I believe what USTR is saying is that they may propose something, like mandating patents on surgical methods, or 12 years of data for biologic drugs, and not actually want to prevail, but rather, force the other countries to make some other concession. In this type of approach, proposals for measures that harm consumers are strategic and tactical, and people might "misunderstand" what the US is doing, because they may wrongly assume this is intended as a final outcome. We are not comfortable with the idea that a threat to hurt (or actually kill) consumers is a core element of the US negotiating strategy, and we know that in the past, lots of such "threats" ended up being part of the final agreement.
The process at WIPO is one where countries can block applications for whatever reasons they like. Some time ago, the USA blocked CPTech (our name before KEI) from becoming an observer in WIPO advisory committee on enforcement, but changed its position at later meetings. Today WIPO is generally a very easy place to gain accreditation, compared to other UN bodies, such as the World Health Organization. In the case of the Pirate Parties International, the opposition was clearly based upon the views and values of the Pirate Parties. This was the second time the Pirates sought permanent accreditation at the WIPO General Assembly. I will suggest they make a new attempt to gain "ad hoc observer status" in one of the committees, to move things along. I don't think Belgium, the US or Poland were that comfortable defending their actions, after the vote. The Pirates need to talk to the US and the EU before the vote, to make sure there are not further opportunities to block them over lack of information about such issues as the precedent for UN accreditation of political parties (Lots of socialist and liberal party groups have various UN accreditations now), of the relationship between the PPI and Pirate Bay.
Nick's comment that "nobody at industry asked for this" is based upon what information? Maybe Nick should check into the WHO "reform" debate where industry is lobbying for something similar, and even seats on the WHO Executive Board. Or the various public private partnership deals where they want special roles in governance. Or a million other areas such as TABD where companies want special access to decision makers. And, when people talk about a Davos type format, they are not talking about the inventors working out of garages. They are talking about executives from Pfizer and Merck, the people currently telling the US delegation what to do.
We are here at the GA, and I talked directly to US delegation about the proposal, and that's where the Davos quote came from, as well as the talk about CEOs and other high ranking company officials talking directly to government delegates and high ranking WIPO officials. That's also when I asked about other non industry stakeholders. Not sure what Nick heard, or why he thinks this is not so bad.
Update: At 5 pm the USPTO called and said that the public access wifi network was using a filter, provided by a contractor, to block "political activist" sites. This filter was not used by the network providing Internet access for the USPTO staff. After our meeting, the USPTO reviewed its policies, and has removed the filter. USPTO says the filter was implemented by a contractor, and no one we talked to at USPTO was aware of who was being blocked. In any event, the filter has been removed.
The negotiating text for the Beijing treaty, which was just signed by the US, was public. The negotiating text of ACTA itself was published by USTR and other parties in April 2010, before it was finished. All of the current negotiations at WIPO on a treaty the blind, broadcasting, education, etc, are public. The WHO negotiations on IPR and health featured once or twice daily public drafts of negotiating text. The negotiating texts of the Hague Convention on choice of court were public. The 1996 WCT and WPPP negotiating texts were public, and USPTO asked for comments via a Federal Register notice, on the texts.
For most people, the "3-step test" is not something that is well known, since it often comes from treaties and trade agreements, rather than national law. To make things more complicated, it can be presented as something that expands or restricts flexability, depending upon the way things are worded. I encourage people to read the Berne Convention Articles 2bis, 10 and 10bis, for starters, to look at some cases where the Berne DOES NOT apply the 3-step test, to appreciate why this is so important. In general, if an agreement for either copyright or related rights has a different standard for exceptions, and that standard is more liberal than the 3-step test, you DON'T want the 3-step test expanded to cover those exceptions. Right now the WTO does not apply the 3-step test in areas where the Berne or the Rome Convention has a different standard, and the WCT is not subject to the WTO dispute resolution mechanism at all.
I'm inclined to think that copyright should be strongly enforceable when it comes to a use in advertising for products and services, including even some moral rights that I would not generally agree with for some other purposes.
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.