Author: Margot Kaminski

The Shadow of a Treaty

[Reposted with permission from the Yale Journal on Regulation Notice and Comment blog. Link]  On December 15th, the Ninth Circuit heard en banc oral arguments in a contentious copyright case: Garcia v. Google. The core questions in the case are interesting enough: whether performer Cindy Lee Garcia can claim copyright protection for her five-second performance in the film Innocence of Muslims, and whether Google should consequently be enjoined from showing the movie. The case raises important questions about online speech, about creativity, and about the recourse available for people who allege harm stemming from online content. A number of professors, myself included, wrote and joined amicus briefs on Google’s behalf. For a great write-up of the en banc hearing, check out Cathy Gellis’s summary over on techdirt. But the surprise issue of the day was raised (unsurprisingly) by Judge Alex Kozinski. Judge Kozinski wrote the original panel opinion holding that Garcia should receive copyright protection, and he spent the en banc oral argument vigorously defending his stance. One avenue of defense Judge Kozinski chose was to reference the language of a recently negotiated treaty: the Beijing Treaty on Audiovisual Performances. Judge Kozinski referenced both the treaty itself, and a Fact Sheet on the treaty created by the PTO. (See the oral argument for J. Kozinski’s reference to the AVP Treaty at 23:30, and reference to the USPTO factsheet on...

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The Capture of International Intellectual Property Law Through the U.S. Trade Regime

Kaminski, Margot E., The Capture of International Intellectual Property Law through the U.S. Trade Regime. 87 S. Cal. L. Rev. 977 (2014).  Abstract: For years, the United States has included intellectual property (“IP”) law in its free trade agreements. This Article finds that the IP law in recent U.S. free trade agreements differs subtly but significantly from U.S. IP law. These differences are not the result of deliberate government choices, but of the capture of the U.S. trade regime. A growing number of voices has publicly criticized the lack of transparency and democratic accountability in the trade agreement negotiating process. But legal scholarship largely praises the “fast track” trade negotiating system. This Article reorients the debate over the trade negotiating process away from discussions of democratic accountability to focus instead on the problem of regulatory capture. The Office of the U.S. Trade Representative (“USTR”) is exempt from the Administrative Procedure Act and functionally exempt from the bulk of the Federal Advisory Committee Act. As a result, the USTR is likely to be captured by private parties through information asymmetry and to negotiate against the public good. Subject matter areas that are subject to collective action problems, such as intellectual property law, are particularly likely to be captured in the USTR. The institutional capture of the USTR has affected the substance of exported IP law. Negotiators are tasked with exporting U.S....

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The TPP and Copyright

[Cross posted from Concurring Opinions] This is my second post about the leaked draft of the Trans-Pacific Partnership Agreement.  Here, I address some of the copyright provisions. This is not an exhaustive analysis, and I’ve tried to make it complimentary to what’s already out there. For analysis of additional provisions, see KEI, Public Citizen, Ars Technica, and EFF. First, there are major splits between countries. The United States consistently takes the position of pushing for stronger IP, while others—especially Canada and New Zealand— advocate a more balanced approach.  The divisions are particularly prominent when it comes to preliminary statements about the public domain and public health, none of which the U.S. supports.  These analyses are on one subset of proposed language, not finalized language, and a lot of the agreement could change. I focus my analysis primarily on the U.S. proposed language. Second, the U.S. proposals look very similar to our past Free Trade Agreements, including the earlier texts of ACTA.  Whatever message was sent when the EU refused to ratify ACTA, the U.S. Trade Representative did not receive it.  Many of the provisions that appeared in ACTA are also areas of proposed reform in the United States—the U.S. proposed text for the TPP would internationally bind this country and prevent many proposed reforms to our copyright law. Third, and this is an important point: U.S. proposals are less...

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The U.S. Trade Representative’s (USTR’s) Democracy Problem

Abstract: This paper explores why the Office of the U.S. Trade Representative (USTR) seems so shocked by current demands for what seem like basic democratic elements of transparency and public involvement. I summarize the current state of the Anti-Counterfeiting Trade Agreement (ACTA) and what it contains. ACTA is part of a larger trend of international lawmaking in the United States, a shift from Article II treaties to executive agreements. ACTA is also part of a longstanding trend of coziness between industry groups and government representatives within IP policy-making. Trade negotiations made through the executive branch are particularly subject to industry capture, and that industry capture is particularly problematic when it is located in an agency of the government that does not envision itself as publicly accountable. ACTA occurred during what might become a turning point in U.S. international lawmaking: in the gap after the expiration of fast-track authority that caused the USTR to then justify negotiations under alleged ex ante authorization by Congress. The USTR negotiated ACTA on autopilot, assuming that it had, or soon would have, the authority to do so because this is the way things have worked in the past. I conclude by explaining why and how things at the USTR must change. The USTR needs to involve Congress in the process, and not just by claiming ex ante authorization. Second, the USTR needs to come...

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Enough, Already: The SOPA Debate Ignores How Much Copyright Protection We Already Have

In the past weeks, Americans have been realizing that the Stop Online Piracy Act (SOPA) might not have been the Great War, but a short battle in hostilities of grander proportions. This is not the first time copyright policy-making has lacked balance, lost its sense of proportion, or threatened civil liberties. It’s just the first time the Internet has won. Two things are missing from the current conversation. First, the recent debate all but ignores the broad arsenal of responses to copyright infringement already available to rights-holders, without SOPA. Second, the public has not been informed on how America’s free trade negotiations have been used to circumvent the democratic process, accomplishing much of what SOPA was meant to do. Click here for the full story on...

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