Archive for the ‘Trade’ Category

By Adriana Benedict

The recent signing of the Marrakesh Treaty to Improve Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled is a watershed event in the global movement for access to knowledge and culture according to international human rights standards. The Marrakesh Treaty, as the first users’ rights treaty, is a welcome retreat from the so-called “global IP ratchet.”  Over the past quarter century, international copyright standards have grown increasingly broad, stringent and inflexible, shrinking individual countries’ abilities to experiment with standards tailored to their unique political economies.  This upward ratchet has been driven by multilateral agreements like the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WPPT), as well as various free trade and bilateral investment agreements that contain “TRIPS-plus” provisions. The Marrakesh Treaty provides the first multilaterally agreed upon exception to these agreements’ prohibitions against unauthorized, royalty-free reproduction, modification, distribution and importation of creative works.  Especially for print-disabled individuals in developing countries where Braille and other accessible formats are largely out of reach, the treaty is a decisive victory for civil society stakeholders despite publishing and entertainment industry representatives who have lobbied long and hard against any agreement that would scale back the rigidity of copyright laws.

States Parties to the treaty agree to implement exceptions and limitations to copyright laws that will facilitate the creation and cross-border sharing of accessible works for persons whose visual, learning or physical impairments prevent them from enjoying equal access to information and cultural works.  Importantly, as noted in the preamble, the new treaty aims to facilitate greater opportunities to benefit from and contribute to research.

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"Peter Maybarduk"Special 301 is an annual report by the Office of the US Trade Representative (USTR) which places countries on a “watch list” if USTR would like to see greater changes in their intellectual property rules or enforcement practice. This year’s report came out May 1st. We pay attention because USTR relies heavily on comments from big business, and USTR’s opaque standards and criticism of other countries could stymie the development of public interest policies in areas including health. For example, countries have sovereign rights to issue “compulsory licenses” on pharmaceutical patents. Compulsory licensing authorizes price-lowering generic competition with patented drugs in exchange for royalty payments to the patent holder. It’s a key strategy for improving access to affordable medicines, especially in developing countries. But the US has often criticized compulsory licensing, and sometimes sought to stop it (see eg: www.citizen.org/leaked-cables-show-US-tried-failed-to-organize-against-ecuador-compulsory-licensing).

This year’s Special 301 Report, and past 301 Reports, have included language to the effect, “the United States respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all,” and “the United States respects its trading partners’ rights to grant compulsory licenses in a manner consistent with the provisions of the TRIPS Agreement [the World Trade Organization agreement on intellectual property rules].” (See pages 22 and 23 of this year’s 301 report.)

Nevertheless, in recent years, USTR has typically cited countries for issuing compulsory licenses or developing compulsory licensing plans, and expressed concern on behalf of the US government. With the exception of Canada’s 2007 export arrangement with Rwanda, every recent pharmaceutical compulsory license or major compulsory licensing policy – at least, of which USTR is aware, and so far as I can tell — has been referenced in the 301 Report. (I had to go back to 2004/2005 to find exceptions, in the case of Indonesian and Malaysian government use licenses for AIDS.) Sometimes the criticism is direct; other times the references are oblique or pledges to monitor the situation. But in each case the mere reference is important; a bullying tactic that tends to serve as a warning to all countries against using health rights.

At USTR’s hearing earlier this year informing the Special 301 review, I stated that it is becoming difficult to maintain faith in the US government’s general assurances that it respects countries’ use of these health rights, since USTR appears to cite any given use of compulsory licensing in the 301 Report. I asked USTR and the other federal agencies present to lend meaning to US Government commitments by excluding any reference to TRIPS-compliant compulsory licenses in this year’s report. (I’ve repeated the ask in various private meetings.)

This year’s 301 Report is, as always, an embarrassing application of US power on behalf of Big Pharma and the content industry, and against a number of public interests. The report criticizes compulsory licensing in India and Indonesia, among other pharmaceuticals-related policies.

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Our Trans-Atlantic Call for Exclusion of Intellectual Property from EU-US Trade Talks

US trade policy is currently focused on the Trans-Pacific Partnership (TPP), for which President Obama hopes to complete negotiations by October. If the agreement is concluded according to plan, the TPP will include the United States, Canada, Mexico, Peru, Chile, New Zealand, Australia, Brunei, Singapore, Malaysia, and Vietnam.  Japan is signaling its interest to join and Korea would possibly follow Japan. The treaty would remain open for other countries to join as well, so long as they meet the required standards.

Meanwhile, along the Atlantic, the US is preparing to launch negotiations for a Transatlantic Free Trade Agreement (TAFTA)—or what is being touted as the Transatlantic Trade and Investment Partnership (TTIP).

The establishment of a Trans-Atlantic partnership is not a new idea; the possibility of creating a Trans-Atlantic Free Trade area had been discussed occasionally in the past, especially during the 1970s and 1980s. However, informal discussions failed to solidify into something more concrete.

The United States and the European Union have both entered into economic partnership agreements across the globe, but never before with each other. In 2011, American and European politicians keen on “shaping globalization” (i.e. setting rules for the 21st century) outside the official global forums set up the High-Level Working Group on Growth and Jobs (HLWG) to assess the feasibility of a comprehensive transatlantic trade agreement.  The deal between the world’s two most important economic powers hopes to be a “game-changer.”

The BRICS countries — Brazil, Russia, India, South Africa and perhaps most notably China – have not been invited to either negotiation. It may be the case that these deals aim to better prepare the EU and the US for an upcoming economic battle with the BRICS and other emerging powers.  The BRICS countries have a combined GDP now equivalent to that of the EU or the US.  “This is about the weight of the western, free world in world economic and political affairs,” declared EU Trade Commissioner De Gucht.

The HLWG released its interim report in 2012 identifying policies and measures to increase EU-US trade and investment. The interim report noted that, “it would not be feasible in negotiations to seek to reconcile across the board differences in the IPR obligations that each typically includes in its comprehensive trade agreements.”

However, industry groups soon realized that the so-called Trans-Atlantic Free Trade Agreement presents a perfect opportunity to set “golden standards” for IP regulation and enforcement, which emerging markets like China and India could then be pushed to accept. Groups like PhRMA urged the EU and US to include IP to further strengthen the international regime. Eventually, the HLWG changed its position and is now recommending the inclusion of an IP chapter, although a “limited” one. The Final Report issued by the HLWG recommends that TAFTA negotiations “address a limited number of significant IPR issues of interest to either side, without prejudice to the outcome.”

It is not clear what the HLWG is trying to say. The US and EU regimes are not alike. Geographical indications, for instance, continue to create a transatlantic trade conflict between the US and EU. They have fundamentally different philosophies on the issue.  The EU is committed to enhancing its vast gastronomic heritage of excellence, and pushes for more restrictive rules. The US wants to maintain the status quo to help giant companies like Kraft sell items like “parmesan” cheese around the world.

Any attempt to boost patent or copyright rules in favor of rights holders and against the interests of consumers would be a significant mistake and invite major public resistance. The defeat of ACTA in the EU and the overnight death of SOPA in the US were no accidents. They should serve as a stark reminder to policymakers on either side of the Atlantic.

It goes without saying we will not hold back from raising our voices once again in defense of our fundamental rights to free speech and health, and to uphold the benefits of an open knowledge economy.

To read the declaration of  transatlantic coalition of 45 consumer, public health and Internet freedom groups, visit http://www.citizen.org/ip-out-of-tafta.

The U.S. stock market may have just lost a critical safeguard – accountability to investors. On Thursday, a panel at the Financial Industry Regulatory Authority (FINRA), an industry-run group that regulates brokerage firms and exchange markets, disregarded its own policy, ruling that brokerage firm Charles Schwab and Company may insert class-action bans in its take-it-or-leave-it contracts with investors.

Schwab sought to capitalize on a recent corporate trend, following the 2011 U.S. Supreme Court decision in AT&T Mobility v. Concepcion, which permitted corporations to insert class-action bans within forced arbitration clauses in their one-sided contracts with consumers, investors and employees.

Forced arbitration clauses are used overwhelmingly by the securities and financial services industries. The practice deprives individuals of their right to seek redress in court. Studies and surveys on FINRA arbitration have shown that biases in favor of corporate entities and against weaker investors are evident in the private arbitration process.

Although limited to arbitration, investors who had similar claims against a broker-dealer could, under FINRA rules, band together in a single action in court against the firm. However, FINRA’s decision eliminates class actions, leaving serious claims such as fraud, unsuitable trading, breach of fiduciary duty and other securities law violations to be resolved in secret forums on an individual basis.

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Note: Public Citizen runs U.S. Chamberwatch, a project designed to shed light on the funding and practices of the largest private interest lobbyist in America, the U.S. Chamber of Commerce."Robert Weissman" "Public Citizen president"

U.S. Chamber of Commerce President and CEO Tom Donohue today delivered his annual State of American Business address. As he paints a fantastical picture of the unfair burdens imposed on Big Business, Donohue neglects to mention a few things, most importantly, that corporate profits are at record highs.

Of course, there’s nothing surprising here, since he gives pretty much the same speech every year. Still, a few comments are in order.

First, isn’t it a bit much for the rich and powerful to endlessly call for cutbacks in the nation’s leading anti-poverty programs, Social Security, Medicare and Medicaid? If Tom Donohue is concerned about the government’s fiscal situation, perhaps he should acknowledge the unreasonably low effective tax rate on corporations. Or declare that it’s outrageous for two dozen profitable Fortune 500 companies to pay zero in federal income tax in the past four years.

Second, he whines about a “coming flood of new regulations,” even as we still suffer from the Great Recession, a direct outgrowth of too little regulation and enforcement. This complaint comes despite no evidence that regulation meaningfully impedes job growth and despite lots of evidence that regulation protects and creates new jobs (not to mention making jobs safer, better paid and equitability available).

Third, he urges more NAFTA-style trade agreements, including the Trans-Pacific Partnership, a NAFTA-on-steroids that would encumber every country on the Pacific Rim. This call will come despite an abundance of evidence that this trade model has cost jobs, lowered living standards and undermined our sovereign ability to set our own safety and health protections.

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