Will WIPO Wipe the Floor?

This is how the world ends, not with a bang - not with a clash of titans - but with a whimper, in an obscure WIPO committee. The committee in question rejoices in the moniker "U.N. World Intellectual Property Organization's Standing Committee on Copyright and Related Rights Committee". And this is how the report on the EFF's site lays out the effects of the current draft of its work:

The treaty would give broadcasters, cablecasters, and potentially webcasters, broad new 50 year rights to control transmissions over the Internet, irrespective of the copyright status of the transmitted material. It also requires countries to provide legal protection for broadcaster technological protection measures.

Essentially it would be a huge win for the major content owners, a huge win for the status quo, and a huge win for IP maximalists. As this piece from Boing Boing explains, those IP maximalists are largely in the US, and the proposals in this treaty are largely driven by their agenda of locking down all forms of content, everywhere in the world, in the belief that it will increase their profits, even if it will chill all kinds of creative expression in the process.

Nothing new there, then. But what is notable is how the battle is being taken behind the scenes - not in public forums where alternative viewpoints can be aired, and the erroneous logic of the proposal refuted - but in the dark, rank, chummy world of deadly-tedious drafting committees, where every trick in the book can be used to out-manoeuvre those fighting to defend creative freedom.

The treaty in question is a case in point. As the EFF report on the moves explains:

Webcasting is now back in the treaty, after spending last year in a separate "working paper" because the majority of countries opposed its inclusion in 2004. Despite many counties' opposition again in 2005, it’s been included in the treaty as a non-mandatory Appendix. Countries that sign the treaty have the option – at any time -- to grant webcasters the same exclusive rights given to broadcasters and cablecasters by depositing a notice with WIPO.

At the same time, some of the key proposals to balance the impact of the new treaty have been removed from the new draft treaty text (the Draft Basic Proposal) and relegated to a new separate "Working Paper". For instance, the alternative that the treaty not include the contentious Technological Protection Measure obligations is not in the Draft Basic Proposal, but has been sidelined to the Draft Working Paper.

Unfortunately, it is hard to see who is going to stop this. As more and more battles are won at the national level, so the fight over content moves up the stack, to supra-national bodies that wield immense power, are subject to little or no oversight, and which are largely aligned with the interests of the already-rich and the already-powerful against anybody who would like to share a little of that money and power.

Update 1: The EFF reports that webcasting is now out of the main treaty again, but that the threat in the longer-term remains.

Update 2: Here's a good report by James Love on where things now stand (via On the Commons).

Why ACTA is Doomed (Part 2)

A couple of days ago I wrote that ACTA was doomed because its attempts to enforce copyright through even more punitive measures will simply alienate people, and cause more, not less, copyright infringement. Here's indirect support for that view from a rather surprising source: a paper [.pdf] published by WIPO (although it does emphasise "The views expressed in this document are those of the author and not necessarily those of the Secretariat or of the Member States of WIPO").

In the context of enforcement it has the following to say about the continued failure to "educate" (= indoctrinate) people about the sanctity of copyright, noting that it is a lost cause because piracy is so widely accepted today:

The most comprehensive comparative analysis of these issues to date is a 2009 Strategy One study commissioned by the International Chamber of Commerce. Strategy One examined some 176 consumer surveys and conducted new ones in Russia, India, Mexico, South Korea, and the UNITED KINGDOM. Like nearly all other surveys, Strategy One’s work showed high levels of acceptance of physical and digital piracy, with digital media practices among young adults always at the top of the distribution. The group concluded that “hear no evil, see no evil, speak no evil’ has become the norm” (ICC/BASCAP 2009). At this point, such findings should come as no surprise. In the contexts in which we worked, we can say with some confidence that efforts to stigmatize piracy have failed.

There is little room to maneuver here, we would argue, because consumer attitudes are, for the most part, not unformed — not awaiting definition by a clear antipiracy message. On the contrary, we consistently found strong views. The consumer surplus generated by piracy in middle-income countries is not just popular but also widely understood in economic justice terms, mapped to perceptions of greedy United States of America and multinational corporations and to the broader structural inequalities of globalization in which most developing-world consumers live. Enforcement efforts, in turn, are widely associated with the United States of America pressure on national governments, and are met with indifference or hostility by large majorities of respondents.

It also makes this rather interesting point about the changing nature of people's music collections:

The collector, our work suggests, is giving ground at both the high end and low end of the consumer income spectrum. Among privileged, technically-proficient consumers, the issue is one of manageable scale: the growing size of personal media libraries is disconnecting recorded media from traditional notions of the collection — and even from strong assumptions of intentionality in its acquisition. A 2009 survey of 1800 young people in the UNITED KINGDOM found that the average digital library contained 8000 songs, with 1800 on the average iPod (Bahanovich and Collopy 2009). Most of these songs — up to 2/3 in another recent study — have never been listened to (Lamer 2006). If IFPI’s figures are to be trusted, up to 95% are pirated (IFPI 2006).

Such numbers describe music and, increasingly, video communities that share content by the tens or hundreds of gigabytes — sizes that diminish consumers’ abilities to organize or even grasp the full extent of their collections. Community-based libraries, such as those constituted through invitation-only P2P sites, carry this reformulation of norms further, structured around still more diffuse principles of ownership and organization.

What's really fascinating for me here is that it clearly describes the trend towards owning *every* piece of music and *every* film ever recorded. The concept of owning a few songs or films will become meaningless as people have routine access to everything. Against that background, the idea of "stopping" filesharing just misses the point completely: few will be swapping files - they will be swapping an entire corpus.

The whole report is truly exciting, because it dares to say all those things that everyone knew but refused to admit. Here are few samples of its brutal honesty:

To be more explicit about these limitations, we have seen no evidence — and indeed no claims — that enforcement efforts to date have had any impact on the overall supply of pirated goods. Our work suggests, rather, that piracy has grown dramatically by most measures in the past decade, driven by the exogenous factors described above — high media prices, low local incomes, technological diffusion, and fast-changing consumer and cultural practices.

...

we see little connection between these efforts and the larger problem of how to foster rich, accessible, legal cultural markets in developing countries — the problem that motivates much of our work. The key question for media access and the legalization of media markets, in our view, has less to do with enforcement than with fostering competition at the low end of media markets — in the mass market that has been created through and largely left to piracy. We take it as self-evident, at this point, that US$15 DVDs, US$12 CDs, and US$150 copies of MS Office are not going to be part of broad-based legal solutions.

Fab stuff - even if it is not quite official WIPO policy (yet....) (Via P2Pnet.)

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World Intellectual Monopolies Day

This is bad enough:

Each year, WIPO and its Member States celebrate World Intellectual Property Day with activities, events and campaigns. These seek to increase public understanding of what IP really means, and to demonstrate how the IP system fosters not only music, arts and entertainments, but also all the products and technological innovations that help to shape our world.

But these "suggested activities" are positively obscene:

# Mount an essay competition in local schools on simple intellectual property-related themes, such as "How creativity and innovation improve the world".

# Organize a school wide intellectual property day with different awareness building activities for the students (such as invention competition to find the best solution to a common problem, a painting or sketching competition, or presentations by inventors, authors, musicians on their experiences with, or reflections on, the IP system); distribute and exhibit WIPO and materials from the national IP office in schools.

A day celebrating monopolies? While we're at it, why not have a day celebrating passive smoking, or a day celebrating global warming? (Via Michael Geist.)

The Death of WIPO?

I barely dared hope that the recent events at WIPO marked a significant moment, but here's someone rather better qualified than I am to comment. Let's hope.

Broadcast Treaty Threatened Again

This idea died at WIPO, and should now be laid to rest with the canonical stake through its heart:

in view of a standstill in WIPO (World Intellectual Property Organisation) negotiations on a convention on neighbouring rights of broadcasting organisations, the Committee of Ministers has asked the Council of Europe body entrusted with developing standards on freedom of expression, media and new communication services - the Steering Committee on the Media and New Communication Services (CDMC) - to take stock of the situation and, if justified, to elaborate a draft Council of Europe convention designed to reinforce the protection of those rights (near copyright of broadcast signals). Such a convention would add to existing Council of Europe instruments on this and related subjects, which include a number of recommendations and declarations as well as a 1994 convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite and the 2001 convention on the legal protection of services based on, or consisting of, conditional access.

(Via IP Justice.)

WIPO's Poison Cloud Draws Nearer

I've written before about the pernicious WIPO Broadcasting Treaty that is being discussed. Sadly, it's rumbling ever closer, and bringing with it a terrible cloud:

US industry was prominent at the meeting, as several representatives from information and communications technology (ICT) companies were there in opposition. Jeffrey Lawrence, director of digital home and content policy at Intel, said it would create a "whole cloud of liability issues."

"We have the patent cloud, the copyright cloud, and now we’re going to have a broadcast cloud," Lawrence said. He predicted such a treaty would "stifle innovation because it creates uncertainty." In addition, it has significant Internet ramifications, as it could impact cable and home networking, seen as critical to ICT industries. The movement of content is the "next killer application" for industries, he said. Lawrence called on industries to "stand up" to fight the treaty as it is proposed. Other opposed companies present at the meeting were Verizon and AT&T.

The (Intellectual Monopoly) Empire Fights Back

I've chronicled how WIPO is beginning to shift towards some semblance of fairness when it comes to intellectual monopolies. This is clearly bad news for those that have used WIPO to impose all kinds of unfair regimes on developing countries. It seems those forces of monopoly murkiness are fighting back - dirtily:

The World Customs Organisation is recommending far-reaching new rules on intellectual property rights that some say may extend beyond the organisation’s mandate.

Staff at the WCO’s Brussels headquarters are preparing what they describe as voluntary ‘model legislation’ to provide guidance on how IP rights can be upheld at border posts.

While they are hoping that the model will be approved by the 171-country body in June, representatives of developing countries were meeting this week to address concerns raised by Brazil over the proposal’s likely breadth.

Brazil is perturbed by a WCO recommendation that customs authorities need to be conferred with powers and be able to take measures that are additional to those set out in the key international accord on IP issues: the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS does not oblige its signatories to introduce border control measures relating to exports or goods in transit.

During discussions in February, Brazil argued that a WCO working group known as SECURE (Standards to be Employed by Customs for Uniform Rights Enforcement) had no mandate to alter the international legal framework on intellectual property.

I'm sure they won't let a little detail like having "no mandate" get in the way....

We Need This...

...like we need a hole in the head:

the European Commission wants the EU to bypass WIPO and the WTO and move forward on a new anticounterfeiting trade agreement (ACTA) made directly with key trading partners.

The goal is to strengthen the intellectual property protections so important to the EU, the US, Korea, Japan, and others. Despite formidable protection offered by WIPO treaties and WTO rules, the Commission announced today that it needs to do more to protect European business, in part due to the "speed and ease of digital reproduction" and "the growing importance of the Internet as a means of distribution."

What Are Intellectual Monopolies For?

If you still doubted that intellectual monopolies are in part a neo-colonialist plot to ensure the continuing dominance of Western nations, you could read this utterly extraordinary post, which begins:

The fourteenth session of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC), convened in Geneva from June 29, 2009 to July 3, 2009, collapsed at the 11th hour on Friday evening as the culmination of nine years of work over fourteen sessions resulted in the following language; “[t]he Committee did not reach a decision on this agenda item” on future work. The WIPO General Assembly (September 2009) will have to untangle the intractable Gordian knot regarding the future direction of the Committee.

At the heart of the discussion lay a proposal by the African Group which called for the IGC to submit a text to the 2011 General Assembly containing “a/(n) international legally binding instrument/instruments” to protect traditional cultural expressions (folklore), traditional knowledge and genetic resources. Inextricably linked to the legally binding instruments were the African Group’s demands for “text-based negotiations” with clear “timeframes” for the proposed program of work. This proposal garnered broad support among a group of developing countries including Malaysia, Thailand, Fiji, Bolivia, Brazil, Ecuador, Philippines, Sri Lanka, Cuba, Yemen India, Peru, Guatemala, China, Nepal and Azerbaijan. Indonesia, Iran and Pakistan co-sponsored the African Group proposal.

The European Union, South Korea and the United States could not accept the two principles of “text-based negotiations” and “internationally legally binding instruments”.

Australia, Canada and New Zealand accepted the idea of “text-based negotiations” but had reservations about “legally binding instruments” granting sui generis protection for genetic resources, traditional knowledge and folklore.

We can't possibly have dveloping countries protecting their traditional medicine and national lore - "genetic resources, traditional knowledge and folklore" - from being taken and patented by the Western world. After all, companies in the latter have an inalienable right to turn a profit by licensing that same traditional knowledge it back to the countries it was stolen from (this has already happened). That's what intellectual monopolies are for.

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Goodbye WIPO, Hello ACTA?

Something strange is happening at the WIPO: it's becoming more reasonable. Where once it was a bastion of intellectual monopoly intransigence, it is now showing signs of being, well, more *open* to new ideas....

On Open Enterprise blog.

WIPO Webcast Wipe-Out?

Good news, it seems:

World Intellectual Property Organization negotiations for a treaty on rights for broadcasters broke down at the eleventh hour, according to participating government officials. A high-level final treaty negotiation scheduled for November will not take place, they said.

This was a treaty that would have effectively killed fair use for "webcasting" - essentially distributing media files online. There's still a slight danger that the wicked WIPO witch isn't quite dead:

Government sources stopped short of calling the treaty talks dead forever, saying that proponents might still propose a way to resume the talks in the future.

Fingers crossed.

Update: My characterisation of the threat is ill-expressed at best, and downright wrong at worst. Try Ars Technica for something better.

Chile Turns up the Heat on WIPO

Good to see another country standing up for open content/public domain (via Open Access News). One of the key issues in tackling the unbalanced nature of the current copyright/patent laws is getting the World Intellectual Property Organisation (WIPO) to recognise that its job is bigger than simply protecting today's IP fatcats.

The Arrogance of Artists (and Publishers)

You wouldn't expect much else from a meeting organised by WIPO, but this is pretty rich even for them:

Copyright is necessary to allow authors to live from their trade and to guarantee their independence, and exceptions should be decided by authors and publishers, according to panellists on a copyright dialogue held at the World Intellectual Property Organization this week.

Amusingly, this was a "copyright dialogue": but I bet there weren't many people from the *other* side of the equation - the readers. The readers, you see, don't really count in this - "exceptions should be decided by authors and publishers" as the above insists. The fact that copyright is supposed to be a balanced quid pro quo - a time-limited monopoly in return for works entering the public domain afterwards, and that such a balanced of necessity requires both parties to agree, seems not to have entered the heads of those authors and publishers.

The very idea that "exceptions should be decided by authors and publishers" betrays the deep-seated arrogance and contempt that both of these now have for their readers. And that's all part and parcel of the publishing industry's problems: it sees readers as the enemy, something that must be fought and vanquished in order for it to be forced to buy books on the terms of authors and publishers - forced, if necessary, by ever-more Draconian laws that criminalise willy-nilly.

What is so regrettable about this depressing vision is that at the very same conference where these extraordinarily insulting comments about readers were made, another publisher revealed the wonderful truth:

For Richard Charkin, executive director of Bloomsbury Publishing, publishing is also investing in the future. Copyright is a flexible system, he said, giving an example of Bloomsbury Academic’s business model. The publishing company publishes social sciences and humanities research publications. They are available online under a Creative Commons non-commercial licence, and for sale as printed books. The publications are thus widely available, Charkin said, but surprisingly, he said that sales of books seem to be higher when they offer free downloads than if they do not.

Go that? "Surprisingly", when people can freely share books, they *buy more* - exactly as many of us have been saying for years, and in diametric opposition to the dogma of the same authors and publishers who insist that they know best, and that readers must be brought to heel like recalcitrant curs rather than treated as equals in a pleasant colloquy.

How to make money in the age of digital abundance is there for all that have eyes to see; sadly, even the most basic optical equipment seems lacking in this singularly benighted profession. Looks like they will have to learn the hard way....

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Back-Door Maximalist Intellectual Monopolies

This looks like a very serious attempt to bring in maximalist intellectual monopolies through an agreement called SECURE under the aegis of the World Customs Organisation (sic) :

Susan Sell, director of the Institute for Global and International Studies at the Elliott School of International Affairs in Washington, DC, said in a recent paper (available here [pdf]) that the SECURE aims were “TRIPS-plus-plus,” referring to extending beyond the scope of the 1994 World Trade Organization Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS). “These new anti-counterfeiting and enforcement initiatives are just the latest mechanisms to achieve the maximalists’ abiding goal of ratcheting up IP protection and enforcement worldwide,” she said.

Viviana Muñoz Tellez of the intergovernmental South Centre said in the South Centre Bulletin (16 April 2008 issue [pdf]) that the SECURE working group seems to be “setting new standards of intellectual property enforcement through the back door,” and that this “may extend beyond the WCO mandate.” Separately, she told Intellectual Property Watch that standards presented as voluntary could become mandatory down the line. “Soft law,” she said in the article, “is often the basis on which ‘hard law’ is later established.”

And if that's not bad enough, there's a couple more details:

Other concerns of Sell’s are that the standards would extend monitoring to all IP, as opposed to just trademark and copyright, and would free IP rights holders from the burden of providing evidence that there is infringement “initiate a procedure.”

Patents would be turned into a customs issue (whaaat?), and there would be no need actually to show that an infringement happened in order to start a "procedure".... In other words, this SECURE (and for the name, see here) is about extending the RIAA's intimidatory tactics to the whole of intellectual monopolies, and globally.

But wait, there's more:

There also was substantive concern that rights holders, such as industry trade associations, were participating in WCO meetings at the same level as member states, to the extent of having their own vice-chair. Muñoz’s article characterised their involvement as “on equal footing” with members, and said they can “equally suggest draft language.”

...


“We’ve been very open with the public,” he added, about the allowance of private sector stakeholders in the meetings. What is unique about the way that WCO meetings are run is that observers may speak and express opinions once members have spoken. This is in contrast to the WTO and WIPO, where observers generally only offer comment if asked to, or with express permission of a meeting chair.

So, the industries mostly closely involved with intellectual monopolies are helping shape the agreement alongside the government organisations. Well, that's sure to produce a balance, isn't it?

Why are Facebook, IBM, Microsoft and Oracle Backing the Fight *Against* the Blind?

One of the more disgraceful examples of the inherent selfishness of the copyright world is that it has consistently blocked a global treaty that would make it easier for the blind and visually impaired to read books in formats like Braille. The thinking seems to be that it's more important to preserve copyright "inviolate" than to alleviate the suffering of hundreds of millions of people around the world.

You can read the disgusting details of how publishers have fought against the "proposed international instrument on limitations and exceptions for persons with print disabilities" for *30* years in an column I wrote back in 2011.

Amazingly, things have got even worse since then, with most of the fault lying at the feet of the US and EU, which are more concerned about placating their publishing industries than helping the poor and disabled around the world. And just when you think it can't get any worse, it does:

In a May 14, 2013 letter signed by Markus Beyrer, a Brussels based corporate lobby group known as Business Europe has sent a letter to Commissioners Michel Barnier and Karel De Gucht opposing the WIPO treaty on copyright exceptions for persons who are blind or have other disabilities. .... Business Europe describes itself as "the main horizontal business organization at the EU level." It represents 41 national business organizations in 35 European countries, claiming to promote "growth and competitiveness in Europe." Below is a list of the 55 member companies on its Corporate Advisory and Support Group, which describes its main constituency.

What readers of this blog may find most of interest are the names of the companies from the computer industry that are supporting this move to deny the blind even the smallest solace. Here are the main ones:

Facebook
IBM
Microsoft
Oracle

These are companies that often like to present themselves as decent and caring organizations whose pursuit of profit is balanced by a deep respect for fundamental human values. But their support here for the Business Europe lobbying group and its attempt to make it even harder for the blind to gain belatedly basic human rights like being able to read books – something that most of us are able to take for granted - is simply unacceptable.

I therefore call on Facebook, IBM, Microsoft and Oracle to dissociate themselves from the Business Europe group and its attempt to keep blind people in their darkness. If those companies refuse, we will know that their claims to any kind of humanity are shams, and should treat them with the contempt that they deserve.

TTIP Update XXXVIII

In my last update, I mentioned plans to organise a European Citizens' Initiative, a formal petition against both TTIP and CETA.  I think everyone assumed that the European Commission would just ignore this, but in fact it has done something rather more spectactular - and stupid: it has refused to allow the ECI to go ahead at all.

In its rejection of the ECI, the European Commission claims that the negotiating mandates on TTIP and CETA are not legal acts but internal preparatory acts between EU institutions and therefore not contestable via an ECI.

“The Commission’s view that only acts with an effect on third parties are permissible for an ECI is obviously a legal error. The negotiating mandate of the Commission is a formal decision of the Council and therefore a legal act. If the Commission’s legal opinion had any substance, then in plain English this would mean that Europe’s population is excluded from participation in the development of any kind of international agreements – information that is as frightening as it is scandalous,” according to Efler.

What’s more, the Commission claims that it cannot make negative ratification proposals and therefore cannot comply with the ECI demand not to conclude the CETA and TTIP negotiations. “Contrariwise, this means that citizens can only applaud international negotiations carried out by the Commission, but not criticize them,” said Efler.

The group behind the petition have realised that they don't actually need the European Commission's permission anyway, and so are simply going ahead without it:

We reject the Commission’s attempt to silence us and will carry out our European Citizens’ Initiative anyway, without approval from Brussels. We are currently preparing an online signature gathering tool as well as paper signature forms and will start collection in early October. At the same time, we will challenge the Commission in court by appealing to the European Court of Justice.

In the past couple of weeks our campaign has gathered support from over 240 civil society organisations in 21 EU member states. It is somewhat ironic that the European Commission, which often complains about the “lack of a European public”, is trying to stop this truly European movement in its tracks. We will continue to speak out against the Commission’s total lack of transparency in the negotiations and favouring of corporate interests over the common good. We will stay very public and very European in our opposition to TTIP and CETA!

This refusal even to allow a largely symbolic petition to proceed is indicative of the contempt with which the European Commission regards any expression of the public's view on these matters, which it seems to think are the exclusive domain of bureaucrats and politicians (and lobbyists).  That was underlined even more strongly last week, when the official text of the trade agreement with Canada, CETA, was finally released.  However, at precisely that moment, the European Commission was also "celebrating" the conclusion of the talks, with the implication that no further changes can be made.  So after telling everyone that the public would have its chance to comment on the CETA text later, it turns out that in fact it can only see the document not change it.  The European Commission has an interesting concept of what democracy means.

Interestingly, the meeting between the European Commission and the Canadian government was called a "celebration" rather than a signing because Germany has indicated that it is not happy with the inclusion of the problematic investor-state dispute settlement (ISDS) chapter in CETA.  Since it is likely that CETA is a "mixed agreement" - that is, one that requirements approval from all 28 member states, as well as from the European Parliament - if Germany were to say "no", CETA would be dead.

It turns out that ISDS is only one of the really bad ideas contained in CETA.  That's what emerges from an excellent analysis of CETA from the Canadian Centre for Policy Alternatives, called "Making Sense of the CETA".  It's very clearly written, and I recommend it to anyone who wants to understand what the implications of CETA will be for business or, indeed, for all of us. 

Another key factor influencing both CETA and TTIP is the appointment of a new European Commissioner responsible for trade, and thus trade agreements.  The Commissioner-Designate is Cecilia Malmstrom, and she was involved in yet another storm around ISDS at the weekend.

Jon Worth has all the details in a blog post, but essentially a document from Malmstrom indicated that she was willing to drop ISDS from TTIP.  The S&D group in the European Parliament issued a statement welcoming the move, but then Malmstrom tweeted that she hadn't written the words.  This made her appearance yesterday before the European Parliament as part of the process of confirming her as trade commissioner even more important, since it would clarify what exactly she thought on this matter.

Her statements during that session were unequivocal: she will not take ISDS out of CETA, which she regards as finished.  She claimed she had an open mind on ISDS in TTIP, saying that it might be taken out, but she was unconvincing here.  It seems clear that she wants ISDS in TTIP.  Her justification was very weak.  She kept on saying that ISDS existed in other treaties (true), was problematic there (true), and therefore required a new, improved version to be used in TTIP (false).  She seemed to be under the impression that "improving" ISDS in TTIP would somehow rectify all the deeply-flawed versions elsewhere, when they are completely unrelated.

It's true that there are some EU countries that have bilateral trade agreements with the US that includes ISDS.  These are ex-Soviet countries that clearly signed up to bad deals because they were desperate to escape the clutches of Russia.  But that's not a reason to include ISDS in TTIP, and inflict the same problems on everyone else.  The East European treaties can all be cancelled in due course, and that is what those countries should do.  Adding ISDS to TTIP simply gives new life to the idea. 

Equally, the view that ISDS can be "improved" sufficiently to make it acceptable is wrong: it is just not needed between the EU and US, both of which have well-functioning legal systems.  Creating new rights for corporates that allow them to challenge national regulations outside the legal system is just anti-democratic and bad policy. 

Finally, it was clear that Malmstrom laboured under the delusion that we "need" this ISDS in TTIP so that we can demand that China accepts it in a trade agreement that is currently under discussion.  What this overlooks is the painful fact that soon China will be investing more in Europe than Europe invests in China, such is the strength of the China's economy, and the size of its reserves.  This means that ISDS will be chiefly a weapon that can be used by Chinese companies *against* the EU, not for EU companies to use in China.  Not only will ISDS by harmful in TTIP, it will be actively dangerous in any agreement with China.

Although it was clear from the meeting yesterday that Malmstrom is not another Karel De Gucht, who was far more abrasive and arrogant than she is, equally she will not be deviating much from his policy, even if she dresses it up differently.  She made vague but essentially empty promises about increasing transparency, but ignored the real issue: that we do not have access to negotiating documents. 

Some claim that such documents must be secret, otherwise the EU negotiators will lose the advantage; this is demonstrably not true, since for WIPO talks, all the documents are open by default without problem.  But even were it true, the solution is simple: make available all those documents once they are *tabled*.  At that point, there is no negotiating advantage in keeping them secret, since the US side has already seen them.  That's also true for the lobbyists that have routine access to these documents.  The only group that suffers is - of course - the public, that never has any means of seeing what is supposedly being done in its name.  Instead, as the CETA fiasco shows, at the end of the process we are presented with a fait accompli, and told simply to like it or lump it.

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How Publishers Have Fought Against the Treaty for the Blind

One of the most disgraceful manifestations of the callousness of copyright maximalists is their 30-year refusal to countenance any meaningful kind of exception for blind users to convert texts into readable forms. Here's the background:

Even in 2013, blind people and others living with a print disability such as those with dyslexia still have very limited access to books. Only some 7% of published books are ever made accessible (in formats such as Braille, audio and large print) in the richest countries, and less than 1% in poorer ones. This is a “book famine”.

And here's what Fred Schroeder, First Vice President of the World Blind Union, said about the current state of the negotiations to change that:

The purpose of this treaty is to ensure access to books for blind people and help end the “book famine” we face. WBU is alarmed that some of the negotiators have focused their efforts almost exclusively on crafting language around copyright protections that have nothing to do with the ability of authorized entities to produce books for the blind and visually impaired. The shift away from a treaty for the blind to a treaty focussed on rights holder protections has taken up precious negotiating time which should be directed at ensuring a treaty that makes it possible for materials to be shared internationally.

I was naturally interested to find out what the UK's publishers had been doing on this front, so I put in a FOI request to the UK government:

I would be grateful if you could please supply me with the following information. 

Emails, letters and any other written communications from the last six months, between the Publishers Association or representatives of UK publishers, and the Intellectual Property Office, on the subject of the WIPO treaty for the blind (formally, the "Treaty to facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities".)

You can find the full reply here; this is what KEI's Jamie Love wrote about the emails that were made available to me:

Overall, the emails deal extensively with publisher opposition to fair use (fair use is mentioned 40 times), and promotion of commercial availability and requests that the treaty include restrictive three-step test language (even while asserting that other treaties and agreements already mandate the three step test for all copyright exceptions). The emails also demonstrate the close cooperation and communication between the IPO and the publishers in the negotiations.

Although it's frustrating not to be able to see more, the emails provide a handy reminder just how much the UK government is willing to work with publishers to place obstacles in the way of the blind gaining access to even a fraction of the materials that sighted people are fortunate enough to access.

You would have thought that any caring human being would gladly support moves to alleviate the massive suffering this book famine causes to hundreds of millions of visually impaired people across the world, but apparently there are some who are immune to these feelings, because they regard preserving copyright's oppressive intellectual monopoly as far more important than helping the poor, the sick and the disadvantaged.

I find that desperately sad - and further proof of the harm that copyright inflicts on society as a whole, and particularly on the most vulnerable. 

Access to Knowledge is Dangerous

Apparently:

Although the idea of discussions on a Treaty on Access to Knowledge appears to have strong support in the African Group, Asian Group and the Group of Friends of Development, Group B is mounting a full court press against even the mere mention of “access to knowledge” in the recommendations of this PCDA as evidenced by the bracketed text.

Paragraph 10 on complementary mechanisms of stimulating innovation reads:

10. [To exchange experiences on open collaborative projects for the development of public goods such as the Human Genome Project and Open Source Softwared (Manalo 38)]

It is quite unfortunate that the intransigence of rich Member States and their allies is hindering true progress at WIPO whether it be on the over-arching principle of a Treaty on Access to Knowledge or examining open collaborative projects.

Dangerous stuff this knowledge: got to keep it locked down. (Via James Love.)

Update: Some movement on the first matter, it seems.

Cracks in the ACTA Wall of Secrecy

I've lamented many times the totally unjustified secrecy of the ACTA negotiations: these affect billions of people who have a right to know what their elected representatives are up to before this stuff is simply imposed on us. Hitherto, there's been no suggestion of any dissension within the ACTA ranks; so this comment in a blog post from Jamie Love about a lunch meeting of civil society NGOs held by the UK's Intellectual Property Office during the WIPO meeting is intriguing:

The UK IP office said it had complained frequently of the secrecy of the ACTA negotiations.

Perhaps if we can get a few more of the insiders moaning about this unnecessary lack of transparency, things will finally start moving.

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More G8 Intellectual Monopolies? Nein Danke

Now, I wonder where that lot over there could have got these ideas:

A fully functioning intellectual property system is an essential factor for the sustainable development of the global economy through promoting innovation. We recognize the importance of streamlining and harmonizing the international patent system in order to improve the acquisition and protection of patent rights world-wide.

35. The benefits of innovation for economic growth and development are increasingly threatened by infringements of intellectual property rights worldwide.

...

36. We commit to strengthen cooperation in this critical area among the G8 and other countries, particularly the major emerging economies, as well as competent international organizations, notably the World Intellectual Property Organization (WIPO), WTO, the World Customs Organization (WCO), Interpol, the World Health Organization (WHO), the OECD, APEC, and the Council of Europe. We invite these organizations to reinforce their action in this field.

Sigh. Clearly still lots of work needed here, chaps....