CAFTA: Copyright lobbyists strike again

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by Declan McCullagh, CNet

Hollywood and large U.S. software companies chalked up another crucial yet little-noticed victory last week with the final approval of the Central American Free Trade Agreement.

You wouldn't know it from a political debate veering between labor standards in Nicaragua and the evils of protectionism, but one major section of CAFTA will export some of the more controversial sections of U.S. copyright law.

Once it takes effect, CAFTA will require Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras and Nicaragua to mirror the Digital Millennium Copyright Act's broad prohibition on bypassing copy-protection technology.

This prohibition, of course, has been problematic in the United States. Courts have interpreted it as barring news organizations from linking to DVD-descrambling utilities, and lawyers have invoked it to stifle discussion of security vulnerabilities and even prevent conference presentations from taking place. In an earlier column, I wrote how it prevented me from reading password-protected government documents.

Specifically, CAFTA calls for civil and criminal penalties to punish anyone who "circumvents" copy-protection technology or "provides" such tools to anyone else. Like the DMCA, that could cover everything from DeCSS (which removes copy-protection from DVDs) to products that do the same for e-books.

The Central American nations participating in CAFTA must also:

�Ģ Permit software patents

�Ģ Extend copyright protection to "70 years after the author's death"

�Ģ Ban the "manufacture" or "export" of any hardware or software that could decode encrypted satellite TV signals

�Ģ Offer "online public access to a reliable and accurate" WhoIs database of domain name registration details

It's true that these may be ideas beloved by the Bush administration and business lobbyists, but they have far more to do with special-interest lobbying than traditional notions of free trade.

In reality, they're simply the latest in a string of victories that copyright lobbyists have managed to accumulate in the last decade--under both Democratic and Republican presidents--through adept work at influencing the arcane process of treaty drafting.

Negotiating below the radar

"We push for that in trade agreements and treaties and bilateral" agreements, Robert Cresanti, vice president for public policy at the Business Software Alliance, told me last week. Members of his group include Adobe Systems, Cisco Systems, Dell, Hewlett-Packard, IBM, Intel and Microsoft.

That strategy has been remarkably successful. It began in the mid-1990s with a copyright treaty crafted under the umbrella of the World Intellectual Property Organization, a habitually copyright-friendly arm of the United Nations.

The WIPO treaty says that nations must provide "effective legal remedies against the circumvention" of copy-protection technologies. That spurred the United States down the path that led to enacting the DMCA in 1998.

But many sizable nations never signed the WIPO treaty: Canada, Russia, China, the United Kingdom, France, Germany, Australia and many others abstained (Click for PDF). And even some participating nations have been less than aggressive, with Japan concluding the treaty permits a less-regulatory approach.

That's why business lobbyists have been pressing to include far more precise rules in subsequent treaties. And the Bush and Clinton administrations have been happy to go along, effectively saying to poorer countries: If you want the United States to open its markets to your products, the price is adopting the most problematic sections of our copyright law.

The result? In the last two years, Australia, Chile, and Singapore have agreed to software patents and DMCA-like prohibitions on bypassing copyright protection.

Those "anti-circumvention" requirements have even popped up in a Council of Europe treaty ostensibly devoted to "cybercrime," which a U.S. Senate panel approved last week.

One reason for the copyright lobby's success is that bending ears and twisting arms at organizations like WIPO and the Council of Europe is expensive. Groups that advocate a more balanced approach to copyright just haven't been able to keep up.

Now that may be changing. "From the mid-90s up until the present day, industry groups have gone to international forums and sought greater IP protections so they could export them as treaties and bring them back home," said Mike Godwin, a lawyer at the Public Knowledge advocacy group.

"Taking a tip from them, civil society groups from the developing nations like Brazil and India have said we can do this too," Godwin said. So are their allies in the United States.

In other words, the easy days of slipping in a few paragraphs into a trade treaty may be over. That's probably a good thing: Free trade can easily take place without the copyright lobby's more far-reaching suggestions.

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