US-Led Anti-Counterfeiting Trade Agreement is Vile

If anything else, you must admit that the Yanquis are persistent. With the coming of the so-called information age, a concern which has been near and dear to many US firms has been intellectual property rights enforcement (henceforth IP enforcement). The essence of the American concern is simple: with a modicum of effort online, it is not particularly difficult to "pirate" books, films, music, shows, and video games. For instance, the Recording Industry Association of America (RIAA) cites an Innovation Policy Institute study that claims losses to the recording industry amount to some $12.5 billion worldwide from physical and online music piracy.

Aside from not being particularly keen on the apparently endless proliferation of song-and-dance bimbettes, gangsta rappers, and other exemplars of high American culture, a more serious concern of mine is the method behind these studies. For instance, the Innovation and Policy Institute makes some fairly heroic (and obviously self-supporting) assumptions. First, they claim that 20% of those currently pirating music would pay for it without the benefit of substantially justifying where this figure comes from. Second, they blithely assume that these would-be converts to legal downloads would be willing to pay an assumed "Legitimate World and U.S on-line price of $0.99 per downloaded song" (see table 2). Again, there's the implicitly Amerocentric assumption that international music listeners would be willing to pay that price when (a) most physical music products are marketed at lower prices worldwide and (b) the price quoted is more reminiscent of that being charged by US online music stores like Apple iTunes.

Now, the Anti-Counterfeiting Trade Agreement (ACTA) is the latest in a long line of US-led efforts to preserve software rents largely at the behest of media titans represented by RIAA and the like. ACTA is not a trade agreement in the conventional understanding as it deals solely with IP issues. While essentially all of the counterparties involved in negotiating ACTA are developed country peers of the US, the key thing to remember is that, when enforced, ACTA would operate outside of existing global bodies dealing with intellectual property rights. Why is this important? Being the acknowledged architect of many international institutions, a recurrent criticism has been that of America continually devising more regimes if existing regimes are not deemed welcoming enough to US interests. For instance, while there already was a World Intellectual Property Organization (WIPO) prior to the creation of the WTO, the US lobbied hard for the inclusion of Trade-Related Intellectual Property Rights (TRIPS) since America didn't deem the WIPO stringent enough on enforcing US claims worldwide. Even arch-globalizers like Jagdish Bhagwati and Martin Wolf have criticized this excessive stringency on IP (more on this in a minute), and highly controversial applications are too numerous to list here alike the case of access to drugs for HIV-AIDS sufferers in the Global South.

In IPE, there is a phenomenon called "forum shopping" in which countries attempt to gain traction on pet issues by scouring international organizations for the most favourable legal opinion. Given its diminishing though still substantial power in agenda setting, the US has not only forum shopping but also forum creating abilities. That is, it shows little compunction in, well, dumping international organizations it itself often created if they prove to be insufficient in enforcing American interests. Perceptions of still-rampant piracy by RIAA and the like are now spurring the US government to (again) seek something via ACTA which is even more stringent than WTO-TRIPS (which, in turn, effectively superseded WIPO).

Development observers should particularly note that many developing countries are already wary of ACTA's implications. The US hopes that signing on developed countries would ratchet pressure on developing countries to do the same. That is, as developed countries adopt stricter regimes, they will feel unduly compromised by those who don't and demand that they do so. The South Centre has an informative primer on how developing countries, especially the likes of Brazil and India which have always been active players on global governance issues, are looking warily at this latest IP gimmick in a long line of IP gimmicks:

Though at present ACTA is being negotiated only between 11 parties, it is of concern for the developing countries because they could be required to enforce ACTA provisions through cross-referencing in bilateral free trade agreements with developed countries and in WTO accession agreements. The countries that are negotiating ACTA accounts for about 70 per cent of world trade. Hence, application of TRIPS plus enforcement standards in these countries [like ACTA] could lead to targeting products from developing countries as counterfeit goods, since the ACTA envisages any form of IPR infringement as counterfeiting.

This is illustrated by requests for detaining shipments of soymeal from Argentina in European ports on the request of Monsanto Corporation on the ground that the soymeal contained a gene over which Monsanto has a patent in Europe, though it did not have a patent in Argentina where the soymeal was produced [see here].

Further, the broad scope of border measures under ACTA that also require customs seizures of goods in transit can have a severe impact on the trade of developing countries. This can also impede the ability of developing countries to use the public health related flexibilities under the TRIPS Agreement that would enable them to import affordable generic medicines for ensuring access to medicines for their population. This has been shown in the seizure of genetic drugs produced legitimately in India when they were in transit in European airports (especially in the Netherlands) when these medicines were in transit on the way to Brazil, Africa, etc.

ACTA is at the centre of the TRIPS plus IP enforcement agenda that is being pushed by developed countries through various multilateral and bilateral forums such as the World Customs Organization (WCO), the Universal Postal Union (UPU), INTERPOL, WHO-IMPACT, and bilateral FTAs and EPAs. The provisions in ACTA would tend to set the template for TRIPS plus IP enforcement provisions that are being pushed through these various channels.

Therefore, developing countries should question the legitimacy of the ACTA negotiations and also highlight in multilateral forums how such negotiations are undermining the existing balance between IP and public policy issues in respect of food security, access to medicines and access to knowledge.

Developing countries should also closely examine the nature of institutional relationship between ACTA and multilateral organizations like WIPO and WTO, with the objective of ensuring that such institutional relations do not promote an unbalanced IP enforcement agenda through technical and legislative assistance provided by these organizations. Moreover, there is a need for awareness of this issue to be developed in the capitals and greater dialogue among developing countries on this issue beyond the ambit of the Geneva based missions. This would be particularly useful in helping developing countries being better informed about the grand strategy behind IP enforcement in bilateral negotiations with developed countries.

Supporting trade is already such a difficult cause. Many third world folks like me are not insuperably opposed to trade, but the US sure makes it difficult to argue for trade when the deck is often stacked so unfavourably against poor countries. In the words of one of America's most cherished entertainers, "Oops I Did It Again"--and you can bet the US is not that innocent in the trade realm.

N Korea @ World Cup: Why Pirated Tape Delay?

Well I'll be damned: contrary to almost everyone's expectations, North Korea fought toe to toe with mighty Brazil in their World Cup fixture. Up to the 55th minute, a stingy North Korean defence (OK, so they often kept five back, but I'd have done the same against Brazil) held things to nil-nil. Eventually, however, the laudable North Koreans tired somewhat and the genius of Brazilian football shone through. Still, Ji Yun-nam pulled one back with a brilliant goal near the match's end, reflecting the high-spirited play of North Korea.

It's a pity that the folks at home will have to make do with watching North Korea's valiant effort only a day after the rest of the world did. You see, South Korea holds the rights to broadcast this event in the Korean peninsula. What's more, the rather cash-strapped DPRK hasn't negotiated the rights to show World Cup matches in the Communist state. Additionally, the suspected torpedoing of a South Korean vessel by the North Koreans hasn't exactly been a reflection of sunshine policy. Hence, it should be of no surprise that North Korean state broadcasters stand accused of pirating South Korea's video feed.

On top of likely stealing the video feed, it's even being delayed to ensure the correct impression is made on the North Korean public. First, there may have been political messages in the crowd inadvertently flashed about the plight of North Korea. Second, the scoreline may need to be massaged to create the impression of "victory," howsoever defined. From the WSJ:

North Korea's TV station showed the opening game of the World Cup on Saturday though it didn't have the right to do so, and South Korea's official tournament broadcaster is trying to figure out if its signal was pirated for viewing in the North. State-run North Korea Central Broadcasting showed a taped replay of the South Africa-Mexico game, but the screen was enlarged to remove graphic elements [channel logos] from the picture, making it difficult to tell whether the station recorded a transmission from South Korea or China.

North Korea illegally used some South Korean broadcasts of the 2002 World Cup, but in 2006 it made an arrangement to obtain TV coverage legally from a South Korean network. For this year's tournament, the South Korean TV network SBS, which purchased broadcast rights for the Korean peninsula from World Cup organizer FIFA, held two meetings with North Korea's state-run broadcaster to pick up its coverage. But the two sides didn't come to an agreement, says Yang Chul-hoon, chief of the inter-Korean department at SBS. The network is now studying the video.

North Korea's soccer team qualified for the World Cup this year for the first time since 1966, when it reached the quarterfinals. But analysts say the country is unlikely to show live broadcasts of its own team—-legally obtained or not-—because of fears by its authoritarian government that the team will perform poorly or the prospect that protesters who dislike the North will be given screen time...

North Korea's coach, Kim Jong Hun, said during a news conference at the Ellis Park stadium in Johannesburg, where the team will play Tuesday, that the match will be broadcast in his country. "I am not involved in broadcast, but it will probably be shown on TV," he added.

Now that's what I call image management--albeit internal. But hey, if you're not a WTO member, do intellectual property rights really matter that much? To expand on Pierre-Joseph Proudhon, intellectual property is theft. If you're into the most trivial of trivia, though, the DPRK is a World Intellectual Property Organization (WIPO) member.

Starbucks Agrees to Ethiopian Coffee Trademarking

CSRwire.com reports that Starbucks and Ethiopia recently signed a distribution, marketing, and licensing agreement that should help Ethiopian coffee farmers reap value from the intellectual property of their distinctive, deluxe coffees:

Eight months ago Oxfam began working to raise awareness of Ethiopians' efforts to gain control over their fine coffee brands. Today, Starbucks has honored its commitments to Ethiopian coffee farmers by becoming one of the first in the industry to join the innovative Ethiopian trademarking initiative.

We covered this story last winter, looking at how Oxfam threw the weight of its powerful nonprofit brand behind the cause of poor Ethiopian coffee farmers. At stake were the Sidamo, Harrar, and Yirgacheffe varietals, thought to be among the best in the world. Policy Innovations raises its mug to this multistakeholder cooperation.

Balancing Innovation and Intellectual Property

"For industries ranging from software to pharmaceuticals and entertainment, there is an intense debate about the appropriate level of protection for intellectual property," write Felix Oberholzer-Gee and Koleman Strumpf in the abstract to their recent paper: "The Effect of File Sharing on Record Sales: An Empirical Analysis" (Journal of Political Economy, 2007, vol. 115, no. 1). Their data and analysis show that file-sharing and downloads from peer-to-peer networks have had an impact on declining record sales "that is statistically indistinguishable from zero." (JPE online requires a password. Here is an earlier version of their paper.)

This information is relevant to governments and businesses in developing countries as they consider how to capitalize on creative and cultural industries as engines for growth. Caribbean economist Keith Nurse believes that developing countries have a comparative advantage and window of opportunity in these fields.

Finding a new balance that encourages innovation, respects intellectual property, and delivers fast results is especially important in the global health sector. Thomas Pogge argued in the first issue of Policy Innovations that new incentive structures could be designed to meet these goals.