Nic Garnett on premature regulation

Nic Garnett is the principal consultant for Interight.com (DRM consultants), and was talking at the VI Computer Law World Conference about his report produced for WIPO – Automated Rights Management Systems and Copyright Limitations and Exceptions. Garnett has been representing copyright industries and TPM developers for over a decade, and was heavily involved in the development and negotiation of the 1996 treaties (WCT and WPPT). He set out to prepare as objective a report as he could. I'll leave questions of objectivity as an exercise for the reader.

I'm more interested in the process of legislating as a pre-emptive response to disruptive technologies. Garnett noted that during the 1996 WIPO treaty discussions, we accepted rather quickly that technology is going to have a large part in the regulation of copyright, and didn't spend much time thinking about the consequences. As a result, we ignored the details and are now struggling with shortcomings in that law. Garnett seemed to say that 1996 was probably too early to develop the treaties – the technology had not yet matured. Interestingly, he also noted that the future would be radically different to what we see today (“blogging will be seen as so 2006”).

The conclusion I'd draw is therefore that we should be _very_ careful next time – when we're creating regulation in response to what _may_ happen, there's a good chance we will get it wrong. When asked whether in the future we should try to legislate against disruptive technologies before the technologies had matured, Garnett was less certain. He noted that copyright law has always struggled to keep up with technology, and seemed to think that the alternative to early regulation was to ditch copyright law altogether instead of trying to keep up. The clear fear is that we're either going to regulate early, or leave our policies to technological determinism (and, implictly, to watch our industries whither in the meantime).

Unfortunately, I'm not convinced. The decisions we make at these early stages have far-reaching effects, and premature regulation always carries a significant danger of destroying future technologies – technologies that we can't currently imagine. This is a continuation of the theme Andres was talking about (below) – we are generally quite scared of new technologies, and it skews our discourse towards an artificial preference for the current state of affairs (even though once technologies mature, we no longer regard them as scary; indeed, we hardly regard them as technologies at all – Andres used the example of /I, Robot/, where Will Smith was able to save the world after catastrophic technological failures, where nothing was working, because he had a motorcycle – dependable, old-fashioned transport).

When we are trying to regulate future developments, we necessarily exclude potential stakeholders – we simply don't know what the future will bring. This means that there will obviously be an over-representation of the stakeholders who have an interest in the status-quo. Certainly I'm not saying that we have to refrain from any prospective decision making (there may be future developments we do want to prevent before they arise), but I think we need to be very careful before we do so.

Update:

  • Ian Brown argues that this report provides an example of why WIPO should open up its decision making process by openly soliciting tenders for its reports.
  • Andrew Adams has a good review of Garnett's presentation in much more detail.