Copy or be damned

WIRED:WHO IS copyright supposed to work for? That's always been a tough question ever since printers and authors fought over who had control of published works, back in the days of Queen Anne.

These days, the issue is even more muddled. Authors still have the greatest claim, one would think. Now though, internet users and tech companies are not only able to copy what they want, but often have to copy in order to keep the wheels of the modern economy working. We don't want a world without remunerating artists, but neither do we want a world where you can be arrested for forwarding an email.

What everyone seems to agree is that the current state of affairs is profoundly unstable, and needs to be fixed.

Unfortunately, the fixes are all over the place. This week saw a slew of proposals from Japan to Canada to Switzerland on how to fix the copyright problem so that we can have a viable wired economy.

What they seem to indicate is that different special interests are growing further apart, not closer, and that the group with better access to the levers of power wins.

First stop, Japan. After much mulling, the prime ministers office in this famously tech- friendly nation has decided to adopt the United States model of a liberal, tolerant copyright regime. It's not always these days that you can attach those two adjectives to the US system in general, but in copyright law it's no exaggeration.

Companies like Google and the amassed creators of YouTube, blogs, parody sites, remixers and tech innovators are protected in the United States by the principle of "fair use".

What that means is that, while copying without permission is often infringement, some uses of copyrighted material are permitted because of their social value.

Japan wants to introduce fair use into its own copyright law because the government there realised that without it, Japanese start-up competitors to Google would have to risk breaking Japanese copyright law just to level with the US giant. A gentler copyright regime, the country's experts argued, would be better for new economic models.

In Canada, we see just the opposite policy decisions being made.

There, rather than embracing fair use, the Canadian government looks set to introduce far harsher penalties and controls on how copyrighted material can be used.

A new "anti-circumvention" clause would mean that Canadians could be prosecuted if they tried to copy protected material (like DVDs, ringtones or iTunes songs) - even if the reason they were copying it was legal under Canadian law. Canadian artists and consumers are furious about this proposal, but the government is under heavy pressure from media companies to toe the line.

Ironically, the main pressure for Canada's tough anti-circumvention law comes from the United States, the same country that is inspiring Japan's liberal reforms. However, Canada appears to be listening to just one set of interest groups - Hollywood and the music industry - as opposed to the new advocates of Google and the net innovators.

It is somewhat ironic that every country seems more comfortable with copying its copyright ideas from another, rather than taking the lead in rethinking intellectual property. However as interests so radically diverge, all that means is bigger fights in secret, as powerful interests try to sway each country in turn.

The most insidious example of that tendency is in the preparations for yet another copyright reform agreement - one that will affect not just Canada, the US and Japan, but Ireland too.

A treaty known as the Anti- Counterfeiting Trade Agreement is currently being negotiated between the EU, the US and a host of other nations. Originally intended to concentrate solely on protecting consumers from the international trade in fake brands, rumour has it that the agreement has been broadened to include new criminal enforcement rules against individuals and proposals to make ISPs the copyright cops of the internet.

These are only rumours though - because the content of the treaty itself has been kept secret. The details of what might be considered for the agreement were only revealed when a confidential document was leaked to the Wikileaks website earlier this month.

Representatives from key countries and a few business interests are discussing the contents at a closed Geneva meeting this week - but all have been sworn to secrecy about their deliberations.

Will ordinary consumers get a chance to speak on the agreement that is supposedly being crafted in their name? It seems unlikely. The United States has been advocating its signature as early as July 9th of this year, at the Japan G8 meeting.

Given the lack of consensus over what the best way forward for copyright is, it would be a tragedy if the future was decided by just a few figures listening to a handful of industries. What we need are not laws made by special interests in smoky back-rooms, but public debate with sound economic analysis.

Copyright is always a bargain between creator and user, even in this internet-enabled world where creator and user can be the same person - but there's no need to have that bargaining behind closed doors.