Book Review (Monica Horten, A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedom)

by Olumayowa O. Adesanya

Monica Horten, A Copyright Masquerade: How Corporate Lobbying Threatens Online Freedom (Zed Books, 2013), x + 294pp

Occasionally, the law is proactive. However, more often than not, legislations are enacted in reaction to societal advancement such that the law struggles to keep up with the ever-changing nature of society. When the concept of intellectual property arose, the originators could not have foreseen the advent of the internet nor the ease it would afford sharing of copyrighted works across borders. As such, today, we witness a call for stricter enforcement of copyright protection with the stakeholders in the creative industry at the forefront of this battle.

The battle as identified by Horten is one between copyright and free speech with the entertainment industry lobbyists on the one hand and the telecommunication industry and citizens on the other hand. Policy-makers are meant to serve as the moderator in trying to achieve a balance favourable to all parties. Whether these policy-makers remain an impartial umpire is explored in three different, albeit similar case studies undertaken in the book.

The book is divided into three parts with the first focused on the intersection between copyright and the internet. In addressing copyright infringement on the internet, the measures advocated for include a graduated response, notice and take-down and fast-track administrative injunctions. The measures advocated for by the lobbyists are a deliberate attempt to bypass court procedure in view of the apparent delays in the judicial process. In trying to interfere, the government is faced with problems ranging from restricting access to legitimate content to blocking income. The rights to property, free speech, privacy and those derived from the use of internet have to be addressed in whatever measures are adopted.

The second part of the book covers the Anti-Counterfeiting Trade Agreement (ACTA) and Ley Sinde (the Sinde law) with Section 301 of the United States’ amended Trade Act 1974 (better known as Special 301)[1] as the nexus. With a strong entertainment industry for export, the United States had found itself another ground for imperialism. Using the TRIPS agreement as a tool, it sought to enjoin other countries to accede to the ACTA as a multi-lateral agreement in waging a war against global infringement of copyright. Horten examines the role of the International Intellectual Property Association (IIPA), the International Trademark Association (INTA) and the United States Trade Representative (USTR) in the attempt to create a stricter global regime intended to supersede the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The accountability of the European Commission to the Parliament under the acquis communautaire would eventually truncate this plan in addition to the march against ACTA across various European countries in the winter. Mention is made also of the United States’ Protect IP Act (PIPA) Stop Online Piracy Act (SOPA) as unsuccessful attempts by the government to give US-based organisations the legal basis to take-down or block content that resides outside the US via a form of fast-track injunction by the US Attorney General.

Using the Special 301 Watch list, Horten identifies an attempt by the United States to blackmail Spain into passing the Ley Sinde with a provision to bypass the judicial process in dealing with copyright infringement over the internet. This is exposed in leaked communications reported by WikiLeaks. Again, public opinion would play a crucial factor in the passage of the bill in its original form such that what became law was a watered down version. True to the exposed economic pressure mounted by the United States, Spain was removed from the Special 301 Watch list upon passage of the law.

The third and final part of the book is focused on Britain’s Digital Economy Act and how the British Phonographic Industry (BPI) employed the use of tactic and diplomacy in pushing for a reform. We see how parliamentary process was abused and circumvented from Horten’s account because of industry stakeholders’ failure to reach a voluntary agreement necessitating government intervention. The public outrage that followed the bill resulted in pushing the buck to the Officer of Communications (Ofcom) to introduce technical measures via Statutory Instrument that would be subject to the Super-affirmative Procedure in Parliament. In addition, the scandal that engulfed the House of Commons prior to the 2010 election would result in the rushed passage of the bill, which remains to see whether it will stand the test of time.

Since the publication of this book, the DC Circuit Court in the United States has ruled on the Federal Communication Commission’s net neutrality[2] in the case of Verizon v. FCC. It held that the government could not prohibit Internet providers from slowing or blocking Web traffic, though it preserved disclosure requirements that Verizon opposed — in other words, carriers can make some traffic run faster or block other services, but they have to tell subscribers. In the absence of net neutrality, Internet Service Providers will be able to devise new schemes to charge users more for access and services. Thus, it becomes easier for the creative industry to make deals with ISPs to circumvent the judicial process by limiting access to infringing material on the internet. Whether this would become a reality is questionable seeing how opposed to technical measures broadband providers were in the above case studies.

The book does not pretend to be what it is not: a textbook. It is simply an expose on the subvert moves by industry stakeholders to undermine the supposed transparent nature of the democratic process in an attempt to protect their interests. Horten, a veteran journalist cum internet copyright policy expert employs effectively the tools at her disposal in verifying her account. Notable is the use of the Freedom of Information Act to obtain otherwise private communications, which reveal how the closeness between policy makers and the creative industry is exploited to the advantage of the latter. The reader is left with the impression that perhaps, policy makers are not exactly neutral resulting in democracy no longer being vox populi, but rather that of the highest bidder. The conspiracy theory no longer seems farfetched after all.

Notwithstanding, Horten identifies how the attitude of citizens can ultimately affect the legitimacy of law and bring about adjustments. She ultimately advocates for a better and transparent policymaking in view of the clashing interests, but fails to recommend how this can be achieved. Whether the creative industry is justified in its attempts to explore all avenues possible to protect its interest is left for the reader to decide.

Albeit written for a lay audience, it is an interesting and easy read for professionals, industry experts and students who are interested in policy-making behind the scenes and not just the final product. It raises awareness on the debate against copyright particularly in the interests of citizens and a reason to rethink US policies purported to be in favour of the global economy.

 

 

 

[1] This is a report prepared annually by the Office of the United States Trade Representative (USTR) containing a list of countries that do not provide “adequate and protective” protection of intellectual property rights or “fair and equitable market access to United States persons that rely upon intellectual property rights”. The annual report categorises countries under three lists: “Priority Foreign Countries” for those countries judged to have inadequate intellectual property laws, “Priority Watch List” and a “Watch List”, containing countries whose intellectual property regimes are deemed of concern.

[2] The passage in 2010 of the FCC’s Open Internet Rules is rather counter-productive to the technical measures proposed by the entertainment industry, which advocate for ISPs to be directly responsible for monitoring and reducing infringement.