Tag Archive: ACTA

Jun 14 2012

What We Need To Know: Trans-Pacific Partnership

Back in February of this year when we were battling ACTA, SOPA, and PIPA to protect the internet, I wrote about the Trans Pacific Partnership which would have impose even stricter provisions on copyright law and the internet than ACTA. Well, TPP hasn’t gne away and the secret negotiations by the Obama administration has raised serious questions from both sides of the Congressional aisle. The trade document (pdf), which has been a more closely guarded secret than Dick Cheney’s location, was leaked by Public Citizen a long-time critic of the administration’s trade objectives. Their analysis of the stealth policy that is being advocated by the super corporations and the Obama administration is, in a word, frightening.

A leak today of one of the most controversial chapters of the Trans-Pacific Partnership (TPP) reveals that extreme provisions have been agreed to by U.S. officials, providing a stark warning about the dangers of “trade” negotiations occurring under conditions of extreme secrecy without press, public or policymaker oversight, Public Citizen said.

“The outrageous stuff in this leaked text may well be why U.S. trade officials have been so extremely secretive about these past two years of TPP negotiations,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “Via closed-door negotiations, U.S. officials are rewriting swaths of U.S. law that have nothing to do with trade and in a move that will infuriate left and right alike have agreed to submit the U.S. government to the jurisdiction of foreign tribunals that can order unlimited payments of our tax dollars to foreign corporations that don’t want to comply with the same laws our domestic firms do.”  [..]

The TPP may well be the last trade agreement that the U.S. negotiates. This is because TPP, if completed, would have a new feature relative to past U.S. trade pacts: It would remain open for any other country to join later. Last month, USTR Kirk said that he “would love nothing more” than to have China join TPP.

In one move without congressional ratification, the agreement could:

  • offshore millions of American jobs,
  • free the banksters from oversight,
  • ban Buy America policies needed to create green jobs and rebuild our economy,
  • decrease access to medicine,
  • flood the U.S. with unsafe food and products,
  • and empower corporations to attack our environmental and health safeguards.
  • Zach Carter of Huffington Post reveals that the agreement confers on multinational corporations the ability to circumvent US laws and regulation:

    Under the agreement currently being advocated by the Obama administration, American corporations would continue to be subject to domestic laws and regulations on the environment, banking and other issues. But foreign corporations operating within the U.S. would be permitted to appeal key American legal or regulatory rulings to an international tribunal. That international tribunal would be granted the power to overrule American law and impose trade sanctions on the United States for failing to abide by its rulings. [..]

    While the current trade deal could pose a challenge to American sovereignty, large corporations headquartered in the U.S. could potentially benefit from it by using the same terms to oppose the laws of foreign governments. If one of the eight Pacific nations involved in the talks passes a new rule to which an American firm objects, that U.S. company could take the country to court directly in international tribunals.

    Public Citizen challenged the independence of these international tribunals, noting that “The tribunals would be staffed by private sector lawyers that rotate between acting as ‘judges’ and as advocates for the investors suing the governments,” according to the text of the agreement.

    Some of the other parts of the agreement would raise the cost of medications, while it would make life saving drugs inaccessible, it might as well have if they’re too expensive. Some of the other provisions would also:

  • Expand pharmaceutical patenting and create new drug monopolies, by lowering patentability standards and requiring patentability of minor variations of older, known medicines.
  • Lengthen drug monopolies by requiring countries to extend patent terms.
  • Eliminate safeguards against patent abuse, including among others the right of third parties to challenge patent applications (pre-grant opposition).
  • Risk facilitating patent abuse by requiring countries to condition marketing approval on patent status (patent linkage). Under patent linkage, even spurious patents may function as barriers to generic drug registration.
  • Expand exclusive control over clinical trial data including through an extra three years of data exclusivity for new uses of known products (in addition to five years exclusivity for first uses) and a new provision on biotech medicines.
  • Judit Rius, U.S. manager of Doctors Without Borders Access to Medicines Campaign, referring to the medication rules said, “Bush was better than Obama on this. It’s pathetic, but it is what it is. The world’s upside-down.”

    On the impact on US environmental laws, Margrete Strand Rangnes, Labor and Trade Director for the Sierra Club, an environmental group said, “Our worst fears about the investment chapter have been confirmed by this leaked text … This investment chapter would severely undermine attempts to strengthen environmental law and policy.”

    These negotiations have been going on since Obama took office. They are backed by the US Chamber of Commerce and by the Republican presidential nominee, Mitt Romney, who urged the US to finalize the deal.

    Sen Ron Wyden (D-OR) has introduced legislation for more transparency and House Oversight Committee Chairman Darrell Issa (R-CA) leaked a document from the talks on his website. (Hmm. Will Issa investigate himself?)

    So much for this promise from Obama and the DNC (pdf):

    We will not negotiate bilateral trade agreements that stop the government from protecting the environment, food safety, or the health of its citizens; give greater rights to foreign investors than to U.S. investors; require the privatization of our vital public services; or prevent developing country governments from adopting humanitarian licensing policies to improve access to life-saving medications

    And Obama supporters tell us that Romney is worse. Really? I see no difference between the them.

    Feb 01 2012

    Obama’s War on the Internet: Trans-Pacific Partnership

    Just when you thought that the Obama administration’s assault on the Internet and his plan to censor free speech and creativity couldn’t be worse, Obama gets more creative. Meet the “son of the Anti-Counterfeiting Trade Agreement (ACTA)”, the Trans-Pacific Partnership which could impose even stricter provisions than ACTA.

    From TechDirt

    … we were noting calls from the industry for the USTR (US Trade Representative) to negotiate a hardline in the Trans-Pacific Partnership Agreement, which involves a bunch of Pacific Rim countries …

    Apparently, the US government has already indicated that it will not allow any form of weakening of intellectual property law for any reason whatsoever in this agreement. In fact, the USTR has directly said that it will only allow for “harmonizing” intellectual property regulations “strictly upwards,” meaning greater protectionism. Given the mounds of evidence suggesting that over protection via such laws is damaging to the economy, this is immensely troubling, and once again shows how the USTR is making policy by ignoring data. This is scary.

    Both ACTA and TPP are backed by the US Business Coalition whose members include the Pharmaceutical Research and Manufactures of America, the US Chamber of Commerce, and the Motion Picture Association of America. There’s that guy Dodd again. These are some of the issues that they want TPP to address and how they would effect you and the Internet. Rashmi Rangnath rrom the policy blog Public Knowledge highlights the demands:

    • Temporary copies: The US Business Coalition paper urges TPP countries to include a provision requiring protection for temporary copies. Temporary copies are copies made when you access webpages, or music, or any other content on the Internet. In addition, your computer makes transient copies, such a buffer copies, in the course of replaying such content. These copies have no value independent of the ultimate use they facilitate – your viewing of the movie or listening to the music. Treating them as worthy of copyright protection allows rights holders to claim additional rents where none are due.
    • Circumvention of digital locks: The paper urges TPP countries to prevent circumvention of digital locks. The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WPPT) were the first international instruments to impose this obligation on countries. Within the U.S., these treaties were cited as the reason for the enactment of the Digital Millennium Copyright Act (DMCA). The harms caused by the DMCA’s anti-circumvention provisions have been well documented. In a nutshell, while on the one hand the DMCA attempts to prevent copyright infringement by prohibiting an infringer from breaking digital locks (ex: locks used on DVDs) on the other hand, it also prevents lawful uses (ex: preventing you from breaking the locks on the DVD you purchased to play it on your computer running on Linux).
    • Copyright terms: The paper urges the TPP to provide for longer copyright terms. Current copyright term in the U.S. is life of the author plus 70 years. The TRIPS agreement, which is the baseline IP agreement to which most countries adhere, requires a copyright protection for life of the author plus 50 years. …

      Too often, copyright owners lose interest in works whose commercial lives have ended; works become obscure; and historians, educators and documentarians interested in using the work cannot do so because they cannot find the owner to seek permission to use the work. All of this warrants a reassessment of the proper copyright term, not an extension of current copyright terms.
    • Statutory damages: The paper urges TPP to include a provision on statutory damages, ostensibly similar to the U.S. statutory damages regime. As PK and its allies have pointed out, the U.S. statutory damages regime has led to excessively large damages awards. This regime has resulted in discouraging reliance on fair use thereby stifling innovation because of the threat of a multi-million dollar lawsuit.

    The coalition suggests many other worrisome provisions such as requiring ISPs to act as copyright cops and treating individual infringers with the same severity as large-scale pirates.

    The author of this article makes particular note that the Obama administration has been very careful not to share the text of the “agreement with the public while it was given to the corporate insiders and the nations involved in the negotiations.

    What was that President Obama said about “transparency”? Is this what he means when he says that he values the Constitution?  

    Feb 01 2012

    “File-Sharing and Monetization Aren’t Mutually Exclusive”

    Neil Young is right – piracy is the new radio

    As an artist who probably makes a substantial income from licensing his music, you might think Neil Young would frown on piracy and file-sharing, but that appears not to be the case, according to an interview he gave at the Dive Into Media conference in Los Angeles. Instead of railing against file-sharers, Young called piracy “the new radio” because it’s “how music gets around.” The musician’s comment puts a lot of the hysteria about copyright infringement into perspective – as we’ve pointed out before, file-sharing and monetization aren’t mutually exclusive, and in many cases a certain amount of so-called “piracy” can actually be good for business, as authors, musicians and even game developers have come to realize.

    Jan 31 2012

    ACTA:The Backdoor to SOPA

    As Wikipedia noted on its website after SOPA and PIPA were taken off the table, “we’re not done yet”. Guess what, they were right, we aren’t done yet and it’s even worse. While we turned our backs on this transparent president was busy working on a “trade” agreement that is even worse than both those bill. It has been in the works since before 2008 and is designed to bypass the constitutional requirement of Senate ratification by calling it an “executive agreement.” Negotiations were held in secret and kept form the public and congress under the guise of “national security.”

    What is this “agreement”?

    It is called ACTA, Anti-Counterfeiting Trade Agreement is a multi-country trade agreement that, according to Wikipedia:

    {} is for the purpose of establishing international standards for intellectual property rights enforcement. The agreement aims to establish an international legal framework for targeting counterfeit goods, generic medicines and copyright infringement on the Internet, and would create a new governing body outside existing forums, such as the World Trade Organization, the World Intellectual Property Organization, or the United Nations.

    The agreement was signed on 1 October 2011 by Australia, Canada, Japan, Morocco, New Zealand, Singapore, South Korea and the United States. In January 2012, the European Union and 22 of its member states signed as well, bringing the total number of signatories to 31. After ratification by 6 states, the convention will come into force.

    Supporting and negotiating countries have heralded the agreement as a response to “the increase in global trade of counterfeit goods and pirated copyright protected works”, while opponents have lambasted it for its potentially adverse effects on fundamental civil and digital rights, including freedom of expression and communication privacy. Others, such as the Electronic Frontier Foundation, have derided the exclusion of civil society groups, developing countries and the general public from the agreement’s negotiation process and have described it as policy laundering. The signature of the EU and many of its member states resulted in the resignation in protest of the European Parliament’s appointed rapporteur, as well as widespread protests across Poland.

    The negotiations for the ACTA treaty were conducted behind closed doors until a series of leaked documents relating to the negotiations emerged.

    On 22 May 2008, a discussion paper about the proposed agreement was uploaded to Wikileaks. According to the discussion paper a clause in the draft agreement would allow governments to shut down websites associated with non-commercial copyright infringement, which was termed “the Pirate Bay killer” in the media. According to the leaked discussion paper the draft agreement would also set up an international agency that could force Internet Service Providers (ISPs) to provide information about subscribers suspected of copyright infringers without a warrant.

    (emphasis mine)

    The United States already signed ACTA on October 1 in 2011, just before SOPA and PIPA started to get attention. On January 26, 2012, the European Union and 22 of its member states signed as well. After ratification by six member states, the convention will come into force.

    As reported by TechDirt, the Obama’s “US Trade Representative (USTR) has made it clear that it has no intention of allowing Congress to ratify ACTA, but instead believes it can sign it unilaterally”

    Sen. Ron Wyden (D-OR), for a long time the sole opponent of PIPA, sent a letter to President Obama in October expressing his objections:

    Although the USTR insists that current U.S. law, and its application, conform to these standards, there are concerns that the agreement may work to restrain the U.S. from changing such rules and practices. As you know, the executive branch lacks constitutional authority to enter binding international agreements on matters under Congress’s plenary powers, including the Article I powers to regulate foreign commerce and protect intellectual property. Yet, through ACTA and without your clarification, the USTR looks to be claiming the authority to do just that. [..]

    The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.

    At the conclusion of the letter, Sen. Wyden requested that the President formerly declare that ACTA is not binding on the US. Somehow, that may not happen.

    On the bright side, apparently, President Obama has found an issue where there is bipartisan agreement as Republican Congressman Darrell Issa (CA) called ACTA even more dangerous than SOPA:

    As a member of Congress, it’s more dangerous than SOPA. It’s not coming to me for a vote. It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.

    This video from Inf0rmNati0n expalins how ACTA will effect us as individuals.

    So what can we do to stop this? Get out your keyboards and man your cell phones. Call and email the White House and your elected representatives and tell them “Don’t Mess With The Internet.

    Here are two petitions to sign

    Please Submit ACTA to the Senate for Ratification as Required by the Constitution for Trade Agreements

    End ACTA and Protect our right to privacy on the Internet