My way or the highway

In the world of copyrights, trademarks and intellectual property rights (IPR), The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 2005 is the legal cornerstone. TRIPS, also known as Annex 1C in WTO’s legal texts, sets the minimum standards for many forms of intellectual property (IP) protection. All of the 159 members of the WTO has agreed to its contents, and it lays the framework for further negotiations. The U.S. (with heavy influence by organizations such as the Motion Picture Association of America and International Trademark Association) have pushed for further legal power to enforce the IPR agreed to in TRIPS. The Anti-Counterfeiting Trade Agreement (ACTA) signed in 2012 was part of that move. ACTA was signed by 10 parties, including the US and the EU, but has so far only been ratified by Japan. The European Parliament has rejected the agreement, and hence it cannot become law in the EU. United States is currently negotiating membership in the Trans-Pacific Partnership, and the proposed IPR chapter of the agreement has sparked a heated debate.

By: Frederik Einshoej

EU chose Freedom of Expression before ACTA

When the European Union signed the agreement, the French MEP immidiately quit in protest [1]. The opponents claimed that signing ACTA was a “circumvention of democracy” [2], and that the agreement was a attack on “the freedom of expression and communication privacy” [3]. Indeed, Article 27(3) and 27(4) states that “Each Party shall endeavor to promote cooperative efforts […]” and that “A Party may provide […] authorities with the authority to order an online service provider to disclose […] information sufficient to identify a subscriber […]”. In plain English: Your account information, that you’ve trusted to Facebook, Google, reddit, etc. is no longer private. You can no longer hide your identity online, and no longer trust that your privacy will be protected by ISPs who claim to do just that. The European Parliament rejected ACTA by 478 votes to 39.

You’ve probably also heard about SOPA (Stop Online Piracy Act) and PIPA (PROTECT IP Act). Those were proposed bills and laws intended to further enforce the US Governments power online. Both were rejected or postponed.

What could TPP have to say about IPR?

The answer is as obvious as it is disappointing. In a leaked document, the proposed IP chapter “would have extensive negative ramifications for users’ freedom of speech, right to privacy”, according to Electronic Frontier Foundation [4]. Let’s have a look at Article 16: Special Measures Relating to Enforcement in the Digital Environment. Paragraph 3(a) states that countries agreeing to the TPP shall provide “legal incentives for service providers to cooperate with copyright owners” (Read “Legal incentives” as “laws”, and “cooperate with” as “provide information to”).

In other words: This is the exact same paragraph that the European Parliament refused to incorporate into the EU law via ACTA. It is the same enforcement that the US Government tried to obtain through SOPA and PIPA. And in fact, it is how the law is in the United States. The issue is, that the US is relentlessly trying to push their IPR on to other countries. I am not commenting on whether or not these are the “right” laws, but the strategy doesn’t seem to be a very effective one. Trade agreements have never been about forcing other countries to accept your laws, it is about finding a middle ground in which trade between the two countries can occur and both parties win.

However, in the case of US and agreements related to IPR, it is ‘My way or the highway’.

[1] Wired.co.uk: http://www.wired.co.uk/news/archive/2012-01/26/eu-signs-up-to-acta/viewgallery/273678

[2] La Quadrature du Net: http://www.laquadrature.net/en/eu-commission-kicks-off-campaign-to-defeat-acta

[3] Free Knowledge Institute: http://freeknowledge.eu/acta-a-global-threat-to-freedoms-open-letter

[4] Electronic Frontier Foundation: https://www.eff.org/issues/tpp

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