Why Obama Should Change US Trade Policy On Intellectual Property

from the doing-more-harm-than-good dept

For years, we've had serious problems with the way the US government has viewed intellectual property when it comes to trade agreements. In many ways, it's been the exact opposite of its stated plan. We see, time and time, again where a supposed "free trade agreement" is actually about forcing other countries to add protectionist policies more draconian than the US. That's not free trade at all, and just as tariffs and other trade barriers harm the very industries they're supposed to protect, the US's trade policy concerning intellectual property has done great harm to US intellectual property industries. Unfortunately, you rarely see that discussed anywhere.

That's why it's good to see Ed Black, president and CEO of the Computer & Communications Industry Association, writing up an opinion piece for the San Jose Mercury News explaining to President-elect Obama why US trade policy concerning IP needs to change. First, he worries about the widespread reports that Obama has chosen Xavier Becerra to be the new US Trade Representative. In the past, the US Trade Rep has basically acted as a representative of Hollywood at times, and Becerra may be no different... as he's literally the Congressional rep for California's 31st district... which (you guessed it) covers Hollywood. Uh oh. That would be like making a Congressional rep from Detroit in charge of automotive policy in the US. They're less likely to have the nation's overall best interests in mind.

Black then outlines three reasons why the US's insistence on pushing draconian IP laws through trade agreements is a bad idea:
  • It's alienating many of our allies who feel they're being forced to put in place excessively draconian IP laws they don't need or want.
  • It takes away from America's ability to spread our culture internationally. Black notes how bootleg products in Eastern Europe helped contribute to the fall of communism there. By greatly restricting how American content can be used, we actually aid repressive regimes.
  • Finally, and most importantly, these restrictions actually harm the US economy. Black specifically notes how excessive IP legislation that does not allow for fair use (which is what the US is pushing in most countries) actually harms American internet companies, allowing them to get sued for copyright infringement on things that should be fair use. He could actually go much further in how it harms our economy, but at least it's a start.
Unfortunately, given the current expected choice for USTR, the initial reaction is that this is going to be more of the same.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    L'el, Dec 12th, 2008 @ 7:00pm

    Becerra

    My impression was that Becerra has supported access to medicine and related fair trade terms. Let's remember there is more to IP than copyright.

     

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  2.  
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    L'el, Dec 12th, 2008 @ 7:18pm

    Link

    Here's a link to a letter to President Bush co-signed by Becerra regarding the IP provisions in CAFTA: http://www.cptech.org/ip/health/trade/cafta/congress09302004.html

    "We are specifically concerned about the inclusion of intellectual property restrictions in the U.S. bilateral free trade negotiations with developing countries in Latin America, and elsewhere, that would grant five to eight years of exclusivity for brand name pharmaceutical products, even where patent barriers not longer exist. During that time governments would not be able to rely upon clinical test data submitted by the brand name products to grant marketing approval for generic copies, even in situations of urgency... For any patient, five years without access to affordable drugs can be the difference between life and death. The prospect is especially dangerous for those with chronic or high-risk diseases. In the 11 Latin American countries that are our current FTA negotiating partners there are already more than 530,000 documented HIV/AIDS cases and an alarmingly low number of patients with access to treatment."



    I don't know what his copyright views are, but it looks like he will be an improvement over predecessors in the position.

     

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  3.  
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    Anonymous Coward, Dec 12th, 2008 @ 7:56pm

    Merely FYI, the following is an excerpt from Mr. Obama's Technology Plan:

    "Protect American Intellectual Property Abroad: The Motion Picture Association of America estimates that in 2005, more than nine of every 10 DVDs sold in China were illegal copies. The U.S. Trade Representative said 80 percent of all counterfeit products seized at U.S. borders still come from China. Barack Obama and Joe Biden will work to ensure intellectual property is protected in foreign markets, and promote greater cooperation on international standards that allow our technologies to compete everywhere."

     

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  4.  
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    giggity, Dec 12th, 2008 @ 9:35pm

    Obama's turned into a joke. I can't believe I voted for this shit.

     

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  5.  
    identicon
    Kaladhar, Dec 12th, 2008 @ 11:26pm

    the IPR bandwagon

    Your columns are great. People are paying attention to this menace. How long the popularity of a product lasts? You may have some historical/survey data to dig. I would not be surprised that it won't hold popular appeal for more than 4/5 years. Later, it will vanish from the public radar. The IPR crowd want to milk 4/5 year object for much longer. How successful they are milking this..., that is the question.

    Pl. keep up your work which is great service to public domain.

     

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  6.  
    icon
    bikey (profile), Dec 13th, 2008 @ 12:14am

    Re: Becerra

    Yes, there's much more to IP than copyright. There's patent, for example. Patents on seeds and plants, the source of food and drugs. A less than neutral take on IP has no place in the trade policy of a country whose reputation for fairness and compassion, let alone decency, is on the rocks, to put it mildly. Watch The World According to Monsanto, or The Future of Food to find out what IP means for the rest of the world. IP is much more than copyright.

     

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  7.  
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    Ross Nicholson (profile), Dec 13th, 2008 @ 1:44am

    What a crock of ...

    Intellectual property rights must be respected. That isn't draconian, that is civilization. We are a long, long way away and these words will be very old before the truth is ever known. We should represent legitimate property rights, i.e. the original people who come up with all our great ideas that Hollywood and our politicians claim credit for. Star Wars was my idea. So was "Don't ask, don't tell' and I've never seen a cent in royalties.

     

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  8.  
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    Vincent Clement, Dec 13th, 2008 @ 5:25am

    Re: What a crock of ...

    Intellectual property rights must be respected.

    Says who? And why? Patents and copyrights are government-granted monopolies. The term "intellectual property" was created to magically transform an intangible - an idea - into a tangible.

     

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  9.  
    identicon
    Kiba, Dec 13th, 2008 @ 7:32am

    Re: Becerra

    What does supported access to medicine and fair trade mean?

    It sound like a bunch of government regulation and market interference.

    I am sure free trade is not about that.

     

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  10.  
    identicon
    Anonymous Coward, Dec 13th, 2008 @ 7:39am

    Re: Re: What a crock of ...

    The only aspect of intellectual property law (which honestly stated should read "patent, trademark, copyright, unfair competition, and related causes" law, but which was shortened to IP back in the early to mid-80's so that other generally unqualified attorneys could jump on what they perceived as a money-making bandwagon) that actually protects naked ideas is trade secret law, and such law is the province of the states and not the federal government.

    Until about the late 80's patent infringement enforcement through the courts was generally done by patent lawyers well versed in what the law is actually all about. Once general practice litigators determined there was money to be made, there was a significant shift in litigation from the former to the latter, and to a large degree I happen to believe this is a major source of the problem.

     

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  11.  
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    Anonymous Coward, Dec 13th, 2008 @ 8:35am

    shama lama ding dong

    It's looking like the whole idea of "intellectual property" is a sham and will not work in a global economy.

     

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  12.  
    identicon
    Anonymous Coward, Dec 13th, 2008 @ 9:09am

    Re: shama lama ding dong

    Please see TRIPS agreement (required by WTO countries), Berne Convention, Paris Agreement, Madrid Protocol, etc etc. if you think this way.

     

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  13.  
    identicon
    Harold, Dec 13th, 2008 @ 9:12am

    why intellectual property needs to be protected

    If you don't protect intellectual property rights, you remove major incentives for innovation.

    Many goods/services require years and years of research and development before it is "ready for the market," and because of this, the returns gained from the sale of these goods and services belong to those that made that major (and risky) investment, and should for some period of time. If the intellectual property rights are not protected, anyone with reverse engineering ability can recreate those goods/services without that investment...so why would anyone want to make the major investment if their returns are no different than all of the other producers who copy it?

    This is especially tricky in respect to drugs (i.e. those for AIDS and tropical diseases), if people really need the drugs, shouldn't we get the drugs to them as quickly/cheaply as possible? On the other hand, if there is no incentive to innovate, would we have the drugs in the first place?

     

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  14.  
    identicon
    Andres, Dec 13th, 2008 @ 9:35am

    Re: Re: What a crock of ...

    Says the people who actually work hard to come up with an idea. Intellectual property became tangible to help those who actually do work in this country, from being robbed by those who sit on their *** and steal those great ideas. This tangible object is what lets people go from zeros to something in their lives, rather then a big company come steal your idea make it their own and create the very monopoly because you don't have the rights to protect yourself because your stuck with little money to startup anything.

     

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  15.  
    identicon
    Anonymous Coward, Dec 13th, 2008 @ 10:03am

    Re: Re: shama lama ding dong

    "Please see TRIPS agreement (required by WTO countries), Berne Convention, Paris Agreement, Madrid Protocol, etc etc. if you think this way."

    Apparently this "agreement" is not world wide and therefore previous statement holds true.
    What will the IP owners do about it ? Invade ?

     

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  16.  
    identicon
    Anonymous Coward, Dec 13th, 2008 @ 12:04pm

    Re: Re: Re: shama lama ding dong

    "Apparently this "agreement" is not world wide and therefore previous statement holds true.
    What will the IP owners do about it ? Invade ?"

    Nothing is "worldwide" in IP protection, but that doesn't make IP a sham. If an undeveloped country progresses toward developing, and is considering the WTO, membership requires some IP protections set out in TRIPS. If an underdeveloped nation is total mess they have bigger things than IP rights to worry about. But for the big boys, there are SOME protections already in place.

    Yes, we invade everyone and force them to pay for their bootleg Beyonce CD's. They can pay in goats.

     

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  17.  
    icon
    mike42 (profile), Dec 13th, 2008 @ 3:27pm

    Re: why intellectual property needs to be protected

    Harold-
    Almost this entire site is devoted to showing you reasons why what you just wrote is a total illusion. People buy innovative products-that's your reason to innovate. Being first to market gives you a considerable advantage, even if you're only first by a month. And if patents were so great for innovation, why has R&D spending remained flat in the US for the past 50 years?

    Try reading the site and gathering some data before you post such naive opinions.

     

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  18.  
    identicon
    Dick, Dec 14th, 2008 @ 1:20pm

    Ed Black

    So basically, Black is saying that strict IP laws support communism. Now if we can only get some 'save the children' message, there might be a chance for something to change.

     

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  19.  
    icon
    Mike (profile), Dec 14th, 2008 @ 6:24pm

    Re: why intellectual property needs to be protected

    If you don't protect intellectual property rights, you remove major incentives for innovation.

    The evidence actually suggests the opposite. Whenever IP laws are strengthened, innovation decreases. And, in every study we've seen comparing countries without IP laws at the same time with neighboring countries with IP laws there is NO indication that those with IP laws have more innovation. In fact, the freedom in the non-IP countries often leads to greater innovation.

    So, please don't repeat these myths.

    Many goods/services require years and years of research and development before it is "ready for the market," and because of this, the returns gained from the sale of these goods and services belong to those that made that major (and risky) investment, and should for some period of time.

    You are making a claim that need not be true. Why should you guarantee the profits to one party -- especially if that party does not do a very good job bringing the product to market?

    What if someone else can do a better job? If it really takes so long for one company to get a product "ready for the market" then, no, it won't be easy for someone to just step in and replicate.

    If the intellectual property rights are not protected, anyone with reverse engineering ability can recreate those goods/services without that investment...so why would anyone want to make the major investment if their returns are no different than all of the other producers who copy it?

    You clearly have not read the research on this. There are plenty of incentives and it happens all the time.

    This is especially tricky in respect to drugs (i.e. those for AIDS and tropical diseases), if people really need the drugs, shouldn't we get the drugs to them as quickly/cheaply as possible? On the other hand, if there is no incentive to innovate, would we have the drugs in the first place?

    The pharma industry is an interesting one, but you are wrong. Many countries did not allow patents are pharma for years, but still had a thriving pharma industry. At the same time, the patent system has created screwed up incentives for the pharma system, such that it is less about helping people, and much more about retaining a monopoly, often based on research that was publicly funded.

     

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  20.  
    identicon
    TWBurger, Dec 14th, 2008 @ 6:41pm

    China's Pirating

    The reason for China (and Quebec to a lesser degree) being the prime source of illegal copies is because no legal copies are allowed into China, the culture laws forbid it.

    The MPA always uses this as an argument to add more IP laws which are really used against US citizens, not China's, where the laws are rarely enforced.

    The MPA will never acknowledge that no US movies (and music) are sold legally in China because it can not be by Chinese law. American influence only spreads through these illegal copies.

     

    reply to this | link to this | view in thread ]


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