IP Justice Says that FTAA Got Infected With Lousy IP Rules

I generally avoid trade law and trade treaties, on the grounds that life is too short. The way trade law is going, however, I may have to make some exceptions. I've already had to read up on the dispute settlement rules in major trade treaties to teach International Law, which I'm doing for the first time this year.

Now, IP Justice, a civil liberties group, has just published FTAA: A Threat to Freedom and Free Trade. In it they analyze the Intellectual Property parts of the draft Free Trade Area of the Americas Treaty which is intended to go into effect in 2005. Their summary is scary enough that I think I'll have to go read the full agreement and see if it is as bad as they say. [Note: Headline corrected.]

The FTAA seeks to unite the 34 democracies in the Western Hemisphere (including the US) to a single trade agreement akin to NAFTA. Parts of the treaty take an aggressive position on harmonization issues—and these are among the controversial parts.

According to IP Justice's summary, the draft intellectual property rights chapter in the FTAA Agreement will expand criminal procedures and penalties against intellectual property infringements throughout the Americas. One proposal in Article 4.1, they say, would make Internet music swapping a felony throughout the Western Hemisphere in 2005.

Worse, apparently the proposed agreement forbids consumers from bypassing technical restrictions on their own CDs, DVDs and other property, similar to the controversial US Digital Millennium Copyright Act (DMCA). That would 'lock-in' the DMCA — just at a time when proposals to repeal part of it are gathering some steam in US Congress.

Ironcially, for a “free trade” agreement, the FTAA would enshrine price discrimination by making illegal to bypass trade barriers such as DVD region code restrictions.

Other frightening stuff in the IP Justice summary:

The draft treaty also imposes new definitions for “fair use” and “personal use,” curtailing traditional fair use and personal use rights to a single copy and only under limited circumstances. This prevents consumers from backing-up their media collections, using their media in new and innovative ways, and accessing media for educational and non-commercial purposes.

Another clause would require all countries to amend their copyright laws to extend copyright's term to at least 70 years after the life of the author, essentially forcing the new US standard on all other 33 countries in the hemisphere. Although forbidden by the US Constitution, FTAA's copyright section would allow companies to copyright facts and scientific data.

Another provision requires all domain name trademark disputes to be decided by the Internet Corporation for Assigned Names and Numbers (ICANN), a private and unaccountable organization that is ill equipped to determine the limits of freedom of expression rights or the scope of intellectual property rights. Americans would no longer have access to their local public courts to adjudicate rights over their Internet domain names. [I really got to check this out — that sounds dubious — as the current and highly flawed ICANN procedure provides for subsequent court actions….]

“The FTAA Treaty's IP chapter reads like a 'wish list' for RIAA, MPAA, and Microsoft lobbyists,” said IP Justice Executive Director Robin Gross. “Rather than promote competition and creativity, it is bloated with provisions that create monopolies over information and media devices,” stated the intellectual property attorney.

The next round of FTAA Treaty negotiations will be here in Miami from November 16-21, 2003. Looks like I better read it by then….