[IP] Using treaties to lock in DMCA enforcement

[Dave Farber <dave@farber.net>]

------ Forwarded Message
From: Xiao Jinhong <limabean@pobox.org.sg>
Date: Sat, 24 May 2003 21:08:19 +0800 (SGT)
To: dave@farber.net
Subject: Re: [IP] Using treaties to lock in DMCA enforcement

Dave,

I'm a practising lawyer in Singapore (specialising in IP, IT and telco).
Just 
thought I'd add my 2 cents from this end (without commenting on the US
constitutional law point).

It appeared that the anti-circumvention provisions in the FTA were a real
dealbreaker for the US side -- in fact, apart from some provisions regarding
Singapore's right to impose emergency monetary controls, those were the last
to be agreed on. Basically, it seems that Singapore resisted valiantly but
eventually caved in to the US demands, and the provisions proposed by the US
negotiators (which if I'm not wrong are very similar to the equivalents in
the 
DMCA) were taken almost (if not completely) in toto.

Regarding the lack of fair use etc. provisions in the FTA, the key is really
in the implementing legislation. I'm not sure what the position is under US
law (although it would seem from Stewart Baker's post that it is the same as
Singapore law), but when Singapore enters into an international convention
or 
treaty, domestic legislation is still necessary to implement the treaty
obligations. Domestic law can still differ from the treaty-mandated
position, 
which only means that the country will be in breach of its treaty
obligations. 
So there is still hope despite the lack of such provisions in the FTA.

Also, at a seminar conducted by one of the Singapore negotiators, I
specifically asked what would happen if the US domestic law position
changes, 
eg. the anti-circumvention provisions in the DMCA are ruled unconstitutional
by the Supreme Court or the DMCA is repealed or amended. The answer was not
entirely satisfying but better than nothing -- the FTA itself provides for
an 
institutionalised periodic review, and such changes in position will be
considered. I suspect the probable result in such a case would be for
Singapore to waive the US breach of its FTA obligations, in return for
Singapore being able to adopt at least the same position under Singapore
domestic law.

Finally, I understood from some news reports last year that the US team
negotiating the FTA for the Americas had basically been pushing the same
line, 
ie. to implant DMCA-type anti-circumvention provisions in the FTAA. The
Singapore FTA will probably be used as a precedent to support this push.


Cheers.

xjh


dave@farber.net wrote:
> :tippie more on 
> ------ Forwarded Message
> From: "Baker, Stewart" <SBaker@steptoe.com>
> Date: Tue, 20 May 2003 18:48:01 -0400
> To: "'dave@farber.net'" <dave@farber.net>
> Cc: "Albertazzie, Sally" <SAlbertazzie@steptoe.com>
> Subject: RE: [IP] Using treaties to lock in DMCA enforcement
> 
> Dave, 
> 
> This message makes a fair point about the lock-in effect of the Singapore
> FTA.  But the constitutional point is wrong.  If the DMCA is
> unconstitutional as written, adding the FTA to the mix won't prevent the
> courts from saying so.  If a treaty promises that the US will do something
> it can't constitutionally do (squelch free speech, say), the courts will
> refuse to give effect to the treaty and to the implementing legislation.
> Courts are reluctant to interfere in international relations, but they're
> not forbidden to do so.
> 
> Stewart Baker 
> 
> 
> ------ End of Forwarded Message
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