Bullied List Needed To Counter Trade & IP Linkage

[David Farber <dave () farber net>]

Begin forwarded message:

From: Michael Geist <mgeist () pobox com>
Date: May 9, 2005 7:04:21 AM EDT
To: dave () farber net
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 () pobox com              http://www.michaelgeist.ca


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