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Where the intangible meets the insubstantial: IP, international law and enforcement
spacekungfuman
Poor and minority-filledRegistered User, __BANNED USERS regular
Poor and minority-filledRegistered User, __BANNED USERS regular
This is a spin off from the IP thread. In this thread, I would like to discuss how, if at all, first world countries should deal with violations of their citizens' IP rights by countries in the third world. In a perfect world, I think we would have an effective global IP authority which effectively enforces IP claims on the global stage, and which has the authority to do so through the use of a police power (think fines or possibly even jail time). Unfortunately, we don't have such an efffective body and it seems unlikely that we will in the forseeable future. And so we are left with a situation where people or corporations create valuable IP through the extensive expediture of time, resources and effort (a net good that we want to encourage) and people (or even governments) in the developing and third world make use of this IP without permission and without compensating the right holders. We have various methods to prevent this, but they are limited, both in scope and authority. Here is a decent site for the key primary documents:
It seems to me that we are essentially in a situation where we have placed the more powerful (as measured by military power, global influence and wealth) nations in a position where they are held at the mercy of the weaker nations who do not have as many IP creators, since they can violate IP laws and treaties with near impunity. The question that I want to discuss in this thread is what, if any, enforcement efforts or self help are justified on behalf of the stronger nations in this scenario when the international community process fails them. Should they be able to pursue economic sanctions? Press for trade embargoes? Engage in targetted military action? Full scale invasion?
To keep this discussion focused, I would like to limit discussion to IP violations where the violator simply copies someone else's creation (i.e., generic drugs, knock off hand bags, boot legged movies) and not IP violations where people use someone else's work to create something new.
International intellectual property law is a patchwork area of intersecting multilateral and bilateral agreements and their resulting harmonization of national laws. It has become an increasingly important and frequently litigated area, particularly in the patent, copyright, and trademark arenas. In addition, in the past few decades, there have been louder calls for the protection of domain names, databases, software, and traditional knowledge. Many of these cutting edge intellectual property issues are addressed on an international level through the World Intellectual Property Organization (WIPO). Along with new forms of protection, the trend towards globalization in the trade arena has had a direct effect on the harmonization of national intellectual property laws through the World Trade Organization (WTO) and regional trade organizations. With increased interest in international intellectual property law, there are now numerous high quality electronic resources that cover various facets of this ever- changing area.
http://www.asil.org/erg/?page=iipl#h.gkkqy1f8w9do
It seems to me that we are essentially in a situation where we have placed the more powerful (as measured by military power, global influence and wealth) nations in a position where they are held at the mercy of the weaker nations who do not have as many IP creators, since they can violate IP laws and treaties with near impunity. The question that I want to discuss in this thread is what, if any, enforcement efforts or self help are justified on behalf of the stronger nations in this scenario when the international community process fails them. Should they be able to pursue economic sanctions? Press for trade embargoes? Engage in targetted military action? Full scale invasion?
To keep this discussion focused, I would like to limit discussion to IP violations where the violator simply copies someone else's creation (i.e., generic drugs, knock off hand bags, boot legged movies) and not IP violations where people use someone else's work to create something new.
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The scale of this IP violation could be much smaller than, say, Indian reproduction of clothes or Chinese reproduction of cars, but there are two obvious issues: first off, we're dealing with a product that costs practically nothing to duplicate, and its entire value is tied up on its status as an intellectual creation (versus the Chinese auto plant that actually has to use its own resources to build a knock-off car, that is not a perfect duplicate either, and pays for that), and second, it's happening in your back yard. Americans are 'stealing' American songs, Japanese are 'stealing' Japanese movies, etc. Any sort of international IP enforcement that is not based on domestic IP enforcement would be the target of great derision and absolutely no loyalty, and rightly so.
I think that's an issue too.
@calixtus - I think you misunderstand me. You are correct that I believe that rights are nothing more than powers that we can assert against a sovereign and which that sovereign will respect. but this limited conception of rights does not mean that a sovereign does not have a legitimate interest in protecting those rights against governments which do not respect them, as I see a sovereign's sole duty as protecting its people. If a nation is weak and cannot assert/protect the rights it has accorded to its citizens, then so be it. But where a nation is stronger than its opponent, why wouldn't it have an interest in asserting its citizens' rights against said opponent. You are taking something I said about Israel (which I believe has an obligation to advance the interest of Israeli citizens only) and trying to make it about why the Israel of this example would NOT have a justification to advance the interests of its citizens ahead of the concerns of another people.
Still needs answering.
@Dis' - I think they should have balanced the interests, and decided if it was worth it. Like I said in the other topic, I do not think that a full scale invasion (or likely any military force at all) would really be needed. I strongly suspect that economic sanctions could be effective in most cases, and in the cases where the problem is intractable (i.e., China, India) the cost of attempting to solve the problem would be catastrophic. No one (not even I) would want to see the world burn or a world war begin over IP infringement.
But cluster bombing a village in Yemen because someone is selling knockoff iphones there is kosher, right?
I agree completely, and would support much greater enforcement efforts against first world infringement of IP.
Do as I say not as I do is a valid position to hold. My own failings do not invalidate my positions anymore than Peter Singer's ownership of many homes invalidates his views on charity and culpability.
I doubt very much that it would e et be neccesary. If it is, would that level of force be justified? I'm not sure to be honest. I just can't imagine actual force being needed outside if force sanctioned by the target nation because it has acknowledged it cannot enforce effectively on its own.
Cluster bombing villages because someone has a knock-off handbag isn't really what anyone is talking about here, it's so much strawman and hyperbole that it's ridiculous.
In my mind, various forms of military intervention fall near the far end of the 'acceptable action' spectrum. I think there are going to be very few cases where military action would actually make sense - the harm is very rarely going to make that a rational response. Military action is expensive in direct and political costs, it's going to be particularly effective against most IP theft, the optics are probably going to be terrible, and there are other avenues that are simply...better.
But, military action is at the end of a spectrum that starts at 'politely worded letters' and ranges through a whole host of diplomatic and economic actions. I would think bombing a village that's sewing Armeni handbags to sell on the streets of NYC is absurd and counterproductive, but I can't say it's entirely outside the realm of possibility that a navy would interdict and seize a cargo ship full of counterfeit goods. That's still military action, and I could see an extreme situation where that would be justifiable. Or maybe a smart bomb (or satchel charge) hitting the North Korean facility that houses their $100 bill manufacturing program.
In general though, IP theft in the 3rd world is going to be so pointless to counter that it's effectively meaningless. The amount of profits being lost are negligible and in a lot of cases the IP holders choose to not even enter or compete in those markets. There are a variety of methods IP holders can use to 'protect' their brand from counterfeits shipped to the 1st world - branding, holograms, consumer information, legal action within the first world, etc.
It's a bit different with copyright, but for patented items / technologies, by electing to remain outside of these 3rd world markets, IP holders have effectively ceded the market. Basically, if they refuse to enter a given market under the laws that govern that market, they can't suffer harm when someone else does. Without harm / damages, there really isn't much of a claim.
The interests of the government of Rich Nation in this case is to not to protect the IP of a small subset of its population, because protection would incur costs larger than the benefits. Those costs would also be spread to entites who wouldn't be reaping the majority of those benefits anyway.
Put it like this: You can't coherently make the case that a government has an obligation to its people that allows it to ignore a treaty they have signed, while claiming that the same government has an obligation to enforce a treaty even when doing that enforcing doesn't benefit the people. One is the negation of the other. Hence, the government of Rich Nation has no obligation to enforce a treaty for the sake of enforcing a treaty. Hence, the cost-benefit analysis must take precedent, see above. Hence, no significant action is warranted. Maybe some punitive customs tax somewhere?
And operating under your expressed framework of moral behaviour for nations, it is even easier to demonstrate why the government of Poor Nation shouldn't give a toss about IP rights - because actually abiding by those treaties (or in some cases, signing them in the first place) would be a gross betrayal of their own people.
(One could also point out that there are many different versions of strength, and this is basically you first enshrining "Might Makes Right" as the most hallowed principle of international relations and then complaining about someone "breaking the rules" when they realize that having nothing to lose gives you a very special kind of strength)
I agree completely until the last two paragraphs. Waiting and timing your entry into a market is valid. Apple, Sony, etc all release products in different markets at different times. I don't see how that makes IP violation acceptable until the day their marketing plan calls for a local roll out.
What if the IP holder is participating, but the market has been inundated with knock offs for years and so even the discounted price is "too high" by local standards because they are used to bear free? Is that not a harm?
Note that the WTO can, and has, ruled that a violation in one industry can be met with sanctions in another. This one was making rounds about the internet not long ago.
Now as for the claim that strong nations are structuring IP law in a way that places them at the mercy of weaker nations with fewer IP holders, I think this claim has to be more concretely established. It could be equivalently said that strong nations are structuring IP law in a way that favours countries with more IP holders. The US's ever-extending copyright term lengths is particularly egregious, but I suggest that you might want to reflect whether, say, importing the European notion of moral rights would be desirable in your own country. They are indisputably even stronger than American IP rights; they are so strong that they are inalienable and the creators cannot sell these rights for financial compensation.
Please note that I have said throughout that an actual attack, let alone an invasion, is near unthinkable. Embargoes, sanctions or even blockades seem much more plausible. If direct force were actually used, I can only conceive of it being something like the infringing nation saying it lacks the police power to deal with the problem, and offering to allow the US or the other objecting nation to step in and assist in a police style action.
I would also point out that governments are not beholden to strict cost benefit analysis when determining what furthers the interests of its people. In fact, governments often intercede in other nation's affairs in a way that is probably detrimental to the nation as a whole when individual citizens get embroiled in trials or other situations in other countries.
The special kind of strength you are referring to is only borne of a perverse situation where the global powers have agreed to lay down their arms in exchange for a process which is not capable of solving disputes. This is the entire concept that I am challenging.
I agree that waiting and timing your entry into a market is a valid strategy, but by choosing that strategy you also accept the inherent risks that come with it. Just like how aiming for early entry into a market / simultaneous worldwide release of a product can result in additional regulatory costs vs. introducing a product into new markets once it's already established. Maximizing profit and minimizing risk is the duty of a given business, not the duty of a host government.
If a company chooses to wait to enter a given market, and in doing so allows it to become so saturated with 'knock off' products that they can't penetrate the market...well, that's the cost of doing business. I would suggest they reconsider their strategy in the future, or find a way to add enough additional value in their products that their potential customers will be interested in the future.
Now, I'll say again that I consider there to be a bit of difference between something with a copyright and something like a drug, gene sequence, or industrial process. The item with a copyright was something CREATED, while the drug, gene sequence, industrial process, recipe, etc was something DISCOVERED. I am...not in agreement with your opinion regarding copyright, but much closer to your opinion with something created vs. discovered.
Either way though, IP laws exist for the purpose of encouraging further discoveries or creations for the purpose of benefiting and enriching humanity. The fact that they protect profits is incidental to that purpose. Anytime profits / property rights are at odds with the purpose of benefiting / enriching humanity, the rights of the property holder should invariably be secondary. Granted that a lot of the benefit / enrich humanity is either intangible or needs to be evaluated on a case-by-case basis.
Do you dispute that these international bodies are ineffective in this regard though? I'm aware of the process. I just think it is a process which simply does not work, and I question why the stronger parties should continue to participate in a process which does not work at all for them, while the weaker parties freely take pot shots at them.
My preferred solution would be an international system of intellectual property laws, enforced by a body with real authority.
It is an issue, but all those first world nations are taking steps, sometimes draconian steps, to protect IP holders. I think it is a significantly different issue from IP infringement which has the explicit (Indian generic drugs) or tacit (let's be really generous and say chinese iClones) government approval. It is extremely hard to stamp out digital piracy, but first world nations are making a best effort to prevent it.
Generally these sort of violations don't require external pressure to ensure enforcement, though a greater degree of cooperation could help with efficacy of enforcement efforts.
You're advocating going to war over IP rights but expect others to do the fighting for you.This is quite different from Peter Singer owning multiple homes while doing charities. At least he's man enough to do something worthwhile with his resources to help benefit the world. You're no Peter Singer. Being wealthy and doing charities doesn't make him a hypocrite. It won't be the corporation's sons and daughters sacrificing their lives over this it'll be the middle class and the poor. Their lives should be worth more than that. Like I said in the previous thread - good luck selling that to the public.
We may just have to agree to disagree on this one SKFM, personally I feel that if a war doesn't pass the test of "am I willing to fight and perhaps die for this cause" it isn't worth fighting. I certainly would never consider sending someone else’s son/husband/father to die for something I don't feel is worth my life. And lets not beat around the bush here, we may not be talking about cluster bombing villages, but we are talking about using lethal force to enforce copyright which to me is insane.
It's like having someone shot for stealing a purse, it's utterly disproportionate to the crime.
On the contrary, operating in a multilateral forum that is merely dominated by the US gives the US far better options than operating in a bilateralized atmosphere with a coterie of powers conspiring against it and each other. Giving even weaker countries more influence that they would otherwise have through these forums is part of the costs of negotiated peace.
It is still the case that the domestic politics of every nation desperately want to return to interwar autarky. Nobody likes value-added imports. Everyone likes exports. The primary role of trade institutions here is to play off the strong domestic desires of powerful states into accepting that the price of being able to export anything at all is that someone must import something, and unless we wish to revert to the imperial era of captive colonial markets, there are no such countries. Every country is going to prefer to close their borders for temporary gains. What is the awesome might of the US navy going to do then? Sail its black ships into harbours again?
It's really not even the profits I care about protecting so much as the right to exclusive control over your property. I see this as much the same to a foreign government seizing all of my property once I cross the border, and I would expect the US government to back me up there.
I agree that if all we care about (as is the case under our current regime) is incentiving work, then we don't need to be terribly concerned with these types of issues in poor countries because people are still creating IP anyway. The problem really becomes the bleed over into grey markets, which itself may well warrant action by first world governments where other countries are not being zealous enough (think a purse of sunglasses knock off factory in a country we aren't as tied to as China or India which is shipping a lot of these goods to the US).
By that rational, the only war that I can support is a war to protect my wife and family, because I'm not prepared to put my life on the line for anything else, but I don't think that precludes me from discussing these matters.
I think its well established that I'm not much concerned with proportionality of punishments, but that is a whole other topic I'd prefer to avoid.
I am not advocating going to war over IP. I am advocating using non-military and (worse case) military sanctions/actions, but nothing like a war or invasion. I can't imagine things ever coming to that, and if they did, I can't imagine it being worth it, no matter how value is measured. What I could see happening is a military blockade of a nation's ports though, or seizing their shipping methods to prevent them from shipping pirated goods. I could also see police style efforts (with the countries support) to root out the offending people and factories. These are all very different from the full blown war you seem to be imagining.
This is like the most wrong wrong can be. Their protecting of profits is the thing that allows them to fulfill their purpose.
Ok, so to be clear we've established your own life is too important to risk to protect copyright law. We also seem to have established people living in poor countries lives are less important than copyright. Now we just need the final clarification and I'll be certain of what I'm dealing with here.
Do you consider the lives of American troops to be worth less than your own? Are they an acceptable sacrifice? Because this situation where you think having a ship pass by the shores of other countries and they'll fold like a house of cards in nieve in the extreme. You don't ever threaten military action unless you're willing and able to back up the threat, that means deploying soldiers, that means soldiers dying and killing.
So what is your proposal? To throw up our hands and cede IP infringement to the poorest of nations? I understand your concerns, but it seems to me that right now this is the type of situation which falls through the cracks as it were, since you can't take unilateral action against the infringer, and there is no effective collective action on the international stage which can be brought to bear.
I consider America very important, and consider myself patriotic. I would not join the army and put my life on the line for it though. But fortunately, there are people who do, and I respect the hell out of them. And they do risk their lives to advance America's interests, whatever those interests may be. I don't really understand what you are getting at.
This is tangential, but you realize that a government has the right to seize anything and everything passing through its borders pursuant to its own laws right? What if you had inadvertently carried something that was banned and the policy was to to seize everything?
Win or lose, I would expect the assistance of the US embassy in that country. There is no guarantee that we can stop IP infringement with the methods discussed in this thread, but that doesn't mean that we ought not to expect the government to make the attempt with reasonable efforts (no one is advocating that the government must employ scorched earth tactics to retrieve my possessions or to stop IP infringement).
There's a collective action mechanism. It's called the WTO dispute resolution process. It doesn't end in gunships, but avoiding the use of gunships is rather the point.
You must realize that the era of relative peace the world has enjoyed since the end of World War Two is a rather fragile one. You are envisioning some crazed scenario where strong nations band together against weak states. But why should that be the case? The actual world as she existed for most of the industrial revolution was for strong states to fight other strong states for monopolies over weak states. Isn't that the prize being fought over here? And weak states cheerfully play off strong states against each other, in order to safeguard their own existence. Is that the kind of world diplomacy you prefer?
I get this sense you see a poor, weak state Getting Away With It and feeling that a great injustice has been done unto you. But the danger here is not a tiny, weak Serbia defying an Austrian empire long since fallen from the height of its power. No, the danger here is proxy-ignited conflict between every single industrial power on the planet, which actually happened. Twice.
Of course that isn't really relevant either because even a limited exchange between existing nuclear powers today will probably leave the planet uninhabitable.
Let's be clear here - someone CAN be legitimately shot for stealing a purse.
Someone steals your purse, you call the police.
The police come, they barricade themselves behind a door.
The police break down the door, they resist arrest.
The police attempt to use non-lethal force to subdue the offender, they start using weapons to hold off police.
The police escalate the use of force, so does the offender.
The police shoot the offender when the use of force becomes too high.
Usually this doesn't happen, usually the offender goes "Screw this, I'm not getting shot for stealing a purse". But law enforcement typically doesn't go "Sorry, they locked the door. You're on your own" or "Sorry, they don't want to be arrested". Each level is backed up by the threat of escalation to the next level, the ultimate level of which is "You may die". Otherwise you could get away with any crime by possession of a gun and the word "No".
However, shooting is not the first response - typically that starts at "You are under arrest" and works its way up. But there always has to be an "up". When it comes down to it, all laws and all rights are backed up by "Do what I say or you will be killed", some of them just start with a politely worded letter.
Any world where landing amphibious army groups and infantry fighting vehicles is an acceptable option for dealing with IP transgressions in less industrialized countries--not killing anyone, mind you, that inevitably happens later when soldiers inevitably turn out to be poor drivers or just carelessly preoccupied, as happens at military bases in Okinawa or elsewhere--will have to be a world where domestic mass arrests are an acceptable, and enforced, option for IP transgression in the 'hub' countries that are instituting this policy. There is no reason to focus exclusively on a distant factory on the other side of the world making a particular purse knock-off one by one when thousands or tens of thousands of people are illegally distributing a particular song in your own nation.
Other countries would, and should, be years down the line. Otherwise, the implementation will be even more of a mockery than it already is. If other countries are targeted immediately simply because it's somehow more politically viable to implement trade sanctions (or military blockade) of a particular foreign city than to start fining (or arresting) your own countrymen, then there's no hope for enforcement.
I would think that the stronger nations would come together in agreeing to economic sanctions against nations the infringe on all of their IP holders rights, because this is a discrete issue where their interests are aligned. China and India get left to the side, of course. The ideal would be for this type of collective action to become something meaningful and to have an organization that is better than the WTO or WIPO at this type of thing.
You realize only going after weaker countries for IP infringement would make the stronger countries huge hypocrites, right? So protecting IP to you is limited to whether countries can fight back. So much for protecting American copyright holders.
Maybe it doesn't even matter. You might not need the cooperation of other nations if your foreign aid is significant enough, and even if others won't agree to an embargo, joining you in withholding aid may be enough. Regardless, the stronger play is definitely to have a better WIPO, but that just doesn't seem to be in the cards.
Do you see a workable solution here?