The Flip Side of Copyright Law

by Mike on June 3, 2015

in News

We all know that we can’t take government reports at face value because what they are really full of is what is not being said. So with regard to what is not found in the Special 301 Report, we turn to the EFF’s Special 404 Report. Below we have summarized some discrepancies that the Electronic Frontier Foundation has found in the US Special 301 Report.

The Special 301 Report

The 301 Report is compiled by the US Trade Representative (USTR) on the countries that it thinks display the worst failures to protect intellectual property. The EFF’s 404 Report is compiled from stories that make up for where the 301 Report fails to recognize or covers up significant examples of copyright fails. The Special 301 Report goes out of its way to point out and call for punishment to be brought down on the foreign governments that it thinks are not upholding laws that are actually quite drastic, very hazy, and sometimes simply impossible to follow. The report is basically there to support the interests of big money industries that the government wants to keep happy.

Sometimes the report may leave stories out because copyright law is used maliciously to keep people quiet about information that governments or their powerful friends want to keep under wraps. Sometimes it is because they don’t want people to realize that copyright law can be very damaging to the economies and innovative capabilities of countries in the digital age. So here now are some stories that the EFF believes can bring balance to the Special 301 Report to give us all a better picture of what’s happening in the blacklisted countries on the 301 Report as they relate to current digital copyright law.

The Special 404 Report

Canada has been on the USTR’s blacklist for decades as one of the countries that does not properly deal with online content piracy. The story of the Fournier couple, administrators of the Free Dominion online forum, sheds some light on what can be considered piracy. In 2010, the couple was sued for copyright violations because they posted some content relating to court hearings. One was a link to a National Post article, another was an image link from the server of the plaintiff in a case, and the third was a speech which was an exhibit in the same case. It took four years for the court to decide that this was not a copyright violation. Connie Fournier says that the case was filed against them to make them keep quiet about the issue. This is not the first and surely not the last time that the right of freedom of speech is being squelched by accusations of content piracy. The US doesn’t like Canada’s system because they can’t make websites take content down immediately using DMCA takedown notices. They instead have to wait for a court ruling, which in most cases like these will end up saying that the website administrators did nothing wrong.

Pakistan has been on the Priority Watch List of the US for a long time because they say that the country does not adequately monitor copyright infringement. The USTR believes that the Pakistani government should not need to wait for any complaint to be filed before law enforcement takes action. One Gomal University scholar, Muhammad Akram Khan, says that the restrictive copyright system is already causing students in Pakistan to be left behind because they cannot get access to new books and current research. The Internet is supposed to help people to get materials faster and easier because it breaks down the physical boundaries that used to hinder access. But because of copyright law, these vital academic materials remain out of reach, whether because of geoblocking or exorbitant fees, putting students at a grave disadvantage compared with their counterparts in other countries. The US does not like Pakistan’s fair dealing terms which allow students to make copies of available research materials to be used for study. Academic materials should not be kept from students, nor should these students be forced to seek illegal means because they cannot pay what license holders want to make it available in other countries.

Colombia is another country that has remained on the Priority Watch List. The USTR says that Colombia does not have copyright law that meets the standard needed to maintain its trade agreement with the US. Diego Gomez’s story shows us that the Colombian government is ready to jail a person for eight years for sharing a research paper. Gomez is a biodiversity and conservation researcher from a university in Costa Rica. He has always found it most challenging to find relevant research to help him in his work and Masteral studies. He was excited when he found a very helpful academic paper. But when he shared it on Scribd, the paper’s author complained and now Gomez is awaiting trial for the violation of this author’s economic and other rights. Eight years is a pretty harsh punishment for sharing academic research, and the harsher penalties that Gomez now faces are actually a direct result of the pressure put on Colombia by the US trade agreement. The laws and penalties are also outdated and so do not allow for the environment of the digital age. Moreover, Colombia does not have a fair use policy.

Chile has also been on the Priority Watch List several times as one of the countries that does not have adequate measures to deal with tools used for the circumvention of online restrictions and because their Internet service providers are not held liable for the use of these tools by their subscribers. What some Santiago record companies are doing helps us understand why the US is so upset with Chile. Sudamerican Records’ founder Diego Sepúlveda Porzio explains that record labels now often give thousands of copies of their music albums away for free because copyright law and distribution systems can be a huge hindrance to emerging artists. With free copies, these artists can get the exposure that they need. When access is restricted to streaming services and similar avenues, digital rights management policies and other restrictions make it difficult for consumers to hear new music and play with it. Many artists, says Porzio, want people to be able to remix their music as this is a natural process for music fans.

Russia is unsurprisingly also on the Priority Watch List, this time for software piracy. The US believes that the Russian government does not have proper laws or catch enough pirates. Human rights activist Anastasia Denisova says that criminal copyright law has been used against her to bully her into quitting. On one occasion in 2010, law enforcement agents raided her apartment, confiscated her computers, and wanted to make her pay about $15,000 and spend six years in jail for copyright infringement with intent to sell on a large scale. This does not sound at all like Russian copyright laws are ineffectual; rather, they are quite harsh when compared to other countries. The real problem is that they are often being used inappropriately, to silence outspoken media and activists.

The USTR condemns Romania for lax rules regarding counterfeiting and piracy online. The story of video editor Alex Lungu shows how content rights holders violate fair use policies to grab all the revenue they can get their hands on. Lungu creates parody videos, which have long been ruled as fair use. But in 2014, Warner Bros was being given the profits from a parody that Lungu had created using a scene from the movie The Matrix. YouTube automatically attributed the video to Warner Bros because it detected the movie scene, and when Lungu filed a counter copyright claim, Warner Bros fought back. Lungu filed again and won, but only because he knew his rights under the terms of fair use. A ton of profit from fair use videos is not going to their creators but is being claimed by big content factories. The US wants Romania to use a takedown notice system similar to theirs because this makes it easier for big companies to steal small video producers’ rightful profits.

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