The Far Left Virtual Police State, by John W. Dozier January 03, 2010
We've been quite vocal at Traverse Internet Law about the nasty habit of the far left leaning and liberal blogosphere attacking through words (and otherwise) individuals who dare disagree with their "information yearns to be free" and "hands off the web" mantra. These interests claim that our free speech guaranteed by the First Amendment protects the right to attack with impunity anyone with whom they disagree.
And most troublesome is that these groups and special interests maintain a virtual police state online. They develop intelligence, share information, and relentlessly attack the dissenters to their far left perspective, sometimes in the dark of night using anonymous and pseudonymous postings, riding off the "Streisand Effect" to create a mob attack of similarly minded fanatics (I call it a "mobosphere attack" in the Google Bomb Book).
I have often said that the left wingers are all for the right to free speech, until they don't agree with it. Time and again you'll see discussions and postings about using the Streisand Effect to retaliate against someone for offering an opposing voice. It is a policy aimed at destroying dissension, particularly in Internet legal and policy areas. "First things we do, let's kill all the lawyers." Consider the context of the statement if you don't already know and it quickly becomes apparent that this effort to bully, undermine, attack and destroy lawyers is the rallying cry for the police state...a world in which dissidents are held out to public scorn and ridicule by a vicious mob (Streisand Effect) or relentlessly attacked by masked intruders (anonymous speakers). This is the world in which we live today. Honest, honorable, intelligent, well mannered, battle worn veterans of the world rarely participate in online dialogue because of the attacks their participation invites. And so you get a very one sided, jaded, biased perspective on Internet law and policy issues. The far left liberals not only control the message, but police the web for anyone not drinking their kool-aid.
The latest dust up comes from a debate about the Anti-Counterfeiting Trade Agreement that will establish standardized laws for dealing with Intellectual Property. On the one hand, the liberals complain about a number of proposed or anticipated elements like a "three strikes" law for those infringing copyright and anti-circumvention technology restrictions, all of which is far too involved to discuss in this post. It is all very complex, and the online debate is raging. What caught my attention was not the relative merits of the debate, but comments made by Dr. Mihaly Ficsor, a renowned global copyright expert and a citizen of Hungary. It is in response to Michael Geist's far left leaning attacks on the treaty and the publication of high profile and allegedly misleading claims about the treaty that Dr. Ficsor offers a perspective that we in the US cannot possibly have. Here are his words from Budapest, Hungary:
I have decided reluctantly to react to this, and then truly do not want to deal with this weird quarrel anymore. It is completely useless to present arguments against heated ideological discourse and sheer hatred campaigns trying to suppress any contrary views. I am immune against it, as someone who has survived a serious illness. In the decades through which we were constrained to live under a communist regime, this was so customary; everybody who did not agree with the collectivist ideology, there was no discussion about it; he simply became enemy and the agent of the “imperialist forces.” There were no blogs at that time; there were only newspapers and radio, but the style was the same as in these “digital activist” blogs; even the words and expressions are so familiar. Ask about this the many Hungarians who fled to Canada after our beautiful but failed uprising in 1956! We who have suffered a lot – I too as a child and adolescent as a member of a family which, together with many others, was a victim of serious persecution because my uncle bravely spoke out against the communist ideology – have become resistant. Nevertheless, at the same time, we are sensitive to those phenomena where some people try to settle disputes in the style of those “glorious” years, and we may be ready to say some words just in order that our social environment make use at least the wisdom of the saying: “Experience is a wonderful thing; it helps us to recognize our mistakes when we commit them again.”
And so, as we begin a New Year, let me propose five resolutions that we should all consider embracing. I'll call them the "Ficsor" principles:
1) Oppression: I resolve not to abuse our rights in free speech. I will be vigilant in guarding the rights of others to voice their opinions and disagree, but will never hide behind protected free speech in order to punish others for voicing their opinions.
2) Suppression: I resolve to reject the use of the mobosphere attack or Streisand Effect to influence, undermine or control online dialogue from dissenters.
3) Anonymity: I resolve to never publish anonymous and pseudonymous comments or posts that are derogatory towards someone.
4) Persecution: I resolve to voice my opinion vigorously and openly with utmost respect for the free speech rights of those with whom I disagree, and to discourage and condemn any attempts at coordinating the persecution of my online adversaries.
5) Intellectual Integrity: I resolve to only comment upon what I know after reasonably acquiring a fair, informed and balanced understanding of the issue.
______________________________________________________
Dr. Mihaly Ficsor wrote:http://www.barrysookman.com/2009/12/23/only-once-more-and-then-marry-christmas-and-happy-new-year-to-everybody-including-professor-geist-and-his-devoted-followers-the-1996-wipo-diplomatic-conference-the-wipo-treaties-and-the-balanc/
Only once more – and then Marry Christmas and Happy New Year to everybody, including Professor Geist and his devoted followers: the 1996 WIPO Diplomatic Conference, the WIPO Treaties and the balance of interests
December 23rd, 2009
by Dr. Mihály Ficsor
Christmas is two days away; I have to concentrate on my eight grandchildren. I am really not in the mood to deal with copyright, and I do not want to read books, articles and blogs about it this year anymore. However, a colleague of mine in Germany (he may not have been in full Christmas mood yet like me) sent me an e-mail asking me to correct somebody’s allegations which he has found obviously untrue (in fact he has used certain adjectives to describe his opinion about those allegations, which, however, I – sticking on the spirit of what is called, at least in my country, the holiday of love – definitely do not want to quote). So, I have visited the source indicated by him, and yes, I have found Professor Geist’s friendly comments about my post politely remarking that I might be wrong about the interpretation of the 1996 WIPO Treaties concerning the coverage of the anti-circumvention provisions. To prove this, he quotes Professor Pamela Samuelson who, on the basis of what happened – at least according to her – at the Diplomatic Conference, states that the Treaties do not obligate Contracting Parties to extend protection against circumvention devices.
I have decided reluctantly to react to this, and then truly do not want to deal with this weird quarrel anymore. It is completely useless to present arguments against heated ideological discourse and sheer hatred campaigns trying to suppress any contrary views. I am immune against it, as someone who has survived a serious illness. In the decades through which we were constrained to live under a communist regime, this was so customary; everybody who did not agree with the collectivist ideology, there was no discussion about it; he simply became enemy and the agent of the “imperialist forces.” There were no blogs at that time; there were only newspapers and radio, but the style was the same as in these “digital activist” blogs; even the words and expressions are so familiar. Ask about this the many Hungarians who fled to Canada after our beautiful but failed uprising in 1956! We who have suffered a lot – I too as a child and adolescent as a member of a family which, together with many others, was a victim of serious persecution because my uncle bravely spoke out against the communist ideology – have become resistant. Nevertheless, at the same time, we are sensitive to those phenomena where some people try to settle disputes in the style of those “glorious” years, and we may be ready to say some words just in order that our social environment make use at least the wisdom of the saying: “Experience is a wonderful thing; it helps us to recognize our mistakes when we commit them again.”
One of the reasons for which I have decided to react is that I do respect Professor Samuelson, even if I do not always agree with her on everything. Nevertheless, it seems to me that, as regards this issue, she has based her position on a piece of information received from others that has not been correct. Let me explain why.
I know her and I knew her already in 1996, and now that I have read her statements on what happened at the Diplomatic Conference concerning the issue of anti-circumvention devices, it seemed to me that I did not see her in Geneva, although I was sitting, on the rostrums of the main hall of the Conference Center and the smaller room where the informal negotiations took place, for three weeks facing the delegates and other participants. I have refreshed now my memory on the basis of my database. It reflects the following: There were cca. 800 participants at the Diplomatic Conference, among them somewhat more than 540 delegates; the rest were representatives of IGOs, NGOs, lobby groups, and we, the staff of WIPO Secretariat. Professor Samuelson was not present at the Diplomatic Conference.
I do not know from whom she has heard the story on the basis of which she formed her opinion, but I submit that her source was not reliable. There may be some legends, there may be some wishful-thinking-driven misunderstandings, there may be some misinterpretations, there may be some irrelevant afterthoughts. However, the real story was different was different that what Professor Samuelson heard.
I have a lot of material here in my computer; it does not take time to retrieve it. I was about to do so when now I have seen that Barry Sookman has just posted a response to Professor Geist also quoting the comments on this issue from Jörg Reinbothe’s and Silke von Lewinski’s and from Jane Ginsburg’s and Sam Ricketson’s excellent books and from the Guide to the WCT published by WIPO. These publications reflect what has truly happened in December 1996 and what kind of interpretation follows from it on the basis of the relevant provisions (Article 31 to 33) of the Vienna Convention on the Law of Treaties (which lists the sources on which interpretation of treaties may be based, but, of course, do not recognize hearsay as such a source).
The authors of the above-mentioned publications may also be qualified as lobbyist of the “big industries” since they say in essence the same as I do. And they may be qualified in particular, as lobbyists of the US industries, not only Jane Ginsburg, this wonderfully honest and independent academic, but also the Australian Sam Ricketson, the German Jörg Reinbothe and Silke von Lewinski, as well as the WIPO Secretariat. There is no chance for them anymore; they have lost there chance to be qualified as honest academics and international officials, respectively; they are not only wrong but hostile agents to be condemned in hatred blogs. Well deserved condemnation waits for them in Canada. Who knows: also street demonstrations, with widely bawled slogans, with inscriptions condemning them as dirty traitors (then if somebody would have the reminiscence of the way certain indoctrinated guards tried to settle social “debates,” it would be regarded as an exaggeration; maybe but there would be good reason for some people to feel like that).
Jörg Reinbothe and Silke von Lewinski do truly have direct reliable information of what has happened at the Diplomatic Conferences as the head and a member of the negotiating team of the European Community. They were and are in the possession of all their senses and those who know them – contrary to some blindly overheated activists – would hardly question their honesty.
However, as the above-mentioned provisions of the Vienna Convention tell us, the interpretation of the texts of the relevant provisions is not supposed to depend only or mainly on what the participants saw and heard during certain informal consultations, and even very much less on what somebody has heard indirectly as a report or hearsay about it.
Pamela Samuelson writes the following in respect of the text adopted at the Diplomatic Conference: “The inclusion of terms like ‘adequate’ and ‘effective’ protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.”
I do agree with this and the sources quoted by Barry Sookman also certainly do so. The only thing I would add, and the above-mentioned authors certainly also would, is that, of course, not only the U.S. firms are able to challenge national regulations that are deficient because they do not provide for adequate legal protection and effective legal remedies but any stakeholders of any Contracting Party of the two Treaties.
This is the main point. The issue depends on whether or not a Contracting Party may offer adequate legal protection and effective legal remedies if it only establishes a defense line in domestic or office environment where the actual acts of circumvention are performed. All the authoritative sources do agree that this is nearly or totally impossible for reasons of practicability and privacy protection. If we accepted that this is the only way, it would mean that the Diplomatic Conference has adopted a text which cannot be applied; it would not be effective.
The Vienna Convention and the international doctrine on the law of treaties, however, demand from the interpreters and implementers of treaties to choose that alternative interpretation which in such a case is also available. In this case, the building of defense line in the stage of so-called preparatory acts, with duly balanced provisions in respect of other legitimate interests, is definitely such an alternative. This is the basis of the obligation to apply it by the Contracting Parties.
This is what is described by Jane Ginsburg and Sam Ricketson in their analysis quoted by Barry Sookman: “An interpretation that disfavors effective protection against circumvention by limiting the prohibited conduct to the sole act of circumvention, rather than encompassing the provision of devices as well, would it be inconsistent with art. 11’s direction that member States ‘shall provide adequate legal protection and effective legal remedies against the circumvention.’”[1]
And this is also to which the WIPO Guide to the WCT refers in this way:
“CT-11.14. It is foreseeable that, in general, acts of circumvention of technological protection measures will be carried out in private homes or offices, where enforcement will be very difficult. In addition to the technical difficulties for trying to control such situations, there may also be objections based on privacy considerations. Therefore, if legislation tries to only cover the acts of circumvention themselves, it cannot provide adequate legal protection and effective legal remedies against such acts, which, thus, in spite of the treaty obligations, would continue uncontrolled.
“CT-11.15. Nevertheless, it is still possible to provide such protection and remedies. For this, it should be taken into account that, in view of the complexity of the technologies involved, in most cases, acts of circumvention may only be performed after the necessary circumvention device or service has been acquired. Their acquisition normally takes place outside the private sphere in the special market place of these kinds of devices and services. Thus, the possible way of providing protection and remedies as required by the Treaty is stopping unauthorized acts of circumvention by cutting the supply line of illicit circumvention devices and services through prohibiting the manufacture, importation and distribution of such devices and the offering of such services (the so-called ‘preparatory activities’).[2]
It is, however also worthwhile referring to refer to the preparatory work and negotiation history as reflected the only relevant source, the Records of the Diplomatic Conference, which under Article 32(1) of the Vienna Convention is also an important source to confirm the ordinary meaning of the text as the basic source by virtue of Article 31(1).
The preparation and adoption of the two Treaties took place on a completely Member-States-driven manner. The WIPO Secretariat only participated in the process where, and only to the extent that, the Member States invited it to do so. In the final sessions of the WIPO preparatory committees, when the delegations were supposed to submit “treaty-language” proposals on the basis of the invitations committees’ decisions, two kinds of proposals were presented on technological protection measures.[3]
First, the U.S.-submitted proposals[4] (supported by the Group of African Countries[5] – and by the European Community and its Member States[6]) required the prohibition of, and providing appropriate remedies against, “preparatory acts.” A comment by the U.S. delegation in the preparatory committee made it clear that what it proposed was “provisions to prohibit decoders and anti-copy prevention devices and services”[7] (in this context, “decoders” mentioned as devices other than anti-“copy control” devices clearly referred to devices for the circumvention of “access control” measures).
The second category of treaty-language proposals submitted in the WIPO committees (by Argentina[8] – supported by the Group of Latin American and Caribbean Countries[9] – and Brazil[10]) did not refer to technological protection measures in general, but rather directly to the two categories of technological measures. They proposed the prohibition of both disabling “access control” measures in the form of coded signals and disabling “copy control” measures, and in addition to the prohibition of the acts of circumvention of such measures, the delegations of those countries also proposed the prohibition of making, importing and distributing circumvention devices.
No other treaty-language proposals were submitted in the preparatory committees, and no opposition was expressed at the committees’ meetings to the proposals covering both kinds of technological measures and the “preparatory acts.” The delegation of the Republic of Korea made certain comments without presenting any treaty-language proposal, but it did not concern this issue (the delegation stressed that the protection of technological measures should not be applied in respect of non-copyrighted materials and works in the public domain), while the delegations of China and Japan simply reserved their position.[11]
The relevant provisions of the drafts of what became the two Treaties submitted to the Diplomatic Conference (as “Basic Proposals”) foresaw the prohibition of “preparatory acts” and used the general term “protection-defeating devices.”[12] The notes added to it in the Basic Proposal confirmed that the draft provisions’ was consistent with the proposals by the U.S., the E.C., Argentina and Brazil mentioned above (also referring to the above-mentioned comments made by China, Japan and the Republic of Korea).[13]
The reports of Main Committee I and the Plenary of the Diplomatic Conference did not contain any statement or reference to any intention of any delegation to narrow the scope of the protection of technological measures from what was proposed previously.
It is to be noted that, at the Diplomatic Conference, certain delegations spoke about the issue of access to works for beneficiaries of certain exceptions.[14] The comments stressed that the protection of technological measures should not endanger access to works from benefitting from certain exceptions (e.g., covering acts “permitted by law”) that are important from the viewpoint of the public interest. This is an important but different issue which I discussed in my previous post in the light of how it was solved – according to our experience in a reasonable and satisfactory way – in the European Union (in the few cases where TPMs – “DRM” systems – are still applied at all due to the nature and value of the works involved.)
As regards the issue of the protection against “preparatory acts” – which as indicated above was proposed during the last stage of the committees meetings, not only by the US Delegation, supported by the Group of African countries, but also by Argentina and Brazil, supported by the Group of the countries of Latina America and the Caribbean – the records of the Diplomatic Conference reflect that there was no disagreement among the delegations on whether the protection of technological measures should include prohibition of such preparatory acts. The limited debate about the prohibition of circumvention devices (or as the draft treaties referred to them, “protection-defeating devices”) only concerned the question of whether the provisions should refer to the “primary purpose” or to the “sole purpose” of the devices.[15] No idea was presented to suggest that an appropriate protection of technological measures could be achieved without establishing the first line of defence by prohibiting the “preparatory acts” at this earlier stage and no proposal was made that only “direct” acts of circumvention should be prohibited.
The provisions on technological measures that were finally adopted were presented as compromise language among all the proposed texts discussed earlier. Their more general language was worked out in the course of informal consultations. They were acceptable to all delegations and were adopted unanimously.[16] Accordingly, in addition to the what follows from the obligation to provide for adequate legal protection; namely that it cannot be fulfilled without this, there is no reasonable basis to presume that the adopted provisions did not correspond to the previous understanding among the delegations that adequate protection of technological measures required the proscription of “preparatory acts” (irrespective of certain differences among the delegations concerning the concrete purpose of the devices to be covered).
-.-.-.-.-
No, the two Treaties – everybody knows who participated in the process – was not “my” treaties or the WIPO Secretariat’s treaties; they were proposed, prepared, negotiated and adopted exclusively by the international community represented by the delegations of cca. 120 countries, including Canada, of course, which also has signed the treaties. Nevertheless, Canada, of course, may decide not to join the 88 and 86, respectively and soon more, countries as a Contracting Party.
No, the correct interpretation of the relevant provisions of the treaties presented by Jörg Reinbothe, Silke von Lewinski, Jane Ginbsburg, Sam Ricketson and others including myself, also in the WIPO Guide, has not been rejected by the Contracting Parties. I have just counted recently that, in fact, there are more countries where there are prohibitions against the so-called “preparatory acts” discussed above than the present number of Contracting Parties of the Treaties. Not only all the traditional trading partners as the US, Mexico or the EU and its Member States, but also such other important countries as China and Russia. This can hardly be characterized as a failure.
No, the two treaties do not exclude the adoption of a “made-in-Canada” approach to implement the treaties. The basic obligations should be respected, such as granting adequate – truly adequate – protection against unauthorized circumvention activities, but there are also broad flexibilities; for example, regarding the fundamental issue of the interface between TPM protection and the opportunity of benefitting from exceptions important from the viewpoint of public interests. It has been regulated in different “made-in” styles; in the EU, in a “made-in-EU” style – different from the “made-in-US,” “made-in-Japan” and other styles – and, according to our practical experience, in quite a satisfactory way (which does not mean that the other styles could not be satisfactory).
No, I am not a lobbyist as the other quoted above are not either. I am glad to accept invitations as a consultant, but not in a way that I am supposed to say what others want me to. I say exclusively what follows from my professional persuasion; if somebody likes it is OK, if not, he or she should not accept it. I am glad also to accept when the IIPA invites me – of which I am not an employee or in any other way depending regarding my opinions – to act as a consultant on an issue where I am considered to be an expert. I accept equally, when other organizations or governments invite me to do the same. In fact, so far I have received the greatest recognitions and distinctions not from the cultural industries for what I have done, but from the organizations of the French authors and the Spanish and Hungarian performing artists.
Yes, I am a devoted advocate of a duly balanced protection of copyright. Those who know what I have done in the last cca. 35 years in this field also know this of course. I am in favor of a reasonable special treatment for LDCs and I am glad to act as a consultant also for those who are supposed to be beneficiaries of justified exceptions to copyright. Let me suggest to those who do want to believe the opposite why was it last week that the key representatives of the World Blind Union, Electronic Frontier Foundation, and Knowledge Ecology International (if you may not know them, neither of them are lobbyist of the “big industries”) jointly thanked me for what they characterized as an important contribution I had done for the cause of the visually impaired. (Otherwise, I have also found a report on Professor Geist’s website about the last week meeting criticizing the Canadian government. It seems to me sufficient to mention that the discussion did not take place on the way the report characterized it. The Canadian delegation was among those which expressed full support for the cause of the visually impaired and for working out the best possible international arrangement for them; just as many other delegations, it wanted to thoroughly discuss what that arrangement might be now and in the future.)
Yes, the EU, which, is also negotiating a bilateral agreement with Canada, with the deposit of the still missing instruments of ratification truly has sent what I referred to as a “kind invitation” to Canada to also ratify the treaties. Our values are the same, our legal systems are not alien to each other, and our basic values are also the same (I became fully aware of that when I acted as one of the two co-chairmen – and far from the less active one – of the Working Group that prepared the first draft of the later successfully adopted UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.) Our experience also shows that certain doomsday prophesies about the two Treaties, and in particular about the TPM protection, have not turned out to be justified. Due to our many similarities, it would be difficult to believe that in Canada, even if not necessarily in the same way, the same result could not be achieved. Thus, that invitation is address by friends to other friends; truly as a kind invitation.
Yes, I do not want to call names. Just when others do so against others in a style which reminds me of some old unpleasant experiences, my sense of truth does not allow me not to oppose it. I am not an enemy of anybody. I am against certain views and styles and in favor of maintaining certain values. I keep continuing to do so, which is not an obstacle to me to wish to Professor Michael Geist and his seemingly devoted followers Marry Christmas and a Happy – and preferably more peaceful – New Year. If I cannot make him to adopt my views (it would be a difficult task I can see), at least I would like to persuade him that neither me not the others who share my position are not enemies; nether of Canada nor of him and his followers.
Dr. Mihály Ficsor
--------------------------------------------------------------------------------
Notes:
[1] Sam Ricketson – Jane C, Ginsburg: “International Copyright and Neighboring Rights,” Oxford University Press, 2006, p. 977.
[2] WIPO publication No. 891 (E), 2003, pp 217-218.
[3] For a detailed description of the preparatory work in the WIPO committees and at the Diplomatic Conference (with the text of the proposals and references to comments) see my book; Mihály Ficsor: “The Law of Copyright and the Internet,” Oxford University Press, 2002 (hereinafter: Ficsor), pp. 386 to 406. (I do excuse those who consider me as an enemy that I quote myself, but this is the most detailed description of what has happened which, however, I do not want to reproduce here. I also recommend to those who imply that I lie since I am an alleged “lobbyist,” to read those pages; they will see that everything is based on WIPO documents prepared or adopted by the Member States.)
[4] See WIPO document BCP/CE/VI/12, p. 38; in Ficsor, p. 389.
[5] See WIPO document BCP/CE/VI/14, para. 28; in Ficsor p. 391.
[6] See WIPO document BCP/CE/VII/1-INR/CE/VI/1 pp. 3 and 5; in Ficsor p. 394.
[7] See WIPO document BCP/CE/IV/2, Annex pp. 4-5; in Ficsor p. 386.
[8] See WIPO document BCP/CE/V/12, p 36; in Ficsor p. 390. The text of the Argentine proposal read as follows:
…The Contracting Parties shall enforce the same sanctions as are provided for in the event of copyright infringement of any person who:
(a) alters, removes, modifies, or in any way disables the technical devices incorporated in the copies of protected works or productions for the prevention or restriction of copying;
(b) alters, removes, modifies, or in any way disables coded signals designed to restrict the communication of protected works, productions or broadcasts to the public or to prevent the copying thereof;
(c) imports or markets apparatus, programs or technical devices that permit or facilitate the disablement of technical devices or signals incorporated to prevent or restrict the copying or communications of works and productions.” [Emphasis added.]
[9] See WIPO document BCP/CE/VI/15, p. 3; in Ficsor p. 391.
[10] See WIPO document BCP/CE/V/12, p 36; in Ficsor pp. 390-391. The text of the Brazilian proposal read as follows:
…1. Contracting Parties shall decide that the following acts must be considered illicit, as they are infringement to copyrights:
(a) to modify, eliminate or mutilate, by any means, the technical devices introduced in copies of protected works in order to avoid or to restrain their reproduction, or the encrypted signals intended to limit the communication to the public of protected work or to avoid its copying;
(b) to make, import or commercialize any apparatus, programs or technical devices aimed primarily at allowing or facilitating the mutilation of the technical devices or signals introduced in order to avoid or limit copying or communication of protected works.”[Emphasis added.]
[11] See WIPO document BCP/CE/VI/12. p. 40; in Ficsor p. 393.
[12] Records of the Diplomatic Conference, WIPO publication No. 348 (E) (hereinafter: Records) pp. 217 and 321; in Ficsor p. 396.
[13] Records, pp. 216 and 320. When the Chairman of Main Committee opened the debate on these draft provisions included in the Basic Proposals, he also clearly stated: …The provisions on obligations concerning technological measures were based on the proposals presented by certain Governments in the preparatory process.” (Records, p. 709).
[14] See Records, p. 710 (Republic of Korea), p. 523 (Canada).
[15] See Records, pp. 710-712 (Ghana, South Africa, Nigeria, Senegal, Singapore).
[16] See Records, pp. 757-758 and 626-627.
http://www.michaelgeist.ca/content/view/4637/125/
Ficsor Attacks: WIPO Treaty Architect Still Fighting Lost Policy Battle
Tuesday December 22, 2009
CRIA lobbyist Barry Sookman's blog is home this week to a guest post from Mihály Ficsor, a well-known international copyright author who is the former Assistant Director General of WIPO. Ficsor is closely associated with the creation of the WIPO Internet treaties and today works with the International Intellectual Property Alliance, the leading U.S. copyright lobby representing the RIAA, MPAA, BSA, and other groups. Unlike Bruce Lehman, another leading creator of the WIPO Internet treaties who has acknowledged that they (along with the resulting DMCA) have been a policy failure, Ficsor remains determined to fight for his baby.
The post is filled with remarkable vitriol toward those arguing for balanced copyright, with Ficsor warning of "free access revolutionaries" and against Canada becoming "an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant 'cultural revolution.'" Most reasonable readers will likely dismiss the post on that basis alone. For those willing to look beyond it, however, the key question is whether the WIPO Internet treaties requires a prohibition on the distribution and manufacture of circumvention devices. Ficsor argues that they do, stating:
The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities.
While it is true that the initial U.S. proposals (which led to the WIPO Committee proposed language) targeted circumvention devices, the negotiation history actually shows that there was not consensus support for this language.
The original draft submitted to the Diplomatic Conference in 1996 stated:
(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.
(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).
This language - which Ficsor would have us believe is what was adopted in spirit if not in fact - did not achieve consensus support with many proposed changes. A compromise position was ultimately reached using the "to provide adequate legal protection and effective legal remedies" standard. Not only does this language not explicitly require a ban on the distribution or manufacture of circumvention devices, it is quite obvious that the intent of the negotiating parties was to provide flexiblity to avoid such an outcome.
U.S. law professor Pam Samuelson chronicles precisely what happened in her 1997 law review article, The U.S. Digital Agenda at the World Intellectual Property Organization:
At the diplomatic conference, there was little support for the Committee's proposed language on circumvention technologies. Some countries opposed inclusion of any anti-circumvention provision in the treaty. Others proposed a "sole purpose" or "sole intended purpose" standard for regulating circumvention technologies. Some wanted an explicit statement that carved out circumvention for fair use and public domain materials. The E.U. offered a proposal that would have required contracting parties to adopt adequate and effective legal measures to regulate devices and services intended for technology-defeating purposes.
Facing the prospect of little support for its proposal or the Committee's draft anti-circumvention provision, the U.S. delegation was in the uncomfortable position of trying to find a national delegation to introduce a compromise provision brokered by U.S. industry groups that would simply have required contracting parties to have adequate and effective legal protection against circumvention technologies and services. In the end, such a delegation was found, and the final treaty embodied this sort of provision as Article 11.
This was, of course, a far cry from the provision that the U.S. had initially promoted. Still, it was an accomplishment to get any provision in the final treaty on this issue. The inclusion of terms like "adequate" and "effective" protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.
The reality is that Ficsor lost the policy fight in 1996 to create an explicit ban on the distribution of circumvention devices. He has been fighting that fight ever since, arguing as he does in the blog post (and in his book) that a ban is necessary. In joining up with the RIAA, MPAA, and other copyright lobby groups, he has had some successess along the way. But no amount of name calling or bullying will alter the fact that Canada can be compliant with the WIPO Internet treaties without implementing the version of the treaty that Ficsor wanted but failed to get.
Wayne Borean wrote:http://crankyoldnutcase.blogspot.com/2009/12/doctor-ficsor-is-wrong.html#!/2009/12/doctor-ficsor-is-wrong.html
Doctor Ficsor is wrong again Oh dear - here we go again. Doctor Ficsor, you are quickly gaining a reputation for inaccuracy. I was originally going to refute you point by point, but that would have resulted in another long document, and as you stated, this is Christmas. I have children and a wife (never mind two adorable dogs) who would like to see me away from the computer for a while, so I will make this short.
Point Number One:
You have stated that the United States is compliant with the treaty in regards to ‘Technological Protection Measures (TPM)’. According to the wording that you, yourself have provided they are not. Their implementation, known as the ‘Digital Millennium Copyright Act of 1998’ is defective in many areas. I’ll pick one to demonstrate, specifically the Kindle, an E-Reader marketed by Amazon. The Kindle uses ‘Digital Rights Management (DRM)’ (a more accurate name would be Digital Restrictions Management), another name for a TPM, to prevent copying of the E-Books on the Kindle. According to your reading of the treaty, any legislation is supposed to outlaw ‘circumvention devices’ for any TPM.
However flatbed scanners are sold in many stores. With a flatbed scanner, I have the capability of scanning the book page by page. I can then, using commercially available Optical Character Recognition Software (OCR) transform the scanned pages into a DRM electronic file.
If your statement about the United States being compliant with the treaty was accurate, flatbed scanners and OCR software would not be legally available for sale in the United States, as they allow me to circumvent the TPM on the Kindle.
You may regard this example as ridiculous, however there is nothing in the treaty which allows a country to
Point Number Two:
Article 11, Obligations Concerning Technological Measures, states that:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
This section was written to protect the rights of an author, like you or I. Under this measure, only authors are protected. Publishers are not. Let’s use Canadian singer/songwriter Avril Lavigne as an example. If she writes a song, and records it, and she chose to use a TPM to protect the recording, under the wording of Article 11, if Canada ratified the treaty, you say we would have to enact legislation to prevent the sale and/or manufacture of circumvention devices of any sort. However if her label, RCA used TPM, we would not be required to enact legislation to protect the TPM from circumvention devices.
Or if Avril recorded a song that I wrote (an unlikely eventuality), since she is not the author, again, Canada would not be required to enact legislation to protect the TPM from circumvention devices.
So your blanket statement about the requirements for legislation to control circumvention devices is inaccurate. The requirement exists only if the author chooses to use it. No one else has that ability.
Point Number Three:
I have asked twice now, for you or Barry to supply me one or more peer reviewed cost/benefit studies. So far you have not done so. In fact your only argument is the Lemming argument. If a Lemming runs off a cliff, the other Lemmings have to follow. This makes any Lemming that follows the pact eligible for a Darwin Award, and would definitely improve the Gene Pool.
The obvious inference is that you either can’t or don’t want to supply the information. If you can’t supply the information, because such a study was not done, advocating that Canada sign the treaty would be a breach of fiduciary duty on your par
If you don’t want to supply the information, because the study showed that there either was no benefit, or that implementation would have a negative effect on the citizens of Canada, this would also be a breach of fiduciary duty on your part.
Since, as you pointed out, this is Christmas, I will happily wait until the end of the second week of January, for you to supply this information.
Point Number Four
As I pointed out in my earlier responses, to you and Barry, the Government of Canada is responsible to the citizens of Canada, not to the World Intellectual Property Organization (WIPO). The Government of Canada has a fiduciary duty to the citizens of Canada, not to the WIPO, or to any other political or judicial body outside the boundaries of this great country.
Canada is a democratic country. For you to suggest that our politicians have a greater responsibility to the WIPO, than to the citizens of this country, which you have done, is insufferable. Your original invitation read more like an order.
Since it is now December 24th, I will wish you a Merry Christmas. Even a Maoist Revolutionary can do that.
Posted 24th December 2009 by Wayne Borean
