TAFTA/TTIP: trade, Internet and democracy
glyn moody
trade agreements
are numerousACS, AFTA, AFTZ, ALBA, APEC, APTA, BIMSTEC, CEFTA,
CEN-SAD, CISFTA, COMESA, CSN, DR-CAFTA, ECCAS, ECOWAS, EU-MEFTA,
FTAA, GAFTA, GCC, IGAD, MERCOSUR, NAFTA, PACER, PICTA, RCEP, SAFTA,
SCO, SADC, SICA, UMA
are boring
are invisible
ACTA
most Europeans couldn't even name a trade agreement before
2012
in 2012, millions of Europeans became aware of one in
particular
Anti-Counterfeiting Trade Agreement (ACTA)EU, Australia, Canada,
Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, &
the United States
European protests
EU-wide street protests organised for 11 February
organised onlineNetzpolitik.org
La Quadrature du Net
massive numbers took to the streetsGermany (100,000), Denmark
(15,000), Austria (10,000), Bulgaria (7,000), Romania (5,000),
Hungary (1,000)
ACTA's problems
civil damages"any legitimate measure of value the right holder
submits...which may include suggested retail price"
criminal damages"to be applied at least in cases of ...
copyright or related rights piracy on commercial scale"
"for direct or indirect economic or commercial advantage"
digital chapter"promote cooperative efforts within the business
community"
defeat for ACTA
4 July: plenary vote on ACTA
European Parliament voted down ACTA by 478 votes to 39, with 165
abstentions
remarkable majority
remarkable rejection of international trade agreement negotiated
by European Commission
victory for democracy
David Martin, ACTA Rapporteur:"for the first time the European
Parliament has used the powers granted by the Lisbon Treaty to
reject an International Trade Agreement."
Martin Schulz, EP President:"demonstrated the existence of
European public opinion that transcends national borders."
TAFTA/TTIP
TAFTA/TTIP is not (just) a trade agreement: mostly about
"non-tariff" barriershealth, safety, employment, environmental
regulations
119 billion GDP increasedismantling both tariff &
non-tariff
24 billion GDP increasedismantling tariff barriers
figures relate to 2027
TAFTA/TTIP and ACTA
Karel de Gucht"ACTA, one of the nails in my coffin. Im not going
to reopen that discussion. Really, I mean, I am not a masochist. Im
not going to do this by the back door"
EU negotiation directives for intellectual monopolies: "shall
not include provisions on criminal sanctions"
what about civil ones?
EU-Singapore FTA
initialled 20 September 2013
still to be agreed upon by the European Commission and the
Council of Ministers
ratified by the European Parliament
has several sections that are cut and paste from ACTA
ACTA backdoor?
EU-Singapore FTA 11.44.2 Damages: "any legitimate measure of
value the right holder submits...which may include suggested retail
price"ACTA 9.1 Damages
so if European Parliament ratifies this FTA, easy to put it into
TAFTA/TTIP
maybe other ACTA elementsdigital chapter
ISDS
also included in EU negotiation directives is strong call for
"investor-state dispute settlement" (ISDS) measures
increasingly common element of trade agrements
even more obscure and unknown and not just among general
public
ISDS facts (1)
basic idea is to protect investors from arbitrary government
actions or weak court systems in developing countries
achieved by allowing companies to take action directly against
governments
using specialist external tribunals
ISDS facts (2)
tribunal generally 3 lawyers, who also represents companies
before similar tribunals
no conflict of interest rules
no limits on amount of award against a governmentlast year saw
biggest ever award $1.77 billion to Occidental, against Ecuador
very limited appeal rights
ISDS facts (3)
United Nations Conference on Trade and Development (UNCTAD) 2012
ISDS Report:new cases last year 58
total ISDS cases so far 518
countries involved 95
EU countries involved 15
most cases from US companies
70% in favour of companies
ISDS facts (4)
ISDS cases:Australia adding warnings to cigarette packs
Canada banning pesticide; moratorium on fracking
El Salvador refusing mine permit
Germany nuclear power phase-out
Mexico refusing to allow toxic waste plant
Uruguay adding warnings to cigarette packs
Eli Lilly vs Canada (1)
Canadian courts invalidated patents on two Eli Lilly drugs
in November 2012, Eli Lilly sued Canada for $100 millioninvoking
ISDS in North American Free Trade Agreement (NAFTA)
in July 2013, increased claim to $500 million for the two drugs
patents that were denied
Eli Lilly vs Canada (2)
Eli Lilly claims Canada has not met "minimum standards of
treatment"patent maximalism in US
as a result, Eli Lilly's "expectation of profit" was "unjustly"
upset by courts' decisions
this makes it a victim of "indirect expropriation"
monopolies as investments
ISDS originally applied to tangible items such as buildings,
machinery etc., designed to prevent expropriation by foreign
governments
Eli Lilly case now seeks to appliy ISDS to intellectual
monopolies and tries to define patents as investments, and
therefore protected from "expropriation" by withdrawal
ISDS and EU
German proposal to ban software patents (again)
calls to widen copyright limitations & exceptions in EUtext
& data mining
calls for "fair use" provision in UK
"failure" to update 2004 directive on enforcing intellectual
monopolies (IPRED)
TAFTA/TTIP:ACTA backdoor 2?
not by the back door *directly*, but *indirectly*
allows companies to challenge laws or court decisions on
intellectual monopolies that harm their "expectation of profit"
challenge Internet laws
to avoid that, EU might push for ACTA-like measures
back-door ACTA+
not only could ISDS bring in ACTA's worst ideas
also allows any standards and regulations not levelled down by
non-tariff removal to be challenged
so claims that TAFTA/TTIP will not affect EU's regulatory regime
are misleading if ISDS is part of it
TAFTA/TTIP's other problem
fight against ACTA was in part a revolt against secret
deal-making that threatened ordinary people's use of the
Internet
like ACTA, TAFTA/TTIP will be conducted behind closed doors,
with minimal information about what is happening
new fight for transparency
new surprising ally (NSA)
NSA is spying on European Union embassies in US
NSA is spying on EU companies thanks to zero-day exploits from
Microsoft and others
NSA is spying on vast swathes of the Internet
NSA is doubtless spying on EU officials in many other ways
TAFTA/TTIP is not secret
US will have copies of *all* EU negotiating documents
China and Russia will also have access to *all* EU negotiating
documents
most large companies and industry associations have access
only one group doesn'tthe public
negotiating in public
de Gucht says: "you cannot negotiate openly"
simply not true: WIPO treaty for the blind negotiated
publiclydraft documents
structured stakeholder input, with reports and summaries
live webcasts of negotiations
model of transparency
transparency = democracy
if people know what is being negotiated in their name, they can
analyse and understand the real implications, not the spin
express their views to their representatives
democracy requires transparency
secret negotiations are profoundly anti-democratic
going public, going forward
trade agreements are complex and obscure
TAFTA/TTIP is even more complex and obscure
explaining all the issues to the public impossible task
need to concentrate on a few key issues, and the corresponding
demands
ISDS out
unnecessary: ISDS is designed for situations where governments
are capricious and legal frameworks are weak
anti-social: allows health and safety regulations to be
ignored
anti-democratic: allows national and EU legislation to be
overruled by unelected, secret tribunals, in favour of foreign
corporations
transparency in
we need *all tabled EU documents* to be made public
immediately
need to push for full transparency for TAFTA/TTIP and every
trade agreement
before the Internet, that would have been simply impossible
today, it *is* possible, and is thus indispensable for true
democracy in the digital age
TAFTA/TTIP: trade, Internet and democracy
[email protected]
@glynmoody on Twitter/identi.ca
opendotdotdot.blogspot.com
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