Alan Story makes many good points in this IP-Watch article, including the way he questions the fundamental purpose and consequences of existing copyright laws. I'm not sure, however, that the term "balance" is something to be consistently avoided in policy debates. There are real tensions between the interests of producers of knowledge goods and the users of those goods, and while no single term seems to provide the right context or message for every instance, terms like fairness or balance sometimes fit.
USTR is part of the White House. There are other parts too. In the inter-agency review, USPTO, Library of Congress Copyright Office, Department of Commerce and many other agencies participate, as well as other parts of the WH. Stan McCoy is strong personality, and he pushes, hard, for certain things. There is not that much push back from other non-USTR actors in the review process. Well, at one point, in ACTA, other agencies insisted that USTR push the EU harder to remove patents from the civil enforcement provisions, and that happened. This was partly due to the provisions in the Health Reform Legislation that eliminate injunctions and limited damages for certain patent infringements, plus things like the limits on remedies for infringements by doctors. But USTR has put even worst provisions into the TPPA, without much pushback from the same agencies that wanted patents out of ACTA.
Krista Cox and I have a note on the inconsistencies between US laws and the ACTA provisions on injunctions and damages. http://keionline.org/node/1289 I think this is directly relevant to the use of the executive agreement. But, will this matter right now, in the current political environment? There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.
This is a question for Michael. In your blog, you say "I think it just replaces one market-distorting government subsidy setup with a different one." Given that drug development costs money, and we are now using a combination of direct funding and incentives (with the incentive mechanisms typically costing an order of magnitude more than the direct funding), what mechanisms do you think should be used to raise the money for R&D?
The prize fund eliminates all IPR monopolies on the products receiving the "end product" prizes. The open source dividend is designed to share the prize money not only with the entity that developed the product, but with people who openly shared, without royalties, the knowledge, data, materials and technology that were considered use in the R&D effort. The open source dividend is an incentive that works in the opposite direction as the Bahy-Dole Act. It rewards the decision to open source research, and it changes incentives to be open.
Dear Anonymous Coward. Are you claim that the following passage from the ACTA article on damages is consistent with all US laws?
"In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price."
Are you claiming that all US statutes are consistent with this provision in the ACTA on injunctions?
"1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities shall have the authority to issue an order against a party to desist from an infringement, and inter alia,an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent infringing goods from entering into the channels of commerce.
Are you claiming that both provisions are consistent with the proposed orphan works legislation?
Or, do you prefer to make vague assertions without getting into the specifics?
I'm reading the CRS report now. As we have indicated before, we did ask Senator Wyden's office for the CRS report, as did MSF, and others, on multiple occasions. The redacted sections deal with patent issues that were resolved by the decision to eliminate the mandate that patents be addressed in the civil enforcement section. CRS explores whether or not a number of the inconsistencies on the copyright side can be justified by sovereign immunity, or by an implied understanding that ACTA members can just make exceptions to the obligations in some areas. In the case of orphan works, it seems clear from the CRS report that the legislation that has been considered in this area is inconsistent with ACTA.
In your link to Steve Tepp, he was appearing on the panel representing the copyright office. In the Spring of 2010, Tepp frequently said ACTA would was consistent with US law, and with the proposed legislation to deal with Orphan Works. Shortly thereafter, in July of 2010, Tepp took a as "senior director of Internet Counterfeiting and Piracy for the Global Intellectual Property Center (GIPC) at the U.S. Chamber of Commerce. http://www.theglobalipcenter.com/staffmembers/steve-tepp
I don't recall saying that ACTA would be legally binding on a future Congress, if it is not considered a legally binding agreement. Getting USTR to say, on the record, that they don't consider ACTA a legally binding norm, as regards future legislation, is helpful. Certainly other countries have a different understanding, and that is why Kirk's statement may be significant. As regards current laws, we have identified a number of US statutes that are not in compliance with the ACTA provisions on injunctions and damages. About 90 percent of the objections we raised in Spring of 2010 were actually fixed from August to November of 2010. But some remaining inconsistencies exist. You could read the letter we sent to the Library of Congress (http://keionline.org/node/1021), and react to the actual examples, before dismissing this. (We have been pretty specific). Will the US actually change these laws? Probably not. What exactly does that mean? That ACTA has an understanding of "implied exceptions," as has been informally claimed by USTR? That ACTA is not actually enforceable? That ACTA was only intended as a stick to be used against developing countries, but never domestically? All of the above?
But in terms of future legislation, you sould pay a lot of attention to the Orphan works issue. ACTA norms are in direct conflict with the damages section of the orphan works bill that earlier passed the Senate.(http://www.keionline.org/node/980) And, the ACTA norms are now included in the US proposal for the IPR chapter of the TPP trade agreement, that will have dispute resolution procedures.
For more context, consider that the report would not have existed if Senator Wyden did not request it from CRS. And, USTR was given the report at a time when USTR was evaluating last minute changes in the agreement, or the content of a possible signing statement. As chair of a Senate subcommittee on trade, Senator Wyden works closely with the USTR. I would be looking now at USTR to release the report. If USTR claims they don't have permission to release the report, and if that is not true, then someone at USTR is lying, or not making much an effort to sort things out.
CRS will not release these type of studies to the public unless a Member of Congress gives the Ok. Senator Wyden has given the report to the USTR, we believe without any restrictions regarding USTR releasing it to the public. Senator Wyden's office has not released the report to the public. Whether or not USTR can refuse the release the document will depend upon a legal determination of the control it has of the record. As the appeal notes, the mere fact that something comes from the Congress does not exempt it from FOIA. We have done everything we can, including contacting the office of the Senator, to receive and disseminate the report. We expect the report will be informative, but we will not know the conclusions the report has reached, until we see it. If this case ends up before a judge, it will have broader ramifications for FOIA law. In any case, USTR, which is part of the White House, is clearly disregarding the memo on transparency that Obama issued on his first day in office. On a more general issue, Senator Wyden has pushed for transparency of the ACTA negotiations, I think more than any other member of Congress. That says something very good about Senator Wyden, and also something negative about the other members of congress, from both parties.
The World Blind Union wants a minimum standard of exceptions, and some harmonization of exceptions, and an agreement on the cross border uses of those exceptions, in order to share accessible works across borders, and not require duplication of effort. Right now there is both enormous waste and huge disparities of access to accessible works depending upon where you live. The treaty would improve all of these things without requiring new taxpayer outlays.
USTR does not want to say the agreement is binding because they don't want to submit the agreement to the Congress for review. DG-Trade does not want to acknowledge that the US only sees this as a political document, and will not change its laws. But at the end of the day, it will change global norms. We regret the Obama Administration is insisting on such a sleazy approach to global norm setting. I expected something better from these guys.
The NIH has denied the petitioners the right to hearing. The patent holders obviously made a private case against the initial petition to the NIH, and the NIH has taken their side against the petitioners, but without the benefit of a hearing, or further opportunities for the petitioners to respond to the patent holder's objections to the march-in request. I previously was involved in the only NIH march-in case involving a drug to go to a hearing. It was the 2004 ritonavir case. In that case, Abbott made several concessions on the pricing of ritonavir, for about 75 percent of AIDS patients, in order to avoid the march-in. The Faby's patents have serious concerns, and they are well represented by Allen Black. They think they are better off if the NIH will act on the patent. I don't see how the NIH can justify not giving them an opportunity to make their case in a public hearing, and to present evidence as to how the remedy they seek will address the concerns they have about current and future shortages of Fabrazyme. There is more context on this case here: http://www.keionline.org/fabrazyme
Substance and language
Alan Story makes many good points in this IP-Watch article, including the way he questions the fundamental purpose and consequences of existing copyright laws. I'm not sure, however, that the term "balance" is something to be consistently avoided in policy debates. There are real tensions between the interests of producers of knowledge goods and the users of those goods, and while no single term seems to provide the right context or message for every instance, terms like fairness or balance sometimes fit.
Re: Re: Consistency with US law
USTR is part of the White House. There are other parts too. In the inter-agency review, USPTO, Library of Congress Copyright Office, Department of Commerce and many other agencies participate, as well as other parts of the WH. Stan McCoy is strong personality, and he pushes, hard, for certain things. There is not that much push back from other non-USTR actors in the review process. Well, at one point, in ACTA, other agencies insisted that USTR push the EU harder to remove patents from the civil enforcement provisions, and that happened. This was partly due to the provisions in the Health Reform Legislation that eliminate injunctions and limited damages for certain patent infringements, plus things like the limits on remedies for infringements by doctors. But USTR has put even worst provisions into the TPPA, without much pushback from the same agencies that wanted patents out of ACTA.
Consistency with US law
Krista Cox and I have a note on the inconsistencies between US laws and the ACTA provisions on injunctions and damages. http://keionline.org/node/1289 I think this is directly relevant to the use of the executive agreement. But, will this matter right now, in the current political environment? There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.
Question for Michael Masnick
This is a question for Michael. In your blog, you say "I think it just replaces one market-distorting government subsidy setup with a different one." Given that drug development costs money, and we are now using a combination of direct funding and incentives (with the incentive mechanisms typically costing an order of magnitude more than the direct funding), what mechanisms do you think should be used to raise the money for R&D?
the open source dividend
The prize fund eliminates all IPR monopolies on the products receiving the "end product" prizes. The open source dividend is designed to share the prize money not only with the entity that developed the product, but with people who openly shared, without royalties, the knowledge, data, materials and technology that were considered use in the R&D effort. The open source dividend is an incentive that works in the opposite direction as the Bahy-Dole Act. It rewards the decision to open source research, and it changes incentives to be open.
Re: Re: Re:
Dear Anonymous Coward. Are you claim that the following passage from the ACTA article on damages is consistent with all US laws?
Are you claiming that all US statutes are consistent with this provision in the ACTA on injunctions?
Are you claiming that both provisions are consistent with the proposed orphan works legislation?
Or, do you prefer to make vague assertions without getting into the specifics?
The CRS report
I'm reading the CRS report now. As we have indicated before, we did ask Senator Wyden's office for the CRS report, as did MSF, and others, on multiple occasions. The redacted sections deal with patent issues that were resolved by the decision to eliminate the mandate that patents be addressed in the civil enforcement section. CRS explores whether or not a number of the inconsistencies on the copyright side can be justified by sovereign immunity, or by an implied understanding that ACTA members can just make exceptions to the obligations in some areas. In the case of orphan works, it seems clear from the CRS report that the legislation that has been considered in this area is inconsistent with ACTA.
Re: Re: Re: Re: Hmmm...
We have info on TPP here:
http://keionline.org/tpp
http://www.keionline.org/node/1091
and
http://keionline.org/node/1099
Steve Tepp
In your link to Steve Tepp, he was appearing on the panel representing the copyright office. In the Spring of 2010, Tepp frequently said ACTA would was consistent with US law, and with the proposed legislation to deal with Orphan Works. Shortly thereafter, in July of 2010, Tepp took a as "senior director of Internet Counterfeiting and Piracy for the Global Intellectual Property Center (GIPC) at the U.S. Chamber of Commerce. http://www.theglobalipcenter.com/staffmembers/steve-tepp
Re: Re: Hmmm...
I don't recall saying that ACTA would be legally binding on a future Congress, if it is not considered a legally binding agreement. Getting USTR to say, on the record, that they don't consider ACTA a legally binding norm, as regards future legislation, is helpful. Certainly other countries have a different understanding, and that is why Kirk's statement may be significant. As regards current laws, we have identified a number of US statutes that are not in compliance with the ACTA provisions on injunctions and damages. About 90 percent of the objections we raised in Spring of 2010 were actually fixed from August to November of 2010. But some remaining inconsistencies exist. You could read the letter we sent to the Library of Congress (http://keionline.org/node/1021), and react to the actual examples, before dismissing this. (We have been pretty specific). Will the US actually change these laws? Probably not. What exactly does that mean? That ACTA has an understanding of "implied exceptions," as has been informally claimed by USTR? That ACTA is not actually enforceable? That ACTA was only intended as a stick to be used against developing countries, but never domestically? All of the above?
But in terms of future legislation, you sould pay a lot of attention to the Orphan works issue. ACTA norms are in direct conflict with the damages section of the orphan works bill that earlier passed the Senate.(http://www.keionline.org/node/980) And, the ACTA norms are now included in the US proposal for the IPR chapter of the TPP trade agreement, that will have dispute resolution procedures.
Overall, you might also ask why USTR won't release the CSR report on ACTA. http://keionline.org/node/1116
Inconsistencies with US law
Which of the inconsistencies pointed out in this letter do you think are not really inconsistent?
http://keionline.org/node/1021
And, why don't you think ACTA is inconsistent with proposed legislation to limit remedies for orphaned copyrighted works?
http://www.keionline.org/node/980
It's not the same report
The March 12th report is similar to another much older report, and it is not that useful. The FOIA concerns something quite different.
The March 12 CRS report
The March 12 CRS report is probably not the same one, since it was done several months ago. But I would love to see a copy. james.love@keionline.org
Re: Re:
For more context, consider that the report would not have existed if Senator Wyden did not request it from CRS. And, USTR was given the report at a time when USTR was evaluating last minute changes in the agreement, or the content of a possible signing statement. As chair of a Senate subcommittee on trade, Senator Wyden works closely with the USTR. I would be looking now at USTR to release the report. If USTR claims they don't have permission to release the report, and if that is not true, then someone at USTR is lying, or not making much an effort to sort things out.
The CRS ACTA report FOIA
CRS will not release these type of studies to the public unless a Member of Congress gives the Ok. Senator Wyden has given the report to the USTR, we believe without any restrictions regarding USTR releasing it to the public. Senator Wyden's office has not released the report to the public. Whether or not USTR can refuse the release the document will depend upon a legal determination of the control it has of the record. As the appeal notes, the mere fact that something comes from the Congress does not exempt it from FOIA. We have done everything we can, including contacting the office of the Senator, to receive and disseminate the report. We expect the report will be informative, but we will not know the conclusions the report has reached, until we see it. If this case ends up before a judge, it will have broader ramifications for FOIA law. In any case, USTR, which is part of the White House, is clearly disregarding the memo on transparency that Obama issued on his first day in office. On a more general issue, Senator Wyden has pushed for transparency of the ACTA negotiations, I think more than any other member of Congress. That says something very good about Senator Wyden, and also something negative about the other members of congress, from both parties.
Why a treaty is needed
The World Blind Union wants a minimum standard of exceptions, and some harmonization of exceptions, and an agreement on the cross border uses of those exceptions, in order to share accessible works across borders, and not require duplication of effort. Right now there is both enormous waste and huge disparities of access to accessible works depending upon where you live. The treaty would improve all of these things without requiring new taxpayer outlays.
Legally binding or not, it sets global norms
USTR does not want to say the agreement is binding because they don't want to submit the agreement to the Congress for review. DG-Trade does not want to acknowledge that the US only sees this as a political document, and will not change its laws. But at the end of the day, it will change global norms. We regret the Obama Administration is insisting on such a sleazy approach to global norm setting. I expected something better from these guys.
Sometimes
I would cut Assange some slack on the "conspiratorial bent" issue.
The NIH decision
The NIH has denied the petitioners the right to hearing. The patent holders obviously made a private case against the initial petition to the NIH, and the NIH has taken their side against the petitioners, but without the benefit of a hearing, or further opportunities for the petitioners to respond to the patent holder's objections to the march-in request. I previously was involved in the only NIH march-in case involving a drug to go to a hearing. It was the 2004 ritonavir case. In that case, Abbott made several concessions on the pricing of ritonavir, for about 75 percent of AIDS patients, in order to avoid the march-in. The Faby's patents have serious concerns, and they are well represented by Allen Black. They think they are better off if the NIH will act on the patent. I don't see how the NIH can justify not giving them an opportunity to make their case in a public hearing, and to present evidence as to how the remedy they seek will address the concerns they have about current and future shortages of Fabrazyme. There is more context on this case here: http://www.keionline.org/fabrazyme
Finding the "right" fora
The publishers push every fora to advance their agenda. They make asks of everyone.