Hi John,

What an interesting topic! Your rich country-poor country issue is the most compelling part of your essay. I therefore moved it up to the beginning of the essay in my rewrite.

My greatest concern is that your proposed solution does not get much discussion. Abandoning the Berne Convention would be a dramatic step. What would be the “political costs” you mention? What are the precise penalties for violating the Berne Convention? How should poor countries and private media distributors within them deal with the consequences they will face for the violation? Could violating the treaty make a bad situation worse? Is there a way for poor countries to extricate themselves from the treaty without consequences? For example, does it expire at some point, whereupon they could just decline to renew?

You also discuss briefly the problem of artists in poor countries who ought to benefit from their Berne rights but cannot afford to enforce them. However, your proposed solution does not seem to address the problems of these artists. Presumably they’d like to the see the Berne Convention remain in place, but with easier enforceability. This seems to open a large can of worms equal or greater in size to the creator / importer imbalance. You might to just leave out the entire issue for the purposes of this short essay.

I did not recognize the meaning of the word “slice” in your subheadings. My guess is that “slices” are like the “sticks” in the property rights bundle, but somehow related only to copyrightable material. I also don’t quite know what the “deeper-in-time approach” means. I can guess from the main text, but it’s not explicit anywhere. You might want either to define these terms or to trim them out.

I will paste my rewrite at the bottom of this page. Thank you for introducing me to this subject! I had not thought of copyright right law in terms of international social justice before.

Amanda

The Deeper-in-Time Approach to International Copyright

-- By JohnJeffcott - 16 Apr 2010

The First Slice

The alleged purpose of copyright law is easy enough to understand. I like using “alleged” when I’m in full sarcastic flow on some topic. But I think to put it in your very first sentence, before your reader is won over to the idea that copyright law is a racket for the rich, will not be successful. This is especially true given that copyright law probably did originate with the innocent purpose of protecting artists. The current situation favoring wealthy countries and corporations seems (to me, with my lack of knowledge on the topic) to be a recent development. My Property textbook puts it so: the idea behind copyrights “is to grant a limited monopoly over the protected material—a monopoly to promote creative activity.” Certainly, as a single-step approach, this logic makes sense for many copyrightable materials such as novels, the production of which might reasonably be expected to decline if authors could not profit monetarily from writing them. The effects of these limited monopolies do not cease after a single step, though, and this paper is concerned with exploring a step or two further into time, with special attention to international copyright.

Brief Background

International Adoption of Copyright Standards & the Berne Convention

The colonizing powers of history were also the forefathers of modern copyright law. “Forefathers” can be a distracting choice of word. You are criticizing colonialism, and colonialism is associated with paternalism. Paternalism is usually considered a bad thing. However, I can’t tell if you intend “forefathers” to be a “bad” word that is part of your criticism here, or if you are just using it to mean “originators.” If you want the term to be part of your criticism, I don’t think it has ugly enough connotations to be clear to your readers that that is what you mean. “Forefather” is old-fashioned and disfavored as being sexist, but people don’t read “bad” into it the way they might read into words like “plantation owner.” If you want “forefather” to mean “originator” with no other connotation, then it is distracting because it’s so rarely used anymore. I used a different word in the rewrite. As a consequence, many of the colonized countries of South America and Africa had the copyright law of their colonizers imposed upon them. This legacy has been perpetuated by the Berne Convention, an international agreement governing copyright with presently over 160 member countries. Though many countries initially held out, political pressure after the United States became a party to the convention in 1989 has led to over 75 new signatories in the past 20 years.

Minimum Protections

The Berne Convention sets certain minimum copyright protections that all member countries must recognize. Chief among these protections is national treatment protection, which provides that, within its own borders, Country 1 must protect copyrighted work originating in Country 2 just as it would protect its own citizens’ copyrighted work. A wide swathe of products must be copyrightable; minimum copyright durations are established; all copyright must be acquired automatically without need for application; and also interesting is the provision granting copyright owners control over translation of the copyrighted work into another language.

The Second Slice

One-way Traffic & Using Clout

The flow of copyrighted goods is generally unidirectional. Of all the Berne countries, only the U.S. is definitely a net exporter of copyrighted goods, though the U.K. may be as well (http://www.ic.gc.ca/eic/site/ippd-dppi.nsf/eng/ip01112.html). As I worked on this, I came to feel that including the detail about America being the only definite net exporter isn’t necessary to your argument. If you wanted to drill really deep and show that America in particular is getting a bonanza from the Berne Convention, this would be great. But you are just making a simple point: Copyright = good for rich countries. I changed this sentence in my rewrite accordingly. Because of national treatment provisions, which effectively globalize copyright protection for any given work, the owners of copyrighted products are dealing in the buying and selling of global monopolies, which, like their domestic equivalents have immense money-generating capabilities. It might be difficult to calculate the exact burden or benefit to specific countries, but one fact is evident: The largest copyright producers/exporters (whether in terms of countries or corporations) benefit most from this system.

On the other side of the coin, poorer countries must expend great amounts of money to license copyrighted goods such as textbooks from large countries and corporations. Hence, while perhaps promoting creative activity in the U.S., copyright is slowing the flow of information to places where it is needed. It is certainly more difficult to produce new ideas where old ones are hard to come by; as a corollary, new ideas are prevalent where old ones are abundant. Compounding this problem are provisions like the one granting power of translation to the copyright holder. Not only must an importer of American textbooks in Malawi pay for their initial costs, but if a translation is desirable to increase the utility of a particular book, that right must be licensed. I thought it would be better to use a country where the official language isn’t already English. In the rewrite, I used Cote d'Ivoire instead. Your use of Malawi as an example sort of jumped out at me, because I had this idea that formal education is conducted in English there. I’m pretty ignorant about Africa though, so If Malawi is the best example for your purposes, use it but just indicate why. The explanation could be as short as “if the book must be translated into Chewa before it can be useful…” The result is not only that copyright producers reap enormous financial rewards because of global enforceability, but also that the world (or at least Berne signatories) is pushed toward a static copyright economy in which producers and consumers maintain relatively the same position as time passes.

The good capitalist, seeing these economic results, will of course pressure smaller countries into adopting and enforcing stringent copyright laws. By “capitalist,” do you mean someone who ideologically prefers capitalism, or just someone who owns a lot of capital? Ascribing a pro-monopoly response to the first kind of capitalist seems unfair. People who argue for capitalism promote competition, not monopoly, as their ideal. It is true, however, that people who own a lot of capital – called “capitalists” when they’re not being called “tycoons,” “robber barons,” “Rupert Murdoch,” etc. – favor any monopoly that they themselves can own. I think you don’t have enough space here to say which you mean, and it’s not important to your argument, so I suggest taking it out. As an example, consider the U.S.-Chile Free Trade agreement, accepted on Chile’s side no doubt because of American economic clout and amicable historical relations, but supported by Americans seeking “to protect the rights of intellectual property holders in the United States against piracy in Chile” (10 Law & Bus. Rev. Am. 425). It is easy to imagine this process might repeat itself ad infinitum with the goal of maintaining the economic status quo. I think the Chile pact example does not add anything to your argument because doesn’t provide a more detailed narrative of how a relatively poor country ends up being pressured into signing one of these agreements. It’s also confusing that the agreement in question is not the Berne Convention. Did Chile somehow manage to evade the Berne Convention, only to be forced into a similar agreement with the US alone? I took out this example in the rewrite.

Practical Enforceability

Adding to the one-sidedness of these circumstances is the fact that many less affluent copyright holders, though afforded the same legal rights as copyright holders worldwide, lack the means necessary to actually enforce those rights, rendering them merely theoretical. While the RIAA has the time and power to pursue individual copyright violators apparently endlessly, the independent Malaysian writer and musician, unable to secure costly legal representation (especially for violations outside their native country), are powerless to stop the illegal reproduction and distribution of their work. How, then, are the national treatment protections afforded them of any use? You might want to name a particular artist here and explain that piracy really has harmed him. A lot of American readers will assume that there’s not much of a market for Malaysian songs outside Malaysia.

In a sense, then, the more globalized copyright law becomes, the more we ensure that users of copyrighted products everywhere must pay for that use, and because some have a greater ability to pay for this use, the system invariably plays favorites despite being equal on its face.

The Third Slice

If legal advisors were to take up this cause, they might advise that, like homeowners who should abandon their underwater mortgages, nations on the losing end of the Berne Convention should consider abandoning it. This is your radical proposal for solving the problem you describe. Radical proposals are great, but, to me, this one requires more discussion especially of the consequences of abandoning an international treaty....I think you should make this section into two paragraphs. The first one would give the examples of the early United States and of Iran in order to show that ignoring international copyright law is a possible solution. The second paragraph would be your conclusion to the entire paper: a recommendation that poor countries find ways to dodge international copyright law that harms them and while also enforcing international copyright law for their own artists. How about proposing a public-interest exemption for items such as textbooks, and that the RIAA start an international legal defense fund for frequently pirated poor artists?...The reason I propose this two paragraph division is that as it stands now, the paper ends abruptly on a relatively minor detail about Iran. It’s better to end with an overarching conclusion than with a detail. I tried to follow my own suggestions in the rewrite with the limited information I have....Also, I would delete the underwater mortgage comparison. There’s not enough space in the paper to explain the analogy. I’m also not sure that the analogy is correct. Walking away from a mortgage and ignoring international copyright law both contain the idea that disadvantaged people should not comply with legal obligations that harm them. However, walking away from a mortgage is merely a strategic default. The only consequence to the defaulter is that he loses the house. By contrast, breaking an international treaty will result in having to pay heavy damages and possible criminal penalties. In some cases, the political costs may be too high, but in others they would be outweighed by the ability to more freely distribute media. When the U.S. was still developing a couple hundred years ago, it chose not to recognize foreign copyrights, allowing it the power to copy and distribute British books it may not otherwise have been able to afford. Testament to this possibility, Iran still does not recognize foreign copyright in any official capacity, despite pressure to do so (especially if it becomes a member of the WTO) (http://en.wikipedia.org/wiki/Copyright_in_Iran) Can you find a different source? The IP Watch article the Wikipedia itself cites seems like a good place to start.

Rewrite

Today’s international copyright law harms people living in poorer countries. First, the law makes it difficult to gain access to copyrighted materials needed for education. Second, although creators in poor countries theoretically could use copyright law to protect their work, in practice they cannot afford the legal representation necessary to enforce their rights. Wealthy countries that benefit from copyright law have placed poor countries in this position by coercing them to join international agreements that perpetuate these problems. Poor countries should, in the interest of their own protection, explore the option of abandoning these agreements.

The Purpose of Copyright Law

The foundational purpose of copyright law is easy enough to understand: “to grant a limited monopoly over the protected material—a monopoly to promote creative activity.” (citation.) Certainly, as a single-step approach, this logic makes sense for many copyrightable materials such as novels, the production of which might decline if authors could not profit from writing them. However, the effects of copyright monopolies under today’s international laws do not cease after a single step.

The History of Copyright Law to the Present

Copyright law has historically favored not just individual artists, but also the small group of wealthy nations that first created it. The colonizing powers of history were also the originators of modern copyright law. As a consequence, many of the colonized countries of South America and Africa had the copyright law of their colonizers imposed upon them. Today, the old colonial powers and their media corporations are the largest producers and exporters of copyrighted material, the U.S. and the U.K. being at the top of the list. TK – I thought the bit about being a net exporter was not important to your argument. But in changing your sentence, I may have accidentally changed the facts. The website you cited to was not helpful to me, so I could not correct this myself. They take in millions every year from international licensing of their products. It would be persuasive to have a figure of some kind proving that large profits are made.

The advantages wealthy countries gain from copyright law have been perpetuated by the Berne Convention, an international agreement governing copyright with presently over 160 member countries. The Berne Convention globalizes copyright protections for any given work. All member countries must recognize “national treatment protection.” This protection provides that Country 1 must protect within its own borders copyrighted work originating in Country 2 just as it would protect its own citizens’ copyrighted work. A wide swath of products must be copyrightable; minimum copyright durations are established; all copyright is acquired automatically without need for application; and copyright owners control the translation of the copyrighted work into other languages. Owners of copyrighted products therefore hold global monopolies with immense profit making capabilities.

Though many countries initially held out against the Berne Convention, political pressure after the United States joined in 1989 has led to over 75 new signatories in the past 20 years. Today, poorer countries must expend great amounts of money to import copyrighted goods such as textbooks. Not only must an importer of American textbooks in Cote d'Ivoire pay for the initial license to print copies, but if the book must be translated before it can be useful in schools, then the importer must also buy the translation rights. Hence, while perhaps promoting creative activity in the U.S., copyright is slowing the flow of information to places where it is needed.

The Imbalance Between Wealthy Creators and Poor Importers

Global enforceability not only allows copyright producers to reap enormous financial rewards, it also pushes the world toward a static copyright economy in which producers and consumers maintain the same relative position as time passes. It is more difficult to produce new ideas where old ones are hard to come by; as a corollary, new ideas are prevalent where old ones are abundant. The more globalized copyright law becomes, the more we ensure that users of copyrighted products – such as schoolchildren – everywhere must pay for that use. Because some have less ability to pay for this use, the system invariably plays favorites despite being equal on its face.

Adding to the one-sidedness of these circumstances is the fact that many less affluent copyright holders, though afforded the same legal rights as copyright holders worldwide, lack the means necessary to actually enforce those rights. While the Recording Industry Association of America has the time and power to pursue individual copyright violators apparently endlessly, the independent Malaysian writer and musician, unable to secure costly legal representation (especially for violations outside his native country), is powerless to stop the illegal reproduction and distribution of his work. How, then, are the national treatment protections provided to him by the Berne Convention of any use?

A Possible Solution: Abandoning Some Parts of Copyright Law

If legal advisors were to take up this cause, they might advise that nations on the losing end of the Berne Convention should consider abandoning it. There is some precedent already for ignoring international copyright laws. When the U.S. was a developing nation in the late eighteenth and early nineteenth centuries, it chose not to recognize foreign copyrights. This practice gave entrepreneurs in the new nation the power to copy and distribute British books they might not otherwise have been able to afford to license. Today, Iran does not recognize foreign copyright in any official capacity. Iran is under pressure to change its policy, but so far it has survived. Discuss: what kind of pressure is Iran under? Is the country’s defiance sustainable, or is it going to end up signing the Berne Convention soon so that it can join the WTO? This is very important to your argument, since you are suggesting that current signatories to Berne should bow out.

Poorer countries should consider following the examples of Iran and the early United States. Discuss: how do they get out of the Berne Convention? For some countries, the political costs may be too high, but in others they would be outweighed by the ability to more freely distribute media.

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