We’ve been writing a lot about the Trans Pacific Partnership (TPP) agreement over the past few years. There are many, many problems with it, but the two key ones are the intellectual property chapter and the investment chapter. Unlike some who are protesting TPP, we actually think that free trade is generally a good thing and important for the economy — but neither the intellectual property section nor the investment chapter are really about free trade. In many ways, they’re about the opposite: trying to put in place protectionist/mercantilist policies that benefit the interests of a few large legacy industries over the public and actual competition and trade. We’ve already discussed many of the problems of the intellectual property chapter — which is still being fought over — including that it would block the US from reforming copyright to lower copyright term lengths (as even the head of the Copyright Office, Maria Pallante has argued for).
And, last week, Wikileaks leaked the investment chapter, which is focused on corporate sovereignty provisions, officially known as “investor state dispute settlement” or “ISDS” (named as such, in part, because the negotiators know it sounds boring, so they hope the public won’t pay attention). As people go through the details and the fine print, they’re finding some serious problems with it. Sean Flynn has a very in-depth look at how the combination of these two chapters — the IP chapter and the investment chapter — could very likely threaten fair use (and, with it, undermine the First Amendment).
The full details as to how are a bit tricky to understand, because it involves digging through the leaked versions of both chapters, and understanding some of the subtle language choices, but it’s a serious concern. Flynn’s article also goes through the history of how such corporate sovereignty provisions have been expanded and increasingly used over the past decade or so. But the key part is this: the investment chapter certainly can (and will) be read to cover intellectual property as well, including the idea that a company can invoke the ISDS process if it feels its “intellectual property” has been “expropriated” in some manner. The word “investment” in the investment chapter is defined incredibly broadly and explicitly includes “intellectual property” as well as “other tangible or intangible, movable or immovable property.” It also, importantly, notes that an investment, for the purpose of ISDS, covers:
every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.
Now, it’s no secret that the legacy entertainment industry is no fan of fair use (even if they often rely on it themselves). While fair use is officially part of the law in the US, the entertainment industry just recently fought very hard to block it in the UK and Australia, arguing (ridiculously) that fair use would harm innovation.
Even where there are very strong arguments for fair use — such as in helping the blind access works — the entertainment industry has twisted the so-called “three step” test from the Berne Agreement to argue that that is the most that is allowed for fair use. The three step test is actually really about limiting fair use, rather than enabling it. It is in the Berne agreement (as a relatively recent addition) as one possible “exception” to copyright, but not the only one. However, the haters of fair use like to pretend that it is the only one allowed under that agreement.
Under the three step test, “exceptions” to copyright occur when there are:
limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder
And, of course, in the US, fair use goes way beyond that already. And, as Flynn points out, it appears from the leaked text of TPP, the US would now be opening itself up to an ISDS challenge from a foreign owned company (remember: Universal Music is owned by a French company, Sony Music is owned by a Japanese company and Warner Music is owned by Russians…) that the fair use doctrine itself “expropriates” its “intellectual property” rights by going beyond the three steps test. Here’s Flynn:
And here is a major one lurking in the shadows. Many copyright intensive industries are hostile to the U.S. fair use doctrine and many of the decisions of courts emanating from it. There have been arguments raised from time to time that the doctrine or its applications are contrary to the so-called Berne 3-step test requiring that limitations and exceptions to rights be limited to certain special cases, not conflict with a normal exploitation of the work and not unreasonably prejudice the legitimate interests of the author (see this rebuttal from Gervais et al.). No other country has attempted to sue the U.S. or the nearly dozen other countries around the world that have fair use. But will the content industry be so reticent with such challenges in the future? With the TPP ISDS chapter, they will not have to in 40% of the global economy.
And this isn’t so far fetched. As we’ve been discussing, under existing ISDS/corporate sovereignty provisions in NAFTA, Eli Lilly is currently suing Canada for $500 million because Canada refused to grant it some patents. Eli Lilly is arguing that this “expropriated” Eli Lilly’s “intellectual property” and took away its “expected profits.”
Is it that difficult to believe that a recording studio or movie studio might make a similar argument on a fair use determination on one of its copyright-covered works?
And, if fair use is undermined, so is free speech. As we’ve noted, the Supreme Court itself has long argued that current fair use doctrine is a necessary “safety valve” in making sure that copyright does not violate the First Amendment. In other words, fair use is a key part of your First Amendment rights.
And yet… the USTR is basically putting in place a plan and system to undermine this, because the big copyright players are among the very few people who are allowed to see the negotiating text and to “advise” the USTR on what should be in it. Once again, it would seem like the most obvious way to deal with this would be for the USTR to release the negotiating documents, so that the public would be aware of what’s being negotiated, and could discuss the possible consequences — like how the current rules have the potential to undermine fair use and free speech. But, for reasons that the USTR still will not explain (perhaps because they reveal the USTR’s true reasoning for such provisions), it refuses to do so.
Tag: TPP
Corporate Sovereignty Provisions Of TPP Agreement Leaked Via Wikileaks: Would Massively Undermine Government Sovereignty
For years now, we’ve been warning about the problematic “ISDS” — “investor state dispute settlement” mechanisms that are a large part of the big trade agreements that countries have been negotiating. As we’ve noted, the ISDS name is designed to be boring, in an effort to hide the true impact — but the reality is that these provisions provide corporate sovereignty, elevating the power of corporations to put them above the power of local governments. If you thought “corporate personhood” was a problem, corporate sovereignty takes things to a whole new level — letting companies take foreign governments to special private “tribunals” if they think that regulations passed in those countries are somehow unfair. Existing corporate sovereignty provisions have led to things like Big Tobacco threatening to sue small countries for considering anti-smoking legislation and pharma giant Eli Lilly demanding $500 million from Canada, because Canada dared to reject some of its patents noting (correctly) that the drugs didn’t appear to be any improvement over existing drugs.
US Pressured Japan, Canada, New Zealand And Others Into Extending Copyright
We noted that this was likely about a month ago, but IP-Watch is confirming that the USTR has bullied Japan, Canada, New Zealand and three other countries into agreeing that copyright terms must be life plus 70 years in the latest draft of the TPP agreement. This makes absolutely no sense, in part because even the head of the US copyright office has argued for the US to look at returning to the “life plus 50” baseline standard currently required by the Berne Agreement, and which those countries already abide by. Yet, here the USTR is rejecting that idea and saying that “life plus 70” will be required. That means that those countries will now have to jack up their copyright terms for absolutely no reason, even though it almost certainly harms the public for no benefit.
It’s not like these countries don’t know this is a bad idea. It’s been explained to them multiple times that even though the countries that have life plus 70 already are regretting it — and yet the USTR pushed for it anyway, and these countries backed down.
As we’ve noted for years, this is the really nefarious part of the agreements that the USTR negotiates. While this particular change won’t go against current US law, it makes copyright reform virtually impossible. That’s the real point of all this: by tying us up in “international obligations,” negotiated in backroom deals with no public input or review, the USTR is able to block Congress from having any meaningful chance at fixing the US’s broken copyright laws. Anyone who tries to put in place more sensible regimes will be told that they’re “violating international obligations” which will tie up the US government in things like those corporate sovereignty ISDS tribunals, in which merely fixing American copyright law will be seen as an unfair “appropriation” by the US government.
Taiwan Lobbyist Wrote Republican Party Resolution Calling for More Weapons for Taiwan
When the Republican National Committee convened in Chicago last August for its annual summer meeting, it unanimously approved a resolution urging the White House to supply a host of weapons, ranging from submarines to advanced warplanes, to the island nation of Taiwan.
However, Justice Department records show the resolution was not written by any of the RNC’s members, but by Marshall Harris, a lobbyist who had been hired by the Taiwanese government to further its interests in Washington.
Under the Foreign Agents Registration Act, lobbyists representing foreign governments are required to disclose their activities to the U.S. attorney general. According to the disclosure documents filed by Harris’ employer Alston & Bird, an Atlanta-based law firm, he wrote a draft of the resolution a month before the RNC’s 2014 summer meeting.
Once the text reached the RNC, committee members cut several phrases and paragraphs, one of which called for Taiwan’s inclusion in the Trans-Pacific Partnership, a proposed free trade agreement that has been described as a “high priority” by the Obama administration. The text that remained, however, was copied nearly word for word from Harris’ draft.
Neither the RNC nor Harris responded to questions about the resolution. Taiwan’s Economic and Cultural Representative Office in Washington, D.C. said the RNC often passes resolutions supporting Taiwan, and that the country has “a longstanding and solid friendship” with the Republican Party.
Taiwan engages in extensive lobbying of the U.S. government — not just representatives and senators but congressional staffers and even state-level officials — that receives less public attention than that of countries such as Israel and Saudi Arabia.
France Says Corporate Sovereignty Must Come Out Of CETA, Or Be Replaced By Something Completely Different
Although he is generally in favor of this agreement [CETA], the [French] Secretary of State [for External Commerce] considers that before ratifying the treaty it will be necessary either to withdraw current sections on ISDS or rewrite them entirely. Moreover, the opinion of [the French Secretary of State] Matthias Fekl represents not only the official position of France, but also a consensus shared by Germany and the European social democrats. In the daily Le Monde, he said on Wednesday that the only options remaining on the table were “the withdrawal, pure and simple, of ISDS or coming up with something new.” There is therefore no question of the Secretary of State signing the Canada-EU treaty without “inventing something new, that is no longer [investor-state] arbitration, but a new way to settle disputes, by integrating public courts in the procedure.”
USTR Pushes Congress To Approve Trade Deals… But Threatens Reps With Criminal Prosecution If They Tell The Public What’s In Them
For years now, we’ve been trying to understand why the US Trade Rep (USTR) is so anti-transparency with its trade negotiations. It insists that everything it’s negotiating be kept in near total secrecy until everything is settled, and the public can no longer give input to fix the problems in the agreement. It’s a highly questionable stance. Whenever this criticism is put to the USTR directly, it responds by saying that it will listen to anyone who wants to come and talk to the USTR. But, as we’ve explained multiple times, “listening” is about information going into the USTR. “Transparency” is about information coming out of the USTR. They’re not the same thing by any stretch of the imagination.
As the fight over new trade agreements gets louder and louder, a key stumbling block is having Congress approve so-called “fast track authority” or “Trade Promotion Authority,” which basically means that Congress can’t even jump in to try to fix the problems in whatever the USTR negotiates — it can only give a straight “yes” or “no” vote on the entire package. For reasons that aren’t entirely clear, Congressional Republicans are all for this, even though it means directly giving up Congress’s Constitutional authority to a President that the Republicans appear to hate. Meanwhile, Democrats seem reasonably skeptical of these new trade deals.
So the White House and the USTR have been pushing a charm offensive on Congressional Democrats concerning these trade deals, but the charm offensive also comes with this rather startling statement: if you reveal what we’re telling you, you may go to jail:
As the Obama administration gives House Democrats a hard sell on a major controversial trade pact this week, it will be doing so under severe conditions: Any member of Congress who shares information with the public from a Wednesday briefing could be prosecuted for a crime.
Yes, the USTR has declared that the briefing is entirely classified. Why? Mainly to keep the details secret from the American public. As Rep. Alan Grayson notes:
“It is part of a multi-year campaign of deception and destruction. Why do we classify information? It’s to keep sensitive information out of the hands of foreign governments. In this case, foreign governments already have this information. They’re the people the administration is negotiating with. The only purpose of classifying this information is to keep it from the American people.”
The USTR’s lame response to all of this is that any member of Congerss is allowed to come to its office and see the text of the negotiating documents. But that’s misleading in the extreme. As we’ve discussed before, the USTR tells elected officials that they can’t copy anything, take any notes, or even bring staff experts on trade agreements (or related issues)… even when those staffers have security clearance.
We pointed out this was a problem back in 2012 and it appears to be ongoing. The Huffington Post article above quotes Rep. Rosa DeLauro who appears to be having the same problem:
“Even now, when they are finally beginning to share details of the proposed deal with Members of Congress, they are denying us the ability to consult with our staff or discuss details of the agreement with experts. This flies in the face of how past negotiations have been conducted and does not help the Administration’s credibility. If the TPP would be as good for American jobs as they claim, there should be nothing to hide.”
Rep. Lloyd Doggett also seems amazed that his staffers with security clearance are blocked from getting information about the TPP agreement:
“I tried to find out what level of classification applies,” he said. “Can my top cleared staff read it? If he can hear about ISIS, is there something in here that prevents him from seeing these trade documents?”
It really does make you wonder, once again, just what is the USTR hiding here? There is simply no reason to keep these details secret — except if you know that the American public won’t approve of them.
Massive Coalition of Japanese Organizations Campaigns Against TPP Copyright Provisions
“We are deeply concerned about this situation in which important decisions for our nation’s culture and society are being made behind closed doors” reads a joint public statement from Japanese activists who are fighting the copyright provisions in the Trans-Pacific Partnership (TPP). A group of artists, archivists, academics, and activists, have joined forces in Japan to call on their negotiators to oppose requirements in the TPP that would require their country, and five of the other 11 nations negotiating this secretive agreement, to expand their copyright terms to match the United States’ already excessive length of copyright.
Negotiators have reportedly agreed to set their copyright terms to the length of an author’s life plus 70 years. Since the news was leaked, there has been growing opposition among Japanese users, artists, and fans against this copyright expansion—which is nicknamed the “Mickey Mouse Law” there due to Disney’s heavy lobbying that led to the copyright extension in the United States nearly two decades ago. The issue gained substantial awareness when prominent Japanese copyright lawyer, Kensaku Fukui, wrote a blog post about the TPP’s threats to Japanese Internet users and culture that went viral a month ago.
How Corporate Sovereignty In Trade Agreements Can Force National Laws To Be Changed
As we noted recently, one of the most worrying aspects of corporate sovereignty chapters in trade agreements is the chilling effect that they can have on future legislation. That’s something that the supporters of this investor-state dispute settlement (ISDS) mechanism never talk about. What they do say, though, is that corporate sovereignty cannot force governments to change existing laws. A recent defeat for Canada before an ISDS tribunal proves that’s not the case:
An international trade tribunal has ordered Ottawa to pay ExxonMobil and another oil company $17.3 million, following a complaint that the companies were required to spend money in Newfoundland and Labrador on research and development.
The case was brought by ExxonMobil using the corporate sovereignty provisions in the North American Free Trade Agreement (NAFTA), and concerned another agreement, called the Atlantic Accord. As CBC News explains:
Under the terms of the Atlantic Accord, a federal-provincial agreement on oil development first negotiated in 1985, oil companies are required to support petroleum-focused research and development in Newfoundland and Labrador, as part of its local benefits package.
In other words, three decades ago, Canadian politicians had passed a research and development package, one of whose measures was designed to boost local employment — exactly the kind of thing that voters want their politicians to do. But the ISDS tribunal ruled that under NAFTA, this was not permitted, and awarded substantial damages to ExxonMobil for being required to comply with the Atlantic Accord. But it gets worse:
Unless the governments of Canada and Newfoundland and Labrador agree to change the R&D legislation, Ottawa could be on the hook for continued damages. The federal government is responsible because NAFTA is an agreement between sovereign nations.
That is, the corporate sovereignty provisions in NAFTA are being used to force the Canadian government to change existing and long-standing legislation — something that ISDS fans assure us never happens.
USTR Goes Off The Deep End: Names Domain Registrar Tucows As A ‘Notorious Market’ For Piracy
As part of the annual joke from the USTR known as the Special 301 Report (which is so ridiculous that even top people at the US Copyright Office mock the USTR about it), the USTR publishes what it calls its “notorious markets list.” The Special 301 Report, if you don’t know, is the report where big companies whine to the USTR about countries those companies feel don’t respect US intellectual property rights enough. The USTR collects all of those whinings, and rewrites it as a report to send out to US diplomats to try to shame countries into “cracking down” on the behaviors that these companies don’t like — no matter whether or not it complies with US or local intellectual property laws. Starting a few years ago, the USTR broke out a separate list of online websites, which it refers to as “notorious markets.” It started doing this in 2011, in a process that was intended to support SOPA (because SOPA supporters wanted the list of “rogue” sites that would be banned under SOPA).
The USTR itself admits that there’s basically no objective or legal rationale behind its process:
The List does not purport to reflect findings of legal violations, nor does it reflect the U.S. Government’s analysis of the general IPR protection and enforcement climate in the country concerned.
The latest Notorious Markets list is out (technically, it’s the “2014 Out-of-Cycle Review of Notorious Markets”) and it’s full of the usual misleading crap. It’s quite amazing to watch US government officials celebrating the censorship of online forums and websites, calling it “progress.” Free expression is not particularly important to the USTR when the MPAA complains about it, apparently.
But the really astounding move in this latest report is by the USTR to start including domain registrars as “notorious markets,” including one of the most popular and widely used registrar in the world, Tucows:
This year, USTR is highlighting the issue of certain domain name registrars. Registrars are the commercial entities or organizations that manage the registration of Internet domain names, and some of them reportedly are playing a role in supporting counterfeiting and piracy online.
And here is the entry against Tucows:
Tucows.com: Based in Canada, Tucows is reportedly an example of a registrar that fails to take action when notified of its clients’ infringing activity. Consistent with the discussion above, USTR encourages the operators of Tucows to work with relevant stakeholders to address complaints.
Health Impact Assessment: TPP Poses Risks To Affordable Medicines, Tobacco Control And Nutrition Labeling
A report released today by a large team of academics and non-government health organisations reveals that the Trans-Pacific Partnership Agreement (TPP) poses risks to the health of Australians in areas such as provision of affordable medicines, tobacco and alcohol policies and nutrition labelling. Many public health organisations have been tracking the progress of the TPP negotiations over the past several years and have expressed concerns about the potential impacts and lack of transparency.