Copyright Week: Why Hollywood And The USTR Hate Transparency

from the the-public-needs-to-have-a-say dept

Two years ago, then US Trade Representative Ron Kirk told Reuters, effectively, that he would not release the negotiating texts of the Trans Pacific Partnership (TPP) agreement, because if the public knew what was in TPP, it would not allow the agreement to be approved. His reference was to a previous attempt at a trade agreement, the Free Trade Area of the Americas, which failed after negotiators released some draft texts. Kirk and the entire USTR seem to have taken exactly the wrong lesson from this. Rather than recognizing that the way to pass comprehensive trade agreements is to actually be more open and involve the public from the very beginning, so that there's more widespread agreement and support for what the USTR is doing, they've gone in the other direction. Believing that keeping the negotiating position of the US a total and complete secret is the way forward. As Senator Elizabeth Warren wrote to the current USTR, Michael Froman, last summer:

I have heard the argument that transparency would undermine the Administration's policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States. I believe in transparency and democracy and I think the U.S. Trade Representative (USTR) should too.

The EFF and a bunch of other organizations have designated this week as Copyright Week -- a chance for the public to weigh in and discuss copyright law and where it needs to go. They've put together a series of principles, that are worth reading. Each day will discuss different topics related to copyright law, specifically focusing on the aspects that are important to the public -- and which seem to be ignored (or pushed to the side) by copyright maximalists.

Today's principle is "transparency" -- something that has been sorely lacking in copyright law for quite some time. As you know, the history of copyright law is that it's supposed to be about using limited monopolies to encourage the dissemination of knowledge for the purpose of scientific advancement and learning. Yet, from the very beginning, it's been used for other purposes: initially for censorship and control, usually by gatekeepers, who are attempting to limit and control content production and dissemination for the sake of keeping the costs artificially high, allowing them to take the majority of the profits, often leaving the actual creators with little -- and the public with extreme limits on how they can communicate.

In recent decades, this has gotten much more extreme, as those gatekeepers have hijacked the legislative process multiple times with a very clever, but ultimately bogus "story," in which they pretend that they are representing content creators, even as they work hard to screw over those artists. Maximalist lobbyists have taken an incredible approach to ratcheting up copyright laws around the globe, hitting on dozens of different ways to continually push through changes without public input or opinion.

One recent example: in 1995, President Clinton's "commissioner of patents and trademarks," Bruce Lehman, released a white paper that pushed for the draconian copyright provisions of the DMCA, including takedowns and anti-circumvention provisions. In the light of day -- where at least some people were watching what Congress was doing -- no such laws could be passed. However, Lehman was so tied to Hollywood's interests, that he's actually happy to admit that when Congress wouldn't pass such a law he did "an end-run around Congress" by running to WIPO (where the public was not watching), and getting a "treaty" passed, which basically required the DMCA.

Treaty in hand, maximalists ran back to Congress, screaming about how we had to pass the DMCA or violate our "international obligations." And, it worked. While large ISPs were (thankfully) able to make enough noise to include the one good part of the DMCA -- the safe harbor provisions for service providers -- the rest of the terrible DMCA came into law entirely because of this sneaky process used by Lehman and other maximalists to hide away from where the public was looking, and push through some agreement. This has been the ongoing plan for quite some time. Maximalists will push through bad legislation wherever possible, and then use international treaties and trade agreements to try to take the worst laws they were able to get in one place, and "harmonize" them, to make them required everywhere.

And it's been quite effective. Using international agreements, negotiated in secret, to then tie the hands of legislatures has been used countless times to expand copyright law around the globe over the last couple decades.

But in the last couple years, something changed. It started with SOPA. A deal that was entirely negotiated in the backrooms by copyright maximalists and their friends in Congress failed completely when the public realized what was going on. Soon after that, ACTA, yet another "international agreement" that pushed for "harmonizing" maximalist rules, and which was negotiated entirely in secret, flopped in Europe after the public was exposed to it. And yet, the maximalist lobbyists and their friends at the USTR (who, surprise surprise, are often the same people), continue to believe that they can use this strategy going forward. Negotiate in secret, refuse to be open to the public, and then tie Congress' hands.

That's what's happening now with the TPP and the TTIP/TAFTA agreements. The USTR has absolutely refused anything resembling transparency -- while insultingly insisting that they're being incredibly transparent, because they'll "consult" with anyone. But, as we've explained countless times, listening is not transparency. Transparency is about providing information back, sharing what's being negotiated in our name, and then not supporting Congress limiting itself from actually discussing what's in the document.

The USTR and Hollywood have a playbook from the last couple of decades to continually ratchet up copyright law, and limit any attempt to roll back its excesses. And it starts with a complete lack of transparency. It has to. Because, as we saw with SOPA and ACTA, when you actually let the public see what's being pushed for in our name, they fight back, and they say "we do not want this." And, as Senator Warren pointed out, if the American people do not want it, then it should not be the policy of the United States.

A lack of transparency in copyright policy serves only the desires of the maximalist to control speech, to limit innovation and to harm creators and the public (who are often one and the same). It's an undemocratic attempt to aid a group of greedy gatekeepers, whose interests are antithetical to the intent and purpose of copyright law. That the USTR has been willing to support this effort, and works hand in hand with Hollywood to make sure there is no transparency at all is the true travesty in all of this, and should raise significant questions about whom the USTR really works for. Is it the American public or is it Hollywood?

Filed Under: acta, bruce lehman, copyright, copyright week, dmca, international agreements, lobbyists, maximalists, sopa, tafta, tpp, transparency, ttip, ustr

Lawmakers Propose Resale Right For US Artwork To Harm Young Artist & Help Already Successful Ones

from the droit-de-suite-should-be-dumped-tout-de-suite dept

Over the summer, we wrote about a ridiculous new lobbying effort, led by the author of the DMCA, Bruce Lehman, to create an artist resale right in the US. We've discussed similar plans found elsewhere, and there's no way to describe them other than as a ridiculously bad idea. It's basically an attempt to have artists get paid multiple times for the same piece of work, without anyone planning these things by talking to an economist about how badly that will backfire. Either way, it looks like the lobbying effort has succeeded so far, as Rep. Jerrold Nadler and Senator Herb Kohl, have introduced bills to create such a right across the US in both the House and the Senate.

Basically, the idea is that after an artist sells a work, if the work is later resold, the artist gets a piece of the proceeds. The economically clueless thinking behind this is that artists sell works off when they're unknown and starving for little money... but then when they become famous, it seems only "fair" that the artist should get a cut of the multi-million dollar sale of their artwork. Except that ignores common sense and reality (is it any wonder that it was easy to find two politicians to support such a plan?). First of all, artist resale rights harm artists. That's because it now makes it more expensive for anyone to invest in art, knowing that they get less on every resale, because some has to go back to the artist. Any time you make it more expensive for people to invest in young artists, you harm those artists.

More importantly, this only helps already super successful artists, because they're the only ones who make money off of this. The Nadler and Kohl bills only apply to sales of artwork over $10,000. If an artist has works that are selling for that much they're already super successful and can make a lot more money by simply making new art and selling it themselves. In other words, once you've reached the stage where your old art is selling for $10,000, you shouldn't be relying on an artist resale right anyway. You should be making new art and selling it for a lot of money directly and cashing in.

So, to recap: this kind of right harms new artists by making it more expensive for anyone to invest in their art, and it only helps super successful artists who can already make a ton of money from their art. It seems like the exact and total opposite of what would be smart policy on a copyright issue.

What's amazing is that these bills keep popping up. The UK and Australia recently passed these laws, and California already has one -- though it's widely ignored. You would think that politicians would be concerned about introducing legislation that hurts young up-and-coming artists and only helps the superstar artists, but apparently that wasn't a concern for these particular politicians or for Bruce Lehman, who was lobbying on behalf of... the Artists Rights Society, whose main goal here is to be the middleman to collect these fees (not exactly an altruistic position).

Filed Under: artwork, bruce lehman, droit de suite, herb kohl, jerrold nadler, resale right, us

Artists In The US Want To Get Paid Multiple Times For A Single Work

from the not-this-again dept

Another day, another plan to try to expand "intellectual property rights" into ridiculous arenas. We had thought that the idea of resales rights for artists was a complete non-starter in the US. Resales rights are a ridiculous concept, which effectively destroys the right of first sale and that harms artists but it is often pitched as being for the benefit of artists. The idea is that if you buy the work of an artist, and then later resell it, the artist gets a cut. Every time you resell the work... the artist gets a cut. The simplified and economically clueless rationale for this is that artists often sell their works cheaply when they're unknown, and then it's the collectors down the road who reap the benefits when that artist becomes famous.

This may sound appealing, but it leaves out the much bigger picture. First, this punishes those who invest in young artists by making it more expensive and more difficult to ever resell their artwork. This also means that people will buy less artwork as an investment, because you've automatically cut out a significant chunk of any profit. Limiting the market for a new artist is not a way to help that artist. As for the story of the "poor artist" who gets cut out of the appreciation of his own work... that's also hogwash. Sure they may sell early pieces for less, but the fame does not preclude them from making new works, and charging appropriately for them based on their fame (some of which may have come about because of the risk that early buyers/supporters/patrons took).

Can you imagine if this expanded to other areas? What if you had to pay back the furniture builder when you sold your old sofa? Or the home developer when you sold your house (oops, someone's trying that, too).

The whole thing is a bizarre and counterproductive concept. In past years, we've seen both the UK and Australia look to set up resale rights. Australia eventually put in place a watered down version, which isn't quite as bad, but still has problems.

Anyway, after not hearing a peep about such an idea in the US in years... it appears that there's a new lobbying campaign for a resale right in the US. Of course, it's being pushed for by the Artists Rights' Society, the main copyright licensing agency for artists in the US. Realizing that art galleries have freaked out about this in the past, ARS is trying to get this approved by exempting art galleries from this, not realizing how much worse that actually makes this for artists and for individual patrons of the arts. Now galleries have a favored position regarding terms and individual patrons have to pay an extra tax.

It appears that ARS has hired Bruce Lehman to be the main lobbyist on this issue. Does that name ring a bell? Lehman is the guy who constructed the DMCA. A few years back, Lehman admitted that the DMCA had been a disaster and said that we'd be better off entering a "post-copyright era." Of course, he didn't take the blame himself, but rather blamed the recording industry execs for failing to get digital. He also seemed to think that the DMCA's overreach was a huge surprise, despite the fact that many, many critics brought it up at the time Lehman was pushing it -- and Lehman's response at the time was to threaten to "rip [the] throat out" of James Boyle, who had warned of problems of the DMCA. Lehman also sought to get Boyle denied tenure at the university he was teaching at for pointing out why the DMCA was a bad idea.

Given that history, I'm at a loss as to why he should be trusted when it comes to any form of new copyright-related policy.

Filed Under: artists, bruce lehman, copyright, resale right