet these mooted collaborators have different agendas amongst themselves, with AOL-Time Warner attached to an internet and cable strategy, whilst Sony tries to re-center itself on electronic devices (partiularly the mobile phone). My suspicion is that these companies, having systematically screwed up their strategy since the 1990s, are on a loser again. Ask Steve Jobs, after all, to whose iTunes they handed over a large chunk of the music industry free, gratis and for nothing.
And is it not ominous for such a project that at the same moment such a plan is announced EMI reveal that they are about to make available DRM-free music via iTunes and other retailers? This represents anothing less than a capitulation to the new social mode of treating media objects by a generation of users anthropologically distinct from their predecessors who took paying for media commodities as normal. Today, if you don’t want to pay, or regard DRM as an inconvenience, the alternative solution to your needs is just a couple of clicks away, be it called Rapidshare, Bit Torrent, Emule or Limewire. Google’s ace in the hole is that free is the best means to acquire attention and thus bring down the cost-per-contact calculation determinant in the advertising industry.
If you agree with this analysis then the question is what will be the ramifications of such a conflict between Google and the remains of the media industry for users. My view is that there is a convergence of interests with Google, but that their information-collection practices must be constrained. This data-mining is generating a lot of dystopian visions right now (see ‘Google’s Masterplan‘ and ‘EPIC 2014‘), but they tend to overlook the wider context of intra-industry conflict Google is operating in, a point which is not irrelevant in terms of our interests as users.
On Tuesday the Legal Affairs Committee of the European Parliament voted on the various amendments proposed to the Intellectual Property Enforcement Directive. The crux of these changes is that patents have (as anticipated) been excluded from the scope of the directive and key terms such as “commercial scale” have been left undefined, presumably based on the idea that local courts and eventually the European Court of Justice will resolve that problem. Such a reckless ambivalence towards establishing the legal rules for what will be criminal liability is completely unacceptable, and one hopes that at the very least this will be dealt with during the rest of the legislative process. Of course it would be preferable if the whole directive was to be abandoned – there has been no demonstration of its necessity – but once the bureaucrats invest their energy in developing a proposal like this they are loathe to change their minds as it does not make for good CV material. Likewise the German Presidency of the EU is enthusiastic to rush it through, so that they can have something on their results sheet once the six months is up, but that may be overly ambitious. In any case, indications are that the plenary vote in the European Parliament is taking place on April 25th. If you’re concerned about this, please support the excellent work being done both by the EFF’s new European Office and the stalwarts at the Foundation for a Free Information Infrastructure. They’re out there for us, so dig into your pockets and circulate their materials for them.
More analysis later.
http://www.kriptopolis.org/piratas-corporativos (in spanish)
Thanks to participants in the IPRED2 list for compiling links to the coverage.
In April I’ll be in New York if anone would like to meet. Specifically I’ll be attending my favourite conferences of the year, the Fordham International Inellectual property Conference and Access 2 Knowledge 2 – opposite ends of the spectrum in intellectual property policy, and the more enriching for it.
A key vote in the passage of the EU’s Intellectual property Enforcement Directive (IPRED) was postponed by the rapporteur Nicolas Zingaretti yesterday, and has been rescheduled for three weeks time. The EFF (newly established with full-time staff in Brussels) has a piece about it here, as does the the venerable Register.
The International Intellectual Property Alliance (IIPA) this week published their annual report and submission to the US Trade Representative. Each year they compile together reports from the Business Software Alliance, MPAA and the International Federation of the Phonographic Industry. The purpose of all this is to get the USTR to place countries considered as intellectual property malingerers onto a Section 301 watch list where compliance with IP obligations is monitored and may result in the imposition of trade sanctions or removal of benefits under the General System of Preferences. These reports are widely regarded as fiction, largely due to the inflated estimates of losses bandied about. Essentially the IIPA considers every unauthorised copy to be a lost sale, where in fact most people would not use a product at all if they couldn’t get it for free off the net or cheaply from a street hawker. Thus their estimated losses for the sixty countries covered was 15.2 Billion in 2006 alone!
Nonetheless the report is always interesting. Principal villains this year are: Argentina, Canada, Chile, Costa Rica, China, Domincian Republic, Egypt, India, Israel, Mexico, Russia, Saudi Arapia, Thailand, Turkey, Ukraine and Venezuela.
Apart from the well known vexations of Stephen Joyce regarding his grandfather’s literary estate, it’s not often that Ireland sees juicy copyright action. Today’s Irish Times however reports that a theatre production ‘loosely adapted’ from Disney’s 1992 movie “Sister Act” (Touchstone) has been forced to cancel after receiving threats from Disney’s solicitors in Dublin. The play was to be staged by a group of gay and lesbian students in Galway together with some straight fellow thespians, and had been in preparation for six months.
Disney, of course, have a well-documented history of aggressive copyright litigation, particularly when the uses stray into areas that might tainit their reputation as home of wholseome family entertainment i.e. queers and drugs are not welcome. Back in 1971 a group called the Air Pirates began producing parodies of Micky Mouse wherein the mice deal drugs and have sex with one another; the case went to court and was judged to be an infringement of copyright. Disney’s vigour in clamping down on all deviant uses of their snow white characters are well documented in Fantagraphics “The Pirates and the Mouse: Disney’s War Against the Counterculture”.
Elsewhere, anyone who has paid attention to the fight over copyright in recent years knows that they are commonly regarded as the main force behind the extension of the copyright term in 1998, motivated by the looming loss of control of characters like their mouse.
Interesting and informative article from IP Watch, reviewing proceeedings at the Global Conference on Combating Counterfeiting and Piracy. They report that Japan took the opportunity to float the idea of an international treaty on intellectual property enforcement. Some readers may recall that Japan and the EU have also launched an enforcement ‘joint venture‘ in recent years. Japan has not historically been a key protagonist in IP policy, so one wonders whther they are in fact a stalking horse for moves from elsewhere. The same report contains a quotes from various EU officials confirming that IP enforcement is to get more aggressive and the IPR clauses in EU trade agreements will become more exhaustive and precise.
Meanwhile the most recent EDRI-gram carries an editorial by Jonas Maebe from the FFII on IPRED 2, Constitution by Criminalization, where the manoeuvres around the directive are situated within the ongoing struggle for power between the various EU institutions. Elsewhere he highlights the attempts by friends of the music industry to remove the ‘commercial scale’ requirement for a criminal prosecution so as to employ it in the jihad against music downloading. I’ve previously compiled some resources on IPRED 2 which you can find here.
The acquis communautaire is the accumulated body of law in the European Community, it comprises ECJ decisions, directives, regulations, treaties, recommendations and opinions. When a new country becomes a member state it must reform its legislation to be consistent with the acquis. Last year the Institute for Information Law at the University of Amsterdam (IVIR) was commissioned to carry out a study of the acquis in the area of copyright law, no mean task given that there have been seven directives in just fifteen years.
In addition to a general review of EU law, IVIR were asked to examine several issues in particular: the copyright term for sound recordings; problems related to multiple copyright ownership and orphan works; consumer awareness of copyright; term for co-written works.
The next days will see the launch of a remixing competition in the UK titled Mix’n’Mash. Particpants have to produce a three minute piece which will be published under a Creative Commons Non-commercial Share Alike licence. I’ve been researching guidelines for the contest and have been looking at some of the recent works boldly employing fair dealing/use so as to assess where the line now falls. Two cases particularly caught my attention.
The first is The Pervert’s Guide to the Cinema by Sophie Fiennes and Slavoj Zizek, which despite its suggestive title is really a psychoanalytical history of film. here we have the pleasure of watching Zizek meditating while he sits on the toilet or placed on the scene of a crucial moment in movie history. With considerable zest he outlines the conflicts played out between id, ego and super-ego, and illustrates the argument profusely with clips taken from about fourty movies. The segments used ar mostly between 15 and 30 seconds, and each one is accompanied by the names of the director, copyright owner etc. In any case the film has had a lot of difficulty getting distribution in the United States because of the fact that the clips used weren’t cleared with the rightsholders, and rly upon the fair dealing exception for critisim and review. Fortunately this didn’t deter Channel Four in the UK, who have experience in litigating this subject (a 1994 case about a documentary on Kubrick’s A Clockwork Orange), who broadcast the film.
The second case regards Kirby Dick’s latest offering This Film Is Not Yet Rated, which is a critique of the MPAA’s rating process so vital in enabling access to mass audiences in US cinemas. The identities of the ratings committee are secret and theere is no transparency to the process, so Dick hired private investigators to follow them and build up a picture of their attitudes. As the director of work that frequently deals with the politics of the body, he was particularly interested in the marginalization of films depicting or celebrating non-heterosexual pleasure, and really the film is overtly an attack on censorship. Audaciously Dick decided not to seek clearance for the many clips he used, so the film’s form becomes a challenge to that other form of private censorship: the arbitrary power of the copyright owner. Amsuingly he then submitted the work to the Ratings Board who gave it a NC 17 stamp, but the process requires that a director make no changes after assessment and he did, thus the name of the film. Unsurprisingly then the movie has not had a theatrical release in the US but ahs circulated widely in film clubs, festivals etc. next week it will be released on DVD. There’s an interesting article on the subject here, including discussion of a several other titles.
In early December the British Treasury published the Gower Report on Intellectual Property, named after the former Financial Times editor who chaired the independent review. Wide-ranging in scope its conclusions are too diverse to enumerate exhaustively here, but it provides a fascinating snapshot of the state of debate and industry/academic opinion which can be gauged by browsing the submissions by organizations and individuals
One interesting proposal is that the UK introduce a broad fair use provision akin to that found in the United States since the 1976 when the common law exception was formalised in legislation. Gowers notes that:
“….transaction costs and …..uses consistent with basic rights…….These two arguments provide the rationale for ‘fair dealing’ or ‘fair use’ exceptions. There is concern that, at present, the UK exceptions, are too narrow and that this is stunting new creators from producing work and generating new value” (p.62)
Other suggestions relating to exceptions are the creation of a private copying exemption similar to that existing elsewhere in Europe but without the introduction of a levy to compensate rightsholders. In addition, he asks that the British government press for an amendment to the EUCD (another pig’s dinner cooked up the Commission) so as to introduce an exception for ‘transformative use‘ into Article 5 which lists all exceptions permitted in member states.
Continuing this bizarre thread of sane suggestions Gowers also proposes an amendment in the CDA 1988 to protect acts of pastiche, parody and caricature, which fortunately are already present on the Article 5 list.
- The FCC and the Tectonics of Commercial Surveillance
- End2End: Privacy Theatre or Promise Deferred?
- A 2016 Almanac
- The Machinic Sewer
- A Yahoo User’s Journey through the Unknown
- Filmpiraten Crush Austrofascists (at first instance…)
- Pirate Residuum
- Readings from the Book of (library) Genesis
- Cyberspace – the Fifth domain of Warfare?
- Demystifying AdTech
- The Hymn of Acxiom
- Knowledge is born free, yet is everywhere in chains…
- civil liberties
- Data Protection
- European Court of Justice
- european directives
- european regulations
- european union
- material culture
- open video
- Pirate Bay
- Pirate Party
- social cooperation
- steal this film