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The Contributions Of Julian Assange To The Debate On Intellectual Property

Cables on intellectual property (IP) issues from United States embassies in various parts of the world, leaked by Wikileaks, reveal how the country works to achieve its objectives.

By Lillian Álvarez [1]

Note: This article first appeared in CubaNow! [2] and is republished with permission from the author. [Please note that some document links may not be working.]

Revelations made by Wikileaks ratify what has been long been an open secret. The United States – and transnational corporations that make up the real imperial power – are most interested in promoting legislation and intellectual property agreements increasingly stronger and are willing to demand, using all means at their disposal, that the rest of the world does the same.

Perhaps some people still do not understand the reason behind this interest, since intellectual property regulations are aimed at protecting and encouraging the creation and development of the arts, literature and the scientific field, something apparently so little akin to the militaristic and colonial desires and the desires of plundering with which we have identified the US foreign policy for over two centuries now.

It would be necessary to review some information to understand it fully. Incomes related to copyright (only one “branch” of the so-called intellectual property) in the US were in 2006 about 1.38 trillion dollars (1) a year. Let’s just think about the software and the power and presence of Microsoft or Apple products, or about the lucrative video game industry or the audiovisual industry with Hollywood and its giant studios, or the music industry, including the advertising industry worth millions, the design industry, and others. With regard to other intellectual property rights, the owners of very famous and expensive brands and more widespread and questionable patents (2) come from this country, whether pharmaceutical patents (Johnson & Johnson, Pfizer), technological (Apple, IBM, Google, Hewlett-Packard, etc.) or of biotechnology, such as the sadly famous Monsanto transnational company.

These corporations, the owners of these rights, need to ensure that on the markets where their products, patents or trademarks are present (and indeed they are, thanks to globalization, in all parts of the world) there is a “favorable” environment for their protection, so no possible profit generated from the most remote countries could be diverted.

The authors of the Copy South Dossier [3] (an excellent analysis about the impact of IP laws on developing countries) concretely wonder why countries of the South need to learn about the intellectual property policies “cooked” in developed nations:

While countries in the North, particularly the United States, have moved from a manufacturing base to one of services, and hence to a knowledge base for their economies, the creation of new sources of income has become crucial. Governments can better protect these new income flows if the technologies and the content that are the basis of knowledge – such as licensed software or entertainment products- are more ruthlessly protected with a comprehensive intellectual property regime applied globally; in fact such protection helps the
copyright industries of the North to obtain higher monopolistic profits.(3)

The US government itself has expressly said: intellectual property is a strategic issue in its foreign policy and will be defended, in the words of Obama himself, “aggressively”.

While reviewing a good few number of cables leaked by Wikileaks on intellectual property issues coming from US embassies in various parts of the world, the way in which this country works to achieve its objectives becomes evident.

1. Firstly, it can be asserted that the US embassies carry out systematic monitoring of the state of intellectual property laws, their implementation and application in each country, including the position of officials and politicians who can influence local decisions in this matter.
Examples: Italy 02ROME1072 [4], Venezuela 10CARACAS169, Jamaica 10KINGSTON176 [5], France 09PARIS1560 [6], Vietnam 03HANOI1559 [7], México 07MEXICO6229 [8], Bulgaria 06SOFIA983 [9], Japan 09TOKYO482 [10] and 06TOKYO3567 [11].

2. The US embassies exert direct pressure on officials who can influence this matter in order to achieve cooperation agreements and commitments with respect to legislative changes and state actions against intellectual property law offenders.
Examples: Brunei 10BANDARSERIBEGAWAN18 [12], Sri Lanka 03COLOMBO1386 [13], El Salvador 10SANSALVADOR252 [14], Honduras 02TEGUCIGALPA2548 [15].

3. These actions have increased in European countries in order for national legislative changes to be adopted, aimed primarily at stemming the so-called Internet piracy, the most notorious examples of which have been direct actions for the approval of the so-called Sinde Law in Spain, 04MADRID736 [16], 07MADRID2305 [17], 10MADRID174 [18], 08MADRID843 [19], among others, and the Hadopi law in France 09PARIS559 [20], among others.

4. US embassies contact the private sector and their associations to encourage them to pressure their governments and try to accelerate the legislative changes and undertake the desired actions.
Examples: Nicaragua 09MANAGUA939 [21], Bulgaria 09SOFIA603 [22], Russia 07MOSCOW5352 [23].

5. Organizations like the US Department of Commerce – primarily through the Commercial Law Development Program, the US Patent & Trademark Office (USTPO), and the Supreme Court, directly execute, with the support of the US embassies, training actions in many countries, directed to officials, judges, district attorneys, police, customs personnel, students and others to familiarize them and train them in the fight against intellectual property infringement.
Examples: Nigeria 01ABUJA2017 [24], Honduras 02TEGUCIGALPA2548 [15], Estonia 10TALLINN28 [25], Jamaica 10KINGSTON176 [5], China 9GUANGZHOU619 [26], México 07MEXICO6229 [8], Bulgaria 09SOFIA603 [27].

6. The USAID, sadly known for its support for subversive activities [28] and activities of interference in many countries, advises and financially supports these actions of “training and technical assistance.”
Examples: Nigeria 01ABUJA2017 [24], Honduras 02TEGUCIGALPA2548 [15], Sri Lanka 03COLOMBO1386 [13].

7. The US, by way of its embassies, promote, check and press governments for their commitment to intellectual property agreements with high standards of protection, such as those of the WTO and WIPO or others with higher standards, like the Anti-Counterfeiting Trade Agreement (ACTA) and other bilateral and multilateral trade accords.
Examples: Jamaica 10KINGSTON176 [5], Sweden 09STOCKHOLM736 [29], Sri Lanka 03COLOMBO1386 [13], Italy 08ROME1337 [30].

8. US embassies assume the objectives of Microsoft and the Business Software Alliance (BSA) as their own, and try to prevent the spread of free software, open source and the adoption of open standards.
Examples: Venezuela 09CARACAS1599 [31], Thailand 10CHIANGMAI18 [32], Brazil 07SAOPAULO1001 [33], México 07MEXICO6229 [34].

9. US embassies closely follow the action of the so-called Pirate Parties opposing current intellectual property rules in anticipation of their possible influence on society and government.
Examples: Bulgaria 09SOFIA603 [22], Germany 09BERLIN1188 [35], Sweden 09STOCKHOLM355 [36].

10. Also monitored are the results of the administrative and police actions and rulings by courts of law with respect to the resolution of conflicts related to intellectual property.
Examples: Saudi Arabia 10RIYADH75 [37] and 09RIYADH1202 [38], Sweden 09STOCKHOLM736 [29], El Salvador 10SANSALVADOR252 [14], México 07MEXICO6229 [8], Bulgaria 06SOFIA983 [39].

11. US business associations like the Business Software Alliance (BSA), the Motion Picture Association of America (MPAA), the International Intellectual Property Alliance (IIPA) and companies such as Microsoft, take part in the direct advising of governments, and their data and analyses are used by the United States as sources of information to make recommendations and put pressure on other countries.
Examples: Spain 09MADRID982 [40], and 10MADRID174 [18], Sri Lanka 03COLOMBO1386 [13], Saudi Arabia 09RIYADH1202 [38], Japan 09TOKYO482 [10].

12. The “Special 301” or “Report 301”, annually issued by the US Trade Representative (USTR), classifies each country according to the state of its intellectual property legislation and the application thereof. This report is used as an instrument of blackmail to pressure governments.
Examples: Saudi Arabia 09RIYADH1626 [41], Jamaica 10KINGSTON176 [5], El Salvador 10SANSALVADOR252 [14], Italy 08ROME1337 [30], Spain 08MADRID724 [42], Japan 09TOKYO482 [43].

As can be appreciated, monitoring and pressure on governments include countries from all continents, from the most underdeveloped to European countries and trading partners.

But we should not think that all these actions are carried out covertly. If we review the Web site of the Commercial Law Development Program [44] (CLD) a division of the US Commerce Department, we see the large number of projects of “assistance and training” already implemented, the themes of which are related to intellectual property standards and primarily directed to the judicial sector and the sphere of law observance. This program has the declared objective that it “helps achieve” U.S. foreign policy goals in developing countries and countries that experienced conflicts and help them “modernize” the laws and regulations that will lead them to “economic growth and opportunities for their people.”

It is striking, for example, that from September 19th through the 22nd, 2011, the Commercial Law Development Program and the Iraqi Institute for Judicial Development organized a workshop on observance of intellectual property rights in Baghdad. The workshop focused on common disputes on trademarks, copyrights, commercial secrets and other forms of intellectual property. The needs met by this training in a devastated country, totally plundered in terms of its cultural heritage and still occupied by foreign troops, are clear.

Taking only the information appearing on that website, we also knew that between June 2010 and September 2011, in just 15 months, 24 training activities related to intellectual property, including workshops, courses, etc. were carried out. The countries these actions were directed at were: Iraq, Kyrgyzstan, Ghana, Liberia, Nigeria, Kenya, Rwanda, Bosnia and Herzegovina, Mali, Egypt, Tunisia, Pakistan, Georgia, Ghana, Senegal, Ukraine, Poland, Slovakia, Hungary, Romania, Moldova and Uganda.

It is also curious to see not only the issues dealt with but also the approaches of this training. Already in Geneva in 2005, in a document presented at the WIPO by a group of countries to establish a “Development Agenda [45]” the content and approaches of the technical assistance provided by that organization to developing countries, among other things, were questioned.

As its fundamental idea, the document argued that the promotion of intellectual property in itself was not valid unless it was accompanied by policies that would respond to the specific needs of each country.

At the same time, it questioned the upward harmonization of these standards, that is, the intention to apply more rigorous protection criteria in all countries, irrespective of their levels of development and regardless of the economic and social costs this legislation could impose, not only on poor countries but on all consumers of knowledge, cultural content and technologies, in both the North and the South.

“Not only the interests of holders of intellectual property rights should be considered and respected, but also those of society at large, and of the particularly vulnerable population segments,” expressed the document.

These criticisms raised at the WIPO in 2005 can undoubtedly serve as a reference at the time of interpreting “disinterested” cooperation on the part not only of the US government but also of international organizations, associations of professionals, universities, institutes, NGOs and others, often free, lying like a hook to the mouth of a hungry fish.

Let’s recall Professor Julio Fernandez Bulte, PhD and Professor Emeritus of the University of Havana, who said: “I have always maintained that the science (Law) is not innocent and is generated and reversed in a historic environment in which it does good or evil. And good and evil have different readings for the poor and the rich, the good of the First World is often the evil of our peoples and the good of the latter is normally seen as subversive attitude by politicians of the First World.”(4)

The “gaps” and “weaknesses” of our legal systems and institutions, criticized by many organizations and international “advisers”, are precisely the areas on which we must advance autonomously, try new ideas and relationships and build new structures, which could be more effective or less effective in a short term, but that at least will be our fruits and not yet another foundation to underpin an outdated order, which is, in addition, demonstrably unfair.

This was already known, but the persecuted Julian Assange helped us come closer to the details, extent and nerve with which the masters of the world move, even in these subjects. There are some cables available, and there are more.

Derecho de ¿autor? El debate de hoy [46]” and other articles about intellectual property and other themes. Álvarez also published two other books, entitled: “Ni el aire ni el espejo” and “Ya los Reyes no existen” (poetry). She has worked as a legal adviser and professor. She promotes the “In defense of knowledge and culture for all [47]” network, and works for the Cuban Chapter of intellectuals, artists and social activists from the net “In Defense of Humanity [48]“.

A Spanish version of this article is here [49].

(1)Copyright Industries in the U.S. Economy: The 2006 Report.
(2)In 2008, the United States occupied first place on the list of countries with valid patents, with a total of 1,872,872 patents registered.
(3)The Copy/South Dossier: Economic, political and ideological problems of copyright in the global South. The Copy/South Research Group, 2006. Edited by Alan Story, Colin Darch and Debora Halbert.http://www.porlacultura.org/descargas.php o http://www.copysouth.org/
(4)Julio Fernandez Bulte: Foreword to the book Derecho de ¿autor? El debate de hoy, Lillian Alvarez, Ciencias Sociales Publishing House, Havana, 2006.http://www.porlacultura.org/pdf/ll0006.pdf

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