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Inside Views

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2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

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5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

The Politicization Of The US Patent System

The Washington Post story, How patent reform’s fraught politics have left USPTO still without a boss (July 30), is a vivid account of how patent reform has divided the US economy, preempting a possible replacement for David Kappos who stepped down 18 months ago. The division is even bigger than portrayed. Universities have lined up en masse to oppose reform, while main street businesses that merely use technology argue for reform. Reminiscent of the partisan divide that has paralyzed US politics, this struggle crosses party lines and extends well beyond the usual inter-industry debates. Framed in terms of combating patent trolls through technical legal fixes, there lurks a broader economic concern – to what extent ordinary retailers, bank, restaurants, local banks, motels, realtors, and travel agents should bear the burden of defending against patents as a cost of doing business.


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    Inside Views
    Inside Views: Capture, Sunlight, And The TPP Leak

    Published on 14 November 2013 @ 9:47 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    Margot Kaminski writes in Concurring Opinions: Yesterday, Wikileaks leaked the draft IP chapter of the Trans-Pacific Partnership Agreement (TPP). This is the first of two posts I’ll make on the significance of the leak. In this post, I discuss why the leak matters from the process perspective. In the next, I’ll point out detailed substantive issues in the draft’s copyright provisions. Unsurprisingly, the process and the substance are closely intertwined.

    [This article was originally posted to Concurring Opinions, here.]

    Up until this leak, only a subset of domestic IP stakeholders has had access to the TPP text. The U.S. Trade Representative has shown the draft text to its closed advisory committees, but not to anybody else. Content industries and pharmaceutical industries sit on the IP advisory committee. Internet industries, smaller innovators, generics companies, and public interest groups do not.

    This is no accident. When Congress established the trade negotiating system, it exempted the Trade Representative from requirements of an open government law that was enacted to prevent agency capture, the Federal Advisory Committee Act (FACA). FACA requires transparency, a limited term length for industry advisory committees, and balanced membership on those committees. The trade advisory committee on IP does not have balanced membership. It is not subject to public oversight. And it has an extended term limit, at the discretion of the USTR. Other open government laws also don’t apply—the USTR exempts itself from the Freedom of Information Act (FOIA) by claiming a national security exemption, and the Administrative Procedure Act (APA) doesn’t apply to international lawmaking. As a consequence, the U.S. role in international IP lawmaking is captured through one-sided industry advice.

    The USTR is supposed to be exporting US IP law. But what the USTR exports is not US law. The USTR paraphrases US law; it doesn’t export our statutes. This process allows information capture to have substantive consequences.

    The paraphrasing USTR sends out is worse than our law. It’s less balanced, and it’s missing things. In places, the USTR misrepresents that one side of a current circuit split is the authoritative word on issues that deeply divide domestic constituents.

    These skewings and omissions are not an accident. Some are directly requested by the IP advisory committee—you can see the requests in past advisory committee reports on other free trade agreements. Others are the result of the USTR’s failing to consult public interest, academics, or opposing industries, who would point out what must be included, what’s wrong, and which omissions matter.

    Balanced advice is necessary at the level of the text. The USTR recently conducted a series of “stakeholder phone calls,” where it takes questions on broad policy issues. These calls are transparency theater, not transparency. They lump together stakeholders on an impossibly wide range of issues—from dairy to textiles to IP. Discussions are high-level, where many of the problems with USTR’s policies are textual problems. The devil, in law, is very much in the details.

    The USTR is captured in other ways, too. There is a significant revolving door problem. USTR negotiators come from and leave for employment in the same IP industries that sit on its advisory committee. But the crux of the problem is that nobody outside of the advisory committees sees the text.

    This is why the TPP leak is so important: it levels the playing field. It lets those who aren’t on the advisory committees, like me, find and point to misrepresentations the USTR is making. If there is one thing I’d say to our negotiating partners, it’s this: find yourself a good U.S. lawyer who can tell you what is actually in U.S. IP law. And let them read what you’re negotiating.

    Our domestic IP law is the result of democratic political process. Even if that process has been subject to significant collective action problems, it still shows compromise. Constituents on opposing sides of an IP issue arrive at legal meaning through statutory and regulatory compromise, and litigation. Courts play an important role in reinserting balance into the system. The international agreements we negotiate and sign are produced by a closed and captured process. What little balance we achieve domestically is not what we are sending abroad.

    This approach will have consequences. As many rightfully point out, it will harm developing countries. But it will also harm domestic constituents. Google now makes over 50% of their profits overseas, and we export copyright law that will make it more difficult for them to operate abroad. What’s more, the Internet is global—digital copyright law made abroad affects online content available to people here. And the law the USTR exports affects our policymaking process at home. It binds us to detailed IP law created by advising incumbents. Deviations from that law may result in threats of trade sanctions.

    Killing fast track is one way to change the system. If fast track is stopped, Congress will have much more input into the trade process. It will be able to amend trade agreements. But this is a blunt instrument, and it might kill international trade. A more tailored combination of changing the advisory system, giving the USTR precise and enforceable negotiating objectives, and increasing transparency could produce the changes we need. This is why I signed the law professors’ letter calling for transparency in trade, issued today. One leak won’t fix things, but it’s certainly a start.

    Sunlight is the best disinfectant. Many thanks to Wikileaks for doing what we rightfully expect our government to do.

    [Note: the second post by this author, on TPP and Copyright, is available here.]

     

     

    Comments

    1. virginia says:

      Great article. I always felt USTR worked like this, but I thought it was my own paranoia. Thanks so much for posting.

    2. Secret trade deals says:

      […] as intellectual property stakeholders – are able to access and influence the text through the US’s trade consultation process, unlike their public interest group counterparts. Freedom of Information requests to disclose TPP […]


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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