Copyright “Harmonization” Hits Snags in Europe and Singapore
Copyright “Harmonization” Hits Snags in Europe and Singapore
Copyright “Harmonization” Hits Snags in Europe and Singapore

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    Can we ever get international consensus on what the proper scope of “intellectual property” should be? ACTA and the Special 301 process are an attempt to “harmonize” international IP law–to use American trade muscle to get other countries to adopt IP regimes similar to ours. But it can be difficult to agree on the scope of intellectual property rights, as a recent court decisions in Singapore and Britain, and the European Parliament's ACTA resolution, attest.

    Legal rights are backed up by the power of the state: a property “right” that is not enforced by the state is just a proposition about what the state should do. In my view, property rights have a practical purpose: They exist to promote social welfare, for example, by enabling trade for scarce physical resources. They are not ends in themselves.

    A lot of debate in the communications world centers around whether, or to what extent, it is a good idea to create property rights in an infinitely renewable and easily shared resource, like spectrum, or to use them as a bounty to encourage the creation of new, non-rivalrous goods, like music and inventions.

    There's not even universal agreement on the best way to define physical property rights: context and culture matters. Water rights in the dry western United States are treated totally differently than in the wet east; property inheritance laws vary widely between the U.K. and continental Europe.

    For the most part, these variations don't amount to much. Physical property is only subject to one regime at a time. But IP is different: a copyrighted “work,” as distinct from the physical copies that embed it, exists everywhere (and nowhere) at the same time. If one country has less strict IP policies, a country with stronger policies has to take some sort of action if it wants to keep its policies from being undermined. For example, the United States used to deny copyright to all foreign works–but unauthorized versions of British books could not then be re-imported into Britain.

    American and British copyright law eventually did “harmonize”–copyright reciprocity happened when American authors got tired of their books not receiving copyright protection in Britain. Voluntary harmonization between countries can be a fine thing–though we've long argued that fair use needs to be part of “harmonization,” to avoid tilting the law in favor of those who rely on exclusivity at the expense of those who rely on limitations and exceptions.

    In a bit of good news to those of us who want “harmonization” agreements to be negotiated in the open, and fair to all sectors of the economy, the European Parliament just voted 633 to 13 that the European ACTA delegation ought to stay confined to the “existing European IPR [intellectual property right] enforcement system against counterfeiting”–rejecting the efforts to impose new IP restrictions on Europe via a secretive, misleadingly named “agreement.”

    Even without that political setback, international harmonization is complicated by the fact that a lot of new situations and new theories of liability are popping up, and courts around the world are coming out different ways. Even among countries with a common legal heritage, copyright law is diverging.

    For instance, the man who ran the OiNK BitTorrent tracker was found not guilty of facilitating copyright infringement under British law, for operating a site hosted in the Netherlands that was used by people around the world, including Americans. (Great Britain is, of course, a party to ACTA.) He almost certainly would have been found liable under American or Dutch law.

    Singapore is another party to the ACTA negotiations, and the RecordTV case there came to PK's attention because its facts are similar to the facts of the Cablevision remote DVR case, where we filed an amicus brief. That case came out the right way: It doesn't matter where the hard drive is located; it's a fair use to record shows off of television.

    The Singapore court, however, came out the other way, finding that RecordTV, which offered a remote DVR-like service, violated copyright law. It's not as if Singaporean law compelled that result–the Copyright Act there is not too different from ours in its general contours, and the court even looked to the Cablevision decision and other American precedent. Like the US, the UK, and most English-speaking countries, Singapore has a common law legal system that shares many fundamental principles with our own. Like many situations in American copyright law, just reading the statute doesn't tell you the answer; some level of judgment is required to come up with a result.

    I'm not an expert on the laws of that country, but I think the court in Singapore got it wrong factually and logically. In its discussion of “single instance storage” versus “multiple copy mode,” it focused too much on the number of copies of a file on a computer system. Whether you've infringed copyright shouldn't hinge on how much hard drive space you're wasting. Anyway, modern file systems that use compression can make it so that that having “two” copies of a file in a file system just means you have two pointers to the same underlying data–this also happens with “hard links” between files. The law sometimes forces courts to make arbitrary technical distinctions, but the number of copies of a file on a computer system isn't relevant for a fair use or fair dealing analysis.

    Additionally, the court strained logic in attributing one aspect of the operation of the RecordTV system (telling it to record a program) to the home user, and another aspect (displaying that program to the home user) to RecordTV itself. But the RecordTV system is just a complicated DVR with an Internet-based remote control–it's not TiVo, Inc. that shows you the programs that you've recorded on your DVR. That's because, contrary to the court's gloss on Sony Music Int'l v. Easyinternetcafe, there's a difference between providing a tool (that has both lawful and unlawful uses) to someone, and directly assisting them in violating the law.

    If different the parties to ACTA can't agree on the liability of BitTorrent site operators, or on the legality of remote DVRs, a broadly-worded document like what we've seen in the ACTA leaks isn't likely to harmonize much.