On the Gripping Hand

Astute readers of the net will have noticed that Korea has a proposal for a three strikes or, should we say “graduated response” piece of legislation.

France is also going through the process of such legislation in spite of the fact that the European Parliament has declared it not suitable to Europe. In Ireland, the IP industry has coerced the largest ISP and has sent demands to the smaller ISPs to put in place a graduated response mechanism without legislation. That’s their preferred tactic, I think.

Germany has recently knocked back such a proposal, but there appears to be a surge in United States and other countries for such processes to be put in place.

This has led some people to ask “is this just about the RIAA or are they just a useful stalking horse for wider goals of censorship and control?”.

In my view, that’s bordering on tinfoil hat territory. I’m not disputing there is a wider game being played globally by interested parties, and to some extent it’s about control. But I really don’t think censorship’s the driving force. However, I agree that the RIAA et al are front and centre, while machinations occur behind closed doors.
There is definitely a Charge of the IP Brigade to shut down what they see as infringements. What people forget is that the IP Brigade is not limited to the RIAA, the MPAA, or even our own RIANZ. I think that “graduated response” is an idea whose proponents feel its time has come (when all you’ve got’s a hammer…) but it’s only one aspect of the global pressure to secure “intellectual property rights” as physical assets.

We’re seeing a lot of action, globally, on this front, and have been for some time. There’s the SECURE working group, in the World Customs Organization, for one. Another example, although less well defined, is the ACTA — the Anti-Counterfeiting Trade Agreement. We don’t have a lot of details about ACTA. What we do know from leaked documents is that it’s as heavy on the IP side as it is on the counterfeiting — some might say more so.

The official line on ACTA is that it comes out of the United States and Japan because they feel that the WTO, and TRIPS especially, is not moving fast enough to protect their intellectual property industries. It actually goes a little deeper than that — with some major players who have kept well out of the spotlight.

In 2004, the first Global Congress on Combating Counterfeiting was held. Its major sponsor was the Global Business Leaders Alliance Against Counterfeiting (GBLAAC). Don’t go looking for them — they don’t exist any more. And their sponsorship was at one point removed from the official record of the Congress although it’s back now. The member organizations of the GBLAAC included Proctor & Gamble, Unilever, British American Tobacco, DaimlerChrysler, Philip Morris and Coca-Cola and speakers from those companies were on the agenda.

The other sponsors of the Congress appear to have been a global law firm called Baker McKenzie, and an IP and patents firm, Rouse and Co. International. Also participating were Interpol, the International Trademark Association (INTA), the International Security Management Association (ISMA), WIPO, and the World Customs Organisation.

The message was carried from the Global Congress to the 2005 G8 meeting and from there to WIPO but got no traction. They venue shifted to the WTO but likewise had no success. The banner was picked up again in 2007 by the USTR (United States trade Representative) who collaborated with Japan to present plurilateral negotiation process called ACTA, with invited participants including New Zealand.

The original sponsors are heavy hitters, and are used to playing a long game. These multinational companies with very deep pockets are the real drivers behind this wave of IP regulation. They stand to make or lose a lot of money. Tobacco and drugs (legal ones) are the focus of the counterfeiting side. Tobacco is regarded as counterfeit if it hasn’t got the appropriate government licence. The tobacco is as real, but it hasn’t been through the process.

The focus on the drug side is more about generics than fake drugs, although the safety aspect is what’s being pushed. And there’s enough truth in that to gain support.

An example of what’s at stake is that a counterfeit drug, in the US, is one that hasn’t been passed by the FDA, which can include foreign drugs and generics. You can buy it over-the-counter in Canada quite legally but if you are going on to the States, you should get rid of it as it will be regarded as counterfeit.

This part of the attack is aimed largely at India, a major source of generic drugs primarily because they can’t afford the “genuine article”. Another area that suffers is Africa, where HIV/AIDS and other killer diseases are rampant partly because they can’t afford the drugs to combat it. Generics could help them a lot but would reduce the profits of the companies, collectively known as Big Pharma.

In my opinion, the real source of this problem is the corrupt process that’s called the US Congress. In order to get elected, candidates except support from vested interests. Some of those interests drug companies, some Hollywood studios, some other music industry — all have IP they wish to jealously protect — and the legislators (some honestly) agitate to create and support legislation that their benefactors say they need to be competitive.

While a side-effect of all this protection may be a form of censorship and control, I don’t think that that is the main objective — follow the money.

“Graduated response” is only a weapon du jour. That’s why repealing s92A is only part of the solution. We need as a nation to examine what copyright means how cultural context, and how we relate to the rest of the world. We need a copyright regime that respects creators, consumers, and the businesses in between on a fair basis. And we need to examine just what copyright means from first principles.