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Developing the Digital Marketplace for Copyrighted Works

The RightsTech Project served as an adviser to the U.S. Patent & Trademark Office on the program for its January 25th public meeting on Developing the Digital Marketplace for Copyrighted Works. Transcripts and video of the sessions are now available.

Video 1 includes the keynote presentation by Bill Rosenblatt of Giant Steps Media and the Panel Session 1, on creating globally unique identifiers for copyrighted works, moderated by Evan Sandhaus, Executive Director, Knowledge and Metadata Management at The New York Times

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Video 2 includes Panel Session 2, on the role of registries in commerce, moderated by Jim Griffin, Managing Director of Hazen, LLC, and presentations by Lobster.media and the U.K. Copyright Hub Foundation.

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Video 3 includes Panel Session 3 on licensing and monetization, moderated by Vickie Nauman, Founder of CrossBorder Works, and Panel Session 4, on global perspectives, moderated by Paul Sweeting, Co-founder of the RightsTech Project, along with closing remarks by John Morris, Assistant Administrator and Director of Internet Policy at the National Telecommunications Infrastructure Administration.

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The full transcript of the event is available here. The agenda and speaker bios are available here.

 

New Storms Over Safe Harbors

CISAC, the international confederation of authors’ societies, this week released a study conducted by University of Texas economist Stan Liebowitz on the impact of the safe harbor provisions in the Digital Millennial Copyright Act and their counterparts in the European Union’s E-Commerce Directive on music rights holders.

Although Liebowitz gives it a scholarly gloss, much of his analysis will be familiar to anyone who has followed the debate over the so-called value gap, between what music rights owners earn from their music appearing on YouTube and other user-upload platforms, and what they earn from fully licensed platforms like Spotify and Apple Music: YouTube is given unfair negotiating leverage over rights holders because the protection from liability offered to service providers by the safe harbors mean it is effectively impossible for rights owners to withhold their content from the platform if they don’t like the terms, resulting in below market rates.

But Liebowitz ups the ante by emphasizing two dynamics not often highlighted by other analysts that he claims exacerbate the problem.

The first point — of particular note to RightsTech readers — is Liebowitz’s contention that YouTube could be making its much-touted Content ID system for identifying unlicensed copyrighted works on the platform less effective than it could be because a more effective filter would undermine its leverage with rights owners.

Although copyright owners should have a duty to provide YouTube with information about their copyrighted works before they could claim copyright infringement, once such information were provided, normal copyright law, without the safe harbor, would provide the proper incentives for YouTube to make sure that its Content ID worked better than any alternative…One of the main impediments to this solution, however, is Google’s incentive, which is to make YouTube’s voluntary filtering system only accurate enough to silence critics of its treatment of
copyright holders, as opposed to actually eliminating infringing files…

If Google wants to claim to be going above and beyond the requirements of the DMCA, it is merely necessary for it to provide a Content ID system that works moderately well, since any such system is voluntary. In fact, it would be surprising if Content ID worked as well as Google could make it, since such a Content ID system would weaken YouTube’s bargaining position with the copyright holders with whom it does business. If Content ID worked as Google suggests, meaning almost perfectly, copyright owners who thought they were being underpaid by YouTube would remove their material from YouTube since YouTube’s users would no longer have access to those copyrighted works, as Google claims in the above quote. As we shall soon see, however, the current Content ID system is insufficiently accurate to remove YouTube’s superior bargaining position, which is why YouTube is fighting to keep the safe harbor which it would not need with a more accurate Content ID system.

That comes pretty close to accusing YouTube of bad faith in designing Content ID (without citing any actual evidence of it apart from YouTube’s alleged incentive) — a potentially explosive charge if it were taken up by others as part of the broader value-grab argument.

Liebowtiz’s second (and less tendentious) contribution to the debate is his claim that YouTube’s below-market rates are actually a drag on all market rates, further undercutting compensation to rights owners.

[T]here are two sources of negative impacts of [user-upload content] sites on the revenues to copyright owners. The first, which is a static effect, is the lower direct payment to copyright owners by UUC sites because these sites do not need permission of the copyright owners to provide access to their works and if they get permission they pay below market rates. Second, and of a size that could be larger than the first, is a dynamic effect which is the reduction in revenues from the unfair competition that UUC sites impose on permission based sites, lowering their audiences and  revenues, and by necessity, reducing the payments that they make to copyright owners…

Thus, there are additional sources of harm to copyright owners caused by the advantage that safe harbors provide to UUC sites, and these sources of harm are usually ignored in discussions of safe harbors.

That’s an argument that could find favor with Spotify, Apple, and other fully licensed sites that have so far largely stayed out of the debate over the safe harbors.

The full report is available here.

 

Cat’s Paw: The Promise and Peril of Decentralized Creativity

When the developers behind the viral sensation CryptoKitties first turned their virtual cats loose on the blockchain they intended to hew closely to the blockchain ethos of decentralization. Accordingly, the only components of the game actually registered on the Ethereum blockchain are the ownership of the individual cats and the cats’ “digital DNA” that allows them to “breed” with other virtual cats to create new unique CryptoKitties.

The actually renderings of the kitties — the goofy, cartoonishly colored cat images that have seduced users into the world of crypto and virtual assets — were never added to the chain.

“The code is all open-source. I was really hoping that people would start to do their own renderings of the cats,” CryptoKitties Fat Cat Mack Flavelle told a packed house at the Digital Entertainment World conference this week. “If you wanted to go in and change the code so that your cat rendered with antlers you could do that. It’s your cat.”

Had the code for rendering the images been added to the blockchain it would have become immutable, which would have made modification of the code impossible.

“Decentralization meant decentralization,” Flavelle said.

That philosophy carried over to ownership of the intellectual property in the images as well. Part of goal in launching CryptoKitties, Flavelle explained, was to introduce people without a background in blockchain or cryptography to the concept of owning virtual assets, which mean Axiom Zen, the studio behind CryptoKitties, abjuring any interest of its own in the images.

“We we get questions from people asking whether they can make a t-shirt with their cat on it to give to someone, and we’re like, ‘knock yourself out.'” Flavelle said. “If you want to print up 800 t-shirts with your cat and sell them you can. It’s your cat.”

As a proof of concept, that approach has worked spectacularly. CryptoKitty owners have quickly become possessive toward their cat and put great store in its appearance, according to Flavelle. The vast majority of the buying and selling of the cats, along with their “breeding” rights, he said, has been transacted directly between owners, rather than through CryptoKitties’ own marketplace, implying that players indeed view the images of their virtual cats as having real value, independent of the platform they were born on.

To date, 10 CryptoKitties have sold for more than $100,000 each, Flavelle reports.

The success of CryptoKitties’ decentralized model, however, turns out to have a dark side. According to Flavelle, scammers have seized on the popularity of CryptoKitties to try to defraud people of money by selling them fake kitties. With no fixed code for the images on the blockchain, and no claim of rights in them itself, Axiom Zen has found itself with few technical or legal tools to pursue the scammers.

Flavelle said he is searching for ways to prevent scammers from infiltrating the CryptoKitties ecosystem without compromising its decentralization, but is yet to hit on a workable solution.

“It’s a problem we need to solve,” he said. And a possible warning sign for other entrepreneurs looking to democratize and decentralize the creative process.

From Art to Artificial Intelligence

The U.S. Patent and Trademark Office last week held its second public meeting on Developing the Digital Marketplace for Copyrighted Works, where one of the topics of discussion was whether and how works authored by a computer running artificial intelligence software should be regarded for purposes of copyright law (disclosure: I was an informal adviser to the PTO on the program for the event).

The question is not merely academic. Companies like Amper Music in the U.S. and Aiva Technologies in Luxembourg are using A.I systems today to create original production music, while Google engineers have taught A.I. systems to create music and art, and to take photographs that professional photographers have trouble distinguishing from professional landscape shots. Works created at least in part by machines are already entering the stream of commerce.

KlarisIP managing partner Edward Klaris

There is a broad, although not universally shared, consensus among legal experts that under U.S. copyright law, non-human actors, whether machine or monkey, cannot be considered to own a copyright. But that still leaves a host of vexing questions likely to occupy courts for many years. If the machine cannot own the copyright on a machine-made work, can anyone, and if so, whom? The owner of the machine? The author of the software program? The human who pushes “start”? Or, should machine-made works be considered in the public domain?

If a copyright is to be assigned, how much creative input must a human provide, and at what stage of the process, to claim it? If there is no copyright, what if any other legal basis is there for licensing their use?

At the Digital Entertainment World conference in Los Angeles February 5-6, KlarisLaw and KlarisIP managing partner Edward Klaris will explore some of those questions in a special presentation called From Art to Artificial Intelligence.

Klaris previewed some of his thoughts on the topic in a blog post this week for Intellectual Property Watch:

The concept of encouraging the production of creative work by protecting it — incentivizing authors financially — is embedded in our Constitution. The Intellectual Property Clause expressly aims “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

In drafting the black-and-white clarity of this clause, our framers could hardly have anticipated the highly gray area of bots making copyrighted works.  You don’t have to incentivize a bot; a machine simply does what it was programmed to do without any need for financial motivation.  That is why the court declined to award a copyright in a work created by a monkey.  Monkeys are not financially incentivized to create works, and even if they were, the monopoly afforded copyright holders was not intended for animals.

In a world where bots may eventually dominate the creative space — manipulating, arranging, color-correcting, filming, and ordering literary, audio and visual content – courts may decide that works created without human input belong in the public domain with no protection. Or, if copyright is granted, bots’ output would be protected for potentially more than 100 years under current copyright law.  Which is better?  What path best promotes our country’s fundamental interest in “the progress of science and useful arts”? And, should copyright subsist for fewer years under certain circumstances?

Klaris’ presentation will be held on February 6 as part of the RightsTech track at DEW. To view the full RightsTech agenda click here. For information on how to register for the event click here.

 

NMPA CEO David Israelite to Speak at DEW on Modernizing Music Licensing

Just before Christmas, a bi-partisan group of lawmakers introduced the Music Modernization Act, which, among other things, would create a new blanket license for mechanical reproduction rights to musical compositions and establish a new entity to collect and distribute mechanical royalties.

The bill is meant to address one of the abiding sources of friction within the digital music streaming business. Musical compositions in the U.S. are subject to a compulsory mechanical license, meaning anyone can record a song and sell copies of that recording by sending a notice of intent (NOI) to the composition’s copyright owners and paying a per-copy royalty set by the Copyright Royalty Board.

Unlike the public performance right, however, where performance rights organizations (PROs) like ASCAP, BMI and SESAC aggregate millions of compositions and offer a blanket license covering their entire repertoires, anyone availing themselves of the compulsory mechanical license is required to identify and pay the appropriate copyright owners individually. Where the copyright owners cannot be identified or located, the user can file the NOI with the U.S. Copyright Office and the royalties paid are held in escrow until the rights owners are located.

The system worked well enough for many years when it was rare for anyone or any outlet to make bulk use of the mechanical reproduction right. With the rise of digital streaming, however, which has been held to implicate both the public performance and the mechanical reproduction right, the lack of an efficient system for administering mechanical rights has been a constant source of tension, between digital service providers like Spoity and Apple Music on the one hand, and music publishers and songwriters on the other.

That tension has frequently erupted into litigation, including the $1.6 billion lawsuit filed against Spotify in December by Wixen Music Publishing over Spotify’s alleged failure to pay required mechanical royalties.

Should it become law, the Music Modernization Act could go a long way toward easing those tensions. Since it’s introduction, in fact, the bill has gained broad support throughout the industry. In a rare show of unity, a group of more than 20 industry organizations representing music publishers, songwriters, record labels, PROs, and service providers issued a joint statement earlier this month endorsing the bill and urging its passage.

Much of the credit for the bill’s introduction and for rallying support behind it belongs to the National Music Publishers Association (NMPA) and its CEO David Israelite, who worked closely with the bill’s sponsors on Capitol Hill and helped broker the joint statement. Israelite will sit down with me for a special fireside chat at Digital Entertainment World on February 5th to discuss the Music Monetization Act, as well as other issues facing the industry, including the music industry’s notorious data challenges, and the future of performance rights licensing in the wake of recent court cases.

This week, we asked Israelite a few preliminary questions to set the stage for his fireside chat:

RightsTech Project: Last week, a group of music industry organizations jointly endorsed the Music Modernization Act, the Classics Act and the AMP Act. To what do you attribute the sudden outbreak of cooperation among so many different stakeholders?

David Israelite: We have a window of momentum and consensus that is ripe for action. Congressional leaders like Judiciary Committee Chairman Bob Goodlatte, who retires this year, has made copyright reform a priority, and with songwriter champions like Rep. Doug Collins (R-GA) and Rep. Hakeem Jeffries (D-NY) offering consensus bills like the MMA – and the Senate hopefully following suit – there is a real opportunity to move legislation that will significantly help the future of songwriting. Additionally, the MMA is not a wish list for music publishers and songwriters – it is a bill that took months to negotiate because it helps both the tech and music industries. No one got everything they wanted – but both sides are better off with the MMA. DiMA, which represents the biggest tech companies in the world is supportive, as are the biggest songwriter groups in the U.S.

Largely because of the momentum around the MMA – the music industry has coalesced around other music bills that will help legacy artists and producers. As I have always said – we are stronger together – and we have a great opportunity to not just help our segment of the pie – but to advance the whole creative class. After years of trying to develop and unite around reasonable reforms, it is truly exciting that today we stand together and that Congress is invested in these changes as well.

Where do you think the debate over the BMI/ASCAP consent decrees goes now in the wake of the 2nd Circuit decision?

BMI’s win sends a strong message that the DOJ cannot simply reinterpret decades of industry practice and upend the lives of thousands of songwriters. The new leadership in DOJ’s antitrust division hopefully offers a new path forward, and I believe they are looking at the consent decrees with fresh eyes. My hope is that they will ultimately abolish them altogether and give songwriters the free market that other intellectual property owners enjoy.

3) What is NMPA’s position on the various PRO database initiatives (ASCAP/BMI; ASCAP/SACEM/PRS)?

The PROs currently offer searchable repertoires. Their efforts to create a single database will bring clarity to the industry – however these initiative will take time and money. I look forward to seeing their progress in the coming months.

Click here for information on how to register for Digital Entertainment World.

 

RightsTech Herding CryptoKitties at Digital Entertainment World

When Satoshi Nakamoto introduced Bitcoin into the world, whoever he, she, or they were set the total number of coins that can ever be released (“mined” in Bitcoin parlance) at 21 million. While individual bitcoins can be sub-divided into an infinite number of smaller units (fractions of bitcoins), the total whole number of units is finite.

CryptoKitties fat cat Mack Flavelle

That inherent scarcity is one of the reasons for the dizzying run-up in the price of bitcoins: At any given time there is a fixed number of bitcoins in the world.

The key to establishing that scarcity is the blockchain, which leverages cryptography to ensure that individual bitcoins (and their subdivisions) are unique, identifiable, unalterable, and un-reproducible. Unlike the internet, where sending a digital file from one computer to another inescapably involves creating a new copy, bitcoins themselves are not really “sent” or transferred over a network so there is no need to create a copy. Instead, the shared ledger that records ownership of bitcoins is updated to reflect the new network address (i.e. owner) of a cryptographically unique asset on the network.

Those properties, of uniqueness and scarcity, are part of what has attracted many artists to blockchain technology. What is unique and scarce can have and hold value, and what has value can be bought and sold, traded and collected, or held as an asset in the expectation of appreciation.

Getting people not steeped in cryptography and accustomed to the infinite reproducibility of digital files on the internet to become familiar and comfortable with the concepts of digital scarcity and uniqueness, however, is a challenge. Without that buy-in from consumers, the blockchain hopes of many in the media and creative industries could be broken.

It was that challenge that Mack Flavelle and his team of developers at AxiomZen set out to tackle. Their solution? Cats.

The team came up with a collection of digital illustrations depicting goggle-eyed, cartoon cats they called CryptoKitties and created an online game allowing people to buy, sell and collect CryptoKitties using Ether. The game also leverages smart contracts to make the kitties “breedable,” based on their unique “DNA,” creating new, unique CryptoKitties.

Why cats? While there are other blockchain-based digital collectibles on the market, most are targeted at limited audiences, such as RarePepes, based on the adopted alt-right mascot Pepe the Frog. Flavelle’s goal was to appeal to a broader market and introduce ordinary consumers to digital collectibels. “Cats are part of the internet,” Flavelle tells RightsTech.  “People are already familiar with the idea of trading cat videos.”

Trading in CryptoKitties has been robust. At one point, it became the dominant application on the Ethereum network, to the annoyance of others trying to use the network.

According to a third-party site that tracks sales of CryptoKitties, some virtual kittens have sold for the equivalent of more than $100,000, based on the then-current value of Ether.

Flavelle, who’s title is Fat Cat, will sit down for one-on-one fireside chat with me on February 6th, as part of the RightsTech track at the Digital Entertainment World conference in Los Angeles.

We’ll discuss the origins of CryptoKitties, what their creators have learned about the market for digital collectibles, what their popularity portends for consumer adoption of blockchain-based applications, and whether CryptoKitties are a fad or will prove to have nine lives.

Click here for information on registering for Digital Entertainment World.

 

Join RightsTech for a Public Policy Forum on Developing the Digital Marketplace for Copyrighted Works

The U.S. Commerce Department’s Internet Policy Task Force will host its second public meeting on Developing the Digital Marketplace for Copyright Works on January 25th at the U.S. Patent & Trademark Office in Alexandria, Va., just outside of Washington, DC.

The RightsTech Project has been advising the Department on the program and speakers for the meeting and will be participating in the event. RightsTech members are invited to contact Paul Sweeting ([email protected]) to learn more about the event and potential speaking opportunities.

This month’s event is intended to build on the work of the December 2016 public meeting and facilitate constructive, cross-industry dialogue among stakeholders about ways to promote a more robust and collaborative online marketplace for copyrighted works.

The official announcement of the meeting can be found here, and the Federal Register notice about it, which provides additional background and details, can be found here.

As with the previous event, this year’s meeting will focus on issues such as media metadata standards, interoperability, digital registries, rights management and licensing automation, and the role of emerging technologies such as blockchain, cryptocurrencies, and artificial intelligence aimed at improving licensed access to copyrighted works.

One of the goals of the project is to examine and highlight ways in which government and government agencies can help foster and promote a vibrant digital ecosystem for copyrighted works. This year’s meeting will include discussion of various international data and licensing initiatives and the role that government’s played in starting and supporting them.

The meeting is open to the public and registration is free, on a first-come, first-served basis. Information on registering for the meeting can be found here.

The meeting will also be available via live webcast. The PTO will host live viewing events at its regional offices in Denver, Detroit, and San Jose.

Rights Owners Rack Up Victories in EU, Australia

The copyright industries haven’t fared particularly well in U.S. trade negotiations recently, missing out on a chance to extend various copyright-protection measures when the Trump administration pulled the U.S. out of the Trans-Pacific Partner, and facing push-back on efforts to incorporate those provisions into a revised NAFTA agreement with Canada and Mexico. But they’re having better luck in Europe and Australia.

Last week, the Australian government unveiled legislation to extend the current digital safe harbors there to libraries, educational institutions, organizations for the disabled, archives, and other cultural sectors. But in a reversal from a previous government position, the legislation would exclude major commercial platforms like Facebook and Google from such protection.

Under current Australian law, the safe harbors protecting networks from liability for copyright-infringing materials uploaded by their users is limited to ISPs. Earlier this year, the government floated a proposal to expand those protections to cover a wider range or networks, including commercial services like YouTube that rely heavily on user-generated content. That proposal was shelved in March, however, and the government began a series of consultations with the copyright industries leading up to last week’s announcement.

The change in course represents a major victory for copyright owners, particularly the music industry, which has lobbied heavily for steps to help close the “value gap” it claims the safe harbors have created on social media platforms. Keeping YouTube and Facebook out of those harbors will make it easier for rights owners to negotiate favorable licensing deals with the platforms.

In Europe, meanwhile, the European Parliament voted this week to reject most provisions of the European Commission’s so-called Sat-Cab proposal that would have allowed broadcasters within the European Union to include content they had licensed for broadcast in their own territory in their pan-European digital video-on-demand and over-the-top services.

The proposal by the European Commission was intended to advance the EU’s Digital Single Market initiative but was strongly opposed by the film and TV industries that have long relied on exclusive territory-by-territory licensing to maximize revenue and secure financing for production.

The vote by the European Parliament is not the final step in the EU’s complicated procedures. The proposal now goes to the Council of Ministers made up of senior officials from the member countries, where European broadcasters have vowed to continue pushing for expanded distribution. But for now, the vote in the Parliament is a major victory for the film and TV producers, who lobbied heavily against the commission’s proposal.

That win comes on the heels of a similar victory for rights owners last month, when both the European Parliament and Council agreed to exclude most copyrighted works for at least two years from another provision of the Digital Single Market rules that strictly limits the use of “geo-blocking” measures on digital goods. The elimination of geo-blocking was strongly opposed by book publishers, who feared it would allow online booksellers such as Amazon to sell ebooks throughout the EU with a single license, undercutting the industry’s practice of licensing digital rights territory-by-territory or language-by-language.

As with the Cab-Sat proposal, the agreement on geo-blocking is not the last word on the matter. But for now, at least, the regulatory tide in the EU that had been running strongly against the copyright industries’ long-standing licensing practices appears to be turning.

 

The Purr-fect Blockchain Application? Collectible Digital Assets

Many a fortune has been built on the internet, but we all know the internet’s real purpose is to share funny cat videos. So it’s perhaps no surprise that the latest iteration of a digital network — blockchain — is also being overrun with kitties.

Apart from trading Bitcoin, just about the hottest application running on a blockchain at the moment is CryptoKitties, discrete bits of digital art featuring cartoon felines that can be bought, sold, traded and even interbred with other CryptoKitties to create new, “genetically” unique pussycats. By one estimate, traffic in CryptoKitties is currently taking up 13 percent of the Ethereum networks capacity., making the application the single biggest user of that blockchain.

Apart from the internet’s natural affinity for cats the appeal of CryptoKitties lies in their collectibility. Each CryptoKitty cartoon is generated from a unique digital “genome” and is visually distinct. The application then generates a cryptographic hash of the unique image that is then registered to the Ethereum blockchain. The images therefore cannot be reproduced or forged.

Whether CryptoKitties turn out to be a passing fad, or not, they’re helping popularize the concept of blockchain-based collectible digital assets — a notion pioneered by serious-art blockchain registries like Monegraph and Ascribe. Similar efforts include Rare Pepe cards featuring the alt-right’s adopted mascot, Pepe the Frog, and Cryptopunks.

Now, digital collectibles are moving beyond the world of visual arts into music and other media sectors. Earlier this year, artist-management services provider Boogie Shack Music Group teamed with music blockchain developer Tao Network to create a new type of licensed artist merchandise in the form of blockchain-based digital tokens.

Tokens will be offered in limited editions via “initial artist offerings,” with 50 percent of the proceeds going to the artist. The tokens can be exchanged for fiat currency or Bitcoin, but since each token is cryptographically unique they can also be collected, traded, or used as currency within an artist-centric “engagement” economy, according to Tao Network founder and CEO Bryce Weiner.

“You think about a band like The Grateful Dead and there’s a whole ecosystem of collectibles among their fans,” Weiner said. “That’s an ecosystem that could be monetized with digital tokens. As the tokens increase in value it becomes like a new royalty stream for the artist. It’s an example of another right that could be monetized with blockchain.”

Tao and Boogie Shack plan to launch a token exchange to be called AltMarket in early 2018. Artists initially on board for the launch include the estate of the Wu Tang Clan’s  Ol’ Dirty Bastard, and Digital Underground, with more expected to be announced soon.

Weiner will be speaking a panel in the RightsTech track at the Digital Entertainment World conference in Los Angeles on February 5-6. For information on how to register for the conference click here.

Trade Deficits: U.S. Copyright Industries Could Be Losers in Trump Trade Agenda (Updated)

Whatever you may think of President Donald Trump’s overall international trade agenda, there hasn’t been a lot winning in it so far for the U.S.-based copyright industries.

The movie, music, games and publishing industries, among others, have spent decades since the passage of the WIPO Copyright Treaty working closely with both Republican and Democratic administrations, to use the leverage of U.S. trade negotiations to advance the cause of strengthening copyright protections around the world, by inserting protections into multilateral trade agreements. But the fruits of that labor are in danger of going unharvested as Trump pulls the U.S. back from global trade deals.

In one of his first acts as president, Trump pulled the U.S. out of the Trans-Pacific Parternship (TPP), the 12-nation pact  originally intended to enshrine U.S. economic influence in Asia and throughout the Pacific Basin. To the dismay of many technology companies and consumer rights groups, the treaty’s intellectual property chapter, drafted largely by U.S. negotiators working in close consultation with U.S. copyright interests (and the pharmaceutical industry), contained a number of provisions requiring other countries to adopt strong  U.S.-backed copyright protections, including anti-circumvention rules for technical protection measures, enhanced enforcement procedures and remedies, including for secondary liability, and extended terms for copyright.

Although some TPP countries have already adopted similar provisions as a result of bilateral trade agreements with the U.S., several have not. It’s hard to read the U.S. withdrawal as anything but a blow to efforts to extend enhanced protection and enforcement standards globally.

Worse for the U.S. interests, word emerged last week that the remaining 11 countries in the bloc are planning to move ahead with a revised version of TPP without the U.S. Among the key revisions to the agreement, reportedly pushed primarily by Canada, is the jettisoning of much of the intellectual property chapter, including the enhanced copyright protections.

The Trump administration says it wants to negotiate individual bilateral agreements with the other countries, but if the TPP 11 sign onto a multilateral deal that expressly rejects the U.S.-backed copyright provisions those countries likely will be less anxious to agree to them in bilateral negotiations.

Many trade experts, in fact, believe that pulling out of TPP has reduced U.S. leverage overall in trade negotiations.

History shows that “having another deal already in place or almost in place certainly strengthens your hand” in trade negotiations,  the director of the Mexico Institute at the Wilson Center, Duncan Wood, told Foreign Policy magazine last week.

One area where that reduced leverage may already be telling is the negotiations demanded by Trump to revise the North American Free Trade Agreement (NAFTA) with Canada and Mexico, both TPP countries.

As the fifth of a scheduled seven rounds of talks on NAFTA got underway in Mexico last week, Canada and Mexico reportedly are pushing back firmly against efforts by the U.S. to include U.S.-backed language from TPP into the North American deal.

NAFTA, which was ratified in 1993, was negotiated before the widespread commercial adoption of the internet, and is largely silent on issues related to cross-border data flows and copyright liability on digital platforms.

Although the talks are being held behind closed doors, one area where the U.S. is believed to be trying to insert language adopted from TPP is in the intellectual property chapter.

Last week, a group of trade associations representing major technology companies, including the Internet Association, the Consumer Technology Association, and the Information Technology Industry Council, wrote to U.S. Trade Representative Robert Lightizer to express their concern that the talks had moved away from what they called the “balanced” approach to copyright the administration had previously agreed to, in favor of rules that would benefit copyright owners over users.

“Our understanding, based on numerous conversations with people knowledgeable of each party’s undisclosed positions, is that there has been no agreement to include provisions promoting copyright user rights or the principle of balance in NAFTA,” they wrote. “Absence of such provisions would make the final agreement unacceptable.”

Whatever the case, the NAFTA negotiations are in danger of breaking down altogether over other U.S. demands, which the Trump administration has said could lead to the U.S. pulling out of the 23-year old treaty.

Should NAFTA go down, any hope U.S. copyright interests have for getting stronger protections included in trade deals with Canada and Mexico would probably go with it.

UPDATE (Nov. 20th): The office of the U.S. Trade Representative has now released a list of U.S. objectives for the latest round of NAFTA talks, including extensive intellectual property provisions. Here’s the relevant portions of the list:

Intellectual Property:

Promote adequate and effective protection of intellectual property rights, including through the following:

  • Obtain commitments to ratify or accede to international treaties reflecting best practices in intellectual property protection and enforcement.
  • Provide a framework for effective cooperation between Parties on matters related to the adequate and effective protection and enforcement of intellectual property rights.
  •  Promote transparency and efficiency in the procedures and systems that establish protection of intellectual property rights, including making more relevant information available online.
  • Seek provisions governing intellectual property rights that reflect a standard of protection similar to that found in U.S. law, including, but not limited to protections related to trademarks, patents, copyright and related rights (including, as appropriate, exceptions and limitations), undisclosed test or other data, and trade secrets.
  • Provide strong protection and enforcement for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade, including, but not limited to, technological protection measures.
  • Ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rights holders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works…
  • Prevent the undermining of market access for U.S. products through the improper use of a country’s system for protecting or recognizing geographical indications, including such systems that fail to ensure transparency and procedural fairness, or adequately protecting generic terms for common use.
  • Provide the means for adequate and effective enforcement of intellectual property rights, including by requiring accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms. Such mechanisms include, but are not limited to, strong protections against counterfeit and pirated goods.

 

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