[A2k] (URGENT:Korea-US FTA) Seeking signatures on COPYRIGHT comment

[IPLeft]

Dear all,


(You might have received an e-mail message that asks you to be a
cosignatory of a written comment on COPYRIGHT issues. This e-mail
message is about another written comment on PUBLIC HEALTH related
issues. Some of the issues are closely related with intellectual
property. The document also includes non-IP issues.)

South Korea and United States are preparing for the FTA negotiation.
Korean NGOs prepared a written comment (download at
http://www.ipleft.or.kr/fta/20060324-CoalitionLetterofNGOs-publichealth.pdf=
)
on public health issues that will be submitted to the USTR. Written
comments are due by noon, March 24, 2006 via e-mail. IPLeft is seeking
signatures from people and organizations in U.S on this comment.
People and organizations that want to join this effort and put their
names on the written comment, please reply to ipleft@jinbo.net with
their names and addresses (post address, Web site address or/and
e-mail address) BY MIDNIGHT, MARCH 23, 2006. If you know people or
organizations that might want to join as a cosignatory, please forward
this e-mail message to them.

Our major concern is that the South Korea-U.S. FTA will protect large
pharmaceutical companies' interests (or 'investments') at the cost of
eroding the base of public health system by heightening intellectual
property protection, forcing to change pharmaceutical pricing policy
and medical insurance policy, and so on.

We ask you to keep up on with the future development of the South
Korea-U.S. FTA negotiation and to be a part of this fight against it.

Best and solidarity,

Nam Hee-seob, Chairperson of Intellectual Property Left
Jungbongwon Bd. 5F, 502, 1-13,
Chungpa-dong 1ga,Yongsan-gu,
Seoul, Korea (140-868)
Website) http://www.ipleft.or.kr


------------------------------------------------------------------<Appendix=
> Korean and US NGOs Position Paper on the copyright issues in the Korea-US=
 FTA Negotiation


Korean and US NGOs Position Paper
on the copyright issues in the
Korea-US FTA Negotiation


We strongly oppose the inclusion of the copyright clause in the current FTA=
 negotiation between Korea and the United States.

Considering the FTA that the United States negotiated with Singapore, Austr=
alia, and Chile, and what the United States has been demanding from the Kor=
ean government thus far, we assume that the United States will request copy=
right protection similar to or stronger than the United States copyright la=
ws such as the 1998 DMCA(Digital Millennium Copyright Act).

However, the DMCA and extending the copyright protection period in the Sonn=
y Bono Copyright Term Extension Act (CTEA) have been under much criticism b=
ecause it obstructs fair use, science research, technology advancement, and=
 publishing. Furthermore, there are strong concerns about how it impedes co=
mputer security research.  Nonetheless, United States has been imposing the=
ir own copyright laws on other countries by adopting laws similar to the DM=
CA in the FTA.   Among them, we cannot allow the extension of the copyright=
 protection period to 70 years or setting the penalty for circumventing the=
 technical measures for protection at the broad level of the laws in the Un=
ited States because these clauses violate the fundamental principles of the=
 copyright laws.  The United States must stop such demands on the Korean go=
vernment immediately.

1. Extending the protection period
United States has extended the copyright protection period to 70 years afte=
r the death of the creator through the enactment of the CTEA.  Furthermore,=
 the United States has imposed the same protection period in Singapore, Aus=
tralia, and Chile through the FTA and FTAA negotiations.  The CTEA demands =
a 20 years extension to 50 year protection provided for in the Berne Conven=
tion and TRIPs agreement, which most countries have joined.  However, exten=
ding the protection period to 70 years defies the very reason for having a =
protection period.  The extension will distort the copyright into an perman=
ent right.

Creative works are results of the efforts of the creators.  However, the cr=
eation draws up on the cultural legacy left by our predecessors.  Similarly=
, when the new creation is officially published, the successors will in tur=
n build on them for future creations, resulting in more creative works.  Co=
nsequently, the creative works are part of the cultural legacy of all manki=
nd.  Hence, giving the creator a timeless monopoly on the use is not approp=
riate.  The very reason of having a protection period is based on the premi=
ses that the creation is a cultural legacy.  The limited protection period =
can protect the creator, thus encouraging creation, as well as enhance the =
cultural legacy for more creation by entering the work into public domain a=
t the end of the period.

Then what is the appropriate protection period?  The protection period shou=
ld be determined based on the cultural standard of each country, the purpos=
e of having the protection period, and the characteristics of the works.

The original purpose of copyright protection is to cultivate cultural devel=
opment in a country through the protection of copyright.  Thus, the determi=
nation of the protection period requires the consideration of the cultural =
policies of each individual country.  Therefore, the protection period is s=
et differently according to the cultural standard of each country.  Indeed,=
 trying to set the protection period uniformly through the treaties is inco=
nsistent with this purpose.  When protection periods are set in the treatie=
s, they should be set at the minimum level, and any extensions to the minim=
um period should be left to the autonomy of each country.

Moreover, when setting the protection period, the fundamental purpose for h=
aving the protection period must be consider. The period must be set so tha=
t it can encourage creation as well as terminate early enough to bring the =
creation into the public domain while it still has value. It is meaningless=
 to have public use of creative works when there is no value in using the w=
ork.

Creative works takes various forms such as music, art, literature, academic=
 research, software, and architecture.  Accordingly, the protection period =
needs to be set differently depending on the form.  For example, software n=
eeds a shorter protection period compared to literature.  In the case of so=
ftware, technology progresses at a much faster pace and the cost recovery t=
ime is also very short.  Furthermore, 50 years after the death of the creat=
or, there is no benefit to making the software a public good because after =
such a long time, the software becomes useless.  Hence, protecting software=
 until 50 years after the death of the creator is equivalent to protecting =
it during the full lifetime of the software.  The protection period must be=
 shortened to have any value in brining the software into the public domain=
.  Instead extending the protection period by another 20 years will in real=
ity give permanent protection to not only software, but to all creative wor=
ks.

Hence, the protection period for copyright should be determined based on ea=
ch countries cultural standard, the purpose of having the protection period=
, the objective for legislating the copyright law, and the characteristics =
of each creative work.  It can not be open for negotiations in a trade agre=
ement.   Moreover, the Sonny Bono Copyright Term Extension Act (CTEA) has p=
revented over 400,000 creative works from entering public domain in the Uni=
ted States.  It is under criticism as infringing on the cultural rights of =
many people in order to protect the business profit of a few large corporat=
ions and has been mocked as the =A1=B0Mickey mouse law=A1=B1.  Imposing the=
 CTEA worldwide will further infringe on the rights of all mankind worldwid=
e in order to protect the business interest of a few large corporations.  T=
herefore, United States must cease such efforts to impose the CTEA worldwid=
e immediately.


2. Demanding a stronger sanctions on circumvention of technical measures
United States is imposing their own laws on technical measures for protecti=
on in the copyright laws article 1201 in the FTA to other countries.  Unite=
d States laws on technical measures for protection of copyright material pr=
ohibits acts to circumvent the technical measure for limiting access and to=
 manufacture and provide services or tools for the purpose of circumventing=
 the technical measures to restrict access or use.

However, in the WCT adopted by WIPO, technical measures for protection of c=
opyright material are limited to restricting use.  In the WCT, it repeatedl=
y states that =A1=B0exercise the right by this Treaty or the Berne Conventi=
on=A1=B1 and =A1=B0acts not allowed by the creator or the law=A1=B1. Furthe=
rmore, according to WCT, access to the creative work is not an act limited =
by the copyright law.

Hence, United States=A1=AF claim that the technical measures that limits ac=
cess to works must also be protected is beyond the requirements provided in=
 the international treaty and extremely limits the use of creative works.  =
Prohibiting and punishing acts to circumvent technical measure to access to=
 creative work, even when it does not infringe the copyright, is expanding =
the scope of copyright laws.  Moreover, such laws will excessively limit fa=
ir use of the creative works.  Such position by the United States is more o=
r less imposing heavier burden than the international treaties on FTA partn=
ers to protect United States=A1=AF interest and forcing the people of the o=
ther party to sacrifice their interest for few transnational capital.

3. Demanding the stipulation of temporary reproduction
When computer programs or digital works are used via the computer, or searc=
hed, viewed, or transmitted on the Internet, these works are stored tempora=
rily on the computer RAM.  Such stored works go away automatically and are =
not saved when another command is run or the computer is powered off.  Stor=
age of digital works in the computer RAM are not permanent as saving them i=
n secondary storage devices such as the hard drive.  It is referred to as t=
emporary reproduction or storage to indicate that the stored works go away =
when the computer is powered off.  Such temporary reproduction on the compu=
ter is most commonly seen on the computer RAM, but also occurs on the compu=
ter buffer when the works are transmitted over the Internet via streaming t=
echnology.  Furthermore, when digital works are transmitted from on-line se=
rvice providers relaying them over the network, temporary reproduction occu=
rs in the system server or cache server.  Finally, when Application Service=
 Provider (ASP!
 ) provide computer programs over streaming technology, the client computer=
 RAM will also temporarily store information on the RAM.

Even in the United States copyright laws, temporary reproduction is not exp=
licitly regulated.  However, the United States has demanded that Korea stip=
ulate temporary reproduction as copying under the copyright law for many ye=
ars.

Yet, when temporary reproduction is acknowledged as copying, the balance de=
sired by the copyright law between the user and the copyright holder become=
s even more biased toward the copyright holder because copyright holders wi=
ll be able to control even the most typical use as viewing information from=
 public website.  Similar to protecting technical measures to access works,=
 such stipulation will protect the copyright holder=A1=AFs right to access =
the works, which is not within the scope given in the current copyright.  F=
urthermore, temporary reproduction is a by-product of legal use of the crea=
tive work.  It does not hold any economic value independent of the legal us=
e, and therefore the regulation of temporary reproduction cannot be justifi=
ed.  When temporary reproduction is acknowledged as copying, users will be =
unfairly charged twice.  On the other hand, if the temporary copy is allowe=
d, there is no additional incentive to the creator, and thus it is not in a=
ccord with the pur!
 pose of acknowledging copyright as exclusive rights.

United States must stop its demands to stipulate temporary reproduction by =
unreasonably including temporary reproduction as copying.


4. Demand for strict enforcement of the copyright laws
United States has been continuously demanding strict enforcement of the cop=
yright laws such as direct police involvement.  However, Korea is in the pr=
ocess of establishing strict enforcement practice that is stricter even tha=
n the United States.  We hold that such enforcement practices of the Korean=
 government is harmful to the people=A1=AFs freedom of expression, freedom =
to operate a business, and the privacy of the people and must be corrected =
immediately.  However, if the United States is for strong protection of cop=
yrights, United States government might have something to learn from the Ko=
rean government.

In Korea, it is common for the Korean Software Property-right Council, comp=
rised of software development companies, the prosecutor and the police to c=
rack down on copyright infringements in cooperation.  Through such mechanis=
ms, the copyright holders have excessively strong protection on their copyr=
ight.  In addition, currently the revision of copyright law being reviewed =
in the legislator includes provisions to allow the minister of culture and =
tourism direct administrative control over the deletion and collection of c=
opyright infringements.  The provisions even include measures to fine those=
 who do not comply with the administrative instructions given by the minist=
er.  United States should not demand actions from the Korean government tha=
t they themselves do not take in their own country.  Such demands can only =
be considered as intimidation by those with a stronger position in the inte=
rnational relations.

In addition to this, Unites States has been putting pressure on the Korean =
government using =A1=AESuper 301=A1=AF. This is a product of United States=
=A1=AF nationalistic conception. More precisely, such actions demonstrate t=
he United States position to protect the interest of the few businesses in =
their own country at the cost of the cultural rights of all other people wo=
rldwide.  This is a total disregard for human rights by the United States g=
overnment.  United States must withdraw its unreasonable demands on the cop=
yright protection and stop trying to impose them in the current FTA negotia=
tions with the Korean government.  We strongly oppose the Korean-US FTA tha=
t includes the United States=A1=AF demands on copyright.  If the FTA still =
moves towards a stronger protection of the copyright and disregards the rig=
hts of the users, we have no choice but to fight for the obstruction of the=
 Korea-US FTA.


March 24th, 2006

Endorsement

[Korean NGOs]
Health Right Network
Intellectual Property Left 'IPLeft'
Korean Progressive Network Jinbonet
Korean Federation of Medical Groups for Health Rights:
Association of Physicians for Humanism,
Association of Korea Doctors for Health Rights,
Korea Dentists Association for Health Society,
Korea Health and Medical Workers Union,
Korean Pharmacists For Democratic Society,
Solidarity for Worker's Health
Nanuri+,HIV/AIDS Human Rights Advocacy Group of Korea
Public Pharmaceutical Center
Cultural Action

[US NGOs]
Electronic frontier Foundation
IP-Justice