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net.wars: Pass the policy

by Wendy M Grossman | posted on 28 June 2009


For quite a few years now, the Canadian law professor Michael Geist has been writing a column on technology law for the Toronto Star. (Brief pause to admire the Star for running such a thing.) This week, he settled down with a simple question: where does copyright policy come from?

Wendy M Grossman

The story is that about a month ago the Conference Board of Canada recalled three reports on intellectual property rights after Geist accused the Board of plagiarism and also of accepting funding for the reports from various copyright lobby groups. The source of the copied passages: the International Intellectual Property Alliance.

According to its own Web site, the IIPA was "formed in 1984 to represent the US copyright-based industries." It includes: the Association of American Publishers, the Business Software Alliance, the Entertainment Software Association, the Independent Film and Television Alliance, the Motion Picture Association of America, the National Music Publishers' Association, and the Recording Industry Association of America.

We know those guys, or most of them.

This week, Geist settled down to examine the sources more closely in a lovely bit of spaghetti-detangling. Basically, just two organisations – Canada's equivalents of the MPAA and RIAA – were the source of multiple reports as well as funding for further lobbying organizations. "The net effect," Geist writes, "has been a steady stream of reports that all say basically the same thing, cite to the same sources, make the same recommendations, and often rely on each other to substantiate the manufactured consensus on copyright reform."

And of course, these guys don't mean "copyright reform" the way Geist – or the Electronic Frontier Foundation or the Open Rights Group would. We say reform, we mean liberalize and open up; they say reform, they mean tighten and extend. I'd call their way "business as usual".

What's interesting, of course, is to compare Geist's handy table of who recommended what and to whom to the various proposals that are flying around the UK and Europe at the moment. To wit:

Create an IP Council. The Digital Britain report, launched ten days ago, calls this the "Digital Rights Agency", and there's even an entire separate report (PDF) outlining what it might be good for. It would include industry representatives working in collaboration with government (but would not be a government agency), and it would, among other things, educate the public. Which leads us to…

Create public education awareness programs. Of course, I predicted something like this in 1997 – for 2002.

Create an Intellectual Property Crime Task Force. While I'm not aware of speciific Briitsh proposals for this, I would note that Britain does have various law enforcement agencies already who deal with physical forms of IP counterfeiting, and the Internet Watch Foundation has throughout its history mentioned the possibility of tackling online copyright infringement.

Tougher penalties. The Digital Britain report is relatively polite on this one. It says flatly that for-profit counterfeiters will be pursued under criminal law, and calls file-sharing, flatly, "wrong", but also says that most people would prefer to remain within the law (true) and therefore it intends to encourage the development of legal downloading markets (good). However, it also proposes that ISPs should use methods such as bandwidth throttling to deter persistent file-sharers.

Implement the WIPO Internet treaties and anti-circumvention measures. Already done. Anti-circumvention was a clause in the 2001 European Union Copyright Directive and was enacted in the UK in 2003, with some exceptions for cryptographic research.

Increase funding and resources to tackle IP crime. Well. Where agencies come doubtless funding will follow.

The Digital Britain report's proposed next steps include passing legislation to enact sanctions such as bandwidth throttling. There's also a consultation on "illicit peer-to-peer filesharing" (deadline September 15); the government's proposals would require ISPs to notify alleged infringers, keep records of how often they've been notified, and allows rightsholders to use this information, anonymized, to decide when to initiate legal action.

Approving the code will be Ofcom, for the time being. The consultation document helpfully reviews the state of legislative play in other countries.

It's extremely rare that we get a case where the origins of a particular set of policies can, as Geist has done here, be traced with such clarity and certainty. And it means that advocates of real copyright reform were right to distrust the claims in this area – the figures the industry claims represent losses to rightsholders from file-sharing – no matter how neutral the apparent source.

I first hear the term "policay laundering" from Privacy International's Gus Hosein; it's used to describe the way today's unwanted policies are shopped around until their sponsors can find a taker. The game works like this, as Geist shows: you publish reports until a government agency – any government agency – adopts your point of view in an apparently neutral document. Then you cite that to other governments until someone passes the laws you want. Then you promote that legislation to other countries: Be the envy of other major governments.

The Digital Britain report sells these policies as aiding the British intellectual property industry. But that's not where they came from originally. Does anyone really think the MPAA and RIAA have Britain's best interests at heart?


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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).