KEI Statement to WIPO GA on Advisory Committee on Enforcement

This was read today, September 30, 2011, at the WIPO GA

Agenda Item 33 (iii), the Advisory Committee on Enforcement

KEI notes that the ACE now operates in an environment where most important decisions on enforcement are taking place outside of WIPO. Tomorrow some countries will reportedly sign the ACTA, an agreement negotiated in secret in a pluralateral forum. The ACTA will change global norms for damages for infringement. One consequence will be a new barriers to access orphaned copyrighted works, since some proposals for orphan works that would limit damages, will not meet ACTA's aggressive and costly standards. The proposed Trans Pacific Partnership Agreement(TPPA) is negotiating, in secret, new norms for enforcement. WIPO should call upon the countries negotiating the TPPA to end the secrecy of the negotiations.

For copyright, the ACE might address the important issue of the tension between enforcement and privacy and civil rights, and the abuses of copyright enforcement to restrict free speech.

When the number of persons committing "crimes" of infringement is large, you have wonder about the reasonableness of the law and the performance of the markets.

In the United States, a US Supreme Court decision involving eBay put curbs on enforcement when the infringement of copyrights or patents are in the public interest, or more just than the enforcement of the rights. WIPO should take a look at this experience. Courts now allow Microsoft, Medtronic, Abbott Labs, Toyota and other firms to infringe, in return for modest royalties to right owners.

The ACE might also examine the relationship between pricing and infringement, and explore the ways that copyright laws could be changed to facilitate better business models for access to copyrighted works, and more affordable prices, so that we can move from unlawful access to lawful access of works, without sacrificing the goal of access. Services like Spotify, Netflix and Hulu have done more to reduce infringements than have technical protection measures.

For some countries, statutory rules for extended market licensing of works may be the most effective measure against infringement. That is, better lawful access is the best weapon against unlawful access.