Ficsor attacks: WIPO treaty architect still fighting lost policy battle
CRIA lobbyist Barry Sookman's blog is home this week to a guest post from Mihály Ficsor, a well-known international copyright author who is the former Assistant Director General of WIPO. Ficsor is closely associated with the creation of the WIPO Internet treaties and today works with the International Intellectual Property Alliance, the leading U.S. copyright lobby representing the RIAA, MPAA, BSA, and other groups. Unlike Bruce Lehman, another leading creator of the WIPO Internet treaties who has acknowledged that they (along with the resulting DMCA) have been a policy failure, Ficsor remains determined to fight for his baby.
The post is filled with remarkable vitriol toward those arguing for balanced copyright, with Ficsor warning of "free access revolutionaries" and against Canada becoming "an isolated hostage and victim of demagogue campaigns organized in the hatred-driven style of Maoist Guards as during that other brilliant 'cultural revolution.'" Most reasonable readers will likely dismiss the post on that basis alone. For those willing to look beyond it, however, the key question is whether the WIPO Internet treaties requires a prohibition on the distribution and manufacture of circumvention devices. Ficsor argues that they do, stating:
The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities.
While it is true that the initial U.S. proposals (which led to the WIPO Committee proposed language) targeted circumvention devices, the negotiation history actually shows that there was not consensus support for this language.
The original draft submitted to the Diplomatic Conference in 1996 stated:
(1) Contracting Parties shall make unlawful the importation, manufacture or distribution of protection-defeating devices, or the offer or performance of any service having the same effect, by any person knowing or having reasonable grounds to know that the device or service will be used for, or in the course of, the exercise of rights provided under this Treaty that is not authorized by the rightholder or the law.
(2) Contracting Parties shall provide for appropriate and effective remedies against the unlawful acts referred to in paragraph (1).
This language - which Ficsor would have us believe is what was adopted in spirit if not in fact - did not achieve consensus support with many proposed changes. A compromise position was ultimately reached using the "to provide adequate legal protection and effective legal remedies" standard. Not only does this language not explicitly require a ban on the distribution or manufacture of circumvention devices, it is quite obvious that the intent of the negotiating parties was to provide flexiblity to avoid such an outcome.
U.S. law professor Pam Samuelson chronicles precisely what happened in her 1997 law review article, The U.S. Digital Agenda at the World Intellectual Property Organization:
At the diplomatic conference, there was little support for the Committee's proposed language on circumvention technologies. Some countries opposed inclusion of any anti-circumvention provision in the treaty. Others proposed a "sole purpose" or "sole intended purpose" standard for regulating circumvention technologies. Some wanted an explicit statement that carved out circumvention for fair use and public domain materials. The E.U. offered a proposal that would have required contracting parties to adopt adequate and effective legal measures to regulate devices and services intended for technology-defeating purposes.
Facing the prospect of little support for its proposal or the Committee's draft anti-circumvention provision, the U.S. delegation was in the uncomfortable position of trying to find a national delegation to introduce a compromise provision brokered by U.S. industry groups that would simply have required contracting parties to have adequate and effective legal protection against circumvention technologies and services. In the end, such a delegation was found, and the final treaty embodied this sort of provision as Article 11.
This was, of course, a far cry from the provision that the U.S. had initially promoted. Still, it was an accomplishment to get any provision in the final treaty on this issue. The inclusion of terms like "adequate" and "effective" protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.
The reality is that Ficsor lost the policy fight in 1996 to create an explicit ban on the distribution of circumvention devices. He has been fighting that fight ever since, arguing as he does in the blog post (and in his book) that a ban is necessary. In joining up with the RIAA, MPAA, and other copyright lobby groups, he has had some successess along the way. But no amount of name calling or bullying will alter the fact that Canada can be compliant with the WIPO Internet treaties without implementing the version of the treaty that Ficsor wanted but failed to get.
Michael Geist is a law professor and the Canada Research Chair in Internet and e-commerce law at the University of Ottawa.