Secondary Liability to be Discussed at WIPO?
Secondary Liability to be Discussed at WIPO?
Secondary Liability to be Discussed at WIPO?

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    This post wends its way to you from Geneva, where I'm attending the 16th session of WIPO's Standing Committee on Copyright and Related Rights. On the agenda for this session are the broadcast treaty, as well as a discussion on limitations and exceptions. This latter topic would be a welcome addition to WIPO's agenda, since all too often the focus of the Committee, and the organization at large, has been on extending the rights and control of copyright holders, without a balancing consideration of how users will continue to access, enjoy, speak with, and remix copyrighted works.

    However, the news is not all good—late last week, rumors circulated that the delegation from the United States planned to add a discussion of secondary liability to the agenda. This is troubling, given WIPO's track record of extending liabilities, and because of documents from earlier SCCR sessions that tend towards making ISPs liable for infringement on their networks, requiring ISPs to monitor for infringement, or, in some proposals, for any violations (like defamation or obscenity) that take place on their networks.

    Another component to the rumor is that the discussion on expanding secondary liabilities would be put in place to “give something to the copyright holders,” since limitations and exceptions were already on the agenda. The idea that there needs to be a quid pro quo in this process is strange, since ideally the purpose of WIPO would be to generate good international IP policy with respect to everyone. Establishing clear boundaries on copyrights would benefit everyone, saving needless litigation and creating less confusion when works and their uses cross national borders. Furthermore, even a cynic who views limitations and exceptions only as a minus for copyright holders could hardly complain that WIPO has ignored rightsholders' interests in recent years, if not throughout its existence.

    And yet another disturbing aspect of these rumors is that it would be the US delegation introducing the topic—leading the way to creating international standards that countries would be required to abide by—without first discussing what that would entail for changing national laws. If WIPO began to move forward on such a treaty, the current balance of secondary liability in the US—currently established by case law and legislation passed by Congress—would be upset. And if such a treaty went through, Congress would then be responsible for passing new laws to account for it.

    Which is why it's troubling that, when this rumor was mentioned to staff of the Senate Judiciary Committee, the proposal was news to them. The body that would be responsible for approving any treaty the US had agreed to sign, and the body that would be responsible for changing any laws that might be changed as a result of the process here in Geneva, should probably be a part of any proposals that would change US law.

    There's a process called “policy laundering,” in which special interests unable to move their issues domestically move to another forum, like an intergovernmental organization, and then push policies there, like getting provisions into a treaty that their home country will then have to abide by. Ensuring an open process of communication between the different branches of government can help prevent this.

    Hopefully, the rumors of a US-backed discussion of a secondary liability agreement here are unfounded, and the many active and intricate issues surrounding ISPs and copyright can be discussed more fully and openly before people try to move a particular agenda at WIPO.