Dr. Ficsor is wrong about many things – why should we believe him?

Dr. Ficsor is right; Prof. Geist is wrong about the WIPO Internet Treaties

Earlier this week, Dr. Ficsor posted a blog inviting Canada to join the international community by ratifying the WIPO Internet Treaties. Dr. Ficsor is an internationally revered copyright scholar and professor and the former Assistant Director General of WIPO. As his posting pointed out, he was also responsible for organizing the preparatory work of the two Treaties, for the 1996 Diplomatic Conference adopting them, and for the first efforts to achieve their adequate implementation, There is no one on the planet who knows more about the treaties or what was intended by them than him.

That wasn’t an invitation – it was more like a mugging. That aside, I have this unfortunate tendency not to believe what people say. I guess its a fault in my makeup, that I believe everybody is lying to me, until I’ve proved otherwise. The problem is that all too often, I find out that they are lying to me. Or at least ‘gilding the truth’. The internationally revered copyright scholar and professor. A Google Search on the term Doctor Ficsor returns the following data:

Cranky Old Nutcase by The Mad Hatter: An invitation to Doctor …I’m a Canadian. Dr. Ficsor’s ‘An invitation to Canada to join the international community by ratifying the WIPO Internet Treaties’ is one of the more …
tweetmeme.com/…/cranky-old-nutcase-by-the-mad-hatter-an-invitation-to- doctor-ficsor-to-explain-the-value-to-the-citizens-of-canada-in… – 12 hours ago

Ficsor Curriculum vitae – International Symposium on IP Education …At the World Trade Organization (WTO), Dr. Ficsor is a member of the roster of … Dr. Ficsor holds a doctor’s degree in law and political sciences from the …
http://www.wipo.int/academy/en/meetings/iped_sym…/ficsor.html – Cached – Similar

Cranky Old Nutcase by The Mad Hatter: An invitation to Doctor …Dr. Ficsor’s ‘An invitation to Canada to join the international community … glynmoody says: invitation to Doctor Ficsor to explain the value in ratifying …
astonmartinnews.com/…/cranky-old-nutcase-by-the-mad-hatter-an-invitation- to-doctor-ficsor-to-explain-the-value-to-the-citizens-of-canada… – 12 hours ago

Glyn Moody (glynmoody) ‘s status on Wednesday, 23-Dec-09 11:16:40 …23 Dec 2009 … invitation to Doctor Ficsor to explain the value in ratifying the WIPO Internet Treaties – http://bit.ly/7whl4C fine takedown of codswallop …
identi.ca/notice/17306530 – 13 hours ago

Meeting of Kyrgyzpatent leadership with Dr. Mihály Ficsor …12 Jun 2009 … Dr. Ficsor emphasized that such problems have existed all over the world. He shared experience of other countries in this field. …
patent.kg/en/news/2009/06/12/430.html – Cached

[PDF] SHORT BIOGRAPHY -Dr. Mihály Ficsor Dr. Mihály Ficsor is a national …File Format: PDF/Adobe Acrobat – Quick View
At the World Trade Organization (WTO), Dr. Ficsor is a member of the roster of … Dr. Ficsor holds a doctor’s degree in law and political sciences from the …

Only the first six finds, which are printed above, were for Doctor Ficsor, and three of them linked to my response to his post on your blog. If the man really was an ‘internationally revered copyright scholar and professor’ I would expect more hits, and I would not expect the number one hit to be an article critical of his opinions and writing. So we have a virtual unknown trying to interfere in the affairs of a sovereign country. Does this sound as ridiculous to you as it does to me? It doesn’t? Don’t go away, it gets better.

In his post, Dr. Ficsor took issue with several assertions made by Prof. Geist about the treaties. Yesterday, Prof. Geist responded to Dr. Ficsor in another blog posting. Prof. Geist starts his new blog by attacking Dr. Ficsor trying to paint him as a lobbyist for rights holders. Anyone who follows Prof. Geist will know that he labels almost everyone he disagrees with as a lobbyist, attempting to demonize and discredit them by association rather than by the views they hold. Prof. Geist goes way over the line this time, however, when he tries to lead his readers to believe that Dr. Ficsor’s opinions about the WIPO Treaties are influenced by work he may do in the copyright area. Dr. Ficsor’s views about the requirements of the treaties have been well documented for over a decade. It is shameful that Prof. Geist would attempt to tarnish Dr. Ficsor’s reputation and iconic standing by asserting that he has “joined up with copyright lobby groups” thus suggesting that his views are not honestly held.

Doctor Ficsor’s views have been well documented for over a decade? Where? The man is virtually unknown according to Google. Most of the results it tosses up for his name link to my virtually unknown blog! My god man – didn’t your teachers tell you to strive for accuracy if you want to be believed? Both you and Doctor Ficsor are fond of making statements, without providing proof. Document, document, document!

And as to Doctor Ficsor’s connections to the ‘copyright lobby groups’, I refer you to my earlier post where I came to the same conclusion. Doctor Ficsor’s arguments are so similar to the arguments made by the US Ambassador to Canada in a recent speech. Which happen to be the same arguments made by the Motion Picture Association of America and the Recording Industry Association of America. Which may not be surprising, as the Obama regime is infamous for hiring RIAA lawyers for sensitive positions in the administration.

Now, let’s examine the substance of what Dr. Fiscor said and Prof. Geist’s responses.
1. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertions that Canada has not fallen behind the EU and Canada’s other trading partners by failing to implement the WIPO Treaties. Dr. Ficsor pointed out that such an inaccurate assertion could only be made by someone who is “ignorant about these facts” or “who intend to hide or drastically misinterpret them for some purpose”.
Response by Prof. Geist. Prof. Geist did not respond or take issue with this claim by Dr. Ficsor.
My Comment: Prof. Geist could not respond. Prof. Geist has consistently tried to confuse the concept of treaty ratification with enacting legislation to implement the treaties. When Prof. Geist says “for all the claims that Canada is years behind, the EU ratification arrived today” he wants his readers to believe that the EU member states only now just passed laws to implement the treaties. The fact is, however, that the EU member states had all implemented the treaties long ago to help foster a legal digital infrastructure for its citizens.

Well, I’m not Professor Geist. As I wrote to Doctor Ficsor yesterday, By your definition the number of lemmings who’ve gone over a cliff confirms the validity of their migration path. Evolution would not agree with you. Since we Canadians are not lemmings, I see no reason that we need to ratify the ‘Internet Treaties’.

Now my apologies if the next bit is a bit messed up. My blogging software has limitations, and I’m not sure that the table will reproduce.

The EU enacted a Directive mandating implementation of the treaties in 2001. The member states enacted legislation implementing Directive 2001/29/EC on the dates set out below:

Country Implementation Date
Austria July 1, 2003
Belgium May 22, 2005
Cyprus May 1 2004
Czech Republic December 1, 2000 (in part)
Denmark December 22, 2002
Estonia October 29, 2004
Finland October 14, 2005
France August 4, 2006
Germany September 13, 2003
Greece October 10, 2002
Hungary May 1, 2004
Ireland January 16, 2004
Italy April 9, 2003
Latvia April 22, 2004
Lithuania January 1, 2004
Luxembourg April 18, 2004
Malta September 2, 2003
Netherlands September 1, 2004
Norway July 1, 2005
Poland April 1, 2004
Portugal August 24, 2004
Slovakia January 1, 2004
Slovenia April 24, 2004
Spain July 7, 2006
Sweden July 1, 2005
United Kingdom October 31, 2003

Again, documentation. You allege that these states introduced laws making them compliant with these treaties. You do not provide the texts of the laws, so that we can assure ourselves that they actually exist. And of course, we have had not opportunity to compare these laws to determine if they actually do bring these states into compliance with the treaties. My documentation indicates that you are telling a whopper here. The WIPO website itself does not agree with you.

And then of course there are other issues. For example it is apparently legal to run a torrent site in Spain, as long as you don’t make any money (i.e. have advertising revenue). This interpretation of the law has been upheld in court. How does this make Spain compliant with the treaties? One of the things that the treaties apparently cover is ‘notice and takedown’, this apparently is not happening in WIPO compliant Spain.

And now we get to the part I love. I’m going to have to chop this into little, teeny, pieces to respond.

2. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertion that Canada has the flexibility to adopt a “made in Canada approach” to implementing the treaties which does not involve providing legal protection for anti-circumvention tools. Dr. Ficsor stated “the professor’s blog seems to suggest a kind of “made-in-Canada” way of implementation that would consist of not implementing certain obligations under the Treaties”, and in particular, not protecting against anti-circumvention tools.
Dr. Ficsor explained why legal protection for anti-circumvention tools was required under the treaties as follows:
“The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities. However, what is even more important is that the obligation to provide for such prohibition also follows from the text of the relevant provisions themselves of the Treaties. Under those provisions, Contracting Parties are obligated “to provide adequate legal protection and effective legal remedies” against the circumvention of technological protection measures. It could hardly be suggested seriously and without a big amount of cynicism that a Contracting Party is able to provide adequate protection and effective remedies if it only prohibits the very acts of circumvention and leave technological protection measures to their gloomy fate by that.  Such acts are normally performed in private homes or offices where, due to privacy considerations, it would be extremely difficult – or quasi impossible – to apply adequate protection. At the same time, it is possible to build adequate defense line if the manufacturing and distribution of unauthorized circumvention devices and services are also prohibited. Since this is possible and since this is needed for an adequate anti-circumvention protection, it follows from the treaty obligations that this should be applied by the Contracting Parties. The EU regulation is based on this recognition and the regulation is duly applied by the Member States.  The EU has not chosen an imaginary “WIPO-lite” implementation to fulfill certain obligations and neglect others, since there is no such way of implementing the Treaties; it would be equal not implementing them by adopting a ridiculous theory that for some mysterious reasons the basic principle serving as a basis of any serious agreement – pacta sunt servanda – does not apply to them.”
Response by Prof. Geist. Prof. Geist simply asserts that a proposal for expressly protecting anti-circumvention tools was not accepted into the wording of actual treaties at the Diplomatic Conference. As Dr. Ficsor had already pointed, the Diplomatic Conference adopted the requirement that legal protection be “adequate” and remedies be “effective”. Prof. Geist cites an article from Prof. Samulson which purports to describe the history behind the provisions adopted at WIPO. However, Prof. Geist does not attempt to contradict Dr. Ficsor’s assertion that the requirement for adequate legal protection and effective legal remedies for TPMs does not require legal protection for anti-circumvention tools.
My Comment: It is one thing to claim, as does Prof. Geist does, that a specific proposal for the wording of the treaties was rejected at the Diplomatic Conference. It is quite another thing to make the completely unsupported conclusion that Canada “can be compliant with the WIPO Internet treaties without implementing” protection for anti-circumvention tools. It is noteworthy, that Prof. Samulson, the only authority relied upon by Prof. Geist, does not even suggest in the article quoted that the WIPO treaties do not mandate legal protection for circumvention tools. In fact, she concluded “The inclusion of terms like “adequate” and “effective” protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.”

Such a lot of verbiage, to say so little. There must be “technological protection measures.” They must have adequate protection. Oh, woe is me. Of course Barry hasn’t bothered explaining several things:
1) If the TPM was adequate in the first place, why would it need legal protection?
2) Why Prof. Samulson was only concerned about US Firms being able to act against laws they deem deficient?
3) Pacta sunt servanda – why good faith only applies to the WIPO, and not the citizens of Canada?
4) What the value to Canada and Canadians is of ratifying these treaties?

And the reason he hasn’t, and Doctor Fiscor didn’t address these issues is that they have no answers for them. There are no peer reviewed studies showing that ratifying these treaties will have any benefit to the citizens of any country. In fact, there are several peer reviewed studies that state the opposite. So why should Canada ratify? For that matter, if the WIPO is so out of touch with simple cost/benefit calculations, what benefit does Canada, one of the greatest world powers, a member of the G7, the second largest country, the 15th largest economy, get in remaining a member? Possibly you could explain this to me. With documentation. Verifiable documentation.

It is telling that in the face of being directly confronted by Dr. Ficsor, the world authority on the interpretation of the WIPO Treaties, that Prof. Geist did not cite even a single authority that supports his position that Canada can implement the WIPO Treaties without providing legal protection for circumvention tools.
The authoritative texts which have interpreted the obligations imposed by the WIPO Treaties all agree that to be adequate and effective, anti-circumvention provisions must prohibit the trafficking in circumvention tools and the provision of services which can be used for circumvention purposes. For example, the WIPO Guide to the Copyright and Related Rights Treaties administered by WIPO[1] states the following in this regard:
“For these reasons, Contracting Parties may only be sure that they are able to fulfil their obligations under Article 11 of the Treaty if they provide the required protection and remedies: (i) against both unauthorized acts of circumvention, and the so-called “preparatory activities” rendering such acts possible (that is, against the manufacture, importation and distribution of circumvention tools and the offering of services for circumvention)… (iii) not only against those devices whose only – sole – purpose is circumvention, but also against those which are primarily designed and produced for such purposes, which only have a limited, commercially significant objective or use other than circumvention, or about which its is obvious that they are meant for circumvention since they are marketed (advertised, etc.) as such”.

Note again the amazing allegation that Doctor Ficsor, the man who Google knows so little about, is ‘the world authority on the interpretation of the WIPO Treaties’. I find this hard to believe. I also find it hard to believe that Google knows so little about this paragon of experts, so I just did another search on the term Mihaly Ficsor and the results were a bit better. I’m insulted though, my blog didn’t show up at all. Ah well, fame is fleeting. Here’s the first ten hits:

Dr. Mihaly FicsorDr. Mihály Ficsor, one of the best-known experts in the field of international copyright, is a consultant to the International Intellectual Property …
http://www.iipa.com/html/Bio_Mihaly_Ficsor.html – Cached – Similar

Ficsor Curriculum vitae – International Symposium on IP Education …Mihály Ficsor Director Center for Information Technology and Intellectual Property (CITIP) Budapest Hungary. Dr. Mihály Ficsor is a national of Hungary. …
http://www.wipo.int/academy/en/meetings/iped_sym…/ficsor.html – Cached – Similar

Mihaly Ficsor stories at Techdirt.22 Dec 2009 … Check out our CwF + RtB experiment. Brought to you by Floor64 and the Techdirt crew. stories filed under: “mihaly ficsor” …

Meeting of Kyrgyzpatent leadership with Dr. Mihály Ficsor …12 Jun 2009 … [On June 9 the meeting took place of Kyrgyzpatent leadership with Dr. Mihály Ficsor, Professor, President of the Hungarian Copyright Experts …
patent.kg/en/news/2009/06/12/430.html – Cached

Flipkart.com: Mihaly Ficsor Books: Buy in Indiamihaly ficsor: Books Buy & Search Online @ Flipkart.com. Great Discounts, Free Shipping on mihaly ficsor Books: Biggest Online Book Store India.
http://www.flipkart.com/mihaly-ficsor/ – Cached

Flipkart.com: The Law Of Copyright And The Internet: Mihaly Ficsor …Buy The Law Of Copyright And The Internet in India. Price:Rs.29749 Free Shipping on The Law Of Copyright And The Internet. Book Review of The Law Of …
http://www.flipkart.com/law…mihaly-ficsor/019829901x-gqw3fdu57e – Cached

[PDF] SHORT BIOGRAPHY -Dr. Mihály Ficsor Dr. Mihály Ficsor is a national …File Format: PDF/Adobe Acrobat – Quick View
Dr. Mihály Ficsor is a national of Hungary. From 1966 to 1968, he was judge at the Central District Court of Budapest, and, from 1969 to 1975, he was …

Collective management of copyright and related rights – Google Books Resultby Mihály Ficsor, World Intellectual Property … – 2002 – Law – 165 pages

Oxford University Press: The Law of Copyright and the Internet …Mihály Ficsor. bookshot Add to Cart. ISBN13: 9780198299011ISBN10: 019829901X Hardback, 848 pages. Apr 2002, In Stock …
http://www.us.oup.com/us/catalog/general/…/IntellectualProperty/?…ci… – Cached

Law of Copyright & the Interne: Mihaly Ficsor: HB Books Buy Law of …Mihaly Ficsor. (Author) Rating of 0 out of 5 (0 Customer Reviews). + FREE Shipping in India! …. This book by Mihaly Ficsor is written in English language. …
http://www.infibeam.com/Books/…/Mihaly-Ficsor/…/019829901X.html – Cached

Let’s see. High marks from the International Intellectual Property Association, and the WIPO. However since he seems to be working for both one way or the other, they don’t count. Techdirt thinks he’s worth covering. No, wait. They don’t. They only have one article on him, written at the same time I wrote my response to him. And a couple of hits for his book, which looks like a sure cure for insomnia at 848 pages. And this guy is supposed to be ‘the world authority on the interpretation of the WIPO Treaties’? Pardon me, but I have a hard time believing this.

Reinbothe and von Lewinski, in their book The WIPO Treaties, [2] are equally unequivocal about the need to include protection against trafficking of circumvention tools and the provision of services which are made available for the purpose of circumventing technological measures:
“…It may be held that legal protection against circumvention is only meaningful and adequate if it also covers circumvention devices and services, the so-called ‘preparatory acts’… the manufacturing and distribution of devices which permit or facilitate circumvention may potentially cause more important prejudice to rightholders than acts of circumvention. A ‘circumvention only’ approach appears, therefore, to be insufficient…The domestic law of Contracting Parties would have to proscribe devices, products, components or the provision of services which are produced or distributed for the purpose of circumventing protection technologies.”

Fascinating. Google seems unable to find this book. Oh, hold on. Here it is. One of the links is really interesting, it says:

While both the U.S. and EU/German systems prohibit the circumvention of, and the trafficking in, access control devices, the United States regime does not prohibit the circumvention of copy control devices. Consequently, U.S. users who can circumvent a copy control device without trafficking in such devices may make fair use of the copyrighted material. The EU/German system does not permit the circumvention of copy control devices in any respect, but it does require the copyright holder to provide the user, in exchange for compensation, with the means to bypass the copy control devices and make fair use of the copyrighted material. This requirement, which expands the degree to which copyrighted material is made more accessible for fair use, gives the EU/German system a decided advantage over the U.S.
regime, though the EU/German system has drawbacks that impair its effectiveness.

Is this possibly what Prof. Geist has been talking about? According to Doctor Ficsor, this isn’t allowed. But Barry says Germany is compliant with the treaties. Who do we believe?

Prof. Jane Ginsburg[3] comes to the same conclusion in rejecting the proposition that the WCT does not require protection against trafficking in circumvention tools:

“Such an inference seems unwarranted, because it would significantly diminish the effectiveness of the prohibition. First, limiting the prohibition to the act of circumvention would mean that copyright owners would need to discover and prove the commission of acts that may often occur in private, at the user’s home. This seems both difficult for copyright owners and undesirable to users. Second, outlawing the device as well as the activity is likely to have a greater impact on the provision of circumvention devices; without the device, less circumvention is likely to occur, and it is more effective to pursue a small number of device suppliers than the large numbers of their customers. Moreover, the formulation “the circumvention” should be read in the context of the sentence in which it appears. An interpretation that disfavors effective protection against circumvention by limiting the prohibited conduct to the sole act of circumvention, rather than encompassing the provision of devices as well, would be inconsistent with art. 11’s direction that member States “shall provide  adequate legal protection and effective legal remedies against the circumvention.”

OK. So circumvention tools are not allowable. But copying tools are. This makes absolutely no sense at all. Any copying tool has to circumvent the TPM. For that matter any device or software which allows access to the work has to circumvent the TPM. In effect, a DVD player is a circumvention mechanism.

Now I know that the argument which will be made here is that the DVD player manufacturer had to take out a licence with the DVD Forum (formerly known as the DVD Consortium). However how does the end user know that the manufacturer has legally done this? Anyone can lie. And quite frankly crooks lie as a matter of course.

But that’s a side issue. The point is that players are circumvention devices. The treaties state that circumvention devices are not legal. Therefore DVD players are not legal. None of which makes any sense at all. But we aren’t looking at the actual text of the Treaty. It says:

Article 11
Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Note the word ‘authors’. So if I publish a song that I’ve written, and choose to use Technological Protection Measures, any country that has signed the treaty is required to have in place ‘effective legal remedies’. If I’m not the author, there is no requirement for the country to have in place ‘effective legal remedies’ to protect Technological Protection Measures. Since there is no mention of licensees, there is no requirement to protect technological protection measures used by the licensee.

Possibly this explains the panic that I am seeing in Mihaly and Barry’s posts. The Emperor has no clothes.

In recognition of the need to provide rights and remedies against circumvention tools, the international norm of countries that have implemented the WIPO Treaties is to prohibit trafficking in circumvention tools. Countries and territories that have done so include the United States, Australia and Japan. As Dr. Ficsor pointed out, this requirement is also in the EU Directive which has been implemented by EU member states.
Glen Bloom, a well known Canadian copyright lawyer, and the vice-chair of the CBA’s Copyright Technical Committee, expressed the same opinion about the treaties after considering whether Bill c-60, which would not have provided legal protection for TPMs, could have complied with the WIPO treaties:
“‘A plain reading of Articles 11 and 18 of the WIPO Internet Treaties, the definition of “technological measure” and new section 34.02 inevitably raise questions about the adequacy of the protection for technological measures to enable Canada to ratify the WIPO Treaties. In fact, in view of persuasive commentary including in particular the WIPO Guide and legislative developments among Canada’s trading partners, the inevitable conclusion is that Canada’s legislation could not adequately implement its obligations regarding technological measures under the WIPO Internet Treaties without significant amendment to the definition and new section 34.02.”[4]

But only if the person implementing the TPM is the author. A plain reading of the text indicates that this was the intent of those who drafted the treaty.

3. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertions that “the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach.”

Response by Prof. Geist. Prof. Geist did not respond or take issue with this claim by Dr. Ficsor.

Ah, but I’m not Prof. Geist. Explain the copying exception in Germany, and the website exception in Spain for me please.

Dr. Ficsor ends his posting by asserting that Prof. Geist’s views “about the obligations under two WIPO Treaties and about the way the EU Member States have implemented them are groundless and misleading.” There is nothing in Prof. Geist’s reply that should change anyone’s opinion’s on the substance of Dr. Ficsor’s rebukes of Prof. Geist.

Ah, but there was in my response to Doctor Ficsor, which you have totally ignored. As yet neither of you have provided us with any peer reviewed studies indicating the economic benefits to the citizens of Canada (or any other country) to ratifying these treaties. You also have not explained by so many other countries have not ratified these treaties:

European Union (but you said that they’ve signed – I will assume your good faith, and that the page has just not been updated yet)
South Africa
United Kingdom

Some of these countries are EU members, and their status may change when and if the web page is finally updated. However it is curious that they aren’t listed as EU member states, but rather separately. Is there something else you are not telling us?

[1] WIPO Guide Geneva 2003 at para CT-11.16.
[2] Reinbothe and von Lewinski, The WIPO Treaties at  141, 144-145
[3] Ginsburg Legal Protection of TPMs  at  8.
[4] Technological Measures and Rights Management Information October 25, 2005

While the references look interesting, your failure to link to the sources has me wondering if these documents actually exist, and if they do exist, what their worth is.

In closing – I don’t know what Prof. Michael Geist is thinking. I don’t know why he responded to Doctor Ficsor in the way he did. I’ve never meet him, an
y more than I’ve ever meet Doctor Ficsor or yourself. And quite frankly it doesn’t matter.

What does matter is that:

1) Both you and Doctor Ficsor have inaccurately quoted the treaties
2) Both of you appear to have an undisclosed vested interest in the treaties
3) Both of you have provided no documentary proof that there are benefits to ratifying the treaties
4) Both of you appear to have issues with the truth

And both of you appear terrified that someone will call you out on this. Well, I’m calling you out. What are you hiding, and why are you hiding it?


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