[Ecommerce] M. Geist on 301 list

[Manon Ress]

Dear colleagues,
For many countries, it's better be on the 301 than to "surrender" and
get on the "IP Bullied list"   Michael Geist on trade pressures below.
Manon

http://www.michaelgeist.ca/resc/html_bkup/may92005.html
Michael Geist
May 2005

Appeared in the Toronto Star, May 9, 2005

TRADE PRESSURES CLOUD INTELLECTUAL PROPERTY POLICY

Late last month the United States released its annual report on the
state of global intellectual property protections.  Officially called
the =93Special 301 Report=94 after the legislative provision that mandated
the annual review by the U.S. Trade Representative, it places countries
deemed to have insufficient protections on either a =93Watch List=94 or a
=93Priority Watch List=94.  Inclusion on the Priority Watch List is
particularly troublesome since that may lead to U.S. trade sanctions.

Indeed, the U.S. deemed Canada=92s intellectual property laws insufficient
for the eleventh consecutive year.  We are, however, in good company =96
the U.S. cited 50 countries including the European Union and dozens of
nations in South America, Eastern Europe, Asia, the Middle East, and the
Caribbean.

While media attention in Canada focused on the U.S. concerns over the
availability of counterfeit or pirated products at home, the coverage
missed the real story. Just weeks after the Canadian government
announced its plans for copyright reform, the U.S. has injected itself
in our policy debate by criticizing our future laws as well.

The report notes that the U.S. copyright industry is concerned with the
Canadian plan, a reference to Ottawa=92s intent to reject some of the
provisions found in the controversial U.S. Digital Millennium Copyright
Act.  In particular, the U.S. is unhappy with both Canada=92s proposed
approach to legal protections for digital locks known as technological
protection measures (TPMs) as well as with its proposal for Internet
service provider liability.

After years of calling on Canada to implement the World Intellectual
Property Organization=92s Internet treaties, the U.S.=92s true interests
have been revealed.  Implementing the treaties is now not good enough.
Rather, the U.S. wants us to implement its version of the treaties,
which extend well beyond international requirements.

Even more troubling is the way U.S. pressure against Canada has become
part of a much larger global campaign to leverage its economic power by
tying trade agreements with greater intellectual property protection.
This was not always the case =96 when Canada negotiated the free trade
agreement with the United States in the 1980s, intellectual property
issues constituted only a small part of the agreement.  Similar U.S.
agreements with Israel as well as the subsequent North American Free
Trade Agreement also referred to intellectual property but did not make
it a focal point.

Today the U.S. is negotiating trade agreements with dozens of countries.
  The intellectual property provisions within those agreements are
sometimes at least 40 pages in length, specifying international
intellectual property agreements that must be implemented and including
specific provisions to govern domain name disputes, patent protection,
and copyright law.  The copyright provisions inevitably go beyond even
those found in the U.S., since they include requirements for an
extension of the term of copyright, new protections for TPMs, and ISP
liability requirements.  They do not, however, feature any balancing
provisions for user interests.

This trade policy approach has become so pervasive that the time has
come to create a mirror list to counter the U.S. Special 301 report.
That list should include those countries already bullied by the U.S.
into adopting stronger intellectual property protections along with a
=93Watch List=94 of other countries currently facing similar pressures.

The IP Bullied List would include at least the following 12 countries --
Australia, Bahrain, Chile, Singapore, Morocco, Jordan, and the
signatories to the Central America Free Trade Agreement (Dominican
Republic, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua).

Each of these countries has reached trade agreements with the U.S. that
include sizable intellectual property requirements.  For example, the
U.S. =96 Morocco Free Trade Agreement even includes ministerial side
letters specifying precisely what ISPs in Marrakesh are required to do
in the event that they receive notification that one of their
subscribers has posted infringing content on the Internet.

The Watch List would be even longer, including individual countries such
as Panama, Thailand, Malaysia, and Brunei that are all working on
bi-lateral trade agreements.  Moreover, a block of Middle Eastern
countries (Algeria, Kuwait, Qatar, Saudi Arabia, United Arab Emirates,
and Yemen) would make the list as part of the Middle East Free Area
Initiative as would the five countries working on the Southern African
Customs Union Free Trade Agreement (South Africa, Botswana, Lesotho,
Namibia, and Swaziland).

Further, every country in the Americas, including Canada, Mexico,
Argentina, Brazil, Jamaica, Peru, and Venezuela would be on the list by
virtue of their participation in the Free Trade Area of the Americas
Agreement negotiation.

Even though that draft treaty has stalled, the FTAA is the U.S.=92s most
ambitious attempt to spread stronger intellectual property laws
throughout North and South America with at least 25 countries
participating in the talks.  The latest version includes pages of
intellectual property obligations that would overturn carefully
developed national policies.  For example, the Canadian Internet
Registration Authority would be required to scrap its domain name
dispute resolution policy, since it provides greater protection for free
speech websites than the policy favoured by the U.S.

Given its global trade strategy, the U.S.=92s recent criticism of Canada=92=
s
plans is clearly just the first shot across the bow.  If history is any
indication, Industry Minister David Emerson and Canadian Heritage
Minister Liza Frulla can expect an onslaught of U.S. backed lobbying for
stronger protections in the months ahead.

Standing up to that pressure is difficult, but Ottawa should keep in
mind that it is far better to retain Canadian sovereignty and in doing
so remain on the U.S. Special 301 list, than to surrender our right to
choose and take a spot on the U.S. IP Bullied List.


Michael Geist is the Canada Research Chair in Internet and E-commerce
Law at the University of Ottawa. He can be reached by email at
mgeist@uottawa.ca and is on-line at www.michaelgeist.ca.

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--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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