How Multilateral Free Trade Agreements Are Bypassing Democratic Decision-Making Around The World

from the behind-closed-doors dept

One of the most worrying aspects of ACTA -- which began life as a "simple" treaty about combatting counterfeit goods -- was how it morphed into a new approach to global policy making. This had two key aspects. First, the treaty would be negotiated in secret, with minimal input from the public, but plenty from lobbyists, who were given access to key documents and to negotiators. Secondly, the results of those secret negotiations were designed to constrain the participating governments in important ways that nullified ordinary democratic decision-making. If at all, representative bodies were presented with a take-it-or-leave it choice; changing individual details was not an option.

That, in its turn, meant that public in those countries had very little chance to fight harmful provisions in a treaty, since the only way to do that was to persuade their government to reject it completely, which was extremely difficult after the years of negotiation. The European Parliament's dramatic refusal to agree to ACTA was largely because of the unusual division of power in the European Union.

TPP has adopted exactly the same process: negotiations behind closed doors, but this time, without even the occasional official release of drafts as happened with ACTA (luckily, there have been leaks.) And assuming the negotiations are concluded successfully, it is likely that national legislatures will be presented with the same take-it-or-leave-it offer, with huge pressure to accept.

More recently, the newly-announced transatlantic free trade agreement (TAFTA) between the US and the EU is gaining momentum, not least in terms of the countries that may ask to join. At the last count, these included Mexico, Canada and Turkey. The US has also started talking to West African states about a free trade agreement, and it's easy to see that being rolled into TAFTA at some point.

TPP is also expanding rapidly. Mexico and Canada have already joined, under pretty humiliating terms, while Japan has signalled that it wishes to do so. Recently we learned that South Korea and Taiwan are considering applying.

As we've noted before, putting together TPP and TAFTA, it's striking how they include all of the world's biggest economies outside the so-called BRICS group of emerging countries -- Brazil, Russia, India, China and South Africa. The natural response to being locked out of the two US-centric trade areas would be to form their own, and in fact India has begun talks with the Customs Union of Russia, Belarus and Kazakhstan about a free trade agreement. Significantly, enlarging that to including other nearby countries is already being mooted:

Kazakhstan's neighbour Kyrgyzstan is likely to be the fourth entrant and Tajikistan could over time be the fifth country to joint the Customs Union. Ukraine, Armenia and Moldovia would also be moving close to the Customs Union but for some time they are likely to be the first three countries outside the core.

Meanwhile, China is keen to form a major trade bloc with South Korea and Japan:

"China's intention is to first form a Northeast Asian economic cooperation that excludes the U.S. while Japan can't sit still as South Korea advances to the Chinese market with Korea-China free trade talks," said Heo Yoon, a professor at Sogang University Graduate School of International Studies.

It's easy to imagine other countries that are part of the Association of Southeast Asian Nations (ASEAN) Free Trade Area joining the group if and when formal negotiations get underway, not least because ASEAN already has free trade agreements with China, Japan and South Korea.

Although bilateral trade agreements are hardly new -- Wikipedia lists dozens of them, some going back to the 1980s -- there has definitely been a step-change recently. Increasingly, the emphasis is on joining multilateral free trade agreements like TPP and TAFTA, involving significant numbers of countries. On the part of smaller nations, their interest is probably driven by a fear of getting shut out of key markets. But for the bigger players -- notably the US and EU -- it's a convenient way of imposing unpalatable policies not just on the citizens of other countries, but on their own, too.

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Filed Under: acta, democracy, free trade agreements, policy making, tafta, tpp

The Power Of International Trade Agreements To Prevent You From Owning What You've Bought, And Why This Must Be Fixed

from the just-as-we-suspected dept

Back when the US was negotiating ACTA, we were among those who raised the alarm about just how troubling this trade agreement was -- negotiated in back rooms by the USTR, with details that were kept in secret until they were locked in. In response, many of our critics said that we were overreacting, since ACTA was merely an "executive agreement" which (1) could not bind Congress to anything and (2) would not require any changes to US law, so it was "no big deal." In fact, we were directly told that Congress would not feel bound by such things, so we should shut up with our "same tired arguments," which were nothing but a "chicken little mentality" based on "what ifs."

Of course, part of our very specific concern about ACTA was that even if it required no direct changes in law, it very clearly locked in existing problematic laws, making it much more difficult to fix those problems. And while it did not technically "bind" Congress, the second that anyone in Congress proposed a law that went against the international agreement, we'd hear screaming from the usual crew of copyright lobbyists about how Congress was doing the most horrible of horribles in "violating our international agreements." Of course, they'd leave out the fact that they wrote or heavily influenced those agreements as a way to directly route around Congress.

For all the claims of Chicken Littles and what ifs, in the last few weeks, the "hypothetical" situations we discussed have become very, very real, and have highlighted why it's so problematic that the USTR is including copyright and patent issues in international trade agreements. First, as we noted a few weeks ago, on the issue of phone unlocking, some existing US trade agreements have made it difficult to actually fix the issue. In particular, we named KORUS, the free trade agreement we signed with South Korea half a decade ago, which included a number of copyright provisions, pushed by the entertainment industry (who had flipped out because South Korea was one of the first countries blanketed in broadband). The end result of that, however, is that it would go against that agreement to actually fix the problem (as the White House claims it wants) of phone unlocking being illegal.

Now, as Shirwin Siy correctly points out, Congress is not technically bound by such agreements and can overrule them:

First of all, trade agreements don't dictate what laws Congress can and can't pass. If they're executive agreements, they can't override any laws passed by Congress in the past, and even if they're executed as treaties, they can be superseded by later acts of Congress. Just like Congress can pass a law that overrides an earlier law, it can pass a law that overrides an earlier treaty.

That's technically true, but the reality is not so easy. Soon after my post went up, I started hearing from people all over DC about this issue. In the past few weeks, in talking to numerous capitol hill staffers, as well as with a variety of others involved in the discussions, one thing has become clear: while some in Congress really wanted to do a comprehensive fix on unlocking, the realization that international agreements get in the way may have scuttled those plans entirely. They recognize that Siy is correct, and that Congress is not technically bound, but what becomes clear is that the political reality is, in fact, very different. Proposing a bill that goes against an international agreement is seen as a no-no and the political fight it would take to get that bill to actually do anything just probably isn't worth it.

So, there we have a very real and very tangible example of an agreement that technically didn't "change" our laws, now locking us in to a bad situation.

And... it could be even worse. For all the talk of how Congress isn't actually bound by the USTR's negotiations, it appears that someone forgot to tell that to certain members of the Supreme Court. When the Kirtsaeng case came out last week, the dissent, written by Justice Ginsburg, repeatedly cited international agreements for her interpretation of the law, even though those agreements aren't supposed to define or bind the law. John Bergmayer points out how wrong this is:

It is thus relevant that Justice Ginsburg writes, in dissenting from the majority opinion, that "[u]nlike the Court's holding, my position is consistent with the stance the United States has taken in international trade negotiations." But trade negotiators do not get to decide what the law is: Congress passes statutes and courts interpret them. The USTR is not part of this workflow. If trade negotiators have ever taken positions that are inconsistent with Kirtsaeng then those positions are now, and always have been contrary to US law. I would make a similar argument even if Kirtsaeng came out the other way: trade negotiators should not try to anticipate how contentious legal battles will turn out. They should steer clear of these areas entirely and allow the system to do its work.

So even though the law is clear that the USTR's secretive negotiations (often driven by the copyright industry) cannot actually make the law, even at least three Supreme Court justices seem confused on this point.

And it could get even worse. That's because with the still secretive TPP agreement, that is supposedly nearing completion, a look at what little leaked text there is on the issue of copyright shows that the TPP disagrees with the Kirtsaeng ruling and would require the US to kill off first sale rights on foreign made products to "meet our international obligations." The leaked text includes the following:

“Article 4(2). Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance, or phonogram made without authorization, or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram.”

And while the TPP is not yet in effect, Sean Flynn (at the link above) notes that some other free trade agreements negotiated by the USTR already have similar provisions. That's why Ginsburg was so concerned about our supposed "international obligations" in her dissent on Kirtsaeng. Since copyright lobbyists are already pushing to overturn the Supreme Court's ruling with new laws, you can bet that we'll soon be hearing claims that we need to do this to "meet our international obligations."

The point of all of this? The USTR shouldn't be involved, at all, in negotiating IP issues in any such international agreements. Not only is it antithetical to their stated purpose and despite the law being to the contrary, many in both Congress and the Supreme Court, really do feel that we are "bound" by those agreements, even if they were never approved by Congress and cover topics, such as copyright, which only Congress has the mandate to create and change. The "hypotheticals" we discussed around ACTA are no longer "what ifs," but are very real and should be a major concern.

With an attempt at real copyright reform on the table, the fact that the USTR may be seen (whether legally or not) as tying the hands of Congress should be reason enough to simply take those sections out of any and all trade agreements. They don't belong there and they're clearly causing significant problems for the public's best interests within the US. The USTR process is not transparent. It does not involve the public and is not responsive to the needs of voters. That Congress is then effectively unable to do such basic things as allowing the public to unlock their mobile phones (even at the White House's request) or to guarantee that we actually own what we've bought, show just how problematic the situation has become. A few people in Congress are now waking up to this fact, but too many are still oblivious. It's amazing that Congress has allowed the USTR to cut off its own power in this manner.

To fix this, the USTR needs to reject any language around intellectual property in any ongoing international agreements, and must look to pull that language out of earlier agreements. It just doesn't make any sense. Congress needs to assert itself, and let the USTR and the executive branch know that only it has say over copyright and patent laws, as per the Constitution. And, finally, if the White House truly believed what it said about mobile phone unlocking, it should order the USTR to reverse course -- and, as part of that, to start being much more transparent and responsive to the public as it negotiates any such agreements.

Filed Under: acta, copyright, intellectual property, ownership, patents, tafta, tpp, trade agreements, ustr

Patents, Trademarks And Copyrights Have No Place In Trade Agreements

from the it's-not-a-matter-of-trade dept

As we've discussed before, one of the sneakier moves of the content industry (and, later, the pharmaceutical industry) was to jump into the international trade process, to circumvent national governments and to effectively force them into passing laws that they liked. We've been raising concerns about this whole process, and it appears that many public interest/civil service groups agree. With the US and Europe getting ready to start negotiations on a "trans-atlantic free trade agreement" (TAFTA), a large group of public interest/civil service groups have teamed up to issue a declaration that "intellectual property" has no place in free trade agreements. It also demands much more transparency in any negotiation.

First, we insist that the European Union and United States release, in timely and ongoing fashion, any and all negotiating or pre-negotiation texts. We believe that secretive “trade” negotiations are absolutely unacceptable forums for devising binding rules that change national non-trade laws.

Second, we insist that the proposed TAFTA exclude any provisions related to patents, copyright, trademarks, data protection, geographical indications, or other forms of so-called “intellectual property”. Such provisions could impede our rights to health, culture, and free expression and otherwise affect our daily lives.

Past trade agreements negotiated by the US and EU have significantly increased the privileges of multinational corporations at the expense of society in general. Provisions in these agreements can, among many other concerns, limit free speech, constrain access to educational materials such as textbooks and academic journals, and, in the case of medicines, raise healthcare costs and contribute to preventable suffering and death.

Unless “intellectual property” is excluded from these talks, we fear that the outcome will be an agreement that inflicts the worst of both regimes’ rules on the other party. From a democratic perspective, we believe that important rules governing technology, health, and culture should be debated in the US Congress, the European Parliament, national parliaments, and other transparent forums where all stakeholders can be heard—not in closed negotiations that give privileged access to corporate insiders.

The TAFTA negotiations must not lead to a rewriting of patent and copyright rules in a way that tilts the balance even further away from the interests of citizens.

Frankly, they could go much further in their statement. As we've pointed out for years, things like patents and copyrights are the exact opposite of "free trade." They are, by definition, restrictions on free trade -- and a form of protectionism. If the goal of a free trade agreement is to remove those kinds of restrictions and ease the flow of trade between nations, it seems incredibly strange to bundle it with blatant mercantilist concepts of protectionism and monopolies.

Filed Under: acta, civil service, copyright, patents, public interest, tafta, tpp, trade agreements, trademark

Join The Conversation On Keeping International Agreements From Restricting Internet Freedom

from the this-is-important dept

For quite some time, we've talked about how the entertainment industry has used international agreements as a way to force their agenda through various governments. There's a great book, Information Feudalism: Who Owns the Knowledge Economy?, which details some of the history of how the entertainment industry has often driven international agreements, and then used those international agreements -- which they had a hand in writing -- to then demand changes to various laws to "meet our international obligations." Just law week, I saw Bruce Lehman (at Santa Clara University's DMCA summit), the architect of the DMCA, flat out admit that he intentionally went to WIPO to get the 1996 WIPO Copyright Treaty passed as an "end run around Congress," since Congress wasn't interested in passing the DMCA.

Just last week, we also highlighted how existing international free trade agreements make it difficult for Congress to fix something as simple as making it legal to unlock your mobile phones, even if the White House has come out in favor of it. I'll have more on this little horror story shortly, but these kinds of examples should have us tremendously worried about various international agreements, from ACTA to TPP to the upcoming TAFTA covering Europe and the US.

Given those concerns, the folks at Open Media have set up a day of discussion about how the public can stop international agreements from restricting internet freedom.

So we want your input: What do you think is the best way to stop these threats to Internet freedom? How can we best reach and engage more people in the battle to stop Big Media lobbyists and bureaucrats from censoring expression online?

They're hosting a Reddit AMA to discuss this (I'm participating for part of the day), along with asking people to discuss anywhere else they would like as well: Facebook, Twitter, Google Plus, or right here in the comments. The entertainment industry has had more or less free rein in helping to craft international agreements that pressure governments into passing laws in their favor for decades. It's time we took that out of the secret back rooms, and let the internet-using public have its say in the matter.

Filed Under: acta, ceta, conversation, copyright, intellectual property, international agreements, internet freedom, patents, tafta, tpp

Canadian Delusions: ACTA Supporters Pretend It's Just About Counterfeit Goods

from the if-only dept

One of the nastier tricks of copyright maximalists has been to lump together "counterfeiting" with "copyright infringement" in an effort to conveniently jump back and forth when making silly arguments. Basically, they can argue that copyright infringement is a huge issue, because of the massive amount of unauthorized sharing that happens online. But they have a lot of trouble showing real harm. On the other side, counterfeiting really isn't that big of a problem when you look closely at the details, but there are a few, extremely limited cases (faulty counterfeit airplane parts, some fake drugs) where there could be real harm. So if you lump them all together you can claim "massive problems" with "real harm." But that doesn't work if you look at them individually.

We recently wrote about some Canadian politicians introducing a bill to get Canada in compliance with ACTA, despite the fact that ACTA has been totally discredited around the globe. Some political opponents are now pushing back on that, calling the bill in question an attempt to get ACTA in "through the backdoor." However, in response Canadian Industry Minister, Christian Paradis, just keeps repeating the "counterfeiting" mantra and ignoring the entire ACTA elephant in the room. Amusingly, Paradis seems unable to even admit that there are concerns here:

During Question Period on Monday, Borg asked Industry Minister Christian Paradis directly if the bill paves the way for ratification of the discredited treaty:

Mr. Speaker, last July the European Parliament rejected the anti-counterfeiting trade agreement over serious concerns about the regressive changes it would impose on intellectual property in the digital age. Yet on Friday, the Conservatives introduced a bill in the House that would pave the way for the ACTA without question. Canadians have concerns about goods being seized or destroyed without any oversight by the courts. Will the minister now be clear with Canadians? Are the Conservatives planning to ratify ACTA, yes or no?

Paradis refused to respond to the ACTA ratification question:

Mr. Speaker, we are very happy to have introduced an anti-counterfeiting bill in the House. Counterfeiting is a growing problem in Canada. Counterfeiting deceives Canadians and is linked to security-related issues. So it was our duty to modernize the legislation to ensure that we can end counterfeiting, so that Canadians are not deceived, and to provide better security.

Borg tried again with a direct link between Bill C-56 and ACTA:

Mr. Speaker, a number of countries have rejected this unacceptable agreement. The anti-counterfeiting trade agreement - ACTA - was drafted behind closed doors and would incriminate the daily users of cultural content. This agreement will turn our border officers into instant copyright experts, without the adequate legal support. Canada must seriously study the problem of counterfeiting. However, the failure of Bill C-30 means that Canadians do not have faith in this Conservative government. Is Bill C-56 not simply a way to support ACTA through the back door?

Paradis ducks the question once again:

Mr. Speaker, let us be clear: Bill C-56 is a way to support and protect Canadian families.

Counterfeiting is a growing problem that must be stopped. Counterfeiting deceives Canadians and poses risks to the safety of Canadians. We must ensure that the legislation is updated and appropriate in order to equip the authorities with effective tools to fight counterfeiting, which is exactly what was introduced on Friday. If the NDP is responsible, I hope they will support us.

See the talking point? When asked about ACTA just lie and repeat "counterfeiting is a serious problem" over and over and over again, despite little proof to actually support that. And, when really challenged, pull out the "it's for the children" card by saying that it's needed to protect families. Yes, the families of the US-based executives of the legacy entertainment industry.

Filed Under: acta, canada, counterfeit

Public Well-Being Must Be 'Primary Measurement' Of US-EU Trade Agreement

from the does-it-have-to-be-said? dept

Now that the US and EU have officially announced the start of talks on a new bilateral free trade agreement -- sorry, a "trade and investment partnership" -- groups in both regions are trying to work out what this will mean for them and their constituents. Arguably the most important constituency of all is the public, and yet it is also the one that until now has been systematically shut out of previous negotiations for things like ACTA or TPP. One representative of that huge group -- though not, obviously, the only one -- is the Transatlantic Consumer Dialogue (TACD), which describes itself as follows:

a forum of US and EU consumer organisations which develops and agrees on joint consumer policy recommendations to the US government and European Union to promote the consumer interest in EU and US policy making.

With commendable speed, it has submitted an open letter on the proposed agreement, addressed to Ron Kirk and Karel de Gucht, who are leading their respective delegations (pdf). Early on, it states the TACD's basic position:

We believe that advancement of consumer well-being must be the primary measurement of whether such a trade pact should be adopted or not. We are very sceptical that a trade partnership built around regulatory convergence will serve consumer interests, and we will vigorously oppose a deal that dismantles existing EU and US consumer protection.

The concern here is that the trade pact will have the effect of levelling consumer protection downwards, to the lower of the two standards found in the US and EU. That might be convenient for industries looking to cut costs and boost profits, but as TACD points out, consumer interests are unlikely to be served. It then goes on to address several particular areas of concern, including copyright and patents:

Provisions on intellectual property (IP) rights should ensure governments may enact robust limitations and exceptions to rights, and limitations on remedies. IP enforcement should be proportionate and respect the right to a judicial remedy. In some areas, mandatory minimum exceptions should be addressed, such as robust cross-border exceptions for disabilities or distance education. Access to medical technologies and knowledge should not be undermined.

It also has strong views on the increasingly-problematic area of investor-state disputes:

Investors should not be empowered to sue governments to enforce the agreement in secretive private tribunals, and to skirt the well-functioning domestic court systems and robust property rights protections in the United States and European Union. Experience elsewhere shows how powerful interests from tobacco companies to corporate polluters have used investor-state dispute resolution provisions to challenge and undermine consumer and environmental protections. Investors must not be empowered to sue governments directly for compensation before foreign investor tribunals over regulatory policy (including "indirect" expropriation), contract disputes, nor guarantee a Minimum Standard of Treatment for foreign investors.

It concludes by raising the key issue mentioned at the start of this post: the fact that the public has been comprehensively excluded from previous trade negotiations, even though the latter are supposedly conducted in its name.

With talks now slated for a fully-fledged Transatlantic trade agreement, it is vital that governmental negotiators reform their engagement with consumer organisations and civil society. We must have a fully open process. Citizens in Europe and the United States will not accept a closed, secret process, with the results revealed only when negotiations are concluded for an up or down vote.

Nothing is more important to an open process than publication of negotiating texts as they are developed.

That last point is important. Once texts have been discussed during the negotiations, there is no reason not to publish them: after all, there are no "secrets" that might be revealed to the other side -- the usual excuse for not allowing the public to see texts as negotiations are being conducted. Industry insiders already have access, so the only people that would be kept in the dark by not publishing them are the 800 million citizens of the US and EU.

Just as the advancement of consumer well-being should be the "primary measurement" of whether the trade agreement should be signed or not, so the public must be recognized as the primary stakeholder that has a right to see all texts once they have been discussed. If they don't, then those negotiations simply forfeit any claim to real legitimacy in a world where basic transparency can be achieved instantly, and for almost zero cost, by publishing materials on the Web.

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Filed Under: acta, public benefit, tpp, trade agreements
Companies: tacd

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

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

Learning From Aaron Swartz: Content Must Not Be The End Game For Knowledge

from the serious-stuff dept

In the wake of the suicide of Aaron Swartz, there have been many fine tributes to the man and his work. Another growing class of posts that have flowed from this unhappy event are people reflecting on the important lessons he taught them. Here, for instance, is Jeff Jarvis recounting his journey from a fairly traditional position on copyright to one that recognized how the Internet had reshaped that landscape.

Ten years ago, Jarvis appended this "mock copyright notice" to his blog posts:

It's mine, I tell you, mine! All mine! You can't have it because it's mine! You can read it (please); you can quote it (thanks); but I still own it because its mine! I own it and you don't. Nya-nya-nya. So there. COPYRIGHT ... by Jeff Jarvis.

But gradually, under the influence of key thinkers in this area, he came to see things differently:

Lessig and company have taught me that content's value can lie in what it spawns and inspires. Locked away, unseen, unused, not discussed, not linked, it might as well not exist.

...

And Aaron Swartz has taught me that content must not be the end game for knowledge. Why does knowledge become an article in a journal -- or that which fills a book or a publication -- except for people to use it? And only when they use it does content become the tool it should be. Not using knowledge is an offense to it. If it cannot fly free beyond the confines of content, knowledge cannot reach its full value through collaboration, correction, inspiration, and use.

The tension between knowledge and content is no mere abstraction. As well as lying behind some of the most problematic sections of SOPA, ACTA and TPP, and the larger war on digital sharing they are part of, it was almost certainly a contributory factor in the death of Aaron Swartz too.

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Filed Under: aaron swartz, acta, content, sopa, tpp

White House Refuses To Be Transparent About Positions On Transparency

from the not-transparent-about-transparency dept

As we well know, despite promises from the Obama administration that it would be "the most transparent" in history, it has been anything but that over its first four years. The US Trade Rep (USTR) has been particularly bad on this front, especially when it comes to trade agreements that will have a massive impact on the public, such as ACTA and TPP. No matter how many times they were asked by the public, by Congress and by other countries, the USTR kept insisting that it had to keep things secret because... well... just because. There were some excuses made about how they don't "negotiate in public" or about how "this is how it's always been done," but those don't make any sense when you look at the details. It became especially silly in the ACTA negotiations, late in the process, when many of the countries involved indicated that they wished things were more transparent and many pointed their fingers at the US as being the one country that kept things secret. Also, we know that other international agreements are done in a much more transparent fashion.

The folks at KEI filed a Freedom of Information Act request for documents relating to the US's position on transparency regarding a particular ACTA meeting, as well as documents the US had on the positions of other countries. FOIA requests are supposed to be fulfilled within 20 business days from the time they're received. In practice, this time frame is almost never met, though sometimes for good reasons (it takes a while to do some of the searches). However, in this case, it took two and a half years for the White House to finally respond, and when it did, the response was that, while 16 relevant documents were found, it wouldn't release them, because of reasons.

More specifically:

With regard to the second category, we identified sixteen (16) pages of responsive records. We have determined that all 16 pages of responsive records are exempt from disclosure under the deliberative process prong of section of the FOIA. The deliberative process privilege protects the decision making processes of government agencies by encouraging open and frank discussions on policy matters among subordinates and superiors. These records contain predecisional discussions regarding negotiating positions and their implications on future negotiations. Moreover, these documents contain policy recommendations and opinions shared between subordinates and superiors.

Think about this for a second. This is a request to be transparent about positions on transparency, and they're being rejected because it may show discussions about transparency. Really. The fact that these discussions "may contain open and frank discussions on policy matters" shouldn't be a huge concern. The ACTA negotiations are done at this point, and it should be easy enough to redact other issues that might impact future policy efforts. It seems ridiculous to suggest that discussions on whether or not the US should be transparent are, themselves, not subject to transparency.

Filed Under: acta, tpp, transparency, ustr