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Free Trade, Fair Trade, and the Fakes

For two decades, the United States and its trading partners have pursued free trade agreements aimed at reducing tariffs, opening borders to commerce, expanding trade, and addressing impediments or non-tariff barriers to trade.  Critics of these agreements protest the failure to use these negotiated agreements to address "fair trade" -- an umbrella reference to labor policy, job losses, environmental policy, product safety, and immigration issues.  A recent online debate on the Council on Foreign Relations website highlights that this controversy will likely be on the agenda for our next Administration to address. 

There is one policy area, however, where free trade and fair trade have found a common ground:  the fight against fakes.  Each of the free trade agreements contains provisions relating to intellectual property rights (IPR) and the protection and enforcement of IPR.  While there is some slight variation in the specific IPR provisions of these free trade agreements, the general thrust has been fill some of the deficiencies in the WTO's IPR enforcement standards and the TRIPS agreement provisions.  

Last October, the US Trade Representative announced a new initiative with the European Union, Japan, Korea, New Zealand, Switzerland, Canada and Mexico to negotiate an Anti-Counterfeiting Trade Agreement (ACTA). Now Austrailia has agreed to join the ACTA negotiations.  The goal, the USTR's office said, is to "set a new, higher benchmark for enforcement that countries can join on a voluntary basis."  No mention is made of "how high" over what "benchmark."  Our aim should be high.  USTR should encourage these countries to recognize the IPR enforcement provisions in the Oman Free Trade  Agreement as an example where countries mutually recognize the importance of a strong IPR enforcement regime is important for the protection of the public, and to look beyond that.  The ACTA agreement should ensure that border control officials are empowered to stop illegal products at the border and clothed with ex officio authority to enforce IPR laws; the judiciary should be required to seize and destroy illegal goods at the request of the IPR owner; there should be enhanced penalties when the health and safety of the public is threatened by the distribution of counterfeit products; a permanent framework for sharing of information relating to counterfeit products and cooperation among law enforcement authorities and IPR owners; and the liability of third parties such landlords and internet traders who are not mere innocents in the promotion of trade in these illegal products are just some of the topics that need to be addressed.  The USTR has recently invited public comment on specific subjects to be addressed by this Agreement. In the words of the USTR's office, the goal is to provide "leadership in the fight against IPR counterfeiting and piracy" among "governments committed to strong IPR protection."  This group cannot afford to reach an agreement that is merely a step above TRIPS. 


Posted 02-20-2008 10:19 AM by Silcox, Clark
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Comments

Ramsey wrote re: Free Trade, Fair Trade, and the Fakes
on 05-28-2008 12:51 AM

My comments are restricted to the dvd cd issues that already under DCMA cause continuing and mounting headaches for those legally purchasing dvd or cd materials.

The details that are leaking out about this Agreement are extremely onerous, the Canadian proposals effectively allow border guards(not exactly the most skilled in IP law) to sieze- and even destroy- laptops, ipod mobile phones etc in an arbitrary and unappealable manner whether or not anything is actually in violation of the ever expanding conditions imposed on what were once purchased legal licences to play.... even insertion into Memory to play has been argued as copyrigth violation- of ones own cds!

This unpublicised move has already clinched my tentataive policy of stopping buying cds or dvds, I dont download illegal copies anyway as i prefer (preferred) to buy them:

Now the the risks (due soley to arbitrary judgement as they will b empowered to do) to my laptop etc being destroyed by some uniformed guard are far too high a price to pay for taking my own dvd /cds on an image on my machine for my (few) idle moments on RTW trips.. one can of course NEVER buy dvds for the region one visits due to the dvd dive locking polices of the entertainment industry, so of course i dont.

For exampls, making a disc image of one of ones own DVDs or indeed CDs -to play on a long flight is legal in the US, but not in some other countries named above.placing my valubale laptop at extreme risk under the policies being debated, for entirely legal bevaiour.  

Fortunately (for me) the region locking process has already stopped my buying dvds that i can play in almost all of the countries I work in other than my own, and so I have lost the habit of buying or watching dvds on my laptop on my frequent long distance travel...

In fact other entertainments have taken their place (much reading- try the economist new scientist etc as a replacement for buying headaches with the ever increasingly paying-customer-hostile  entertainment "industry")

So unless fair copying (of ones OWN dvds etc ) is properly coordinated with the US doctrine for ALL border crossings, and is made a clear and unambiguous part of any such agreement, then it will be a self defeating policy, cutting sales and interest... certainly sicnce the dvd regionalisation locking  destroyed one of my expensive laptops for playing anything but the country it stopped in (USA) I have lost the habit of bothering to either buy or play dvds on it at all..

At some point the rights of customers to be able to play their own purchased licences MUSt be strengthened, and soon.

We are really sick and tired of being threatened at every turn by the entertainment industry- for having the temerity to actually want to PLAy what we buy!

As i said, fortunately I have rather lost interest and returned to reading, and it looks like that will be the course followed by more and more of us as our critical business tools become vulnerable to destruction by a casual border guard!

I observe with interest the growing refusal of those who do download music, to purchase DRM corrupted music

As my collections of LPS goes back to the 1950's, I am only too well aware of the total loss of anything purchased with DRM, as the technologies change and you have lost your ability to play..

I emphasise again., at some point the entertainment industry must stop being the enemy of its customers - or they wont have any. they have certainly lost me.

THIS time the negotiations need to put some of the rights of the paying customer into full effect. And not just introduce yet more problems for paying customers... which looks like being well in train.

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