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Will the U.S. Senate Allow Big Media to Hold Blind People for Ransom?

DEEPLINKS BLOG
March 17, 2015

Will the U.S. Senate Allow Big Media to Hold Blind People for Ransom?

In Jewish religious law, there is an offence called lifnei iver (literally, “before the blind”), that prohibits placing stumbling blocks before blind people, deriving from a verse of scripture also accepted by Christians and Muslims. This offense seems so obvious that it hardly requires a scripture verse to call it out. But the authors of the Torah obviously didn't count on the Motion Picture Association of America (MPAA), who are doing exactly that.

The stumbling block in question is a reported attempt to link the ratification of a WIPO treaty for people who are blind (the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities) with the ratification of a completely unrelated and earlier treaty, the Beijing Treaty on Audiovisual Performances that benefits the motion picture industry.

The United States has already signed both treaties, but merely signing a treaty does not make it law; that also requires it to be sent to the U.S. Senate and approved with a two-third majority, after which the President can formally ratify it and thereby commit the United States to comply with it. Some treaties may also require Congress to pass legislation to implement the obligations that the treaty sets out.

The Marrakesh Treaty doesn't require any such legislation for its implementation—since it already accords with US law. The United States therefore can and should show leadership by ratifying this treaty immediately, and thereby bringing it closer to the 20 ratifying states that it requires before it comes into effect. This would bring the written word to millions of blind, visually impaired and print disabled people from around the world, who are currently starved of books. It's a no-brainer.

Not so the Beijing Treaty. This treaty would bestow new 50-year copyright-like rights upon audiovisual performers such as actors, musicians and dancers—who are generally already paid for their work when they perform. So what good is this extra layer of added monopoly rights? You won't be surprised to learn that it benefits the corporate rightsholders, who in most cases will require the performers to sign away their rights.

The Beijing Treaty acknowledges this reality through a provision that allows the full transfer of rights to the producer of an audiovisual work; a provision that was prompted by the U.S. delegation during the last round of negotiation of the treaty, in response to Hollywood demands [PDF]. Thus, these new monopoly rights will serve only to enlarge the bulging copyright portfolios of the motion picture industry, leaving performers no better off than before.

Incredibly, it gets worse. The treaty would also allow “performers” (which, remember, usually means Hollywood producers) to restrict the availability of their performances, years after they have already been made public. A current case that foreshadows this is the decision in Garcia v. Google, Inc, whereby a professional, paid film actor is suing to prevent the distribution of her performance. This essentially amounts to censorship of the film, of which her performance was only a small part. During argument in this case (which is subject to appeal), a Ninth Circuit judge expressly referred to the Beijing Treaty, suggesting that it supported the actor's case—or would do, if it were law.

The potential ramifications of this are vast and troublesome: performers (or, in practice, the companies to whom they transfer their rights) could create new roadblocks to the creation of parodies, mash-ups or new versions of their performances, independent of copyright. It would further complicate the process of clearing rights to audiovisual works, and cast a new legal cloud of uncertainty over the activities of creators and producers who build on audiovisual works in compliance with copyright law.

The Beijing Treaty would also require U.S. law to be changed to recognize a new set of “moral rights” of performers, which include the right to attribution for a performance, and the right to preserve its “integrity”. Moral rights are strongly recognized in civil law countries such as France, but the United States has always resisted recognizing them—and for good reason. Whilst it is fair that an artist receives attribution for their work, to allow them to control how the performance is used after its fixation goes too far. It impinges upon the separate First Amendment rights of the producer of an audiovisual work, limiting their creative freedom to meld the contributions of performers into a unified whole copyright work.

At a bare minimum, if the U.S. is to implement the Beijing Treaty, then it is imperative that the "fair use" right is fully extended to the new regime, to limit the impact of the new performers' rights on legitimate uses of their performances.

But we would much rather the treaty was simply abandoned as the thoroughly bad idea that it is. Would this put the United States in breach of its international obligations? Hardly; the US often signs treaties that it later decides not to ratify. Many of these are far more important than the Beijing Treaty—they include the International Covenant on Economic, Social, and Cultural Rights (CESCR), the Kyoto Protocol, the Comprehensive Test Ban Treaty, the Rome Statute of the International Criminal Court (ICC) the Convention on Discrimination against Women (CEDAW), and even the Convention on the Rights of the Child (for which the only other hold-outs are Somalia and South Sudan).

So the reason for linking the Beijing Treaty with the Marrakesh Treaty is pretty obvious. Normally the Senate might look askance at approving an untested, special-interest treaty that will require changes to US law, all for the benefit of wealthy Hollywood studios (or maybe not… but we can dream). However, when you link it to a treaty that would help millions of blind people around the world, then opposing the Beijing Treaty becomes much politically tougher, even for well-meaning Senators who might otherwise have reservations.

Linking these treaties together is a thoroughly immoral proposition. In other words, it's typical MPAA Capitol Hill politics. Placing stumbling blocks before the blind.

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