Thoughts Following the 2009 Fordham Conference

The annual Fordham IP Conference was held at Cambridge, England this year on April 15 and 16, 2009.

The plenary, copyright and trade sessions were interesting, though not as balanced as we have seen in the past. Moreover, there were several prominent absences of those who were expected to participate this year or who have done so frequently in the past. These included Francis Gurry, the new DG of WIPO, Hon. Marybeth Peters, US Register of Copyrights and Prof. Bernt Hugenholtz.

Hugenholtz is a leading European academic and was a consultant to the EC though his Institute for Information Law. Despite his credentials, his authoritative report recommending against sound recording term extension has been summarily discarded in favour of lobbyists’ positions by the same EC that commissioned it. One can read about this sorry episode here in an important posting by the IPKAT, including the report in question and a very trenchant comment from the late Sir Hugh Laddie who opined on August 22, 2008 shortly before his death:

I think it is worth pointing out that this refusal of the Commission to pay proper regard to the result of thoughtful and independent research is more than a blow to academics. What the Commission has done undermines all of us who support the European Union. One of the functions of the Commission is that of proposing legislation which benefits citizens of the Union as a whole. In that respect it is or ought to be part of the democratic fabric of our society. Commissioning work like that carried out by the Institute for Information Law allows the Commission to look beyond the interests of lobby groups and to take into account interests which do not have the time, expertise, organisation or immediate and direct financial interest to put counter views - including the interests of the public at large. What the Commission has done in this case is little less than a denial of its own responsibilities. Perhaps its motto should be "He who pays wins".

(emphasis added)

Speaking of Sir Hugh Laddie, who died of cancer on November 28, 2008, his absence from this conference was palpable and painful. His contribution was irreplaceable. He never hesitated to speak truth to power and did so often at the Fordham conference. When he spoke, he could not be dismissed, not only because of his position but because he had earned his position. When Hugh was only 29, he won the landmark ruling from Lord Denning that gave the world the “Anton Piller order.” This has proven to be one of the most positive and potent weapons that IP owners have ever possessed in their eternal war against infringement. When he later as a treatise writer and a High Court Judge, former High Court Judge and academic said that IP rights were becoming excessive and counterproductive, everyone had to pay attention. The IP world generally and the Fordham conference in particular has lost its leading advocate for balance and reason. He was only 62.

Anyway, back to Fordham @ Cambridge 2009. On the copyright and trade panels, after hearing repeatedly from several of the same USTR, USPTO, EC, IFPI and MPA people, it seems clear that:

• Enforcement is a major priority of the US government (“USG”) and EU. They will press forward on ACTA.
• Multilateralism, policy making and norm setting in long established institutional fora such as WTO and WIPO are currently obsolete. The USA, EU and Japan are engaged in situational diplomacy. Bilateralism and plurilateralism in ad hoc alliances such as ACTA are seen by the USA, the EU and Japan as currently best serving their immediate interests.
• The USA is doing its best to spin its mixed victory over China at the WTO. Meanwhile, it continues to flout a longstanding and unambiguous WTO finding of contravention of the Berne Convention and TRIPs in the “Section 110" matter. It will be recalled that the USA has exempted countless businesses from a requirement to pay many millions in royalties to composers and authors for public performance, as is the case in virtually all other WTO/Berne countries. But somehow still, the USA continues to preach to other countries about “respect” for intellectual property and international obligations.
• Canada was gratuitously mentioned many times as a problem and is clearly being targeted by these usual suspects - but with no apparent evidentiary basis.
• ACTA will cover parallel imports, if the content owners and the USG have their way. When an influential American lobbyist says the potential effect of ACTA on parallel imports would be a “marginal” problem, then you can assume that parallel imports could indeed be a focus of the ACTA efforts. Other comments suggested that the USA would favour the application of ACTA to parallel imports precisely because it would enable international price discrimination.
• If if ACTA is intended to exclude a "de minimis" number of unauthorized copies for personal use on iPods, laptops, cell phones, etc., border officials would presumably be authorized to make inspections to deterime whether that threshold has been crossed. And one can be quite sure that the RIAA's idea of "de minimis" will be quite different from that of millions of internet users. The RIAA is going after Joel Tenenbaum for just seven songs, and was awarded $222,000 for 24 songs in the Jammie Thomas case (under appeal). The RIAA has sued in is strenuously litigaitng against Joe Tenenbaum for just seven songs.
• Intense pressure will be brought on Canada to empower “ex officio” powers for border measures that have previously and properly been entrusted to the judiciary. This is probably one of the main goals of the USG, and could lead to intense anti-competitive abuse, the potential for which has been recently seen with respect to legit generic AIDS drugs being tied up in transit through the Netherlands.
• “Three Strikes” is a huge priority for the content owners and the USG and the content industries and will be a part of ACTA, if they have their way - notwithstanding the rejection of “three strikes” in every Western democratic country that has considered it to date.
• Despite the earlier promise (or at least the expectation) of a WIPO treaty for the rights of the blind, WIPO Deputy Director Michael Keplinger (whose appointment will shortly expire) indicated that no such thing was in the works. At best, we could expect “soft law.” Whether such an explicit statement reflects the wishes of the new WIPO DG, Francis Gurry, is not known because Mr. Gurry was not present. Of course, the WIPO Secretariat cannot unilaterally decide to launch a treaty process - such a mandate must come from the WIPO General Assembly. But the Secretariat can be very influential in such matters. One would think that a copyright treaty for the rights of the blind is about as close as one could get to a useful, necessary and relatively non-controversial multilateral issue. If WIPO is really unable or unwilling to press forward on this issue, there are bound to be more questions about WIPO’s future role in international norm setting and treaty making. Certain countries may think that they don’t need WIPO in such a role today or even in future. However, things could change very quickly in international politics and economics - especially when - not if - the “BRIC” (Brazil, Russia, India and China) countries (which were not represented on the faculty of this year’s Fordham conference and have not been invited to the ACTA table) assert the power that is rapidly shifting in their direction. Hopefully, the forthcoming SCCR meeting in May will shed some light and accomplish something more than calling simply for another semi-annual SCCR meeting at some presumably pleasant time in Geneva.
• Canada will likely make it to the top level (or bottom, depending on one’s point of view and sense of humour) of this years’ “Special 301" report - expected momentarily.

On the domestic Canadian front, there was an interesting reference in a presentation by an Australian grad student that confirmed that the Canadian library community is still apparently largely oblivious to the potential implications of the CCH v. LSUC decision, and has given it a “markedly muted reception.” This is hardly news - but interesting to hear from down under. The really interesting question is why there is still so little awareness five years after the fact of the potentially liberating results of that the decision. It’s becoming more and more clear that many Canadian librarians and educational administrators are not being fully and/or independently advised of the real significance of this decision.

BTW, if anyone wishes to pay $1,595 for a one day program (which does include lunch) to attend what promises to be an enthusiastic presentation of American government and American content owners’ points of view voiced directly and through Canadian lobbyists on some of the above topics, the Conference Board of Canada is hosting just such an event on May 29, 2009 in Toronto. Here’s the program.

HK