Now US And EU Want To Apply Upward Ratchet To TRIPS Itself

from the once-a-maximalist,-always-a-maximalist dept

Here on Techdirt we often talk about the copyright ratchet -- the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there's a group of countries where the copyright ratchet isn't in place yet. These are the so-called LDCs -- the Least Developed Countries -- where many of the world's poorest citizens live. That's because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies:

The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.
And as an article on infojustice.org notes:
Last November the LDCs exercised their legal rights under the TRIPS rules, and submitted a request to the TRIPS Council requesting an unconditional extension of the transition period for as long as a country remains an LDC. The current transition period expires on 1 July 2013.

Article 66.1 of the TRIPS Agreement grants LDCs a renewable exemption from TRIPS obligations. The rationale is that LDCs need maximum flexibility to develop a viable technological base and address their constraints, and that the standard of TRIPS IP protection may be an obstacle in achieving those objectives.
The US and EU routinely insist that countries follow TRIPS to the letter, but it seems they are only too happy to ignore their own obligations when it comes to granting a further exemption to LDCs:
Developed countries, particularly the United States and the European Union, have offered a poor and impractical deal of an incredibly short extension of 5 years with restrictive conditions to least developed countries that are entitled to be exempted from implementing the WTO TRIPS Agreement.

Particularly problematic is their demand that the LDCs agree to a "no-roll-back" clause, a TRIPS plus condition that will prevent LDCs from rolling back (i.e. providing a reduced degree of IP protection) their current laws, even if they adversely impact their development concerns.
"No roll-back" is another way of saying upward ratchet. But the US and EU are trying to haggle over details of an agreement that was finalized and signed back in 1994. As infojustice.org puts it:
The US and EU demand, if agreed to, would actually amount to an amendment to Article 66.1, but without following proper WTO procedures as required by Article X of the WTO Agreement
That is, the US and EU are not only trying to bully smaller countries into accepting unofficial changes to negotiated agreements, in this case to lock LDCs into a system with a built-in ratchet for intellectual monopolies, but they want the upward ratchet to operate on TRIPS itself.

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Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    silverscarcat (profile), May 7th, 2013 @ 1:57am

    Like I said before...

    At the current rate copyright law is going, the only way to fix the current mess might be to just get rid of it completely.

    I mean, if we have to choose between what we have now and absolutely nothing, I'll take no copyright law at all.

     

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  2.  
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    Anonymous Coward, May 7th, 2013 @ 3:01am

    and exactly who has started this bull shit? i bet it dont take a genius to work that out! and who is involved in the EU that will want this bull shit implemented? i hazard a guess at it being the same arse hole that tried to get ACTA voted in in the EU and has also been over to the USA having talks with Hollywood execs! what the fuck is it with these people? dont they realise that there are far more important problems facing the world than whether a studio is getting every last cent from a movie release, while at the same time refusing to pay the very people that starred in that movie and criminalising as many people as possible because they shared that movie with a few others over the internet? Jeez!!

     

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  3. This comment has been flagged by the community. Click here to show it
     
    identicon
    horse with no name, May 7th, 2013 @ 3:52am

    Almost missed this

    Almost missed this post under the paid advertisement post.

    the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger

    Yes, The use of the copyright material has also become longer, wider, and stronger. Your point?

     

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  4.  
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    Anonymous Coward, May 7th, 2013 @ 4:17am

    Re: Almost missed this

    You've come into the conversation late.

    In Eldred, and again in Golan, Justice Ginsburg gave her that Congress has plenary power to fashion the copyright regime, unrestrained by effective review from the judiciary.

    As we look back at the history, and project that history forward into the future, we see that copyright terms are increasing without any limit. The court has written the "limited times" phrase out of the Constitution.

     

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

  5.  
    identicon
    Anonymous Coward, May 7th, 2013 @ 4:41am

    Re: Almost missed this

    "use of the copyright material has also become longer, wider, and stronger."

    And your statement is based upon what, exactly?
    - population increase?
    - quantity increase?
    - piracy increase? (lol)

    Typically when comparing periods in history one makes an attempt to normalize the data before drawing conclusions.

     

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

  6.  
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    Bjorn Rudolfsson, May 7th, 2013 @ 5:06am

    Captain TRIPS?

    Wasn't that the name of the killer-flu in Stephen King's The Stand? Just sayin...

     

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  7.  
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    Anonymous Coward, May 7th, 2013 @ 6:18am

    what a surprise! us and eu trying to prevent other countries from developing economically with copyright. Never mind that this is PEOPLE"S LIVELIHOODS AND VERY LVIES we're talking. about. Copy. Right. fkme.

     

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  8.  
    identicon
    Anonymous Coward, May 7th, 2013 @ 6:38am

    Re:

    I found Information Feudalism to be a nice read on how TRIPS came to be. If you have some time on your hand I suggest reading it

     

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  9.  
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    Anonymous Coward, May 7th, 2013 @ 7:02am

    Re: Re: Almost missed this

    It's likely more advancing technology and the fact that a lot of works would not be created if copyright law was followed.

    As I mentioned before, a lot of my favorite works exist DESPITE copyright and not because of it

     

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  10.  
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    gorehound (profile), May 7th, 2013 @ 8:17am

    Re: Like I said before...

    Me Too ! I so hate our corrupt Government and I so hate Copyright Laws as well as Patent Trolls.

    More Nations need to just give our US Government the two fingered Salute.China will be glad to take them under their wing instead.
    I for one am in such a big hate mode over patents,copyrights, and a corrupt system I guess I will State what I stated.
    Obviously the way the system is here it will only eventually result in us owning very little at all and the rich fraks owning the majority of all things.

     

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  11.  
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    Mike Raffety (profile), May 7th, 2013 @ 10:54am

    LDCs and IP protection limit growth?

    "The rationale is that LDCs need maximum flexibility to develop a viable technological base and address their constraints, and that the standard of TRIPS IP protection may be an obstacle in achieving those objectives."

    Doesn't this itself shoot a big hole in the claim that IP protection is essential to economic growth? If patents and copyright are necessary for growth, it seems like the LDCs would be clamoring to immediately implement the most restrictive laws possible.

     

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  12.  
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    Anonymous Coward, May 7th, 2013 @ 11:12am

    Re: LDCs and IP protection limit growth?

    ... shoot a big hole in the claim that IP protection is essential to economic growth?


    No. It doesn't shoot any holes at all.

    Why? Because the claim is laughable on its face, and unsupported by history. For most of the Nineteenth century (up until 1891) , the United States did not extend copyright protection to foreign works. We developed just fine under this policy.

    Now, it's true that we had oceans on either side of us—that helped a lot—and after the War of 1812, the British weren't too keen on sending another army. Perhaps, in today's changed circumstances, the oligarchies of the imperial nations may be more inclined to impose their diktat upon “pirates”. Getting invaded sorta devastates an emerging economy.

    But, the fact is, the United States was, in a literary way, a “pirate nation” nation during the first century of our development.

    So you're responding to a claim that can't be shot full of holes—it's already a hole—there's no there there.

     

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  13.  
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    bikey, May 8th, 2013 @ 7:26am

    I would be willing to believe it, but your article gives absolutely no notion of how they are doing this and I have seen no reference anywhere else. A hint of how this might be happening would be most welcome.

     

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


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