Tag Archives: ip

ACTA Draft Treaty

It seems that the “near final” draft released a few days ago has been watered down a lot from ear­lier leaked drafts. Expec­ta­tions man­age­ment? Or actual dis­agree­ments between the par­ties? Since ACTA was an attempt to nego­ti­ate an treaty on enforce­ment of prin­ci­ples cov­ered by the mul­ti­lat­eral frame­work in secret and among a select group […]

Counterfeiting data is phoney

Ottawa Uni­ver­sity Pro­fes­sor of Law, Michael Geist, points to a new U.S. Gov­ern­ment Account­ing Office report that con­cludes the U.S. government—and they might add, other gov­ern­ments nego­ti­at­ing the poi­so­nous ACTA “anti-counterfeiting” treaty —have been invent­ing their esti­mates of losses from global counterfeiting.

Three com­monly cited esti­mates of U.S. indus­try losses due to coun­ter­feit­ing have been sourced to U.S. agen­cies, but can­not be sub­stan­ti­ated or traced back to an under­ly­ing data source or method­ol­ogy. First, a num­ber of indus­try, media, and gov­ern­ment pub­li­ca­tions have cited an FBI esti­mate that U.S. busi­nesses lose $200-$250 bil­lion to coun­ter­feit­ing on an annual basis. This esti­mate was con­tained in a 2002 FBI press release, but FBI offi­cials told us that it has no record of source data or method­ol­ogy for gen­er­at­ing the esti­mate and that it can­not be cor­rob­o­rated.

Sec­ond, a 2002 CBP press release con­tained an esti­mate that U.S. busi­nesses and indus­tries lose $200 bil­lion a year in rev­enue and 750,000 jobs due to coun­ter­feits of mer­chan­dise. How­ever, a CBP offi­cial stated that these fig­ures are of uncer­tain ori­gin, have been dis­cred­ited, and are no longer used by CBP. A March 2009 CBP inter­nal memo was cir­cu­lated to inform staff not to use the fig­ures. How­ever, another entity within DHS con­tin­ues to use them.

Third, the Motor and Equip­ment Man­u­fac­tur­ers Asso­ci­a­tion reported an esti­mate that the U.S. auto­mo­tive parts indus­try has lost $3 bil­lion in sales due to coun­ter­feit goods and attrib­uted the fig­ure to the Fed­eral Trade Com­mis­sion (FTC). The OECD has also ref­er­enced this esti­mate in its report on coun­ter­feit­ing and piracy, cit­ing the asso­ci­a­tion report that is sourced to the FTC. How­ever, when we con­tacted FTC offi­cials to sub­stan­ti­ate the esti­mate, they were unable to locate any record or source of this esti­mate within its reports or archives, and offi­cials could not recall the agency ever devel­op­ing or using this esti­mate. These esti­mates attrib­uted to FBI, CBP, and FTC con­tinue to be ref­er­enced by var­i­ous indus­try and gov­ern­ment sources as evi­dence of the sig­nif­i­cance of the coun­ter­feit­ing and piracy prob­lem to the U.S. econ­omy.” Extract from U.S. Gov­ern­ment Study: Coun­ter­feit­ing and Piracy Data Unre­li­able (empha­sis added)

I argued in my sub­mis­sion to the Aus­tralian gov­ern­ment, oppos­ing their inten­tion to joint the nego­ti­a­tion, that the OECD esti­mate of global losses—mysteriously the same num­ber as that invented by U.S. agencies—was derived by implau­si­ble means and should not be accepted at face value.

Ques­tion: could we say that this GAO report sig­nals an “ACTA-gate” (a data manip­u­la­tion at least as sus­pi­cious as that con­trived by the “Cli­mate­gate” scientists)?

Life in rural China

The website of Xiao Sanliang

This is the most fas­ci­nat­ing and engag­ing writ­ing I’ve seen on the web in a long time.

It’s a trans­la­tion of sev­eral blog posts by a Shang­hai res­i­dent, Xiao San­liang, who returned home to his vil­lage for the Spring Fes­ti­val (Jan­u­ary 26 this year).

Lu Xun said: ‘Dig out your heart, and know its taste.’ This is what I see in my vil­lage. And it makes me sigh.”

Extract from the China Labor Bul­letin’s trans­la­tion of Return­ing home to life in the countryside

It’s hard to know what to praise most: Xiao’s prose style, humor, appar­ent hon­esty, and eye for descrip­tive detail—or the out­stand­ing trans­la­tion by the China Labor Bul­letin.

I won’t try to excerpt; you should read the whole thing your­self. Here’s a selec­tion of the topics:

  • Under-age mar­riage in the village
  • Cre­ma­tion, and how to avoid it
  • The uses of education
  • Rort­ing social-security payments
  • Vil­lagers’ (espe­cially girls’) expec­ta­tion of life
  • Con­fu­cian­ism and vil­lage values
  • The local party (run by a guy nick­named ‘Roly-poly’)
  • Gam­bling and police revenue
  • Land redis­tri­b­u­tion and resumption
  • Eat­ing, drink­ing and coun­ter­feit goods at Spring Festival

You were expect­ing maybe pol­i­tics, or eco­nomic analy­sis? They’re here, too, embed­ded in some mem­o­rable anec­dotes. Here is just one (I can’t resist)

“I always keep two bul­lets on me, one for self-defence, and the other for join­ing the next Cul­tural Rev­o­lu­tion.” These words were spo­ken by a 70-year-old man stand­ing in our door­way on the morn­ing of Spring Fes­ti­val eve…I do not know whether this man has read Marx and Lenin, but he always has Marx­ist phrases on his lips, and seems to know what he is talk­ing about.

“The coun­try­side needs a sec­ond Cul­tural Rev­o­lu­tion, to bring down all these dogs. In terms of Marx­ist mate­ri­al­ism, the trans­for­ma­tion of this soci­ety is already 80 per­cent com­plete.”

I took out my mobile phone, and recorded these insight­ful words.

Summary of the copyright trade agreement

The par­tic­i­pants in the pro­posed Anti-counterfeiting Trade Agree­ment (ACTA)—one of the few pluri­lat­eral (non-regional) trade agree­ments ever nego­ti­ated out­side the mul­ti­lat­eral trade frame­work of GATT and WTO—have lifted the veil of secrecy sur­round­ing their nego­ti­a­tions just a lit­tle by pub­lish­ing a “Sum­mary of key ele­ments under discussion”.

Although appar­ently intended to calm civil-liberties con­cerns, the new ACTA ‘sum­mary’ does not offer any com­fort about e.g. the RIAA’s pro­pos­als to the U.S. gov­ern­ment that would shift the bur­den of enforce­ment of their IP rights onto the tax­payer, includ­ing tax­pay­ers in devel­op­ing countries.

In fact, it con­tains lit­tle more than an expla­na­tion of the chap­ter head­ings in what must be, already, a fairly com­plete draft of the pro­posed ACTA treaty. It pro­vides no details about the con­tent of the pro­vi­sions and leaves a lot of ques­tions still open about the mem­ber­ship, scope and imple­men­ta­tion of the agreement.

A ‘secret’ copyright treaty

In Feb­ru­ary this year, the Aus­tralian gov­ern­ment joined nego­ti­a­tions with a num­ber of other devel­oped economies on a pro­posed ACTA (Anti-Counterfeiting Trade Agree­ment). The “negotiations”—if that’s what they are, they seem more like a draft­ing convention—are being con­ducted behind closed doors in Geneva. There has been lit­tle infor­ma­tion from the Aus­tralian gov­ern­ment on the ben­e­fits for Aus­tralia of an ACTA or on its poten­tial pro­vi­sions other than this back­ground paper on the web­site of the Depart­ment of For­eign Affairs and Trade (DFAT). Nor has any infor­ma­tion been offered on sub­mis­sions that Aus­tralia might have made to the parties.

I think the process of cre­at­ing this treaty is likely to be harm­ful to the inter­na­tional trad­ing sys­tem. As to it’s content—who knows? Spec­u­la­tion tends to plau­si­ble sug­ges­tions of intru­sive, expen­sive, over­bear­ing enforce­ment. The ratio­nale for the treaty, how­ever, is implau­si­ble (see below). There is every rea­son to think that the ACTA pro­posal is being dri­ven by copy­right zealots who have no inter­est in the pub­lic inter­est bal­ance that each juris­dic­tion expresses in its copy­right laws. Their pur­suit of global copy­right stan­dards and enforce­ment is likely to be moti­vated by the exces­sive returns that they achieved—or at least, expected—from the WTO’s 1994 TRIPS agreement.

The limits of copyright protection

In a series of posts, Kim Weather­all has illu­mi­nated the impact of the High Court’s deci­sion that Aus­tralia copy­right law—for the present— pro­tects the consumer’s right to access copy­right mate­ri­als acquired in con­tra­ven­tion of the right owner’s attempts to seg­ment the global mar­ket sup­ply (by price dis­crim­i­na­tion). I read this deci­sion, casu­ally, as a confirmation […]