Techdirt has written many times about the way in which copyright only ever seems to get stronger, and how different jurisdictions point to other examples of excessive copyright to justify making their own just as bad. In Chile, there's an interesting example of that kind of copyright ratchet being applied in the same country but to different domains. It concerns audiovisual works, and aims to give directors, screenwriters and others new rights to "match" those that others enjoy. Techdirt has already written about this bad idea in the context of the Beijing Treaty on Audiovisual Performances. But it turns out that Chile's proposed copyright legislation adds an extra twist that makes it even worse, because these rights will be unwaivable -- an approach we've seen before in Portugal. Here's what that will mean in practice, as explained on infojustice.org by Luis Villarroel, from the Chilean organization Innovarte:

the music composer of a work embedded in any audiovisual work, the writer of the drama, the Director, the camera man, etc, will not be able to waive their rights or license for free through a creative commons license or any other open licenses, or give works to the public domain.

To make it worse, because of the national treatment obligations this bill will also apply to foreign audiovisual works.

According to Villarroel, the legislation is being promoted by the International Confederation of Societies of Authors and Composers -- and by Chilean collecting societies. By an amazing coincidence, the new licensing fees will all be administered by the latter. Villarroel first wrote about this move last year, when the legislation was approved in Chile's House of Representatives. Despite the delay, it is apparently back on the agenda, and will be considered by the Senate, the country's upper house, soon.

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Lo Barnechea is a commune of Chile located in Santiago Province, with a population of about 75,000. Its Mayor, Felipe Guevara, has decided what Lo Barnechea really needs is a massive surveillance system installed in aerostats tethered over the area, as explained by a post on the Derechos Digitales site (original in Spanish.) It's not clear from the article why he chose this unusual approach; perhaps it's because most of his district is mountainous, and that poses problems for conventional surveillance systems. Whatever the reasons, Guevara is smart enough to recognize that powerful mass surveillance systems of the kind he wants to install, which involves cameras able to pick out people from a distance of more than a kilometer away, have a serious problem:

The mayor explains that in a surveillance system implemented in Argentina, the operators started to use the cameras to follow women in the streets.

That might have alerted him to the larger issue here: the fact that there will always be a temptation to abuse such powerful systems. But no, Guevara is undeterred, because he believes he has come up with a way to avoid this issue:

The mayor's unusual solution: to employ women, because "they are less voyeuristic, more discreet" than men."

Or maybe they are so discreet, they just get away with it...

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Net neutrality is a hot topic on both sides of the Atlantic, but it's not only in those regions that governments are trying to formulate policies that will keep the Internet fair and open for innovation. One country at the forefront of this field is Chile, which passed its net neutrality law in 2010. Here's how how Global Voices summarized the legislation:

The reform implies, among other things, that Internet Service Providers will not be able to arbitrarily block, interfere, discriminate, hinder or restrict content, applications or legal services that users perform on their networks.

That's a pretty standard framing for net neutrality, with a prohibition on discrimination -- and that includes positive discrimination. As GigaOM reports, Chile has now taken action against this kind of preferential treatment online:

The Chilean telecommunications regulator Subtel has banned mobile operators from offering so-called zero-rated social media apps -- services like Twitter and Facebook that, through deals with the carriers, can be used without having to pay for mobile data. Subtel says such practices are illegal under Chilean net neutrality law.

That might seem perverse, since it means that Chilean mobile users must now pay to access those services, but it is nonetheless exactly what governments that have mandated net neutrality need to do. That's because providing these services for free makes it much harder for newcomers -- specifically new services from local startups -- to compete with established ones that are provided free. Indeed, it's striking how Facebook, for example, has kept its head down during the net neutrality debates -- doubtless conscious that it has benefitted hugely from these schemes that run counter to net neutrality principles. As Vox wrote recently:

One factor in Facebook's growing global popularlity is Facebook Zero. Under this program, Facebook pays the data charges for users who log into a stripped down version of Facebook from their mobile phones. The program has made Facebook accessible to millions of users who wouldn't otherwise be able to afford it.

That's clearly anti-competitive. But what about this from 2012?

Orange has struck a deal with Wikipedia to make its digital encyclopaedia available free of data charges to millions of mobile phone users across the Middle East and Africa.

Although that breaks net neutrality in the same way as Facebook Zero, Wikipedia sees it as something that should be encouraged:

Sue Gardner, executive director of the Wikimedia Foundation, the non-profit organisation that runs Wikipedia, said: "Wikipedia is an important service, a public good, and so we want people to be able to access it for free, regardless of what device they're using. This partnership with Orange will enable millions of people to read Wikipedia who previously couldn't."

That's certainly true, so perhaps there should be an exception to net neutrality for non-profits. But that would still produce the same tilting of the playing field in favor of one supplier, making it hard for a new rival to Wikipedia, say, to compete. Tricky stuff this net neutrality....

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Last year, the US government was adamant that TPP would be finished by the end of 2013. And yet here we are, well into 2014, with no sign that things are anywhere near completion. That slippage is more than just embarrassing: it could have major implications for the treaty. TPP has dragged on for so long there's a new President in Chile, Michelle Bachelet, and she's more doubtful than her predecessor about the value of TPP to her country and its people.

Those doubts are starting to make themselves felt. In a recent speech (original in Spanish), Bachelet said that she wanted Chile to regain its role as a promoter of Latin American integration. That would represent a turning away from TPP, which is based on the Pacific Rim, and only includes two three other countries from Latin America -- Mexico, Colombia and Peru. In an interview with El Mercurio, Bachelet's new Minister for External Relations, Heraldo Muñoz, echoed this policy shift by emphasizing the importance of improving his country's relations with Brazil and Argentina. He also revealed some of Chile's new thinking on TPP (original in Spanish):

"In my meeting with [USTR] Michael Froman, I expressed Chile's position, which is to examine the content of the [TPP] negotiations with care, and to act transparently. We are going to consult with businesses, with civil society, so that these aren't closed negotiations. In addition, I said to Froman that Chile has sensitive areas where we are not prepared to go beyond the FTA [free trade agreement] with the US. There are areas such as intellectual property, the regulation of state-owned companies, or the Central Bank, which are red lines for us."

The theme of transparency was picked up in another interview, this time with the new director of Chile's Department of International Economic Relations, Andrés Rebolledo, which appeared in La Segunda (original in Spanish):

"We received some criticism (for how the [TPP] negotiations were conducted previously) and it appeared to us that there's an important opening for creating greater transparency with the various stakeholders who are involved and who are interested in the negotiations."

Rebolledo aims to do this by creating a new advisory group, which will include not just business interests, but also NGOs and other civil society groups:

We will establish a dialog with them and we are going to hand over elements of the negotiations -- those which are on the table, and of interest.

For us, as the government, it's beneficial from the perspective that we will obtain inputs that will help us better conduct the negotiations.

For TPP, whose negotiations have been some of the most secretive ever, with almost no real transparency, the plans of Chile's new President are not just a breath of fresh air, they are little short of revolutionary.

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For many years we've wondered why countries bend over backwards to stay in the US's good graces concerning the infamous "Special 301" report, put together by the USTR. The list has no objective methodology at all. Instead, companies send their complaints to the USTR, and the USTR launders rewrites those complaints and puts certain countries on the "naughty" list. Back in 2007, Canada explicitly announced that it did not recognize the legitimacy of the list, by saying:

Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

And we've wondered why other countries do not do the same. When I was in Spain last week, a reporter I spoke to kept asking about the Special 301 list, as it seemed to be such a key concern for people there, and I noted that more countries should do what Canada does. I realize that there are other issues there, and Canada knows that the US isn't likely to create a trade war over the list, but it still seemed odd how seriously some other countries take the list.

That's why it's good to see at least one more country follow Canada's lead. Chile, which is on the "priority watch list," has officially announced that it, too, does not recognize the legitimacy of the list (translated):

The Chilean government said today it does not recognize as a valid instrument rating called "301 list" that makes the United States on violation of intellectual property rights and this year again includes the country in its Priority Watch section .

"This report is conducted outside the margins of the Free Trade Agreement between our country and the U.S., and therefore not recognized by Chile as a valid instrument rating," said a statement released this morning.

The "'301 List' lacks clear criteria for categorizing the different countries, but is rather a reflection of the interests of American industry selectively applying their intellectual property standards to other countries," it added.

Good for Chile to stand up for itself against the list.

Of course, it's no surprise that Chile got put on the list. As we noted last year, the country is actually a pioneer in strongly protecting intermediaries from liability, thus much more strongly protecting internet free expression and innovation. They're also actively encouraging innovation by luring startups to Chile with all sorts of benefits. Basically, Chile is quickly showing itself to be a supporter of innovation, which apparently isn't something the USTR wants to encourage.

As Techdirt reported, the European Commission is conducting a major consultation on the "procedures for notifying and acting on illegal content hosted by online intermediaries" that could radically affect the liability of online service providers in the European Union. Other parts of the world are doubtless examining this area too, and one at least -- Chile -- has already come up with a novel approach.

This emerged as part of a major overhaul of its copyright laws that was required as the result of a bilateral trade agreement with the US. The legislation is wide ranging, including copyright enforcement (sadly, the usual over-the-top stuff, like $100,000 fines for repeat offenders, and allowing retail value to be used for compensation calculations), but a rather enlightened set of copyright exceptions. Here's how a 2010 WIPO article on Chile's new law broke them down:

Acts of reproduction, adaptation, distribution or public communication of works will be considered lawful if done for the benefit of disabled persons where normal access to such works is not available.

Under certain conditions, non-profit libraries and archives may reproduce works that are no longer obtainable in the market. These institutions may also make electronic copies of works from their collections available for study at user terminals.

Reverse engineering activities are allowed on software, but only for compatibility purposes and research and development – or to test, investigate or correct the operation and safety of software.

Satire or parody is considered lawful if it makes an artistic contribution that sets it apart from the work or performance to which it refers.

It is lawful to reproduce or communicate a work to the public in order to comply with judicial, administrative and legislative proceedings.

Chile's comprehensive regulations governing the liability of ISPs, the first in Latin America according to the WIPO magazine, have now been analyzed in detail by the Center for Democracy & Technology, which provides the following summary:

A cornerstone of the US legislation is a private notice-and-takedown system, under which the liability protections of service providers are contingent on those providers complying with rightsholdersʼ formal notices to take down allegedly infringing material. Chileʼs law does not include such a private notice-and-takedown system; instead, a court order is required to compel blocking or removal of infringing content. Due to concern over the protection of Internet users' constitutional rights, the Chilean National Congress rejected several amendments that would have introduced a non-judicial takedown procedure. The law thus strikes a different balance than the DMCA -- one that is arguably more favorable to Internet free expression and innovation -- with implications for rightsholders, intermediaries, and Internet users.

The rest of the short CDT report (pdf) explores in detail the new Chilean law. It's well worth reading in order to appreciate the way the Chilean lawmakers took pains to safeguard free expression and to provide plenty of scope for innovation. Here's one important point that it highlights:

as under the DMCA and the ECD, the liability protection afforded by Chileʼs law is not contingent on service providers monitoring the data they transmit, store, or refer to, nor are service providers required to actively seek out facts or circumstances indicating illegal activities

Let's hope the European Commission takes note of this approach when it draws up its own proposals in the wake of the consultation, and that it requires a similarly active role of the courts in blocking or removing illegal content hosted by online intermediaries.

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You may remember that some officials in Chile recently began wondering what benefit they would get from agreeing to be a part of TPP. It seems that view is going even further. There was just another negotiating round and it appears (as we've expected, but don't know for sure because the US negotiators, led by Ron Kirk refuse to be even remotely transparent) that the US's strong position on IP is scaring off Chile. A high level government official is now saying that the country is considering pulling out of the TPP negotiations unless the US "significantly moderates its intellectual property demands." The article suggests that Chile is willing to move forward with much of the rest of the agreement, but the ridiculous USTR position on IP is giving it reason to be concerned.

What an extraordinary year this has been for Net activism. After the great SOPA blackout led to SOPA and PIPA being withdrawn, and the anti-ACTA street demonstrations triggered a complete rethink by the European Parliament that may well result in a rejection of the treaty, now it seems that the Trans Pacific Partnership is falling to pieces.

Foreign Policy magazine, for example, has a feature entitled Is the Trans-Pacific Partnership Foundering?, where its author explains that a number of the smaller countries participating in the negotiations are starting to ask themselves whether there are any advantages in joining at all:

Of even more concern, however , is the sudden questioning by the Chileans of the value of the deal as presently being constituted. Chile had been considered a slam dunk supporter. So its raising of questions is a red flag danger signal. Beyond that it seems that the Malaysians are also questioning whether any benefits they may be getting are worth the trouble of further liberalization of their domestic economy. And just to put the icing on the cake, it is becoming ever clearer that the Vietnamese, whose economy resembles that of China with large segments controlled by state owned companies, are going to have great difficulty in actually meeting the high standards being proposed.

As Techdirt has reported, TPP has been negotiated in the utmost secrecy, but now that word is finally leaking out about its provisions, there is resistance building in the US:

Although the deal, known as the Trans-Pacific Partnership, has received relatively little media attention in the United States, it has sparked international friction among consumer groups and environmental activists who worry that terms demanded by the Obama administration will eliminate important public protections. Domestically, however, the deal's primary source of political tension is from a portion that could ban "Buy American" provisions -- a restriction that opponents emphasize would crimp U.S. jobs.

That seems like a pretty significant issue. After all, one of the supposed aims of the trade agreement is to remove such internal barriers to trade for all signatories. But in an election year, President Obama will hardly want to be painted as someone who is sacrificing American jobs.

Even assuming this major contradiction is resolved somehow, and the other Pacific Rim countries don't decide to abandon the treaty altogether, TPP is still fundamentally flawed for the same reason that ACTA is flawed: China is not a signatory. And the idea that once TPP (or ACTA) is in place, China will suddenly rush to sign up is extremely unlikely, for reasons that Arvind Subramanian, an expert in Chinese economic policy, explains:

"China would never agree to just fall in line with rules in the negotiations of which it has not participated," he writes in a policy brief.

If China did agree to participate in the talks, it would have huge bargaining leverage. Better to have multilateral talks where China’s power is diluted by the addition of Brazil, Europe, India and others to the talks.

A third possibility is that China comes to view the TPP as a hostile effort to "encircle" China economically. "TPP could thus provoke China into playing the regionalism game in a way that could fundamentally fragment the trading system," he writes.

However you look at it, TPP seems to be in serious trouble. Coupled with the withdrawal of SOPA, and the possible rejection of ACTA, this represents a string of setbacks for copyright and patent maximalism that a year ago would have seemed impossible.

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It looks like some of the countries negotiating the awful and secretive TPP agreement are beginning to realize that perhaps they're better off not giving in to whatever protectionist policies the US is about to push on them. Officials in Chile are apparently starting to realize that perhaps they're better off without the TPP altogether:

At a PIJIP-hosted seminar on intellectual property and the Trans-Pacific Partnership Agreement (TPP) last week, present and former Chilean trade officials questioned whether joining the TPP would be worth its costs if it included additional demands on intellectual property.

The officials voicing this concern included Senator Ricardo Lagos, son of the former president of Chile and lead of the negotiation of the US-Chile free trade agreement (FTA) as the head of the Foreign Ministry’s Department of Trade Policy under President Michelle Bachelet; Alvaro DÃíaz, of CEPAL, the former Ambassador of Chile to Brazil and a senior official in the Foreign Ministry’s Department of Trade Policy at the time of the US-Chile FTA negotiation; and Ana Novik, a current senior official in DIRECON (the Ministry of Foreign Relations) overseeing the current TPP negotiations.

Each of the presenters explained that Chile already has market access agreements with every country in the TPP region, and therefore the trade benefits of joining TPP are likely to be minimal. Each therefore questioned whether the costs of joining TPP, especially in terms of any presumed increased obligations to expand proprietor rights in intellectual property law demanded by the U.S., would be worth incurring.

Apparently the session consisted of multiple Chilean experts (including some current government officials) making it clear that they're sick of the US bullying on this issue, when they know full well that there would be significant costs associated with signing up for the TPP. In particular, they point out that Chile's decision to participate in this discussion seems to come almost entirely because of the USTR's silly and bogus Special 301 report, that names and shames countries the US entertainment and pharma industries don't like -- but which has no objective methodology. Chile has been named and shamed in the report. Of course, the proper response is to tell the US to mind its own business, rather than putting in place draconian rules that will do significant domestic harm. Hopefully more people in Chile will recognize why it's a mistake to let the TPP process go any further.

It's really quite astounding how terribly obnoxious supporters of the ridiculous TPP agreement have become. This Trans Pacific Partnership agreement is being negotiated entirely in secret -- even as the USTR lies and claims the process is transparent at an "unprecedented" level. Of course, it seems that transparency only extends to big industry lobbyists who support the agreement's concepts already. For everyone else, we're told it's a matter of national security. Furthermore, rather than be transparent, it appears that the TPP negotiators are bending over backwards to (a) not allow those representing the public to even speak, while (b) spending as much time as possible with Hollywood lobbyists. It's as if the USTR and other TPP negotiators are so sure they've completely rigged the process that they're showing off just how little they care about the public.

Honestly, the whole thing is a scandal in the making.

In February, a bunch of groups representing public interests scheduled a public hearing about concerns with TPP in the same hotel where the TPP negotiations were going on... and the USTR apparently contacted the hotel and had them kicked out. The night before all of this? The negotiators went and partied at a Hollywood studio with the key lobbyists. Yeah, the USTR can't even stand to be in the same building as those concerned about the public, but will party with the lobbyists. A few weeks later, some big corporate interests hosted a dinner for ACTA negotiators. Public interest groups found out about it at the last minute and were told they were not welcome. When questioned about this in a Senate hearing, the USTR Ron Kirk took a totally condescending attitude, still insisting unprecedented transparency, even as Senator Wyden pointed out that wasn't even close to true.

And, of course, it gets even worse. One of the things that the USTR had talked about in the past was about how "transparent" they were when holding various "stakeholder" sessions that let people express their concerns. Of course, most of these are free-for-all's and they're positioned to limit the exposure of the concerns -- but at least there was some attempt in the past to offer people a voice. Not any more. As we noted recently, the US has done away with the stakeholder meeting. So the public interest groups are, once again, left out.

Now, the very latest is that during meetings in Chile, public interest groups once again sought to host a stakeholders meeting, and got an agreement to host it at the University of Chile School of Law. The whole thing was organized, and they even had a big name local politician signed up as the keynote speaker. The dean of the school was all for it... and then, two days before the meeting, the University canceled the meeting. Once again, the public interest groups were shut out. It's not entirely clear why, but there is tremendous speculation that the cancellation was due to a faculty member who consults heavily with the pharmaceutical industry.

Either way, it seems clear that there is influence peddling going on here, and it's astounding that the USTR seems to think that these moves won't backfire and just make it look worse. In talking to someone who was in Chile working with the public interest groups, it's been claimed that many of the delegates had no idea this would happen -- and were quite upset that the USTR had basically hijacked the process. The organizers of the event were actually able to find an alternative, but it is too bad that they had to spend days scrambling to figure this out.