Editor’s Note: Copycense executive editor K. Matthew Dames interviews William Patry a second time. (The first interview occurred in late 2006, and was published in 2007, the same year West Publishing released the multi-volume treatise Patry on Copyright.) This second interview, completed in late August 2009, deals exclusively with Patry’s new book, Moral Panics & The Copyright Wars (2009, Oxford University Press) [Amazon.com; Barnes & Noble; author’s book blog]

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K. Matthew Dames: After writing several scholarly works and treatises (including the current Patry on Copyright and the revised Patry on Fair Use), Moral Panics and the Copyright Wars is your first general market book. Why this book at this time?

William Patry: I have been concerned for awhile about the type of discourse used in the debates about copyright. I thought and still think it is generally unhealthy, and in some cases, deliberately unhealthy. George Orwell once wrote that words can corrupt thought, and I believe this has happened in the copyright debates. I set out to find out why this was going on, and how to change the discourse by making it healthy again.

Dames: Moral Panics … opens with a discussion of business models, and your general argument that copyright law has been used too often to control what consumers do with products, rather than encouraging platforms that give (paying) consumers what they want. This book also was researched and written during a time when, for the first time, you have been in-house counsel to a technology company. To what extent did your work as a business lawyer spur your research into business models?

Patry: I have been privileged to work in lots of difference environments: private practice, government service, academia, and now in-house. You learn a lot from each experience. Certainly the greatest benefit to being in-house is learning business stuff, so being in-house has definintely sensitized me to business issues in a way I wasn’t before. I hope that is helpful too for readers.

Dames: In Moral Panics …, you spend a lot of time discussing language and rhetoric. How did you become interested in this area?

Patry: I became interested because language and rhetoric is so prevalent in the copyright debates and has driven policy decisions, something I think is regrettable.

Dames: Moral Panics … also includes several extended discussions about how language is used to shape the parameters of debates and political issues. In your former work with the House of Representatives, you must have heard several interesting arguments or statements. In your view, which person or organization has been the best at using language to best articulate their point of view and why was that person or organization so effective?

Patry: George Lakoff, a very liberal Democrat and a cognitive linguistic, has written extensively about how conservatives are masters of framing political debates, and I would be surprised if many disagreed. As the opposition now, of course, they don’t have responsibility for actually accomplishing anything, which gives them a lot more room to maneuver.

Dames: On page 29 of Moral Panics .., you write

The response of the heads of these companies to the youthful rebellion of democratizing content on the Internet has been that of may parents worldwide: to fight against the present, to try to ban the future, and to punish those audacious enough to challenge the status quo. The Copyright Wars are a fight against our own children, and it is a fight that says everything about adults and very little about the children.

As a father who purchases lots of books, films, and music for your children — and as a scholar who has objected to “educational” initiatives geared toward children like “Kopyright Kids” and “Captain Copyright” — what conversations do you have with your children about copyright and what their relationship is, or should be, with protected works?

Patry: I think parents have a great deal of responsibility, really the primary responsibility, which should be exercised both by example and by ensuring their kids act responsibly.

Dames: If you had one resource to recommend to your children to teach them about copyright, what would it be?

Patry: Creating something themselves and figuring out how they wanted it used by others online.

Dames: In Moral Panics …, you talk a lot about the consumer, the purchaser, and the end user and their relationship (or lack of relationship) with copyright law. Historically, copyright law and policy in the United States have been debated and discussed in a way that presumes the sole affected audience is large, corporate copyright owners, and you and University of Michigan law profession Jessica Litman have written about the legislative process that goes into making copyright legislation. Further, you have written about the current national copyright reform conversation occurring in Canada. What elements or conditions do you believe would need to exist in the United States so that a similar conversation or reform effort may occur?

Patry: I think that Michael Geist in Canada has shown the short of grassroots movement that is effective, and I think technology companies need to educate policymakers about what they do, in detail.

Dames: What issues are not addressed in the book that you wish you had addressed?

Patry: There are two: Marissa Mayer’s theory of the atomic unit of consumption [.pdf], and the discsussion by Gwenyth Jackaway in her 1995 book called Media at War: Radio’s Challenge to the Newspapers, 1924-1939. (See Slate article.) Her book is a great example of what I am talking about in a different era.

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[Editor’s Note: This is final part of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Part 1 was published in Copycense on May 27; Part 2 was published on June 2.]

In this article, I focus on proposed legislation in Congress that would make copyright (and other intellectual property issues) a consistent part of U.S. foreign and trade policy via the State Department.

“Hollywood” Howard Berman Goes International

On May 14, Howard Berman (D-CA), chairman of the House Committee on Foreign Affairs, introduced bill H.R. 2410 (Foreign Relations Authorization Act, Fiscal Years 2010 and 2011). The bill authorizes funding for the Department of State and the Peace Corps. As a funding bill, H.R. 2410 is relatively innocuous: the State Department is one of this country’s most important federal agencies, particularly at this moment, and few can reasonably argue with the Peace Corps and its mission. (Read Secretary Clinton’s statement to Congress about the State Department’s FY 2010 budget.)

Anyone who is familiar with the federal legislative process, however, knows you always — always — must monitor appropriations bills because they attract more pork than a southern Sunday brunch. Treats — not necessarily financial earmarks, but pieces of legislation that serve as a kind of “tribute” to a legislator or powerful constituent — also get passed around like it’s Halloween whenever appropriations bills make the rounds.

The entertainment industry lobby (RIAA and MPAA in particular) have lobbied for, and won, a number of appropriations-based treats over the decades. They have used this tactic quite effectively, taking advantage of a cardinal law of Congressional self-survival: the legislative branch understandably is loathe to keep itself or governmental units running on continuing resolutions, so it is rare that a budget bill will not eventually pass.

Even more accurately, it is rare that a budget bill passes without including special treats for particularly powerful members of Congress.

Congressman Berman has been a particularly powerful member of Congress for quite some time. We (and others) noted Berman’s departure from the House of Representatives’ Committee on the Judiciary (HJC) in January 2008, where he was as consistent a pro-entertainment industry lobbyist as there ever has been. HJC’s jurisdiction includes intellectual property matters; judicial, legislative and administrative law matters; federal prisons; and antitrust.

The Center for Responsive Politics’ Open Secrets Web site reports that during the last full Congress, ending in 2008, Berman received more than $200,000 in contributions from the entertainment industry, and another $67,000 from the technology industry. In comparison, Senator Diane Feinstein received more than $265,000 from the entertainment industry over the same period. (Both totals pale in comparison to the $968,958 the entertainment industry lavished on Sen. Barbara Boxer last Congress.)

But it is a rare opportunity to get a Congressional committee chairmanship, and Berman ceded party seniority on HJC to John Conyers (D-MI), among others. (With the Democratic surge in Congress during the 2008 presidential election, Conyers became HJC’s current chairman.) So it was not particularly surprising that Berman left HJC to chair Foreign Affairs. Berman, however, was not away long enough for his seat to get cool: the same Democratic surge during the last presidential election cycle helped Berman to return to HJC, where he occupies the role of vice chairman.

Regardless of his committee assignments, we figured Berman would be hard pressed to leave behind his blind support for all things Hollywood. And it turns out we were right. Only this time, Berman’s newest nod has a chance to greatly affect the way this country manages its international affairs.

The Leaked X-Men Film & HR 2410

The first sign that Berman would find a way to blend the RIAA and MPAA lobbying agenda into foreign relations came last month, when Berman chaired a hearing in Van Nuys, CA that ostensibly was about “pirated” intellectual property. The context was classically scripted: an unfinished copy of X-Men Origins: Wolverines had been released onto P2P networks just a week earlier, and the U.S. Trade Representative’s Special 301 report (the one that put Canada on the Priority Watch List) was due in the following two weeks.

During the hearing, Berman mentioned he would “begin to elevate the attention” the U.S. gave to perceived and real international acts of copyright infringement, according to The Carpetbagger, a New York Times blog. HR 2410 does just that.

Buried in this appropriations bill, Berman (the bill’s sponsor) throws yet another bone to his old pals in Hollywood. For example, Section 329, entitled “Protection of Intellectual Property Rights,” requires the Secretary of State to “ensure that the protection in foreign countries of the intellectual property rights of United States persons in other countries is a significant component of United States foreign policy in general and in relations with individual countries,” and requires the Secretary of State to “appoint 10 intellectual property attaches to serve in United States embassies or other diplomatic missions.”

According to Section 329(c), the Secretary of State should deploy these attaches “in those countries where [his] activities … may be carried out with the greatest potential benefit to reducing counterfeit and pirated products in the United States market, to protecting the intellectual property rights of United States persons and their licensees, and to protecting the interests of United States persons otherwise harmed by violations of intellectual property rights in those countries.”

According to Section 329(d), these intellectual property attaches would engage in variety of duties, including:

• “[promoting] cooperation with foreign governments in the enforcement of intellectual property laws generally, and in the enforcement of laws against counterfeiting and piracy in particular”;
• “[assisting] United States persons holding intellectual property rights, and the licensees of such United States persons, in their efforts to combat counterfeiting and piracy of their products or works within the host country …”; and
• “[identifying] and [promoting] other means to more effectively combat counterfeiting and piracy activities under the jurisdiction of the host country.”

The kicker? Section 329(f) requires the attaches’ duties to be carried out “in coordination with the United States Intellectual Property Enforcement Coordinator.” This is the IP czar position that Vice President Biden promised would be filled with a person sympathetic to Hollywood executive concerns.

Next Steps

In short, Berman’s bill, if it passes, would deputize State Department officials to serve as the entertainment industry’s foreign affairs wing. As of this writing, the Foreign Affairs committee has recommended that the entire House consider HR 2410, and the bill was placed on the House’s Union Calendar on June 4.

The next few months will be critical. As a practical matter, HR 2410 must pass before the end of the year, since Congress’ attention will turn to midterm elections beginning in January 2010. Congress recesses in August, and upon its return, will consider to annual spending, tax, and appropriations measures. If HR 2410 is to pass with its current pro-entertainment measures, it is likely to be signed by President Obama in the fall, before Congress takes its holiday recess in December.

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[Editor’s Note: This is the second of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Part 1 was published on May 28; Part 3 will be published on Tuesday, June 9. Portions of this work are included in a continuing study about the framing of “piracy” and its influence on U.S. copyright law. For ease of reading and formatting, this excludes scholarly references, but replaces them with hyperlinks to source material where such links are available.]

This article summarizes the Special 301 process, including its history, its procedures, and the 2009 Special 301 report.

Background of Section 301

Section 301 of the Trade Act of 1974 (19 U.S.C. sec. 2411), as amended, is the principal statutory authority under which the United States may impose trade sanctions against foreign countries that violate, deny benefits under, or unreasonably discriminate against the U.S. government, or otherwise restrict U.S. commerce, pursuant to a trade agreement. Section 301(a) may be understood as a self-help strategy for discouraging breach of agreement by trading partners.

(a) The Patent Lobby

The seeds for the contemporary Section 301 process were sown in the mid-seventies. Partly as a reaction to the Watergate scandal, Congress adopted several reforms that sought decentralization of government and allowed private companies to influence trade policy. IBM and Pfizer were two of the first companies that recognized the need for a global approach to intellectual property protection. In the late 1970s, the CEOs of these two companies “devised a strategy to improve intellectual property protection internationally until American standards became the international norm, especially in developing countries.”

Pfizer sought “significant reform” of the Paris Convention, while IBM sought patent treaty reform and full copyright implementation under the Berne Convention (especially reforming Berne to recognize the copyrightability of software). Together, the two companies sought multilateral diplomacy through the General Agreement on Trade & Tariffs’ Advisory Committee on Trade Policy and Negotiation (“ACTPN”). Pfizer chief executive officer Edmund Pratt and IBM chief executive officer John Opel held high level positions on ACTPN.

By 1985, ACTPN was playing a major role in U.S. trade policy. Around the same time, the U.S. economy was struggling from the effects of large trade deficits with several foreign countries. Industry associations identified and blamed a foreign, monolithic enemy: “pirates.” U.S. corporate executives convinced members of Congress that America’s economy and the nation’s long term economic and innovation competitiveness would improve only if the country passed trade laws that levied stiff punishments for continuing trade violations, especially those that involved “piracy” of intellectual property.

This led to a number of changes to trade policy. For example, ACTPN recommended that the U.S. Office of the Trade Representative (“USTR”) create a post of assistant trade representative for investment; USTR did so in 1981. In 1985, ACTPN established an intellectual property task force in 1985, with Pratt, Opel, and Fritz Attaway serving. (Attaway is executive vice president and Washington general counsel for the Motion Picture Association of America, where he has worked since 1976.)

From this core, ACTPN worked to educate people in Congress and in the executive branch (especially USTR) about the importance of protecting intellectual property rights as a way of facilitating investment in developing countries. Part of the education included targeting Washington policy makers with conferences and books, both of which emphasized that American competitiveness in innovation industries was being hurt by developing countries’ failure to pass or enforce laws that protected American intellectual property. As a result, USTR spent much more time and diplomatic effort in putting intellectual property issues on the GATT Uruguay Round agenda in 1986, ultimately consulting ACTPN on a “GATT strategy.”

(The GATT Uruguay Round strategy was a “carrot and stick” approach to trade and intellectual property negotiations with developing countries. On one hand, the U.S. offered tariff concessions on agricultural and textile products and technical training on intellectual property issues. In exchange, the U.S. wanted higher levels of intellectual property protection to combat “piracy” and counterfeiting. A foreign country’s failure to comply would result in cutting the country’s aid through America’s General System of Preferences, and possible trade sanctions pursuant to Section 301 actions. Said more simply, where bilateral and multilateral trade concessions GATT Uruguay Round are the carrot, Section 301 actions are the stick, a form of unilateral sanctions.)

The Intellectual Property Committee (“IPC”) was another important trade group that started work during this period. IPC’s purpose was to be a spokesman for intellectual property-based companies and lobby their interests in Washington and Geneva. Charter members were Pfizer, IBM, Merck, General Electric, DuPont, Warner Communications, Hewlett-Packard, Bristol-Meyers, FMC Corporation, General Motors, Johnson & Johnson, Monsanto, and Rockwell International.

(b) The Copyright Lobby

While ACTPN and IPC handled multilateral GATT diplomacy strategy, the corporate owners of large copyright portfolios became concerned that the ACTPN was too focused on patent issues. Those companies began seeking their own bilateral strategy to strengthen international copyright laws, resulting in the formation of the International Intellectual Property Alliance (“IIPA”). IIPA charter members included the American Association of Publishers; the Motion Picture Association of America; and the Recording Industry Association of America. The Business Software Association and Interactive Digital Software Association since have joined IIPA.

Created in 1984, IIPA also was established to advocate an agenda for the USTR’s Section 301 report, which Congress codified in the U.S. Trade and Tariff Act of 1984. Among other things, the 1984 Trade Act clarified the Section 301 review process, for which copyright creators had lobbied. In 1985, IIPA submitted to USTR a report entitled Piracy of U.S. Copyrighted Works in Ten Selected Countries that presented data from IIPA members that estimated $1.3 billion in lost film, music, computer software, and books sales due to “piracy.”

USTR responded by initiating a Section 301 investigation against Korea. Based in part upon this initial report, IIPA lobbied Congress to institutionalize the measurement of copyright problems in foreign countries, leading to an amended Section 301.

Section 301 Process Overview

The Section 301 process works in the following way:

1. Initiation: Any interested party – usually a private sector interest group – files a petition with USTR to request that the government agency investigate a possible trade violation. (USTR also may initiate an investigation on its own.)
2. Publication: USTR publishes its determination to initiate an investigation (or reasons for not initiating in the case of a petition) in the Federal Register.
3. Hearing: A public hearing is required if USTR initiates a Section 301 investigation.
4. Consultations: Once an investigation begins, USTR must request consultations with the foreign government.
5. Settlement: Where an investigation involves an alleged violation of a trade agreement (such as a World Trade Organization (WTO) agreement or the North American Free Trade Agreement (NAFTA)), USTR must follow the dispute settlement provisions set out in that agreement.
6. Conclusion: USTR must conclude its investigation and make a determination of whether the foreign practice is actionable under Section 301 within 18 months after initiation of an investigation involving a trade agreement that includes a dispute settlement mechanism, or 30 days after conclusion of dispute settlement procedures, which ever comes first.

The Trade Representative’s use of Section 301 as a procedural stick in intellectual property protection is recent. In 1984, USTR held little institutional knowledge about intellectual property matters. At the urging of IIPA members, the Office hired a new deputy trade officer, intellectual property lawyer on staff whose primary job was to advise USTR staff on issues of bilateral and multilateral diplomacy. Armed with new expertise and IIPA data, USTR started a Section 301 action in fall 1985 against South Korea.

IIPA complained South Korean businesses were extensively “pirating” books, music, film and software, and the organization claimed annual sales losses in Korea totaling $150 million. This may seem an insignificant amount now, but given the time frame – mid-1980s; high inflation; large trade deficits, particularly to Asian countries – this estimate was significant enough to warrant the attention of U.S. government officials. Korean negotiators insisted that the country’s level of development was insufficient to revise its intellectual property laws. The U.S. countered by threatening to strip Korea of its benefits under the Generalized System of Preferences.

In July 1986, Korea and the U.S. reached an agreement whereby Korea would revise its copyright laws, become a signatory to a number of international copyright treaties, and pledge to strengthen penalties against copyright infringement. Korea also pledged more aggressive patent enforcement. This was USTR’s first successful implementation of the Section 301 process against foreign country based upon “piracy.”

It is common for a private sector group to initiate a Section 301 petition against a foreign country because of alleged “piracy” issues. Initiating petitions, however, puts U.S. companies at risk of having foreign governments retaliate against their overseas subsidiaries. The retaliation can take the form of selective regulatory enforcement or questionable contract awards.

To guard against this possibility, Congress in August 1988 passed Special 301 as part of the U.S. Omnibus Trade and Competitiveness Act. Sponsored by former Illinois Congressman Dan Rostenkowski and referred to in some quarters as a “velvet fist in an iron glove,” Special 301 requires USTR to identify nations that fail to protect the intellectual property rights of U.S. companies by April 30 annually.

Any country whose acts, policies, or practices are “the most onerous or egregious” and have not entered into (or are significantly progressing toward) negotiations to provide adequate and effective intellectual property regulation the USTR must designate as a “priority foreign countries.” Countries that USTR does not designate as “priority foreign countries” may appear on “priority watch” or “watch” lists if the U.S. government is concerned about their intellectual property laws or enforcement practices.

As before the 1988 amendment, industry organizations play a vital role in filing petitions (requiring USTR follow up) and providing evidence of economic losses due to “piracy.” For example, in a response to USTR’s required Federal Register posting requesting public comment on country identification for the Special 301 report, IIPA earlier this year submitted “[its] discussion of the types, levels, and costs of piracy, an evaluation of enforcement practices to reduce those levels, and the status of copyright law reform in 60 separate country reports.” Referencing its Jan. 30, 2007, report entitled “Copyright Industries in the U.S. Economy,” (.pdf) IIPA claimed in a 22-page cover letter (.pdf) that

“core” U.S. copyright industries accounted for an estimated $819.06 billion or 6.56% of the U.S. gross domestic product (GDP) in 2005. These “core” industries were responsible for 12.96% of the growth achieved in 2005 for the U.S. economy as a whole (this means that the growth contributed by these core industries (12.96%) was almost double their current dollar share of GDP (6.56%)). In addition, the “core” copyright industries employed 5.38 million workers in 2005 (4.03% of U.S. workers) in 2005.

It is essential to the continued growth and future competitiveness of these industries that our trading partners provide not only free and open markets, but also high levels of protection to the copyrights on which this trade depends. This protection upon which so much U.S. economic performance rests is under constantly evolving threats, and it is critical to sustain U.S. economic competitiveness that our country’s response remains flexible, innovative and committed. There are certain sectors of the U.S. copyright community, notably the music sector, that has already witnessed significant declines in foreign sales and royalty remittances as a consequence of increased levels and new forms of piracy, and it is essential that we address these problems on an urgent basis.

The IIPA mentioned the term “piracy” 93 times in the cover letter. None of those mentions is consistent with the term’s primary definition in Black’s Law Dictionary, the United Nations Convention on the Law of the Sea, Oxford English Dictionary, or the United States Code.

The 2009 Special 301 Report

The 2009 Special 301 report, which the USTR released on April 30, examined more than 40 countries, placing a dozen (China, Russia, Algeria, Argentina, Canada, Chile, India, Indonesia, Pakistan, Thailand and Venezuela) on the “priority watch” list (PWL). The number of countries on the report’s “priority watch list” has remained relatively stable over the years. (In 2007, there were 12 countries on the “priority watch list.” In 2008, nine countries made the list. China, Russia, Argentina, India, and Thailand have made the PWL each of the last three years.)

USTR placed more than 30 additional countries on its 2009 “watch list.”

Canada was perhaps this year’s most surprising inclusion on the 2009 PWL. Over the past three years, Canada has experienced considerable citizen interest in (and resistance against) government proposals to increase the country’s level of copyright protection, most notably through a Facebook group organized by University of Ottawa law professor Michael Geist. The citizenry’s effectiveness in halting government proposals to spread stronger protections, however, has led to disapproval from the U.S., its southern neighbor:

[T]he Government of Canada has not delivered on … commitments [to improve IPR protection and enforcement] by promptly and effectively implementing key copyright reforms. The United States continues to have serious concerns with Canada’s failure to accede to and implement the WIPO Internet Treaties, which Canada signed in 1997. We urge Canada to enact legislation in the near term to strengthen its copyright laws and implement these treaties. The United States also continues to urge Canada to improve its IPR enforcement system to enable authorities to take effective action against the trade in counterfeit and pirated products within Canada, as well as curb the volume of infringing products transshipped and transiting through Canada. Canada’s weak border measures continue to be a serious concern for IP owners.

Part of the reform the U.S. wants Canada to pass is C-61, legislation that mirrors the U.S. Digital Millennium Copyright Act. Since the Canadian government has had difficulty in passing this and similar legislation, the U.S. has placed it alongside perennial PWL countries like Russia and China.

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[Editor’s Note: This is the first of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Portions of this part were published previously as Dames, K. Matthew (2007). Trade Agreements as the New Copyright Law, Online, 31(2), 16-21.]

In this article, I detail how global trade agreements influence the Copyright Act of 1976, including an explanation of the U.S. Trade Representative’s role, the role of “harmonization,” and an analysis of how international trade agreements effectively circumvent Congress’ constitutional authority to enact copyright laws.

Traditional Path to Copyright Law

Just as every other federal law that is ultimately codified into the U.S. Code, this country’s official compendium of federal statutes, the development and ultimate passage of copyright laws happens according to a time-honored process. Bills that originate in the House of Representatives or the Senate will become law if the bill is passed by both houses of Congress and the President signs the bill. Once the bill becomes law, it will be published in the U.S. Code, which is the public and permanent statutes arranged by topic or subject. (For a fuller discussion of the U.S. federal legislative process, please see Charles W. Johnson’s classic guide “How Our Laws Are Made.”)

The Copyright Act of 1976 is codified at Title 17 of the U.S. Code. The authority for the 1976 Act (as well as the predecessor Acts of 1909 and 1790) comes from the Copyright Clause of the U.S. Constitution. Art. 1, sec. 8. cl. 8 states “The Congress shall have Power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Congress is, has been, and always should be the first and final drafter and arbiter of the Copyright Act. As Justice Ruth Bader Ginsburg wrote in the Supreme Court’s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003), “[The Court has] stressed … that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” But in recent years, Congress’ role in enacting copyright law legislation has diminished. In order to understand how this has occurred, it is instructive to go back to 1988, when the United States became a signatory to the Berne Convention.

The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) is an international treaty, first signed in 1886, that seeks to give creators some level of consistent copyright protection across the world. The principle that guides Berne is that where an author’s nationality differs from the work’s country of origin, the author should receive the same copyright protection as national authors. Further, the Berne Convention obliges all signatory countries to respect an author’s moral rights. (“Moral rights” is a term that describes the ability of authors to control the eventual fate of their works. The concept relies on the connection between an author and her creation, and protects the personal and reputational aspects of a creative work, rather than its monetary value. (See Betsy Rosenblatt’s primer on moral rights from the Berkman Center.)

The U.S. signed the Berne Convention treaty in 1988, becoming the 76th nation to sign. More than 100 countries are signatories.

From a practical standpoint, the U.S.’s adoption of Berne eliminated the need for authors to place a copyright notice on their work, and made copyright registration optional except in circumstances where the owner wishes to sue for copyright infringement in Federal court. For example, The the “no registration” requirement has had a significant and detrimental affect on digitization programs, since an item for which copyright ownership cannot be determined often is an item that is removed from the universe of digitization possibilities.

Further, the Berne Convention has been cited as the basis for domestic legislation such as the Visual Artists Rights Act of 1990 (which provides authors with some semblance of moral rights under U.S. law); the Digital Millennium Copyright Act of 199 (which protects digital works and has been the source of controversies too numerous to mention here); and the Sonny Bono Copyright Term Extension Act of 1998 (which retroactively lengthened copyright terms by two decades).

“Harmonization”

Additionally, the Berne Convention’s widespread adoption has helped usher a new term into the copyright lexicon: “harmonization.” I first recall hearing the term in the late 1990s, around the time Congress was debating the legislation that ultimately became the Digital Millennium Copyright Act (“DMCA”).

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.

Since each state has its own law—New York law is different from Indiana law, which is different from Texas law—it could be difficult for firms to do business across jurisdictions. The UCC facilitates interstate commerce by providing a core standard. States may deviate from it or tweak it—it is, after all, a model—but almost all U.S. states and territories have adopted the UCC’s core provisions into their state statutes.

National intellectual property laws work in a similar fashion. Intellectual property law is a national construct: U.S. intellectual property law differs from Spanish intellectual property law, which differs from Russia’s intellectual property law. Without an overarching, facilitating treaty such as the Berne Convention, there would be mass legal anarchy. This issue is exacerbated when the laws of different nations to problems and issues that exist exclusively online, where the notion of jurisdiction is vague at best, are applied. Instead, Berne allows U.S., Spain, and Russia to work from the same core intellectual property principles. Each nation has its own copyright law, but with a nation’s adoption of Berne, a core consistency is enforced.

From a linguistic perspective, harmonization suggests a voluntary coordination that the parties to an agreement will be held to the same, core standards and will be working under the same rules. Ideally, each country’s intellectual property laws should have similar weight and effect where harmonization occurs.

But in reality, harmonization of intellectual property laws is different. The term has become a euphemism for the global, one-sided spread of United States’ intellectual property laws. One could argue that under the guise of harmonization, intellectual property law has become America’s chief 21st century export. In the harmonization model, U.S. intellectual property law effectively becomes the world’s de facto intellectual property law, effectively overriding the voluntary coordination principle that should be inherent through the Berne Convention.

The dismissal of voluntary coordination occurs because the U.S. leverages its economic power to force other countries to adopt U.S. copyright law in lieu of their own if the U.S. thinks the foreign country’s laws are insufficient to protect American intellectual property. It is a “carrot and stick” approach: If a foreign country wants to do business with the U.S. (or get U.S. support to enter into the World Trade Organization), it must adopt U.S. copyright standards and codify them into their statutes.

For most foreign countries, this quid pro quo has become the price of doing business with the U.S. On the other hand, it is unusual that the U.S. would agree to agree to another country’s intellectual property regimen: It doesn’t have to. Therefore, harmonization really is doublespeak for a worldwide adoption of the American intellectual property standard. Much of this deal making happens through the Office of the U.S. Trade Representative.

The U.S. Trade Representative

According to its Web site, the Office of the U.S. Trade Representative (USTR) is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy and for overseeing negotiations with other countries. The head of the Office, Ambassador Ron Kirk, is a former mayor of Dallas whom President-elect Obama nominated to the position in December 2008. The Senate confirmed Kirk’s nomination on March 18, 2009. Kirk is a member of President Obama’s Cabinet and serves as his negotiator and spokesperson on trade issues.

Given intellectual property’s undeniable importance to the bottom line of several large U.S. companies, it is unsurprising that Kirk continues to make intellectual property protection a centerpiece of international trade discussions, much like his predecessor, Susan Schwab. Schwab thought the intellectual property issue so central that in late June she created a new Intellectual Property office within USTR. Schwab announced she was increasing resources and staff for the new office, including appointing a chief intellectual property negotiator whose priority is negotiating trade deals with China and Russia, countries that routinely are identified in the USTR’s annual “Special 301” review as being lax on protection of U.S. copyrights, trademarks, and patents.

The Workaround

There long has been concern that expansive language in free-trade agreements may raise the level of copyright protection above and beyond the international standards under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights annexed to the agreement establishing the World Trade Organization. Now, arguably, the trade negotiation process has become a channel through which large, corporate copyright portfolio owners manipulate the trade agreement process to enforce a narrow, protectionist extension of copyright law, circumventing the traditional legislative process. Most of this work is done without notice to the public or Congressional hearings, so the first time those outside the process learn about the new arrangement—which has the effect of law—is when a USTR press release announces the trade agreement.

William Patry, author of the treatise Patry on Copyright, summarized this process in September 2006.

U.S. industry group X [insert software, publishing, music, etc.] goes to USTR and says we need new rights; please obligate the United States to provide for those rights in an international agreement, whether a new treaty or trade deal. Without public input, without congressional hearings, without legislation, USTR commits the U.S. to provide that protection. The Executive Branch then goes to Congress and says to Congress that legislation has to be passed on pain of the U.S. violating its international obligations. Congress complies.

This is the epitome of backroom, middle-of-the night deal making with cigars, winks, and nods, the stuff of local machines and voting blocs purportedly dismissed long ago as gross perversions of democracy. Patry also notes that these trade deals also pose a considerable threat to our notions of fairness and democracy in the political process.

“Whatever one might say about USTR, one cannot fairly describe that agency as concerned with the larger public good,” continues Patry. “There are serious institutional and policy issues with this trend. Initiatives to amend U.S. law should be taken up first by Congress; they should make sense as a matter of domestic balancing. Congress is the policymaker in our system, not the Executive Branch. Couching issues as trade issues or foreign policy is a too clever and dangerous way to make U.S. law overseas. It should stop for the public good.”

What about Congress? Many veteran political observers, including Thomas E. Mann and Norman J. Ornstein, authors of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, have accused Congress of totally abdicating its role as the first branch of government since the Sept. 11, 2001, terrorist attacks. On this issue, one would expect members of Congress to be offended at the suggestion that trade representatives know better what America’s intellectual policy should be. Instead, the Congress has failed to provide any resistance.

The problem was exacerbated by the “fast track” authority that presidents once held. “Fast track” is a procedure through the president has sole and exclusive authority to negotiate trade agreements. Elected members of Congress must agree with all of the terms and conditions of an agreement negotiated under “fast track” authority, otherwise it must vote against the entire agreement. President George W. Bush was able to secure “fast track” authority after President Clinton failed to secure it for his administration. This allowed Bush’s trade negotiators the authority to cut their own deals and bind the U.S. (as well as foreign countries) to those deals on a “take or leave” it basis. According to Public Citizen, presidential fast track authority (also called “trade promotion authority”) expired June 30, 2007.

While “fast track” has expired, the U.S. Trade Representative’s role in shaping foreign and domestic intellectual property affairs continues to manifest itself through the Special 301 process. We will address Special 301 in Part 2 of our three-part series.

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We missed this story when it appeared last month, so we are commenting on it now.

A woman who was arrested on allegations she sold illegal music compact discs was jailed last month and left by law enforcement authorities in solitary confinement for more than four days. The woman, Adriana Torres-Flores, 38, of Springdale, Arkansas, was left without food, toilet facilities, or sleeping facilities. Torres-Flores said she drank her own urine to for fluids.

Torres-Flores had been arrested in December 2007 on criminal charges she was selling bootlegged compact discs at a Springdale, Arkansas flea market. Torres-Flores faces deportation proceedings because she is not a U.S. citizen.

We discovered news of Ms. Torres-Flores’ situation after we read a The New York Times last week about the bootlegged entertainment that no longer is available on Canal Street, long known as one of New York City’s major distribution points for discount goods, many of which are counterfeit. The story details an initiative Mayor Michael Bloomberg began in December 2003 with the aim of reducing the amount of counterfeit goods in the city that never sleeps.

A separate December 2003 from the Times details the results of an afternoon raid against counterfeit goods.

In both Times stories, the newspaper quotes financial estimates from trade associations — the Motion Picture Association of America in last week’s story; the International Chamber of Commerce in the 2003 story — that purport to detail the amount of money the associations’ member lose to counterfeit or bootlegged goods.

Ms. Torres-Flores’ situation is egregious because of the unusual circumstances surrounding her detention. In many other ways, however, her situation is consistent with an effort by multinational copyright industries to use municipal police to enforce and uphold the protection of their narrow interests. We wrote about this situation last year when editorializing about the Fulton County Sherriff’s involvement (with blue-jacketed representatives from the Recording Industry Association of America) in a raid of DJ Drama’s Atlanta studio.

DJ Drama and several of his colleagues were arrested in January 2007 for making mixtapes allegedly in violation of the Copyright Act of 1976.

See also:

Eric A. Taub. Off New York Streets, Film Piracy Is Online. The New York Times. April 14, 2008.

Mark Minton. Woman Forgotten 4 Days In Tiny Cell. Arkansas Democrat Gazette. March 11, 2008.

Copycense. Mix Tapes Compared to Cocaine? February 7, 2007.

Michael Wilson. 2 Chinatown Stores Raided In Counterfeit-Goods Sweep. The New York Times. Dec. 3, 2003.

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Anna Ringstrom. Sweden to Charge Pirate Bay in Copyright Case. Yahoo! News. Jan. 28, 2008. Sweden’s involvement in enforcement efforts on the entertainment industry’s behalf is related directly to the Special 301 process and Sweden’s fear of being placed on a priority list (penalties for which include trade sanctions).

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On Copyright Reform. (.mp3) The Ottawa Citizen sponsors an hour-long debate on copyright reform in Canada. Lots of shouting and interrupting, but may be worthwhile listening if you want to hear frustrated content industry discuss the state of their nation. Check out, however, Michael Geist’s analysis of this session, in which he contends Canadian Recording Industry Association president Graham Henderson and others give tacit support to ISP filtering, which AT&T reportedly is considering.

(Editor’s Note: Copycense editors originally commented on this article in Site Check 2.03.)

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