Author: Jeremy Malcolm

How Closed Trade Deals Ratchet Up the Copyright Term Worldwide

[Jeremy Malcolm] … differences in copyright term make things more complicated for copyright holders, there are constant efforts by some copyright holders to try to homogenize the duration of copyright so that they can more easily enforce their copyrights worldwide—and of course, they would like them to be harmonized at the life-plus-70 year term, so that they can extract another 20 years of monopoly rents, over and above the Berne Convention’s standard life-plus-50 year term. Trade agreements are one way that they are trying to achieve this.

Read More

Shrinking Transparency in the NAFTA and RCEP Negotiations

[Jeremy Malcolm and Jyoti Panday in EFF Deeplinks Blog, Link (CC-BY)] Provisions on digital trade are quietly being squared away in both of the two major trade negotiations currently underway—the North American Free Trade Agreement (NAFTA) renegotiation and the Regional Comprehensive Economic Partnership (RCEP) trade talks. But due to the worst-ever standards of transparency in both of these negotiations, we don’t know which provisions are on the table, which have been agreed, and which remain unresolved. The risk is that important and contentious digital issues—such as rules on copyright or software source code—might become bargaining chips in negotiation over broader economic issues including wages, manufacturing and dispute resolution, and that we would be none the wiser until after the deals have been done. The danger of such bad compromises being made is especially acute because both of the deals are in trouble. Last month President Donald Trump targeted the NAFTA which includes Canada and Mexico, describing it in a tweet as “the worst trade deal ever made,” which his administration “may have to terminate.” At the conclusion of the 2nd round of talks held last week in Mexico, the prospects of agreement being concluded anytime soon seem unlikely. Even as a third round of talks is scheduled for Ottawa from September 23-27, 2017, concern about the agreement’s future has prompted Mexico to step up efforts to boost commerce with Asia, South America and Europe. The...

Read More

EFF to USTR: IP Doesn’t Belong in NAFTA. For the Rest, Talk To Us.

Reposted from EFF Deeplinks Blog, Link (CC-BY) The dust has barely settled from the collapse of the Trans-Pacific Partnership (TPP), and already a new trade battle is ahead of us: the renegotiation of the North American Free Trade Agreement (NAFTA). President Trump called the controversial 1994 agreement between the United States, Canada and Mexico “the single worst trade deal ever approved in this country.” But compared to the TPP, there’s a lot to like about the original NAFTA from a digital rights perspective: it doesn’t extend the term of copyright, it doesn’t require countries to prohibit DRM circumvention, and it doesn’t include new and untested rules to regulate the Internet. That could all change soon. The United States Trade Representative (USTR) has called for comments from industry and the public on goals it should promote as it renegotiates NAFTA, which opens a window for the TPP’s proponents to try to use NAFTA to establish at least some of the dangerous proposals they hoped to impose through the TPP – including the TPP’s so-called intellectual property (IP) rules. EFF’s comment explains why that is a bad idea: Prescriptive IP rules usually fail to account for developments in technology such as the Internet, or changes in business and social practices such as the sharing economy. Including such rules in trade agreements could inhibit the United States from modernizing its own intellectual...

Read More

Post-TPP Special 301 Report Shows How Little Has Changed

[Reposted from EFF Deeplinks, Link (CC-BY)] Last Friday the United States Trade Representative (USTR) released the 2017 edition of its Special 301 Report [PDF], which the USTR issues each year to “name and shame” other countries that the U.S. claims should be doing more to protect and enforce their copyrights, patents, trademarks, and trade secrets. Most of these demands exceed those countries’ legal obligations, which makes the Special 301 Report an instrument of political rhetoric, rather than a document with any international legal status. Last year’s Special 301 Report included 45 references to the Trans-Pacific Partnership, which was at the time soon expected to become the jewel in the USTR’s crown. This year, following the TPP’s humiliating defeat, it is not mentioned in the Special 301 Report even once. Indeed, not only has the TPP been expunged from the text as if it never happened at all, but the USTR has also finally ceased touting the Anti-Counterfeiting Trade Agreement (ACTA), another dead IP treaty that it had nonetheless included as a supposed global standard in its previous Special 301 Reports. Instead, the USTR reports on its work at the World Trade Organization (WTO), which has opened up as a possible new front for the USTR to push former TPP standards. The Special 301 Report scolds certain countries for “server localization mandates, cross-border data flow restrictions, [and] programs to support only...

Read More

How Big Pharma’s Shadow Regulation Censors the Internet

[Cross posted from EFF Deeplinks Blog, Link (CC-BY)] Americans pay by far the highest prices in the world for most prescription drugs, and of course big pharma would like to keep it that way. Key measures that the industry relies upon in this regard are the Prescription Drug Marketing Act [PDF] and Ryan Haight Online Pharmacy Consumer Protection Act [PDF], which make it unlawful for most Americans to access lower-priced drugs from overseas, coupled with the powers of U.S. Customs and Border Protection (CBP) to seize such drugs at the border on their own initiative. In practice however, discretionary guidelines developed by the Food and Drug Administration (FDA) and enforced by the CBP allow American consumers to import a 90-day supply of some prescription medications for personal use, including by bringing them across border checkpoints in personal luggage, or by mailing them from overseas. In the latter case, a large market exists for pharmacies registered in other countries such as Canada, Australia and Turkey, that will accept online orders and mail genuine pharmaceuticals to American consumers at cheaper than local prices. Big pharma doesn’t like this [PDF], but since the importation is already technically against federal law, they can’t do much more about it. At least, not through legal channels…and that’s where they get creative. As we described last week, where industry can’t get government to regulate the Internet...

Read More

The World Trade Organization Sets its Eyes on the Internet

Originally posted on EFF Deeplinks blog, Link (CC-BY) This week, EFF has been at the World Trade Organization (WTO)’s annual Public Forum. Best known to the general public as the locus of anti-globalization protests at its 1999 Ministerial Conference, it’s ironic that the WTO is today the most open and transparent of trade negotiation bodies—an honor it holds mainly because of how closed and opaque the trade negotiations conducted outside the WTO are, such as the Trans-Pacific Partnership (TPP), or on its margins, the Trade in Services Agreement (TISA). This year’s Public Forum, although notionally focusing on inclusive trade, has featured unprecedented interest in digital trade, with dozens of sessions dealing with this topic. Just a few of them, including the workshop “Boundaries and Best Practices for Inclusive Digital Trade” organized by EFF, have been summarized by the Geneva Internet Platform (you can also read slides from some of our workshop’s presentations below). This explosion of interest in digital trade represents widespread enthusiasm from WTO members (which are 164 countries of the world) for the organization to take up an expanded work program on e-commerce. Currently this work program at the WTO only contains one item: a moratorium on customs duties on electronic transmissions. But in a “non-paper” dated July 1 this year, the United States proposed an expanded work program that contains a raft of new measures, some...

Read More

Sneaky Change to the TPP Drastically Extends Criminal Penalties

[Posted on eff.org, Link (CC-BY)] When the text of the Trans-Pacific Partnership (TPP) was first released in November last year, it included provisions dictating the kinds of penalties that should be available in cases of copyright infringement. Amongst those provisions, the following footnote allowed countries some flexibility in applying criminal procedures and penalties to cases of willful copyright infringement on a commercial scale: With regard to copyright and related rights piracy provided for under paragraph 1, a Party may limit application of this paragraph to the cases in which there is an impact on the right holder’s ability to exploit the work, performance or phonogram in the market. Following the footnote back to its source, it is apparent that the reference to limiting “the application of this paragraph” is to a more specific list of criminal procedures and penalties that the parties are required to make available in such cases. Paraphrased, these are: sentences of imprisonment as well as deterrent-level monetary fines; higher penalties in more serious circumstances, such as threats to public health or safety; seizure of suspected infringing items, the materials and implements used to produce them, and documentary evidence relating to them; the release of those items, materials, implements and evidence for use in civil proceedings; forfeiture or destruction of those items, materials and implements; forfeiture of any assets (such as money) derived from the infringement;...

Read More

How Trade Agreements Harm Open Access and Open Source

[EFF Deeplinks, Link (CC-BY)]  Open access isn’t explicitly covered in any of the secretive trade negotiations that are currently underway, including the Trans-Pacific Partnership (TPP), the Trans-Atlantic Trade and Investment Partnership (TTIP), and the Trade In Services Agreement (TISA). But that doesn’t mean that they won’t have a negative impact on those seeking to publish or use open access materials. First, online publishers sometimes apply TPM (Technological Protection Measures, which implement DRM) to works that have been published under open access licences, or place such works behind paywalls, thereby frustrating the intention of the author that the works should be made freely available. In both cases, circumventing the TPM or paywall block, in order to gain access to the work as the author intended, can be a civil or criminal offense. The Canadian Library Association described the former problem very well last year at WIPO, when stating: Rights owners are now now able to overreach their legitimate copyright limits in the Canadian market by installing Technological Protection Measures. Because a Technological Protection Measure has been installed by a rights owner, a Canadian library or archive’s otherwise statutorily protected abilities to use and preserve the underlying works become inoperable. As for those who distribute publicly-funded works from behind paywalls, the charges brought against both the late Aaron Swartz, and also Colombian Diego Gomez are cautionary tales. The “trade secrets” provision...

Read More

Anatomy of a Copyright Coup: Jamaica’s Public Domain Plundered

EFF Deeplinks Blog, Link (CC-BY) A bill extending the term of copyright by an additional 45 years—almost doubling it, in the case of corporate and government works—sailed through the Jamaican Senate on June 26, after having passed the House of Representatives on June 9. The copyright term in Jamaica is now 95 years from the death of the author, or 95 years from publication for government and corporate works. This makes it the third-longest copyright term in the world, after Mexico and Côte d’Ivoire respectively with 100 and 99 years from the death of the author. Worse than this, the extension was made retroactive to January 1962. Besides being the year when Jamaica attained independence, 1962 also just so happens to have been the year when Jamaican ska music (a popular genre in its own right, but also a precursor of the even more popular reggae) burst onto the international music scene. The parallels with the extension of the U.S. copyright term in the “Mickey Mouse Protection Act” are quite eerie. But, worse than what happened into the U.S., the retrospective effect of the law means that works that havealready passed into the public domain in Jamaica are now to be wrenched back out again. Jamaica will now be one of the last countries in the entire world to enjoy free access to works that are already in the public domain...

Read More

New Leaked TPP Chapter Shows Countries Converging on Anti-User Copyright Takedown Rules

[Reposted from EFF Deeplinks Blog, Link, (CC-BY)] A draft of the Trans-Pacific Partnership‘s “Intellectual Property” chapter from May 11, 2015 hasrecently been leaked to journalists. This is the fourth leak of the chapter following earlier drafts of October 2014, August 2013, and February 2011. The latest leak is not available online and we don’t have a copy of it—but we have been briefed on its contents. In most respects the chapter follows previous drafts pretty closely; for example, the text onDRM circumvention and copyright term are both largely unchanged. But there is one area in which significant progress has been made since the last draft, and this is in the text onintermediary liability rules. Specifically, the new change involves the immunity that Internet companies enjoy from copyright liability, provided that they satisfy certain safe harbor conditions. Under the United States’ Digital Millennium Copyright Act (DMCA), these safe harbor conditions require Internet intermediaries to comply with a “notice-and-takedown” process. This has seen legitimate content taken off the Internet in response to bogus claims of infringement, as in the famous dancing baby case, as well as being misused for political censorship. Until now, one point of contention among the TPP partners has been whether countries that don’t already have an equivalent to the DMCA’s broken notice-and-takedown rules would be forced to adopt one. Alternatives to Notice-and-Takedown Several of the TPP countries already...

Read More

TPP Experts Briefing: Informing TPP Negotiators of the Threats of Expanded Copyright Restrictions

[Jeremy Malcolm and Maira Sutton, EFF, Link (CC-BY)] Due to the unprecedented secrecy surrounding the Trans-Pacific Partnership (TPP) negotiations taking place this week in Ottawa, there was no formal opportunity to engage with negotiators about the concerns that EFF and many others have expressed—over issues such as the extension of copyright protection by 20 years, and the delegation of ISPs as copyright police with the power to remove content and terminate accounts. With the alternative of allowing this round of negotiations to proceed without any public input on these important issues (and bearing in mind the maxim “If the mountain won’t come to Muhammad…”), EFF and its partners in the Our Fair Deal coalition decided to hold a side event of our own next to the venue of the negotiations. TPP negotiators were invited to watch keynote talks by two of Canada’s top copyright experts. In a gratifying indication that the negotiators do remain willing to receive public input into their closed process if given the opportunity to do so, our small room was packed to capacity with 22 negotiators from 9 of the 12 TPP negotiating countries (and those from the other countries that we invited apologised due to another engagement). The first speaker to present to the assemblage was Howard Knopf, Counsel from Ottawa law firm Macera & Jarzyna, who maintains a widely-read blog titled Excess Copyright....

Read More

We Join Dozens of Organizations and Businesses to Protest TPP Copyright Proposals

[Jeremy Malcolm and Maira Sutton, EFF, Link, (CC-BY)]  Today, EFF and its partners in the global Our Fair Deal coalition join together with an even more diverse international network of creators, innovators, start-ups, educators, libraries, archives and users to release two new open letters to negotiators of the Trans-Pacific Partnership (TPP). The TPP, although characterized as a free trade agreement, is actually far broader in its intended scope. Amongst many changes to which it could require the twelve negotiating countries to agree are a slate of increased rights and privileges for copyright rights holders. With no official means of participating in the negotiations, the global community of users and innovators who will be affected by these proposed changes have been limited to expressing their concerns through open letters to their political representatives and to the officials negotiating the agreement. Each of the two open letters released today focuses on a separate element of the heightened copyright regime that the TPP threatens to introduce, and is endorsed by a separate groups of signatories representing those most deeply impacted by the proposed changes in each case. Intermediary Copyright Enforcement As the document below describes, countries around the Pacific rim are being pressured to agree to proposed text for the TPP that would require them to adopt a facsimile of the DMCA to regulate the take-down of material hosted online, upon the...

Read More

Digital rights and access to knowledge hang in the balance at the UN next month

In the digital rights and access to knowledge movements, we spend a lot of our time fighting against bad proposals, that limit the public domain, restrict user rights such as fair use or fair dealing, and control the way we use digital products. What if, rather than limiting ourselves to this negative and reactive approach, we could also promote the adoption of a positive global standard that would protect the rights of digital consumers, and uphold the importance of access to knowledge for all? The good news is that we can, and that this month you have the opportunity to help make it happen. Over the last three years a global network of consumer activists has been crafting a set of amendments to an influential global instrument, the United Nations Guidelines for Consumer Protection, that could provide a powerful global standard for digital rights and access to knowledge. Amongst the best practices for consumers that the amended Guidelines would enshrine are: Ensuring that equivalent consumer protection mechanisms apply no matter whether products or services are delivered online or offline, and whether or not they are supplied in a digital format, so that for example the consumers of digital content products such as e-books are treated on a level footing to consumers of equivalent analogue products such as printed books. Requiring that suppliers of such digital content products inform consumers...

Read More

Consumers International Releases Three New Papers on the TPP for the Lima Round

Consumers International (CI) has commissioned the production of three papers, the first on the competition chapter by one of our members, and the other two by independent experts, respectively covering the investment chapter and how it affects A2K, and the free flow of information provision and its impacts on privacy.  The papers are now available for your reading pleasure! The TPP Agreement: Chapter on Competition Policy by Alice Pham, CUTS Hanoi (May 2013) Investor State Dispute Settlement Provisions in the TPP: Impact on Access to Knowledge by Rashmi Rangnath, Public Knowledge (May 2013) Information Flow and Trade Agreements: History and Implications for Consumers’ Privacy by Alberto Cerda and Carolina Rossini (May 2013) Thanks to our hard-working authors!  Hard copies will be delivered to the negotiators in Lima, and will be available at the stakeholder event by Crisólogo Cáceres of CI’s Peruvian member ASPEC, who will also be giving a presentation on the third paper.  ...

Read More