Monday, April 24, 2006

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.


Anonymous said...

Dear Mr. Patry,

Can you please expound on what you refer to as "the aftermath of 1995"?
Thank you.

William Patry said...


What I was referring to was the different models of legislating in the IP field in the U.S. House of Representatives. For almost 30 years, during the chairmanship of Congressman Bob Kastenmeier, there was heavy reliance on the Copyright Office both as an expert advisor to Congress and as an agency that could be looked to take a balanced view of issues, honestly presented. Mr. Kastenmeier himself did not have a dog in any fights in the sense that the issues were relevant to his own district back home. He emphasized both the public interest, but where the dispute was essentially a commercial one between a limited group of companies, he was amenable to having those parties work things out so long as the ultimate agreement was, in his view in the public interest.

After his defeat, Congressman Bill Hughes took over as chair; his belief was one that Congress and Congress alone made policy and that while it was important to get input from industry, he was running the show. This was not popular with the copyright industries. In 1995, after the House went Republican as a result of the 1994 midterm elections, there was the Contract with (or some would say against) America, and, I believe, much if not all legislation and legislative history was written "off the Hill," that is by and for the private sector.

I would say the current chair, Lamar Smith, is closer to Mr. Kastenmeier's model than to Mr. Hughes, yet different from the period from 1995 to his chairmanship, although perhaps somewhat closer to that time frame than to Mr. Hughes' model, which was quite unique.