IP
JUSTICE WHITE PAPER
on the
Draft Intellectual Property Rights
Chapter
in the
Free
Trade Area of the
"FTAA: A Threat to Freedom and Free Trade"
By Robin D. Gross, Esq.
I. Background Information on Free Trade Area of
the
1. Expanded Criminal Penalties Would Send
Non-Commercial Infringers to Prison
a) Threatens to Mandate Prison for P2P File-Sharing
i) First Article 4.1 Option: GATT Standard – Jail for Commercial Infringers
ii) Second Article 4.1 Option: Prison for ‘Significant Willful Infringements’
iii) New Right of Communication to the Public Outlaws P2P File-Sharing
c) Articles 4.3 and 4.4 Permit Seizure and Destruction of Property and Assets
2. Controversial “DMCA-Like” Anti-Circumvention
Measures
i) Shown to Limit Fair Use
ii) Chill Freedom of Expression and Scientific Research
iv) Stifle Innovation and Inhibit Independent Development
b) First
Article 21.1 Proposal: Imposes WIPO Standard – “Adequate and Effective
Protection” Against Circumvention
c) Second Article 21.1 Proposal: Broad “DMCA-Plus” Prohibitions Against Circumvention
e) Article 20.1 Forbids Satellite Decoding Tools or Systems
3. Traditional Fair Use and Personal Use Rights
Substantially Narrowed
a) New Definition Limits Consumers’ Fair Use Rights
b) Personal Use Rights Restricted to a Single Copy
4. Requires Countries to Increase the Length of
Copyright Protection
5. Expands Scope of Copyright to Permit
Copyrighting of Facts and Data
6. Beefed-Up Border Measures Sacrifice Consumer
Privacy and Due Process Rights
a) Customs Agents to Turn Over Personal
Information to Rightsholders
b) Border Patrol and Customs Agents Deputized as
‘Copyright Cops’
7. Expanded Civil Provisions Give Rightsholders
Access to Local Courts
a) Article 2.1 Requires Tax-Payers to Subsidize
Private Interests
b) Article 2.2 Enforces Anti-Circumvention
Provisions
c) Article 2.3 Requires Innocent Copyright
Infringers to Pay Money to Rightsholders
d) Article 2.6 Provides for the Destruction of
Property
e) Jail For Failing
to Turn Over Another’s Personal Information Under Article 2.10
8. Requires Countries to Send Internet Domain
Name Disputes to ICANN
III. Conclusion: Delete Entire FTAA
Chapter on Intellectual Property Rights to Protect Freedom and Free Trade
"FTAA: A Threat to Freedom and Free Trade"
By Robin D. Gross, Esq.
The Free Trade
Area of the Americas (FTAA) Treaty[1] is
a comprehensive regional trade agreement between all 34 democracies in the
In order to get the trade benefits from membership in the
world’s largest trading bloc, FTAA countries must amend their domestic laws to
be in compliance with the treaty’s requirements. The
Negotiations over the subject matter and text of the FTAA
Agreement began in 1994 at the
The Office of the US Trade Representative (USTRO) negotiates
on behalf of the
The FTAA Treaty is already controversial for its treatment
of human rights, labor, and environmental issues.[4] An analysis of the Treaty’s draft chapter on
intellectual property rights[5]
reveals equally extreme and unbalanced provisions that dramatically expand
intellectual property rights at the expense of civil liberties.[6] For example one proposed clause threatens to
fill the
1. Expanded Criminal Penalties Would Send
Non-commercial Infringers to Prison
Article 4 of the Intellectual Property Chapter’s Section on Enforcement would dramatically expand criminal procedures and penalties in cases of intellectual property infringement throughout the hemisphere. One of the most important sections, Article 4 defines the circumstances under which a person should be criminally prosecuted and imprisoned for intellectual property infringements. FTAA nations will be forced to amend their domestic laws to provide for imprisonment in accordance with Article 4.1 of the section. Several dramatically different clauses have been proposed for Article 4.1 and it will make a drastic difference in the lives of millions of people which option is ultimately chosen. The chapter’s copyright section also creates a new “right of communication to the public” that will also create greater liability for P2P file-sharers.
a) Threatens to
Mandate Prison for P2P File-Sharing
i) First Article 4.1 Option: GATT Standard –
Jail for Commercial Infringers
Among the possible clauses under consideration that provide for criminal penalties against infringers of intellectual property, the first would require countries to apply Article 61 of the GATT/TRIPS Agreement[8]:
[4.1. Each Party Shall apply Article 61 of the TRIPS Agreement.]
TRIPS Article 61[9] is the internationally recognized law on the issue and supports criminal sanctions in cases of willful infringement done on a commercial scale with penalties to include imprisonment:
“Members shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. …” GATT/TRIPS Article 61
ii) Second Article 4.1 Option: Prison for
‘Significant Willful Infringements’
The second possible Article 4.1 clause[10] in the FTAA Treaty would also provide criminal procedures and penalties in cases of willful infringement on a commercial scale with penalties to include imprisonment. But the second proposed clause further provides that:
“… significant willful infringements of copyrights … that have no direct or indirect motivation of financial gain shall be considered willful infringement on a commercial scale. …”
Under the second proposed Article 4.1 clause, a “significant willful infringement” is enough to warrant imprisonment, losing the GATT’s requirement that an infringement be commercially or financially motivated before someone should be imprisoned. The proposed text provides no definition for the term “significant,” although it is the key term that will trigger criminal penalties under this clause.
Peer-to-Peer (P2P) file-sharing could easily fall into this broad definition of what could constitute a criminal offense worthy of imprisonment since sharing dozens or hundreds of MP3 songs could be considered a “significant willful infringement.”[11] Simply by redefining what constitutes a commercial offense as including noncommercial offenses, noncommercial infringers will be sent to prison as it they were commercial infringers under this FTAA clause.
Only very recently in the
In November of 1999 an
Both the US NET Act and FTAA’s second proposal for Article
4.1 criminalize more activity than is supported by international treaty
obligations such as GATT/TRIPS Article 61.
FTAA’s second proposal threatens to export the
The second proposed Article 4.1 threatens to enable the
As of October 2003, an estimated 60 million Americans use
P2P file-sharing software in the
One of the fundamental principles of a democracy is
self-government, where the laws reflect the will of the public and people
govern themselves. Yet in the case in
intellectual property laws,
The heavy-handed and extreme approach of imprisoning
millions of otherwise law-abiding citizens for file-sharing will neither
compensate artists nor solve the entertainment industry’s underlying business
model problems. And it would certainly
create an unprecedented crisis for the criminal justice and judiciary systems
to enforce the law in any meaningful way.
Unless the second proposed clause to Article 4.1 is deleted from the
final FTAA Treaty, Internet music swapping will be a felony throughout the
iii) New Right of
Communication to the Public Outlaws P2P File-Sharing
Article 8 of the section on copyrights creates a new right of communication to the public that further threatens to outlaw P2P file-sharing. Although this right is supposed to track an author’s existing right to authorize public performances or public displays of a copyrighted work, it actually goes much further, even over-lapping on an author’s right of reproduction.
Article 8.1grants to copyright holders the exclusive right to “authorize or prohibit the communication of the work to the public by any means serving to convey the words, signs, sounds or images thereof.” [14] Article 8.2 of the copyright section gives copyright holders the exclusive right to authorize or prohibit any communication of their works to the public by wire or wireless means.[15] This includes making the works available such that members of the public may access them from a place and at a time individually chosen by them. P2P file-sharers generally make songs available to others by storing the MP3 files of the songs in a shared directory on their computers. Since other users of the network download the songs at their discretion, P2P users risk liability under the new right of communication to the public.
This adds yet another powerful weapon to the arsenal of the
recording industry to prosecute citizens for P2P file-sharing of music. Under current
There does not have to be any underlying infringement for someone to face liability under this new communication right. Even if no one ever accesses and downloads a song from a person’s shared directory, that person is still liable for violating this new right of communication, simply by storing a music file in that publicly accessible directory. So even if there is no distribution or no reproduction of any songs at all, a P2P file-sharer is still be liable to the record companies under this new right of communication.
b) Article 4.2 Permits Additional Criminal Procedures and
Penalties Against Non-Commercial and Non-Willful Infringers
c) Articles 4.3
and 4.4 Permit Seizure and Destruction of Property and Assets
There are several possibilities within Article 4 of the enforcement section that would permit judges to seize and destroy infringing goods and any assets traceable to an infringement of intellectual property.
One proposed wording to the first option for Article 4.3 requires countries to give judges the authority to seize infringing goods and any related materials or implements predominantly used in the infringement.[16] Another proposed wording to this clause would also permit ordering the forfeiture and destruction of such infringing goods and materials and implements.
The most extreme proposal to the first option for Article 4.3 would require judges to order the forfeiture and destruction of all infringing goods, materials, and implements used in an infringement. It would also permit the seizure and destruction of documentary evidence not named in the search warrant and states that defendants must go uncompensated for the destructions of this property.
A second possible option for Article 4.3 is even more
extreme. It would give all judicial
authorities the power to seize goods suspected of infringement and any
materials and implements suspected to be used in the commission of the
offense, as well as any traceable asset.
This is much broader than the first option proposed for Article 4.3
where a suspicion is insufficient and there must be an actual finding of
infringement before a judge is permitted to order the seizure of a citizen’s
personal property. By permitting the
seizure of property based on a suspicion alone, this second Article 4.3 clause
ignores
This second option to Article 4.3 also loses the requirement
of the first paragraph 4.3 that goods seized must have been predominately
used to infringe. Under this second
clause proposed for Article 4.3 any use connected to an infringement would
permit the seizure of property.
d) Article 4.6
Permits Criminal Charges Without the Need for a Private Complaint
Article 4.6 requires FTAA signatory countries to grant
criminal law enforcement agencies the power to initiate criminal prosecutions
for infringement without the requirement that the rightsholder or an injured
party file a complaint about the infringement.[17] A requirement that an injured party must file
a complaint before the government prosecutes an infringement ensures that the
rightsholder retains an incentive to protect his own interests. Article 4.6 effectively shifts the burden of
protecting
2. Controversial “DMCA-Like” Anti-Circumvention
Measures
The FTAA Treaty’s intellectual property rights chapter also
includes prohibitions against the circumvention of technological restrictions
that control copyrighted works. Since the 1998 Digital Millennium Copyright Act
(DMCA) outlawed circumvention in the
Since its enforcement began, the
Since foreign governments have witnessed several years of
the
A vast difference in opinion continues to mount among
nations about the wisdom of outlawing circumvention and many wish to resist
making the
i) Shown to Limit Fair Use Rights
Since the DMCA forbids people from bypassing technological restrictions, US consumers are unable to copy or even play “restricted” CDs using their personal computers, or archive DVD movies, or excerpt text from eBooks -- even though American consumers have fair use rights to engage in these activities under US copyright law.
Copyright law’s fair use privilege grants consumers the right to make unauthorized copies of copyrighted works for socially beneficial purposes or personal uses. Hundreds of American consumers, librarians, and civil liberties groups petitioned the US Copyright Office under its 2003 triennial rulemaking and requested exemptions to the DMCA’s ban on circumvention due to consumers’ inability to make fair use or other lawful uses of copyrighted material.[26]
The US Supreme Court has stated that fair use provides the ‘necessary breathing space’ so that copyright does not conflict with freedom of expression rights since it limits a copyright holder’s right to control copying.[27] But when we outlaw the ability to engage in fair use by forbidding legitimate consumer circumvention, we have effectively outlawed fair use in the process. Without legal access to the tools that are necessary to engage in fair use, promises of retaining traditional fair use rights in a meaningful way are empty.
ii) Chill Freedom of Expression and Scientific Research
Freedom of expression is also harmed by outlawing the dissemination of technical information that could assist in a circumvention. By banning the expression of certain technical ideas, anti-circumvention measures violate the US Constitution’s guarantee to researchers and scientists of the right to freely express their ideas.
The extraordinary chill felt worldwide on freedom of
expression and scientific research since the enactment of anti-circumvention
measures in the
In October 2003, SunnComm
threatened to sue another
Scientific conferences are moving to jurisdictions outside
the
Since anti-circumvention measures outlaw software, technical papers, and other information that could help someone to bypass technical restrictions, they also undermine existing international treaty obligations. Article 19 of the United Nations Universal Declaration of Human Rights guarantees that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Countries that pass broad anti-circumvention measures violate their UN treaty obligations by failing to protect the freedom of expression rights of their citizens.
The FTAA Ministerial Declaration lists as its first objective for the intellectual property rights chapter:
“To reduce distortions in trade in the Hemisphere and promote and ensure adequate and effective protection to intellectual property rights.”
Ironically, if anti-circumvention measures are included in this “free trade” treaty, they will have a largely anti-competitive effect and will restrain trade and create monopolies for incumbents at the expense of small start-ups and innovators.
Since laws against circumvention forbid people from bypassing technological restrictions, they also make it illegal to bypass trade barriers such as DVD region-code restrictions. In an effort to restrict the global flow of goods to maximize consumer prices, DVD movies are designed to refuse to play on DVD players that are sold in different regions of the world. As a direct result of these anti-circumvention measures, trade is restrained, consumers pay higher prices, and have less choice of DVD movies available to them.
Anti-circumvention measures are also easily abused to prevent competition and create a monopoly over compatible devices and aftermarket replacement parts. Leading US copyright law scholars pointed out at the May 2003 US Copyright Office’s DMCA Rulemaking that anti-circumvention measures could be used by an auto manufacturer to prevent competitors from selling compatible tires or other aftermarket replacement parts, simply by embedding a computer chip in an automobile component.[31]
Technological restrictions are employed on a growing number of consumer products such as DVDs, printer toner cartridges, and garage door openers, etc., that prevent competitors from building interoperable components. Anyone who builds an interoperable device must bypass the technological measure, triggering circumvention liability.
In the
If anti-circumvention provisions are included in the final FTAA Treaty, the ability to misuse them as an anti-competitive weapon will spread to half of the world. Considering the chilling and anti-competitive effects created by the DMCA, the inclusion of any clause in the FTAA treaty that supports outlawing circumvention of technological restrictions seems wholly misguided.
iv) Stifle Innovation and Inhibit
Independent Development
Anti-circumvention measures have also been shown to stifle innovation in the development of new consumer products. Since companies can use anti-circumvention laws to prevent others from building interoperable devices, they are able to prevent the development of countless new and innovative uses of media.
The lessens of history reveal that the entertainment industry has tried to ban every single new communicative technology invented for over one hundred years on the grounds that it enables infringement. History also teaches that courts and legislatures have resisted the attempts to ban new technologies, and the industry has consistently come out the winner financially, as it was forced to evolve and adapt to the new circumstances.
Today is no different. Anti-circumvention measures should not be permitted to stifle innovation and inhibit the development of new technologies that are not controlled by today’s industry incumbents. Yet Sony used anti-circumvention measures to threaten a hobbyist who developed a program to customize his toy dog. Vivendi Universal filed a lawsuit against open source software developers for reverse-engineering and building a game server that allows lawful video game owners to play against each other on an open source network.
b) First Article 21.1 Option:
Imposes WIPO Standard – “Adequate and Effective Protection” Against
Circumvention
There are two dramatically different clauses under consideration for Article 21.1 in the FTAA Treaty’s copyright section that would require countries to outlaw circumvention of technological restrictions used to protect copyright.
Many FTAA nations have not chosen to ratify either of the
WIPO Treaties, including Canada, Brazil, Venezuela, Belize and most Caribbean
nations. Any clause in the FTAA
Treaty that requires these countries to outlaw any circumvention of
technological restrictions undermines the national sovereignty and domestic
policy choices of those nations.
The first possible FTAA clause to Article 21.1 would require all 34 countries to enforce the standard set forth by the World Intellectual Property Organization (WIPO) Treaties:[35]
[Article 21.1. Each Party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors … in connection with the exercise of their rights … and that restrict acts … which are not authorized … or permitted by law.]
Since fair uses are explicitly permitted by law under the WIPO standard, it is possible that consumers could still circumvent for fair use purposes if this clause is finally chosen for Article 21.1. This standard does not require a ban against tools and information that could help another to circumvent as the DMCA does. The DMCA admittedly went much further than what WIPO requires in broadly outlawing circumvention.
c) Second Article 21.1 Option: Broad “DMCA-Plus”
Prohibitions Against Circumvention
The second option for Article 21.1 in FTAA’s copyright section is even more prohibitive than the controversial US DMCA. The second clause proposed for Article 21.1 requires all countries to outlaw the act of circumventing technological restrictions used to protect copyright. And it also flatly bans tools, including devices, software, and technical information that are capable of circumventing technological measures “that restrict unauthorized acts”:
[21.1. In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures used … in connection with the exercise of their rights and that restrict unauthorized acts … each Party shall provide that any person who
a) knowingly or having reasonable grounds to know, circumvents without authority any effective technological measure; or
b) manufactures, imports, distributes, offers to the public, provides or otherwise traffics in devices, products or components or offers to the public or provides services, which:
i) are promoted, advertised or marketed for the purpose of circumvention of any effective technological measure, or
ii) have only a limited commercially significant purpose or use other than to circumvent any effective technological measure, or
iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measure; shall be guilty of an offense, and shall be liable…]
Subheading (a) of the second proposal to Article 21.1 outlaws the act of circumvention on a “reasonable grounds to know” basis, lowering the DMCA’s “intentional” standard for liability for the act circumvention. Under the DMCA, one is liable for intending to circumvent technological restrictions. But if this clause is enacted, one will be held liable if there was any reasonable grounds to know that he or she was circumventing a copyright holder’s technological restrictions.
Subheading (b) of the second proposal to Article 21.1 is even more unforgiving, and creates strict liability for anyone who makes or provides tools (including software or technical information) or services that can circumvent technological restrictions. This means people will be strictly liable even if they even did not know or had no reasonable grounds to know that they were providing tools or services capable of circumventing technological restrictions.
The FTAA draft treaty proposes a definition for “effective technological measure”:[36]
“Any technology, device or component that, in the normal course of its operation, controls access to a protected work, performance, phonogram, or other subject matter, or protects any copyright or any rights related to copyright.”
FTAA’s definition provides for anti-circumvention measures that broadly regulate all technological access controls and use controls protecting copyrighted works; and in 2005 it will be illegal for anyone in the Western Hemisphere (including the owner of the media) to bypass the controls.
This second option to FTAA’s Article 21.1 leaves little room for individuals to make fair use of their digital media collections. By outlawing the tools capable of circumventing technology that prevents “unauthorized acts,” we lose the ability to engage in any unauthorized act with our media, even though a wide range of unauthorized acts are lawful. Fair use by definition is lawful but unauthorized use of a copyrighted work. But since all unauthorized acts are prevented by the second option to Article 21.1, fair use is restricted in the process.
An argument could be made that subheading (a) of this provision would permit the act of circumvention in cases such as fair use since it forbids circumventing “without authority;” and traditional copyright law provides the legal “authority” to engage in fair use. Practically however, since all of the tools necessary to engage in that circumvention are flatly outlawed under subheading (b), any hope of preserving fair use under this reading of the clause is meaningless.
Individuals are unable to remain in control over the private performances of copyrighted works under the second Article 21.1 proposal. Many DVD movies have technological restrictions that do not permit consumers to fast-forward through advertisements or the misleading FBI warnings at the beginning of a DVD movie. And an increasing number of musical CDs are released with restrictions that prevent them from being played on personal computers or car stereos.
Enforced by the anti-circumvention measures, these
restrictions enable rightsholders to usurp control over the private performance
of music or movies and threaten individual liberty. Copyright law only permits rightsholders the
control of public performances of their works.
The right to control the private performance, the private experience of
a work, however, remains within the individual’s lawful control. If the second proposal is chosen for Article
21.1 in the Treaty, rightsholders will be granted total control over
individuals’ private experience of movies, music, and books throughout the
The second option for Article 21.1 in FTAA’s copyright section also contains an explicit bias against the development of open source and free software alternatives to proprietary systems.
Subheading (b)(ii) flatly outlaws software that has “only a limited commercially significant purpose or use other than to circumvent …”.
Although frequently not created for commercial purposes, free and open source software development has provided countless useful and legitimate tools. If any of those tools are capable of circumventing a technological restriction, its creator’s risk of liability for trafficking in circumvention devices is greater because of the software’s “limited commercially significant purpose or use”.
This clause’s prejudicial treatment of free and open source software developers will surely curtail development, since free and open source software programmers face greater risks than proprietary programmers for building tools. This proposal’s policy makes little sense considering the well-recognized societal value of free and open source software to advance science and the economy.
The UN body that oversees intellectual property laws, the World Intellectual Property Organization (WIPO), is considering holding a meeting to discuss "open and collaborative projects to create public goods," although Microsoft and others are heavily lobbying to cancel the WIPO meeting.[37] Considering the growing importance of free and open source software development to provide affordable and customizable tools to the public, this clause’s explicit bias against noncommercial software is impossible to justify.
Despite the DMCA’s controversial standing in the
The US Congress recognized in 1998 that the DMCA’s anti-circumvention measures could injure computer security, reverse-engineering, and encryption research. So Congress attempted to create “safe harbors” in order to permit those well-recognized legitimate activities under the DMCA.[38] While the DMCA’s exceptions to the general ban on circumvention are extremely narrow and of limited practical use, FTAA’s proposal makes no attempt to permit circumvention for even these legitimate purposes.
FTAA’s current draft chapter on intellectual property contains additional provisions to ensure consumers will be unable to circumvent technical devices to make unauthorized uses of their property. Article 6.1 of the intellectual property rights enforcement section outlaws services that assist others in making fair use of restricted media.
[6.1. Each Party shall provide adequate legal protection and effective legal remedies against any of the following acts, when undertaken for economic gain:
…
b) The alteration, removal or the rendering inoperable, in any way, of technical devices designed to impair or limit reproduction of a work or protected production;
…]
Subheading (b) of this proposed FTAA article bans enterprises that assist in bypassing technical devices designed to prevent works from being copied. This clause would outlaw many legitimate businesses, such as those that provide services to librarians’ or that assist the public in archiving personal media collections.
This clause would also forbid much encryption research and computer security since cryptographers and computer security professionals are in the business of rendering technical devices inoperable in order to demonstrate to the public the truth about technical systems.
The proposal ignores the important fact that consumers often have a fair use right to make copies of music, movies, and text, and makes it practically impossible for consumers to obtain needed services to enjoy those lawful fair uses.
e) Article 20.1
Forbids Satellite Decoding Tools or Systems
There are three options for Article 20.1 in the FTAA’s copyright section that would outlaw devices capable of decrypting satellite programming without authorization.
The first option for Article 20.1 would mandate that countries make it be both a criminal and civil offense to make or provide a device or system that is “primarily of assistance in decoding an encrypted program carrying satellite signal without the authorization of the lawful distributor” of the signal. It also makes it a civil offense to “receive, in connection with commercial activities, or further distribute, an encrypted program carrying satellite signal that has been decoded without authorization.” And these civil charges may be filed by any person who holds an interest in the content of the signal, not just the copyright owners. Individuals will be held strictly liable for making or providing satellite decryption tools under civil proceedings brought pursuant to this option.
The second Article 20.1 proposal makes it civil offense to make, provide, or permit the use of “devices or systems that are primarily of assistance in decoding an encrypted program carrying satellite signal without authorization.” It also provides that countries may make this a criminal offense in addition to making it a civil offense, but does not mandate that countries make this a crime. Individuals would be held strictly liable in civil proceedings under this second proposal as well.
The third and most extreme option for Article 20.1 would mandate that countries lower the standard for criminal liability for making or distributing satellite decoding tools. It would make it a criminal offense to make or provide these tools “having reason to know that the device or system is primarily of assistance in decoding an encrypted program-carrying satellite signal.” Thus, criminal penalties could apply to someone who did not actually know that the tool he or she provided could decode a satellite signal if this proposal is finally chosen. It would also require countries to make it “a criminal offense willfully to receive or further distribute an encrypted program-carrying satellite signal that has been decoded without authorization”. In addition to the criminal provisions, this final option also makes it a civil offense (with strict liability) to make or provide satellite decryption tools or to receive or distribute a signal decoded without authorization.
f) Article 22.1
Forbids Bypassing Digital Management Information
Article 22.1 of the enforcement section forbids removing otherwise circumventing a product’s digital management information without “authority.”[39] It makes it illegal to remove or alter rights management information or to distribute products with the information removed. This provision is similar to Section 1202 of the US Digital Millennium Copyright Act.
Under this provision criminal liability attaches for knowingly altering or removing the management information or knowingly distributing copies of works where the information has been removed without authority. Civil liability attaches when there is a reasonable grounds to know that the removal or distribution of the information “will induce, enable, facilitate, or conceal an infringement of any copyright or related right.”
3. Traditional Fair Use Rights and Personal Use
Rights Substantially Narrowed
a) New Definition
Limits Consumers’ Fair Use Rights
Article 1 of the copyright section in the draft FTAA Treaty proposes the following new definition for “fair use”:
“Use that does not interfere with the normal exploitation of the work or [unreasonably] [unjustifiably] prejudice the legitimate interests of the author [or right holder]”.
FTAA’s proposed definition is dramatically narrower than the current open-ended definition of fair use guaranteed by the US Constitution and codified in Section 107 of the US Copyright Act.[40] The US Supreme Court stated that fair use must be decided on a “case-by-case basis” and that there can be no “bright line rules” for deciding matters of fair use. Fair use is intended to permit unauthorized, but socially beneficial, copies of copyrighted works in cases such as personal use, research, and criticism.
In determining whether a particular use would be fair,
traditional
FTAA’s narrow definition of fair use also gives short shrift to Americans’ freedom of expression rights guaranteed by the US Constitution. For example, copying something in order to criticize it can easily prejudice the rightsholders’ interests (since it could discourage patronage); and traditional fair use, which accounts for free speech interests, would permit such copying. But under FTAA’s definition, copying for critical purposes will count against the use being considered fair, chilling freedom of expression throughout the hemisphere.
FTAA’s new definition would only permit fair use tools that do not diminish commercial opportunities for the rightsholder. Many traditional fair uses would fail to meet FTAA’s threshold since under traditional fair use standards, the effect on the market is only one of four factors to be considered and is not given any more weight than the other factors for determining whether a particular use is considered fair.
The FTAA’s proposed definitions threaten to stifle new and innovative uses of technology by giving too much control to copyright holders to prevent tangential businesses. Peer-to-Peer (P2P) software would surely fail as a fair use tool under FTAA’s proposed definition, since the ability to freely share sound recordings of music could prejudice a record label’s ability to sell identical copies for a fee.
Under the US Supreme Court’s 1984 landmark ruling in the “Betamax” case, which upheld the legality of VCR’s against identical claims, copyright law does not forbid devices that merely assist in infringement if the devices are capable of significant non-infringing uses.[41] FTAA’s definition does not consider whether technologies are capable of non-infringing uses at all, the core of the US Supreme Court’s “Betamax” doctrine. Companies will be unable to build new and innovative devices under such a narrow definition for fair use. The VCR turned out to be the movie industry’s top earner, but only because contributory infringement claims were rejected by the US Supreme Court.
b) Personal Use
Rights Restricted to a Single Copy
Personal use is one type of fair use that permits individuals to make unlimited copies of works for personal use purposes, such as watching a movie at another time or listening to music on a different player. Despite this broad personal use right historically enjoyed by US citizens, Article 1 of the FTAA Treaty copyright section attempts to narrowly define “personal use” as:
“Reproduction or other use of the work of another person in a single copy, exclusively for an individual’s own purposes, in cases such as research and personal entertainment.”
Personal use has never been
hemmed in by a definition nor limited to only a single copy in
The suggested FTAA definition would make illegal many commonly engaged in, but lawful fair use activities. For example it would forbid making a personal use copy of archives or other back-up copies of one’s music or video collections, even after the originals are lost. It would also make illegal making a “mix-tape” of favorite songs to give to that special someone, since that copy is not for the individual’s own purposes. Nor could a husband and wife (or other family member) both copy music from their shared home entertainment system to play in their own individual car stereo systems or portable MP3 players under FTAA’s limited definition of personal use, since more than one single copy is made of a song and more than one individual uses the music.
FTAA’s proposed definition only mentions personal use applying to cases such as research and personal entertainment. Section 107 of the US Copyright Act also lists activities such as copying for purposes of criticism, commentary, news reporting, teaching, and scholarship as presumptively permitted fair uses, but these are not provided for in either of the FTAA’s proposed definitions.
FTAA’s flagrant attempt to restrict consumers’ fair use and personal use rights without justification and then impose those restrictions on half of the world should be rejected in its entirety. Traditional fair use rights are designed to be broad and open-ended, and any attempt to box them in with such narrow definitions will chill freedom of expression and stifle innovation throughout the hemisphere. In order to maintain any traditional balance between copyright restrictions and freedom of expression, the proposed definitions for fair use and personal use must be completely deleted from the FTAA Treaty.
4. Requires Countries to Increase the Length of
Copyright Protection
There are two possible clauses under consideration for inclusion in the FTAA copyright agreement that would standardize the length of the term for copyright protection in signatory countries. The first possible clause for Article 10.1[42] applies the internationally recognized Berne Convention standard of the “life of the author + 50 years” as the appropriate term for copyright protection.[43]
The second possible Article 10.1 clause[44] would require all countries to adhere to “no less than” the new US term of “life of the author + 70 years” for exclusive expropriation rights over a work. This means all other countries in the hemisphere would have to amend their domestic copyright laws and increase the length of the term of protection to, at a minimum, “the life of the author + 70 years,” the new US standard.
This would send money and other resources flowing out of developing nations and into the coffers of US entertainment giants such as Disney, since developing nations are overwhelmingly importers of intellectual property; and licenses will have to be obtained for at least an additional 20 years in order to use works that would otherwise be in the public domain for all of society to use and freely benefit from.
It makes little sense for the FTAA Treaty to force the other
33 countries to increase their term for copyright protection, especially since
the Public Domain Enhancement Act[45]
is currently pending before US Congress that would repeal the 1997 Sonny Bono
Copyright Term Extension Act. The Bono
Act increased the term of copyright protection in the
5. Expands Scope of Copyright to Permit
Copyrighting of Facts and Data
Article 2.1 of the FTAA Treaty’s proposed copyright section
would dramatically expand the scope of the subject matter that is eligible for
copyright protection in the
[2.1. The following are not subject to copyright:
a) ideas, regulatory procedures, methods, systems, mathematical designs or concepts per se;
b) outlines, plans or rules for conducting mental processes, games or business,
c) blank forms to be completed with any type of information, scientific or otherwise, and instructions thereon;
d) texts of treaties or conventions, laws, decrees, regulations, judicial decisions, and other official records;
e) information for everyday use such as calendars, diaries, official land registers, or diaries, and keys;
f) individual names and title;
g) industrial or
commercial exploitation of the ideas in the work].
By defining a finite list of items that are not subject to copyright protection, Article 2.1 permits the copyrighting of everything not on the narrow list. A vast universe of technical and scientific data would be roped off from the public under this definition. Large classes of facts such as compilations would also fall into this broad category of works subject to copyright protection.
FTAA’s expansive “reverse-definition” would grant large
media companies control over data and information without meeting the usual
threshold requirement for copyright protection in the
Copyright extremists should not be permitted to use the “free trade” agreement as an opportunity to unconstitutionally expand the scope of protectable subject matter beyond its current bounds in such a sweeping fashion. Copyright’s scope must not be so expansive so as to stifle the free exchange of ideas and information as proposed by Article 2.1. This section must be rejected if copyright incentives are to serve as an “engine of free expression,” rather than a roadblock to progress and innovation on the information superhighway.
6. Beefed-Up Border Measures Sacrifice Consumer
Privacy and Due Process Rights
Article 5
of the enforcement section of the FTAA intellectual property chapter expands
border measures to give customs authorities power to inspect and hold property
that is evidenced to be infringing. It
also permits customs agents to violate the privacy and due process rights of
people passing through customs who the agents suspect of infringement and it
grants
a) Customs Agents to Turn Over Personal
Information to Rightsholders
Article 5.5
requires FTAA countries to grant customs officials the authority to inform a
right holder of the names and addresses of people importing goods that they
have determined to be infringing.
[5.5. Where the competent authorities have made a determination that
goods are counterfeit or pirated, a Party shall grant the competent authorities
the authority to inform the right holder of the names and addresses of the
consignor, the importer and the consignee, and of the quantity of the goods in
question.]
Since no definition is provided for “competent authority,” presumably any border patrol agent or