Friday, 17 August 2012

The Precious IPR: Five Barriers To Reform

The results of the of the Development of the Joint Strategic Plan on Intellectual Property Enforcement are available for public view, if you're interested. I've found that despite the wealth of evidence to the contrary, the usual suspects are pushing intellectual property rights revenues as the best way of earning an income from creative output. This is what I found.

Short version; if we don't make the effort to make our voices heard, be sure that the lobbyists for the corporations will. There are five reasons to fear that this is a completely wasted opportunity, and I want to walk through them with you to impress on you the need to get involved with these things when they come up.

1. Lack of engagement from citizens

The biggest disappointment of the whole shebang is that I've been sharing it here on my blog and on Google Plus. These are linked to my accounts on Google and Facebook.  Techdirt tipped me off and I follow the White House on G+. There is no way people can say they didn't know. The truth is, they weren't bothered.

Ever since I realised how few people took part, I've been adding the words "Get involved or don't complain" to each post on the subject of consultations. I'll spare you the rant about the need to be engaged to make a change. Suffice it to say that went these things come up, make the most of them, don't leave it to the activists. I mean, come on; 257 people and organizations took part in this out of a population of 311 million? There's no excuse.

2. Lots of engagement from lobbyists

BASCAP (Business Action to Stop Counterfeiting and Piracy) are a pro-IP lobby group calling for business as usual, a concerted effort to raise ACTA from the dead, and "public education."

The Intellectual Property Owners' Association (IPO) recommends:

IPO recommends providing statutory and regulatory authority for CBP to extend full border enforcement protection to design patents by creating a registry similar to that which currently exists for goods protected by trademarks or copyrights. Including design patents among the rights enforceable by CBP would put the U.S. on par with the many other jurisdictions around the world that enforce such rights, including the European Union, Japan, and China.

I think that's probably okay, but this is downright alarming:

Global IP rights holders are also seeing threats to their intellectual property in denial of patents on worthy inventions under the guise of “TRIPS flexibilities.” For example, Argentina recently adopted provisions (Joint Regulation 118/2012, 546/2012 and 107/2012) that bar many types of inventions in the pharmaceutical and chemical field, such as compositions, dosages, salts, esters and ethers, polymorphs, analogy processes, active metabolites and pro-drugs, enantiomers, selection patents and Markush-type claims. Such provisions are major disincentives to biopharmaceutical innovation.

Patents on dosages? Did I read that right? Dosages?! How irresponsible and greedy can you get?

Big Content flexed its muscles in a joint statement in which the MPAA and RIAA whinged, lied, and exaggerated the losses they'd experienced via the internet and crowed about the grudging concessions they've made to cord-cutters.

The options available to copyright owners are extremely limited absent cooperation from third parties whose services are used to infringe. Thus, meaningful progress in the fight against digital theft will require increased vigilance on the part of internet-based businesses that, sometimes unintentionally, facilitate theft. Where commercially reasonable measure can be taken to address predictable and identifiable harms enabled by the services these businesses offer, those measures should be encouraged.

Oh, and infringement is still being referred to as "theft."

Well, that's what pays the most in terms of campaign funds. What about the nay-sayers?

3. Not enough reformists

Some of the biggest surprises came from the least expected sources: startups, musicians, and the Screen Actors' Guild. Some of the MEPs from the EU hopped in as well.

We fully appreciate that acts in Europe or third countries may be considered criminal in the US and may have an effect on stakeholders within your territory. However, we would like to stress that the rigorous extraterritorial enforcement of US IP law on the internet is not a sustainable way to address the challenges stemming from the internet in relation to IPR protected media. - MEP Christian Engström, et al.

Basically, the word is, "Do you understand the concept of sovereignty? Would you like us to explain it to you?" I love these guys and thank them from the bottom of my heart for standing up for us. Long live the Pirate Party! And their Green, Socialist, and Liberal friends. I really do appreciate them.

Dave Myers of the Screen Actors Guild said,

As an actor and musician, I am outraged with the current laws regarding intellectual property. The internet businessmen now make more money off of our music than we do. And they do it because of a loophole in the current copyright law, a law that is supposed to protect artists from greedy businessmen... A solution is that the same technology that websites like Google and Facebook use to track and sell people’s information to advertisers could be used to track and stop payments to sites that make money from distributing illegal files; and to stop search engines from generating advertising income from the search traffic to those illegal sites.

That is entirely reasonable. Follow the money! Why won't they do that? Control freakery. It's not and never was about the money, it's about the exclusive distribution rights and the pro-IPR people will fight tooth and nail to maintain that business model, whatever the cost to the rest of us. If that sensible, rational approach was adopted, no extraditions would be taking place because they wouldn't be needed and all infringements online could be easily dealt with.

A coalition of tech entrepreneurs, including the founders of Twitter, Reddit, Cheezeburger, Fark, and Surveymonkey said,

...we are concerned that over-enforcement and the nature of existing enforcement efforts have created real and significant chilling effects for us and others hoping to create new businesses. Indeed, we believe that such efforts are actually counterproductive in that they interfere with the very innovations that could help respond to the challenges of widespread infringement.

If that sounds like Techdirt's Mike Masnick, it's because he's on the list as founder and CEO of Floor64. These are the people who helped pull down SOPA/PIPA back in January, and keep us informed of new bills and treaties when they're not providing useful services or making us laugh. Ben Huh can make a very good case for humour as an essential service, but he's also made a huge success of the internet's love of cat pictures and videos. And he rallied the kitteh fans to help defeat SOPA/PIPA so he's on my internet warriors list for that.

Public interest groups got in as well and I made a submission myself because I could; it was open to everyone.

4. Not enough direction

The best way to deal with a problem is to identify it properly, specify the details, come up with a solution that addresses all the details, work out how to apply it, then apply it. The citizens who did their civic duty by getting involved and making submissions were often too busy saying what is wrong (it's true, don't get me wrong) to provide a solution to very real problems. Counterfeit drugs are being sold and people die as a result. Inferior safety  and other gear that's not fit for service kills the people who use it. Telling the government to butt out isn't a solution to this and neither is the selfish whining from the industry players who think only of themselves and not either how it would be implemented or how to avoid tripping themselves up with it.

5. Ignorance

It's hilarious, if you're in the right mood, how completely ignorant people are of the basics and rationale of copyright and IPR and how the interdependence of customer and salesman/provider needs to be enabled, not stifled. And that's just the rightsholders. Libertarian-leaning citizens rail against the abuses, real and imagined, of their rights but what solutions are they offering apart from "Don't tell me what to do!"? That's the problem. If you want to see what market-based solutions in countries with less regulation looks like, go to the developing countries and see what happens there. We actually need SOME regulation, but it needs to be targeted to be effective.

Markets aren't free in monopolies, and monopoly is the problem with IPR. The rightsholders have had notions of "consumption" and "property" so ingrained it's practically in their DNA. This, of course, has been the idea from the beginning of the upward-ratcheting plan and it's resulted in selfish people making unreasonable demands, throwing tantrums like kids when they don't get what they want.

The good news

Sensible people like the tech startups coalition have made reasonable suggestions. Bear in mind that SOPA/PIPA and ACTA have been pulled down by a determined and vigilant public. The US Government is aware of this. They also know that their own citizens are eying them warily and have no desire to see their rights being further eroded. Perhaps I'm over-reacting but as I've gone through the comments I can see both sensible proposals to reform the copyright/IPR regime and efforts to enhance and increase it. I'm not sure who's going to win this one but I do know how desperately stubborn and intransigent the rightsholders are and how they've painted themselves into a corner with their Gollum-like pursuit of the "intellectual property" nonsense, believing it is "precious" when it's not. It's come home to roost but they're obstinately pursuing a reckless course because they are unwilling to consider alternatives.

Their "education" of the public has not only produced the opposite effect of the one they intended but also created a class of people who feel entitled to live off copyright revenues for life when there are other, better, more effective ways of making money. Demands for ISPs to police their users is not only obscene, it's impractical. Rightsholders need to recognise the essential humanity of their customers instead of thinking of them as thieving gits who haven't paid their share. Factoring human behaviour into their business models is the key to success in the age of the internet, not "educating" people into accepting a distorted market.

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