Ding Dong Doha is (Almost) Dead

Newspapers this morning are reporting on WTO's inability to reach a (self-imposed) deadline of April 30th to reach agreement on the latest round of GATT talks, the Doha Round. The Doha round is not dead yet, but the divisions between the U.S and Europe, among other rifts (like North/South), are sharp. In terms of IP, much more emphasis has been placed on patents than copyrights, especially pharmaceutical patents in the healthcare industry. In 2004, the WTO published a book of essays edited by the other Michael Moore, called Doha and Beyond: The Future of the Multilateral Trading System. I am increasingly alarmed by how copyright laws are made. Domestically, one can complain that since 1995 copyright legislation has almost entirely been written "off the Hill," although I commend Chairman Lamar Smith for his more active approach. As bad as things were in the aftermath of 1995, at least those disagreeing had the possibility of persuading their elected officials to step in. Since 1996, however, in the WTO copyright treaties, a dangerous route has been taken of having what will become domestic legislation negotiated in the context of a treaty. Congress is then presented with a fait accompli. Those involved in such international efforts are a very small group and in no way represent the public interest. The negotiating is done in private and may be over before one hears about the latest proposal. Those outside the group and objecting are left with the impossible task of attempting to get the same Administration that negotiated the deal not to ratify the treaty or to attempt to get Congress not to pass implementing legislation. It should not be forgotten that the DMCA anti-circumvention and rights management provisions first surfaced in the Clinton Administration's Information Superhighway White Paper that was DOA before Congress. The recommendations were then shipped by the same Executive Branch over the big pond where they ultimately came to rest in the WTO treaties. When Congress does get involved early it can help shape the ultimate result or even reject it, as happened with the Washington Semiconductor Chip treaty, where IP subcommittee chair Congressman Bob Kastenmeier played a very active role in the treaty's negotiation and in the U.S. government's refsual to ratify it. It is not only copyright laws that are becoming globalized, but the process of enacting them and the last of these may be the most dangerous.