How Investor-State Dispute Resolution Threatens Access To Medicines, And Much Else

A couple of weeks ago, we wrote about the growing importance of investor-state dispute resolution in so-called free trade agreements (FTAs). One of the most troubling aspects is how potentially it can be used to undo the hard-won gains for important areas like access to medicines. The US law professor Brook K. Baker, whose work we discussed last year, has written an excellent exploration of this under-appreciated risk. After an introduction running through the recent wins in the field of access to medicines -- a topic that we've covered extensively here on Techdirt -- he explains how big pharma could employ investor-state dispute resolution to thwart these and similar moves to protect health: 

On Techdirt.

New Zealand To Ban Software Patents 'As Such'; Tries To Pin Down What On Earth That Means

Few patent sagas have been as fraught as New Zealand's attempt to revise its laws to exclude software. Techdirt first wrote about this move in March 2010, and again in June 2010, when it seemed that lobbyists had convinced the New Zealand government to reverse its position and allow software patents. Then, a month after that, word was that software would indeed be unpatentable. Things went quiet for a while, until a new version of the proposed law was unveiled by New Zealand's Commerce Minister Craig Foss, apparently weakening the bill once more: 

On Techdirt.

Indian Government Quietly Brings In Its 'Central Monitoring System': Total Surveillance Of All Telecommunications

There's a worrying trend around the world for governments to extend online surveillance capabilities to encompass all citizens -- often justified with the usual excuse of combatting terrorism and/or child pornography. The latest to join this unhappy club is India, which has put in place what sounds like a massively intrusive system, as this article from The Times of India makes clear: 

On Techdirt.

European Court Puts Release Of Drug Safety Data On Hold

Last month Techdirt wrote about the case of the giant pharma company AbbVie seeking to prevent the European Medicines Agency from releasing basic health safety data that AbbVie claims contains commercially sensitive information. Unfortunately, an interim injunction has just been granted to that effect: 

On Techdirt.

Open Data, Creative Destruction and Money

Nearly three years ago, I wrote an article exploring why at that time there were no billion-dollar companies (since then, Red Hat has finally broken through this barrier). Here's the key point:

On Open Enterprise blog.

Why the Idea of the Software Patent Does Not Fly

A couple of weeks ago, I wrote a post about the growing threat of software patents in Europe (again). I was delighted to come across this reply from Martin Goetz, who wrote:

On Open Enterprise blog.

EU Consultations: A Modest Proposal

Last week I reported on the reply I received from Jean Bergevin of the European Commission on the subject of the IPRED consultation, and my own response to that. I wondered whether I would receive a reply, suspecting that I might not. I was wrong: not only did a reply turn up, it turned up almost by return of post. Here's what Mr Bergevin wrote:

On Open Enterprise blog.

The Most Dangerous Windows Infection of All

Readers of this blog don't need to be told about Windows' awful security record, or how, when news outlets talk glibly of "viruses", they actually nearly always mean Windows malware. But sometimes there are stories from this weird world that make even seasoned Windows-watchers like me shake my head in disbelief.

On Open Enterprise blog.

Open Source (Seeds) Under Threat

Seeds might seem far from the world of high tech and free software, but they have much in common. Seeds contain DNA, which is a (quaternary) digital code much like a binary program. Just as there is free software that anyone may use and share, there are free seeds - those that are part of the ancient seeds commons, created over thousands of years, available for use by anyone. And just as free software is threatened by software patents, so seeds are equally endangered by seed patents.

On Open Enterprise blog.

Benefit Claimants Must Use Ancient Microsoft Software

Remember the bad old days when the UK government forced people to use Microsoft software in order to interact with it online? Remember how we thought the UK government had finally moved on, recognising that it should use truly open standards allowing citizens the freedom to adopt whatever software they wanted, not least through the fine, open standards-based Gov.uk site? We were wrong, as Tim Jeffries pointed out on Twitter earlier today.

On Open Enterprise blog.

Dutch Law Would Authorize Police To Hack Into Foreign Computers And Phones: What Could Possibly Go Wrong?

When we wrote last year about a Dutch idea to give police there the power to break into computers -- even those located abroad -- we and many others pointed out a number of deep flaws with the plan. Undeterred, the Dutch government seems to be going ahead with the scheme, as Bits of Freedom explains: 

On Techdirt.

Royalty Collection Agency SABAM Sues Belgian ISPs In Pursuit Of Its Fantasy 'Piracy License'

Back in November 2011, we wrote about the Belgian music royalty collection agency SABAM's demand for 3.4% of Internet subscriber fees as "compensation" for online piracy in Belgium. As Tim Cushing explained back then, this was ridiculous on just about every level. But SABAM doesn't let little things like that get in the way of its desperate attempt to avoid moving with the times and coming up with new business models. So after failing dismally to convince Europe's highest court that it could force ISPs to spy on their customers, SABAM has now moved on to suing ISPs instead, as TorrentFreak reports: 

On Techdirt.

Now US And EU Want To Apply Upward Ratchet To TRIPS Itself

Here on Techdirt we often talk about the copyright ratchet -- the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there's a group of countries where the copyright ratchet isn't in place yet. These are the so-called LDCs -- the Least Developed Countries -- where many of the world's poorest citizens live. That's because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies: 

On Techdirt.

Mozilla Sends Cease And Desist Letter To Commercial Spyware Company For Using Firefox Trademark And Code To Trick Users

Techdirt has written several times about the increasing tendency for governments around the world to turn to malware as a way of spying on people, without really thinking through the risks. One company that is starting to crop up more and more in this context is Gamma International, thanks to its FinFisher suite of spyware products, which includes FinSpy. A recent report by Citizenlab, entitled "For Their Eyes Only: The Commercialization of Digital Spying", has explored this field in some depth. Among its findings is the following: 

On Techdirt.

New EU Regulation Threatens Rare Seed Varieties, Agricultural Independence And Food Supply Resilience In Europe

Unless we are farmers, we tend to take seeds for granted. But civilisation is built on seeds: it was the rise of large-scale agriculture, based in part on the skilful breeding of ever-better seeds, that eventually allowed towns and then cities to form; and with them, the trades, arts and sciences that were possible once enough food could be produced by just a fraction of the population. That makes national seed policies -- how governments regulate the production and sale of plant varieties -- a crucial if neglected aspect of our urban lives. 

On Techdirt.

Africa's Ancient Plant Diversity And Seed Independence Under Threat, Supposedly In The Name Of Progress

As Africa continues to develop rapidly, Western countries and companies are increasingly interested in bringing it into existing international legal and commercial frameworks, but always on terms that maintain their dominance. One way of doing that is through intellectual monopolies: last year we wrote about proposals for a Pan-Africa Intellectual Property Organization (PAIPO), whose benefits for Africa seem dubious. Meanwhile, here's another plan that is being presented as a vital part of Africa's modernization process, and yet oddly enough seems to benefit giant Western companies most, as AllAfrica reports: 

On Techdirt.

Brazil's Marco Civil Not Dead Yet; Yahoo Voices Support

Techdirt has been following the story of Brazil's innovative Marco Civil project, a civil-rights based framework for the Internet, for a while. Last time we wrote about it, it had been shelved following some aggressive work by lobbyists. As we noted then, it wasn't clear whether it would be resuscitated or not, but here's Kuek Yu-Chuang, Yahoo!'s Regional Public Policy Director, who seems to think it still stands a chance of being approved: 

On Techdirt.

TTIP's "Science-based" Assault on Democracy Begins

Last month I predicted that one of the main tropes that would be used in the TAFTA/TTIP negotiations would by that of "science-based" policy. As I pointed out then, this is a trick, since the "science" actually consists of work by scientists working for big companies that want to push their products with minimal health and safety oversight by independent laboratories.

A great article from Public Citizen shows that this line of attack has already been deployed in a series of submissions hammering home the idea to both the US and EU delegations:

Food Safety

• “Science-based risk assessment, as the foundation for regulatory decisions, must not be overruled by an incorrect (and politically driven) application of the precautionary principle, as currently applied by the EU” (Croplife America, a lobbying group of U.S. pesticide corporations that includes genetically-modified-organism (GMO) giant Monsanto)
• “Finally, the EU’s political approach in regulating crops enhanced with traits achieved through modern biotechnology procedures is a concern to U.S. wheat producers. The EU biotechnology approval process is slow and often influenced more by politics than science, creating uncertainty and deterring new investment in wheat research… Science and market preferences, not politics, should be the determinants.” (U.S. Wheat Associates)
• “The current 'asynchronous approval' situation is caused by many factors, including risk assessment guidelines that are not aligned and increasing politically-motivated delays in product approvals.” (National Grain & Feed Association and North American Export Grain Association, lobbying groups comprised of the largest U.S. agribusinesses, such as Cargill and Archer Daniels Midland)
• “International trade rules fully support trade in products of biotechnology for planting, processing and marketing, subject to science-based regulation… Politically motivated bans or moratoria by WTO member states are not consistent with members’ WTO obligations.” (National Corn Growers Association)
• “The implementation of production standards based on politics or popular thought instead of science will do nothing more than eliminate family operations and drive up costs to consumers.” (National Cattlemen's Beef Association, a factory-farm-supporting lobbying group for the beef industry)
• “What is deeply concerning about the EU’s overall approach to SPS [sanitary and phytosanitary] issues, however, is that its political body is frequently given the ability to override the EU’s own scientific authority’s findings to instead establish restrictions on products based typically on animal welfare or consumer preferences.” (National Milk Producers Federation & U.S. Dairy Export Council)

 Product Safety

• “Significant barriers to further alignment, namely politics and differences in regulatory approach, remain on both sides of the Atlantic. Our experience has also shown that politics and differences in regulatory philosophy are fundamentally the root causes for differences in toy safety standards… Frequently, standards that are stricter than their international counterparts are promulgated due to political influence or the (often unstated) desire to erect technical barriers to trade, and not predicated by science or risk factors.” (Toy Industry Association and Toy Industries of Europe)
• “We would like to highlight the fact that these regulatory differences are often politically motivated… We regret that the differences in regulations in the EU and US are often caused by the result of politics rather than a different approach to ensuring safety.” (Toy Industries of Europe)
• “Such discussions need to take place between technical, not political or administrative, entities and need to make business sense for the organizations involved.” (ASME, a lobbying group for engineers -- the first U.S. "non-profit" entity convicted for violating antitrust laws)

Some of the statements there are truly incredible - for example, the idea that animal  welfare or consumer preferences have no place in a country's trade policy, or that standards "stricter than their international counterparts" are somehow bad, and should be forbidden (isn't that what we should be striving for - doing better than the average?)  The latter also confirms what I've noted elsewhere: that the only way TTIP can "succeed" on its own terms is if all health and safety standards are levelled *downwards*, to the detriment of the public.

But the most significant point that emerges from the above is the false opposition between that "science-based" method and the "politically-motivated" approach.  As rightly pointed out by Public Citizen:

the "political" bodies the corporations fear are the democratically elected representatives of the people.  

Without realising it, the corporations are revealing their profound contempt for democracy, and for the right of citizens to choose the laws that govern them.  Instead, the huge multi-nationals are asserting the primacy of profit - and of their right to over-rule local laws.  I've warned about this previously, specifically in the case of Monsanto, but it's still frightening to see the naked expression by companies of their desire to see law trumped by lucre.

Why has Monsanto "Quit" Europe? The Answer is ISDS in TAFTA/TTIP

The battle to bring GM food to Europe has been fiercely fought for years.  Most assumed it would be continue to rage for many more. Which makes this recent announcement extremely surprising:

The world's largest producer of seeds, Monsanto, has apparently given up on attempts to spread its genetically modified plant varieties in Europe. A German media report said the firm would end all lobbying for approval.

The German newspaper "taz" reported Friday that US agriculture behemoth Monsanto had dropped any plans to have farmers grow its genetically modified (GM) plant varieties in Europe.

Monsanto Europe spokesman Brandon Mitchener was quoted as saying the company would no longer engage in any lobbying fur such plants on the continent, adding that at the moment the firm was unwilling to apply for approval of any GM plants.

This is very curious.  Monsanto may be many things, but it is not a company that  gives up.  However, there is a clue in the last sentence of the above quotation: "at the moment the firm was unwilling to apply for approval of any GM plants". That suggests this is only a temporary halt, and that it will be back.

So why might it do that? Is there anything happening that might have triggered this move?

Why, yes: TAFTA/TTIP.  In fact, the issue of GM crops is likely to be one of the biggest sticking points.  The US side is insisting that "Sanitary and Phytosanitary" (SPS) measures must address GM foodstuffs, with the European side adamant that it won't drop its precautionary principle.

So how might that apparent contradiction be resolved?  A recent meeting on SPS gives a clue:

WTO members celebrated the 50th anniversary of 186-member Codex Alimentarius, which sets international standards for food safety, by calling, on 27–28 June 2013, for continued support for the body, and for trade measures to be based on science.

The calls came in a two-day meeting of the WTO’s Sanitary and Phytosanitary Measures (SPS) Committee, which consists of all 159 WTO members and deals with food safety and animal and plant health — measures having an increasing impact on trade. 

 Specifically:

“The increase in the number of SPS measures that are not based on international standards, guidelines and recommendations, or that lack scientific justification, is a point of concern that has often been raised by many members in the SPS Committee and other contexts,” Brazil observed.

The discussion of the six new specific trade concerns and the 10 previously raised and discussed in this meeting reflected that theme.

They covered; processed meat, genetically modified organisms (GMOs), restrictions related to the Japanese nuclear plant accident, orchid tissue culture plantlets in flasks, citrus fruits (a complaint by South Africa against the EU about black spot, which is the first dispute settlement case in the International Plant Protection Convention), offal, salmon, pesticide residues, sheepmeat, phthalates (materials added to plastics in food and drink containers) in wines and spirits, shrimp, mad cow disease (BSE), GMO pollen in honey, Indonesia’s port closures, and pine trees and other products.

As can be seen there, GMOs are mentioned twice.

Well, "trade measures to be based on science" sounds reasonable enough, doesn't it?  Except, as I've discussed at some length recently, the "science" actually means "scientists employed by companies"; that is, it is far from being independent or disinterested.  By redefining such company testing as "scientific", it can then be used to push through products that have never been tested by national food safety bodies.

This approach seems certain to crop up during the TAFTA/TTIP negotiations, and would offer Monsanto a fresh opportunity to push its GM products in the EU.  What it will be aiming for is that US "testing" must be accepted in the EU too - that's precisely what TAFTA/TTIP is all about - which would mean automatic approval for its products there.  Hence the recent pull-out - it won't even need to make applications in the future.

But it gets even better for Monsanto.  Another key area for TAFTA/TTIP is investor-state dispute settlement (ISDS).  Again, I've written extensively about this elsewhere. Here I just want to explore how Monsanto might use it to blackmail European governments into accepting GM crops.

Essentially, ISDS allows companies to sue entire countries or even regions like the EU for alleged loss of future profits (see this terrifying example from Canada.)  So once TAFTA/TTIP is signed with ISDS provisions, Monsanto will be able to threaten to sue the EU and its member states if they don't allow its GM products to be sold there.  

The logic would be that it invested money in Europe in the "reasonable" expectation - based on "science", of course - that it could sell its products as a result.  Since the EU authorities and national governments have proved so hostile to GM, it was unable to do that.  It would therefore claim that it could sue the EU for hundreds of millions - possibly billions - of  Euros for its "lost" profits.

This is not some mad fantasy: it is already playing out around the world, as governments find that they cannot apply laws designed to protect public health and safety, since they would have the knock-on effect of reducing some multinational's profits, and therefore makes them subject to ISDS claims.

I believe this is the main reason for Monsanto's temporary pull-out from the European approvals process: it feels confident that ISDS provisions will be included in TAFTA/TTIP - indeed, both the EU and US sides have said they want them - and equally confident that it will be able to sue the socks off the EU and national states if they don't simply wave through GM products in their markets, no further approval required....

OxyContin And The Art Of 'Evergreening'

A few weeks back, we wrote about the Indian Supreme Court's rejection of Novartis's attempt to use "evergreening" to prolong its patent on Gleevec, sold as Glivec in India. That term refers to the trick of making small changes to a drug, usually one about to come off patent, in order to gain a new monopoly that extends its manufacturer's control over a medicine. But how does that work in practice? 

On Techdirt.

No, The UK Did Not Just Abolish Copyright, Despite What Photographers Seem To Think

The photographers are freaking out again. After last year's excitement with Instagram's changes to its terms of service, now it's the UK's Enterprise and Regulatory Reform (ERR) Act that's getting people worked up. Here, for example, is a post on the site of Stop43, a photographers group which successfully fought against the inclusion of orphan works in the UK's Digital Economy Act, with the title: "The Enterprise And Regulatory Reform Act Has Reversed The Normal Workings Of Copyright": 

On Techdirt.

What New-Style Trade Agreements Are Really About (Hint: It's Not Trade)

Given the massive impact that new-style trade agreements like TPP and TAFTA/TTIP are likely to have on the lives of hundreds of millions of people, it's surprising how few members of the public know about what's being negotiated in their name. Fortunately, publications are starting to run more articles on the subject, like this great piece by David Brodwin in US News. 

On Techdirt.

Has Russia's VKontakte Social Network Betrayed Its Users? Or Is It Under Attack For Defending Them?

We last wrote about the Russian social network site VKontakte, often called "The Facebook of Russia," a year ago. Since then, lots of bad stuff has been happening in Russia as a part of clampdown on online activity there, and now VKontakte is back in the news, with a pair of rather contradictory stories. 

On Techdirt.

McAfee Patents System To 'Detect And Prevent Illegal Consumption Of Content On The Internet'

As a post on the French site Numerama reminds us (original in French), the department responsible for implementing the three-strikes plan known as HADOPI was also supposed to provide Internet users with information about technical solutions to reduce infringement. That never happened -- instead, the body has preferred to send out warning messages on a massive scale and to seek convictions, even of those who are innocent. But in the meantime, the US company McAfee seems to have obtained a patent on just the kind of thing the French law originally had in mind: 

On Techdirt.

US Demands Transparency Everywhere -- But Only From Everyone Else

Techdirt has written about the Special 301 report many times, but that's not the only US government publication putting other countries on the naughty step. Another is the less well-known National Trade Estimate Report on Foreign Trade Barriers (pdf): 

On Techdirt.