Earlier in the semester we read about the numerous extensions of copyright term in the twentieth century. Often the reasoning for the extensions centered around compliance with some international standard. The term was extended because otherwise “American artists would be at a disadvantage”. That reasoning seemed strange to me, but I wrote it off as a rationalization for a decision that was motivated by thinly masked corporate interests. Then predictions and leaks about ACTA started circulating, and it all got even more confusing. Sense when did copyright enforcement require international cooperation and coordination? I guess copyright is an issue with international scope, but it doesn’t seem like something that should be internationally enforced. As a gut reaction, copyright just didn’t seem like an issue to be handled by a treaty. An international summit did not seem like the appropriate venue to determine copyright policy that would be applied in the United States. It felt strange to me, but I couldn’t really articulate why.
Then I read Lawrence Lessig and Jack Goldsmith’s article in the Washington Post, “Anti-counterfeiting agreement raises constitutional concerns”. While reading that article I felt like a short kid standing behind a slightly taller and more articulate kid interjecting “Yeah, yeah, what he said” after each point the tall kid made. Apparently there was a reason why I felt strange about ACTA: it’s enforcement would (possibly) be unconstitutional. According to Lessig and Goldsmith, sole executive agreements have historically been used very rarely and for very specific purposes, and mandating copyright policies is not one of them.
Aside from the potential unconstitutionality of a sole executive order pertaining to intellectual property, intellectual property policy does not seem like a subject that is appropriate for international discussion. It’s property law. Copyright isn’t a human rights issue, it’s not something that has a “right answer” and “wrong answer”, there’s no good and evil. Intellectual property is an abstract form of property that our government decided to protect in order to incentivize creation. Even if you assume that every country wants to incentivize creation, not every country will agree on the most productive way to do that. It’s nothing but strategy. This means that even countries that share similar core beliefs may have different notions of how to protect intellectual property. In Canada, for instance, there are special copyright rules for photography. In Canada, the copyright of a photograph is owned by the person who . . . owns the camera? What?
This is a strange law, but is somewhat understandable considering the abstract nature of intellectual property. There are no objectively right answers, so how can we internationally agree on one single policy?