15.110 intellectual property & the Hague Convention

From: by way of Willard McCarty (willard@lists.village.Virginia.EDU)
Date: Sat Jun 23 2001 - 01:35:08 EDT

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                   Humanist Discussion Group, Vol. 15, No. 110.
           Centre for Computing in the Humanities, King's College London

             Date: Sat, 23 Jun 2001 06:30:57 +0100
             From: NINCH-ANNOUNCE <david@ninch.org>
             Subject: Hague Convention

    News on Networking Cultural Heritage Resources
    from across the Community

                 Hague Convention on Jurisdiction and Foreign Judgments
                            in Civil and Commercial Matters

    The subject of the following important report is not easy, but it is an
    area in which we all need to become familiar. As Richard Stallman has
    written separately, this current Hague Treaty, while not being about
    intellectual property, deeply affects it. The treaty is "about
    jurisdiction, and how one country should treat the court decisions of
    another country." Basically sound: "If someone hits your car in France or
    breaks a contract with your French company, you can sue him in France, then
    bring the judgment to a court in whichever country he lives in (or has
    assets in) for enforcement."

    But, says Stallman, "The treaty becomes a problem when it is extended to
    distribution of information -- because information now travels normally and
    predictably to all countries. The consequence is that you could be sued
    about the information you distributed under the laws of *any* Hague
    country, and the judgment would probably be enforced by your country." See
    Stallman's "Harm from the Hague," at http://www.gnu.org/philosophy/hague.html

    Below is Jamie Love's report from the current "Hague Convention." The
    website of the Consumer Project on Technology has some good background on
    the issue at http://www.cptech.org/ecom/jurisdiction/whatyoushouldknow.html.

    Look for further discussion of this rising issue.

    David Green

    >Date: Wed, 20 Jun 2001 02:23:11 -0700
    >From: James Love <love@cptech.org>
    >Organization: http://www.cptech.org
    >To: Digital Future Coalition Discussion List <dfclist@ala.org>
              As the Hague Conference Diplomatic
              Conference ends the Internet and the Public Domain
              are at risk

              James Love
              June 20, 2001


              Today the Hague Conference on Private International Law will end its
    first diplomatic conference on a new treaty to set the rules for
    jurisdiction for nearly all commercial and civil litigation. In a world
    where everyone is struggling to understand how to address jurisdiction
    issues raised by the Internet, this new proposed treaty imposes a bold
    set of rules that will profoundly change the Internet, and not only
    that. As drafted, it will extend the reach of every country's
    intellectual property laws, including those that have nothing to do with
    the Internet.

              What exactly does this new treaty seek to do? In a nutshell, it will
    strangle the Internet with a suffocating blanket of overlapping
    jurisdictional claims, expose every web page publisher to liabilities
    for libel, defamation and other speech offenses from virtually any
    country, effectively strip Internet Service Providers of protections
    from litigation over the content they carry, give business who sell or
    distribute goods and services the right to dictate via contracts the
    countries where disputes will be resolved and rights defended, and
    narrow the grounds under which countries can protect individual consumer
    rights. It provides a mechanism to greatly undermine national policies
    on the "first sale" doctrine, potentially ending royalty free video
    rentals for corporate entities with overseas assets, and it opens the
    door for cross border enforcement of a wide range of intellectual
    property claims, including new and novel rights that do not have broad
    international acceptance. It will lead to a great reduction in freedom,
    shrink the public domain, and diminish national sovereignty. And
    practically no one knows anything about the treaty.

              This proposed Hague treaty stands the tradition globalization
    on its head. It does not impose global rules on substantive laws --
    countries are free to enact very different national laws on commercial
    matters. The only treaty obligation is that member countries follow
    rules on jurisdiction and agree to enforce foreign judgments. Rather
    than a WTO or WIPO type approach of harmonization of substantive
    policies, every country can march to its own drummer. The treaty is
    about enforcing everyone's laws, regardless of their content, and
    enforcing private contracts on which national courts will resolve
    disputes. It is a treaty framework that made some sense in a world of
    trade in pre-internet goods and services that lend themselves to easy
    interpretation of jurisdiction based upon physical activity. It is a
    treaty that makes little sense when applied to information published on
    the Internet, and more generally for intellectual property claims, where
    one should not leap into cross border enforcement without thinking.


              The Hague Conference on Private International Law is a little known
    organization that held its first meetings in 1893, but did not have a
    permanent status until 1951, and since then has adopted 34 international
    conventions, mostly on very narrow and often obscure topics, such as the
    taking of evidence abroad, the form of testamentary depositions, wills,
    traffic accidents, and several dealing with children.

              In 1965, the Hague Conference adopted a Convention on the choice of
    court for civil litigation, but it only was endorsed by one country --
    Israel. The current effort is a renewed effort to deal with that
    issue, and also the enforcement of judgments and other items, and the
    scope is extremely wide -- nearly all civil and commercial litigation.
    It is, without a doubt, the most ambitious project undertaken by
    Convention, and the Secretariat and the member country delegates are
    anxious to establish the Conference as a major league actor in the
    rapidly changing global political economy. Despite its grand ambition,
    the Hague Conference secretariat is tiny, about a dozen according to a
    FAQ on its web page. The small size and low profile of the Hague
    Conference has allowed this treaty, which has enormous significance, to
    go virtually undetected, even though it is has been in discussions since


              The official version of this particular convention on
    jurisdiction and
    enforcement of foreign judgments is that in 1992 the US began seeking
    ways to obtain more equitable treatment of the enforcement of judgments
    from commercial and civil litigation, and was willing to cut back on
    some aspects of US "long arm" jurisdiction to do so. In the beginning,
    none of the negotiators were thinking about the Internet, and the treaty
    seemed to have limited interest to most persons. By 1996 it was obvious
    to some that the Internet in general and e-commerce in particular would
    pose special problems for the Convention. By 1999 there was
    considerable attention given by business interests on how the Convention
    could be drafted to resolve a number of jurisdiction problems they
    faced, and in particular, the Hague Secretariat began suggesting the
    Convention could be used to replace overlapping national laws on
    consumer protection and privacy with industry lead alternative dispute
    resolution systems -- a top priority for the biggest e-commerce

              Meanwhile, Europe was developing its own rules for jurisdiction that
    made some sense in an environment where you had entities like the
    European Parliament and the European Commission to force harmonization
    of substantive law. Europe was also alarmed and jealous of the US
    leadership in the development of the Internet. European negotiators
    pushed hard to impose a treaty based upon the EU's Brussels Convention,
    not only to preserve the European approach, but to lead, for once, in an
    important area for the Internet.

              The European negotiators were also unhappy with the generally
    free and
    unruly nature of the Internet, and saw the convention as a mechanism to
    reign in hate speech, libel and defamatory speech, "piracy" of
    intellectual property, the publishing of government secrets and
    documents on the Internet (the David Shayler case), and other unsettling
    aspects of the Internet.

              The business community, meanwhile, was unhappy with the EU
    approach to
    providing consumer protection, including privacy rights, and fearful
    that the Convention could expose them to lawsuits from several different
    countries for violating consumer protection and privacy laws.

              Meanwhile, Napster had mobilized the music and movie businesses, and
    they increasing saw the need for stronger cross border enforcement of
    copyrights, including the need for injunctive relief aimed at ISPs, and
    the strong long and order (you can run but you can't hide) nature of the
    Hague convention was very appealing to an industry afraid of losing
    control over its own business models.

              A few IPS (Verizon and AT&T) and portals (Yahoo, following its
    education over the French civil suit over Nazi artifacts) saw this as a
    repeat of the fights over the digital copyright laws, and lobbied to
    retain some form of common carrier status, which was greatly undermined
    by the architecture of the Hague Convention, which was to make
    everyone's judgments enforceable everywhere, even in countries that had
    no connection to the tort or delict (greatly undermining the usefulness
    of national "public policy" exceptions).

              Within the various member country delegations, you have some that
    strong experience in contracts and business to business arbitration, and
    who see the 1958 New York Convention on the Recognition and Enforcement
    of Foreign Arbitral Awards as a successful model to emulate. You have
    other members who are primarily interested in torts, which come at the
    issues from a different perspective, and who don't see the convention
    entirely as strengthening the enforcement of contracts.

              In 2000 some elements of civil society became aware of the
    and in particular, BEUC (the European consumer groups), the Trans
    Atlantic Consumer Dialogue (TACD), including both US and EU members, the
    American Library Association, the Free Software movement, and some US
    free speech groups, such as the ACLU, began to follow the Convention.
    In 2000 the Consumer Project on Technology made the Hague Convention its
    top e-commerce priority, and by September 2000 the US government added
    Manon Ress from Essential Information on the US delegation (which
    already had several private sector members representing business

              For the past two years, in a series of meetings leading up to the
    Diplomatic Conference (which ends today), there were efforts to sort of
    the impact of the convention on e-commerce and on intellectual
    property. The US in particular was quite open in consulting with civil
    society and the public in general, and Australia asked for public
    consultations too, but it would appear that no other countries did.
    However, while civil society concerns were presented at virtually every
    negotiating meeting over the past year, this month's diplomatic
    conference was a powerful illustration of the power of the business

              The EU seemed to undertaking a strategy of pushing for a "disconnect"
    for regional agreements, and in particular, for its own EU directive on
    Jurisdiction take precedence in EU to EU transactions, leaving intact
    the stronger EU consumer protection measures for EU to EU transactions,
    while bowing to US government pressure to gut consumer protection
    provisions from the 1999 draft of the convention. This was a major
    victory for the big e-commerce firms.

              One element of this was to essentially expand the definition of
    "business to business" transactions, and to greatly strengthen the role
    of contracts in the convention, making for example, choice of court
    clauses mandatory in almost everything that does not involve personal or
    household use (and sometimes even then), even when these are
    "non-negotiated" contracts, such as shrink wrap or click-on contracts.
    Despite repeated efforts by civil society to fix this, and to limit the
    enforcement of such clauses where the contracts had been

              "obtained by an abuse of economic power
              or other unfair means."

    the delegates refused, at least in this draft.

              So too there was a complete unwillingness to address the
    importance of
    speech related torts, despite the fact that the membership in the Hague
    Conference now includes China, Egypt and many other countries that
    engage in harassment of dissent, and which can easily create repressive
    civil actions to stop dissent. The EU delegates would not even
    consider adding favorable speech language from the European convention
    on human rights.

              A major objective of CPT, TACD, the Library community and the free
    software movement was to take intellectual property out of the
    convention, a move initially supported by the trademark and patent
    societies, due to the ham-handed way that patents and trademarks had
    been addressed in the 1999 secretariat draft of the convention, and also
    the subject of a WIPO sponsored meeting in Geneva in January 2001. In
    February 2001, in Ottawa, the US government actually circulated a paper
    to the delegates that said the US would not sign the convention if
    intellectual property was included. AOL/Time Warner, Disney, the MPAA,
    RIAA, publisher groups and other content owners went ballistic, and by
    the June meeting the US position had changed, and yesterday,
    intellectual property was included in the convention, in a form stronger
    than ever. Also noteworthy was the new bracketed language:

              [In this Article, other registered industrial
              property rights (but not copyright or
              neighbouring rights, even when registration
              or deposit is possible) shall be treated in the
              same way as patents and marks.]
    "Other registered industrial property rights" will cover a lot of ground.

              There are many more details of the negotiations from the URLs given

              It's time for me to end this for now. For more information, and in
    particular to understand better how the convention works, see:


    James Love
    Consumer Project on Technology
    P.O. Box 19367, Washington, DC 20036
    1.202.387.8030 fax


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