A Tale of Two Treaties

Big(ish) copyright news out of Canada and Mexico that serves as a timely reminder of the central role of trade negotiations in promoting harmonized intellectual property laws. Canadian and European trade negotiators are apparently closing in on a comprehensive economic and trade agreement, which will include intellectual-property provisions. Michael Geist reports that negotiators remained stymied on the agreement’s IP chapter, including copyright-enforcement provisions that the Europeans would like to model on the Anti-Counterfeiting Trade Agreement (ACTA). Any changes will require legislative amendments.

The lack of progress on IP is not surprising. For an IP importer like Canada, increased protection and enforcement costs represent a pretty unambiguous drain on the Canadian economy and will likely result in higher prices, as the European Union itself concluded in a study on the potential effects of a Canada-EU trade agreement:

The Canadian trade balance would not necessarily benefit from IP provisions in CETA. Trade in specific goods, that are currently freely marketed and exported from Canada, could be adversely affected. For example, several Canadian companies brand and export their products with labels that could be considered as European geographical indications. These companies could lose market shares in domestic and foreign markets if they are forced to abandon their commercially significant labels. Conversely, it is unlikely that Canadian companies would significantly benefit from an increased protection of geographical indications in the European market. In sum, both Canadian exports and imports might be slightly and negatively impacted, but only in specific sectors.

The flip side of this is that Canadian negotiators may simply decide to trade off a bad deal on IP in exchange for perceived trade gains elsewhere. Given the way copyright has become politicized since the first time the Conservatives tried introducing a copyright-reform bill, this is a somewhat risky proposition. Then again, having a majority government makes passing such an agreement much, much, much easier than it would’ve been under a minority government.

The news from Canada makes what’s happening in Mexico even more interesting. While Canada is inching toward ACTA implementation, the Mexican Senate voted on July 20 not to ratify the ACTA (document is in Spanish, but there’s always Google Translate). Reasons cited include concerns about the lack of information provided to the Senate during the negotiations (illegal under Mexican law), the lack of due process under ACTA and the cost of requiring ISPs to monitor and enforce copyright infringement in a way that’s currently illegal under Mexican law and the Constitution, as well as other issues like net neutrality, censorship and privacy concerns. They also raise the concern that ACTA could lead to restrict both freedom and Internet usage, potentially broadening the “digital divide” and restricting the introduction of beneficial new technologies that would support the development of the information society (a key Mexican development goal).

As I noted earlier, many of these findings support the view that the Mexican telecommunications industry is making its voice heard, and that concerns about economic development have trumped the previously dominant view in the Mexican Senate regarding the need to increase copyright protection.

So, for the time being, anyway, ACTA is a dead letter in Mexico. (Though it could come back.)

The different approaches of the two countries serves as yet another reminder of the effectiveness of using trade agreements to force copyright reform in partner countries (next example: the Trans-Pacific Partnership talks, whose IP aspects have been described as "ACTA the sequel", only with a WTO-like enforcement mechanism). At the same time, however, Mexico’s current debate suggests the limit of this strategy. In situations where market access doesn’t exist as an incentive and where the domestic politics do not favour reform, it is much harder for one country to reform another’s copyright laws.

In other words, the Canada-EU trade talks allow the EU to link something Canada wants (market access) to something that the EU wants (Canadian IP reform along EU- and ACTA-friendly lines). Even though such reforms are not on their own beneficial to Canada for the reasons the EU report suggests above, there’s a pretty good chance they’ll happen, the result of a trade-off needed to get an agreement done.

In Mexico, no such linkage is happening, although it is part of the Trans-Pacific Partnership talks, along with the United States (Canada is not). And so ACTA is rejected, the victim of the mobilization of domestic constituencies.

Which brings us to the big question. Most major countries now have relatively open access to each other’s markets, so market-access is less of a problem for most countries than it was even two decades ago. Copyright laws, meanwhile, are regularly undermined by things like technological change. In a world where the IP powers can’t offer countries improved market access, but where they still want stronger copyright protection, how likely is continued copyright harmonization? If we want to predict the future, do we look to Mexico’s rejection of ACTA, or to the Canada-EU trade talks? Maybe I'm underestimating the appetite for more trade agreements?

The Mexican vote against ACTA: A pretty big deal

I don’t know what the Mexican Congress’ formal call for the Mexican Executive not to sign the Anti Counterfeiting Trade Agreement means for the future of ACTA in Mexico (Techdirt story here). However, it does seem to mark a sea change in Mexico’s treatment of copyright in general. As I discuss in my dissertation, in 2003 a nearly unanimous Congress extended the term of copyright to a world-leading life of the author plus one hundred years with only a cursory debate. Going from reflexively approving a huge strengthening in copyright law to calling for the rejection of the latest attempt to strengthen said law: that’s a pretty big change.

What’s going on? Based on my dissertation field work, two things, I think. First, the telecoms are pretty strong politically and economically in Mexico, and I’m pretty sure their goal is to minimize ACTA’s burden on their bottom line (ACTA being driven by the content industries and all). As I've noted elsewhere, even though telecoms were largely excluded from what were secret content-industry-driven negotiations, they are too powerful not to have a say when it comes time to actually implement ACTA into domestic law.

Second, and most interesting, the traditional rhetorical argument for stronger copyright in Mexico – that it’s needed to support the national culture – is running up against an equally powerful narrative: the need for economic development. Mexico’s current National Development Plan emphasizes the need for improved broadband penetration. Along those lines, COFETEL, Mexico’s telecoms regulator, the rough equivalent to the CRTC here in Canada, argued back in November that ACTA could worsen the digital divide. Its view was supported by the Senator Carlos Sotelo of the left-leaning Party of the Democratic Revolution (PRD). He said that Mexico needs a balanced copyright law that guarantees a universal right of broadband access.

As well, Senator María Beatriz Zavala Peniche of the centre-right National Action Party (PAN) emphasized that copyright law should support individuals’ rights to the dissemination of knowledge and the sharing of culture.

So what we have here are a powerful economic interest group (the telecoms) and a potent counter-narrative (economic development). Anyone interested in copyright reform should be paying very close attention to Mexico. It will be very interesting to see the extent to which this copyright-versus-development narrative takes hold, both in Mexico and abroad.

Get you ACTA text, right here!

I'm editing one of my dissertation case studies so I don't have time to look at it right now, but, for your reading pleasure, here's a leaked copy of the text of the Anti-Counterfeiting Trade Agreement (ACTA), dated January 18 (h/t Geist).

Personally, I'm looking forward to never again writing the words "may contain" when talking about the ACTA.

Enjoy!

ACTA: History repeating itself?

So the European Parliament has voted 663-13 against the Anti-Counterfeiting Trade Agreement (ACTA) (h/t BoingBoing). Could this be a turning point in the negotiations? The whole situation does seem to have some similarities to the French reticence that sunk the Multilateral Agreement on Investment over a decade ago. It’s interesting to note, however, that rather than calling for the cessation of negotiations, the European Parliament is calling for the agreement to respect existing EU law. Which means that we’ll probably end up with an ACTA, though (if the vote is effective in putting pressure on EU negotiators) one that's more modest and balanced than what U.S.-based interests have been hoping for.

Here’s a question I’ve been wondering about: if, as I’ve suggested previously, powerful interests will have to be served regardless of what’s in the final text, will ACTA's excessive secrecy have helped or hindered the interests of those countries and interests seeking much stronger copyright laws and enforcement?

On the upside, if you can pull it off, you have an agreement that proponents can use to legitimize changes in domestic law and regulations. And even if you can’t keep it completely secret, the process may put opponents at a disadvantage when it comes to negotiation and implementation.

On the downside, excessive secrecy allows opponents to question its legitimacy while letting people’s imaginations run wild about what could be in the treaty and whip up anti-ACTA support. One would imagine that this would be a not-insignificant political problem, even in the case of executive agreements (like ACTA) that do not require parliamentary approval and some of whose requirements may be implemented via regulation, not legislation. And, of course, there’s the whole democratic-governments-should-act-transparently-in-the-interests-of-their-voters thing and the nobody-likes-to-think-they're-being-played thing.

Just some thoughts. It’ll be interesting to see how this all plays out. To say the least.

ACTA: All Global Treaties are Local

A nice reminder, courtesy of Michael Geist , that the battle over the Anti-Counterfeiting Trade Agreement (ACTA) is going to get messier the more that groups directly affected by but excluded from the talks are heard and, most importantly, are listened to.

From Mexico: President of the Senate Commission on Science and Technology, Senator Francisco Javier Castellón Fonseca, is calling for increased transparency in ACTA talks in order to understand their potential impact on digital copyright issues generally and Internet Service Providers specifically.

This is important for three reasons.

1. Politically, Senator Castellón Fonseca, represents the left-leaning PRD, which can be expected to champion individuals’ user rights. The PRD has 127 out of 500 seats in the Chamber of Deputies and 26 out of 129 Senate seats. In Mexico currently there are no organized consumer or users’ groups dealing with copyright issues; with a political champion, this could change, making ACTA implementation (to say nothing of other copyright reforms) more difficult.

2. Mexico may also be starting to consider the economic and technological effects of copyright, rather than simply its cultural aspects. The same Senator made remarks to this effect in 2008.

3. The Senate Commission on Science and Technology is responsible for ISP-related issues, and ISPs have a lot of clout in Mexican politics: Telmex has a virtual monopoly on Mexican Internet access and is owned by Carlos Slim, the third-richest man in the world, according to Forbes.

Simply put, so far as Internet access issues are concerned, all roads to Mexican copyright reform and ACTA implementation run through Telmex. That Mexican ISPs and the content businesses and groups have been trying unsuccessfully for a couple of years now to come to an agreement on ISP liability (Mexico currently has no laws dealing with this issue) tells me that Telmex’s interests do not align directly with those of the copyright owners that have been behind the treaty.

In a sense, it might not matter much for Mexico what the ACTA requires: if it doesn’t make Telmex happy, then implementation will be a long, long time coming. Negotiating a treaty in secret may help get something signed, but if powerful interests are not listened to, they will, in the end, make themselves heard.

Why Buy American has nothing to do with Canadian copyright reform

One of the fun things about doing a dissertation on copyright is that you can’t go a day without something interesting happening (unfortunately, this is also one of the annoying things when you’re trying to finish said dissertation).

Yesterday’s news had lobbyist Scotty Greenwood, of the Washington-based Canadian American Business Council, suggesting that Canada could get around the country’s exclusion from the Buy American program, which allows U.S. governments to favour U.S. suppliers, if the Canadian government addressed U.S. concerns on copyright. Howard Knopf was quick off the bat decrying this as a bad idea.

And it could be (it would depend on the net economic and social benefits of such a deal). However, thanks to the NAFTA and the decentralized nature of the American political system, this kind of quid pro quo is highly unlikely. Conservative Industry minister spokesperson Darren Cunningham gets it exactly right when, as the Globe’s Bill Curry reports, he “notes that state and municipal governments, which are the source of the tensions, are unlikely to share Washington’s level of interest when it comes to copyright policy.”

Happily, my dissertation is examining exactly this issue, specifically why Canada and Mexico have taken over 12 years and counting to implement the WIPO Internet Treaties despite constant pressure from the United States and its content industries to do so. The United States is without question the region’s superpower. But, despite the fact that copyright has been at the top of the American trade agenda throughout the Bush Jr. and now Obama regimes, Canada has proposed (and failed to pass, thanks to minority government-related election calls), first a 2005 bill (legislative summary) that didn’t do what the U.S. wanted, and then a 2008 bill (legislative summary) would have given the U.S. much, but not all, of what it wanted. (Mexico’s experience, which I’m currently researching, is somewhat different.)

While lobbyists like Greenwood can suggest that Canadian movement on issue X will yield American movement on issue Y (what political scientists call “linkage”), it’s actually really hard to link issues in Canada-U.S. relations, for two reasons.

First, as Cunningham suggests, unlike Canada’s, the U.S. political system is not concentrated in one person. Stephen Harper can make credible promises to link unrelated issues because he, for all intents and purposes, controls Parliament. Barack Obama can’t deliver in the same way, because he has to deal with a Congress that he does not control and whose interests may differ from his. The politics are much more complicated. A basic point, but one that politicians, journalists, lobbyists and we political scientists don’t always remember.

Second, there is currently no regional institutional framework to allow for the easy linking of issues. This is where the NAFTA comes in. The NAFTA sets baselines and rules governing North American economic activity, but it contains no way to modify (easily) these rules, meaning they’re essentially stuck in amber.

There’s a reason why the United States has incorporated successfully its demands on copyright protection into its trade agreements: they’re trading something the other guy wants (access to the U.S. market) for something that the U.S. wants (U.S.-style copyright laws). But because Canada and Mexico already have guaranteed access to the U.S. market, thanks to the NAFTA, the U.S. has relatively little to offer its trading partners. Somewhat ironically, the NAFTA has provided North America’s juniour partners with a not-insignificant degree of policy autonomy.

(Given the reality that copyright laws are changed regularly in response to technological developments, the American strategy of using trade agreements, which can’t be modified easily, to set other countries’ copyright laws may backfire in the long run.

On another point, the lack of issue linkage in the current Anti-Counterfeiting Trade Agreement is one of the more puzzling things about those negotiations. Given the secrecy surrounding the talks, it’s unclear even why countries like Canada are negotiating this agreement. But that’s a topic for another day.)

While the second point is a bit underappreciated (though Stephen Clarkson hypothesized it a few years ago, in a paper that kickstarted my own thinking on the issue), the first point is a cornerstone of the study of Canada-U.S. relations, since at least the publication of Keohane and Nye’s Power and Interdependence in the 1970s.

I’m not saying that linkage is either impossible or always undesirable. The moribund Security and Prosperity Partnership of North America provided a forum that allowed for policy linkages and may have provided an opportunity for the United States to exert pressure in 2008 to get what it wanted in what eventually became Bill C-61. Canada and Mexico may decide to implement U.S.-style copyright policies.

The two governments may attempt to link issues. But absent some kind of new regional institutional structure, or a new round of free-trade talks, any kind of Buy American-copyright linkage has the odds stacked against it.

The Leaked ACTA Documents: What Next?

I had originally intended my first post to be more introductory (PhD student in political science at Carleton University in Ottawa, writing a dissertation on implementation of the World Intellectual Property Organization Internet treaties in Canada, the U.S. and Mexico, former economist and reporter, currently working out of Mexico City trying to finish my dissertation so I can rejoin the workforce), but instead I’m going to jump right into what I hope will be regular postings related mainly to my academic work: copyright policy and North American regional integration. Comments always welcome.

I’ve been experiencing a bit of déjà vu reading Michael Geist’s recent postings on the leaked Anti-Counterfeiting Trade Agreement (ACTA) which, despite its name, seems to have at least as much to do with copyright as counterfeiting (Geist has a link to a leaked description of the parts of ACTA related to ISP liability and technological protection measures). The secret negotiations among a group of (mostly) developed nations attempting to set a global standard that goes far beyond the existing international treaties, the leaks that have sparked outrage among activist groups, the negotiations outside the subject’s traditional fora: what we have here is practically a repeat of the Multilateral Agreement on Investment (MAI: OECD page; Wikipedia) in the late 1990s.

As a pup reporter for a small Toronto-based Catholic social-justice newspaper (how’re those for some loaded labels?), I filed many a story on the opposition to the MAI, and I remember how activists claimed victory when it was shelved. For those of you who don't recall the MAI, it was like the Battle of Seattle, only about global investment rules. Its defeat was seen as the first expression of what has come to be called global civil society.

For those concerned with the potentially harmful effects of an ACTA, which could include a three-strikes rule for repeat copyright infringers and a notice-and-takedown regime for ISPs, there are some important lessons to be learned from the MAI experience, the most obvious to me being:

Lesson #1: The negotiating forum matters. This is the big difference between the ACTA and the MAI. The MAI was negotiated under the aegis of the Organization for Economic Cooperation and Development. The OECD, and not the recently established WTO, was chosen as the negotiating body because it was felt that its limited, relatively homogenous membership (currently 30, mainly industrialized, countries) would make it easier to conclude an investment treaty. This treaty could then be presented to the rest of the world as a fait accompli without the bother of having to negotiate with countries whose interests may not be in sync with the richer OECD countries.

The one flaw in this plan was that the OECD was working under consensus rules: if one country objected, then the whole treaty would not proceed. Indeed, while activists can take a lot of the credit for the eventual demise of the MAI, it was actually the French government’s decision not to pursue the MAI that actually killed it but good.

The big question for ACTA opponents (and proponents, for that matter) is whether the talks are vulnerable to a country pulling a France before the end of negotiations next year. I don't know the answer to that question, mainly because (what with the secrecy and all) the terms under which the treaty is being negotiated are not readily available. But it would seem that so long as the United States, Japan and the European Union are on board (the U.S. isn't going anywhere; don't know about Japan or the EU), it doesn't matter if most other countries stay or go. If the United States can go into Iraq with Britain, Australia and Moldova as its main allies and call it a coalition, they could still negotiate a treaty with bit players and call it a new world standard.

So ACTA opponents will have to take into account the likely success of a treaty and plan accordingly. The basic strategy of the MAI protesters seems to remain valid here: international information coordination (the easy part) and domestic political pressure (the hard part). The real battle will probably take place country-by-country, first over whether to withdraw (Howard Knopf argues for walking away) and then over the treaty’s implementation.

While this likely will make the ACTA political debate different (and more difficult for opponents) than the MAI debate, the final outcome is not predetermined. Treaties can be modified before they are signed, and then they have to be implemented, and then enforced. As has been demonstrated by Canada’s inability to implement its obligations under the WIPO Internet treaties, and the U.S. refusal to implement the Kyoto Accord (which it signed), just because a country signs a treaty does not mean that it’s going to implement it.