A couple of weeks ago, we reported on a terrible idea in France: requiring companies to pay for the use of public domain material. As the post explained, this is a subversion of what it means for something to enter the public domain, and a betrayal of the implicit bargain of copyright. Fortunately, the plan was dropped, partly as a result of the outrage it generated.
Naively, I assumed that this was a lucky escape, but that the idea would be back unless we were on our guard. I was wrong: the idea won’t be back, because it has already been implemented in a number of other countries. For example, Jorge Gemetto pointed out on Twitter that something called the “paying” public domain has existed in Uruguay and Argentina for many years. He linked to an interesting article on the topic by Maximiliano Marzetti, who lists even more countries blighted by this copyright perversion: Algeria, Kenya, Ruanda, Senegal, Republic of the Congo, Côte d’Ivoire, and Paraguay. Marzetti refers to a 2010 report from WIPO, which explore the idea of the “paying” public domain further.
A recent article in the Guardian reveals that Italy, too, has this awful approach, whereby any use of the country’s publicly owned art to sell merchandise requires permission and payment of a fee. That includes works that were never in copyright, and have been in the public domain for hundreds of years, as the French fashion house Jean Paul Gaultier found to its cost:
Italy’s Uffizi Galleries are suing the French fashion house Jean Paul Gaultier for damages that could exceed €100,000 (£88,000) after the company’s allegedly unauthorised use of images of Botticelli’s Renaissance masterpiece The Birth of Venus to adorn a range of clothing products, including T-shirts, leggings and bodices.
The article goes on to explain that the Uffizi Galleries sell merchandise themselves, which means this is about money, as it always is. That’s what copyright does, even to some of the people running the greatest art galleries and museums. The idea that the real public domain – not the damaged, “paying” kind – should be defended for itself, as a matter of principle, never seems to enter their heads.
Last December, BestNetTech wrote about Australia fending off an attempt by Philip Morris to use corporate sovereignty to overturn the country’s plain-packaging regulations. As we pointed out, this wasn’t proof that investor-state dispute settlement (ISDS) was no threat to national sovereignty, despite what some were claiming. Australia won on purely procedural grounds, not because the ISDS tribunal agreed that Australia had a fundamental right to regulate.
However, as the BestNetTech article also mentioned, there is another tobacco case based on corporate sovereignty provisions in a trade deal — the one which Philip Morris brought against Uruguay. It’s fortunate that Uruguay decided not to roll over, but to contest the case — something it could only do because of funding from a foundation set up by former New York mayor Michael Bloomberg — because a tribunal has just found in its favor:
The award released on Friday brings to a close a six year dispute between the global tobacco giant and Uruguay, with an arbitral tribunal upholding Uruguay’s right to do two things: prohibit tobacco companies marketing cigarettes in ways that falsely present some cigarettes as less harmful than others and require tobacco companies to use 80% of the front and back of cigarette packs for graphic warnings of the health hazards of smoking.
Uruguay’s lawyers, the Boston-based firm Foley Hoag, praised the decision as having broad international consequences.
As that quotation from an article in The Mandarin suggests, this is a much more significant decision than the Australian one, because Philip Morris did not lose on procedural grounds this time. That establishes a crucial precedent for other countries that wish to introduce health measures affecting tobacco packaging. Several have been holding off from bringing in such laws until they knew what happened to Australia and Uruguay, and therefore what legal risks they would run. We can probably expect many more nations to move forward with new legislation now, not least because Philip Morris was also ordered to pay $7 million of Uruguay’s $10.3 million costs (pdf).
Uruguay’s regulations on cigarettes did not bring in plain packs of the kind adopted by Australia. Instead, the South American country currently limits how much of the cigarette packet can be used for branding, and also stops tobacco companies from making misleading claims that their products are “mild” or “ultra-light.” However, The Mandarin notes that Uruguay will:
soon move towards all tobacco products being sold in generic packages, with even larger warnings of the harms caused by smoking, in an effort to further reduce smoking levels.
The latest defeat for Philip Morris clears the way for Uruguay to do that. Even more importantly, it also represents a high-profile failure of the tobacco company’s strategy of using the threat of ISDS litigation to apply pressure to nations not to bring in legislation. It’s hard not to think that the tribunal’s refusal to sanction this approach is due to a massive growth in public awareness and public antipathy towards corporate sovereignty, an area that not so long ago was a sleepy corner of trade law familiar to only a few specialist lawyers.
All around the world, people are pushing to get copyright updated to reflect the digital world we live in. And all around the world, copyright industries are fighting tooth and nail to stop them. Here’s an example from Uruguay, where something good could be about to happen on the copyright front, as a post on the Creative Commons blog explains:
Uruguay is in the process of updating its copyright law, and in April a bill was preliminarily approved in the Senate. The law introduces changes that would benefit students, librarians, researchers, and the general public by legalizing commonplace digital practices, adding orphan works exceptions, and removing criminal penalties for minor copyright infringements. University students were the original proponents of the limitations and exceptions bill.
Of course, all that was totally unacceptable to the local publishing industry, which got together and wrote a document outlining what it would like to see instead. By an amazing coincidence, its suggestions would neuter most of the changes that might benefit the public by:
Eliminating the exception that permits copying for personal use
Retaining the possibility for criminal penalties for minor infringements
Drastically limiting the scope of exceptions and limitations for education
Adding severe restrictions on libraries
Enacting restrictions on freedom of panorama
The Creative Commons post has the details, and summarizes:
Their document recommends scaling back most of the user-friendly provisions in the bill, cuts other items that were drafted by the Council of Copyright in the Ministry of Education and Culture — and which already received unanimous political support by all parties in the Senate.
That last point about the unanimous cross-party political support shows that the copyright maximalists care as little about democracy as they do about the public. All they want is to retain the privileges they have enjoyed for hundreds of years, and to hell with anyone else.
BestNetTech first mentioned the Trade in Services Agreement (TISA) last year, when “The Really Good Friends of Services” — the self-chosen name for about 20 members of the World Trade Organization — could no longer keep their plans locked behind closed doors, and word started to spread. Essentially, TISA completes the unholy trinity of global trade agreements that also includes TPP and TAFTA/TTIP. Between the three of them, they sew up just about every aspect of trade in both goods and services — the latter being TISA’s particular focus. They share a common desire to liberalize trade as much as possible, and to prevent national governments from imposing constraints on corporate activity around the world.
One particularly blatant reflection of this desire is the inclusion of something called the “ratchet clause.” As with “The Really Good Friends of Services,” that’s an official name, not something chosen by the opponents of TISA (although they could hardly have come up with anything more revealing.) Here’s how the European Commission’s TISA page explains it:
A ratchet clause in a trade agreement means a country cannot reintroduce a particular trade barrier that it had previously and unilaterally removed in an area where it had made a commitment.
In other words, the ratchet clause ensures that there is only one direction of travel — towards greater deregulation, and greater loss of control by sovereign nations.
TISA is unusual for being honest about introducing a ratchet. But there’s another, more subtle, kind of ratchet that acts on all major treaties. It means that once a country has joined the negotiations, it becomes increasingly hard to back out, whatever the growing reservations of its public once they find out what is being done in their name. Indeed, that one-way street is one of the most powerful features of trade agreements: corporations only need to get some coveted but controversial measure inserted in a treaty’s text, and it will automatically cascade down to all the signatories, however much they — or their people — may dislike it. It’s how things like anti-circumvention laws for DRM were brought in: once it was included in the WIPO Copyright Treaty, all signatories had to pass legislation implementing it, because they had “no choice”, the treaty “forced” them to do it — a convenient excuse for passing unpopular laws.
The trade ratchet is also why big treaties tend to get bigger: the more countries that join them, the greater the pressure on others to join too lest they are left out in the economic cold. And once in, they tend to stay in. TISA is already huge — around 50 countries are participating — so the pressure to join is proportionately intense, and the idea that a country already part of the negotiations might pull out of such “important” talks is similarly unthinkable. And yet that is precisely what Uruguay’s Congress has just voted to do:
The ruling progressivist coalition Broad Front overwhelmingly decided to withdraw Uruguay from the negotiations on the supra-national trade-deal TISA (Trade in Services Agreement) in a vote on Saturday.
Inside US Trade today (behind a paywall, but currently visible on its home page) reports:
Uruguayan President Tabare Vazquez has decided to withdraw his country from the negotiations for the Trade in Services Agreement (TISA) following opposition from the center-left ruling coalition and national labor unions, and has ordered his foreign minister to formally notify other participants in the talks.
Clearly, the withdrawal of Uruguay will have almost no effect whatsoever on TISA itself: the major trading nations will continue their talks behind closed doors, agreeing more of the text that locks in their view of how trade in services should be freed from government controls. But Uruguay’s move possesses a tremendous symbolic importance. It says that, yes, it is possible to withdraw from global negotiations, and that the apparently irreversible trade deal ratchet can actually be turned back. It sets an important precedent that other nations with growing doubts about TISA — or perhaps TPP — can look to and maybe even follow.
Okay, I know that it’s become something of a cliche for blogs and news sites to repost John Oliver clips, but dammit, if the guy doesn’t keep on covering the types of stories that we normally cover around here. I mean, Stephen Colbert and Jon Stewart used to touch on related topics maybe once every six months or so, whereas Oliver seems to hit on a BestNetTech-worthy topic basically every other week (so often we don’t get to all of them!). This past week, he did his big segment on the nasty games that Big Tobacco plays around the globe to market its products to just about everyone. Yes, in the US, most cigarette advertising is blocked, but Big Tobacco has just shifted to more vulnerable populations around the globe. That topic, by itself, isn’t directly in BestNetTech’s wheelhouse — but in the middle of the segment, there’s a discussion about corporate sovereignty, and specifically the use by Big Tobacco of “investor state dispute settlement” (ISDS) provisions to allow the big tobacco companies to sue countries for daring to try to regulate cigarettes, advertising or packaging.
The segment on corporate sovereignty starts at around 6 minutes, right after showing examples of ridiculous tobacco commercials that are shown around the globe:
Now countries can try to counteract the influence of that kind of marketing, but if tobacco companies feel threatened, they’ll put them through legal hell. Let me take you on a world tour of how they attack laws intended to protect public health, because it’s kind of amazing.
Let’s start in Australia. In 2011, they passed a plain packaging law, and what that means is this. [Shows (fair use!) news clip describing required packaging of cigarettes with no branding, and scary health pictures]. Australia’s plain packaging law bans tobacco company branding from packaging and replaced it with upsetting photos, such as the toe tag on a corpse, the cancerous mouth, the nightmarish eyeball, or the diseased lung. Now, yes, I’m pretty sure I’d find a healthy lung disgusting, but, that thing does look like you’re trying to breathe through baked ziti, so [instructing staff] take it down! Just take it down!
Perhaps unsurprisingly, since this law was implemented, total consumption of tobacco cigarettes in Australia fell to record lows and… nightmares about eyeballs have risen to record highs. [Instructing staff] Take it down! Take down the demon eye!
To get these laws, though, Australia has had to run a gamut of lawsuits. First, two tobacco companies sued Australia in its highest court to stop them. The result, was a little surprising, as Australia’s attorney general let everyone know. [Shows clip of AG announcing not just the victory, but Big Tobacco having to pay the government’s legal fees.] Yes! Score one for the little guy! Even if that little guy is the sixth largest country in the world by landmass.
And the tobacco companies didn’t just lose. The judges called their case “delusive,” “unreal and synthetic” and said their case had “fatal defects.” ….
But Australia’s legal troubles were just beginning. Because then, Philip Morris Asia got involved. [Shows clips of a news report saying Philip Morris considering using ISDS provisions to take the Australian government to a tribunal claiming it lowered the value of the company’s trademarks].
That’s right. A company was able to sue a country over a public health measure, through an international court. How the fuck is that possible? Well, it’s really a simple explanation. They did it by digging up a 1993 trade agreement between Australia and Hong Kong which had a provision that said Australia couldn’t seize Hong Kong-based companies’ property. So, nine months before the lawsuits started, PMI put its Australian business in the hands of its Hong Kong-based Philip Morris Asia division, and then they sued, claiming that the “seized property” in question, were the trademarks on their cigarette packages.
And you’ve got to give it to them: that’s impressive. Someone should really give those lawyers a pat on the back… and a punch in the face. But, a pat on the back first. Pat, then punch. Pat, punch….
He then goes on to point out how Big Tobacco further got three other countries to file complaints with the World Trade Organization (WTO) against Australia, claiming the plain packaging law violates trade agreements: Honduras, Dominican Republic and Ukraine. Oliver then shows a clip noting that Ukraine does not have any tobacco trade at all with Australia, showing how ridiculous the WTO claim is.
Next, he shows how Big Tobacco is sending threatening letters to other countries, like Uruguay, Togo and Namibia for considering health regulations around tobacco products, even going so far as to totally misrepresent the total loss of its lawsuit in Australia, pretending that it was a victory. Oliver’s researchers got letters that Big Tobacco sent these countries, threatening “an incalculable amount of international trade litigation.”
There’s even more in the video — though it would be great if Oliver also took on the fact that these kinds of ISDS/corporate sovereignty agreements are at the heart of key trade agreements currently being negotiated today by the US and much of the rest of the world in both the TPP agreement and the TTIP agreement.
It’s because of stories like this that we’re so concerned about these corporate sovereignty provisions. Defenders insist they’re necessary to stop countries from absconding with assets built by foreign companies and investors, but that risk tends to be fairly limited, compared to how these agreements are actually being used: to allow corporations to effectively step in and block regulations designed to protect the public.
