Copyright Maximalism Never Rests: TPP Talks Continue In Singapore

from the unfortunate dept

Despite growing protests and concerns about the next big US trade agreement (with Europe), the discussions on the Trans Pacific Partnership continue to move forward, with the latest round taking place in Singapore this week. And... once again, it's a story of near complete secrecy, and a total lack of transparency. Of key concern, of course, are the sections of the agreement on patents and copyrights, which the public has not seen. There was a leak from over two years ago, but nothing since then. The USTR and others say that they want the agreement completed by this fall, and it is a complete travesty that they have not been willing to share the details publicly. Negotiating a treaty in complete secrecy -- especially when the "input" on the IP chapter is driven by industry stakeholders, rather than the public -- means that the treaty almost certainly is going to be a disaster that is harmful to the public.

What's most amazing is that the USTR doesn't seem to recognize that the playing field has changed since the last time they did this. The rejection of SOPA, followed by the widespread rejection of ACTA (even if the USTR is in total denial about this) shows that the public is not at all willing to accept backroom deals that fundamentally expand bad patent and copyright policies around the globe and (worse) lock us in to things that the public does not believe are legitimate.

The USTR's continued insistence on secrecy, combined with the few leaks of information showing just how extreme a position they're setting out for themselves on patents and copyrights, suggests an organization so totally out of touch that it is destroying its own credibility. Any reasonable organization would recognize that the old backroom negotiations method of creating these kinds of deals is no longer acceptable. That the USTR refuses to admit this only increases awareness of just how out of touch the organization and its leadership remain.

Filed Under: copyright, ip, negotiations, patents, secrecy, singapore, tpp, transparency

Greater Fair Use Helped The Singapore Economy

from the as-it-should dept

While traditional "copyright" industry maximalist players like to insist that any weakening of copyright would be disastrous for the economy, the evidence almost always shows the exact opposite. Exceptions to copyright, such as fair use, over and over seem to show that fair use has a positive economic impact. Thanks to a change in Singaporean copyright law that expanded fair use in 2005, researchers were given a chance to see if they could quantify just how much of an economic impact there was. The recently released research shows that increasing fair use likely helped grow the Singaporean economy. There was a definite correlation to start:

The counterfactual impact analysis of fair use amendments in Singapore undertaken here demonstrates that flexible fair use policy positively influences growth rates in private copying technology industries. In 2010, five years after the policy intervention, Singapore's fair use amendments are correlated with a 3.33% increase in value-added (as % of GDP) for private copying technology industries. Prior to the amendment of fair use policies, private copying technology industries experienced - 1.97% average annual growth. After the changes were introduced, the same industries enjoyed a 10.18% average annual growth rate. This resulted in a total increase of € 2.27 billion in value-added for private copying technology industries in that period. The results show that, prior to fair use amendments, the private copying industries in Singapore were in recession. After fair use amendments, this group experienced a rapid increase in growth rates and continued to exhibit strong growth over the five year period.

Yes, that part is just about correlation -- and, as we know, correlation does not necessarily show causation. However, with additional research, you can sometimes show the linkage, and thankfully, this report tries to do so -- by looking at a "control group" of companies in tech manufacturing and services, who weren't directly impacted by changes in fair use. In that case, there was basically no growth.

Finally, the report then also looked at the "copyright industry" and whether it lost significant revenue because of this change (and specifically if the increases on the "private copying technology industries" are drowned out by decreases from copyright companies). But, no such luck:

There was no significant change in growth rates for the copyright group before and after fair use amendments when measured in terms of real economic growth (value added as % of GDP).

There was some slowing of the growth rate, but not as a % of GDP (so, in real terms). The conclusion is pretty clear:

We suggest fair use amendments in Singapore did not negatively affect the copyright industries significantly because private copying technologies, which experienced high growth as an industry group after the fair use amendments, increase the value of copyrighted works to consumers. While one might expect a rise in private copying technology industries to result in a significant recession for the copyright industries, this has not been the case in Singapore since the introduction of more flexible fair use policy in 2005.

The counterfactual impact analysis results for the Singapore case study show that fair use policy is correlated with higher growth rates in private copying technology industries, while having a very limited impact on copyright industries.

This seems important, especially considering that very few countries have expansive fair use provisions in copyright law -- and when they try to implement them, they're often shot down as legacy players insist that fair use would "put a chokehold" on their industries. The evidence seems to really suggest quite the opposite. But, we're not dealing with people used to caring about evidence, when pushing anti-fair use agendas.

Filed Under: copyright, economy, fair use, singapore

Some Countries Want To Fix TPP... By Making It More Like ACTA

from the TRIPS-is-for-wusses dept

ACTA and TPP have much in common, but the way in which they represents two aspects of the same impulse has never been shown more clearly than here, in this proposal to re-use elements of one in the other:

In an apparent effort to break the deadlock in negotiations for an intellectual property rights (IPR) chapter in the Trans-Pacific Partnership (TPP), several countries are proposing that certain provisions in a U.S. proposal be replaced with language from the Anti-Counterfeiting Trade Agreement (ACTA), according to informed sources.

Sources said that other ACTA signatories involved in the TPP – New Zealand, Australia and Singapore – want to substitute language from the agreement’s criminal offenses section with the proposed U.S. language on criminal enforcement, according to sources in Dallas.

Some of the more "moderate" participating countries have realized that TPP's criminal enforcement provisions are simply disproportionate:

the ACTA and the U.S. proposal [for TPP] both would require countries to provide for criminal procedures and penalties at least in cases of "willful" counterfeiting of trademarks and copyright piracy on a "commercial scale."

However, the U.S. proposal contains a much stricter interpretation of what constitutes commercial scale because it would cover significant infringements for both the purposes of commercial advantage or private financial gain as well as acts that result in no direct or financial gain.

One source said this provision could criminally punish an individual who has committed a significant act of infringement but does not intend to gain financially from it. IPR industry sources defend this approach as capturing users of file sharing services who do not stand to gain financially by sharing a large amount of pirated content.

That last comment is noteworthy, because it shows that the copyright industries want to punish general users swapping unauthorized copies with criminal sanctions even if there is no money involved. It confirms that these treaties are not really about fighting organized crime, as they are often presented, but truly a war on online sharing itself, where the aim is to put ordinary people behind bars.

To break the deadlock on this issue, the moderate wing of the TPP club is apparently suggesting that the equivalent ACTA provisions should be re-used. It's interesting to see ACTA, which is still being fiercely fought in Europe because of its harsh and unbalanced nature, presented here as a milder option compared to TPP. If nothing else, that negotiating calculus emphasizes just how extreme TPP is.

However, it's also disturbing that ACTA, although not yet in force, is already being taken as the new baseline. Indeed, the article quoted above notes that ACTA's provisions "represent a much higher standard than the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)" - the previous benchmark here.

Moreover, as regards the current "compromise" idea of using ACTA's provisions instead of the US proposals for TPP, an industry source had the following to say:

the U.S. IPR text largely reflects the U.S.-Korea FTA [Free Trade Agreement] and it would be unlikely the U.S. would agree to provisions that are less strict in the area of criminal enforcement.

As far as the US is concerned, it seems, every treaty in this area, whether bilateral (as in the US-Korea FTA) or multilateral (as with ACTA and TPP), is part of a policy ratchet that allows change in only one direction: more. The unspoken assumption that more copyright and more enforcement are always better is one of the key reasons why SOPA failed, ACTA is meeting such resistance, and even TPP is stumbling.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, australia, fta, new zealand, singapore, tpp

Singapore Creates 'IP Steering Committee' Without A Single Representative For The Public's Interest

from the total-failure dept

This keeps happening. Governments forget that the purpose of intellectual property law is to provide the best net value to the public, instead of thinking that it's just to help "industry," on the incorrect assumption that this must benefit the public in the long run. Han alerts us to the news that Singapore has now set up an "IP Steering Committee" to try to turn the city/state into an "intellectual property hub." The steering committee appears to have lots of industry representatives, and government officials who are in charge of representing the industry's interests -- but not a single person representing the interests of the public. That seems like a pretty major oversight, and more or less guarantees that what comes out of this will be abused by companies, rather than a useful and effective system for the benefit of the public.

Filed Under: intellectual property, singapore

Can A Company Be An 'Author' For The Purpose Of Copyright?

from the questions,-questions... dept

Paul Keating points us to an analysis of an interesting copyright ruling in Singapore last year, which said that companies can't be "authors" for the purpose of copyright. They can be owners of the copyright, but not the authors:

The Court of Appeal drew a distinction between authorship and ownership. It held that these were not synonymous in that authorship refers to the act of creation whereas ownership refers to the possession of proprietary rights. An author is not necessarily the owner and the owner is not necessarily the author. The Court of Appeal said, definitively, that for the purposes of the Copyright Act, authors had to be living persons. To hold otherwise would run counter to other sections of the Copyright Act, notably the duration of works. The Court held that companies could not claim a perpetual monopoly of copyright ownership based on an assertion of authorship.

The specific case involved horse-racing tables and a dispute between two different horse-racing magazines, with one accusing the other of copyright infringement. Oddly, both magazines seem to admit that the actual data originated from neither magazine, but from the same third party: the Singapore Turf Club. Still, there appears to have been some questions about the layout and design, which could be given some level of copyright protection -- but, apparently, only if it were created by "living humans."

While this specific case may not be all that interesting, it does raise some interesting questions in other areas. For example, there is a growing niche industry of "automated" books being created for sale on Amazon. Many of them take things like public data and compile them into an ebook for sale. There wouldn't be any copyright on such public data, but if something similar was done with some creative input from an automated system, it seems like a rather reasonable argument can (and should!) be made that those books are public domain. I guess it's the automated equivalent of the monkeys taking photographs, where it seemed clear that those, too, were in the public domain, because they weren't created by humans...

Filed Under: authors, automated creations, copyright, humans, public domain, singapore

Did Japan And Korea Just Make Life Really Difficult For Any Cloud Service Provider?

from the does-the-length-of-the-wire-matter? dept

For a while we followed the important Cablevision remote DVR case, in which the entertainment industry argued that Cableivision offering a hosted DVR service for its users was infringing on their copyrights, even though DVRs are legal. The entertainment industry strained its credulity by arguing that because the DVR device was on Cablevision's property, rather than in someone's house (even though they functioned nearly identically), it completely changed the rules. They said that Cablevision required separate content licenses to offer such a service. Effectively, they were arguing that the length between the DVR and the TV determines whether or not there's infringement. That, of course, is ridiculous (though even more ridiculous was when they compared a DVR to murder).

Thankfully, the Second Court agreed and put forth a pretty good, if slightly awkward, ruling, which pointed out that it didn't matter where the device was, that time shifting is legal, and this service really seemed no different than a DVR. The entertainment industry (of course) appealed, but the Supreme Court refused to hear the case, so the law stands in the 2nd Circuit -- though with such a high profile case, one hopes that other Circuits would tend to defer to this ruling (though, they certainly don't have to).

Separately, we covered a very similar case in Singapore, involving RecordTV, which had trouble at the lower courts, but eventually came to a similar ruling as the US. In that case, the court even noted that allowing remote DVRs seems to provide benefits to society.

However, courts in other areas of the world apparently aren't quite as enlightened. Wonil Chung, an IP lawyer in Korea, recently sent over his excellent review of a number of similar cases from Korea and Japan where the rulings eventually all went the other way. The cases there all have their own specific details, but the general point was that the courts seemed to feel that if the equipment is housed and "owned" by the service provider, then the actions are done by the service provider... even if the end user is the one clicking the button. Effectively, those courts are saying that the length of the cable matters. Chung's analysis is balanced, and he notes that this can be a tricky issue. I agree that it's a complex issue that requires thinking through a variety of issues, but in the end, I have no problem saying that I believe the Korean and Japanese rulings defy common sense, while the US and Singapore rulings make sense.

Where it gets really important is understanding the wider implications of these rulings. Based on the rulings in Korea and Japan, it just became a lot more expensive and risky to set up any cloud-based service in either country. That's because these rulings effectively say that liability is determined by the location of the equipment, rather than the location of the user. Cloud-based services have the equipment hosted far away from the user. But does that really mean that the service providers have now taken on the liability? In Korea and Japan apparently the answer is yes, and that should put a chill through anyone building cloud-based offerings in either country.

Filed Under: dvrs, japan, korea, liability, remote dvr, service providers, singapore
Companies: cablevision, recordtv

Singapore Appeals Court Says Internet DVR Is Legal

from the good-news dept

About a year ago, we wrote about a lawsuit in Singapore, questioning whether or not the operator of an online DVR, RecordTV, was violating copyrights by letting users record and access TV shows online. The service only worked on shows broadcast over the air, and only for users who could show that they had paid their TV license and were legally allowed to access the content in question. The case had many similarities to the famous case in the US concerning Cablevision's remote DVR, which was eventually declared legal, much to the chagrin of the entertainment industry. While the Singapore district court discussed the Cablevision ruling, it eventually ruled (partially) against RecordTV, though the judge really seemed conflicted, and seemed to suggest that the case clearly could have gone either way, since Singaporean copyright law didn't really speak to this situation. However, the appeals court has now reversed that ruling. The appeals court ruling is fascinating reading (full ruling after the jump), noting that the lower court appeared to have a "too technical reading" of the current copyright law -- specifically reading much more into what the word "communication" means, with a specific discussion about the old "making available" question. Nice to see courts recognizing that otherwise legal tools like DVRs shouldn't become illegal just because they're online.

Filed Under: dvr, remote dvr, singapore
Companies: recordtv

Indian School In Singapore Sues Parent Because Others Commented On His Blog

from the safe-harbors dept

I'm very happy that the US has very broad safe harbors for liability in the form of Section 230, though I still don't think such a law should be necessary. It should be common sense that you don't blame a third party for actions of someone else. And yet, even with Section 230 safe harbors, third parties get sued all the time in the US. And, it's even worse in other countries where there are no such protections, and some judges will put liability on a third party, creating horrible chilling effects. Over in Singapore, there's a lawsuit that could be worth following when it comes to the proper application of liability on blog comments. Reader Veri alerts us to the news that a school based in Singapore (though it runs schools around the globe) the Global Indian Foundation (GIF), sued a parent who keeps a blog about the school, not for anything that parent wrote, but what some others wrote in the comments, claiming that the comments are defamatory.

The guy who's being sued, Ajith K Narayanan, points out that he didn't write the words in question, that the terms of service on his blog make it clear that commenters are responsible for their own language and, finally, that there wasn't any defamation anyway because the comments are true. The latter two arguments are interesting, but it's the first one that's the important one. If Singapore properly applies liability to those actually responsible, the case should just get tossed out on that first issue, and the other two issues shouldn't matter at all. If the school really wants to go after the commenters for defamation, it should be required to show that there's a strong likelihood that the material was defamatory, and then request a subpoena for the commenters' information (at which point the blogger can decide whether or not to fight it). But simply suing the blogger and claiming he's liable for the possible defamation takes third party liability way too far, and hopefully the court in Singapore recognizes this.

It should be noted that there are some other oddities involved in this lawsuit as well, many of which are summarized at this Techgoss post. It appears that the school initially filed criminal charges, but those were quoshed by a judge earlier this year. Then there's the really bizarre back and forth from April, that began with a report in an Indian newspaper that police had arrested a former GIF employee, claiming that he had started the blog and that it was a "fake" blog to discredit GIF. That report claimed that Narayanan had revealed this ex-employee to be his co-blogger in an affidavit. Yet, in a post on the site, denies pretty much all of that. This seems like a bit of a sideshow, but it does make the whole case a bit more confusing...

Filed Under: blogs, comments, defamation, safe harbors, singapore
Companies: global indian foundation

The Same Day The NY Times Praised Google For Standing Up To China, The Times Paid Singapore's Leaders

from the parallels dept

Two big stories recently were Google's decision to effectively leave China and the NY Times' agreement to pay Singapore's leaders for daring to refer to the fact that a father and son pair had both been prime minister as a "dynasty." The Times' public editor is now comparing the two situations -- and while he notes that Singapore is an important market for many media publications, and from a business perspective, the decision makes sense, he seems to suggest that Google got this right, while the Times got it wrong:

Google faced a similar painful dilemma in China. With potentially billions of dollars at risk, it stuck to its principles, and The Times applauded editorially. I think Google set an example for everyone who believes in the free flow of information.

Filed Under: china, singapore
Companies: google, nytimes

NYTimes Has To Apologize, Pay $114k For Mentioning Singapore Had Father/Son Prime Ministers?

from the say-what-now? dept

The NY Times published an odd sort of "apology" last week, which is now getting a bunch of attention on Twitter:

In 1994, Philip Bowring, a contributor to the International Herald Tribune's op-ed page, agreed as part of an undertaking with the leaders of the government of Singapore that he would not say or imply that Prime Minister Lee Hsien Loong had attained his position through nepotism practiced by his father Lee Kuan Yew. In a February 15, 2010, article, Mr. Bowring nonetheless included these two men in a list of Asian political dynasties, which may have been understood by readers to infer that the younger Mr. Lee did not achieve his position through merit. We wish to state clearly that this inference was not intended. We apologize to Prime Minister Lee Hsien Loong, Minister Mentor Lee Kuan Yew and former Prime Minister Goh Chok Tong for any distress or embarrassment caused by any breach of the undertaking and the article.

There's so much that's bizarre in this short paragraph that it's difficult to know where to start. But, what may be even more bizarre is what the NY Time's apparently left out. According to other reports, the NY Times also paid $114,000 to the father and son (and to a lawyer representing both). Either way, this whole thing is very odd. Why would a reporter for a respectable publication ever agree not to give an opinion on something? And why would the NY Times' cave for merely stating that having a father and son both as prime minister's represents something of a dynasty?

Filed Under: apologies, singapore
Companies: nytimes