[IP] Bullied List Needed To Counter Trade & IP Linkage
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: May 9, 2005 7:04:21 AM EDT
To: dave@xxxxxxxxxx
Subject: IP Bullied List Needed To Counter Trade & IP Linkage
Dave,
Of possible interest - my weekly Law Bytes column (posted below)
focuses on the recent USTR Special 301 report and its specific
criticisms of Canada's copyright plans. The column highlights the
gradual escalation of U.S. linkage of trade and intellectual property
protection and calls for the creation of new IP Bullied List that
would include at least a dozen countries bullied into agreeing to
stronger IP laws, along with a Bullied Watch List that would include
dozens of countries currently negotiating similar trade agreements.
The IP Bullied List would include at least the following 12 countries
-- Australia, Bahrain, Chile, Singapore, Morocco, Jordan, and the
signatories to the Central America Free Trade Agreement (Dominican
Republic, Costa Rica, El Salvador, Guatemala, Honduras, and
Nicaragua). Each of these countries has reached trade agreements
with the U.S. that include sizable intellectual property requirements.
The Watch List would be even longer, including individual countries
such as Panama, Thailand, Malaysia, and Brunei that are all working
on bi-lateral trade agreements. Moreover, a block of Middle Eastern
countries (Algeria, Kuwait, Qatar, Saudi Arabia, United Arab
Emirates, and Yemen) would make the list as part of the Middle East
Free Area Initiative as would the five countries working on the
Southern African Customs Union Free Trade Agreement (South Africa,
Botswana, Lesotho, Namibia, and Swaziland). Further, every country in
the Americas, including Canada, Mexico, Argentina, Brazil, Jamaica,
Peru, and Venezuela would be on the list by virtue of their
participation in the Free Trade Area of the Americas Agreement
negotiation.
Freely available hyperlinked version at
http://www.michaelgeist.ca/resc/html_bkup/may92005.html
Toronto Star reg. version at
<http://geistipbulliedlist.notlong.com>
MG
TRADE PRESSURES CLOUD INTELLECTUAL PROPERTY POLICY
Michael Geist
Late last month the United States released its annual report on the
state of global intellectual property protections. Officially called
the "Special 301 Report" after the legislative provision that
mandated the annual review by the U.S. Trade Representative, it
places countries deemed to have insufficient protections on either a
"Watch List" or a "Priority Watch List". Inclusion on the Priority
Watch List is particularly troublesome since that may lead to U.S.
trade sanctions.
Indeed, the U.S. deemed Canada's intellectual property laws
insufficient for the eleventh consecutive year. We are, however, in
good company - the U.S. cited 50 countries including the European
Union and dozens of nations in South America, Eastern Europe, Asia,
the Middle East, and the Caribbean.
While media attention in Canada focused on the U.S. concerns over the
availability of counterfeit or pirated products at home, the coverage
missed the real story. Just weeks after the Canadian government
announced its plans for copyright reform, the U.S. has injected
itself in our policy debate by criticizing our future laws as well.
The report notes that the U.S. copyright industry is concerned with
the Canadian plan, a reference to Ottawa's intent to reject some of
the provisions found in the controversial U.S. Digital Millennium
Copyright Act. In particular, the U.S. is unhappy with both Canada's
proposed approach to legal protections for digital locks known as
technological protection measures (TPMs) as well as with its proposal
for Internet service provider liability.
After years of calling on Canada to implement the World Intellectual
Property Organization's Internet treaties, the U.S.'s true interests
have been revealed. Implementing the treaties is now not good
enough. Rather, the U.S. wants us to implement its version of the
treaties, which extend well beyond international requirements.
Even more troubling is the way U.S. pressure against Canada has
become part of a much larger global campaign to leverage its economic
power by tying trade agreements with greater intellectual property
protection. This was not always the case - when Canada negotiated
the free trade agreement with the United States in the 1980s,
intellectual property issues constituted only a small part of the
agreement. Similar U.S. agreements with Israel as well as the
subsequent North American Free Trade Agreement also referred to
intellectual property but did not make it a focal point.
Today the U.S. is negotiating trade agreements with dozens of
countries. The intellectual property provisions within those
agreements are sometimes at least 40 pages in length, specifying
international intellectual property agreements that must be
implemented and including specific provisions to govern domain name
disputes, patent protection, and copyright law. The copyright
provisions inevitably go beyond even those found in the U.S., since
they include requirements for an extension of the term of copyright,
new protections for TPMs, and ISP liability requirements. They do
not, however, feature any balancing provisions for user interests.
This trade policy approach has become so pervasive that the time has
come to create a mirror list to counter the U.S. Special 301 report.
That list should include those countries already bullied by the U.S.
into adopting stronger intellectual property protections along with a
"Watch List" of other countries currently facing similar pressures.
The IP Bullied List would include at least the following 12 countries
-- Australia, Bahrain, Chile, Singapore, Morocco, Jordan, and the
signatories to the Central America Free Trade Agreement (Dominican
Republic, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua).
Each of these countries has reached trade agreements with the U.S.
that include sizable intellectual property requirements. For
example, the U.S. - Morocco Free Trade Agreement even includes
ministerial side letters specifying precisely what ISPs in Marrakesh
are required to do in the event that they receive notification that
one of their subscribers has posted infringing content on the Internet.
The Watch List would be even longer, including individual countries
such as Panama, Thailand, Malaysia, and Brunei that are all working
on bi-lateral trade agreements. Moreover, a block of Middle Eastern
countries (Algeria, Kuwait, Qatar, Saudi Arabia, United Arab
Emirates, and Yemen) would make the list as part of the Middle East
Free Area Initiative as would the five countries working on the
Southern African Customs Union Free Trade Agreement (South Africa,
Botswana, Lesotho, Namibia, and Swaziland).
Further, every country in the Americas, including Canada, Mexico,
Argentina, Brazil, Jamaica, Peru, and Venezuela would be on the list
by virtue of their participation in the Free Trade Area of the
Americas Agreement negotiation.
Even though that draft treaty has stalled, the FTAA is the U.S.'s
most ambitious attempt to spread stronger intellectual property laws
throughout North and South America with at least 25 countries
participating in the talks. The latest version includes pages of
intellectual property obligations that would overturn carefully
developed national policies. For example, the Canadian Internet
Registration Authority would be required to scrap its domain name
dispute resolution policy, since it provides greater protection for
free speech websites than the policy favoured by the U.S.
Given its global trade strategy, the U.S.'s recent criticism of
Canada's plans is clearly just the first shot across the bow. If
history is any indication, Industry Minister David Emerson and
Canadian Heritage Minister Liza Frulla can expect an onslaught of
U.S. backed lobbying for stronger protections in the months ahead.
Standing up to that pressure is difficult, but Ottawa should keep in
mind that it is far better to retain Canadian sovereignty and in
doing so remain on the U.S. Special 301 list, than to surrender our
right to choose and take a spot on the U.S. IP Bullied List.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
-------------------------------------
You are subscribed as roessler@xxxxxxxxxxxxxxxxxx
To manage your subscription, go to
http://v2.listbox.com/member/?listname=ip
Archives at: http://www.interesting-people.org/archives/interesting-people/