Policy makers intending to promote creativity have always overemphasized the importance of "copyright protection" without addressing the wide range of other concerns that are necessary to consider when making comprehensive innovation policy. In an era where everyone, with the use of their computer or mobile device, can easily be a consumer, creator, and a critic of art, we can not afford to ignore this digital ecosystem of artistry and innovation. Yet copyright remains completely out of touch with the reality of most creators today, while the rules that do pass seem to stray even further from addressing their needs.
We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
The main problem is that our policymakers are primarily concerned with the interests of major corporate copyright-holders, and what these industry representatives claim is beneficial for creators are often at odds with the greater common interest. That's why we have extreme criminal provisions around the circumvention of DRM, that prevent us knowing and controlling the devices that we own, and why websites have come to censor all kinds of legitimate speech in the name of copyright enforcement. At the behest of the Motion Picture Association of America (MPAA) and other copyright industry groups, US lawmakers had the gall to introduce bills like SOPA and PIPA, even though it would have led to widespread Internet censorship. We defeated those bills when activists and users organized and rose up to protest by the tens of thousands.
It turns out though, that the MPAA didn't see the defeat of SOPA and PIPA as a reason to stop introducing Internet censorship measures that the public flat out opposes. Instead, they shifted their strategy to ensure the public no longer knew of their plans—in other words, to do it all in secret.
MPAA's Plans to Revive SOPA Through Backdoors
Documents that were brought to light by the December 2014 Sony hack revealed the MPAA's plans to create SOPA-like Internet censorship mechanisms through agencies outside of the federal legislature in order to purposefully skirt the public oversight that comes with Congressional rule making. The first explosive revelation was that the MPAA had been colluding with, and even financing, state attorneys generals to go after Google, in the hopes that with enough arm-twisting, they could pressure the tech company into enact more extensive content takedowns. State attorneys generals are subject to fewer restrictions and disclosure requirements than elected officials at the national level, so even if this sounds a lot like bribery, the law does not specifically outlaw such payouts.
But another set of documents revealed Hollywood's other crooked plan—to persuade the International Trade Commission (ITC) into forcing Internet service providers to block sites that allegedly distribute copyright-infringing content. The ITC is a federal, quasi-judicial agency that regulates the importation of goods coming into the United States. It recently held in a patent case (which is under appeal) that its authority extends to data transmitted online. The MPAA wants to take advantage of the ITC's expansive new interpretation of its mandate to fight contraband online, and extend that to blacklist content in the name of fighting piracy.
The MPAA's plans are quite shocking, but their secret war against the Internet actually isn't new. The entertainment industry's lobbying group has been involved in these subversive efforts for decades.
Trade Agreements and the Copyright Creep
International policymaking spaces tend to be much more opaque than lawmaking at the national level—which is why the MPAA, and other copyright industry groups, have been using these backdoors to pass copyright rules that would not otherwise pass under public scrutiny.
International agreements like the Trans-Pacific Partnership (TPP) and dozens of already-signed bilateral trade deals contain the entertainment industry's wish list of restrictive copyright policies. Despite repeated demands for inclusion, advocates, academics, and other public interest representatives are always excluded from the negotiations. The U.S. Trade Representative (USTR) will not publish any of the negotiating texts or proposals, so all we know about these agreements come from unauthorized leaks. Even our elected representatives have extremely limited opportunities to see the text. All the while the Trade Advisory Committees—mostly made up of advisors for big corporations—have ample opportunity to view and comment on the draft text.
Trade negotiations have historically been closed in order to discuss import tariffs and other market barriers to the free trade of goods without political interference from domestic industries. But these new agreements are much broader. TPP for instance, includes regulatory obligations that could impact how our lawmakers set domestic policy on copyright, data transfers, telecommunications, and more. At the same time that these trade deals will force other nations to enact more extreme copyright policies, they threaten to prevent the US from passing reforms that could potentially do more to protect users in the future.
One of the most pernicious things we saw in the latest leak of the TPP Intellectual Property chapter was the provision on trade secrets, which could be used to crack down on whistleblowers and journalists who expose corporate wrongdoing. Such provisions are exactly what could be used to criminalize the kind of reporting that revealed the MPAA's secret plans to revive SOPA described above.
Transparency: The Obvious, Necessary First Step Towards Good Policy Making
To stop the secrecy in trade deals, we are fighting to block the White House from putting TPP and other deals on the fast track to passage through Congress. If the Fast Track bill passes this year, lawmakers will be shirking their constitutional responsibility over trade policy, allowing the US Trade Representative to get away with passing copyright rules in secret. We cannot let that happen.
The content industry will do anything to pass these backward copyright policies, even if it means circumventing democratic processes and sneaking their rules in through back doors. We need transparency—the regular release of accurate, detailed information about what lawmakers on all levels are doing. We need to know if and when our political institutions are secretly working against the public interest. If private industry has their way, fair use and the public domain will forever remain an afterthought in our debates about copyright policy.
Transparency is the first step towards making good copyright law that works for everyone, and once we achieve that, then we can work towards getting users' concerns and rights secured by the law. The rest of us need and want to be part of the rule making process. And that means we need, and demand, openness and transparency at every stage of that process.