Robin Gross Seeks International IP Justiceby Richard Koman
The ever-growing rift between the U.S. and Europe on the question of war against Iraq may be just the tip of the iceberg of a full-blown schism. Indeed, divisiveness in the UN and in NATO may be a harbinger of a time when Europe and the rest of the world starts to really question whether adhering to the U.S. line is really the best course of action.
Just as France and Germany are actively resisting the American push for war, countries around Europe are starting to question some U.S. requests that the European Union has accepted wholesale. A case in point, the European Union Copyright Directive, passed in 2001, requires member countries to pass laws similar to the U.S.'s Digital Millenium Copyright Act, including the controversial anticircumvention clause.
The EU Copyright Directive is just one thread in the fabric the U.S. has been weaving around the world. According to Robin Gross, a former intellectual property lawyer at the Electronic Frontier Foundation and now the director of IPJustice, the U.S. pressures foreign nations to
- clamp down on copyright offenders, and pay (from a local perspective) huge royalties;
- pass laws increasing the scope and terms of copyright and patent protection for American and European publishers;
- and even, as in the case of the U.S. grant of most-favored nation trading status to China in 1994, requiring nations to make copyright violation a capital offense in order to receive economic benefits.
But there are glimmers of hope. On January 31 of this year, the Finnish committee considering the EUCD legislation found the proposed law went too far in violating legitimate consumer behavior. The committee sent the proposal, which specified a two-year jail term for circumvention violations, back to its drafters for another try. "We really can make a difference," said the chairman of Electronic Frontier Finland, the main organization lobbying against the law.
As an attorney at EFF, Gross traveled around the world talking to various groups about the ways in which intellectual property law was being expanded in their countries. "Everywhere I went people would express this frustration at the lack of organized effort in their country to battle against the expansion of intellectual property laws. There are lots of groups in lots of countries but they're all very fragmented. They would be so much more powerful if they could join together, work together, share knowledge, share resources. What I'm trying to do here is build coalitions among these various groups, connect the people together--the librarians in London and the hackers in Hungary."
On February 25, 2003 Gross will release a document called "Principles of Intellectual Property Justice," which will provide a baseline to work toward for groups in each country. The document will espouse the idea that consumers should be allowed to make personal-use, private copies of work, that fair-use rights in publications should be protected, and so forth. "It shouldn't matter which country you're in," Gross says, "if it's not hurting the artist to make a personal-use, private copy, it should be something that is lawful. We want to guide organizers and lawmakers toward an agenda of freedom of expression against the expansion of intellectual property laws."
Richard Koman: What is the European Union Copyright Directive and where does it stand?
Robin Gross: There's a tremendous push right now by Hollywood to pass anticircumvention laws in different counties. The EUCD is very much like the U.S. Digital Millenium Copyright Act in that it outlaws acts of circumvention even if it's your own property. Also the directive outlaws providing tools or information that would enable someone else to circumvent controls, also similar to the DMCA in the U.S. There's been quite a lot of controversy about the anticircumvention provisions because these laws prevent scientists from publishing their research and companies from competing in the market for devices that can interact with digital entertainment. The European Union Copyright Directive was supposed to have been implemented last month, and only two countries--Denmark and Greece--have passed legislation that would comply with the copyright directive. A number of countries right now have this legislation before their legislatures. It's a very hot topic and there's a lot of dissent in these countries.
Koman: Which countries are the most resistent to the directive?
Gross: Finland recently rejected national legislation to implement the EUCD due to an overwhelming grassroots opposition. Led by Electronic Frontier Finland, Finnish citizens convinced the legislative committee chairman to withdraw the bill because it criminalized so much legitimate consumer circumvention.
Germany is also presently considering legislation similar to the DMCA. Through German activists at Privatkopie, IP Justice submitted a statement to the German Judicial Committee considering the bill to warn about the chilling effect we've experienced in the U.S. since the DMCA was passed. The German bill will be up for a vote in a few months, so the time for Germans to contact their representative is now.
Koman: How much sympathy is there really in the legislatures in these countries, for as active as groups like EFF were in the 1990s, Congress still overwhelmingly passed the DMCA and the Copyright Extension.
Gross: The legislatures in these countries and in the U.S. are up against the U.S. copyright industry. They're extremely powerful financially and in terms of getting their agenda pushed in various legislatures. So that's one big obstacle people have to confront: the sheer power, the money, and the influence of the U.S. copyright industry. The other issue legislatures will be grappling with, much as they have in the U.S., is that when these circumvention laws were first introduced, Hollywood promised that they were necessary in order to protect against copyright infringement and they promised they would only be used as a shield for that purpose. Now that they've been passed, we're seeing that these laws are actually very powerful tools to silence critics and go after competitors, things that have absolutely nothing to do with copyright infringement.
So it should come as no surprise that we've seen statements from a few members of Congress in the last few months saying, "Hey, wait a minute, this isn't what we thought we were passing when we passed the DMCA." (Rep.) Zoe Lofgren (D-CA) said she had originally signed onto the DMCA because she thought it would be used to prevent copyright infringement, but now that she seen it in force, she's commented that it's being used to stifle competition and innovation, and that's why she introduced legislation that would amend some of the harshest provisions of the DMCA and permit people to circumvent for lawful purposes.
Koman: For instance, the Lexmark case where they're using DMCA to prosecute a competitor, Static Control Components, which is in the business of refilling used cartridges. Lexmark printers are equipped with a "killer chip," which prevents the cartridge from working after the initial use. Static Control came up with a replacement chip which essentially tricks the cartridge into thinking its never been used before. Lexmark is using DMCA to say that Static Control is circumventing their technology. DMCA, of course, makes circumventing technology in order to get access to a copyrighted work illegal. Lexmark seems to be saying that printer toner is a protected work. Or something. It's kind of hard to understand the legal justification; in any case, it smells like what's being protected is a company's ability to freeze aftermarket resellers out of a very lucrative business.
Gross: Yes. That's the type of anticompetitive use that Lofgren is referring to. Preventing competition in the printer toner cartridge market is not about protecting against copyright infringement. There was another case where DMCA was being used to prevent a competitor from distributing a universal remote control for garage door openers. That's another example of how DMCA is being abused in practice in this country, and lawmakers around the world would be wise to stand up and pay attention to the way its being used here and not repeat the mistakes we've made here in terms of passing these overbroad anticircumvention laws.
Koman: Are they in fact watching what's happening in the U.S. or simply listening to the words of the U.S. copyright industry?
Gross: Well, there's an incredible amount of inertia on the side of the copyright industry to get this agenda passed. It's been in place for a number of years. In some ways, countries already have their hands tied. The EU passed the Copyright Directive, which means the 15 member countries of the EU are required to pass this legislation. So you're right, they want to stop and slow down and reconsider this, but there's not a whole lot of opportunity to do that because it's been such a rushed process up until this point. Many of these countries are obligated to pass these laws under their treaty obligations. Unless they can pass meaningful exemptions, I expect we will be faced with court challenges in Europe, much as we've had in the U.S., where citizens are going to have to challenge these laws after they've been passed based on freedom of information and freedom of expression rights in their own national constitutions.
Koman: On the other hand, there's the acquital of DVD Jon in Norway.
Gross: That's right. That's a great example of a country that has been willing to stand up to Hollywood. It's interesting to note, though, that these were judges that made the ruling that Jon bought the DVD and if he wants to watch it on his own computer that's not controlled by the Hollywood movie studios, he's well within his rights to do that. What that case really represented was an attempt by Hollywood to use the judicial process to create circumvention laws in Norway, without ever putting it before the legislature, without putting it before the public; but, rather, simply trying to get a judicial reconstruction of an old data theft law so that it would now apply to people who want to access their own property.
Koman: What would the impact have been on that court if the EU Copyright Directive were in place? Would they have been able to come to the same decision?
Gross: It's very likely it would be outlawed in Norway. Much of it would depend on the particular implementation in that country. If they had explicit exemptions for reverse engineering, it's possible that the act of creating DeCSS would have been lawful; however, posting it to the Internet still may have been unlawful because you're not allowed to provide tools or information to allow someone else to access that content.
Koman: Are you looking at other regions besides Europe?
Gross: I am concerned about other regions, particularly Africa and other countries that are intellectual property importers as opposed to intellectual property exporters. I am concerned about the U.S. imposition of very broad intellectual property grants in those countries and the effect it's going to have on the native peoples. Are they simply going to be forced to import all this American culture and American movies and American music at the expense of their own culture?
Koman: How is this playing out specifically?
Gross: Take, for example, AIDS drugs that are patented. Patent laws are national; there aren't really international patent laws. There are international treaty obligations and different countries agree to respect each other's patents, but it's always up to the individual country to decide the public policy of what level of patent protection to provide. Some countries like Brazil and India don't permit patents on pharmaceuticals. There's a lot of pressure in terms of trade sanctions for these countries to adopt U.S.-style patent laws that would raise the cost of AIDS drugs and other drugs in those countries.
So you kind of have to take a step back and say, wait a minute, is this in this country's best interest to be granting monopolies to U.S. drug companies when their own citizens are dying from lack of access to affordable drugs? What is actually in the best interest of that particular country is not even part of the debate. The debate is simply, "Well you're going to be sanctioned by the U.S. or the WTO if you don't adopt these intellectual property rules," so these countries often have very little choice, very little bargaining power, very little leverage against the Western view of intellectual property and its imposition on these countries.
Koman: So this whole area of copyright and patent protection is part of the larger issue of globalization?
Gross: I think it is. What's going on in the intellectual property space is part of what's going on in the world in terms of very large multinational corporations coming in and in many cases having more power than national governments do.
Koman: And this happens through international organizations like WTO?
Gross: That's right. WTO is a big part of the picture.
Koman: World Bank...
Gross: That's right. If you want loans, if you want help from the IMF, there are all kinds of leverages where the gatekeepers of capital or wealth, if you will, are able to require these other countries--whether it's in trade talks or treaty obligations or just simple financial pressure--and to pressure these countries to pass laws that are not in their best interest.
Koman: Poor countries have a built-in interest to use the Internet as a way to provide access to information to their citizens, to provide books, to educate children, for people to learn about medical conditions, drug side effects, and so on. They can't afford to buy the books, they don't have the infrastructure to communicate with people in other ways, so the efficiency of the Internet is very powerful. On the other hand, the copyright industries are fearful of the Internet as a mechanism of widespread copying and copyright infringement.
Gross: This really is quite a quandary that many are faced with in the Internet space. On the one hand, we have this technology that is truly revolutionary in how it can connect people from all over the world. It's an opportunity to have more intellectual growth. On the other hand, it does present a challenge when the traditional business models depend upon a scarcity model of intellectual property. And now we're moving into a world where scarcity's not a problem. These governments in developing countries are faced with a quandary because it is such an opportunity to share knowledge and culture with parts of the world we haven't reached before. The opportunity is just enormous but at the same time they're faced with a lot of pressure from the copyright industry to build walls and slow down the transfer of information, so these countries are going to have to walk a very careful line to be sure they watch out for the best interests of their people. Do they want to have a vibrant public domain they can all share and learn from together? Or do they simply want to have a system where their information is shipped in to them from the U.S., and they need licenses from Hollywood in order to show a movie in a school. When the technology is there to do it at low, low cost, there's not a whole lot of incentive to be spending these countries' resources on exorbitant royalties.
Koman: There's just the pressure from the U.S. and the EU...
Gross: We say "just the pressure" but the pressure's a lot. There are a lot of levers the international community has to pressure these countries to adopt Western intellectual property laws
Koman: In places like China there's widespread copying of MS Windows CDs and all kinds of CDs. Doesn't Microsoft have a reasonable concern about that?
Gross: It's interesting that you mention China, because the U.S. has been working very hard to get China to change their intellectual property laws to more closely resemble U.S. laws. In fact, in 1994 when China was trying to get most-favored nation trade status, the U.S. required China to add copyright infringement to their list of capital punishments. And that was a requirement in order for them to trade with us. So while we can say sure, Microsoft has an interest in having its copyrights protected, at what cost? Should we set up systems that encourage payment and renumeration? Absolutely. Should we put people in jail forever or put them to death because they copied a book without permission? That's a little extreme. But it shows the kind of power that Hollywood has in pressuring countries to change their laws.
China had a very different copyright policy in the past. They believed that information belonged to everyone and there wasn't a concept that one person has the right to copyright something and claim something as their own. [U.S. copyright law] is a very foreign concept in that country. They have a cultural system where they share, so this [copyright infringement] law is a tremendous change to their culture as well.
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