NWU-BOOK meeting with US Intellectual Property Enforcement Coordinator

On June 21, 2011, just before heading on to the Delegate Assembly in Detroit, 1st V.P. Ann Hoffman and I met at the Executive Office Building in Washington, next door to the White House, with President Obama's lead advisor on intellectual property enforcement and policy issues.

This meeting was a follow-up to comments on writers' difficulties enforcing our rights that we submitted in 2010, shortly after the creation of the office of the Intellectual Property Enforcement Coordinator: http://www.nwubook.org/NWU-ip-enforcement.pdf

The office of the IPEC doesn't carry out enforcement actions itself, but exists to coordinate the Administration's executive actions -- including copyright and other IP-related law enforcement -- and legislative recommendations such as those on future copyright "reforms": http://www.whitehouse.gov/omb/intellectualproperty/

We received no response to our initial written submission, and writers' interests (especially vis-a-vis publishers and distributors) were not reflected in IPEC reports and strategic recommendations.

Accordingly, we requested a face-to-face meeting with the IPEC office. Somewhat to our surprise, we found the door wide open. (Not literally, of course -- admission to the building required not only an appointment and "screening" at the entrance to the White House compound but detailed submissions of personal information, in advance, to the Secret Service.)

We met for the better part of an hour with the head of the office, the "IP Enforcement Czar" herself, Ms. Victoria Espinel, along with four of her staff advisors she had invited to provide expertise on specific aspects of IP enforcement ranging from copyrights to international law. All had read our comments in preparation for the meeting, although they still seemed to be surprised when we began our presentation by identifying publishers and distributors as the most significant infringers of writers' copyrights.

Neither Ms. Espinel nor her advisors seemed to have considered that writers might have distinct interests from other "rightsholders", They had met previously with the Songwriters Guild, ASCAP, and BMI, but not with any other writers of books or other types of works except for the Authors Guild (whose eligibility rules, we pointed out, limited AG membership to authors of books with major publishers with "substantial" advances, which is only a tiny minority of all authors, much less all writers.

Their initial reaction to our complaints about writer's difficulty in preventing infirngement by publishers and distributors (such as "licensing" of e-books by publishers who don't hold electronic rights, or distribution of those e-books by distributors who don't verify whether the publishers who have granted them "licenses" actually hold those rights) was to categorize thes disputes as "breach of contract" rather than "copyright infringement". "We try not to get involved in contrcat disputes," Ms. Espinel told us.

No, we replied, these aren't mere contract disputes. The existence of a contract granting *some* rights doesn't immunize a publisher against civil or criminal liability for copyright infringement if they exerice other "rights" that they haven't been granted. Having bought some rights in a work doesn;t give you a license to steal all the other rights to a work. And the legal cases by wirters against publishers -- from Tasini v. New York Times to the copyright class actions -- have been for copyright infringement, not breach of contract.

We went on to explain how the imbalance of size, information, and power between large numbers of writers with limited means, and the few large publishers and distributoirs, makes those publishers appropriate priority targets for criminal copyright infringement sanctions, and how the need to bring a Federal case makes it impractical for writers to enforce their rights (a problem that could be addressed through some sort of copyright "small claims court").

Our suggestions were received with surprise but not dismissed, which confirmed to us the importance of having sought the meeting. And we were taken for granted as the NWU (and a UAW local) as being legitimately entitled to represent the concerns of a wide range of writers.

At a minimum, I think we got across the idea that distributors and distributors' cannot be taken as proxies or spokespeople for writers, our copyright enforcement concerns, or our economic interests.

While we mentioned (without naming names) some of the worst-case scenarios we've heard about from NWU members, those stories were of course anecdotal. Ms. Espinel pressed us to come back with better *quantitative* evidence about the infringement of writers' rights but promised that she would be open to receiving such evidence from the NWU. She appeared to be quite sincere in her recognition of the NWU as a party to her ongoing engagement with IP stakeholders, and in her open-door policy.

It was clear that her primary constituency is the movie, entertainment, and trademark industries, and her primary concern is offshore bootlegging of movies, music, and trademarked goods. But she is likely to be influential as an advisor and policy strategist for the Obama Administration in future copyright "reform" debates.

We have much to do to follow up, as was reflected in part in the DA resolution to begin a research and advocacy campaign around e-book rights and royalties. But we were very pleased with this meeting as a step toward greater involvement of the NWU in national policy advocacy work.

Members interested in participating in an ad hoc working group on the issue of e-book rights and royalties, to help define and carry out the research and action plan approved at Delegate Assembly, are encouraged to contact, Book Division co-chair Sue Davis, External Organizing V.P. Paul McArthur, or myself. This is important work, but it will be a lot of work, and we want and need members to help carry it out..

Edward Hasbrouck
NWU Book Division co-chair

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