Re: EC response to TACD recommendations on e-commerce and intellectual property (fwd)

These are issues that are starting to ally us all becuase of the uniform
application of concepts which pervert the inaleinable rights of individuals.

They bring them above the protection responsibilities of governments to courts
constructed from the legal departments of multinational corporations to pass
judgement on nations who try to protect their citizens and assets.

This is done behind closed doors. NAFTA is the first such example and it is
clear that the basic provisions of this agreement were hidden from the
lawmakers who, later, and better informed, crushed Mr. Clintons fast track
legislation.

NAFTA, the MAI and support for organizations such as the WTO are an
incredibally easy way for "liberals" to support individual and cultural rights
on one level while neutralizing them in the end w/ a single stroke.

In the ultimate insult to national constitutions, these "treaties" have been
conducted in complete secrecy and therefore outside the due process of law. To
the WTO, these agreements are made at a level above the laws of individual
governments, and, since there is no global constitution, there is no due
process law to violate. If there were one, it would be in the hands of the UN,
the World Bank, the IMF, and the WTO, and hence would never be enforced.

The litmus, to me, has been the use of accusations of racism against anyone who
dares to protect fallen ethnicities. While they generally deny this, I belive
this particular perversion is the invention of "civil libertarians." It is
simply a hereditary extension of the orginal form of the origianl world trade,
colonialism, which consisted of asset exploitation and slavery.

The most frustrating aspect of this new branch of law is that its complexity is
deliberately intensified to make it incomprehensible to the average human and
therefore impervious to the usual checks and balances of democracy.

My two euro-cents :)

--- Lynn Winebarger <owinebar(at)free-expression(dot)org> wrote:
>
> Thought you guys might be interested in this.
>
> Lynn
>
> ---------- Forwarded message ----------
> Date: Fri, 12 Nov 1999 19:38:09 -0500
> From: James Love <love(at)cptech(dot)org>
> Reply-To: cni-copyright(at)cni(dot)org
> To: Multiple recipients of list <cni-copyright(at)cni(dot)org>
> Subject: EC response to TACD recommendations on e-commerce and intellectual
> property
>
>
> --- EC response to TACD recommendations on e-commerce
> and intellectual property
>
> The Trans Atlantic Consumer Dialogue (TACD) is a forum of more than
> 60 US and EU consumer organizations which develops and agrees upon
> joint consumer policy recommendations to the US government and European
> Union. It was organized in 1998, and has a web page at
> <http://www.tacd.org/>.
>
> The TACD was increased in part in response to the Trans Atlantic
> Business Dialogue (TABD), which was organized much earlier.
> <http://www.tabd.org>. There are also similar dialogues on labor and
> the environment.
>
> The following are the April 1999 TACD recommendations concerning
> Intellectual Property and electronic commerce, followed by the European
> Commission's responses.
>
> The EC's responses were disappointing in many areas, and generally
> a justification of the status quo. Indeed, often the EC offers a TABD
> position (the Business dialogue) as a justification of its policies,
> which is hardly comforting to TACD members (consumer groups).
>
> One interesting EC comment concerned business practices patents.
> TACD had asked the EC and the US government to hold hearings to
> determine if e-commerce business practices patents were "needed, or if
> they are unnecessary, anticompetitive and socially wasteful." The EC
> comment was:
>
> With regard to patents on so-called "business
> practice patents" (Recommendation No. 7), currently
> Article 52 of the European Patent Convention excludes
> from the scope of patentable inventions "schemes,
> rules and methods for doing business". Therefore, the
> request by the TACD to solicit public comments and
> hold public hearings in this respect would not be of any
> additional value at the moment.
>
> Unfortunately, the US government is issuing these patents in
> large numbers, and Article 27.1 of the WTO's TRIPS agreement
> on intellectual property requires member countries to provide
> patents:
>
> available for any inventions, whether products or
> processes, in all fields of technology, provided that
> they are new, involve an inventive step and are capable
> of industrial application . . . patents shall be
> available and patent rights enjoyable without
> discrimination as to the place of invention, the field
> of technology and whether products are imported or
> locally produced.
>
> Some US government officials, including officials from the USTR,
> are arguing that the US government should force the EC and
> other WTO members to extend patent to business practices.
>
> Here are the TACD recommenditons, followed by the EC response.
>
> Jamie Love <love(at)cptech(dot)org>
>
>
> <-TACD Recommendations on Intellectual Property and E-Commerce->
>
> Intellectual property and electronic commerce
>
> The Internet and new information technologies present a number of
> complex issues regarding intellectual property rights. Authors
> and creators have an interest in protecting unauthorised
> commercial exploitation of their own works, but also in obtaining
> access to the works of others. Firms that sell computing
> equipment and software may seek protection for those works, but
> also may need the right to reverse engineer or develop products
> that are interoperable with works owned by others. Citizens
> benefit from the economic incentives of copyright laws, but
> also from fair ("innocent") use exemptions in several national
> copyright systems. The free flow of information is essential
> for a variety of purposes, including the exercise of free speech
> and the ability of innovate and create. Education use presents
> special issues, including those involved in distance learning.
>
> For these reasons, governments in the US and the EU should
> embrace an intellectual property framework that includes the
> following elements:
>
> 1. Distance Education. Mechanisms to protect
> copyrighted works on the Internet should not unduly
> restrict the ability of educators to share information
> with students in ways that are equivalent to current
> practices involving more conventional teaching methods.
>
> 2. Privacy. There are important conflicts between
> privacy and certain technologies that protect copyrighted
> materials. Privacy is a social good. Society should
> avoid mechanisms to protect copyright that are
> unreasonable intrusions on personal privacy, particularly
> when less intrusive mechanisms are technologically
> feasible.
>
> 3. Copyright exceptions. Governments should
> provide copyright exceptions that address such issues as
> fair or innocent use, private copying, library uses,
> research and private study, and exceptions that are
> essential for reverse engineering and other techniques
> needed for the development of interoperable products.
> Consumer rights in the digital world should not be less
> than traditional rights in older publishing and other
> information technologies. Consumer rights for fair uses
> of copyrighted materials should not be alienated by
> coercive or unfair contracts. Legislation to implement
> WIPO treaties should address these concerns.
>
> 4. TRIPS Article 13. Governments should ask the WTO
> to expand Article 13 of the TRIPS regarding exceptions to
> copyrights. The language is currently too narrow, and
> does not even include the language in Article 30
> concerning patents, that permits governments to consider
> the legitimate interests of third parties.
>
> 5. Public Domain and non-commercial software. The
> public domain and non-commercial software plays an
> important role in public and commercial life. The
> Internet is built upon public and open protocols and uses
> a wide range of free software programs. Free software
> operating systems such as Linux and xBSD are important
> alternatives to more monopolistic server technologies.
> Databases of government information provide an important
> new foundation for civic democracy in the information
> society.
>
> 6. Database rights. National legislation to protect
> investments in databases should avoid overly broad
> protections, creating rights in facts, or rights that lead
> to anticompetitive or monopolistic acts.
>
> 7. Business Practice Patents. The US and EU
> governments should ask competition authorities to solicit
> public comments and hold public hearings on the policy
> issues associated with issuing patents on business
> practices, including those associated with electronic
> commerce, to determine if these patents are needed, or
> if they are unnecessary, anticompetitive and socially
> wasteful.
>
> 8. Parallel Imports. Electronic commerce raises profound
> and fundamental challenges to national policies that seek
> to restrict parallel imports of goods. Government should
> provide for international exhaustion of rights for
> copyrights, patents and trademarks, as is permitted under
> Article 6 of the WTO/TRIPS agreement, so that consumers
> can benefit from the free flow of goods. Governments can
> require that goods be labelled or identified as parallel
> imports, if such requirements benefit consumers and do not
> present unreasonable restrictions on trade in parallel
> goods.
>
>
> Appendix
>
> TRIPS Articles 6, 13 and 30
>
> Article 6
> Exhaustion
>
> For the purposes of dispute settlement under this Agreement,
> subject to the provisions of Articles 3 and 4 nothing in this
> Agreement shall be used to address the issue of the exhaustion of
> intellectual property rights.
>
>
> Article 13
> Limitations and Exceptions
> (copyright)
>
> Members shall confine limitations or exceptions to exclusive
> rights to certain special cases, which do not conflict with a
> normal exploitation of the work and do not unreasonably prejudice
> the legitimate interests of the right holder.
>
>
> Article 30
> Exceptions to Rights Conferred
> (patents)
>
> Members may provide limited exceptions to the exclusive rights
> conferred by a patent, provided that such exceptions do not
> unreasonably conflict with a normal exploitation of the patent
> and do not unreasonably prejudice the legitimate interests of the
> patent owner, taking account of the legitimate interests of third
> parties.
>
>
> <-------------------EC Services Response------------------->
>
> EUROPEAN COMMISSION SERVICES' RESPONSE
>
> The European Commission services take note of the Recommendations
> made by the TACD on matters relating to the protection of
> intellectual property rights in the framework of electronic
> commerce. The emerging Information Society will bring new
> challenges to the protection of intellectual property rights. A
> number of these challenges resulting from the digital environment
> have already been addressed in two international treaties adopted
> in December 1996 under the auspices of the World Intellectual
> Property Organisation (WIPO Copyright Treaty and WIPO
> Performances and Phonograms Treaty). They represent a major step
> forward in providing for adequate protection of authors,
> performers and phonogram producers in the digital environment.
> The Draft Directive on Copyright and Related Rights in the
> Information Society plays a crucial role in this context. The
> aim of this proposal is to adjust and complement the existing EU
> framework on copyright and related rights to provide for a
> Community-wide level playing field in the digital environment,
> which ensures public acceptance of the new services and fosters
> creativity and investment in them. At the same time, the draft
> Directive serves to implement the main obligations of the two
> WIPO treaties signed by the European Community and Member States
> in the course of 1997. The European Community and the Member
> States are currently in the process of ratifying and implementing
> these treaties. Citizens will benefit from a harmonised legal
> framework on copyright and related rights, including appropriate
> exceptions to these rights, as well as the conditions of their
> application. Such a harmonisation is crucial in order to
> facilitate cross-border exploitation of copyright protected goods
> and services, including their dissemination to users. The TABD
> has already stressed the need for swift ratification and
> implementation of the two treaties by the U.S., the EU and other
> third countries.
>
> The TRIPs Council has just begun to look into matters related
> to the impact of electronic commerce on the protection of
> intellectual property rights. Further discussions will be held
> in the near future to examine the current provisions of the
> TRIPs Agreement and the possible need to adapt them to the new
> developments.
>
> On the general introduction to the Recommendations, it should be
> noted that authors and related right holders have an interest
> not only to receive protection against commercial exploitation
> of their works and other subject matter, but also against their
> illegal exploitation by private users. Access to works is,
> naturally, facilitated through publication. As regards reverse
> engineering, Article 6 Council Directive No. 91/250/EEC on the
> Legal Protection of Computer Programs already provides for this
> facility in order to achieve the interoperability of computer
> programs with other programs.
>
> The need for limitations and exceptions to copyright and
> related rights for certain uses, such as for educational use
> (Recommendation No. 1), private copying, library use and
> research (Recommendation No. 3) has always been recognised, in
> the international conventions as well as in the EC "acquis
> communautaire" on copyright and related rights, including
> proposed legislation which explicitly allows for exceptions
> for specific uses. However, the economic impact of any such
> exception in the new technological environment may be different
> compared to the traditional environment. The scope of certain
> exceptions may therefore need to be re-assessed in the light of
> the new environment, in order to avoid economic damage to the
> market of protected works and other subject matter.
>
> In general, conflicts between privacy and copyright protection
> should not arise (Recommendation No. 2). As far as personal data
> are concerned, Directive No. 95/46/EC on the Protection of
> Individuals with regard to the Processing of Personal Data and
> on the Free Movement of such Data, also applies to the area of
> copyright and related rights, thereby ensuring adequate
> mechanisms to respect privacy.
>
> Article 13 of TRIPs Agreement (Recommendation No. 4) provides for
> the possibility to allow limitations and exceptions to copyright
> and related rights based on the corresponding Article 9,
> paragraph 2 of Berne Convention. Given the different nature of
> industrial property, the corresponding provisions in the patent
> area (Article 30 of TRIPs Agreement) also requires account to be
> taken of the "legitimate interests of third parties".
>
> The creation of works, notably software, often requires
> considerable creativity and deployment of skill and labour
> (Recommendation No. 5). Authors are vested with intellectual
> property rights. It is, therefore, up to the author to decide if
> and when to allow third parties to use his works against the
> payment of a fee or not. While it is true that public domain and
> non-commercial software play an important role in public and
> commercial life, this must not undermine the author's legitimate
> interest in receiving adequate compensation for exploitation of
> his property.
>
> On the protection of databases (Recommendation No. 6), Directive
> No. 96/9/EC on the Legal Protection of Databases allows Member
> States to provide for a number of exceptions to the rights of
> authors and makers of databases conferred under the Directive,
> including for private purposes, teaching and scientific research,
> etc. It, therefore, strikes a careful balance between the
> interests of authors and makers of databases and of users. With
> regard to possible anti-competitive practices in the area of
> databases, it has to be recalled that the exercise of
> intellectual property rights is subject to the provisions of
> competition law. Moreover, the Directive provides for rights in
> databases or in substantial parts of databases, but not in facts.
>
> With regard to patents on so-called "business practice patents"
> (Recommendation No. 7), currently Article 52 of the European
> Patent Convention excludes from the scope of patentable
> inventions "schemes, rules and methods for doing business".
> Therefore, the request by the TACD to solicit public comments
> and hold public hearings in this respect would not be of any
> additional value at the moment.
>
>
> The question of parallel imports, i.e. the exhaustion of
> exclusive rights (Recommendation No. 8), remains very sensitive.
> The TRIPs Agreement leaves it up to the WTO Members whether or
> not to allow parallel importation. The European Commission has
> commissioned, in the area of trademarks, a study on the impact of
> parallel imports which was discussed with the interested parties
> in April 1999. The European Commission is currently evaluating
> the outcome of the study and the comments received in order to
> review the current system of regional exhaustion in the
> Community. In this respect it has to be noted that the TABD
> expressed its opposition to the international exhaustion of
> intellectual property rights.
>
>
> --
> James Love / Director, Consumer Project on Technology
> http://www.cptech.org/ / love(at)cptech(dot)org
> P.O. Box 19367, Washington, DC 20036
> voice 202.387.8030 / fax 202.234.5176
>
>
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=====
John van Vlaanderen

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