3. BUT
If we take freedom for granted,
even in obscure trade
agreements, we may allow those
agreements to impede
technological innovation and
public interest.
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. • 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. Source: WTO, Staff Working Paper ERSD-2012-21 https://www.wto.org/english/res_e/reser_e/wpaps_e.htm
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.
10. • 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.
11. • 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.
16. 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
17.
18.
19. • 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
21. 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
22. TPP article 16.3 mandates a system of ISP liability that pushes a
framework beyond ACTA and possibly the spirit of the DMCA, since it
opens 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.
23. 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
24. • 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
25. • 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
26. 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
27. If we take freedom for granted,
even in obscure trade
agreements, we may allow those
agreements to impede
technological innovation and
public interest.
30. Global Chokepoints is an online resource created to
document and monitor global proposals to turn
Internet intermediaries into copyright police. These
proposals 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/
Notas do Editor
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