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Re: Matt Gurney: Yet another part of the Canadian firearms system that doesn’t work

Russell McOrmond on Disqus - Wed, 2014/01/08 - 11:10

Incompetence is a convenient excuse. Even if the people who implemented the technology were incompetent, it was a policy decision for that to be the case. In the best scenario someone in a policy decision making position decided that the project wasn't important enough to hire competent technical people, and at worse it was technologically competent people implementing hidden agendas within the technology.

The more people consider incompetence to be excusable, the more it will happen. It is far past time to hold these policy makers to account. These aren't "acts of nature", but policy failures.

Note: Unlike others commenting I don't put this as a generic "government" problem. It is a problem in all sectors of the economy, with computer literacy being dangerously low in policy making circles.

Great Firewall of Cameron: the worst of all worlds for British parents

In my latest Guardian column, I explain how UK prime minister David Cameron's plan to opt the entire nation into a programme of Internet censorship is the worst of all worlds for kids and their parents. Cameron's version of the Iranian "Halal Internet" can't possibly filter out all the bad stuff, nor can it avoid falsely catching good stuff we want our kids to see (already the filters are blocking websites about sexual health and dealing with "porn addiction"). That means that our kids will still end up seeing stuff they shouldn't, but that we parents won't be prepared for it, thanks to the false sense of security we get from the filters.

David Cameron's attempt to create a Made-in-Britain version of Iran's "Halal Internet" is the worst of both worlds for parents like me. Kids are prevented from seeing things that they need to access – sites about sexual health, for example – and I still have to monitor my daughter all the time when she uses the net (or teach her how to cope with seeing things no kid should see) because the filter won't stop her from accessing the bad stuff.

And for parents who don't understand that filters are bunkum, the situation is much worse. It's one thing to know that there are risks to your kid from the internet. But parents who rely on the filter are living in bubble of false security. There's nothing more deadly than a false sense of security: If you know your car is having brake problems, you can compensate by driving with extra care, increasing your following distance, and so on. If you falsely believe your brakes to be in good running order, you're liable to find out the hard way that they aren't (if you survive, you can thank Bruce Schneier for that apt and useful analogy).

For me, parenting in the internet age means sitting with my child while she's online and still small enough that I can perfectly regulate her network usage – not just to ensure that she doesn't happen on to the bad stuff, but also to instill in her the responsibility, sense and good habits that will help her to steer clear of the bad stuff when she gets a little older and I can no longer monitor all her online activity. It's hard. Parenting is hard. It's scary.

What does David Cameron's Great Firewall look like?

(Image: David Cameron official, 10 Downing Street/Wikimedia Commons, OGL 1.0

Re: Matt Gurney: Yet another part of the Canadian firearms system that doesn’t work

Russell McOrmond on Disqus - Wed, 2014/01/08 - 11:04

The term "gun control" is so generic and undefined it is hard to base statistics off of it.

I'm not a gun owner, but having spent time on computer control policy issues and being given advise from computer illiterates I have started to understand some of the frustration some gun owners have.

Re: Matt Gurney: Yet another part of the Canadian firearms system that doesn’t work

Russell McOrmond on Disqus - Wed, 2014/01/08 - 08:52

I believe you are mixing up Common Look and Feel (which includes vendor-neutral standards requirements -- unfortunately often ignored) and the Shared Services initiative (centralizing IT within PWGSC, making the acquisition processes more easily corrupted, etc).

One is a misunderstood policy that had the right ideas if implemented badly, while the other is a misunderstood policy that had the wrong idea.

Re: Matt Gurney: Yet another part of the Canadian firearms system that doesn’t work

Russell McOrmond on Disqus - Wed, 2014/01/08 - 08:44

I'm glad more and more people are seeing the policy links between various controls governments (for themselves or on behalf of special interests in industry) put on multi-purpose (IE: with lawful and unlawful uses) technologies. While my specific policy area is computer control, it is through this work that I better understood gun owners opposition to most often failing gun control laws.

Computer Control in the context of a Gun Control debate http://teklaw.ca/5491

In this case you have seemingly incompetent technology decisions: is it really even legitimately considered a website if it only works on a single browser? Vendor neutrality was in fact a primary design criteria for HTTP, HTML, and related technologies.

Or is it incompetence? Maybe this was a policy decision intended to be a failure? It makes the process harder to complete, which may drive more law abiding citizens to be invalidly declared illegal. Was that the purpose of the policy?

I am a firm believer in the ideas behind the book "Code: And other laws of cyberspace" (Lawrence Lessig) which suggests that software is a form of policy which regulates our lives. Unlike government and corporate policies which are analysed that way, we should be doing the same for software. We should be demanding transparency and accountability for such things -- not allowing corruption to be hidden behind so-called (but most likely not) "technology failures".

Why CSEC and CSIS Should the Subject of an Independent Investigation

Michael Geist Law RSS Feed - Wed, 2014/01/08 - 04:55
Months of surveillance-related leaks from U.S. whistleblower Edward Snowden have fuelled an international debate over privacy, spying, and Internet surveillance. The Canadian-related leaks - including disclosures regarding spying on the Brazilian government and the facilitation of spying at the G8 and G20 meetings hosted in Toronto in 2010 - have certainly inspired some domestic discussion. Ironically, the most important surveillance development did not involve Snowden at all.

My weekly technology column (Toronto Star version, homepage version) notes that late last year, Justice Richard Mosley, a federal court judge, issued a stinging rebuke to Canada's intelligence agencies (CSEC and CSIS) and the Justice Department, ruling that they misled the court when they applied for warrants to permit the interception of electronic communications. While the government has steadfastly defended its surveillance activities by maintaining that it operates within the law, Justice Mosley, a former official with the Justice Department who was involved with the creation of the Anti-Terrorism Act, found a particularly troubling example where this was not the case.

Mosley's concern stems from warrants involving two individuals that were issued in 2009 permitting the interception of communications both in Canada and abroad using Canadian equipment. At the time, the Canadian intelligence agencies did not disclose that they might ask their foreign counterparts (namely the "five eyes" partners in the U.S., U.K., Australia, and New Zealand) to intercept the foreign communications.

In June 2013, the CSEC Commissioner, who is responsible for reviewing CSEC activities, issued his annual report. It included a cryptic recommendation that the agency "provide the Federal Court of Canada with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS."

That recommendation caught Mosley's attention, who ordered CSEC and CSIS to appear in court to disclose if the recommendation was linked to the warrants he had issued and discuss whether the additional evidence might have had an impact on the decision to grant the warrants in the first place.

It turns out that the additional evidence - which involved several warrants including those issued by Mosley - was indeed the fact that CSEC was tasking foreign agencies to conduct interceptions on its behalf.  Based on the new submissions, Mosley concluded that Canadian intelligence agencies strategically omitted disclosing the information as it admitted that the evidence provided to the court "was ‘crafted' with legal counsel to exclude any reference to the role of the second parties."

The failure of Canada's intelligence agencies to meet their legal obligations of full and frank disclosure raises serious questions about the adequacy of oversight over Canada's surveillance activities. When concerns were raised last year about the activities, then- defence minister Peter MacKay assured the public that there is "rigorous" oversight and that all aspects of the programs were carried out in compliance with the law.

The federal court ruling raises real doubt about the validity of those assurances. Indeed, there are lingering questions about both the impartiality of Justice lawyers who provided advice to "craft evidence" and the ability for the federal court to serve as a key oversight mechanism for Canadian surveillance, particularly when some programs do not require court approval and reports from the CSEC commissioner have faced lengthy delays.  

The deliberate attempt to mislead the key oversight body by omitting relevant information should anger more than just Mosley, who clearly felt that he was duped by CSIS. In response, the government should commission an independent review to examine current oversight mechanisms, identify shortcomings on both oversight and the law, and recommend potential reforms to salvage a system that is under increasing public scrutiny and criticism.

Who is Liable: App Stores or App Developers?

IPBlog (Calgary) - Tue, 2014/01/07 - 18:00
- The app economy is, by most estimates, equivalent in size to the GDP of a small country: $15 billion in 2012, projected to mushroom to $74 billion by 2016. All that economic activity inevitably breeds litigation. In what appears to be a case of first impression in the US, a federal court ...

Technology and the Law in 2014: 14 Questions in Need of Answers

Michael Geist Law RSS Feed - Tue, 2014/01/07 - 04:20
The coming year is likely to be a very significant one for law and technology. As the year unfolds, my recent law and technology column (Toronto Star version, homepage version) lists 14 questions (along with possible answers) that will go a long way to determining the path of Canadian technology law policy.

1.    Will the government finally unveil a national digital strategy?

The long-promised national digital strategy could become a reality in 2014 after years of inaction. Industry Minister James Moore is on the verge of clearing out the lingering policy issues he inherited and may be ready to set his own path on a digital strategy.

2.    Will the wireless spectrum auction be judged a failure?

The contentious wireless spectrum auction should take place early in 2014, but with few, if any, new competitors, the auction seems destined to do little more than entrench the status quo.

3.    Whose roaming regulations will come first: the government's or CRTC's?

Both the government and the CRTC have embarked on domestic wireless roaming initiatives that should come to fruition in 2014. The government plans to amend the law to address wholesale roaming pricing that hurts smaller players, while the CRTC is engaged in a fact-finding exercise on roaming that could lead to new regulations.

4.    What else will the government do to address wireless competition?

With the government spending millions to promote the competitive shortcomings of the Canadian wireless market, addressing roaming pricing is likely only the start with the possibility of a fully regulated wholesale market that could facilitate more competition.

5.    Who will be the next Privacy Commissioner of Canada?

The search is currently underway for the next Privacy Commissioner of Canada. Given the privacy reform delays and the mounting concern over surveillance, the next commissioner will immediately be placed on the hotseat.

6.    Will the Snowden surveillance revelations reverberate in Canada?

Public concern over ubiquitous surveillance has mounted in recent months with the steady stream of Snowden leaks. The Canadian government has said little to date, but silence may not be an option for much longer should there be further disclosures about Canadian involvement in global surveillance activities.

7.    How will the government handle Bill C-13, the lawful access bill?

The return of lawful access legislation - now framed as a cyber-bullying bill - has met with criticism from all sides of the political spectrum. The government may seek to diffuse the concern by sending the bill to committee for review after first reading, thereby signaling its willingness to entertain amendments.

8.    How will the government unbundle television channels?

The government's commitment to a pick-and-pay model for cable and satellite television services will emerge as a hot issue in the coming year with some broadcast distributers opposing the pro-consumer plan. While there is little doubt the government will stick with the policy, there is no clear-cut implementation plan.

9.    What policy changes will result from the CRTC's television "conversation"?

The CRTC has embarked on a national conversation on television, but the outcome remains unknown. Removal of foreign investment restrictions and simultaneous substitution policies are possible changes that would shake up in the market.

10.    How will Alberta fix its privacy law?

The Supreme Court of Canada has given Alberta one year to amend its privacy law, which it recently ruled is unconstitutional. The Alberta reforms may serve as a model for other provinces and the federal law.

11.    What is the future of the Trans Pacific Partnership (TPP)?

Canada's participation in the TPP negotiations could have major ramifications for domestic intellectual property and e-commerce law. The TPP talks stalled late last year, but U.S. pressure to conclude a deal could soon lead to dramatic changes to Canadian law.

12.    What is in the fine print of the Canada - European Union trade deal?

The Canada - EU trade agreement negotiations may have concluded, but the actual text remains a secret. Its release this year will finally allow for detailed analysis of costs and benefits of the proposed agreement.

13.    Will Eli Lilly terminate its $500 million lawsuit against Canada?

Eli Lilly, which is suing the federal government for $500 million due to two invalidated patents, seems to hope that the threat of litigation will generate momentum for patent law reform. There is no sign that the government will cave to the pressure.

14.    Will the federal court order TekSavvy to disclose the identity of thousands of subscribers?

The biggest current copyright case before the courts is the attempt to force TekSavvy, a leading independent Internet provider, to disclose the identity of thousands of subscribers accused of unauthorized downloading. Depending on the outcome, the decision could open the door to copycat litigation.

Flowers From Al 01

Here's part one of my 2003 short story "Flowers From Al," written with Charlie Stross for New Voices in Science Fiction, a Mike Resnick anthology. It's a pervy, weird story of transhuman romance.

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3 link

Happy New Year, State of our Rights

Digital Copyright Canada BLOG - Thu, 2014/01/02 - 13:54

I didn't have time to create a more formal blog entry with all the references I like to have, but I did post some year-end thoughts to the general mailing list. This may encourage others to join the list and comment as well.

ghosts of libraries past

Fair Duty by Meera Nair - Tue, 2013/12/24 - 11:45

Charles Dickens is with us at this time of year, his own ghostly visitation appearing via A Christmas Carol. But his spirit may have been addedly engaged last week when the news broke that scholars at Heinrich Heine University in Dusseldorf  had ranked the Vancouver Public Library (together with Montreal’s Bibliotheque) as the world’s best public library.

This evaluation of libraries came through focus upon “informational cities,” defined as “prototypical spaces of the knowledge society … where flows of information, capital, and power are as or more important than physical spaces (p.1).” Even more critical than the ranking, although as a Vancouverite I would not wish to renounce it entirely, the analysis makes plain that libraries form “an essential part of the city’s … knowledge and creative infrastructure… (p.313).” It is this sentiment that furthered the establishment of public libraries in England in the 19th century.

In 1850, the English House of Commons undertook an inquiry into the nature of their libraries with the conclusion that, in comparison to Europe, Britain was inferior in terms of libraries freely available to the public. As reported by the Spectator, 12 November 1853, this situation was “unworthy of the power, the liberality, and the literature of this country.”

From the inquiry came an act to enable Town Councils to establish public libraries and museums. The first such public library was the Manchester Free Library; it opened on 2 September 1852 with Charles Dickens among the speakers. As revealed by the Manchester Archives during the bicentennial celebrations of his birth, Dickens had accepted the invitation with alacrity. “… My engagements are very numerous but the occasion is too important and the example too noble to admit of hesitation.” Assigned the task of introducing the resolution, Dickens gave added thrust to the importance of public libraries:

“That as in this institution special provision has been made for the working classes, by means of a free lending library, this meeting cherishes the earnest hope that the books thus made available will provide a source of pleasure and improvement in the cottages, the garrets, and the cellars of the poorest of our people.” …  Ladies and gentleman, I have long been, in my sphere, a zealous advocate for the diffusion of knowledge among all class and conditions of men; because I do believe, with all the strength and might with which I am capable of believing anything, that the more a man knows, the more humbly, and with a more faithful spirit he comes back to the fountain of all knowledge, and takes to his heart the great sacred precept, “On earth peace, good will towards men.” Ladies and gentleman, I have great pleasure in moving the resolution which I have already read to you.*

The significance of the role played by public libraries was not lost on the colonies. Reporting on the opening ceremonies in Manchester, the Empire (Sydney) emphatically called upon its elite to step forward and give the City of Gold such an institution. Describing Manchester’s initiative:

They assembled to establish no Charity School, with a scrannel supply of innutritive knowledge for the workers, but a great and enduring institution filled with the light of genius from every age and every land, where the gifted sons of poverty may burst from their bonds … for the advancement of civilisation and the highest interests of the human race.

In Canada, Dr. Alphaeus Todd, Librarian of Parliament, in a plea to improve supply of reading material to residents, also pointed to English developments. Courtesy of Libraries Today, his report to the Royal Society of Canada (1882) is available here. Quoting from the first librarian of the Manchester Free Library, Todd wrote:

… Without exception, the working of all the free libraries so established and brought into active operation has proved eminently satisfactory to all classes of ratepayers.  It has largely promoted that industrial education which fits men for their specific callings in life, as well as that wider education that reaches farther and higher…. (p.16).

Closer to home, the British Columbia provincial legislature passed a Free Libraries Act in 1891. In Dave Obee’s The Library Book—A History of Service to British Columbia, former Lieutenant Governor Iona Campagnola writes that the history of library services in British Columbia:

… is a testament to individual determination intended to overcome all challenges associated with B.C.’s difficult geography, complicated history, sparse population and ever-shifting economy…. Through their own love of books, men and women worked hard to enrich the unique culture of this precious province of ours. They knew the value of the gift of learning, education and knowledge that was to be found in libraries, and they knew the simple joy of being able to borrow literary works of history, fiction, poetry, drama and criticism, to experience a “really good read!”

After the Manchester event, Dickens would write to a friend: “I wish you could have seen the opening of the Free Library… Such a noble effort, so wisely and modestly made; so wonderfully calculated to keep one part of that awful machine, a great working town, in harmony with the other.”

History must always remain incomplete, but last week’s news gives hope that libraries may yet endure as “wise and modest” institutions facilitating harmony as much as knowledge.

* Charles Dickens, “Opening of the Free Library, Manchester.” The Speeches of Charles Dickens, ed. K.J. Fielding (Oxford: Clarendon Press, 1960) p.151-154.  Note: The text varies slightly from the archived speech presented by the NY Times.

Keeping Secrets: Trade Secrets and Confidentiality Agreements

IPBlog (Calgary) - Wed, 2013/12/18 - 16:00
- My article on Keeping Secrets: Trade Secrets and Confidentiality Agreements is published in the latest issue of The Advisor. This article reviews confidentiality agreements and the decisions in Convolve, Inc. and Massachusetts Institute of Technology v. Compaq Computer Corporation and Seagate Technology, LLC  and Plaza Consulting Inc. v. Grieve. Calgary ...

Official Marks and Kermode Bears

IPBlog (Calgary) - Tue, 2013/12/17 - 16:00
The Kermode bear is a rare species of Canadian black bear, native to the beautiful province of British Columbia. The recent case of City of Terrace v Canadian Pacific Phytoplankton Ltd., 2013 TMOB 156 brings the iconic animal into the realm of trade-mark law. The City of Terrace, B.C. is the owner ...

about time

Fair Duty by Meera Nair - Thu, 2013/12/12 - 19:12

Yesterday, the universities of Toronto and Western Ontario formally announced their ending of relations with Access Copyright; Michael Geist cannily summed up the proceedings as “confirming the obvious.” Access Copyright’s licensing model is unsuited to the evolving needs of academic institutions. But it would be wrong to conclude that academic institutions want to evade payment for copyrighted works; quite the contrary. It only means institutions are unwilling to pay twice over for works licensed through other means, and are less than willing to pay for reproductions that are available without cost for a variety of reasons including: open access, public availability, and fair dealing. Across Canada, academic institutions are making the best use of resources to the betterment of students, teachers, researchers etc. We should expect nothing less given the predominance of taxpayer funds that support institutions, not to mention the over and above costs passed on to students and their families.

Reviewing the press releases of the three parties involved, while the institutions (Toronto and Western) each courteously state that negotiations were conducted in “good faith by both parties”, Access Copyright is unwilling to be so gracious. Instead, it continues to argue the seeming newness of fair dealing as interpreted by the universities; that it is “untested by law and closely replicates the scope of coverage in the Access Copyright license.”

I beg forgiveness for repeating, yet again, that current practices of fair dealing were shaped expressly by the edicts of the highest court of the land, over a period of ten years. The landmark decisions that speak directly to reproduction of works in educational institutions (CCH Canadian v. Law Society (2004), Access v. Education (2012), SOCAN v. Bell (2012), ESA v. SOCAN (2012)) predate the inclusion of “education” to fair dealing as amended through the Copyright Modernization Act (2012). See Notable Supreme Court Decisions for a summary of the decade.

The flexibility we enjoy today is not the result of an act of benevolence on the part of governments or courts—it is an acknowledgement that copyright holders were previously allowed to deny Canadians the full benefit of copyright’s system of limited rights and is a corrective to that unfortunate history. Access Copyright, perhaps unwittingly, confirms this with their view that fair dealing today replicates coverage within their previous licenses.

The blanket model licenses used in the past insinuated that fair dealing only existed in the presence of a general license. Educational institutions agreed to Access Copyright’s general prescription of fair dealing as a series of quantified measures, thereby removing any hint that fair dealing is a matter of individual context. Our educational institutions are now reclaiming the individuality of fair dealing on behalf of their communities. To which I must say: it is about time.

Almost two years ago to the day, Ariel Katz posted a compelling essay titled Fair Dealing’s 100 Years of Solitude. He chronicled in detail the treatment of the exception after its 1911 codification into statutory law in the United Kingdom. “Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common-law principle ended up—with a few notable exceptions—in a hundred years of solitude and stagnation.”

Posted shortly after the Supreme Court of Canada heard the “pentalogy” cases, Katz wrote: “The cases that the Court heard last week will determine whether CCH will be seen as an outlier in copyright jurisprudence or whether it created a necessary correction that brings fair dealing back to play the role it was always supposed to play.” As 2012 would bear out, the Court rose to the occasion and continued the task of bringing fair dealing back to its time-honoured role as a flexible limit upon the rights conferred through copyright.

Returning to the current news, to better understand the 20th century Access Copyright model of blanket licensing of educational materials, it is important to understand the history of Access Copyright itself. Two years ago I gave a brief talk on this matter for the British Columbia Library Association; my notes and references can be found through this post.

Access Copyright will not go quietly into the night. They continue a campaign of fear, targeting the teachers who are learning to navigate the terrain of copyright and fair dealing: “For faculty who are accustomed to operating under Access Copyright licenses, the termination will be accompanied by disruption and uncertainty.  Faculty may be asked to change the way they share materials or assume greater personal responsibility for copyright … .”

While institutions have become much better at providing copyright information, all too often the rationale for a “10%” rule is missing or limited to a citation of CCH Canadian. In yesterday’s announcements, both institutions spoke of educating their communities about copyright; the stories that make up fair dealing’s history, past and present, ought to be the starting point. Regulations and best practices take root more quickly if they are placed in context.

TPP and ISDS – more acronyms

Fair Duty by Meera Nair - Sun, 2013/12/08 - 19:45

“Countries that want to preserve flexibility on copyright term pretty much have no strategy in the TPP. Canada is about to fold.”

This tweet came early Friday morning from James Love, Director of Knowledge Ecology International. Love is in Singapore watching the latest drama of the TransPacific Partnership (TPP) negotiations. However, given that Canada officially has no negotiating power, its efforts to opposing copyright maximalism may not matter anyway. (Thomas Walkom, of The Toronto Star reported in 2012 that Canada’s admittance to the group did not include the right of negotiation.)

As many readers know, the TPP is a trade agreement in the making, negotiated in secrecy (except for privileged members of the business class). In November, Wikileaks published details of the negotiations with respect to intellectual property rights; they did not look promising. At that time, Michael Geist offered a series of posts detailing the shortcomings of the agreement. In his first post, Geist wrote:

The good news is that Canada is pushing back against many U.S. demands by promoting provisions that are consistent with current Canadian law. Canada is often joined by New Zealand, Malaysia, Mexico, Chile, Vietnam, Peru, and Brunei Darussalam. Japan and Singapore are part of this same group on many issues. Interestingly, Canada has also promoted Canadian-specific solutions on many issues. The bad news is that the U.S. – often joined by Australia – is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals. …

And in his regular column with The Toronto Star, Geist added:

The U.S. finds itself relatively isolated on many issues, with only Australia offering consistent support for its positions. For example, Canada and most other TPP countries support a general objectives provision that references the need for balance, promotion of the public domain, protection of public health, and measures to ensure that intellectual property rights themselves do not become barriers to trade. The U.S. and Japan oppose these objectives.

If the U.S. is successful in pressuring other countries to meet its demands, Canada would be required to radically overhaul its current law, reversing course on many of the rules the government recently enacted as part of its long-awaited copyright reform package or negotiated in the trade agreement with the European Union.

Returning to Love’s assessment of the current talks, the prospects of Canada (or any country) maintaining a sovereign system of copyright looks bleak. Copyright term extension is high on the list of demands; earlier today Love tweeted: “One USTR official I talked to said, yes, 70+ life copyright terms [are] wrong. But Europe made us do it, and now, we need everyone to follow.” Even more disturbing was the news that Mexico is arguing for “at least” life plus 100.

Yet copyright may be the least of our problems.

By far the most insidious part of the TPP is the determination by the Office of the United States Trade Representative (USTR) to further entrench the Investor State Dispute Settlement (ISDS) process. This mode of dispute resolution allows corporations to sue governments, not through courts of law, but in private tribunals. Earlier this year, law professor Brook Baker published a comprehensive examination of the risks ISDS poses to access to medicines:

Suddenly intellectual property rights, already hugely protected, are given another mantle of protection, namely protections as investments.  In addition, investors are given rights to bring claims for private arbitration directly against governments whenever their expectations of IP-based profits are frustrated by government decisions and policies.   Decisions of these private arbitral tribunals consisting of three international trade lawyers are not subject to judicial review, but are reducible into court judgments that can be levied against government property.

The principle behind compensation for thwarted expectation may have seemed rational at its outset (investor-state dispute mechanisms were first introduced in NAFTA in 1994) — to ensure corporations have recourse against unstable governments whose court systems may lack objectivity and rigour. But the mechanism has allowed egregious actions by corporations directly against governments, sidestepping robust courts of law. That health, environmental, or financial regulations seem to hinder corporate profit, is considered sufficient cause to bring action. That these regulations serve the citizens of that elected government is irrelevant.

In a TPP information session in Singapore, Melinda St. Louis of Public Citizen gave a presentation describing actions brought under ISDS; video available here.  Some of the highlights:

  • Even municipal actions can provoke claims of frustrated expectation.
  • The private attorneys who participate in the proceedings rotate between serving as arbitrators and serving as judges.
  • Tribunal rulings are not bound by precedent.
  • There is no means for appeal.
  • Governments cannot counter-sue investors.
  • The proceedings are very expensive for governments; it is in the interests of the tribunal arbitrators to drag out proceedings as even if the government wins, “almost always they are ordered to pay half the tribunal costs.”
  • Tribunals have the discretion to award unlimited damages.
  • Each year, the number of disputes increases.
  • An example from St. Louis’ list (there were many): Occidental Petroleum (OP) breached their contract with the Ecuadorian government; the tribunal recognized the breach of contract but still awarded OP $2.4 billion to be paid by the government.
  • Canada features in the list a few times; including the matter of Eli Lilly.  As I have written before, the U.S.-based pharmaceutical company has taken issue with Canadian courts’ invalidation of patents for two drugs and is seeking $500 million. St. Louis emphasizes how significant this case is: “[Eli Lilly is] actually challenging Canada’s entire patenting system.”

As a result of numerous actions against governments, many countries are starting to question whether ISDS should be part of trade agreements. Intriguingly, all 50 state legislatures in the United States passed a resolution opposing ISDS in trade agreements. Which makes it all the more perplexing that Canada appears to have already agreed to such terms in the purported Canada-EU free trade agreement. Announced in October by the Harper government as an agreement in principle, the text has not yet been publicly disclosed.  But in the summary document provided by our government, discussion of ISDS is artfully worded:

The process that investors follow to seek compensation is called “investor-to-state dispute settlement” (ISDS) and involves an independent arbitral panel hearing facts and making a decision on the merits of an investor’s claim. ISDS rules have been a standard feature of Canada’s comprehensive free trade agreements since the North American Free Trade Agreement and give assurance to investors that their investments will be protected from discriminatory or arbitrary government actions (p.21).  …

When individuals have disagreements, they have various ways to resolve them. They can try to negotiate  among themselves or, if that doesn’t work, they can seek the help of an impartial third party such as a mediator, an arbitrator or a court. Trade disputes between countries work much the same way. Trade agreements include various dispute resolution mechanisms so that governments can resolve their disagreements. For instance, when consultations fail to resolve a problem, trade agreements provide governments with the option of using impartial third parties to help resolve the dispute. In some cases, these third parties act like courts in the sense that they hear evidence from both sides and ultimately render binding decisions (p.38).

While our government assures us that the agreement, “includes provisions to guard against frivolous claims in order to ensure that the process will not be abused,” the disparate bargaining positions vis-à-vis the Europeans do not bode well for Canadians; see this assessment of the imbalanced negotiation by Gus Van Harten (an Associate Professor at Osgoode Law and well-versed in international trade).

Our best hope seems to be that saner Canadian heads will prevail before the final language is set. And that other countries can remove the deleterious conditions of ISDS from the TPP.


P2PNet.net - Tue, 2013/09/10 - 05:00

Hello world!

Welcome to WordPress. This is your first post. Edit or delete it, then start blogging!

Linux Kernel 3.10 picked for long-term support

Looking out for commercial Linux distributors, Greg Kroah-Hartman has announced that the 3.10 Linux Kernel will be supported for two years.

Android's seven best new security features and one lingering security problem

Android 4.3 added significant new security features, and Google has also added two other new security features to older versions of Android. Now, if only the carriers and OEMs would patch the Bluebox security hole every Android user would be happier.

T-Mobile backs Ubuntu smartphone

Verizon and T-Mobile have announced that they'll be supporting the Ubuntu phone in the United States.
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