Of Social Contracts and Government Sell-outs - Free Trade Area of the Americas Treaty (updated)

Oritinally posted to David Ingram's CEN-TAPEDE in October 2003 - it is reprinted here as a lead in to what is happening with the ACTA (Anti-Counterfeiting Trade Agreement) treaty, currently being discussed by the G-8 and other countries. This subject is not going away - big business is lobying governments all over the world to get some sort of IP (intellectual property) filter established both at borders and by ISPs on internet traffic. We have been assured by various government representatives that the targets are the wholesale copiers of purses, shoes, watches, CDs, DVDs, and other hard goods are the intended targets of these treaties - but the wording is broad enough that the potential is there for it to affect any/all of us in our daily attempt to deal with technologies involved in listening to purchased electronic versions of music, books, videos, etc.

Update - July 29, 2008 - Wikileaks has released ACTA Negotiations paper

Canadian Bill C-61  (which I've written about previously) continues this attempt by big business - this time by injecting directly into Copyright law the concepts of Digital Rights Management and Technical Protection Measures - and their enshrined protection such that breaking them to copy otherwise legitimately purchased content can result in a $20,000 fine - just for moving your song from your iPod to your other MP3 player!

This article was inspired by the Intellectual Property section of the proposed Treaty.

In my readings recently there has been quite a bit about the fight between "rights holders" and their potential customers, including "the general public." The problem is the "disruptive technologies" used today to store, transmit and reproduce creative works such as text, music, photos, etc.

The market for "copies" has changed very quickly. The business that made its money by the fact that it controlled a copying facility (first a record pressing plant and now a CD duplication center) and distribution facility (wholesale CD distribution and/or retail outlets) now finds that the distribution facility is being bypassed (by the Internet) and the copying facility is included on virtually every PC sold today and is no longer unique.

What in fact has happened from an economic standpoint is that the public knows from firsthand experience the cost of production of a copy of a CD so they are "pushing back" at the publisher's prices by going around the old system and using the new one; they're making "private copies" in the terms of the Canadian Copyright Act. In other times the result would be a lowering of prices and a concentration on the benefits of purchasing a "real" copy (the liner notes, production quality, longevity of the pressed CD vs. the recorded one, etc.) At least some of this is happening - the prices for many records in large stores have come down by 30%+ recently.

Unfortunately for the general public and the cause of all the hoopla is that today the publishers have another potential way of enforcing their monopoly on copying and distribution - Digital Rights Management (DRM). The question is, will the use of DRM be a good thing or a bad thing in the long run? Of course the answer will depend upon whether you are a creator, a publisher, or a member of the general public.

When a rich sector of the business world is threatened with major problems, the first thing they seem to do is ask the governments of the day to help them stem the tide and keep them from "putting many people out of work", etc. The Digital Millennium Copyright Act in the US, its brethren in the European Union and now the FTAA are the result of intense lobbying by businesses that have been or think they will be affected by "private copying". So in fact are the changes to the Canadian Copyright Act instituting the Blank Media Levy.

King Canute couldn't turn back the tide and governments should understand that they can't either - and that in fact it is not in the best interests of the governed (i.e., us, the people who elect them) for them to try either. Unfortunately that doesn't stop them from trying. The balance seems to be swinging (back) towards the publishers - with the potential that a P2P (peer to peer) music copier might be put in jail despite the fact that the Canadian law in fact makes the creation of the copy legal and compensated for by the Blank Media Levy. The P2P sender (the person who puts their music into a shared folder for others to copy) is not specifically exempted from prosecution by the current Copyright Act but a case can be made that such sharing is the same as lending a copy; it just happens far faster than dealing with a physical copy. The point is that the FTAA would trump the Canadian law and make both lender and copier liable.

Somewhere we are missing the fact that there is a both an economic solution and a social impact that governments of the past have resolved.

The economic solution is already happening. Musicians are starting to self-publish (those who are not locked into long-term and onerous contracts with big publishers) and publishers are lowering the retail price of their wares. The musicians who are self-publishing are finding that there is a market for quantities of everything they play! This in contrast to the limited amount that the traditional publishers dribbled to the market to keep the prices up.

It appears that the music public will in fact purchase - at a fair price, and the creators can in fact make a living. Given these facts, there is no reason for government to step into the equation any more than it already has - by the fact that the Copyright Act exists.