Liza Porteus Viana filed a story with IP Watch yesterday that details a fascinating exchange about ACTA that took place at Fordham University’s annual Intellectual Property Law and Policy conference. Check out the whole article (that goes into detail about some other aspects of the USTR’s National Trade Estimates) or settle for the following very-long-quote:
USTR also is touting the multinational Anti-Counterfeiting Trade Agreement (ACTA) as a way to fill in enforcement gaps with the TRIPS agreement and other treaties. The language of ACTA, which was announced last fall (IPW, WTO/TRIPS, 24 October 2007), has not yet been released to the public – which has many consumer groups up in arms. USTR put a notice in the Federal Register soliciting comment on the agreement.
“Until you have economies of the world effectively cooperating together, it’s difficult to be as effective as law enforcement would like to be,” Victoria Espinel, who served as the first assistant US Trade Representative for Intellectual Property and Innovation, said last week during an intellectual property law conference at Fordham University in New York City. “It is very much the hope” of USTR and other participating countries “that more and more countries will join,” she added.
Eddan Katz, international affairs director at the Electronic Frontier Foundation, said the US “shouldn’t rush on this one.”
“In terms of combating piracy, this is the wrong instrument,” Katz said, arguing that it is ill-designed in terms of maintaining the integrity of the law and improperly puts enforcement responsibility in the hands of customs officials at airports.
Jamie Love, director of Knowledge Ecology International in Washington, D.C., argued that the US government is not being forthcoming enough on what exactly ACTA will do, since it has been more than five months since ACTA was announced and the text still has not been distributed publicly. “I think that’s also not helpful to the overall effort – the transparency issue,” Love said.
Steven Tepp, a policy planning adviser to the US Copyright Office who has been involved in some of the ACTA discussions going on at USTR, said he has been told that the document is subject to “special handling,” as it contains material dealing with other governments. “To the best of my knowledge, that document has not been given to anyone outside the US government,” he said, countering Love’s statement that some drafts have been circulated to “certain lobbying groups.”
A testy exchange erupted when Love asked Tepp – as a representative of the US government privy to some ACTA discussions – if he could meet with him to discuss the measure. Tepp agreed, until Love asked if he could bring other consumer groups and, perhaps, some media with him, so the broader public would know what’s going on.
“Jamie, please don’t manipulate it – you asked me for a meeting,” Tepp said. “I’m very happy to meet with you.”
Countered Love: “What I’m asking for, both from USTR and the Copyright Office, is to open up the process, have a meeting that is truly public.”
Katz then piped in, asking Tepp: “How big is your office? Can other people come? …There are multiple points of view.”
There’s a lot of amazing stuff to unpack here. First of all, Tepp’s assertion that ACTA text has not been distributed to anyone outside the U.S. government seems highly improbable. Consider the following: when you line up the text of the USTR’s ACTA Fact Sheet and the Australian DFAT’s discussion paper and the Canadian government’s Discussion Paper and the European Commission’s Fact Sheet the four documents practically match verbatim. I know these governments talk a lot, but I strongly doubt that such a consistent use of language, examples, and layout is a mistake. Clearly there are texts circulating. It’s only a question of which texts and how much information is being withheld from public scrutiny.
Secondly, the idea that industry lobby groups are not up to their elbows in this process is also blatantly absurd. Tepper emphasized that industry lobby groups do not have access to the latest drafts of the agreement. That may or may not be so. The truth of the matter is that his distinction is a red herring. Take a look at some of the most recent statements about ACTA made by members of the International Trademark Association (INTA) and International Chamber of Commerce (ICC):
“Expectations for ACTA are high. This proposed agreement has the potential to deliver significant improvements in establishing stronger international guidelines and standards, and providing governments with clear directives for action,” said INTA Executive Director, Alan C. Drewsen
“The governments that so far have agreed to engage in negotiating the new agreement have made a commitment to complete the process and we urge them to get started without further delay,” said Bob Wright, Co-Chairman of the ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP) initiative and Vice Chairman and Executive Officer, General Electric. “We recognize the work involved in completing an agreement of this magnitude, and we stand ready to work with the governments involved to move the agreement forward.”
I picked out these quotes from the an April article mentioning ACTA published by the AGIP News Service. What the statements reveal are several business leaders practically tripping over themselves to line up in support of this potential agreement. And the USTR wants us to believe that they only talked about the weather with these guys in their earlier meetings?
The background section of the Australian DFAT’s discussion paper suggests an alternative history: it appears that several industry lobby groups funded events like the 2004 Global Congress to Combat Counterfeiting in order to bring the government trade representatives’ attention to these issues. The question of whether the lobbyists have access to the latest round of emails floating around in the USTR’s office is academic and Tepper probably knows it. The point is that organiations like INTA, the ICC, and BASCAP have participated in ACTA from day one. To suggest otherwise is misleading.
I’ve been doing some additional reading this morning to follow up on my last post about Microsoft’s twisted efforts to shove OOXML through the International Standards Organization (ISO). While we won’t know the outcome of the votes for sure until Wednesday, it looks like the ISO has been captured. There are already a number of interesting resistance strategies brewing.
Glynn Moody has a provocative analysis of the whole situation in Linux Journal. Moody argues that Microsoft’s own reputation may have passed the point of no return, but that these latest actions could have a disastrous effect on the credibility and legitimacy of global standards making bodies:
So what have we got as a result of all these machinations? Well, assuming it’s passed (it’s still not clear, as I write), a standard that is so broken that even if anyone else tried to implement its 6000 pages, they couldn’t. Which is precisely what Microsoft wants: OOXML will be an ISO standard that only one company is able to implement fully. But it’s better than that. Microsoft doesn’t even have to stick with its new “standard”: it can simply change OOXML as it wishes, and submit it again to the ISO for approval as an updated “standard”; meanwhile, it can sell its “new and improved ” OOXML that isn’t exactly a standard, but soon will be, so why worry about the details?
In a sense, that’s what Microsoft has been doing for the last decade anyway, with a de facto rather than de jure standard. So it won’t change much, even if ODF’s progress will be set back somewhat as momentum keeps Microsoft Office in use. But along the way, something terrible has happened: Microsoft has managed to besmirch the entire ISO process, which is now effectively worthless. Microsoft has shown that it knows how to get what it wants there, and will doubtless be applying that knowledge to further “standards” in the future. ISO has turned from being a kind of gold standard, into a worthless rubber stamp wielded at the behest of the rich and ruthless.
Moody goes on to claim that the European Commission has the best chance of firing back at Redmond and advocates some immediate grassroots action:
Leaving aside the intriguing idea that approving two, rival document standards may fall foul of the World Trade Organisation, there is also the interesting prospect of the EU getting interested. Some in Denmark have have already already complained to the EU about OOXML, and a posting from Poland claims that “the European Commission is currently investingating the Polish OOXML standarization process.” And this is on top of an earlier statement from the European Commission that it would be examining “whether Microsoft’s new file format Office Open XML, as implemented in Office, is sufficiently interoperable with competitors’ products.” Microsoft may have won the ISO battle, but it could well end up losing the rather more important war with the European Commission, which has already shown itself deeply unimpressed with Microsoft’s approach to business.
Writing to MEPs (if you’re European) or to Neelie Kroes, the European Commissioner for Competition, (if you’re not) is one obvious action we can all take to press for an independent, transparent inquiry into possible irregularities during the OOXML voting process in Europe.
Excellent idea – I’ll be sending in an email later this afternoon. Meanwhile, I wouldn’t dismiss the possibility of a WTO challenge so quickly. Sure, the Agreement on Technical Barriers to Trade (ATBT) has been used to pry open EU markets for GMO foods and organisms, but that doesn’t mean it couldn’t be turned against a redundant, flawed “standard” like OOXML. Nevertheless, I’m not clear as to how this process could move forwards (even after sifting through pages of the ATBT website) . Would the EC challenge the ISO? Would they challenge Microsoft directly? It’s not totally clear. This lengthy analysis of the ATBT suggests that dispute mechanisms exist, but the structure seems geared towards state-vs-state disputes (much like the WTO Tribunal in general) and I just don’t know how the EC could go about disputing the OOXML standard in this case.
In typical, innovative fashion, Brazilian OOXML opponents have already begun moving on an alternative strategy. Projeto Software Livre reports (in Portuguese) that São Paulo representative Paulo Texeira has introduced a proposal for a federal law accepting the ODF standard. While I’m neither a lawyer, nor an expert on Brazilian regulatory practices, the adoption of such a law could create a legal basis for the domestic rejection of OOXML.
While Brazil’s actions might not have the same financial or political sting of the EC’s, it’s state-led adoption of ODF could become a model for other countries that resent Microsoft’s manipulation of the standards-making process.
Costs rise and World Food Program faces crisis
March 25, 2008
The LA Times runs a story by Tracy Wilkinson examining an impending shortage of global food aid likely to impact the world’s poor over the upcoming year. The UN’s World Food Program anticipates that, due to rising costs, it will lack sufficient funds to meet the needs of millions of people with unstable food supplies around the world. About half way in, the author makes the following direct statement in an attempt to explain the immediate sources of the crisis:
Food commodities are becoming more expensive because of rising demand in developing countries, natural disasters and climate change, and the shift of millions of tons of grains to the production of biofuels.
This is an admirably direct comment, however, she has left a few key factors out of the picture. The most important of them has to do with the structural relations of the global political economy:
Over the past thrity years or so, wealthy nation’s agro-subsidies coupled with the manipulation of commodity futures markets by corporate food producers have artificially depressed food commodity prices, thereby undermining productivity in poor countries. Now, at a time when commodity prices are rising, poor farmers and poor countries have been locked out of agricultural production by the subsidized (multinational) competition. As a result, they do not benefit from a business cycle, but instead face life-threatening shortages.
A stable global food supply will not come about through increased donations to the UN alone. It also requires a more fundamental transformation of the practices and rules of global trade.
Australian Government’s discussion paper on ACTA
March 24, 2008
This discussion paper on the proposed “Anti-Counterfeiting Trade Agreement” (ACTA) had been taken down by the new government.
I looked for it last week, but got a 404 error from the server. It appears to have returned.
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