Impact of Trade Agreements on IP

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  • Policy laundering takes advantage of the fact that the institutions nations have created for ensuring democratic control and input into the bureaucratic policymaking process have not yet been incorporated into most international bodies and negotiation venues. And of course, the entertainment lobby applauds this. It is well known for instance, that provisions of the US DMCA were the result of policy laundering.
  • During the period that TRIPS was being negotiated (1986-1993) there were suggestions that if developing countries agreed to TRIPS the US would ease off negotiating intellectual property standards bilaterally.
  • Pivotal roles: Advisory Committee on Trade Negotiations (ACTN)., IPC, Consensus of the “Quad”The basic message to the US government was that it should pull every lever at its disposal in order to obtain the right result for the US on intellectual property.
  • After the European Parliament rejected ACTA in July, European Commissioner NAME De Gucht affirmed that they have “obviously” made changes to the CETA language on IP enforcement. While he continues to affirm that the language contained in ACTA was good, CETA was modified due to political and social pressure.https://www.eff.org/deeplinks/2012/10/european-commissioner-affirms-europe-wants-ceta
  • Proponents of stronger intellectual property enforcement are pushing for provisions that make it difficult or illegal to break the locks on content, even if the end use is lawful. And also to prevent the development and distribution of technologies to circumvent => new layer of protection on top of copyrights
  • See some language examples at More on the 3-step test in global copyright negotiations: http://keionline.org/node/1568Most international copyright agreements since then have incorporated versions of this text. For example, versions of the test may be found in the TRIPS Agreement (Article 13), the WCT (Article 10), several EU copyright directives, and several bilateral agreements. Indeed, three-step tests may now be found in the national legislation of many countries, including France, Portugal, China, and Australia. Even when national legislation does not explicitly incorporate the test, judges sometimes rely upon it when construing and applying their nation's copyright laws.For a detailed analysis of the three-step-test within the TPP see https://www.eff.org/deeplinks/2012/08/civil-society-groups-oppose-us-and-australia-proposal
  • Impact of Trade Agreements on IP

    1. 1. When Trade Agreements Threaten Freedom Carolina Rossini Director for International Intellectual Property carolina@eff.org
    2. 2. It’s so easy that we take it for granted.
    3. 3. BUT If we take freedom for granted, even in obscure tradeagreements, we may allow those agreements to impede technological innovation and public interest.
    4. 4. Conscious Choice To Be Open
    5. 5. Three takeaways• Complex rights issues are being negotiated in non- transparent, non-democratic fora, undermining WTO and WIPO and national efforts of policy and law making => Policy laundering• Copyright holder rights are expanding and ISPs are being pressured, while exceptions and limitations/fair use are being threatened• We all have our roles > awareness raising, capacity building, influencing the policy making process, taking the streets
    6. 6. • TRIPS did not turn out to be, as many developing countries had hoped, the end of multinational companies’ plans for the globalization of intellectual property rights. Peter Drahos
    7. 7. Source: WTO, Staff Working Paper ERSD-2012-21 https://www.wto.org/english/res_e/reser_e/wpaps_e.htm
    8. 8. The interconnections among hub-and-spoke systems create networks that transmit IP provisions across RTAs, and eventually from one domestic IP regime to another.Source: WTO, Staff Working Paper ERSD-2012-21 https://www.wto.org/english/res_e/reser_e/wpaps_e.htm
    9. 9. • The Anti-Counterfeiting Trade Agreement is an agreement to create new global IP enforcement standards, which was negotiated from 2007-2010 by the U.S., the EU, Canada, Australia, New Zealand, Mexico, Singapore, Morocco, Jordan, Japan and South Korea.
    10. 10. • The final text of ACTA (link to October 2011 test) does not expressly mandate Internet intermediaries to disconnect Internet users for repeat allegations of copyright infringement;• BUT article 27 opens doors – including incentives for public/private cooperation for enforcement.
    11. 11. CETA
    12. 12. Scope• to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement.• Express goal of USA > APEC members: • 21 countries: 40% of world’s population
    13. 13. • Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to create new heightened global IP enforcement norms.• Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the U.S. and other TPP member
    14. 14. Digital Locks
    15. 15. Impacts of DMCA Extension• Overrides national copyright law exceptions.• Chilling effect on scientific research and publication.• Anti-competitive misuse.• Stifled technological innovation and creation of interoperable devices.• Threatened free and open source software See: “Unintended Consequences: 12 Years Under the DMCA @ http://www.eff.org/unintendedconsequences https://www.eff.org/document/tpp-tpms-and-civil-rights-presentation
    16. 16. TPP article 16.3 mandates a system of ISP liability that pushes aframework beyond ACTA and possibly the spirit of the DMCA, since itopens the doors to:• Three-strikes policies and laws that require Internet intermediaries to terminate their users’ Internet access on repeat allegations of copyright infringement• Requirements for Internet intermediaries to filter all Internet communications for potentially copyright-infringing material• ISP obligations to block access to websites that allegedly infringe or facilitate copyright infringement• Efforts to force intermediaries to disclose the identities of their customers to IP rightsholders on an allegation of copyright infringement.
    17. 17. E&L at risk > 3-step-test debate• to define the freedom of signatory countries to create “exceptions and limitations” to copyrights.• The US + Australia (+ Peru)• depending on the actual text and its interpretation, the three-step test will actually restrict fair use and other copyright exceptions and limitations
    18. 18. • Fair use accounted for more than $4.5 trillion in annual revenue• Has also generated jobs > 233000, just in California• Fastest growing sector > ITC based on fair use• Investors and VC would stop investing if something like SOPA/PIPA was passed• There has been a increase in the production of cultural goods• More at: https://www.eff.org/deeplinks/2012/09/copyright-and-campaign-misinformation-new-study-affirms-less- copyright
    19. 19. • If Australia expands fair use • The 2012 study showed that flexible fair use showed positive impact in the growth alongside with safe harbors of tech companies for ISPs, there is a potential of an extra $600 million on • Singapore fair use amendments are their economy correlated with a 3,33% increase in value added (%GDP growth) = this resulted in a• Australia sector relying on total increase of 2.27 billion for private fair use contributes to 14% tech companies as of 2010 (5 years of expanded fair use implemented) of Australia’s GDP = $182 billion per year • Before this policy change, tech industry in Singapore was in recession• More at https://www.eff.org/deeplinks/2012/09/co pyright-and-campaign-misinformation-new- • AND THERE WAS no significant change in study-affirms-less-copyright the copyright industry sector
    20. 20. International negotiations may seem abstract and obscure.But a trade agreement or treaty do become national law. Secrecy negotiations are not democratic, violate the open government principles
    21. 21. If we take freedom for granted, even in obscure tradeagreements, we may allow those agreements to impede technological innovation and public interest.
    22. 22. SO WE MUSTTAKE ACTION ANYWAY
    23. 23. Obrigada - carolina@eff.org
    24. 24. Global Chokepoints is an online resource created to document and monitor global proposals to turnInternet intermediaries into copyright police. Theseproposals harm Internet users’ rights of privacy, due process and freedom of expression, and endanger the future of the free and open Internet. https://globalchokepoints.org/

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