Towards Evidence-based Copyright and Patent Policymaking at the OECD
The Organization for Economic Cooperation and Development (OECD) is an organisation of 34 developed-country governments that work together to promote economic progress and trade through information sharing and research. This week it turned its attention to copyright, patents and other forms of so-called intellectual property, at a workshop on “Society's Gain from the Intellectual Property Exchange.” EFF attended as an invited expert.
The premise of this workshop, which forms part of a broader horizontal program of the OECD on New Sources of Growth: Knowledge-based Capital, is that copyright and other forms of intellectual property are part of a social bargain or exchange, whereby creators and inventors are allowed a limited monopoly over uses of their creations or inventions, in exchange for which they will supposedly be more creative or inventive than they otherwise would be, and that this will ultimately benefit society at large.
This premise is broadly accepted and even obvious, echoing as it does the copyright clause of the US constitution, which in turn draws from the first copyright Act, the Statute of Anne — however it was not so obvious to one of the other stakeholders present at the workshop, the International Federation of the Phonographic Industry (IFPI), which claimed that copyright does not represent an exchange at all, but is an inalienable natural right of authors. (This draws an oversimplified contrast between the continental European civil law conception of copyright and the common law conception from countries such as the UK and USA.)
Such philosophical arguments may seem a bit abstract, but they have a real bearing on the OECD's work, and on the national laws and policies that are based on that work. For example, one of the questions debated at the workshop about whether personal copying rights, such as the right to copy purchased music to your phone or your car music player, should involve remuneration to authors, as is currently the case in some of Europe. If authors have inalienable rights to control content, then such copying can be characterized as a “loss” to authors, more easily justifying rightsholder claims to compensation.
If, on the other hand — as EFF contends — culture is a shared public good to which creators and consumers both contribute and from which they both benefit, then copyright and patent protection should be a more equitable bargain that balances the interests of both creators and consumers. In that case, there is no automatic justification for compensating authors for personal uses where there is a broader public policy interest in allowing those uses freely.
The workshop also posited that if monopoly rights are given as an exchange for the diffusion of innovative and creative work, then pervasive changes in technology – such as the growth of the Internet, the rise of mobile devices, and digitisation of content – may have affected this bargain, requiring an adjustment of the respective rights of creators and consumers. Indeed this has been one of the justifications given for increasingly stronger rights demanded (and received) by authors over recent decades.
This heightening of monopoly rights has swung too far against consumers, particularly when compounded by the use of Digital Rights Management (DRM) technologies that limit consumers' fair use rights, and by the movement of content into the cloud which makes it technically easier to control when, where and how consumers can access it. One of the most contentious issues discussed at the workshop was the use of geolocation technologies that can prohibit consumers from accessing licensed online content whenever they cross a border, so that your record or video collection can disappear whenever you travel, move country or even region.
A solution to some of these problems that was raised in the workshop was the introduction of a globalised “fair use” exception in copyright law, that could meet the need to support socially beneficial personal and innovative uses of content, without detracting from the rights of authors. Interest in the globalization of flexible copyright exceptions such as fair use is spreading throughout the world, with such exceptions already having been introduced in Israel, Singapore, Korea, the Philippines, Thailand and Malaysia, and being under consideration by Australia and the United Kingdom.
But because fair use rights can be trumped by DRM, which can stealthily take away rights that consumers enjoy under the law, we also need a way to tackling the misuse of such technologies by exclusive rights-holders. This too is being addressed by the OECD, through its Consumer Policy Committee which is currently working on a policy guidance document on digital content products.
As a participant in that committee EFF's new senior global policy analyst Jeremy Malcolm has proposed that suppliers of digital content products and services should be restricted from employing DRM technologies that prevent consumers from using those products or services in ways that would otherwise be reasonable, lawful and safe. The policy guidance remains under negotiation, but is expected to be finalized and released this year.
One of the benefits of the OECD process, at its best, is that its discussions are evidence-based. Too often the shrill call of rights-holder lobbyists for extended copyright terms and tougher circumvention restrictions drown out the warnings of economists and other experts that these policies may cause more harm than good. This week's OECD workshop was a thoughtful affair by comparison.
This does not mean that the OECD is immune from rights-holder influence or that its recommendations always strike the right balance. But it is remarkable what a difference an open discussion can make to the development of sensible copyright and patent policy, in comparison to captured processes such as the closed Trans-Pacific Partnership (TPP) negotiations that seek to export failed, protectionist IP policies around the world.
Also remarkable is that the United States government is participating in both processes, with such a markedly different approach. EFF has previously observed that IP protection and enforcement efforts should be coordinated with the broader foreign policy objectives of the United States. This requires a more holistic approach to outreach on international IP issues than the narrow, trade-focused agenda of the United State Trade Representative (USTR).
Other important interests that can and should be advanced in international copyright and patent policy include consumer protection, access to knowledge, disruptive innovation and international development. Multistakeholder fora such as the OECD provide space for such broader discussions, thereby enriching policymakers' understanding of the complex intersection between copyright and patent policy and the broader public interest.
Maximising society's gain from the intellectual property exchange requires a more nuanced approach than the satiation of rights holders' extremist demands. In this light the evidence-based approach of the OECD makes a striking contrast with the dogmatic, maximalist approach taken by US negotiators in the secretive TPP negotiations. This contrast offers negotiators some obvious lessons, with immense potential benefits for the development of fair and balanced global copyright and patent policy.