22 November 2009

The Copyright Ratchet Racket Explained

I and many others have noted how changes in copyright law only ever work in one direction: to *increase* copyright's term and to give greater powers to copyright holders. In effect, it's a ratchet. But until now, I've not seen a good explanation of what's driving all this (although I had a pretty good idea). The motor behind the ratchet (assuming such mixed metaphors are permitted) is harmonisation:

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.


From a linguistic perspective, harmonization suggests a voluntary coordination that the parties to an agreement will be held to the same, core standards and will be working under the same rules. Ideally, each country’s intellectual property laws should have similar weight and effect where harmonization occurs.

But in reality, harmonization of intellectual property laws is different. The term has become a euphemism for the global, one-sided spread of United States’ intellectual property laws. One could argue that under the guise of harmonization, intellectual property law has become America’s chief 21st century export. In the harmonization model, U.S. intellectual property law effectively becomes the world’s de facto intellectual property law, effectively overriding the voluntary coordination principle that should be inherent through the Berne Convention.

This is a fantastic post, with useful links, that fleshes out the following basic argument:

The dismissal of voluntary coordination occurs because the U.S. leverages its economic power to force other countries to adopt U.S. copyright law in lieu of their own if the U.S. thinks the foreign country’s laws are insufficient to protect American intellectual property. It is a “carrot and stick” approach: If a foreign country wants to do business with the U.S. (or get U.S. support to enter into the World Trade Organization), it must adopt U.S. copyright standards and codify them into their statutes.

For most foreign countries, this quid pro quo has become the price of doing business with the U.S. On the other hand, it is unusual that the U.S. would agree to agree to another country’s intellectual property regimen: It doesn’t have to. Therefore, harmonization really is doublespeak for a worldwide adoption of the American intellectual property standard.

Indispensable reading for anyone who cares about the global copyright racket - and that should mean anyone who is online, since the tricks used to bolster copyright around the world will have a profound effect on ordinary users there, as the current UK Digital Economy bill makes all-too plain.

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Roger Lancefield said...

So effectively this is legal imperialism.

It's hard not to draw parallels with another manifestation of US legal imperialism, the extradition treaty which has destroyed Gary McKinnon's life.

Glyn Moody said...

@Roger: yup - interesting analysis, no?

Roger Lancefield said...

Yes, it's very interesting indeed. I have to say, the process described here I feel is plainly discernable at "the macro level" even to casual observers and I think I some time ago internalised (as assumptions) many of the claims here. But that's the key thing of course, turning feelings, assumptions and impressions into coherent arguments supported by facts, and that's what the article does.

Another great find Glynn. Hope it gets the exposure it deserves.

Roger Lancefield said...

Oh by the way, I meant to add that noting that this process explains the "ratchet effect" was a very useful observation!

Glyn Moody said...

@Roger: thanks

Anonymous said...

The consequence of harmonization is one-directional: more will always rewarded. In an indirect and perhaps unforeseen way, this is also a way for corporate law to persistently supercede national sovereignty. The result is the slippery slope of paying (per view) for content online, if not paying a corporate entity for access to content.

zotz said...

I think it is worse. US can get wanted changes adopted overseas first and then "have" to adopt at home for harmonization.