New IP Treaty Looming?

An anonymous reader writes "According to an article by James Boyle in the Financial Times, the United States is helping push a Treaty that would create an entirely new type of intellectual property right in the US, in addition to copyright, covering anything that is broadcast or webcast. (Regardless of whether the work was in the public domain, Creative Commons Licensed etc, the broadcaster would control any copies made from the broadcast for 50 years.) Boyle argues that this is dumb, unconstitutional, and anyway should be debated domestically first."

Stupid

[neonprimetime]

What if only Fox or CBS has the footage of a particular public event? Do we let the broadcaster eviscerate the ideas of fair use, prohibiting other networks from showing fragments so as to comment on the events, or criticise the original coverage? The proposed treaty text allows for fair use-like exceptions but does not require them. Once again, we harmonise upward property rights for powerful commercial entities, but leave to individual states the discretion whether and how to frame of the equally crucial public interest exceptions to those rights. Increased property rights for broadcasters are required. The public interest in education, access, and free speech is optional. (Among other things, most of the recent drafts would outlaw home recording of TV and radio unless a special exception was put into the law, state by state.)

Well written article. This sounds like a poor idea ... that will more than likely pass simply because of the big company backing ... of course it would be almost impossible to enforce at the individual level ... nobody has the resources to check such things as recording tv or radio programs on your home pc, tape deck, etc.

Other links

[torunforever]

Since Boyle first wrote about this last September, I was wondering what others had to say about it. Here's a blog entry from Lawrence Lessig [lessig.org]. Not too much written there, but it led me to an EFF page [eff.org] and CPTech action page [cptech.org].

Re:Unconstitutional?

[stinerman]

Since the Constitution is the law of the land and no law is higher, any laws derived from a treaty that run counter to the Constitution are null and void.

Re:Our country...

[whoever57]

Your comment is very true. How much influence would wealthy companies and individuals have if a higher proportion of the people actually informed themselves and then voted?

There is a significant problem of lack of choice though, and on NPR this morning was an interesting comment that re-districting has meant many seats are safe Republican or safe Democrat seats -- which leads the holders to be far right or far left (sine the only competition is from people in the same party).

Already in Europe

[ewhac]

This sounds like an attempt to import into the US a goofy "right" that has existed in Europe for some time.

It seems that whoever is first to broadcast a copyrighted work is granted a right, independently of the copyright holder, to enjoin redistribution of that work. In other words, the broadcaster gets right of first refusal for any material they were ever first to broadcast.

It's not at all clear why they got this right in the first place (incentive to broadcast material they didn't produce themselves?), but today it's largely seen as highly anachronistic, and often described in derisive terms.

Schwab

Re:Not unconstitutional

[Kadin2048]

The most interesting part about the history of U.S. treaty law happened in the 1950s, and was called the Bricker Amendment [wikipedia.org]. Before you go click on that link, let me give you the bad news first: it didn't pass. It came rather close, but it didn't make 2/3rds majority. If it had, we wouldn't be having this discussion now, because Bricker would have limited treaty powers in such a way that they couldn't be used to override established Constitutional rights, including ones held by the States under the 10th Amendment.

In retrospect, the Old Right bloc may have gotten a few things right after all; unfortunately not quite enough people saw it that way at the time.

Re:Repackaged content deserves copyright?!

[techno-vampire]

You misunderstand the idea. Let's say some radio show broadcasts a dramatic reading of The Fall of the House of Usher,m by Edgar Allen Poe. That perfomance is covered by this, just as it's already covered by copyright. The story itself, however, remains in the public domain, just as it does now. Frankly, from what I can see, this is a tempest in a teapot, over a possible new treaty that doesn't change anything.

Re:Unconstitutional?

[Vancorps]

The constitution doesn't give us rights, its restricts what government can do. This is something that's been lost on most people for some reason. By default we're allowed to do whatever we want. The constiution merely says the government can do this to stop you because your freedom is interfering with the freedom of another citizen. That is the judge of whether something is constitutional or not.

Granted, I have not done an in-depth study of the constitution either, that was just how I was taught about it in school.

Of course, just because something isn't constitution doesn't mean it won't happen anyways.

Re:Here's the scam

[Kadin2048]

No, that's not accurate at all. Treaties entered into by the United States Congress on behalf of the United States have the full force of law behind them. In fact at various points in our history there has been contention as to whether they are above or below the Constitution in terms of weight (personally I find the assertion that any treaty can possibly come before the Constitution to be a both ridiculous and dangerous).

Here's the short, short version. The Constitution discusses treaties in its "supremacy clause [wikipedia.org],"

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding."

Now, this seems pretty clear to me that the order of precedence is Constitution->Laws->Treaties, but for some reason, others have disagreed.

The problems all got started in 1918 with Missouri v. Holland [wikipedia.org], where the Congress, seeking to regulate bird hunting (which it doesn't have a clear way in the Constitution to do -- this was before the courts expanded Interstate Commerce to include everything you could possibly imagine), entered into a treaty with the U.K. to regulate bird hunting. Basically, this eventually went up to the USSC, which declared that treaties entered into by the USA overpower States' rights under the 10th Amendment.

This, in time, started to make people rather nervous, since it meant that the executive and legislative branches of government could basically do anything they wanted, if they could enter into a treaty that required it. There were some unsuccessful attempts at revising the Constitution to prevent this, and make it clear that treaties weren't the supreme law of the land, but were rather limited by the Constitution itself: this was the failed Bricker Amendment [wikipedia.org]. I happen to think this would have been a very good idea, and it's a shame it didn't go through.

The establishment of the current situation came with Reid v. Covert [wikipedia.org], where the USSC overturned the conviction of a civilian military dependent by a court martial, saying that a treaty doesn't overpower the Constitution in capital cases. (Why they limited it to capital cases, I have no idea, and one of the justices basically asks this in the opinion.) But basically it was seen as a clarification that you can't have treaties that blatantly violate the Constitution. (It also has interesting bearing on the current situation vis a vis Gitmo detainees and the WoT, but that's another story.)

There may have been more cases since then, but that's as far as I've read them. Basically, treaties right now have some effect which is greater than conventional Federal laws (or at least not bound by the traditional powers of Congress, apparently), but less than the Constitution. So it would still be possible, were the Court so inclined, for them to strike down a very bad WIPO treaty on Constitutional grounds. Whether you think the USSC would actually do that, in its current state and incarnation...well, I'll leave that for another comment.

Re:Here's the scam

[Anonymous Coward]

Please also notice "and the Laws of the United States which shall be made in Pursuance thereof". This blanket statement covers every act passed by Congress + signed by the Executive. Under your reasoning, they'd be placed at a level equal to the Constitution, which they most certainly aren't. The Constitution is special. The laws and treaties made in Pursuance thereof are somewhat less special (though they may oft be treated with a strong presumption of constitutionality, having been passed by a co-equal branch of government), and are occasionally deemed to be unconstitutional.

Re:Unconstitutional? - Nope.

[McBainLives]

I actually am a constitutional scholar. I won't comment on whether the treaty is necessary or a good idea (actually I will: leges sine moribus vanae), but the "Supremacy Clause" of Article VI, Section 1, Clause 2 included treaties as part of the "supreme law of the land," with the understanding that they just can't conflict with the Constitution. And this propspective treaty wouldn't- Congress has authority to create copyright and patent legislation under Article I, Section 8, Clause 8.

Now granted, the Article I power belongs to Congress, and treaties are made by the President and only one house of the Congress, but the President's ability to make treaties (and thus the federal government's ability to make treaties, because only the executive branch has the power to make the agreement in the first place) would be meaningless if there wasn't some overlap with the broader legislative domain of the Congress. Think about it- the US is already a party to scads of treaties in the commerce and economic areas (which are traditionally in Congress' domain). Including treaties governing copyrights, trademarks, patents, etc.

Re:Unconstitutional?

[Moofie]

Treaties are legislation. The treaty acquires the force of law when ratified by Congress. No treaty trumps the Constitution.

Re:Unconstitutional?

[Chowderbags]

Read up on Reid v. Covert, a very important precident (probably more and more as we go forward) that says that all international treaties must respect the laws of the Constitution, preventing Congress from authorizing actions that it otherwise could not.