Berne Convention

[JohnB]

How do we stand on the Berne Convention?

http://www.wipo.int/treaties/en/ip/bern ... berne.html

The UK is a signatory, and the policy proposed is in violation of the convention. Presumably that means Pirate Party Policy is to withdraw from the convention?

[martinbudden]

To clarify, the Berne convention contains at least two clauses that are contrary to proposed pirate party policy:

Such protection must not be conditional upon compliance with any formality (principle of “automatic” protection)

In particular protection cannot be conditional on registration, and there cannot be a requirement to request an extension.

As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death. ... In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public (“release”) or—failing such an event—from the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of such a work

These durations are much longer than proposed.

[M2Ys4U]

We should definitely withdraw from the convention and renegotiate with signatory states an agreement for international protection of our reduced copyright term.

[cabalamat]

Of course our policy isn't in compliance with Berne. I suspect the way it will work out is that PP will come to power in a number of countries (as part of a coalition) and we'll be able to re-negotiate it. Or maybe a group of countries including the UK will simply leave Berne.

[martinbudden]

That's my underlying question: should we leave Berne, or should we renegotiate? The advantage of leaving is that we can change things in the UK more quickly. The advantage of renegotiating is we bring the advantages of a renegotiated Berne to all signatories.

There is a third alternative: we could just change UK law without leaving or renegotiating Berne, and then argue the case in the courts.

The point of my original posting was not to point out that pirate party policy was not in compliance with Berne (which as you say is obvious), but to ask what is the policy for dealing with that conflict. Should the pirate policy document make an explicit reference to Berne or not?

[epriezka]

That's my underlying question: should we leave Berne, or should we renegotiate? The advantage of leaving is that we can change things in the UK more quickly. The advantage of renegotiating is we bring the advantages of a renegotiated Berne to all signatories.

There is a third alternative: we could just change UK law without leaving or renegotiating Berne, and then argue the case in the courts.

The point of my original posting was not to point out that pirate party policy was not in compliance with Berne (which as you say is obvious), but to ask what is the policy for dealing with that conflict. Should the pirate policy document make an explicit reference to Berne or not?

Renegotiation of Berne implies that other countries would want to renegotiate Berne. Unless the Pirate Party also made a breakthrough in lots of other countries, or the whole world's politics undergo a massive common shift, then renegotiation is not a viable option. Even talk about the Pirate Party being successful in other countries understates the scale of the problem: plenty of Berne signatory countries aren't democracies.

Berne enforcement is governed under the WTO. Unilaterally changing UK law whilst still being a signatory to Berne would invite other governments to rain down economic penalties on the UK. The UK would have a difficult time repositioning its trade with other countries anyway, but there is no benefit in deliberately seeking to provoke international disputes by remaining a signatory to Berne whilst flagrantly violating it.

The likeliest and best option is not for the UK to go solo, but that PP parties gradually alter the debate within Europe and seek an EU-wide change in copyright law. In that scenario, the UK forms a bloc with other EU countries that want to reform copyright. The EU is not powerful enough, on its own, to impose its will on the rest of the world, and no sane person wants an all-out trade war between the EU and other rich and powerful countries like the US, Japan and China. However, it may be possible to find some kind of accommodation where the rules applied to copyright within the EU are different to the conventions that dominate outside of the EU. This means making allowance for the fact that even the whole EU, working as a combined force, cannot simply tell nations like the US that that are going to ignore their copyrights without expecting serious reprisals. A less confrontational approach would be to continue to recognize copyrights of the US and other nations within the EU, but to allow market forces to put the copyrighted products of those nations at a significant competitive disadvantage (in short, they would cost more, so would sell less). The financial benefits to the consumer would probably need to be offset by funneling tax into increased state aid to creative industries, effectively bribing larger businesses not to move outside of the EU and bribing smaller businesses to continue to set up within the EU. If this division between the EU and the rest of the world can be made stable and sustainable, then there would be hope for a gradualist approach to reforming copyrights in other nations. In short, if the copyright reform does deliver the expected benefits to our societies (which will take years to become evident) then the copyright-reformed bloc can be extended nation by nation. The trick would be to gradually expand the size of the copyright-reformed bloc, through bilateral negotiations and treaties between the EU and other nations. As the 'club' of copyright-reformed countries grows, this will steadily improve the prospects for a complete renegotiation of, or more probably, the agreement of a worldwide successor to Berne.

One thing to bear in mind is that the USA are likely to be the staunchest opponents of any pirate-style reform of international copyright. As the world's biggest economy, the world's biggest copyright exploiters, and the world's internet chief, the US is going to put up one hell of a fight against copyright reform. The prospects of pirates influencing the political debate within the US are slim - their political system just is not set up to give a voice to anything but the Democrat/Republican 'mainstream'. If the Greens found it hard to change the political agenda in the US, imagine what it will be like for Pirates. There is no point planning for an easy worldwide takeover or replacement for Berne. Any approach to rolling out a new international norm is going to have to create a stable and sustainable pocket of like-minded countries that will also have to find a way to co-exist with the copyright expectations of nations like the US. Success will then be achieved by growing the number in the bloc gradually, whilst simultaneously eroding the influence of the USA. Then the world debate will gradually move to a tipping point where the majority of countries, and the bulk of economic power, is in favour of international copyright reform.

[martinbudden]

I've just listened to Lawrence Lessig's lecture "The Google Book Search Settlement: Static Good, Dynamic Bad?" at

http://blip.tv/file/2471815

In it he mentions in passing the the Berne Convention applies to foreign works, not domestic works. If I understood this correctly it does mean that the UK could change the length of copyright in the UK without violating Berne.

This is certainly an area where we should take legal advice.

[samgower]

Just what are the benefits to the Berne Convention? All I've heard about it so far just makes it seem like oligopolistic collusion.

If it is like collusion, if we left it we could profit (culturally and intellectually, if not financially) in the short term and the convention would eventually break down. That's assuming that the situation is comparable to economics.

[ThePilgrim]

Under the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement), the principles of national treatment, automatic protection and independence of protection also bind those World Trade Organization (WTO) Members which are not party to the Berne Convention. In addition, the TRIPS Agreement imposes an obligation of “most-favored-nation treatment,” under which advantages accorded by a WTO Member to the nationals of any other country must also be accorded to the nationals of all WTO Members. It is to be noted that the possibility of delayed application of the TRIPS Agreement does not apply to national treatment and most-favored-obligations.

The above is footnote 1 on the linked to page and if I'm reading this correctly states that all WTO members are bound by the convention as well as TRIPS signitories iven if they are not signitories of the Convention it's self.

I think we realy nead a leagal oppinion on this

[PeterBrett]

Everybody should read this article:

Miaoran Li, "The Pirate Party and the Pirate Bay: How the Pirate Bay Influences Sweden and International Copyright Relations", Pace International Law Review, 2009

http://digitalcommons.pace.edu/cgi/view ... ext=intlaw

[Duke]

Perhaps opposition to the international treaties and convections (such as this and ACTA) should be left in the hands of PPI once that gets going officially. It is also worth noting that the Berne Convention was initially established in 1886 with the last modification made in the 70s - this makes it even more out of date than the Copyright, Designs and Patents Act.

Also, there is a certain irony to the fact that the US was greatly opposed to the Berne Convention initially as there was a lot of "commercial piracy" of European works in the US at the time (famously the works of Gilbert and Sullivan) and it wasn't until 1989 that it finally came into force there.