South Korea Considers Dumping Draconian Copyright Law Forced On It By The US

from the all-in-it-together dept

As Mike noted a couple of days ago, international trade agreements often have the effect of constraining the power of national legislatures. Indeed, that's doubtless one of the reasons why they have become so popular in recent years: they allow backroom deals between politicians and lobbyists to set the agenda for law-making around the world, without the need for any of that pesky democratic oversight nonsense. In particular, the trade agreement between South Korea and the US is turning out to be a key limiting factor for both TPP and what US politicians might try to do about phone unlocking. This makes two recent moves to loosen South Korea's harsh copyright laws potentially important far beyond that country's borders.

The first concerns a report by the National Human Rights Commission of South Korea on human rights in the digital age. Among other recommendations, it makes several for reforming Korean copyright law. Heesob Nam provides a useful summary:

Introduction of comprehensive and open-ended fair use provisions in the Copyright Act;

Legislation of users' right capable of offsetting abusive enforcement of copyright;

Guaranteeing the reuse and access of the general public to publicly-funded information and culture;

Balanced harmony of intellectual property and the right to culture and information;

These might seem mild enough, but against the current background they are likely to be seen as quite radical in giving more rights to the public, for a change. The commission also calls for South Korea's existing implementation of the three-strikes approach to be reconsidered and, if necessary, repealed:

Regulations such as copyright three-strike-out rules, technological protection measures, and game shut-down, the regulatory effectiveness of which is doubtable and may restrict the right to culture and information, need to be examined in depth to see if they infringe other constitutional rights and, if necessary, such regulations are to be revoked.

Revocation of three strikes is precisely what one Korean politician hopes to achieve, as pointed out to us by @maira:

On March 24, 2013, Mr. Choi Jae-Cheon, a member of the Culture, Broadcasting, and Tourism Standing Committee of the Korean National Assembly, along with other twelve other sponsors, announced his proposal to repeal this provision of the law, which has been in force since 2009.

The problem, as is so often the case with copyright, is that the law has turned into a monster, suffering function creep and leading to disproportionate punishments. Global Voices explains:

Since the law was enacted, the Korean government has sent 468,446 takedown notices to users and shut down 408 website accounts. The law has affected far more users than it was originally intended to -- it was passed with the goal of targeting users engaging in massive amounts of illegal downloading, estimated at about 1,000 users. But in fact, according to Mr. Choi's investigation based on his team's collected data from MCST [Korea's Ministry of Culture, Sports, and Tourism], among 380 users whose accounts have been shut down, 174 (45.8%) of them inflicted damages of less than US$.90. Mr. Choi argues that their punishment, which constrains their right of access to information, is much harsher than the cost they incurred. Therefore, the law not only violates legal due process -- it is also inefficient from an economic perspective, and it imposes a punishment that is disproportionate to the crime.

According to the same article, this is no mere one-off action, but part of a broader reform movement in South Korea:

This and other Internet-related policies have brought together professors and activists who are forming new non-profit organizations focused on Internet rights. This emerging public coalition shows a promising sign of a new counter-force against state-guided Internet and communication policy making processes in South Korea.

That would be a hugely welcome development, which might help to bring some much-needed balance into the nation's copyright laws. And just as bad, one-sided copyright laws in one country can adversely affect the public elsewhere through trade agreements, let's hope that good, proportionate ones -- if we ever get them -- can be equally far-reaching.

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Filed Under: copyright, korus, south korea, three strikes, us

Now US Wants Transatlantic Free Trade Agreement With European Union To Include Turkey: Who's Next?

from the interesting-geography dept

Last week we wrote about the important news that Mexico is asking to join what began as a bilateral trade agreement between the US and Europe, with the suggestion that Canada might follow suit. Now, via @FFII, we learn that even before Mexico's announcement, the US has been encouraging other countries to join:

Turkish Foreign Minister Ahmet Davutoglu said Wednesday US Secretary of State John Kerry wanted Turkey to be included in Transatlantic Free-Trade Area (TAFTA).

Davutoglu said they would follow closely the process of Turkey's inclusion in TAFTA.

As with Mexico's application, it would seem that the European Union doesn't get any choice in the matter. But what's really interesting here is that it confirms the impression that the US is keen to build out TAFTA to include many more countries, including some far from the Atlantic that originally defined it. The big question is now: who's next on the list?

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Filed Under: eu, free trade agreement, tafta, transatlantic, turkey, us

Mexico Will Ask To Join US-EU Transatlantic Trade Agreement

from the really-getting-serious dept

Things are moving fast with the proposed US-EU transatlantic free trade agreement (TAFTA). It was only a few weeks ago that the formal announcement was made, and already another country wants to join, as pointed out by @PostActa (original in Spanish):

The Mexican government wants to be part of the negotiations of the Transatlantic Association of Trade and Investment (TTIP, in its English acronym), which the United States and European Union will be negotiating, with the idea that there will be two blocks that make up the future pact.

That is, alongside the EU block of 27 countries, Mexico is suggesting there should be a similar regional grouping in North America. Interestingly, the story says that the Mexican government will ask the US President for permission to join, with no mention of asking the EU:

"It is a sovereign decision of Washington as to the approach and the negotiation strategy to be adopted", and although the U.S. government has already referred to the idea, it is something that is not yet included in a formal dialogue, and needs to be defined.

That suggests that the US is actively involved in this latest move -- maybe even its instigator -- and would look favorably on Mexico joining TAFTA. There's also a hint in the article quoted above that Canada too might join TAFTA. Having both Mexico and Canada on board would be consistent with the US's past approach, where it allowed them to join the TPP negotiations, but on fairly humiliating terms that limit their scope of action.

Whether or not Mexico and Canada become part of TAFTA, and under what terms, it's pretty clear what the US strategy here is. Just today we learned that South Korea is likely to join Japan in asking to sign up to the TPP talks. That would make TPP the defining international agreement for the entire Pacific region. TAFTA obviously aims to do the same for the Atlantic. As well as establishing the US as the key link between the giant TPP and TAFTA blocs, this double-headed approach would also isolate the main emerging economies -- Brazil, Russia, India and above all China -- if they refuse to join as presumably junior partners. That globe-spanning pair of trade pacts, it would seem, are what Obama hopes to be remembered for when he leaves office: his legacy to America -- and to history.

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Filed Under: eu, europe, intellectual property, mexico, tafta, trade agreements, us

So Much For Protecting US Interests - Most Big 'IP Intensive' Firms Are Foreign-Owned

from the well,-look-at-that dept

These days, it's become quite common to talk about the importance of spreading copyright maximalism around the globe based on the US's interests. After all, the US seems to be the leading country in pushing for such maximalism, and people often talk about the big copyright players and their lobbyists, as being US-centric. After all, there's Hollywood for movies, NY for publishing and NY/LA/Nashville for music. And, so much activity seems to be driven by their lobbyists -- mostly the RIAA and MPAA. However, a new study is pointing out, for all this talk of the "American entertainment industry" driving the discussion on copyright laws, that a very, very large number of these companies are actually foreign, and much of the industry is really foreign (pdf). There's a nice infographic to go along with the report as well: The paper starts out by questioning a key assumption that is made frequently, by calling out a specific statement by IP Czar Victoria Espinel:

Americans are global leaders in the production of creative and innovative services and products, including digital content, many of which are dependent on the protection of intellectual property rights.

The paper notes that many have challenged whether or not those industries are truly "dependent" on intellectual property laws, but few have explored whether or not those industries are really "American." Turns out... they're not. And, as such, if we're making policy based on just propping up the few legacy companies who run those industries, we're often funneling US money to foreign countries, rather than investing it in the US. Among the findings (many of which are in the graphic above):

• Four of the "Big Six" publishers (who represent a huge percentage of English-language book publications) are foreign-owned. More than 80% of the revenue made by the Big Six goes to foreign-owned companies.
• Only 7 of the world's top 50 publishers are US-owned.
• The book publishing business in Europe employs twice as many people as the US
• Two of the three major record labels are foreign-owned. Those two labels represent nearly 60% of the market.
• 13 out of the 20 best-selling artists are not American.
• Half of the 50 most popular movies in the US in 2012 were filmed partly or entirely outside the US.
• Over the last two years, half of all Oscar winners were foreign.
• The video game market is dominated by Japanese firms, with 70% of the market for the most recent generation coming from Japan

The report finds that this carries over to the patent side as well.

• Foreign companies obtained 7,000 more US patents than US companies in 2011 (likely a bigger gap in 2012)
• Seven of the top 10 companies getting US patents were foreign in both 2011 and 2012.
• Nearly 60% of pharmaceutical revenue is generated by foreign-owned companies.
• The majority of employees in the pharma industry (including for US-owned firms) work outside the US.

Basically, the more you look, the more you realize that even with all this talk of how we need these laws to protect US interests, a significant amount of any benefits may actually be flowing right out of the country.

Filed Under: book publishing, foreign-owned, ip intensive industries, patents, record labels, us

USTR To Canada: 'Bow Down And Accept ACTA!' Canada: 'Yes, We Shall Do Your Bidding'

from the why? dept

The story of ACTA is well-known by now. ACTA was yet another attempt by copyright and patent maximalists to spread maximalist principles further via a secretive treaty that allowed certain industries to participate in the process, but kept out any and all concerns from public interest groups, the public itself, and innovative industries that would be harmed by the laws. Thankfully, widespread protests in the EU resulted in ACTA being declared dead there, as the EU Parliament refused to agree to ACTA. And, without the EU, it's questionable if ACTA will ever be a real treaty in any way that matters. Yes, some countries have signed it, but there are still some ratification processes necessary, and without the EU on board, the whole thing seems kind of pointless. Other negotiating countries, including Switzerland, Australia and Mexico have indicated that they are not fans of ACTA either.

Many assumed, therefore, that ACTA was dead. But... not the US apparently. Nor Canada. In an announcement today, the USTR is apparently acting as if the months of ACTA protests and the death of ACTA in Europe didn't happen. Instead, it's all about pressuring countries like Canada by claiming that they need "to meet its Anti-Counterfeiting Trade Agreement obligations." Seriously, now?

Now, if I'm a Canadian politician, this is the point where I tell the USTR to go pound sand and to recognize that the world has clearly rejected the concept of ACTA, and having just gone through a long and arduous copyright reform process (also mainly because of US demands from the likes of the USTR), that the USTR should go pick on some other country to bully.

Instead, however, we get near complete capitulation. With near perfect timing, a bill has been introduced in the Canadian Parliament to bring Canadian IP law into line with ACTA. Why would they even bother?

The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.

It's really amazing that they're willing to open this can of worms, given just how strongly people fought back against ACTA elsewhere. Michael Geist has a good initial analysis of the bill at the link above, and will likely follow up to call out some more specifics in the 52 pages of changes to copyright and trademark law, but just the fact that Canada is bothering to move forward on this is troubling. It shows a Canadian government who doesn't seem to care about what the public wants, but rather feels the need to kowtow to US entertainment and pharmaceutical lobbying interests.

The first is that this bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect (six ratifications are needed). ACTA is toxic in Europe, where officials now go out of their way to assure the public that ACTA is dead and that any new agreements will not involve efforts to revive it. ACTA has also faced serious opposition in other negotiating countries, including Switzerland (which has not signed it), Australia (where a Parliamentary Committee recommended against ratification), and Mexico (where the Senate rejected it in 2010). ACTA was promoted as a "gold standard" agreement on counterfeiting, yet the failure to garner support from many participants has left an agreement that is often cited as an example of how not to engage in international negotiations.  Given the global opposition, Canadian support for ACTA is disappointing.

For many years, Canada has strongly resisted US-style copyright laws, despite tremendous pressure to do so. Watching them cave on ACTA is certainly a disappointment. Meanwhile, watching the USTR pretending as if ACTA went forward as planned is simply par for the course, and a reminder of just how completely detached from reality that organization remains. Elsewhere in the USTR's agenda release today, it mentions working with Japan to bring ACTA into force, which is somewhat laughable, considering how many countries have been rejecting it.

Filed Under: acta, canada, copyright, us, ustr

Canada Denies Patent For Drug, So US Pharma Company Demands $100 Million As Compensation For 'Expropriation'

from the money-for-nothing dept

An increasingly problematic aspect of free trade agreements (FTAs) is the inclusion of investor-state provisions that essentially allow companies -- typically huge multinationals -- to challenge the policies of signatory governments directly. The initial impulse behind these was to offer some protection against the arbitrary expropriation of foreign investments by less-than-democratic governments. But now corporations have realised that they can use the investor-state dispute mechanism to challenge all kinds of legitimate but inconvenient decisions in any signatory nation. Here's a good example of how this provision is being invoked to contest a refusal by Canadian courts to grant a patent on a drug, as explained on the Public Citizen site:

Eli Lilly and Company has initiated formal proceedings under the North American Free Trade Agreement (NAFTA) to attack Canada's standards for granting drug patents, claiming that the denial of a medicine patent is an expropriation of its property rights granted by the agreement. The investor privileges provisions included in NAFTA and other U.S. "free trade" agreements (FTAs) empower private firms to directly challenge government policies before foreign tribunals comprised of three private-sector attorneys, claiming that the policies undermine their "expected future profits." Eli Lilly's move marks the first attempt by a patent-holding pharmaceutical corporation to use U.S. "trade" agreement investor privileges as a tool to push for greater monopoly patent protections, which increase the cost of medicines for consumers and governments.

The claim that denying a patent is somehow an "expropriation" of property is pretty extraordinary. Patents are intellectual monopolies that are granted by governments; Eli Lilly does not have such a monopoly in Canada unless the government there grants it, which it does by applying its well-established laws and rules. Here's the background to the current dispute:

Eli Lilly launched its NAFTA attack after Canadian courts invalidated Eli Lilly's monopoly patent rights for an attention deficit hyperactivity disorder (ADHD) drug, having determined that the drug had failed to deliver the benefits the firm promised when obtaining the patent. However, in its formal notice of intent to take Canada to a NAFTA investor tribunal, Eli Lilly makes clear that it is not only challenging the invalidation of its particular patent, but Canada's entire legal doctrine for determining a medicine's "utility" and, thus, a patent's validity. While pushing for a patent standard that would raise medicine prices, Eli Lilly, the fifth-largest U.S. pharmaceutical corporation, is demanding $100 million from Canadian taxpayers as compensation for Canada's enforcement of its existing medicine patent standards.

Basically Eli Lilly failed to deliver its side of the bargain, since the drug doesn't work very well, so Canada refused to allow the company to retain a patent that was contingent on it being effective. What's worrying is that the drug company's present action is not just challenging that decision, but the whole approach that requires drugs to work well enough to deserve a patent -- not unreasonably.

The case will not be heard before any ordinary national or even international court, with all that this implies in terms of transparency and fairness, but by a very special kind of tribunal:

The tribunals are comprised of three private sector attorneys, unaccountable to any electorate, who rotate between serving as "judges" and bringing cases for corporations against governments. The tribunals operate behind closed doors, and there are no conflict of interest rules. The tribunalists are paid by the hour and governments are often ordered to pay for a share of tribunal costs even when cases are dismissed. There is no limit to the amount of money tribunals can order governments to pay corporations. There are very limited appeal rights.

The entire approach is clearly biased towards companies and against the national governments, so the following facts will come as no surprise:

Under U.S. FTAs and related deals, private investors have already pocketed over $3 billion in taxpayer money via investor-state cases, while more than $15 billion remains in pending claims.

However, bad as things are currently, they promise to get even worse if the TPP agreement is finalized in line with leaked versions:

Ironically, while Canada faces an investor-state challenge from Eli Lilly, the country has joined negotiations to establish the TPP, which would expand the investor-state system further. To date, Canada has paid more than $140 million to foreign investors after NAFTA investor-state attacks on energy, timber and toxics policies. Part of Eli Lilly's claim against Canada is that the invalidation of its patent constituted an expropriation of its "investment." NAFTA does not list patents in its definition of a protected "investment," although some analysts have long worried that the broad, vague NAFTA definition could be used to attack medicine patent policies. But in the TPP, the proposed Investment Chapter explicitly names "intellectual property rights" as a protected "investment."

That is, TPP aims to formalize precisely the argument that Eli Lilly is trying to make using some rather far-fetched legal logic, discussed at length in the Public Citizen post quoted above. Moreover, it seems highly likely that a similarly far-reaching investor-state section will be included in the new Transatlantic FTA (TAFTA), now being discussed more widely.

The central problem with these investor-state provisions is that they elevate companies to the level of entire countries. Secret, unaccountable and biased tribunals with unlimited powers then enable them to overturn democratic decisions and legislation passed to preserve things like public health or the environment, simply because they would reduce corporate profits. And yet few people are even aware that such investor-state provisions exist, despite their massive impact on the lives of millions. That's a hugely troubling combination for the future.

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Filed Under: canada, expropriation, investor-state provisions, nafta, patents, tafta, trade agreements, us
Companies: eli lilly

US And Europe Move On To TAFTA: Yet Another Chance To Push Through ACTA/SOPA Style IP Maximalism

from the it-never-ends dept

ACTA and SOPA may have flopped, but minor setbacks like that won't stop the onslaught of abuses from the entertainment and pharmaceutical industries looking to use the international treaty process to try to pressure everyone to keep ratcheting up protectionist laws concerning copyright, patents and trademarks. Obviously, we've been talking about the still worrisome TPP agreement involving a bunch of Pacific Rim countries, but it's not stopping there. Back in October, we warned that the US and EU were preparing a new trade agreement as well, and the preliminary plans noted that it would include a "high level of intellectual property protection, including enforcement."

More details are starting to come out as the main EU negotiator for ACTA, Karel de Gucht, came to DC to see about getting things kicked off, on an agreement that's being called TAFTA -- the Trans Atlantic "Free Trade" Agreement. Of course, instead of recognizing the lessons from previous failed efforts to push for broken maximalist policies, it appears that the plan is to try, try again. Some are already saying that this is "the opportunity to try to set the gold standard" in copyright, patent and trademark protection. The goal, as with ACTA and TPP is to ratchet up the laws, and then put tons of pressure on China and India to "respect" those laws. To put it mildly: this is stupid. Both of those countries recognize how protectionism works. We've already seen that China is becoming exceptionally good at using patent laws to basically punish foreign companies, while helping domestic Chinese companies. It seems downright idiotic to provide them with even more tools to do so.

Of course, the real questions are why do we keep letting our governments negotiate these kinds of deals, and why do we let them do so in secret?

Filed Under: acta, copyright, europe, free trade agreements, international agreements, ip, sopa, tafta, treaties, us

The Many Motivations Of Movie Piracy (Notably Absent: 'I Want Everything For Free')

from the copy-culture dept

In the recently released Copy Culture In The US & Germany survey report from the American Assembly (for which we provided the design & layout work), one small but especially interesting component is the list of reasons given for downloading TV shows and movies. The American responses were pretty evenly distributed among the various key reasons, and serve as a laundry list of things that piracy does just slightly better, or slightly more permissively, than most legitimate sources:

Why I Download TV/Movies For Free (US, Based On Americans Who Do)

While price was one of the top three reasons, this hardly paints a picture of penny-pinching freeloaders—rather, it shows emerging trends in media consumption that distributors and rightsholders simply can't keep ignoring. Absolutely none of these responses are surprising, because they are exactly the way people have been interacting with the majority of content online for years now. They share, they use multiple devices, they expect comprehensive access and a choice of sources, they want access as soon as possible, and they are put off by obtrusive advertising.

Of course, that last item is a bit of an oddity. The knee-jerk reaction among most people is that all advertising is bad, but that seems to underestimate the amount of stuff that advertising pays for or subsidizes, and that most of us happily enjoy on a daily basis. Advertising is one of those things that only ever gets badmouthed, because you only focus on it when it's bad — when it's good it doesn't register as advertising because it doesn't register as intrusive. The perennial buzz around Superbowl commercials and the 44-million views on Old Spice's famous viral ad support this notion pretty strongly.

In the world of online television, I think there's room for both subscription models and advertising-funded models — and even some combinations of both if balanced correctly. But until content providers start tackling the overall problem by catching up to pirate sources in the many areas where their services fall short, no model is going to succeed in defeating piracy.

Filed Under: copy culture, copyright, germany, motivations, piracy, sharing, studies, us

Japan Wonders Whether It Is Worth Joining TPP Negotiations After All

from the as-everyone-should dept

The Trans-Pacific Partnership (TPP) agreement began as a cosy treaty between just three nations: Chile, New Zealand and Singapore. But once the US joined in 2010, this small-scale partnership suddenly became something much more significant. As USTR Ron Kirk put it in a press release at the time:

The development of our negotiating positions will be a collaborative effort with elected leaders and stakeholders here at home, in order to shape an eventual Trans-Pacific Partnership Agreement that is a new kind of trade agreement for the 21st century, bringing home the jobs and economic opportunity we want all our trade deals to deliver.

That "new kind of trade agreement" began to take shape as other major Pacific rim countries signed up: first Australia, Peru, and Vietnam, then Malaysia. More recently, Canada and Mexico have joined, albeit as junior partners with diminished negotiating powers. Another important player in the region that has expressed an interest in participating is Japan. But it seems that domestic politics may well scupper that plan:

Prime Minister Shinzo Abe is facing challenges in handling the issue of Japan's participation in the talks for the Trans-Pacific Partnership free trade framework.

While Abe hopes to express willingness to take part in the talks during a summit with U.S. President Barack Obama set for late this month, he is still wavering on the issue due to strong opposition from within his own Liberal Democratic Party [LDP].

Here's where the problem lies:

A strong backlash, however, is expected from some LDP members who are concerned the party will lose votes from agriculture-related sectors if Abe announces Japan's bid to join the talks.

That's not really surprising; after all, in the same press release quoted above Kirk states quite bluntly:

USTR will now intensify consultations with Congress and with American stakeholders to develop objectives for the Trans-Pacific Partnership agreement negotiations, in order to enter already-scheduled talks in March with a robust U.S. view that seeks the highest economic benefit for America's workers, farmers, ranchers, manufacturers, and service providers, and that reflects our shared values on labor, the environment, and other key issues

But if US farmers and ranchers gain "the highest economic benefit", it's quite likely that those in the agricultural sector in the other TPP countries will lose out -- precisely what Japan's LDP members fear. Of course, the standard line is that free trade agreements are great because everyone gains, but the reality is not so rosy. Indeed, even the US has been suffering overall in the case of the recent FTA with South Korea, which is being held up as a model for future treaties:

In the first eight months of the U.S. Free Trade Agreement (FTA) with Korea, implemented in March 2012, U.S. goods exports to Korea fell by nine percent (a decrease of more than $2.5 billion) in comparison to 2011 levels for the same months. Ironically, some of the biggest downfalls in U.S. exports occurred in the automotive and meat industries -- the two sectors that the Obama administration had promised would experience export growth under the deal. The decline in U.S. exports under the FTA brought a 21 percent increase in the U.S. trade deficit with Korea, in comparison to the same period in 2011. Using the same ratio employed by the Obama administration, this trade deficit expansion implies the net loss of over 16,000 U.S. jobs under just the first several months of the Korea FTA.

Given the fact that the US economy has already been damaged by this recent FTA, the fears in Japan that its agricultural industry will be hit, the many concerns about TPP's investor-state dispute mechanism, plus its negative impact on online freedom and access to medicines, the question has to be: why bother with an overly-complicated, secretive treaty whose risks are many and real, while the gains seem few and uncertain?

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Filed Under: free trade, japan, tpp, us