Transcript day 23 - Bradley University

New Media IP law in the
International Arena
Fundamentals and Problematics
• No single global court or legal system.
– But most countries have both and many of those
include procedures related to IP. Some (like U.S.)
also have state or regional systems that may or
may not be harmonized.
• A global information & communication environment
connected to a global economic environment.
– The global economy within the context of national
cooperation, competition, enmity. No single entity
controls trade, globally.
• Likewise:
– The internet with no boarders and no central or
universal control mechanism.
– Also, additional mediums with content and with
some relationship to governmental control
mechanisms.
Mediums in global view
Like other communication technologies, there is no
universal agreement as to how the internet should
work. The medium includes both the technologies
and the ways that people use them. As with, for
example, TV, media networks and content are put to
a variety of uses across communities. State owned
and operated entities are different than commercial
enterprises, nonprofits, etc. The internet is no
different. To varying degrees then, national
economies and national communications
infrastructures (including the internet) face varying
degrees of national control.
On a number of levels/aspects then, there
are issues surrounding the questions:
• Who’s laws apply?
• Who can claim that their law has been
broken?
• With what effect?
• With regard to trade & communication
infrastructure
Complexities of the
international scene: Trade
• we export a lot
• we also import a lot, though that is
finally slowing a bit.
• IP is a very significant portion of our
exports.
• The International Intellectual Property
Alliance (IIPA) estimates that:
– The U.S. “core” copyright industries accounted for
an estimated $819.06 billion or 6.56% of the U.S.
gross domestic product (GDP) in 2005, up from
6.48% of the U.S. GDP ($760.49 billion) in 2004.
The U.S. “total” copyright industries accounted for
an estimated $1.38 trillion or 11.12 % of GDP in
2005, up from 11.09% of the U.S. GDP ($1.3
trillion) in 2004. The “core” copyright industries
were responsible for 12.96% of the growth
achieved in 2005 . . . This means that the growth
contributed by these core industries (12.96%) was
almost double their current dollar share of GDP
(6.56%) (IIPA summary)
With all this growth, IP loses
mounted too
• As a result of deficiencies in the copyright
regimes of the 51 countries/territories
highlighted . . . the U.S. copyright–based
industries suffered estimated trade losses
due to piracy in these of over $18.4 billion in
2007. On a global basis (that is, in all
countries/territories including the U.S.), IIPA
conservatively estimates that total losses due
to piracy were at least $30-35 billion in 2007,
not counting significant losses due to Internet
piracy, for which meaningful estimates are not
yet available.
Most extreme example: China
Excessively high legal thresholds for launching criminal
prosecutions offer a safe harbor for pirates and counterfeiters.
Under China’s Criminal Law, piracy of copyrighted works and
counterfeiting of trademarked goods are subject to criminal
procedures and penalties only when the authorities find the
amount of piracy or counterfeiting to be “serious,” “especially
serious,” “relatively large,” or “huge”. . . Pirates and
counterfeiters who structure their operations to fit below those
thresholds face no possibility of criminal sanction. . . .
The thresholds are so high that they appear to permit pirates
and counterfeiters to operate on a commercial scale.
Who’s in charge of our trade?
• The State Department and Commerce
Department are principally tasked with
controlling U.S. export matters.
• Much of that which is exported is
subject to export licensing and
Commerce Department controls under
the Bureau of Export Administration
commerce control list.
Trade as
“Cudgel”
• We use trade as the principle way to get compliance
with our IP regime
• As IP has become an important part of the U.S.
export scene, the U.S. IP protection scheme has
become grafted into trade laws such as the U.S.
Trade Act of 1974 as well as agreements signed via
international forums such as the 1996 Copyright
Treaty and 1997 Performances and Phonograms
Treaty with the World Intellectual Property
Organization (WIPO) as well as the World Trade
Organization (WTO) agreements on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) (to
name only a few of the major relevant agreements).
Many critics decry these
tactics
• the U.S. approach is bad for the public
distribution of knowledge, counter to aspects
of IP law that foster innovation and creativity,
unfair to native people in less developed
countries, overly restrictive of private use—
perhaps to the point of “trumping” legal
protections in favor of private use even within
the U.S. (as well as globally), and in general
is overly protective of U.S. content industries
to the point of cultural hegemony
Remember, global IP is not
just entertainment and Info.
Medical (including genetic and
pharmaceuticals), agricultural,
mechanical, and all forms of business
methods developments: These and
every kind of “idea fixations” are at play
via the broad panoply of IP categories
(copyright, trademark, trade secrets,
patents, etc.) on a global scale across
all range of geopolitical boundaries.
But even non-MM IP is MM IP
Not all of these aspects involve (new) digital media. However,
the global (and mostly digital) communication connectivity
provided by the internet, satellite, and cell phones (among other
means) has, in many cases, thrust what might have previously
been local, regional, and national commerce into the global
arena. Once any commercial activity digitizes and transmits
company data (or some other entity does that for them or with
their data), the implications of global digital IP questions come
into relevance. Your company might make tractors, bricks,
boxes, or clothes: As such, the IP questions surrounding your
business are of little interest. However, once you put your
product catalog online, bring your sales and marketing team up
to speed with the ins and outs of e-commerce, and make your
ordering/purchasing/delivery chain available to customers (be
they business-to-business or the public at large), your tractors,
bricks, boxes, or clothes take on a digital identity that raises
interesting IP law questions in this globally connected world.
Some “others” push back
• For example, European Union restrictions referred to as the
“Television without Frontiers Directive (TVWF Directive).”
• This legislation “is the cornerstone of the European Union's
audiovisual policy. It rests on two basic principles: the free
movement of European television programmes within the
internal market and the requirement for TV channels to reserve,
whenever possible, more than half of their transmission time for
European works ("broadcasting quotas")” (Europa EU). On the
one hand, the TVWF helps “manage” media relationships
among member nations. On the other, it is a powerful trade
restriction tool, opposed by the U.S. government, that enables
EU member nations to fight against the cooption of their media
industries by American exports.
Complexities of the international
scene: Culture
• As noted, trade agreements leveraging (especially) “favored
nation trade status” (with the U.S.) in order to spread the
adoption of the U.S.-style IP legal regime have been an
important part of U.S. international politics, especially in recent
years and the digital/information revolution has come to the fore.
Combined with the fact that the U.S. is the principle (though far
from the only) producer of globally popular entertainment media,
as well as one of the primary players across all of the
information economy activities, the moves to foster the adoption
of the U.S.-style IP legal regime (and its outcomes) are not
insignificant.
• For many native peoples, the U.S. efforts smack of cultural
hegemony and lack of good faith as efforts to protect
entertainment and information content that enrich U.S. content
holders, further exacerbated by the global reach of media,
seems at odds with our lack of interest in the abilities of
indigenous peoples to protect their IP from co-option, export,
and capitalization by U.S. firms.
“Are you worried about American cultural
imperialism?
• No, not at all, because the Americans do
fantastic things in many cultural domains.
However, I do not want to see European
culture sterilized or obliterated by American
culture for economic reasons that have
nothing to do with real culture. That is why I
am for the cultural exception [i.e., leaving
cultural productions out of international freetrade agreements], and especially for
production and distribution quotas.
– former French President Jacques Chirac
Other pushbacks
• India has resisted cooption of its national sovereignty
in these areas for years, to the point of incurring the
political wrath of the Bush administration and being
labeled an “unfair trading partner.”
• Zimbabwe, Bangladesh, and the Dutch have all
taken action against the U.S.-style regime.
• The European Union has been at the forefront of
global legislation against genetically modified food,
one of the new frontiers in the intellectual property
portfolio of Western agro-business.
• Afore-mentioned China
• Muslim countries.
• Africa
Who “runs” the Internet?
No one. . . sortta
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Internet2 Project (UCAID)
See also Abilene and QBone and VBNS+. And there is the Canadian CA*net 3
Internet Society
Internet Engineering Task Force (IETF)
Internet Architecture Board (IAB)
Internet Assigned Numbers Authority (IANA)
Commercial Internet Exchange Association (CIX)
CommerceNet
W3C, World Wide Web Consortium
ICANN
InterNIC at Network Solutions
– “Who Runs the Internet”edited by: [email protected]
• http://www.unh.edu/Internet/web/whoruns.html
• Remember: Loads of folks, globally, DO NOT LIKE
the fact that the U.S. still has so much control over
the entities and operation. We say “it’s mostly us
anyway,” and maintain influence.
Complexities of the international trade AND
law scene: Interfaces (Courts,
commissions, and the like)
• Public/Governmental organizations:
Intergovernmental (IGO)
• Private/non: NGO
Public/Governmental organizations:
Intergovernmental (IGO)
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UN
UN commission on international trade law
UN conference on Trade and Development
EU
Council of Europe
Organization for Economic Cooperation and
Development
WTO
International Telecommunications Union
United Nations Education, Scientific, and Cultural
Organization: UNESCO
WIPO
Private/non: NGO
• Alliance for Global Business
• Global Business Dialog on Electronic
Commerce
• International Chamber of Commerce
• International Electrotechnical
Commission
Complexities of the international
scene: Jurisdiction
• Particular court or court system; and
• Power of a court to hail a party into court and
render a decision that is binding on that party
– Criminal jurisdiction: there has to be some
connection between the agency/org and the
crime/criminal (territory, nationality, protection of
national interests, protection of the people of a
country)
– Civil Jurisdiction: some connection between the
person or property and the territory.
Important Definitions
• Venue
– Location of a particular court
• Service of Process
– The delivery of legal papers that initiates a law suit
or legal proceeding
• Choice of Law
– The legal process of deciding which of the
jurisdiction’s law applies
•Who Cares About Jurisdiction?
– Courts
– Lawyers
– Parties
• Why care about jurisdiction?
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Impacts where you can be sued.
Impacts law that applies to your suit.
Impacts who decides the outcome.
Impacts the nature of the outcome.
Impacts the costs of suit.
Impacts how you may decide to act in the future.
Which Law?
• When parties submit to international
agency/court, they may agree to the
standards of that venue
• When dragged into a national/state
court, the court may pick either its own
national/state law or the international
law that country/state recognizes.
The Big Guns: Copyright
• National laws & international treaties apply.
• Both confuse matters some, as they take
precedence within nations and they are not fully
harmonized.
• Berne Convention for the Protection of Literary and
Artistic Works (Paris Text 1971)Attempts top
harmonize (esp.) copyright issues
• WIPO (Both in 1970)
• Copyright Treaty
• Performances and Phonograms Treaty
• Universal Copyright Convention, 1971 (Paris)
The Big Guns: Patents
• Paris Convention (1883)for the
protection of industrial property
(patents)
• Patent cooperation Treaty (streamlines
multiple country applications) 1970
• TRIPS (trade-related aspects of
intellectual property agreement) [sets
minimum protections]1994
The Big Guns: Treaties and
Trade Agreements
• GATT/TRIPPS (general agreements on tariffs
and trade/trade related aspects of intellectual
property)
• Originally on manufactured goods, adjusted
to IP later. Generally reduced tariffs and
opened trade (advantaged the U.S.)
• NAFTA (North American Free Trade
Agreement)