Interesting People mailing list archives
Using treaties to lock in DMCA enforcement
From: Dave Farber <dave () farber net>
Date: Sat, 24 May 2003 09:17:49 -0400
------ Forwarded Message From: Xiao Jinhong <limabean () pobox org sg> Date: Sat, 24 May 2003 21:08:19 +0800 (SGT) To: dave () farber net Subject: Re: [IP] Using treaties to lock in DMCA enforcement Dave, I'm a practising lawyer in Singapore (specialising in IP, IT and telco). Just thought I'd add my 2 cents from this end (without commenting on the US constitutional law point). It appeared that the anti-circumvention provisions in the FTA were a real dealbreaker for the US side -- in fact, apart from some provisions regarding Singapore's right to impose emergency monetary controls, those were the last to be agreed on. Basically, it seems that Singapore resisted valiantly but eventually caved in to the US demands, and the provisions proposed by the US negotiators (which if I'm not wrong are very similar to the equivalents in the DMCA) were taken almost (if not completely) in toto. Regarding the lack of fair use etc. provisions in the FTA, the key is really in the implementing legislation. I'm not sure what the position is under US law (although it would seem from Stewart Baker's post that it is the same as Singapore law), but when Singapore enters into an international convention or treaty, domestic legislation is still necessary to implement the treaty obligations. Domestic law can still differ from the treaty-mandated position, which only means that the country will be in breach of its treaty obligations. So there is still hope despite the lack of such provisions in the FTA. Also, at a seminar conducted by one of the Singapore negotiators, I specifically asked what would happen if the US domestic law position changes, eg. the anti-circumvention provisions in the DMCA are ruled unconstitutional by the Supreme Court or the DMCA is repealed or amended. The answer was not entirely satisfying but better than nothing -- the FTA itself provides for an institutionalised periodic review, and such changes in position will be considered. I suspect the probable result in such a case would be for Singapore to waive the US breach of its FTA obligations, in return for Singapore being able to adopt at least the same position under Singapore domestic law. Finally, I understood from some news reports last year that the US team negotiating the FTA for the Americas had basically been pushing the same line, ie. to implant DMCA-type anti-circumvention provisions in the FTAA. The Singapore FTA will probably be used as a precedent to support this push. Cheers. xjh dave () farber net wrote:
:tippie more on ------ Forwarded Message From: "Baker, Stewart" <SBaker () steptoe com> Date: Tue, 20 May 2003 18:48:01 -0400 To: "'dave () farber net'" <dave () farber net> Cc: "Albertazzie, Sally" <SAlbertazzie () steptoe com> Subject: RE: [IP] Using treaties to lock in DMCA enforcement Dave, This message makes a fair point about the lock-in effect of the Singapore FTA. But the constitutional point is wrong. If the DMCA is unconstitutional as written, adding the FTA to the mix won't prevent the courts from saying so. If a treaty promises that the US will do something it can't constitutionally do (squelch free speech, say), the courts will refuse to give effect to the treaty and to the implementing legislation. Courts are reluctant to interfere in international relations, but they're not forbidden to do so. Stewart Baker ------ End of Forwarded Message ------------------------------------- You are subscribed as limabean () pobox org sg To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
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- Using treaties to lock in DMCA enforcement Dave Farber (May 20)
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- Using treaties to lock in DMCA enforcement Dave Farber (May 20)
- Using treaties to lock in DMCA enforcement Dave Farber (May 24)