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 […]