View source for IP Maximalism



'''IP Maximalism = the extraordinary extension of Intellectual Property Rights to the extent that they threaten free cultural exchange.'''


=Citation=


Paula Samuelson (as reported by Susan Crawford): 

"When it comes to A2K, there is an IP maximalist agenda.  IP owners interpret the WIPO copyright treaty as having three provisions that allow control over access to content:

(1) temporary copies are reproductions, giving us exclusive right to control access to digital works

(2) the communication right gives us exclusive access rights

(3) anti-circumvention rules allow us to use technical access controls, which cannot be bypassed."
(http://scrawford.blogware.com/blog/_archives/2006/4/23/1906191.html)


=Context=

Susan Crawford reviews the presentation of Pam Samuelson on this topic, at the Yale A2K conference in 2006, at http://scrawford.blogware.com/blog/_archives/2006/4/23/1906191.html


"Pam Samuelson is an activist who has gotten a lot done, particularly when it comes to maximalist approaches to intellectual property issues.  Prof. Samuelson is also someone who is optimistic about human nature.  Because many of the IP fights she's been involved in are now playing out -- again -- as communications policy issues, I wanted to write today about what she had to tell us on Saturday.

Prof. Samuelson's topic was the political economy of recent intellectual property debates.  

Here's a paraphrased account of her remarks.


How did we get to this place?  For many of you, it is old news that the maximalist IP agenda has dominated the access to knowledge conversation in the past few decades.  We can see this as a classic public choice problem -- there are concentrated benefits available for a small group of well-organized, well-financed industry groups, diffuse costs distributed widely among the public, and a collective action problem in organizing people to recognize these costs and take effective action to thwart the maximalist agenda.

The result:  the "best laws money can buy" from the standpoint of the concentrated benefits group.

In response to IP maximalists, we spent the 1990s in an intensively defensive struggle -- writing, speaking, and lobbying.  We pointed out why the white paper/NII paper were bad information policy; why us shouldn't adopt EU style database protection; why states should not adopt proposed article 2B of the UCC (now UCITA); why WIPO treaties did not require what became the DMCA aniti-circumvention laws.

We scored some defensive victories.  The US didn't adopt database protection; UCITA is no longer alive; and the DMCA  anti-circumvention rules could have been worse.  Other white paper agenda items were not adopted in the WIPO treaty -- so we don't have an international norm on temporary copies, or strict liability for ISPs.  We have some new exceptions for digital environments and ISP safe harbors.

In the US, ISPs were putting up a fight about strict copyright liability, duty to monitor, and temporary RAM copies as infringement. And the IT industry was upset about proposed outlawing of technology if primary purpose or effect was circumventing TPMs.  We dodged one big thing:  the US has not been able to use WIPO to advance its otherwise shaky domestic IP proposals.  We were able to put together representatives of telcos, scientific researchers, and IT to make this happen.

But -- now the USTR has been captured by the IP maximalists.  "Free trade" agreements have undercut national freedoms to implement IP rules under the flexibility that TRIPS and WIPO treatives would allow (eg, DMCA without exceptions).  After so many "free trade" agreements have been put in place, we're concerned that the IP industries will insist that the US DMCA rules must be strengthened because international higher protection norms now exist.  Will they insist that we get rid of Copyright Office rulemaking?  Will they override the Federal Circuit, which has required a "nexus" requirement between circumvention and copyright infringement?


And when it comes to A2K, there is an IP maximalist agenda.  IP owners interpret the WIPO copyright treaty as having three provisions that allow control over access to content:

(1) temporary copies are reproductions, giving us exclusive right to control access to digital works

(2) the communication right gives us exclusive access rights

(3) anti-circumvention rules allow us to use technical access controls, which cannot be bypassed

A pay-per-use, technically locked down information environment hasn't happened yet, but trusted computing platforms and tech mandates may yet bring it about.  And the net neutrality debate may bring about a two-tiered internet -- with a very closed fast tier.

But there are signs of hope:

Canada has been resisting US-style DMCA anticircumvention rules.
Australia is recommending allowing noncommercial creation of tools to allow circumvention.
The WIPO development agenda is proceeding.

What we have learned is that the best defense is a good offence.  A2K provides us with a framework for a postive agenda for promoting progressive information policy.  We shouldn't just criticize IP maximalist proposals.  We have to have arguments based on a positive conception of an information society in which we want to live.  We'll win -- because the IP maximalist agenda has no moral compass, so we can appeal to a broader audience.

There's an important role for academics now.  We need to popularizing insights from research; to bridge across disciplinary commmunities; to assist in coalition building by activist organizations; and to promote A2K policy initiatives.  We should work on making progress locally.

Here Prof. Samuelson directly addressed the audience, and spoke sternly:  I am concerned about some of the writing I see.  We need less polemics and less worship.  We need more rigor and more grounding in the world.  We need to be willing to write about failures in some of these spaces.  We need to do better.


On the communications policy front, we need to take Prof. Samuelson's advice in several ways:

1.  We need a positive conception of the life that, say, network neutrality will bring us, and why that life is the *good* life to which the polity should aspire. 

2.  We need more rigorous economic work about why a neutral broadband network is better -- for more people -- than handing perfect control to a handful of broadband network providers.

3.  At the same time that we are being active and agenda-setting, we need to score some defensive victories.  Forestalling the adoption of a Communications Act in 2006 should be a top policy goal. 

4.  And we need to do better."


[[Category:Policy]]