Author: Matthew Webb

Differences in Prominent US and EU Treaties Concerning Liability For Service Providers

In this year’s State of the Union Address, President Obama announced talks for a Transatlantic Trade and   Investment Partnership with the European Union. This agreement will likely include provisions on intellectual property (IP), which are often controversial . If IP provisions are included, they will likely reflect language in existing treaties. Below is a comparison of language between two of the most substantive and recent free trade agreements (FTAs) adopted by the US and the EU for one controversial area of IP: liability for internet service providers (ISP) for infringing content. For both the EU and the US, I have used FTAs with South Korea. The EU-South Korea FTA, “EU treaty,” is the only current EU treaty with provisions on ISP liability. ISP liability provisions are much more common in US FTAs, but the Korea-US FTA (KORUS), “US treaty,” remains one of the most substantive and recent FTAs on the issue. Summary of Differences Purpose The first major difference is the purpose of the sections on ISP liability in both treaties. The US treaty only gives enforcement as the purpose of the section on ISP liability: For the purpose of providing enforcement procedures that permit effective action against any act of copyright infringement covered by this Chapter, (Korea-US FTA, Art. 18.10(30)) The EU treaty states both enforcement and free movement of information services: To ensure the free movement...

Read More

Treaty Shopping: How Philip-Morris Cherry-Picked Worst Case BITs

Tobacco giant, Philip-Morris, brought actions this year under investor-State arbitration mechanisms in investment treaties to challenge laws limiting (in Uruguay) or prohibiting (in Australia) the display of its trademarks in tobacco packaging. This has caused the Australian government to take a strong stance against any investor-State arbitration provisions in free trade agreements (FTAs), including exemptions from the proposed investor-state settlement provisions of the Trans Pacific Partnership Agreement (TPP), currently being negotiated.  However, a closer look reveals a broad collection of older treaties that do not contain exceptions in modern treaties that could have avoided this situation. As a multinational-enterprise, Philip-Morris has attempted to evade these exceptions by going through subsidiaries to bring claims under more favorable treaties. This reveals that Australia’s new stance against investor-State arbitration may do nothing to prevent similar claims being brought in the future. Investor-State Arbitration Provisions: Not All Treaties are Created Equal In recent times, a vast proliferation of Bilateral Investment Treaties (BITs) and FTAs has created spaghetti bowls (and noodle bowls in Asia) with ridiculously complex frameworks for countries and investors to navigate. To date, Australia has already entered into a number of treaties that include mechanisms allowing investors to bring action against expropriation of assets, including intellectual property, outside Australia’s domestic courts. These include FTAs with ASEAN and New Zealand, Chile, Thailand, and Singapore; and BITs with Argentina, China, the Czech Republic,...

Read More

A Mixed Bag For Fair Use In China’s Newest Copyright Law Draft

On July 6, 2012, China’s National Copyright Administration published a Second Draft for a new (third) revision (Chinese version) to the Copyright Law for the People’s Republic of China 《中华人民共和国著作权法》. Once adopted, this will become the Third Revision to the Copyright Law since it was originally enacted in 1990.  Changes in the Second Draft from the First Draft published March 31, 2012 (Original Chinese / English translation by China Copyright and Media) represent a move to a more American system, including both an “open list” of exceptions to exclusive rights and a pseudo-“three step test” to which these exceptions must conform.  I have also translated the Chapter on The Limitations to Rights from the Second Draft (highlighting the differences between the two recent drafts). China proposes an open list in the Second Draft Under the current Copyright Law (the Second Revision, enacted in 2010) (Chinese version from the Yantai Government’s website), China uses a “closed list” in limitations and exceptions to copyrights, similar to the system used by many Commonwealth countries (such as Canada and the UK ), often referred to as “fail dealing.” Under this system, use of a copyright without the right holder’s permission is limited to certain circumstances enumerated in law. The relevant section of the current Copyright Law reads: Article 22: In the following cases, a work may be exploited without the permission from, and...

Read More

The Model BIT: A Framework for Intellectual Property Agreements

The success of the Model Bilateral Investment Treaty (BIT) process in advancing transparency in the investment policy-making at the international level provides a practical and achievable framework for other areas on trade.  Though far from perfect, the Model BIT has improved transparency for the highly controversial area of investment, while still allowing the US to successfully negotiate a multitude of BITs and investment chapters. Because trade policies involving intellectual property rights (IPR) are also very controversial, the Model BIT framework could be used to create model IPR Agreements and chapters to increase the legitimacy of international policy making in this area. Problems with Transparency Initiatives Though making statements in support of transparency are easy, workable solutions to these problems are not. Transparency initiatives must consider the reality of the situations of all countries involved. The US has a lot of power to influence other countries, but opening up the negotiations process would likely be confronted for resistance in other countries who are far less transparent domestically. The US has experienced similar resistance to external transparency initiatives in the WTO in 2000 from countries such as Egypt, Pakistan, and Mexico—all of which had certain government controls of the press around that time. More importantly, giving more public transparency to treaty negotiations is often seen by developing countries as disproportionately favoring rich nations because the beneficiaries of these transparency initiatives, Non-Governmental...

Read More