Congress May Not Be So Eager To Simply Hand Over Its Own Authority To The Obama Administration To Approve TPP

from the a-good-sign dept

We have all sorts of concerns about the TPP Agreement (Trans Pacific Parntership), but as we've discussed (both recently and in the past), a huge concern is over "trade promotion authority" or "fast track authority," in which Congress completely abdicates its Constitutional role "to regulate commerce with foreign nations." Basically, this power allows the USTR, which is a part of the executive branch, to get Congress to more or less give the USTR the "power" to finalize the trade agreement. Without it, Congress can -- as it should -- debate the different parts of the TPP agreement, and push back on the (many) problematic ones. Yet, if Congress gives up that power, without even seeing the full agreement (!?!?), then all Congress can do is a simple yes or no vote -- and there will be so many goodies in there that it will be difficult for them to reject the entire agreement.

The USTR and President Obama have been talking about the importance of getting this fast track authority from Congress for years -- but nothing has really come of it, nor has there been a direct public request. That suggests the administration knows it doesn't have the votes. In the past couple of months, the lobbying effort for getting fast track authority has ramped up a lot. While I still fear that Congress will cave on this, in the past few days, a group of 22 House Republicans and a (somewhat shocking) group of 151 House Democrats have sent separate letters to the White House, saying that they're opposed to granting fast track authority. Basically, it appears that Congress might actually be standing up for itself (shocking) on this issue, rather than just caving. That's nearly, though not quite, half of the House. It's not enough yet, but it does show that this isn't going to be easy (which again explains why there's been no real direct request yet).

The Republican letter focuses on the fact that Congress is supposed to (as per the Constitution) manage the nation's trade policy -- not the executive branch. The Democrats' letter calls into question the lack of consultation with Congress during this process (directly contradicting the USTR's own bogus claims of "working with Congress." The letter doesn't hold back on criticizing the White House, despite being from the same party:

For some time, members of Congress have urged your administration to engage in broader and deeper consultations with members of the full range of committees of Congress whose jurisdiction touches on the numerous issues being negotiated. Many have raised concerns relating to reports about the agreement’s proposed content. While your Administration’s goal was to sign a TPP FTA at the October 2013 Asia-Pacific Economic Cooperation summit, we believe that to date the process has failed to provide adequate consultation with Congress.

Such opportunity for input from Congress is critical as the TPP FTA will include binding obligations that touch upon a wide swath of policy matters under the authority of Congress.

It later notes that fast track authority "is simply not appropriate for 21st Century agreements."

A NY Times story about the letters notes that there's a lot of anger that the USTR has blocked Congressional staffers from even being able to take part in the negotiations or the discussions -- something we've discussed over the past couple years.

The amazing thing here is that this mess that the USTR and President Obama are in right now over TPP was easily avoidable. Rather than negotiating in secret, and only sharing drafts with a select group of deep industry insiders, they easily could have and should have opened the discussion up publicly. The USTR should have released its own negotiating drafts from the very beginning, so that the public and Congress could weigh in while the process was ongoing. That way, there would be no surprises and no concerns. Instead, they kept the public and Congress out of it entirely -- putting extra special precautions against the public or Congress from finding out what was going on, so that we know the final product will have massive problems. And now they want Congress to just say "Sure, we trust you got it right"? Really? The USTR screwed this one up badly, and it's good to see Congress pushing back on this blatant attempt to usurp Congress' own powers.

Filed Under: congress, copyright, fast track authority, international trade, patents, tpp, trade promotion authority

Won't Somebody Think Of The Cows? New Zealand On The Brink Of Sacrificing Its Digital Future In TPP Negotiations

from the short-sighted-thinking dept

Even before Wikileaks released the full text of TPP's IP chapter, New Zealand's Creative Freedom Foundation had already been given some hints about what was coming:

Last week the Creative Freedom Foundation participated in a group briefing and Q&A session with David Walker, NZ's Chief Negotiator in the Trans Pacific Partnership Agreement, and officials Angela Strahl and Yvonne Woutersen.

The meeting made it quite clear that, although the details aren't final, we can expect to lose many remix rights and see a greater 'orphaned works' problem here in New Zealand in exchange for more dairy exports to the U.S. Rather than further protecting artists' rights, this move will prop up a fundamentalist approach to copyright that will drain the pool of works currently accessible to artists who wish to freely build upon them.

…

NZ's Parallel Importing abilities are likely to stay unchanged, as is the ability to set our own limitations and exceptions to our domestic Copyright law. However, it was strongly hinted at that an extension of our Copyright Term is inevitable.

What the country's TPP negotiators are effectively doing here is to surrender key rights that belong to all New Zealanders, for the sake of some minor, and probably temporary, financial gains for a single industry with powerful lobbyists. That's a terrible bargain for the country's future. If these concessions are made, it will not only impoverish artists and the general public, who will suddenly be prevented from using and building on vast swathes of the digital past, it will also make it far harder to set up 21st-century companies that are based on creativity, not cows.

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Filed Under: copyright, cows, fair use, international trade, new zealand, orphan works, remix, tpp, trade

President Obama Asks Congress To Give Up Its Oversight On Secret TPP Agreement

from the that's-not-a-good-thing dept

We've talked a few times about how the USTR and the administration are asking Congress for "trade promotion authority," which would effectively let it bypass Congressional oversight of the Trans Pacific Partnership (TPP) agreement. In fact, in many ways the USTR has been acting as if it already has this. The specifics of "trade promotion authority" or "fast track authority" are a bit down in the weeds, but the short version is that it's the administration asking Congress to completely abdicate its authority and mandate in overseeing international trade agreements. Basically, it removes the ability of Congress to seek any fixes or amendments to a trade agreement -- only allowing them to give a yes or no vote.

This might not be such a big deal if the TPP wasn't negotiated in near total secrecy. We've been told that a final agreement is getting close, but no official text has been released at all. What we know of the IP section is one draft that leaked out from well over a year ago. And, now, we're going to get a product that will be released to the public with little time for debate and no way to make changes should the public point out how ridiculous and dangerous it is.

And, of course, President Obama is insisting it's necessary to undermine the authority of Congress with a secret agreement that will have tremendous impact on Americans... just because he wants it. He announced to "the President’s Export Council" that "We're going to need Trade Promotion Authority." Let's be clear: the only reason the administration "needs" TPA is so that it can ram through the agreement without letting Congress do its oversight job. Trade Promotion Authority offers no benefit to the public at all. All it does is make sure that the USTR has less oversight and fewer limitations on selling out the public for a few big special interests.

The "Export Council" which is basically made up of leaders of those big special interests who are looking for protectionist (not "free trade") policies that help their bottom line, but harm the American public, made an even more ridiculous statement:

“We believe that new TPA legislation is critical to America’s trade leadership in the world,” the group said in one of eight letters to Obama it approved at the meeting.

Did you get that? They're claiming that if we actually let Congress do its Constitutionally-mandated job that somehow undermines America's "trade leadership?" Does anyone take this even remotely seriously? Of course, the problem is that very few are paying attention to this. "Trade Promotion Authority" sounds boring and if some big business leaders claims it's necessary, Congress will probably go with it -- even though it subverts their own powers.

If the USTR had actually been transparent, had released negotiating texts so that the public could give feedback, and that feedback was reflected in the eventual agreements, then maybe you could see how trade promotion authority might make sense. But when you have a secret agreement, driven in large part by industry lobbyists, which the public still hasn't been allowed to see, how could anyone possibly have a legitimate reason for suggesting that Congress abdicate its oversight role?

Filed Under: congress, fast track, international trade, tpp, trade promotion authority, ustr

Copyright Alliance Invents New History (And New Meanings For 'Big' And 'Little') To Condemn Antigua

from the hoist-on-their-own-petard dept

We recently wrote about how, after a decade-long dispute, Antigua appeared to really be moving ahead with its plan to set up an online site that purposely offered infringing works, violating US copyright law -- and doing so with the authorization from the WTO as a response to the US breaking an existing trade agreement that helped collapse the online gambling industry that was based in Antigua. We've already noted that the US government (as it's been doing for years) has threatened retaliation if Antigua goes forward with the plan, even though the WTO has given it the stamp of approval (and ruled against the US multiple times in this dispute, almost all of which have been ignored by the US, with the US flat out lying at one point and pretending it won).

And, of course, it's not just the US government upset by this: the big copyright players have started sputtering out angry screeds. Take, for example, this absolutely laughable historical revisionism from the Copyright Alliance, which talks about just how "unfair" this whole thing would be, since it impacts third parties. This may be the most tone deaf statement from copyright maximalists in a long time (and that's saying something, given who we're talking about):

First, it raises a question of fundamental fairness about the appropriateness of punishing an unrelated group for circumstances beyond their control. U.S. copyright owners have found themselves chips in a high-stakes international game with no recourse. In addition, TRIPs obligations implicate many downstream stakeholders -- distributors and licensees, for example -- who rely on stable IP rights to function, so suspension of these obligations would affect many individuals and companies in other sectors and even other countries.

Wait, so suddenly the copyright players are concerned about "fairness" and the "appropriateness of punishing an unrelated group for circumstances beyond their control"? Really? So, um, I guess that means they're now against copyright term extension, which did exactly that. Or how about the very fact that IP agreements are included in international trade agreements -- which imposed significant and severe punishments on citizens of countries around the globe "for circumstances beyond their control."

Oh, and now "US copyright owners have found themselves chips in a high-stakes international game with no recourse." Welcome to the club. How about the whole of the public of the US and many, many other countries, who have found themselves exactly that: chips in a high-stakes international game with no recourse. The Big Copyright players, including those who funded and created the Copyright Alliance, have engaged in this game for decades, using the whole international trade game to force copyright maximalism through international trade agreements and then forcing draconian, anti-public laws on countries around the globe.

So, pardon me if I find it laughable that they of all people suddenly are whining when the shoe is (just slightly) on the other foot.

As for those "downstream stakeholders" who rely on "stable IP rights to function"... So, that must mean that the Copyright Alliance is against changes to copyright law, such as pulling works out of the public domain, which totally screwed over "downstream" merchants who were making use of those works. Oh, wait, they liked that ruling. Huh.

The fact is that the copyright industry has had the run of international trade agreements for a few decades. For an enlightening exploration of just how the big copyright players completely inserted themselves into international trade agreements, and used them as a key (some would argue the key) strategy for ratcheting up copyright laws around the globe, check out the book Information Feudalism by Peter Drahos and John Braithwaite. It tells the somewhat horrifying story about how a few powerful corporate interests effectively hijacked the TRIPS and WTO processes to use them to spread ratcheting up copyright and patent laws around the globe. We've seen that play out over the past few decades, and there's something absolutely ridiculous to see them now complaining when a single tiny WTO ruling goes against their interests.

Have they no shame?

And, of course, these same copyright maximalists have been instrumental in a number of international agreements since then that have only served to ramp up copyright rules and enforcement. Most recently, for example, we've talked about ACTA and TPP -- both of which would punish the public and harm downstream stakeholders, using them as an uninvolved pawn in a high-stakes international trade game with no recourse. Yet, somehow, the Copyright Alliance and their backers like that... because they're the ones pulling the strings.

Second, application in this situation seems to run counter to the purpose of cross-retaliation. Since the 1990s, Antigua has set itself up as a safe haven for offshore gambling. Licensing of gambling services make up a significant portion of the country’s revenues. Cross-retaliation as a remedy is, in theory, supposed to provide leverage to smaller, less-developed countries in trade disputes against larger nations. But the Antigua gambling industry is composed of large, international corporations.

Okay, now this one also makes me laugh. Notice these two paragraphs quoted one after the other. In the first one, the Copyright Alliance tries to argue that it's these poor "downstream stakeholders" who are impacted by Antigua's WTO-approved plans. In other words, "think of the poor little guy." In the second paragraph, it argues that this is unfair because it really benefits "large, international corporations."

Uh, guess whose copyrighted works are likely to be sold in this store? You guess it. Those large international corporations who funded and created the Copyright Alliance. It's so incredible dishonest to pretend that this dispute is about big companies in Antigua somehow harming the little guy in the US.

Really, the copyright maximalists apparently have absolutely no shame in historical revisionism and blatantly dishonest and misleading statements about the situation at hand.

Filed Under: antigua, copyright, gambling, history, international trade, trade agreement, trips, wto
Companies: copyright alliance

The New Imperialism: Forcing Morality Shifts And Cultural Change Through Exported IP Laws

from the one-world-one-vision dept

As could probably be expected after its quick trip through the Congress, Panama's 510 Bill became law last Friday, granting its Copyright Office unprecedented power to pursue filesharers directly. But this is only one of several problems with the 510 Bill. The bill goes further than any US law, extending copyright protection to buffer copies and content stored in cache.

Transient copies, such as buffer copies on a computer’s random access memory (RAM), are necessary for a host of streaming services that carry content over the internet to end users. Recognizing a right to exclude such copies, in addition to the ultimate right to distribute the content itself, adds another layer of licensing requirements that can block innovative services (like Netflix or Pandora) from being offered. Many other trade agreements and national and regional laws contain explicit exceptions for “transient” or “incidental” copies necessary for technological or other communications. But the Panama Free Trade Agreement contains nothing of the kind, and neither does Panama’s law. By extending protection to temporary electronic storage, with no clear exception for transient electronic copies – the Panama bill fails to give internet service providers and other businesses the legal certainty they need to enter and maintain operations in Panama’s market.

The law also severely limits fair use, moving from an open-ended clause to a "closed list" system which narrowly defines fair use limitations and exceptions. The US has an open system, much to the chagrin of various content industries. Moving other nations to this more restrictive standard first will make it easier to bring ourselves in line with several other nations sometime down the road.

Users' rights are also being narrowly defined, erasing any trace of "balance" in Panama's copyright law. Between the severely limited fair use, the extension of protection to cover nearly every file that moves through a user's computer during normal internet usage and the government's ability to pursue filesharers with the burden of proof falling to the citizens, the public is left with nearly nothing.

Compare this legislation with Portugal's response to filesharing: a "hands off" approach to non-commercial infringement and the recognition that an IP address isn't necessarily a person. I would imagine that Panama's copyright office won't be interested in making that distinction, not when bonuses are at stake.

Is there a huge cultural difference in play here or is it just varying levels of pressure from content controllers (used to differentiate from content "creators," not all of whom espouse the same view as the industry "representatives")? Up until recently, Spain's view on filesharing was roughly the same as Portugal's, a viewpoint that seemed to draw extra attention (read: "pressure") from the US government and its associated trade organizations.

As the EFF notes, many Latin American countries used to have more progressive copyright laws, but recently passed legislation has changed much of that. The previous laws drew the attention of the US government, either landing these "non-conforming" countries on the infamous Special 301 list or threatening their participation in bilateral free trade agreements. Further pressure is being exerted by the highly secretive TPP whose negotiations seem to consist of shutting the public out and telling other nations how to run their own countries, IP-wise, while excluding them from negotiations.

Colombia pushed through incredibly extreme copyright legislation ahead of a visit from President Obama, ignoring an outraged public which had staged SOPA-style protests during the law's debut months earlier. Spain, like Portugal, also considered filesharing legal, until the US stepped in and rewrote its copyright laws after smacking it around with an appearance on the Special 301 report. Switzerland pushed back against outrageous Hollywood-backed claims about filesharing and is now on The List. Canada recently went through some copyright reform of its own, but apparently not to the liking of the entertainment industry, which has suggested it will simply overwrite the parts it doesn't like with the TPP.

The end result is the US government using protectionist policies to force cultural change on other countries, shifting legislative viewpoints to match up with corporate demands which routinely exceed the severity of our existing laws. In essence, "your culture is wrong." Should the US government be in the business (and it is very much a business) of applying "our" moral standard on other countries, especially when non-conformance is subject to threats implicit and explicit?

It's been stated here before that infringement is not a moral issue, but those pushing for harsher legislation and more enforcement abroad certainly believe it is. Making countries subject to compliance with an arbitrary moral standard (written by certain industries) as a prerequisite for entering an advantageous trade agreement doesn't create copyright converts. Instead, it creates the IP equivalent of "rice Christians" who allow the US to rewrite their IP laws in order to prevent being locked out of beneficial agreements by one of the most prosperous nations in the world. The end result is coerced compliance that runs roughshod over existing IP laws at the expense of their own constituents.

Applying a new moral standard via the institution of new laws that only benefit the industries being catered to sounds a lot like an advantaged group using its governmental patrons to conform the world to its preferred standards. The government of perhaps the most powerful nation in the world at your fingertips is the sort of thing that no industry, no matter how "beleaguered," should ever have at its disposal.

The end result is an entertainment industry occupation by proxy. The limitations enacted in order to enter a free trade agreement put these countries at a severe disadvantage by crippling local tech industries. Opening trade means very little when innovation is thwarted by legislative overreach.

Free trade agreements have great potential to unleash new competition in markets, producing better products and services at lower prices. This assumes, however, that these agreements actually lower barriers to trade.

Unfortunately, due to misaligned priorities and poor drafting, the U.S. Government’s framework for free trade agreements has neglected aspects of U.S. law that are instrumental to a flourishing Internet sector, and in doing so has erected new barriers to tech exports.

The trend of expanding liability and constraining the balancing provisions of copyright law also manifested recently in Colombia. Also responding to a recently enacted Free Trade Agreement with the United States, Colombia hurriedly passed a controversial copyright revision this spring which similarly left little flexibility for technology innovation. The upshot of the copyright law revisions in these countries is to erode certainty and discourage investment by online services, e-commerce platforms, device manufacturers, and ISPs. This is not lowering barriers to market access.

It would be a mistake to understand this as solely an issue affecting U.S. exports, however. In fact, it is a more serious issue for our trading partners, because while U.S. firms may look to more fertile export markets, Colombian and Panamanian firms must survive at home before they can reasonably expand abroad.

An economy stifled by restrictive additions to existing IP laws puts the continuing development in the hands of American special interests who don't actually care whether or not a country thrives as long as their own interests are protected. Sabotaging innovation to protect legacy business models is nothing more than imperialism redefined. The entertainment industry, speaking through the government, is now an occupation force, one that uses "free trade" as a cover for top down dominance of the native population by removing protections, erecting barriers and excluding the affected constituents from the legislative process.

Filed Under: colombia, copyright, international trade, ip, panama, portugal, tpp, treaties, ustr

Alternative To PIPA/SOPA Proposed; Points Out That This Is An International Trade Issue

from the it-is-a-trade-issue,-isn't-it dept

While the MPAA has been pretending that there are no alternatives beyond the insanity that is PIPA and SOPA, some in Congress have actually been hard at work on trying to think through the specific issues. And one key point has become clear: this isn't a law and order issue, but an international trade issue. Nearly all of the complaints are about the problem of "foreign" sites sending goods across the border into the US. So it makes absolutely no sense that this issue isn't under the purview of the Finance Committee, whose job it is to oversee international trade. Thus, a bill is being worked on that tackles the issues as an international trade issue. A "discussion draft" is being circulated on this (embedded below).

This new effort has bipartisan support in both the House and the Senate, and unlike SOPA and PIPA, seeks to try to focus in on situations that are actually problematic. In the Senate, it has the backing of Senators Cantwell, Moran, Paul, Warner and Wyden. All of whom had come out against PIPA, except for Warner. Adding him to this issue is big, given his experience in the business world. On the House side, it's Reps. Chaffetz, Campbell, Doggett, Eshoo, Issa and Lofgren. The focus would be putting the issue into the International Trade Commission, where there are experts focused on trade issues.

I think this is an approach that absolutely makes sense for counterfeit physical goods and the websites that sell them. Frankly, it's bizarre that it ever went beyond a discussion of international trade. It becomes somewhat trickier with copyright issues, and that's because you now have questions about how physical borders apply to digital networks. And I'm not sure I know how to best deal with that. Separately, having seen the ITC process on patents go off the rails at times, and become more of a way for patent holders to issue a "double whack" against a company they accuse of infringement, I'd be concerned about making sure that this process doesn't allow for two bites at the same apple. If it's properly focused on just foreign sites, that might not be as big an issue.

Either way, the devil will be in the details, but the details are still being written. Seeing as this is a discussion draft, I'm hearing that the folks involved really do want a discussion (unlike what we got with SOPA/PIPA), and that includes folks here. Take a look at the draft, and weigh in, knowing that some of the folks involved really will be reading what you have to say.

Filed Under: anna eshoo, copyright, darrell issa, international trade, itc, jason chaffetz, jerry moran, maria cantwell, mark warner, pipa, protect ip, rand paul, ron wyden, sopa, trade, zoe lofgren

Broadcasting Treaty Back From The Dead (Again)

from the it-just-won't-die dept

While the negotiations on the awful ACTA treaty are getting more attention these days, another awful treaty seems to be coming back from the dead. WIPO's Broadcasting Treaty has been out there for years. The idea is to add more new copyrights for content that's "broadcast," even though it's usually already covered by copyright. The end result would actually do significant harm to the public domain, because a broadcaster who broadcasts public domain content could then claim a "broadcast right" over that content -- basically reclaiming it from the public domain. The entire treaty is based on the faulty idea that ownership of content is somehow socially beneficial, when there's little evidence that this is true.

Some powerful entertainment industry folks have been trying to push this treaty through, as a way to force various governments to pass new laws that grant them these new copyrights, that will really be useful in keeping competitors from broadcasting certain content. So far, the treaty has repeatedly stalled out. Last year, we were encouraged when the Senate Judiciary Committee admitted that it was greatly troubled by the proposed treaty, noting that it would significantly harm consumers' rights. Soon after that, the treaty died, though we warned that certain interests would keep on pushing it.

And, indeed, that's exactly what's happening. At a recent WIPO meeting, it appears that the Broadcasting Treaty is back on the table, and doesn't appear to be going away any time soon. There are considerable disagreements over what it should include, so it might not move forward, but it's disheartening that it appears the US representatives at WIPO seem to have reversed their earlier position, and are now saying that webcast content should get this totally unnecessary and damaging "broadcast right" as well as content broadcast on other media. Hopefully the wrangling over terms will cause this treaty to die again -- but considering how much of an effort big media companies have put behind it, you can bet it won't go down without a fight.

Filed Under: broadcasting treaty, copyright, intellectual property, international trade, treaties, wipo
Companies: wipo

EU Continues To Give Bogus Reasons For Keeping ACTA Secret

from the transparency-please dept

One of the most disgusting displays of an industry crafting laws to benefit their industry in backrooms is the secret negotiations over the ACTA treaty. This is the international agreement on copyright that's basically been written by entertainment industry insiders, and will effectively force governments around the world to change copyright laws in favor of the entertainment industry. Yet, the actual negotiations are being held in secret. When confronted about it, various government negotiators have basically said it has to be secret because that's the way things are done. A few months ago, in defending the secrecy, one of the negotiators noted that it was being kept secret because negotiators had agreed to keep it secret. That's not a defense; that's a cop out.

Plenty of organizations around the world are pushing for more transparency and (*gasp!*) the actual inclusion of others who would be impacted by ACTA, but they're not finding it easy. Slashdot points us a press release from The Foundation for a Free Information Infrastructure. FFII had filed a request to the EU Council to release some of the secret documents related to the ACTA negotiation, and the EU Council flat-out refused to do so. It would appear that when the government seeks to put in place an industry's preferred legislation, it doesn't like being called out on it.

However, the more that individuals and organizations around the world speak up and demand that the details behind ACTA be made public, hopefully the more politicians will realize that they can't sell out society's overall best interest in favor of a few industries who are abusing the treaty process for their own interests.

Filed Under: acta, copyright, eu, intellectual property, international trade, treaties

Entertainment Industry Continues To Try To Sneak Copyright Expansion Through ACTA

from the more-sunlight dept

We've been pointing out how there needs to be a lot more sunlight shone on the discussion surrounding the new "ACTA" treaty, which is basically a way for the entertainment industry to sneak through new copyright laws without getting Congressional approval. Basically, the entertainment industry writes this international treaty, and the US Trade Representative gets it approved. Then, suddenly you get stories from lobbyists for the industry about how we need to change our copyright laws to live up to international agreements. Sneaky, right?

Now, according to William Patry, the US Trade Rep is resisting calls to open up the process by which ACTA is written, by claiming that ACTA is really pretty minor and won't require any substantive changes in US law. Of course, that's turning out not to be true at all. At that link, Patry looks at the RIAA's suggestions for ACTA, many of which would substantially change copyright law, in rather astounding ways.

It's a laundry list of an ideal world for the RIAA. Basically, everyone else would be responsible for policing any form of unauthorized usage for the entertainment industry. Things that are now civil offenses would become criminal, and the RIAA would have much lower burdens of proof. ACTA is turning into an agreement designed to prop up the RIAA by forcing everyone else to try to force the market to pretend that technology doesn't do what it was designed to do, and to try to hold back the more efficient market innovations that impact the established industry's business model. And they want to do it all in secret and without letting Congress even have a say in the process. And, to make it even better, it's apparently now on the fast track for approval.

Filed Under: acta, copyright, intellectual property, international trade, treaties

Debunking The Faulty Premises Of The Pirate Bay-Criminalization Treaty

from the this-again? dept

The entertainment industry's lobbying efforts for stronger intellectual property laws is incredibly sophisticated. The more you follow their efforts, the more impressive you realize they are. Every time one aspect is somehow blocked, another almost immediately pops up somewhere else that has been simmering below the surface for months. While many more are aware of efforts to directly lobby politicians to change copyright laws, what gets less attention is the work that's put into various "international trade" treaties. Two years ago we wrote about how this was a favorite tactic of the copyright lobby. They basically write up a treaty for the government, who then signs the treaty with a bunch of countries, without anyone realizing all of the details. Then the copyright lobby starts using the crutch that all of the countries involved have to strengthen their copyright laws in order to "comply with our international treaty obligations."

Kevin Stapp writes in to let us know about the latest such proposed treaty that has been leaked to Wikileaks. The document is (not surprisingly) a wishlist for the entertainment industry and, as Wikileaks notes, it was distributed only to pro-stronger-copyright lobbyists for comment, and not to any consumer rights groups or those who recognize that stronger copyright can be quite damaging. Slashdot talks about what Wikileaks calls the "Pirate Bay Killer" clause that would force countries to criminalize significant facilitation of infringement, even if it's not for profit. Why countries should be criminalizing what is, in actuality, a business model question is never explained.

However, there are many more problems with the paper, including the fact that many of its most basic assumptions are either untrue or unproven. When you base an entire international trade treaty on questionable (or outright incorrect) assumptions, bad things will result. It starts out by noting:

The proliferation of infringements of intellectual property rights ("IPR") particularly in the context of counterfeiting and piracy poises an ever-increasing threat to the sustainable development of the world economy

Except that two recent government studies have shown no such thing. Both the GAO and the OECD have noted that both the magnitude and the impact of counterfeiting is greatly exaggerated by lobbyists. The paper goes on:

The consequences of such IPR infringements includes (1) depriving legitimate businesses and their workers of income; (2) discouraging innovation and creativity; (3) threatens consumer health and safety; (4) providing an easy source of revenue for organized crime; and (5) loss of tax revenue.

Let's go through those one by one. On point (1), this is simply untrue. As we've pointed out in the past, there's no such thing as "depriving" someone else of income -- otherwise convincing someone to go to a pizza shop instead of a deli would be considered a crime (you've "deprived" the deli of income). Where money goes is a marketing issue, not a legal one. If companies are having trouble convincing people to pay them for their products, that's their business model problem. Nothing is being taken from them.

On point (2), this is also simply untrue. Study after study have shown no corresponding decrease in innovation or creativity when intellectual property laws are weakened (or even removed entirely). In this day and age when so much creativity takes place outside of traditional intellectual property realms, it seems ridiculous to even suggest that creativity is somehow impacted.

The closest the paper comes to having a reasonable point is on point (3), but that really only applies in very narrowly defined cases (specifically involving dangerous counterfeit products that may not be safe). Yet, that's an extremely narrow area, and can be dealt with via other means, including anti-fraud law. And, when dealing with international trade issue, it seems like the sort of thing that ought to be handled by customs, rather than with some big intellectual property treaty.

Point (4) is a favorite claim by the industry, but it's never been backed up with any significant evidence. I'm sure there are some organized crime groups that traffic in counterfeit products -- but again, that can and should be dealt with by other laws. Strengthening intellectual property laws to combat organized crime is a misuse of intellectual property laws.

The question of tax revenue (5) is also a favorite of the industry that relies on only counting the ripple effects in one direction. That is, it assumes that the lost tax dollars come from things like the sales tax on software products that would be bought, but fails to count the economic growth and additional tax from businesses who are able to more rapidly grow the economy through the use of cheaper software.

So the entire underpinning for the argument in favor of these "trade agreements" is a house of cards (if that much). But for those who aren't all that familiar with the space (or whose political campaigns are funded by the entertainment industry), these claims are all taken as a given. That should be seen as a serious problem.

Filed Under: copyright, intellectual property, international trade, treaties
Companies: pirate bay