General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region Forums"...worse than NAFTA". And President Obama's U.S. Trade Negotiators are weasels
Yeah, yeah. Some folks trust these people 100%. How sweet.
Professor Flynn wrote this on April 15 of this year. He's a widely respected lawyer and professor. His area of expertise is the " intersection of intellectual property, trade law, and human rights".
https://www.wcl.american.edu/faculty/flynn/
Last week I expressed my shock in seeing that the Trans Pacific Partnership agreement proposes to expand (or at least clarify) the ability of corporations to challenge intellectual property limitations and exceptions in so called investor-state dispute settlement (ISDS) tribunals. One source of that surprise came from my recollection of repeated meetings with USTR negotiators who assured me and others that ISDS forums were not intended to provide a means to challenge intellectual property limitations and exceptions.
I have one specific record of such a conversation to share. In September 2012, after the USTR released a fact sheet on new language for the TPP requiring balance” in copyright legislation, Peter Jaszi, Mike Carroll and I met with USTR negotiators. In an unusual twist for such meetings, the USTR attendees agreed that the meeting would not be off the record. So we took notes and sent a letter to then USTR Ron Kirk summarizing our understandings from the meeting.
At the meeting, we asked specifically about whether the investor-state dispute settlement (ISDS) chapter could provide a cause of action for private investors to challenge the fair use doctrine in general, or particular fair uses cases. The negotiators’ answer, as reflected in our letter to Kirk, stated:
It is not the intent of the United States that the Investor-State provisions of the TPP would apply to provide causes of action for investors through the intellectual property chapter that could be used to appeal to an international tribunal fair use or other interpretations of the U.S. Copyright Act by U.S. courts. Compliance with intellectual property obligations in international agreements has been a matter of state-to-state consultation and dispute resolution, and the United States does not intend to alter that process in the TPP.
<snip>
The TPP agreement would be the first free trade and investment treaty entered since the Eli Lilly case was filed under NAFTA. It thus provides an opportunity to cut off this line of reasoning by ISDS lawyers. But we now know that, at least of January of this year, the TPP’s investment language is worse than NAFTA on IP. It states:
<more at Professor Flynn's very informative blog InfoJustice>
http://infojustice.org/archives/34219
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cali
(114,904 posts)future ftas- and it's one of the most far reaching and problematic aspects of the tpp and the ttip.
so..
KICK
riderinthestorm
(23,272 posts)I mean, it's one of the keystones of the trade agreement so you'd think they'd be all over this debunking the good professor....
....crickets.
cali
(114,904 posts)is their tactic. That's why I like to keep kicking information like this.
And Professor Flynn meets with USTR reps. Of course they could always go for the "he's a liar" attack.
closeupready
(29,503 posts)makes it go down easier, even when the victims understand they are being lied to.
K&R
magical thyme
(14,881 posts)But there's something particularly sinister about the TPP's version of ISDS. Article II.7(5) is the provision on how ISDS applies to intellectual property issues, it reads:
The Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights in accordance with the TRIPS Agreement, or to the revocation, limitation, or creation of intellectual property rights, to the extent that such issuance, revocation, limitation, or creation is consistent with Chapter QQ._ (Intellectual Property Rights) and the TRIPS Agreement.
In the footnote to this text, it says the use of "limitation" in this provision also include exceptions to copyrights. At first it seems like the purpose of this language is to prevent investor-state courts from making determinations on how countries enact intellectual property rules. But the last part of this provision is the hitch. It specifies that the ISDS provisions do not apply to copyright and patent rules as long as those rules are "consistent with" the TPP's Intellectual Property chapter and the TRIPS agreement.
Who decides whether the country's rules are consistent with the TPP? The ISDS court itself is the one who makes that determination. This means that the agreement gives the ISDS court the ability to interpret national compliance with the provisions of the TPP, a dangerous proposition given the partisan nature of ISDS courts. These tribunals are usually comprised of three private-sector attorneys who take turns being the judge and the corporate advocate.
https://www.eff.org/deeplinks/2015/04/leaked-tpp-investment-chapter-reveals-serious-threat-user-safeguards
cali
(114,904 posts)and Professor Flynn wrote a fantastic piece on why the current proposed TPA won't help on any of these issues. I'm also really frustrated and disturbed by the deliberate use of language that obscures rather than makes clear, so that it can be interpreted by those without knowledge or understanding as something that upholds law rather than what it is in reality, language that actually undermines it.
Here's Flynn's piece on the tpa (which as you probably know, dictates much more than just the up or down vote on trade deals that its known for. He beautifully illustrates the problems with language:
Fact or Fiction: Does the Hatch-Wyden-Obama Trade Promotion Authority Bill Protect U.S. Sovereignty Over Domestic Policy?
Trade Promotion Authority (TPA) bill that was released last week contains a fascinating Section 8 on “Sovereignty.” The section appears intended to make all trade agreements with the U.S. not binding to the extent that they contradict any provision of U.S. law, current or future. If valid, the section would go a long way to calming fears in this country that new trade agreements, like the old ones, could be used by corporations or other countries to force the U.S. to alter domestic regulations. (See, for example, analysis on how the leaked TPP text could enable challenges to intellectual property limitations and exceptions like the U.S. fair use doctrine).
Here, I analyze Section 8’s promise using The Washington Post’s “Fact or Fiction” Pinocchio scale. For containing numerous blatantly misleading characterizations of international law, including outright falsehoods concerning the ability of U.S. Congress to determine when international law binds, I give the provision four Pinocchios.
Section 8 of the TPA bill states:
8. SOVEREIGNTY
(a) UNITED STATES LAW TO PREVAIL IN EVENT OF CONFLICT.—No provision of any trade agreement entered into under section 3(b), nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States, any State of the United States, or any locality of the United States shall have effect.
(b) AMENDMENTS OR MODIFICATIONS OF UNITED STATES LAW.—No provision of any trade agreement entered into under section 3(b) shall prevent the United States, any State of the United States, or any locality of the United States from amending or modifying any law of the United States, that State, or that locality (as the case may be).
(c) DISPUTE SETTLEMENT REPORTS.—Reports, including findings and recommendations, issued by dispute settlement panels convened pursuant to any trade agreement entered into under section 3(b) shall have no binding effect on the law of the United States, the Government of the United States, or the law or government of any State or locality of the United States.
Let’s take these in order. Section (a) is a repetition of the language in every free trade implementation act that has passed congress since NAFTA. In technical detail, it is mostly literally true. International trade agreements, like most international treaties in the U.S., are non-self-executing, meaning that they only become judicially cognizable as U.S. law through domestic legislation implementing their mandates. Section (a) can be seen as articulating that standard. Elsewhere, the bill makes clear that the President has to identify through draft implementing legislation all the changes in US law required by the treaty. Any changes in law required by the treaty that are not adopted by the Congress in that implementing legislation will have no effect on U.S. law.
It is not true, however, that a failure of Congress to implement changes a treaty requires renders those provisions has having “no effect” whatsoever. The non-implemented provisions will still bind the U.S. under international law. Some other party of the treaty, or a private investor under investor-state dispute settlement (ISDS), could (depending on the enforcement language in the treaty) sue the U.S. for damages or to authorize trade sanctions. That dispute settlement process would bind the U.S. government – and have effect – even though it would not change U.S. law.
The language in (b) was not included in the last Trade Promotion Authority bill to pass Congress in 2002 or in any Free Trade Agreement implementing act. It shows that one of the major criticisms of U.S. trade policy, especially in the intellectual property field, is taking hold. The criticism is that even when the trade agreement provisions are consistent with presently existing U.S. law, they still have the negative effect of locking the U.S. into its present legislative structure.
Take the example of the use of software or services to break the code on a locked cell phone to use it with another carrier. Such action circumvents the “technological protection measure” imposed by the cell phone maker that blocks access to copyrighted software driving the phone. The Digital Millennium Copyright Act makes such “circumvention” illegal absent an exception. And the U.S. has entered a series of trade agreements that require countries to abide by the DMCA standard as it then was, including the lack of a permanent exception for cell phone unlocking. And thus, if Congress adopts a permanent exception for this problem (or for another problem, like facilitating accessible format copies for people with disabilities) the U.S. will be in derogation of trade agreement language it has already signed.
So does TPA section (b), claiming that nothing in a trade agreement can “prevent the United States, any State of the United States, or any locality of the United States from amending or modifying any law,” solve the problem? No it does not. Like (a), section (b) can be read as literally true. The U.S. Congress can always amend U.S. law in contravention of international law, and therefore nothing in a trade agreement can “prevent” the amendment of U.S. law. But the clear implication of the section is, like (a), that changing our laws to violate a treaty will have no effect. This is clearly not true. If Congress changes our law to be in violation of a treaty commitment, the only way to avoid liability for that change is to re-negotiate the applicable treaties to remove the confining language at issue.
Section (c) contains the biggest whopper. There, the bill claims to be able to render findings by dispute settlement panels with “no binding effect” on the law or “the Government” of the U.S. The key here is that international law, not U.S. law, decides the extent to which international treaties bind and the scope of remedies available. If a treaty has a dispute resolution process, then the nature of how that process binds an individual country is determined by the treaty, including any reservations made in the treaty itself, not by local trade authorization legislation.
<snip>
http://infojustice.org/archives/34298
historylovr
(1,557 posts)Maybe TPP supporters are avoiding this thread because it's more difficult to hurl accusations of xenophobia at, or talk about how greedy Americans are for wanting to keep their jobs. 
cali
(114,904 posts)knowledge and experience.
historylovr
(1,557 posts)And I hope people pay attention to what he says. There is so much at stake here.
I also want to say, if I haven't said so before, that I really appreciate your efforts to show how insidious this deal is.
Enthusiast
(50,983 posts)Sock weasels.
cali
(114,904 posts)Bunch of lying fucks doing the corporations dirty work.
erronis
(15,180 posts)Please keep these coming. Thanks for the link to InfoJustice.
I'm sure there are some discussions going on about diversion, denial, personal attacks, etc. It should be interesting to watch.
cali
(114,904 posts)it doesn't matter how much that armor is ripped apart or that their argument's legs have been cut off beneath them, they're still in denial.
and thanks.
riderinthestorm
(23,272 posts)