As a consequence of a long-running dispute over online gaming services, the Caribbean nation of Antigua and Barbuda (commonly known as Antigua) may soon begin providing online access to U.S.-copyrighted movies and music without compensating the owners of those copyrights.
Will it be lawful for consumers in the United States and elsewhere to avail themselves of this content? Not in most places. But, before getting to why, it’s helpful to provide some context.
Back in the 1990s, online sports books and casinos proliferated in Antigua thanks to the growing reach of the Internet and a favorable corporate tax environment. In response, American authorities began invoking statutes such as the Wire Act to prevent offshore gambling providers from accessing the American market. Antigua considered those actions to be in violation of U.S. obligations under the World Trade Organization’s GATS (General Agreement on Trade in Services) treaty, and initiated a WTO dispute settlement proceeding in 2003.
In a series of reports in 2004 and 2005, the WTO generally found in favor of Antigua, and in 2007, a WTO arbitrator pegged the resulting “impairment of benefits” to Antigua at $21 million annually. In principle, this could be remedied by allowing Antigua to suspend its own equivalently valued GATS obligations towards the United States. However, since this was not feasible given the enormous trade asymmetry between the two countries, the WTO allowed Antigua to request authorization to suspend its intellectual property obligations to the United States under a completely different WTO treaty (called TRIPS), up to an annual level of $21 million. Last week, the WTO formally granted Antigua an “authorization to retaliate.”
The island nation is apparently planning to waste no time in doing just that. Harold Lovell, Antigua’s minister of finance, the economy and public administration, wrote in USA Today on February 1 that his country has “reluctantly decided to suspend intellectual property rights protections for American firms and products.” And, in the international trade equivalent of “nice car; sure would be a shame if anything bad happened to it,” Mr. Lovell asked “why should, for example, the U.S. motion picture industry suffer just so the federal government can continue to protect the monopolies of the big American gambling interests?”
Exactly how Antigua plans to tighten the screws on the movie industry and other holders of U.S. copyrights remains to be seen, and it’s still possible that settlement talks will resolve the dispute before Antigua opens the downloading floodgates. But, suppose Antigua does in fact proceed to make U.S.-copyrighted movies and music available at nominal or even no cost to anyone in the world with an Internet connection. Will it be legal to download that content?
Almost certainly not, according to Ariel Lavinbuk, an attorney with the Washington, D.C. law firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP. Mr. Lavinbuk explains that a person in the U.S. who downloads a song or movie from a server in Antigua without authorization from the copyright holder is reproducing that work in violation of U.S. copyright law. “When you download a song, a new, distinct copy is created,” Mr. Lavinbuk says. “And the creation of that copy on a computer in the U.S. without copyright-holder authorization is unlawful in this country, regardless of whether the website providing the content is now considered lawful in Antigua.”
And what about copies downloaded from Antigua to computers in non-U.S. countries? With the exception of Antigua itself, the TRIPS treaty’s intellectual-property obligations of WTO member countries are still in full force. And almost all countries have laws prohibiting unauthorized reproduction of copyrighted content. Thus, just as in the U.S., downloading a song from Antigua without the copyright holder’s consent would generally violate copyright rights.
None of this is likely to give much comfort to the big movie studios and record labels, which have usually (though certainly not always) aimed their enforcement efforts at those who facilitate distribution of pirated content as opposed to those who download it. And, there’s no small irony in seeing these companies scramble to play defense against the same sort of heavy-handed techniques they have been so willing to dole out when it served their interests.
But it’s also important to remember that the copyright system is intended, first and foremost, to protect and incentivize songwriters, recording artists, writers, sculptors, photographers, choreographers, artists, architects, playwrights, and others who create copyrightable works. Whatever one thinks of the biggest corporate copyright owners, it is hard to think of much reason to celebrate when any country, even one with fewer than 100,000 people, declares with WTO backing that it is suspending intellectual property rights protections within its borders for the creative output of millions of Americans.