IBIL Seminar Report: Where are the leaders in copyright law? (Part I)

William Patry

Despite its often headline grabbing antics, copyright law is not known to attract the greatest number of practitioners to seminars and debates on the status of its laws.  Although its true that the quantity of participants was not on the level afforded to its trade mark cousin, at last night's Institute of Brand and Innovation Law (IBIL) lecture one might rightly comment that the quality of participants present gave the more “popular” IP discipline a run for its money.  This did not come as a surprise as it was William Patry – Senior Copyright Counsel for Google and one of the foremost experts in copyright law – who was the headline speaker at last night's event.   The subject of IBIL’s seminar was “What does leadership in copyright policy look like?”.  ["What does leadership in any IP policy look like?", asks Merpel].

In an Oprah Winfrey style interview set-up, Sir Robin Jacob (Sir Hugh Laddie Chair of Intellectual Property at UCL) and Patry reclined into deep leather armchairs to discuss the politics, policy and peculiarities of copyright law and leadership.  Sir Robin opened the discussion by first asking why Patry’s book – “How to Fix Copyright” – did not have a copyright notice.  A copyright notice, Patry explained, restricts what one can do with the copyright content and would therefore run counter to what his book stood for – he, contrary to the copyright notice, wanted people to use his book.  The publishers, he noted, were permitted to keep the trade mark notices in the book; he didn’t care, after all, because he is a copyright lawyer. 

Washington – where not to find leadership?

Capitol Hill:
Where leadership pretends to happen

Patry opened the first fifteen minutes of the evening by providing background to the US perspective of IP legislation – namely, of course, copyright legislation.  With numerous years of experience in the US legislature and  having previously appeared as a witness before Congress, Patry provided insight to the non-American lawyers in the audience (i.e. most everyone) as to how bills are initiated, promoted, debated and finally passed in the US.  As a witness before Congress, Patry explained, one of the first things you do is to thank the chair of the committee, to whom you are testifying, for their leadership – not withstanding that you may deeply oppose the bill they are wishing to pass.   Undergoing a formulaic process of thanking those “leaders” for their leadership, as is routinely done on Capital Hill, is an example of leadership by name, not form. 

To put Washington and its politicians into context, Patry referred the audience to a book by Jack Whetherford called “Tribes on the Hill” which examined how the US Congress makes laws.  The book examines the law making process conducted by politicians not from a political science and thus poli-sci theory but from an anthropological theory, comparing politicians and their decision making processes to the decision making process that takes place in African tribes.  The main point of this reference was to focus the  inquiry on how copyright law is made in the US by first examining the environment and the people who make the laws.      

The White House:  Where copyright leadership
doesn't happen - unless an international treaty
is on the horizon...

Distinguishing the US from the UK legislature, Patry commented that in the US politicians are elected individually and independently of parties.  It is the individual politicians, and not the Executive branch (i..e the President and his administration), that set the copyright law agenda as it is they who can introduce legislation.  The Executive branch only, essentially, gets to sign or veto the legislation.  As a by-product, some may argue if not general disinterest, the Executive has not been greatly involved in the field of copyright policy, except in the instances of the General Agreement for Tariffs and Trade (GATT) and the famous Uruguay Round that introduced the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) into IP lawyers’ vocabulary and of course the Berne Convention (subject to recent discussion by the US Supreme Court – posts here, here, here and here).  These instances invoked issues of international political agreements, foreign affairs, and most importantly - trade - so it is only natural that the Executive branch would be interested in these aspects of copyright law.  Recently, a “stunning development”, according to Patry, in the Executive branch’s involvement in copyright policy was observed  when the Obama administration indicated that they were not going to support the controversial SOPA legislation – this positive step by the Executive branch really signaled the end of that proposed legislation. 

Again, Patry explained, it is the individual politicians who comprise the US Congress and the Senate who steer copyright laws and policy – not the President who is elected on a platform of issues which he is unlikely to ever achieve. The politicians, in Congress or in the Senate, form committees who deal with discrete issues and industries.   Because they deal with specific industries, it is typical that the same organizations and individuals appear before the same politicians during committee hearings time and again.  So when it comes to those politicians campaigning for re-election and for them to fundraise for their campaigns, it is natural that they will turn to those that they “do business with”, i.e. the industries that appear before them in committees.   Although there are rules on these types of donations, such fundraising is permitted under the US system .

What is known as
"regulatory capture"

This “regulatory capture” means that the regulators are heavily influenced by those whom they regulate.  If all committees share characteristics of regulatory capture, then they will each have their own form of regulatory capture, and as such there may be a degree of offsetting between the different forms present in the committees.  For example, during the initial stages of passing the Digital Millennium Copyright Act (DMCA), Patry explained that the Judiciary Committee, who is influenced by the content industry pushed for strict liability copyright legislation, whereas the Commerce Committee, who is influenced by the telecommunications industry, pushed for “Safe Harbor” provisions.  Conflict will win the over passing legislation any day, so it was the Commerce Committee who was able to insert the, now, section 512 Safe Harbor provisions into the DMCA. 

Patry's DMCA example not only illustrated the regulatory capture of committees, and thus the politicians in Washington, but the DMCA example also demonstrated the way in which the Executive branch can indirectly implement copyright legislation through the back-door.  Politicians had previously been wholly uninterested in the draft DMCA legislation when it had been initially introduced by the Executive branch via the USPTO in 1994.  It was only after the US had signed up to WIPO in 1996 which obliged the US to comply with certain requirements did politicians finally agree to introduce the DMCA legislation that embodied some of these requirements.  Patry highlighted this as important power dynamic in US copyright policy;  the Executive can sign up to international treaties, which can force the hand of the US legislature in implementing federal legislation that is required  to comply with the obligations agreed in the international treaty.  This, Patry said, could not happen in Parliament, especially where there is a majority.  If Parliament wishes to introduce new copyright laws, such as what is taking place in Canada, they can.  It is in this type environment, not the US environment, that copyright leadership can more easily occur. 

The definition of a good leader

Are they following or is the
Pied Piper leading? You decide.

Having given the audience examples of a system which may not naturally produce good or even many copyright leaders, Patry turned to the characteristics which he considered to constitute a good leader.  He explained that a good leader can effectuate change but does not do it for, or wholly for, their personal gain.  For example, he stated, a good leader does not pass a bill for the sake of passing a bill and showing a victory. Faced with the option of a bill not being passed at all or being passed in a compromised and undesirable state, a good leader will, and perhaps should, choose the former.  This is even if the next bill that is introduced is worse.  Patry recognized, however, that in practice this may be unrealistic.  That being said, the Amerikat, thinks this is a lesson that she hopes that those who are negotiating the unitary patent proposal are keeping at the forefront of their mind.

Patry also identified that a good copyright leader is willing to be educated, base their opinions on evidence,  educate others and is someone who inspires confidence.  "Excluding the IPKat of course, do such people in copyright and IP policy exist in politics or in real-life?", wonders the AmeriKat, "and if so, who are they?"