Now US And EU Want To Apply Upward Ratchet To TRIPS Itself

Here on Techdirt we often talk about the copyright ratchet -- the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there's a group of countries where the copyright ratchet isn't in place yet. These are the so-called LDCs -- the Least Developed Countries -- where many of the world's poorest citizens live. That's because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies: 

On Techdirt.

Copyright Ratchet In Action Again: UK Introduces Yet Another Unjustified Extension

Until recently there has been an unchallenged assumption that the more copyright, the better. Although people have begun to realize that's not the case – and that extending copyright diminishes the public domain because we must all wait longer for works to enter it -- governments around the world continue to make copyright longer, stronger and broader. 

On Techdirt.

Copyright Ratchet, Copyright Racket

I can't believe this.

A few days ago I wrote about the extraordinary extra monopolies the German newspaper industry wanted - including an exemption from anti-cartel laws. I also noted:

And make no mistake: if Germany adopts this approach, there will be squeals from publishers around the world demanding "parity", just as there have been with the term of copyright. And so the ratchet will be turned once more.

And what do we find? Why, exactly the same proposals *already* in an FTC "Staff Discussion Draft" [.pdf], which is trying to come up with ways to solve the newspaper industry's "problem" without actually addressing the key issue, which is that people are accessing information online in new ways these days. The document looks at some of the proposed "solutions", which come from the industry, which wants - of course - more monopoly powers:

Internet search engines and online news aggregators often use content from news organizations without paying for that use. Some news organizations have argued that existing intellectual property (IP) law does not sufficiently protect their news stories from free riding by news aggregators. They have suggested that expanded IP rights for news stories would better enable news organizations to obtain revenue from aggregators and search engines.

And:

Advocates argue “the copyright act allows parasitic aggregators to ‘free ride’ on others’ substantial journalistic investments,” by protecting only expression and not the underlying facts, which are often gathered at great expense.

...

They suggest that federal hot news legislation could help address revenue problems facing newspapers by preventing this free-riding.

Moreover, like the German publishers, they also want a Get Out of Jail Free card as far as anti-trust is concerned:

Some in the news industry have suggested that an antitrust exemption is necessary to the survival of news organizations and point to the NPA as precedent for Congress to enact additional protections from the antitrust laws for newspapers. For example, one public comment recommended “the passage of a temporary antitrust exemption to permit media companies to collaborate in the public interest”

Got that? An anti-trust exemption that would allow newspaper to operate as a cartel *in the public interest*. George Orwell would have loved it.

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Microsoft: Gone in a Flash

I have commented here and elsewhere that the new category of ultra-light portables using flash memory represents a huge opportunity for GNU/Linux - and a potential bloody nose for Microsoft. It seems I'm not the only one to see it that way:

Microsoft announced plans today to expand support for Windows XP on budget flash-storage computing devices with an eye towards getting Windows XP running on the OLPC. The software giant will publish design guidelines next year that will make it possible for manufacturers of low-cost mobile devices to build hardware that provides optimal compatibility with Microsoft's legacy operating system. The company also announced plans for field trials next month that will put Windows XP to the test on One Laptop Per Child (OLPC) project's XO laptop.

This is interesting from two points of view.

First, it confirms that Windows Vista is a complete dog: it will be Windows XP, rather than Vista, that forms the basis for most desktop computing - which means less revenue for Microsoft, and trouble with its entire ratchet pricing model.

Secondly, it shows - contrary to all the usual whining - that GNU/Linux is innovating, and Microsoft is following. In fact, this is far from the only such case of open source being the leader - remember, the Internet is open at all levels - but it's nice that Microsoft is once again seen to be trotting behind the open pack with its tail between its legs.

The Joy of Ratchetlessness

Irrespective of the relative merits of free and proprietary software, there is one aspect where free software wins hands down. Proprietary software is based on the ratchet principle: once you start using it, you are eventually forced to move up through the upgrades; free software has no such compulsion. This ratchet is bad enough for people using legitimate copies of proprietary software, but for those using unlicensed versions, it's even worse:

"At first when Microsoft officers visited us, they convinced us on the importance of operating on genuine software which we didn't object to, but the manner they are doing it cannot let us sustain our businesses," he said.

His dilemma started when Microsoft sent him a letter stating that they would want him to legalise his operating system. However , he says that his business is operating on Windows 2000, but then Microsoft asked them to upgrade to Windows XP. "After testing the Windows XP, we found that it was not suitable for us but they insisted that we must go that way," he claimed.

He welcomed legalising software on Windows 2000, to which Microsoft says they did not want to license what they don't support.

So what did this chap do? Yup:

he embraced Open Source. "At first I was hesitant but with what am experiencing, I wish I had gone Open Source long time ago. It did not cost me anything. I closed for two days and installed all the machines with the Open Source software" he says.

In this respect, proprietary software is a victim of its own business model - it simply must get more money out of forced upgrades. Free software, of course, can offer upgrades for free or even - revolutionary thought - simply let people use old software, and find support from like-minded people online. (Via FSDaily.)

Steve Jobs as a Ratchet of Openness

Normally, I would hawk and spit at the mere mention of the iPhone, since it's not exactly an open platform. But here's a more measured analysis of what's going on:

This is, in other words, a one-way ratchet in the right direction. Every time a handset maker wrings increased openness out of one wireless carrier, and thereby produces a handset that's superior to what's already on the market, that device will set a new baseline for the capabilities a phone should have. And the other carriers will have little choice but to follow suit by allowing similar features on their own networks. It may take a long time, but de facto open networks will get here eventually.

Put this way, I suppose we can say that more generally Jobs has been a ratchet of openness - for example, there's no doubt that it was the iPod that paved the way for DRM-less music, even if, ironically, it has not itself eschewed DRM. Perhaps we need individuals like Jobs, who, though outside the open world, are important catalysts for change towards openness.

The End of the Copyright Ratchet/Racket?

Will this response from the UK Department for Culture, Media and Sport go down in history as the great turning point for copyright, when the constant extension ratchet was halted and eventually reversed?

Maybe I'm an incurably optimist, but I have to say I was pretty impressed by the generally sane tone of this document after years of industry-driven exaggeration about "piracy" and such-like. The best demonstration of this comes right at the end, where the earlier proposal by the House of Commons Culture Committee to extend the term of copyright in sound recordings is discussed. Here's what the report has to say:

The Government appreciates the work of the Committee and the deliberation it has given to this subject. As the Committee noted,the independent Gowers Review also considered this issue in detail and recommended that the European Commission retain a term of protection for sound recordings and performers of 50 years. The Review undertook a detailed analysis of all the arguments put forward,including the moral arguments regarding the treatment of performers. It concluded that an extension would not benefit the majority of performers,most of whom have contractual relationships requiring their royalties be paid back to the record label. It also concluded that an extension would have a negative impact on the balance of trade and that it would not increase incentives to create new works.Furthermore,it considered not just the impact on the music industry but on the economy as a whole,and concluded that an extension would lead to increased costs to industry,such as those who use music – whether to provide ambience in a shop or restaurant or for TV or radio broadcasting – and to consumers who would have to pay royalties for longer. In reaching such conclusions,the Review took account of the question of parity with other countries such as the US,and concluded that,although royalties were payable for longer there,the total amount was likely to be similar – or possibly less – as there were fewer revenue streams available under the US system.

This is doubly important, because it will have important knock-on effects beyond the UK. As Becky Hogge of the Open Rights Groups rightly points out:

This is significant, since the UK government is likely to have a disproportionately loud voice on this issue both because it is home to the most lucrative recording industry in Europe and because it has taken the time to review this issue in detail.

So we have the prospect of Europe following the UK's lead in halting the constant copyright extension. This, in its turn, will help to put a brake on such copyright extensions around the world, since there will no longer be the argument that "eveyone else is doing it, we must follow suit". Maybe it's too much to hope that in due course copyright terms will start to be reduced - but then, as I said, I'm an incurable optimist.

The Intellectual Monopoly Ratchet

One of the most frightening aspects of the intellectual monopoly game is the ratchet effect. A country typically increases intellectual monopoly protection to attain "parity" with another group, but overshoots in some areas. Other countries then ratchet up their intellectual monopolies to achieve "parity" - and overshoot.

Here's the ratchet in action:

If this Korea US FTA is passed, then the US will request other countries to include these things in the following FTA. So it needs to have international solidarity activities to stop this kind of US FTA.