I don't think I got round to pointing to a terrific article by James Love in the Huufington Post in November?
Essential reading for anyone concerned about developments in the intellectual property landscape.
"A UN Agency is debating a sweeping new form of regulation for the Internet. The call for this new regulation is being led by the United States government and the European Commission, pushed by highly paid lobbyists for a trade association that includes Yahoo, Microsoft, AOL, Real Networks and a handful of other companies...
The US negotiators are not trying to impose US law on the rest of the world. They are instead seeking a new global law that is completely outside of US legal traditions, and according to legal experts, of dubious constitutional legality in the United States...
The European Commission is also not trying to impose current European legal traditions on the rest of the world. Both the US and the EC negotiators are trying to create a brand new and untested regime of Internet regulation that they have never even attempted to adopt in their own Congress or parliaments.
The fora for this international law-making exercise is the World Intellectual Property Organization, known in English speaking countries as WIPO. What is proposed has nothing to do with copyrights or patents, but rather something new, that no country has yet tried, and which is granted to protect “investments” in the distribution of works, rather than to reward creative activity...
What is proposed is as follows. Any web page operator who makes any combination or representations of “images or sounds . . . accessible to the public . . . at substantially the same time,” would be granted a new right, to authorize or prohibit anyone from copying the data, or republishing or re-using the information in any form.
This may sound like copyright, but it’s not. This new “webcaster” right is something that would apply to public domain material, and it would apply to works that are copyrighted, even if the webcaster is not the copyright owner, and does not even have a license to use or to restrict access to the copyrighted work.
What this means is this. If you download a file from the Internet, you would have to get the permission of the web page operator before you could republish the data elsewhere. This permission would be in addition to any permissions you would need from the actual copyright owner, and it would even be required if you are seeking to publish something that was either in the public domain under copyright law, or that had been licensed for distribution under something like a creative commons license.
This new “webcaster right” would be automatic, and come also with a whole set of new requirements to enforce technological protection measures (TPM) and digital rights management (DRM) schemes on Internet transmissions. The webcaster would have an ownership right in the information for 50 years, and the 50 year term would start new with every transmission of information...
The actual proposals for new treaty provisions on this “webcaster” right were written by lobbyists for a trade association called DiMA, that includes some 25 firms, including such heavy hitters as America Online, Apple, Microsoft, RealNetworks and Yahoo!...
what the broadcasters and the webcasters really want has nothing to do with protecting copyrighted works. They want to "own" the content of what they transmit, even when they are not the creative party, and even if they can't acquire such rights from the copyright owner (if any).
In the words of the treaty critics, the treaty proponents are guilty of piracy of the knowledge commons. They are seeking to claim ownership rights in works they did not create, and which today they do not own. They want something different from copyright, and different from the legal regime that exists in any country. They want to own what they simply transmit. And this will be quite harmful to the Internet."
There in a nutshell you have many of the fundamental problems with the decision making process regarding the development of intellectual property policy in the digital age.
These laws or anything like them do not exist in the EU or the US.
There is absolutely no empirical evidence to support their introduction. Though there would be the possibility of engaging in substantive research to compare and contrast the EU and US broadcasting arenas, due to the existence of the different broadcasting legal regimes, nobody wants to do that.
Some powerful commercial interests would like these regulations to exist.
The actual wording of the proposed treaty is drafted by lobbyists working for these commercial interests.
A small number of highly placed unelected officials from the EU and US quietly drive the proposals through an unelected World Intellectual Property Organisation. Quietly is the key adverb here because the more people find out about the details, the more they think these proposals are a bad idea.
We then have an international treaty.
Everyone returns home.
At home the message is "It's terrible. You can't trust the UN or the US(/EU depending on which side of the pond you hail from). We'd never have done anything like that here but we have an international treaty obligation now to implement these laws in our country. There's nothing we can do about it."
Rational decision making goes something like this:
1. Survey the situation.
2. Specify the problem.
3. Identify a series of alternative options to tackle the problem.
4. Assess the alternatives e.g. through cost benefit analysis and other modeling and empirical testing/research.
5. Choose one of the options and implement it.
6. Monitor the outcome and adjust action in accordance the relevant feedback.
By contrast IP policy development looks like:
1. We have an idea for a money making scheme.
2. Call in the lobbyists
3. We need an appropriately tailored, trade-protectionist, international treaty.
4. Don't worry we'll draft it and call in our buddies in the US and EU government services to push it through WIPO. Assess the alternatives? Haa Ha.
5. WIPO cleansweep (and I'm not talking about a Harry Potter broomstick).
6. Monitor the income and complain it's not enough. The treaty needs to be strengthened to save us losing hundreds of billions to pirates. Go back to step 1.