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 borders and no central or universal control mechanism.

– Also, communication mediums with content and with some relationship to governmental control mechanisms.

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?

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.

– The U.S. “total” copyright industries accounted for an estimated $1.38 trillion or 11.12 % of GDP in 2005

With all this growth, IP loses mounted too

• U.S. copyright–based industries suffered estimated trade losses due to piracy of over $18.4 billion in 2007.

• On a global basis (that is, in all countries/territories including the U.S.), 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.

Their laws are often referred to as “a license to steal.”

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.

But even non-MM IP is MM IPNot 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.

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).

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.

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

• 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: jim.cerny@unh.edu

• 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.

Who “runs” the Internet?No one. . . sortta

• There is also the Internet Governance Forum (IGF), representatives of carriers, ISPs, governments, international organizations, academics and others that:

• meets once a year and deals with topics such as: openness (the free flow of ideas and information); security (protecting users and networks); e-criminals (child abusers etc); cultural and linguistic diversity; and issues of access, particularly in the developing world. It takes no votes and makes no decisions but advises bodies that run the internet day-to-day, such as the Internet Corporation for Assigned Names and Numbers (Icann). (Sarson)

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)

• 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?– 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)