Tuesday, June 26, 2012

IP lobbyist stamina

It's a fairly busy news day on the intellectual property front. Ofcom has published their draft code on how the Digital Economy Act will work in practice. It seems to amount to an industrial scale threatening letters regime with a form of 3 strikes coming into force by March 2014. Concern is widespread despite the government commitment to repealing the odious clause 17 web blocking provision. Consumer Focus are particularly aggrieved at the backbone-less appeal process which will lead to accused infringers having to pay a £20 fee to challenge accusations of copyright infringement.
‘Consumers are innocent until proven guilty. Twenty pounds may sound like a small sum, but it could deter those living on low-incomes from challenging unfair allegations. Ultimately consumers could be subject to “technical measures”, including being cut off from the internet, and the ability to appeal is therefore critical to ensure consumers who have done nothing wrong are not deprived of essential internet access further down the line.1
‘This fee is intended to prevent “vexatious appeals”. But this could be achieved without pricing low income consumers out of their right to appeal, by giving the Appeals Body the power to fine those who have brought frivolous appeals.  However the best way to reduce unnecessary appeals is for Ofcom to require a high standard of evidence from copyright holders, preventing thousands of notifications being sent out on the basis of flimsy evidence.’
Elsewhere, La Quadrature du Net calls for a final push on ACTA following the largely successful campaigning of recent months which led to key EU parliamentary committees rejecting the agreement, the most recent being the International Trade committee (INTA) just last week.

And in China, seemingly under the radar of Western news media, the diplomatic conference to finalize a new treaty for audiovisual performers, Beijing Treaty on Audiovisual Performances (BTAP) was concluded. The treaty was signed but is not yet ratified.
"Signature of the treaty constitutes a preliminary endorsement by demonstrating the state’s intent to examine the treaty domestically and consider ratification, though signing does not create a binding legal obligation to ratify."
WIPO Director General Francis Gurry said:
“The conclusion of the Beijing Treaty is an important milestone toward closing the gap in the international rights system for audiovisual performers and reflects the collaborative nature of the multilateral process”
Whereas Mr Gurry, with his active support for the development agenda and opposition to ACTA, for example, has been a huge improvement on the previous leadership at WIPO, I can't agree that further IP rights, outlined in this treaty, for pop/movie stars are either necessary or proportionate.  I've never really understood what problem this particular treaty or the extra rights therein, (which by the way can be contracted away to studios and music labels), was trying to solve. Meryl Streep and Antonio Banderas are pleased.

Meanwhile Commissioner Kroes, a supporter of ACTA, has been making a speech on the importance of the European cultural sector.

The thing that these various stories highlight again is the amazing stamina of IP lobbyists. They lose the occasional battle but ultimately seem to have more resources and stamina than their opponents and are always prepared to play the long game.  WIPO are handing out further IP rights to Hollywood stars.  3 strikes is coming to the UK via the DEA and Ofcom.  And ACTA, though nearly defeated, at least for the moment, in the EU is the object of furious behind the scenes activity by lobbyists and supporters at the EU parliament to try to stop the parliament effectively rejecting it in early July.

PS A reader has pointed out, quite correctly, that I failed to mention the biggest supporter of ACTA in the Commission, Commissioner De Gucht, and his intention to bypass the democratic inconveniences in the EU on ACTA.  The good Commissioner has stated (just prior to the INTA committee vote last week) that
"If you decide for a negative vote before the European Court rules, let me tell you that the Commission will nonetheless continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice.
If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed."
Let me attempt a translation of that: 

He intends to ensure the Commission ignore any EU Parliament vote to reject ACTA; furthermore, should the ECJ reject ACTA, the Court will be bypassed too; and until both of these venerable institutions find a way to come up with the right answer and accept ACTA, all available means (and given the history of this process, probably some less savoury activities too) will be pursued to ensure it gets put in place in the EU.