Leak Of Complete CETA Text Shows Canada Fought Off EU Demands For More Extreme Copyright Rules

from the bad-news-for-TTIP dept

As we wrote back in July, it seems that the trade agreement between Canada and the EU, generally known as CETA, is finally nearing completion, after premature claims to that effect. One reason why we might believe so is that thanks to some public-spirited whistleblower(s), we now have both CETA's main text (pdf) and the annexes (zip). This has permitted Michael Geist to perform an analysis of how the copyright provisions in CETA have evolved since the first leak of the chapter covering intellectual monopolies, posted by Wikileaks back in 2009. At that time, the European Union was pushing for some serious beefing-up of Canadian law in this area:

the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

Geist's post explores how that gradually changed, as reflected in subsequent leaks, culminating in the latest one, of the full text. Rather remarkably, he finds:

The major European copyright demands were ultimately dropped and remaining issues were crafted in a manner consistent with Canadian law.

He sees four main reasons for this:

First, the domestic policy situation in both Canada and the EU surely had a significant impact as ACTA protests in Europe and consumer interest in copyright in Canada led to the elimination of the criminal provisions and the adoption of better-balanced, consumer-oriented rules.

...

Second, while there is much bluster about "strong" European rules or "weak" Canadian laws, the reality is that both are compliant with international standards that offer considerable flexibility in implementation.

...

Third, the "made-in-Canada" approach is gradually garnering increased attention around the world as a creative, viable alternative.

...

Four, when the European Union was pressed to prioritize its top intellectual property issues during the negotiations, copyright ultimately took a back seat to pharmaceutical patents and protection for geographical indications.

While it's great that the copyright provisions of CETA are not nearly as bad as we had feared, there's a worrying implication here for TTIP/TAFTA. The EU's maximalist approach to copyright was only dropped in CETA because Canada fought back. In TTIP, there is zero chance the US will do that -- on the contrary, it may well want the EU to become even more extreme. That means we can probably expect some really awful copyright measures in TTIP, confirming earlier fears about what backroom discussions may be preparing for us.

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Filed Under: canada, ceta, copyright, eu, tafta, trade agreements, ttip, us

Guatemala Resists 'Monsanto Law' Required As Part Of Trade Agreement With US

from the saving-seed-sovereignty dept

One of the less well-known projects of the West is to convince developing countries that they need to convert traditional approaches to agriculture, which have functioned well for hundreds of years, into a system of intellectual monopolies for seeds -- the implicit and patronizing message being that this is the "modern" way to do things. Last year we wrote about how this was happening in Africa, and an article on bilaterals.org reports on similar moves in Guatemala:

On 10 June, the Congress of Guatemala approved Decree 19-2014 or the "Law for the Protection of New Plant Varieties" which led to an outpouring of criticism from various sectors of civil society.

This law, published on 26 June, protects the intellectual property of plant breeders deemed to have "created" or "discovered" new plant varieties, or genetically modified existing ones.

This way, the beneficiaries of the law -- "breeders", which are typically companies producing transgenic seeds like the transnational corporation Monsanto -- obtain property rights over the use of such varieties, in the form of plants or seeds.

Here's how that is likely to impact Guatemalan farmers:

In a publication, the Rural Studies Collective (Cer-Ixim) warned about the consequences of this "Monsanto Law".

They explained that under this law the possession or exchange of seeds of protected varieties without the breeder's authorisation will be illegal and punishable by imprisonment.

It will also be illegal, and punishable by prison, to posses the harvest from such seeds or to save them for future plantings.

According to the law, the breeder's right extends to "varieties essentially derived from the protected variety." In this sense, a hybrid produced from a protected variety crossed with an unprotected variety would automatically belong to the breeder of the patented variety.

The law thus promotes privatisation and monopolies over seeds, endangering food sovereignty, especially that of indigenous peoples, said Cer-Ixim. It also warned that Guatemala's biodiversity will fall "under the control of domestic and foreign companies."

The new law was brought in as part of the process of complying with the 2005 CAFTA-DR free trade agreement between Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, the Dominican Republic and the US. Under its terms, signatories are obliged to sign up to the International Convention for the Protection of New Plant Varieties -- exactly the same one that was being foisted on Africa last year. However, as bilaterals.org reports, despite that obligation, there is mounting resistance to handing over the country's seed sovereignty in this way:

The growing opposition to the "Monsanto Law" comes from diverse sectors of civil society such as indigenous organisations, environmental groups, scientists, artists and members of Congress.

...

Artists and television celebrities have joined an online signature campaign to reject the law.

Their petition is addressed to the President, Otto Perez Molina, via the Avaaz website, and argues that the law is unconstitutional.

"This law violates articles of the Constitution relating to the Protection of Individuals, Cultural Identity, Natural Heritage, Right to Health, the principles of the Economic and Social Regime, in addition to the obligation of the state to protect consumers," the petition states.

Just recently, the Constitutional Court, Guatemala's highest legal body, provisionally suspended the entry into force of the law, giving 15 days for the various parties to to present their arguments. Despite the broad-based support for repealing or modifying the law, it is not clear what options the government has. After all, passing the law is a requirement of CAFTA-DR, and if Guatemala refuses to comply, we can expect the US to apply considerable pressure to encourage it to toe the line. Ultimately, the US can refuse to bring into force the agreement; given the presence of corporate sovereignty (pdf) and other onerous provisions in CAFTA-DR, maybe that wouldn't be such a bad thing for the people of Guatemala.

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Filed Under: agriculture, cafta, guatemala, intellectual property, monopolies, monsanto law, plants, seeds, trade agreements
Companies: monsanto

White House Reverses Course: Now Allowing Lobbyists To Serve On Insider Government 'Advisory' Boards

from the just-making-it-official dept

For many years, we've talked about the very questionable practice by the USTR to set up "Industry Trade Advisory Committees" (ITACs), who had full access to the various documents concerning the trade agreements that were being negotiated. Obviously, for big companies, being one of the very small group of people on the inside, helping to shape trade agreements, is enormously powerful -- especially since industries long ago learned that you can "launder" policy changes that Congress doesn't want to make via the international trade agreement process, thereby putting pressure on Congress to act. It's why we've pointed out that it seems rather unfair that the RIAA has direct access to the TPP agreement, but Senate staffers (including experts on international trade) have been refused access.

Of course, one of the lame responses from the USTR and others is that, technically President Obama's ethics rules forbade "lobbyists" from being on those and other committees. But that was already very narrowly focused just on people who met the official definition of lobbyist. And, you could still have other people who work directly with lobbyists on the committee. So, for example, Neil Turkewitz, a VP with the RIAA is currently on the IP advisory committee. He can do that because he's not technically a "lobbyist" -- he just happens to work for an organization where the main function is lobbying, and where most of his colleagues are lobbyists.

Apparently, that sort of looseness wasn't enough. The White House has now changed the rules to make them even friendlier to lobbyists:

In new guidance issued Tuesday, the administration said registered lobbyists will once again be allowed to serve on the boards so long as they are representing a client.

The new rules now say:

Under the Memorandum and this Revised Guidance, federally registered lobbyists may not serve on an advisory committee, board, or commission (hereinafter, “committee”) in an “individual capacity.” In this Revised Guidance, the term “individual capacity” refers to individuals who are appointed to committees to exercise their own individual best judgment on behalf of the government, such as when they are designated as Special Government Employees as defined in 18 U.S.C. 202. The lobbyist ban do es not apply to lobbyists who are appointed in a “representative capacity,” meaning that they are appointed for the express purpose of providing a committee with the views of a nongovernmental entity, a recognizable group of persons or nongovernmental entities (an industry sector, labor unions, or environmental groups, etc.), or state or local government.

The original ban was one of President Obama's apparent "sweeping" changes, and which the President insisted showed how he was reducing the influence of lobbyists in government. Here's what he said back in 2010 about this:

My Administration is committed to reducing the undue influence of special interests that for too long has shaped the national agenda and drowned out the voices of ordinary Americans. Special interests exert this disproportionate influence, in part, by relying on lobbyists who have special access that is not available to all citizens. Although lobbyists can sometimes play a constructive role by communicating information to the government, their service in privileged positions within the executive branch can perpetuate the culture of special interest access that I am committed to changing.

Apparently, the administration is a little less committed to changing that these days. Admittedly, the White House was somewhat pressured into this by a lawsuit from some lobbyists who (I'm not joking) argued their First Amendment rights were being violated. While a lower court rejected this argument, earlier this year, the DC Circuit appeals court claimed it was a legitimate First Amendment issue and that "the ban pressures them to limit their constitutional right to petition."

Frankly, that's ridiculous. Almost no one is allowed on these advisory committees. The Intellectual Property Advisory Committee has a grand total of 16 people. I'm sure there's no way in hell I would be allowed on it. Does that mean that my constitutional right to petition the government has been denied? Of course not, because that's a ridiculous interpretation of the First Amendment.

The Appeals Court ruling wasn't the end of the case, as it was was sent back to the lower court for further review -- but it appears that the Obama administration has effectively thrown in the towel and will allow the lobbyists back onto the committees that none of us are likely to ever be allowed on. Because that process wasn't corrupt enough already...

Filed Under: advisory committees, first amendment, influence, itac, lobbying, lobbyists, politics, president obama, revolving door, secrecy, tafta, tpp, trade, trade agreements, transparency, ttip, ustr

Bolivia Shows How To Dismantle Corporate Sovereignty Provisions In Treaties Without Losing Foreign Investment

from the they-said-it-couldn't-be-done dept

As Techdirt has reported, corporate sovereignty chapters in TAFTA/TTIP and TPP have emerged as some of the most controversial elements in those agreements. Meanwhile, countries that already have bilateral investment treaties (BITs) with investor-state dispute settlement (ISDS) mechanisms are looking for ways to get rid of them in order to avoid the loss of sovereignty they imply. One nation that already has considerable experience in this area is Bolivia. A new report provides fascinating background information on exactly how it has gone about this (pdf), with valuable lessons for others looking to do the same.

Things began back in 2000, during what was called the "Water war." After Aguas del Tunari, a subsidiary of the US company Bechtel, had taken control of water supplies in the central Bolivian city of Cochabamba, it raised prices to such an extent that the poorest citizens struggled to pay for drinking supplies. This led to demonstrations in the streets, with many people injured (original in Spanish.) Control of the water company was removed from Bechtel, which demanded $50 million compensation for the loss of its investment. The case was finally settled in 2006, when Bechtel agreed to sell its shares in the water company to the Bolivian state -- for 2 Bolivianos (then about $ 0.30).

That experience led the Bolivian people to give their new president of the time, Evo Morales, a mandate to withdraw from all investment agreements and tribunals that allowed claims to be made against the country. Here's how he did that:

The Evo Morales government rejected the Investor-State Dispute Settlement mechanism from the outset. This was reflected in the country’s withdrawal from ICSID -- the most widely used Investor-State Dispute Settlement forum -- in May 2007. In addition, the new [Bolivian] Constitution prohibits the state from settling investment related disputes with foreign investors in international tribunals.

...

one of the most important provisions of the new Constitution in this regard is to denounce and renegotiate all international treaties that are contrary to the constitutional text, that is to say, the BITs, which is ultimately where the power lies for corporations to do whatever they want in the countries in which they operate. The BIT's are where the rules of the game between companies and states are established. They are also the reason why Bolivia, despite regaining sovereignty from corporations and shielding itself from this system, could still be liable to further lawsuits in international tribunals similar to ICSID, which establish their jurisdiction in such treaties.

Bolivia has now cancelled all 21 of its previously-signed BITs, and its subsequent experience is instructive. The conventional wisdom is that without such treaties, foreign investment will plummet, and that the economy of the country concerned will suffer. Here's what actually happened in Bolivia:

When we asked about the reaction of other countries, [Walter Clarems Endara Vera, Deputy Minister for Trade and Integration of Bolivia] said that obviously there was concern on the part of European countries and the United States, which are among those that invest most overseas, and with which Bolivia signed most of it’s BITs. However, he also said that "in all of these cases there has not been a negative response", and that, "in conclusion, our understanding is now that we do not have bilateral investment agreements."

Deputy Minister Endara also noted that "...many countries are interested in signing a new investment agreement with Bolivia."

There are two important reasons why withdrawing from these BITs with their corporate sovereignty clauses has not been the disaster that many pundits predicted:

When we asked the Deputy Minister Endara why he believed that these countries were being so accommodating, his response was that "... chickens have now come home to roost. Countries promoting BIT's are now also being sued in forums such as ICSID as well as other tribunals, sometimes by their own investors. Unfortunately, the economic crisis in Europe has led some countries to take measures affecting foreign investments and they are now being sued. This means that the conversation with some European countries is now different. We can now talk as equals because they are suffering the same problems we have suffered ... I mean, we can now see some of the biggest defenders of the investor-state dispute settlement mechanism defending their own countries against these cases. The situation really has changed."

But perhaps the most significant reason is the following:

In the Bolivian context, it is important to note that, unlike at the time of the first case with Aguas del Tunari, the country now has a legal and constitutional framework, as well as public institutions and a clear policy, to address these Bilateral Investment Treaties and the system of international arbitration that corporations are using to undermine the actions of sovereign countries.

That is, with a functioning government and fair legal system that can resolve investment disputes, there is simply no need to hand over so much power to opaque and expensive supranational tribunals of the kind that lie at the heart of ISDS. Bolivia's success in cancelling its BITs while boosting foreign investment -- $2 billion in 2013, 35% more than in 2012 -- is clear evidence the argument that agreements like TAFTA/TTIP "must" contain corporate sovereignty chapters to achieve the same, is incorrect.

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Filed Under: bolivia, corporate sovereignty, foreign investment, isds, tafta, tpp, trade agreements, ttip

As All Its Big Trade Agreements Grind To An Awkward Halt, Canada Aims To Make TPP Even More Secretive

from the frightened-of-sunlight dept

Techdirt has commented many times on the unduly secretive nature of the Trans-Pacific Partnership (TPP) talks. Despite earlier claims that everything would definitely be wrapped up last year, things are still dragging on, with the next round of negotiations taking place in Canada. Although it seems hardly possible, the government there apparently wants to make the meeting even less transparent than its predecessors, as this post on the Council of Canadians reports:

The only information that has been publicly released is a one-sentence notice posted June 24 on the Department of Foreign Affairs, Trade and Development website stating that "Negotiators, subject matter experts and other officials will meet in Ottawa, Canada, from July 3-12. No ministerial meeting is being scheduled on the margin of the officials meeting in Ottawa."

New Zealand law professor Jane Kelsey has attended many of the rounds as a registered stakeholder, and, when that process ended without any explanation, as an observer. She describes Canada's secrecy as "unprecedented.”

"There can only be one reason for withholding the details: to shut down the remaining minimal access we have to negotiators, a number of whom are happy to meet with us," Kelsey says. "When governments are so afraid of informed public debate, they clearly do not believe they can sell the merits of what they are negotiating."

We can only assume Canada is worried that the public might learn either that the talks are in trouble, or that really bad deals are being cut in a desperate attempt to sew things up. A fascinating article in the Canadian title Maclean's offers some insight into why the Canadian politicians are so keen to keep everything under wraps:

"Everyone is indulging in a charade where [the TPP] negotiations are going forward. It’s the biggest game in town, but I’m not convinced TPP will see the light of day," says Lawrence Herman, a Toronto-based trade lawyer formerly with Cassels Brock.

The situation is not much more clear with Canada’s agreement-in-principle reached with Europe last October. Officials say CETA is taking longer than anticipated to render into legal text, but observers believe the deal has run into substantive roadblocks.

Also perplexing is why Canada has not ratified the foreign investment protection agreement with China, called FIPA, when the two sides signed the treaty almost two years ago.

Putting those facts together, and you have an embarrassing inability of the Canadian government to close any of its high-profile trade agreements, which it has set such great store by. Clearly, the last thing it wants is any leak that might make achieving that even harder for TPP. Of course, if such a total lock-down on the talks is necessary to have even a slim hope of concluding them, that suggests support for the agreement among the TPP nations is extremely precarious. If it weren't, TPP could stand a little public scrutiny of the kind that the Canadians are doing their utmost to avoid.

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Filed Under: canada, secrecy, tpp, trade agreements, transparency

Why TAFTA/TTIP Isn't Worth It Economically, And How We Can Do Much Better

from the doing-it-by-numbers dept

As recent posts on Techdirt have made clear, resistance to TAFTA/TTIP is growing on many fronts. In countering that, supporters of the negotiations unfailingly cite the "unique opportunities" or "huge benefits" of the deal. There's no denying that potentially TAFTA/TTIP will be huge: the European Commission's pages on the negotiations point out that the US and EU trade €2 billion every day (around $2.7 billion). They also note the following important facts about investment between the two regions:

Total US investment in the EU is three times higher than in all of Asia.

EU investment in the US is around eight times the amount of EU investment in India and China together.

Of course, those impressive figures completely undermine the case for including corporate sovereignty provisions in TAFTA/TTIP, since investors are clearly happy to put their money into the US and EU even in the absence of ISDS mechanisms.

But what counts is not just the present size of the trade and investment between the US and EU, but the future gains that TAFTA/TTIP would bring. This is clearly the central question about the negotiations, because if those benefits are small, there is no point making painful concessions of the kind that will be required to conclude the deal. And yet, surprisingly, there is precious little in the way of rigorous research into what the effects of TTIP would be on the US and EU economies. It's true that figures about the benefits are regularly trotted out by those involved, but these come almost exclusively from one source: econometric modelling carried out by the Centre for Economic Policy Research (CEPR) in London (pdf), and paid for by the European Commission. Here are its key claims about the benefits of TAFTA:

An ambitious and comprehensive transatlantic trade and investment agreement could bring significant economic gains as a whole for the EU (€119 billion a year) and US (€95 billion a year). This translates to an extra €545 in disposable income each year for a family of 4 in the EU, on average, and €655 per family in the US.

Those figures of €119 billion a year (about $160 billion) for the EU and €95 billion a year (about $130 billion) for the US are uncritically quoted in most articles about TAFTA. That's a pity, because they are misleading in the extreme. For example, the passage quoted above speaks of "€119 billion a year" as if this would be the gain from TTIP each year. But a footnote on page 3 of the CEPR study, where a table lays out the predicted change in GDP, explains:

Note: estimates to be interpreted as changes to a projected 2027 global economy.

That is, the €119 billion figure is the extra GDP that would be seen in 2027 as the result of TTIP being in place for the previous ten years, compared to the situation in 2027 without the agreement: it is a cumulative GDP gain. That means the other figure often thrown around -- that TAFTA will increase the GDP of the EU and US by around 0.5% is similarly misleading: it refers to the cumulative GDP gain after ten years. In terms of how much TAFTA would add to GDP each year, that would be far less -- roughly 0.05%, a rather different matter. Here's what the economist Dean Baker has to say on this misdirection, in a blog post on the TTIP negotiations with the provocative title: "Why Is It So Acceptable to Lie to Promote Trade Deals?"

Implying that a deal that raises GDP by 0.4 or 0.5 percent 13 years out means "job-creating opportunities for workers on both continents" is just dishonest. The increment to annual growth is on the order of 0.03 percentage points. Good luck finding that in the data.

He goes on to make a great point about the impact of strengthening intellectual monopolies in these trade agreements:

there are reasons to believe the growth effect could go in the opposite direction. The model used by the London CEPR does not assume any negative growth impact from higher prices for drugs or other goods that might be more costly due to stronger patent and copyright protections coming out of the deal.

These will likely be a drag on growth. Economists tend to like patents and copyrights (probably because their friends and family members benefit from them), but that doesn't change the fact that they lead to market distortions and have major economic costs. If the price of a drug rises by 1000 percent because we imposed stronger or longer patent protection it has the same effect in the market as if we imposed a 1000 percent tariff on the drug.

Nor is this the only negative factor that is ignored in the CEPR projections. A study by a group of economists at the Austrian Foundation for Developoment Research, commissioned by the Confederal Group of the European United Left/Nordic Green Left in the European Parliament, points out that a number of major costs have been omitted when calculating the overall benefit of TTIP (pdf). The most important of these are the costs that arise from TAFTA's stated aim to eliminate "non-tariff barriers", or "non-tariff measures", by harmonizing regulations and standards. As the researchers point out:

All studies, but particularly the Ecorys study, assume that a reduction of NTMs [non-tariff measures] is welfare-enhancing. This ignores that NTM such as laws, regulations and standards pursue public policy goals. They correct for market failures or safeguard collective preferences of a society. As such they are themselves welfare-enhancing. The elimination or alignment of an NTM thus will imply a social cost for society. This applies equally to NTM elimination, harmonization and mutual recognition.

In other words, eliminating or harmonizing regulations may well produce a boost for companies, which no longer need to worry about stringent health and safety standards, say, but represent a loss for society, which suffers through increased health costs. Many of the supposed gains from TAFTA/TTIP are actually counterbalanced by similar losses that society as a whole will be forced to accept.

It's also worth emphasizing that the "€119 billion a year" figure that is used by supporters of TAFTA is what the CEPR research calls an "ambitious, comprehensive agreement" -- in other words, the most optimistic prediction. Strangely, no one ever talks about the other figures in the study -- the less optimistic, more realistic ones. Naturally, those would produce even lower growth than the tiny 0.05% extra GDP per year discussed above.

Because mainstream media unquestioningly accept this "€119 billion a year", and fail to challenge the assumptions that lie behind it, we don't know how the US and EU negotiators would attempt to justify TAFTA given the extremely small economic benefit predicted by the European Commission's research. Presumably, they might say that it's better than nothing at a time when both the US and EU are keen to boost their economies and create jobs.

But that's not really true, because it ignores the fact that there are other ways of achieving this goal that don't involve placing companies above nations through corporate sovereignty provisions, or require massive changes to regulations on both sides of the Atlantic. For example, a report commissioned by the Omidyar Network, entitled "Open for Business: How Open Data Can Help Achieve the G20 Growth Target" (pdf), claims that:

implementation of open data policies including in areas corresponding to G20 agenda items could increase G20 output by around USD 13 trillion over the next five years. This would boost cumulative G20 GDP by around 1.1 percentage points of the 2% growth target over five years.

That would work out as an extra GDP boost per year of around 0.22% -- four times what TAFTA might offer in the most optimistic case. And of course, open data initiatives do not require negotiations or concessions: governments can implement them unilaterally for very little cost. Or how about this new report on "climate-smart development"?

Government policies that improve energy efficiency and public transport could increase global economic output by more than $1.8 trillion per year, and also save lives, reduce crop losses and tackle climate change, according to new analysis released today from the World Bank and the ClimateWorks Foundation.

The increased economic output (pdf) works out at $242 billion for the US, and $271 billion for the EU, both in 2030. In this case, a collateral benefit of taking this route is that it would help to improve the environment and tackle climate change, too -- not something that can be claimed for TTIP. The current negotiations between the US and EU are being presented as a "once-in-a-generation" chance to boost transatlantic economies. They are nothing of the sort. TAFTA/TTIP is merely one of a number of ways of achieving that, and, as the above discussion indicates, not even a very good one.

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Filed Under: economic projections, economics, predictions, tafta, trade agreements, ttip

Details Leak On How Secret Global Treaty Will Force Countries To Further Deregulate Financial Sector

from the yet-another-ratchet dept

WikiLeaks has been rather quiet recently -- probably something to do with Julian Assange being stuck in the Ecuadorian Embassy in London for the last two years. But today, we saw a flash of the old, dangerous WikiLeaks, with its publication of a major leak concerning the Trade In Services Agreement (TISA). Although Techdirt wrote about this in April, for many this is the first time they have heard about this secretive deal, which has probably come as something of a shock given the global scale of its ambitions and its likely impact. Here's how WikiLeaks describes its latest release:

Today, WikiLeaks released the secret draft text for the Trade in Services Agreement (TISA) Financial Services Annex, which covers 50 countries and 68.2%1 of world trade in services. The US and the EU are the main proponents of the agreement, and the authors of most joint changes, which also covers cross-border data flow. In a significant anti-transparency manoeuvre by the parties, the draft has been classified to keep it secret not just during the negotiations but for five years after the TISA enters into force.

Despite the failures in financial regulation evident during the 2007-2008 Global Financial Crisis and calls for improvement of relevant regulatory structures, proponents of TISA aim to further deregulate global financial services markets. The draft Financial Services Annex sets rules which would assist the expansion of financial multi-nationals -- mainly headquartered in New York, London, Paris and Frankfurt -- into other nations by preventing regulatory barriers. The leaked draft also shows that the US is particularly keen on boosting cross-border data flow, which would allow uninhibited exchange of personal and financial data.

The leaked document itself is pretty dry and inscrutable, so wisely WikiLeaks has asked an expert in the field, Professor Jane Kelsey of the Faculty of Law, University of Auckland, New Zealand, to provide a detailed commentary, and this is the best place to start when coming to grips with the leak. Here's her chilling summary:

The secrecy of negotiating documents exceeds even the Trans-Pacific Partnership Agreement (TPPA) and runs counter to moves in the WTO towards greater openness.

The TISA is being promoted by the same governments that installed the failed model of financial (de)regulation in the WTO and which has been blamed for helping to fuel the Global Financial Crisis (GFC).

The same states shut down moves by other WTO Members to critically debate these rules following the GFC with a view to reform.

They want to expand and deepen the existing regime through TISA, bypassing the stalled Doha round at the WTO and creating a new template for future free trade agreements and ultimately for the WTO.

TISA is designed for and in close consultation with the global finance industry, whose greed and recklessness has been blamed for successive crises and who continue to capture rulemaking in global institutions.

A sample of provisions from this leaked text show that governments signing on to TISA will: be expected to lock in and extend their current levels of financial deregulation and liberalisation; lose the right to require data to be held onshore; face pressure to authorise potentially toxic insurance products; and risk a legal challenge if they adopt measures to prevent or respond to another crisis.

One of the most worrying features of the TISA proposals is the following:

The crucial provision is Art X.4, which would apply a standstill to a country's existing financial measures that are inconsistent with the rules. That means governments must bind their existing levels of liberalization for foreign direct investment on financial services, cross-border provision of financial services and transfers of personnel. The current rules will be the most restrictive of financial services that a government would be allowed to use. They would be encouraged to bind in new liberalization beyond their status quo.

This is the familiar "ratchet" that we see in copyright law. Here, it means that restrictions on the financial industry can only be reduced, never increased, no matter how badly they screw up the global economy (again). Doubtless proponents of TISA will claim that signatories to the agreement will -- of course -- retain their sovereignty and ability to take "prudential measures" for the good of their people, just as they have said regarding corporate sovereignty in TPP and TAFTA/TTIP. But as Kelsey points, part of the leaked document shows that is simply not true:

the article is comprised of two sentences that contradict each other. If a government takes a prudential measure that is inconsistent with the agreement, it cannot do so as a means to avoid its commitments under the agreement! So any prudential measures must be consistent with the other provisions in the agreement.

Put another way, governments will have total freedom to legislate in any way they please provided it is compatible with TISA -- which means that it must be in favor of the financial industry, not the public. Another section that is written entirely for the benefit of the financial companies, not the public, concerns the protection of personal data:

nothing shall be construed to require a Party to disclose information regarding the affairs and accounts of individual consumers. That means TISA does not affect states' ability to require disclosure of information, presumably to the government, about individuals. It is not concerned with protecting personal privacy or preventing those who hold the personal data from abusing it for commercial or political purposes.

Given the sensitivity of data protection issues in Europe, this is likely to become a major stumbling block to the ratification of TISA by the European Parliament, assuming it gets that far. Indeed, it's significant that one of the leading German newspapers, the Süddeutsche Zeitung, used the headline "U.S. grab account data of European citizens" when reporting on the leak (original in German.) That underlines the fact that alongside the new information that the WikiLeaks document reveals about the secret negotiations, another important aspect of the leak is that the mainstream media in Europe are finally aware of TISA, and are likely now to start exploring critically its effect on key areas like privacy and public services.

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Filed Under: deregulation, financial sector, regulations, secrecy, tisa, trade agreements

Why Does South Korea Want To Turn Australia's ISPs Into Hollywood's Copyright Cops?

from the what-a-coincidence dept

Techdirt has been covering for a while how iiNet has doggedly fought attempts to make Australian ISPs liable for copyright infringement on their networks, and how Hollywood has been pressuring Australia's (relatively) new Attorney General into making that happen. The latest development, reported by Gizmodo Australia, is that KAFTA, the free trade agreement between Australia and South Korea, signed in April this year, mentions iiNet in the following section concerning its implementation (pdf):

Consistent with Australia's existing obligations in the Australia-US and Australia-Singapore FTAs, and to fully implement its obligations under KAFTA, the Copyright Act 1968 will require amendment in due course to provide a legal incentive for online service providers to cooperate with copyright owners in preventing infringement due to the High Court's decision in Roadshow Films Pty Ltd v iiNet Ltd, which found that ISPs are not liable for authorising the infringements of subscribers.

As that makes plain, this is specifically about overturning the court case that iiNet won, and forcing Australian ISPs to act as copyright police. That would be really terrible for iiNet, after all the effort and money it has put into fighting precisely this outcome, and bad news for the Australian public, which would doubtless find ISPs erring on the side of caution and taking down perfectly legal material.

But the interesting question has to be: why on earth does South Korea care about this? It seems unlikely that there is enough piracy of South Korean music or films going on Australia to justify the Korean government demanding a change to Australia's copyright laws as part of a free trade deal. The fact that this implementation requirement just happens to match exactly what Hollywood has been demanding for some time must raise the suspicion that the US has had a hand in this on behalf of its copyright industries. That's yet another reason for demanding real transparency during trade negotiations, so that such shabby deals can be exposed before it's too late to do anything about them.

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Filed Under: australia, copyright cops, hollywood, isp, kafta, south korea, trade agreements
Companies: iinet

Success Of Fringe Parties In European Parliament Raises New Obstacle To TAFTA/TTIP's Progress

from the more-problems dept

As Techdirt has been charting, the TAFTA/TTIP negotiations have already encountered far more resistance than was expected when they began last year. This has mostly centered around the controversial corporate sovereignty provisions, but there are also more general concerns about things like deregulation -- for example, through a new regulatory council. As well as pushback from expected quarters -- civil organizations and NGOs (pdf) -- even some European governments are expressing their doubts. And following last week's elections for the European Parliament, a new obstacle to concluding the agreement has been added: an increased number of European politicians (MEPs) that are skeptical about pan-European projects in general, and TAFTA/TTIP.

Although they hold a relatively small number of seats, they complicate the dynamics of the European Parliament, where neither the center-right group of the European People's Party, nor the center-left group of the Progressive Alliance of Socialists and Democrats, has an absolute majority. That means that complex and probably shifting coalitions will be needed to pass new laws in the European Parliament for the next few years.

For many areas, it's not obvious what those coalitions will be, or what policy compromises they will require in order to coalesce. But for one -- that of TAFTA/TTIP -- it's already clear that things have changed. That's because many of the smaller euroskeptic groups have declared their outright hostility to the negotiations. Here, for example is Marine Le Pen, leader of the successful far-right party, Front National, which came first in France, gaining 24 of the 74 seats allotted to that country in the European Parliament:

"I also demand that [the French President] does three things to take Sunday's vote into account: firstly, France halts the transatlantic treaty..."

In Italy, the Movimento Cinque Stelle came second in the polls, and won 17 out of the country's 73 seats. A recent blog post on the subject of TAFTA/TTIP made the party's views clear (original in Italian):

The Euro-American free exchange zone risks binding definitively the fates of Europe and the Euro with those of the US and the dollar, limiting the residual autonomy of an EU less and less integrated internally, and always more at risk of fragmenting.

...

[Movimento Cinque Stelle] is certain that additional liberalization [from TAFTA/TTIP] would damage [Italy] more than other countries; we therefore expect from the [Italian] government clarity and full involvement of Parliament.

Meanwhile, in Spain, a new party called "Podemos" took 5 of the country's 54 seats. Its political program (original in Spanish, pdf) contains the following demand regarding TAFTA/TTIP:

Cessation of the negotiation process for the Transatlantic Trade and Investment Agreement.

Now, individually these parties don't amount to much, and even collectively they are still a fringe group. But their existence will add a heightened anti-TTIP edge to the new European Parliament. Moreover, political leaders in France, Italy and Spain are likely to take their views into account in an attempt to minimize damage in local elections. Coupled with the existing groups that have declared their opposition to TAFTA/TTIP -- the European Greens and the left-wing groups -- this means the likelihood of TAFTA/TTIP getting an easy ride in the European Union is now greatly reduced.

That more hostile atmosphere will feed through to the European Commission -- the European body responsible for negotiating TAFTA/TTIP. New Commissioners are being appointed later this year, and the incoming Trade Commissioner is likely to be much more robust in his or her defense of European interests, so as to head off criticism from the new Euroskeptic groups and national leaders made nervous by the success of these parties.

The overall affect of this is likely to be more clashes during the negotiations, and slower progress. That's problematic for TAFTA/TTIP; if there is no deal until 2016, when the next Presidential race begins, a controversial and perhaps deeply unpopular trade agreement will be the last thing that US politicians will want to deal with. TTIP will just be put on hold until after the election -- or maybe even dropped completely.

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Filed Under: eu, eu parliament, politics, right wing, tafta, trade agreements, ttip

WIPO's Development Agenda At The Crossroads: Does IP Or Development Take Priority?

from the crunch-time dept

One reason why agreements like ACTA, TPP, TAFTA/TTIP and TISA have proliferated in recent years is that the US, EU and allies are losing their tight grip on international bodies like the WTO. That means they are unable to use traditional fora to draw up trade agreements that largely serve their interests. Instead, they have started forming ad hoc invitation-only groups that can negotiate in secret, without needing to accommodate the views of emerging economies that are starting to assert themselves.

That tussle between the old and the new power blocs has now spread to WIPO, as Intellectual Property Watch's report on a recent meeting of the WIPO Committee on Development and Intellectual Property reveals:

At the heart of the power struggle is the Development Agenda of the organisation. Adopted in 2007, it aimed at instilling a development dimension in all WIPO activities. However, the interpretation of this development dimension and how it should be implemented is regularly an object of friction.

Last night, after a tense week, final statements sounded warning signs of a deep political divide on the orientation of the organisation, which developed countries underlined was financed by users of the global IP system, and whose main goal is the promotion of the protection of intellectual property, and developing countries recalled is a United Nations agency with development at its core.

There are two world-views colliding here. The first, held by the US and the EU for example, is that WIPO's central task is to spread and strengthen intellectual monopolies around the world, since these, they assert, are inherently desirable. The second, espoused by emerging economies, is that such monopolies are not an end in themselves, but tools for enhancing economies and the well-being of the public. That implies monopolies that cause harm -- for example, pharma patents that lead to unaffordable drugs for the vast majority of the world's population -- should be reined in, rather than encouraged. Naturally, that does not sit well with nations like the US and EU whose priority is how much money patent and copyright monopolies can generate for the companies that own them.

The shifting mood among some at WIPO is clear from this statement made by South Africa during the meeting:

Although regretting the absence of agreement over the week, "what we cannot run away from is the fact that there are some delegations who hold the view that the organisation can go back to pre-2007," he said. "This is something my delegation will fight to the end for!"

"We understand the WIPO Convention," he said, "but this organisation is not a company and we are not part of a board of directors who need to answer to someone. We answer to the public," he said. The people of South Africa are "the only people that we answer to, irrespective of who funds the organisation or where the funding comes from."

South Africa may be in the vanguard in expressing so forcefully its views on the need for a new kind of WIPO, but it is not alone. That means we can expect yet more private agreements among the old guard who increasingly find that they are unable to have their way at traditional organizations like WIPO.

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Filed Under: development, development agenda, intellectual property, public interest, trade agreements, wipo