The Obama administration has offered up a strange mix of copyright policies in its first year (both ACTA and Creative Commons, for instance), but it has at least made clear that "better copyright law" does not always mean "more copyright protection." In the middle of December, for instance, the administration took a stand in support of a World Intellectual Property Organization treaty on copyright exceptions for the blind. The final bit of the US statement of support is worth quoting in full (emphasis added):

We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share that point of view. The United States is committed to both better exceptions in copyright law and better enforcement of copyright law. Indeed, as we work with countries to establish consensus on proper, basic exceptions within copyright law, we will ask countries to work with us to improve the enforcement of copyright. This is part and parcel of a balanced international system of intellectual property.

It's a call for "balanced" copyright taken directly to the WIPO—and it's one opposed by the deepest-pocketed copyright holders. Here's why.

No U-turns on the copyright highway

The copyright treaty in question (PDF) was proposed by Brazil, Ecuador, and Paraguay in May 2009 as way to guarantee worldwide access to copyrighted materials by the blind. In its current draft form, the treaty lays out mandatory copyright exceptions that every signatory must adopt. These include making "accessible" copies of works even without the permission of the copyright holder (usually on a non-profit basis, and after paying a government-determined fee to the rightsholder). As for DRM, groups making works available for the blind or sight-impaired would be allowed to bypass or break DRM in order to access a work.

This might not sound hugely controversial; after all, the market for large-print or Braille works is (relatively) small and compensation would still need to be paid. But what bothers big rightsholders is the fact that a WIPO treaty might switch from specifying only mandatory copyright enforcement principles (the current approach) to also specifying some mandatory exceptions to copyright.

Isn't that right, Steven Metalitz, DC copyright lawyer extraordinaire and repeated representative of the MPAA and RIAA?

The uniform approach within this global framework has been to set minimum standards of copyright protection, subject to certain exceptions or limitations which are permissible, but not mandatory. As a corollary, none of the existing treaties bars national legislation that provides stronger protection than the global minimum standard, or that declines to recognize a permissible limitation or exception... The draft treaty would turn this long-standing principle on its head, demanding that signatories limit copyright protection to an extent not even permissible under the existing treaties... Viewed in context, the draft treaty appears to many as the not-so-thin edge of a wedge to be driven into the long- standing structure of global copyright norms. It advocates a U-turn in the approach to global copyright norms that would almost certainly not be restricted to the issue of access for the visually impaired, or even for the disabled community generally. Adoption of this proposal would be used to justify its radical approach—mandating in national law exceptions and limitations that reach far beyond what would be even permissible under global norms today—in many other fields of copyright law.

Read that again if it didn't sink in. (It's from Metalitz's commentary on the draft treaty (PDF), helpfully provided to the government.) Providing stronger mandatory copyright protections and enforcement mechanisms (think ACTA) is totally normal, right, and proper; providing stronger exceptions to copyright is "radical" and a "U-turn." And in this context, a U-turn would be a Very Bad Thing indeed.

There's no interest in balance here, and no real attempt to act like there should be. Copyright protections move naturally and logically in only one direction, toward stronger enforcement mandates. Governments are allowed to pass certain exemptions to copyright, but if they don't, and a host of blind people have limited access to certain works, too bad.

The US Chamber of Commerce, while going out of its way to laud the goals of the treaties, has the same objections (PDF): international mandates are only for enforcement, not for exceptions.

The current international intellectual property framework is based on harmonizing national laws or establishing 'minimum standards' of protection subject to flexibilities that permit limited exceptions... The treaty proposal takes the exact opposite approach by seeking to establish 'necessary minimum flexibilities,' which threaten to undermine existing norms in copyright... If the 'minimum flexibilities' approach were adopted, even in an agreement limited in scope to accessibility of copyrighted works for persons with certain disabilities, this approach could be adopted in other areas well.

In other words, patent and trademark regimes might also be subjected to the humiliation of having to accept mandated limits and exceptions.

The Chamber of Commerce has some ideas about how WIPO might better handle the issue of making works more accessible to the blind; the main suggestion is supporting "further studies" on how nations around the world handle the issue. Such a "best practices" report, whenever it might eventually be finished, could then be used to start thinking about a better approach.

WIPO actually already commissioned and received such a report—230+ pages of just such material, replete with case studies from around the globe, which was published in 2007. That report focused on copyright law and how nations handled exceptions for the blind, but the Chamber doesn't want copyright law changed; they would prefer that future reports focus on "the efforts of the private sector" instead.

The treaty as it stands does raise all sorts of legitimate questions. (Should the traditional "three-step test" for deciding if national copyright exemptions meet international treaty obligations be scrapped, for instance, in favor of mandated exemptions that rely on no such test? Can better results be achieved using existing treaties?) What's interesting about the debate isn't the treaty itself but the resistance—indeed, the bewilderment—of those who truly see mandated copyright enforcement as some natural state of affairs for international treaties and who will brook no move to a system that balances mandated enforcement with mandated exemptions.

And what's more interesting still is that the current stance of the Obama administration on these issues is to challenge this idea. Take a look again at the statement we opened with: "We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share that point of view."

Now, the issue of what constitutes "balanced copyright" is hugely debatable, and it's an argument worth having. Indeed, the administration may be making a veiled reference to ACTA in its statement that the US will work to "establish consensus on proper, basic exceptions within copyright law, [and] will ask countries to work with us to improve the enforcement of copyright." In other words, we support a treaty for the blind even as we push for ACTA.

Based on our own reading of the ACTA leaked drafts to date, it's not yet clear this is really "balance" in any meaningful sense of the word (and it's certainly not "transparency"), but it is heartening to see the US actually supporting the idea that copyright legislation will need tweaking over time—and that tweaking does not always move in one direction.

When you're going the wrong way, driving faster isn't the answer; a U-turn is.