“Free-trade” pacts export U.S. copyright controls

by Stephan Kinsella on October 17, 2011

Who needs ACTA, when other trade agreements are also exporting the draconian US DMCA-type copyright provisions to other countries? See Declan McCullagh’s CNET column, excerpted below:

Free-trade pacts export U.S. copyright controls

by Declan McCullagh October 14, 2011 3:01 PM PDT

President Barack Obama and President Lee Myung-bak of the Republic of Korea at the White House this week.

(Credit: White House)

President Obama called the approval of free-trade agreements with Colombia, Panama, and South Korea this week “a major win for American workers.”

What he didn’t add is that the deals, which were given final approval on Wednesday by the U.S. Congress, are also a major win for the motion picture industry and other large U.S. copyright holders. Other portions specify that consumers can have their choice of computer software, but “subject to the needs of law enforcement.”

You won’t find this highlighted on the administration’s Web site (really, Web sites), but the three free-trade agreements export some of the more controversial sections of U.S. copyright law.

One chapter of the complex agreements echoes the Digital Millennium Copyright Act (DMCA), which the U.S. enacted in 1998 over the objections of librarians and computer scientists. It’s been used to threaten college professors, stymie research into HP security vulnerabilities, and jail a Russian programmer who created an e-book conversion utility.

Now Colombia, Panama, and South Korea will be required to prohibit circumventing any “technological measure that controls access to a protected work”–meaning that making a backup copy of a DVD or video game will become illegal, and, depending on the details, a crime as well.

The language of Chapter 18 (PDF), the intellectual property section, does not include the limited safeguards that Americans enjoy. The U.S. DMCA, for instance, allows the U.S. Copyright Office to consider the state of computer technology and create exceptions, a requirement that is not exported to the signatories.

Update:

From Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance:

I note that although his “Tabarrok Curve” implies we have “gone too far” and that patent and copyright terms are too long, in a recent discussion, implies the patent term is too low because of FDA delays and thus favors legislation such as the 1984 Hatch-Waxman Act that provide for patent term extension of up to 5 years when there is delay caused by regulatory review, e.g. from the FDA. Tabarrok also seems to think the patent term is 15 years. Howefver, the patent term is 20 years from date of filing, not 15; and since it usually takes 2-3 years⁴ before it issues, most issued patents have a term of about 17 to 18 years. Does this mean Tabarrok would say that the Patent Term Extension of Hatch-Waxman “goes too far” since, after all, the 17 year patent term is already 2 years longer than Tabarrok seems to think is already too long? One doubts it. Moreover, in the same discussion Tabarrok mentions positively how the US twisted the arm of Australia in 2005 when negotiating a “free trade” agreement to expand its IP protection for pharma patents and also extended its copyright term from life of the author plus 50 years to life plus 70, to match the insane US term. Free trade agreements have nothing to do with local property rights; that is the province of bilateral investment treaties, which are usually negotiated between a developed country and a developing country. So here we have so-called IP reformer who says IP protection is too strong but he gets the term of patents wrong, and things they should be extended, and favors US IP imperialism to force other countries to extend their own copyright terms.