[A2k] Plan A and Plan B

[James Love]

On Wed, 2009-05-06 at 09:32 -0300, Beatriz Busaniche wrote:

> Jamie,
>
> Would you please read more carefully my e-mails before misunderstanding
> what I am saying or changing my country.

    Dear Beatriz,

I am Sorry that I did not focus more carefully and directly specific
communications with Judit you referred to.  Your point is well taken in
that regard.

What follows has nothing to do with the WBU proposal, but discusses the
broader issue of trade negotiations involving copyright and TPM/DRM.

I do know you are from Argentina.  The examples of Canada were given to
makes some points about the different situations between countries that
have signed the 1996 Treaties and adopted the DMCA approach, and
countries that have not signed the 1996 treaties, but which are pushed
to do so in the course of trade negotiations.   This is an issue for any
country thinking about an EPA with Europe or FTA with the US these days.
Canada just announced it is negotiating a new trade agreement with the
EU, and this will be an issue.  I am not as familiar with the specifics
of the Argentina negotiations on these issues.  We do know that the
publisher lobby is stronger in Argentina than in some other Latin
American countries, although publishers and collection societies in
general are strong in lots of Latin American countries.

If the negotiating position in Canada and Latin America is between a
restrictive EU/DMCA approach toward the protection of TPM/DRM, and a
pre-1996 legislative frameworks, it may be difficult to prevail, unless
the whole EPA or FTA fails.  In terms of the EU, Canada (which signed
its FTA with the US before 1996) will be an interesting case.   No
country that has signed an FTA with the US since 1996 was done it
without accepting not only the WCT/WPPt, but WCT+ and WPPT+
obligations.

The first post NAFTA Latin American FTA was with Chile, which did better
than most, but still accepted obligations that went further than the
1996 treaties.  This was the EFF analysis of the Chile FTA:

http://www.eff.org/files/filenode/FTAA/20040830_uschile_fta.pdf

(Chile also did much better on the patent and pharmaceutical sections
than other Latin American countries would do do, but it is not yet clear
whether or not Obama will allow Chile to benefit from a newer public
health give-back that has been applied to Peru and some other
countries).

NGOs and academics working in this area should as a matter of principle
and negotiating strategy, oppose any obligations regarding the 1996
treaties at all.  They are not needed, countries already have accepted
the TRIPS obligations for copyright, and that should be plenty at this
point, particularly given the aggressive enforcement agenda that
everyone is facing from the EU and the US.  I think there is wide
agreement that this should be plan A.

However, some thought might be given to plan B strategies, in case, in
case plan A fails.   Plan B could be a less restrictive implementation
of the 1996 treaties, or some entirely new game changing proposals.

Can groups push a plan A and plan B at the same time?  There is no
obvious answer to that for every country and every group.  Sometimes a
two track approach will make sense, and other times plan B will
undermine plan A.  If one thinks plan A can win in a country (so far so
good in Argentina and Canada), one might be pretty reluctant to have a
visible plan B.  If I thought plan A was definitely going to fail, I
would definitely want a plan B, and spend some time thinking about what
plan B should be.

If I was negotiating with the EU, I would want some allies in the EU
parliament and NGO community.  Likewise if the negotiation is with the
US.

Even if some groups focus on a plan B, it is not necessarily a good
thing for everyone to do so.

All of this is obviously the case for the patent and pharmaceutical
negotiations as well.  In India, NGO groups on the ground have taken a
hard line on the pharmaceutical test data issue, and so far are winning.
In Peru, the Peru government caved in on the test data issue, and
accepted bad text, but US and International NGOs got an awkwardly
written give-back on this topic.

Separately on the medicines issue, there are serious efforts to push for
game changing and radical transformations of the business models and the
terms of references for trade negotiations.  This has moved forward
within the WHO environment, but slowly, and not without all sorts of
challenges and internal debates.

I would like to see newer game changed proposals emerge in the copyright
area, but there is less work on this in the copyright area than we have
seen so far in the medicines area.

  Jamie

> I did't say the WBU Proposal supports DRM, I said Argentine original
> proposal text (which I've sent to Judit to check it in spanish) was a
> really strong legitimation for DRMs as an example of what are our
> worries about.
>
> And just for the record, i do not live in Canada. I am from Argentina.
>
> Regards
> Bea
>
>
>
>
--
James Love, Director, Knowledge Ecology International
http://www.keionline.org | mailto:james.love at keionline.org
Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile +41.76.413.6584