November 26, 2003

An FTAA Call to Arms [12:03 pm]

Recall that I cited a NYTimes op-ed on the FTAA negotiations a couple of days ago. IP Justice is circulating a rather inflammatory report on the recent meeting, entitled IP Justice Report from the FTAA Trade Ministerial Meeting in Miami. The story they tell is particularly distressing. I am in no way an expert on this treaty, but it’s clear that there’s some homework to be done here to see just how far the treaty goes:

The intellectual property rights chapter proposes that all signatory countries must adopt four different World Intellectual Property Organization (WIPO) agreements whose drafting is not finished and 2 WIPO Treaties whose drafting has not even been started yet (broadcasting and database protections). Many Southern countries have intentionally steered away from signing onto WIPO Treaties, which they view as stifling their development and ability to compete with the US in important technology sectors.

FTAA’s IPR chapter expands the subject matter of intellectual property rights, creates new forms of intellectual property rights, and eliminates exceptions and flexibilities to these rights. The chapter also contains significantly stronger enforcement measures such as criminalizing non-commercial copyright and patent infringements.

[...] One of the most controversial sections of the IPR chapter requires countries to outlaw the circumvention of technological restrictions. Similarly to US Digital Millennium Copyright Act (DMCA), FTAA would require all other countries to outlaw the bypassing of technological restrictions controlling copyrighted works, such as DVDs, CDs, and eBooks. It would also forbid anyone from helping another to bypass these controls, including outlawing tools, software, and technical information. One proposed FTAA clause contains an explicit basis against the development of free and open source software development by creating greater liability for those programmers than for proprietary programmers who write software capable of bypassing digital controls. These anti-circumvention measures have been widely used in the US to threaten freedom of expression and chill scientific research in the critical field of information security. Anti-circumvention laws have also served to prevent competition for after-market replacement parts and interoperability between systems. [emphasis added]

The treaty’s section on the enforcement of intellectual property rights proposes to criminalize non-commercial infringements, such as peer-2-peer (P2P) file-sharing. Another proposal would expand the scope of copyright to permit the copyrighting of facts and scientific data. The IP Justice White Paper “FTAA: A Threat to Freedom and Free Trade” discusses the IPR chapter’s dangers in greater detail.

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