Meera Nair

Posts Tagged ‘TPP’

TPP consultation — my submission

In Posts on October 23, 2016 at 7:31 pm

Earlier this year, Canadians were invited to participate in a public consultation regarding the Trans-Pacific Partnership Agreement (TPP).  The deadline for submission is 23:59 EDT, October 31, 2016.

My submission is slightly over 4000 words in length; too much for a blog post.  Below are the closing paragraphs; the entire document is available here.

Update: A thoughtful reader alerted me to a 404 response when trying to access my submission.  If the direct link does not work, try the attachment page.


… The principle argument to join the TPP seems to be that Canada cannot afford to be left out. Even if the agreement was only a matter of tariff and subsidy reductions, that argument is weak.[1] Given the nature of the entirety of the TPP, the costs of which will be felt through heightened expenditure for medicines, diminishment of Canadian culture, elimination of future innovation, absence of attention to public well-being for fear of international reprisals, and the loss of sovereignty when such reprisals are unavoidable, one has to ask: whom is this government wishing to please by committing Canada to the TPP?  The answer does not appear to be: Canadians. One must also ask: has our existing business community been sufficiently engaged to warrant our confidence that fulfilling their wishes will lead to better living for all?

That does not appear to be the case. In 2012, Mark Carney, former governor of the Bank of Canada, indicated that instead of investing in the economy, Canadian businesses “were holding on to nearly half a trillion dollars in cash, an increase of 43 per cent since the end of the recession in 2009.”[2] Recently, the esteemed firm Deloitte, an internationally revered organization, released a damning report concerning the willingness of Canadian businesses to take the necessary steps to reinvigorate the economy. In Deloitte’s words, too many “lack an essential game-changing quality: courage.”[3]

By virtue of the TPP, the individuals that Canada most desperately needs to encourage – the innovative entrepreneur looking to develop new industries to drive the economy when our wood and water have been exhausted – will find that no amount of courage can overcome the hurdles put in place by their own government. As the actual trade measures of the TPP bring very modest gains to Canada, and the remaining components will inflict costs far in excess of those gains, adopting this agreement makes little sense beyond acquiescing to the corporate bullying that is likely happening behind closed doors. If that is the sole reason that Canada must go forward with the TPP, please be honest to Canadians about the government’s reasoning. Please do not pretend that this is solely about Trade.

The TPP is an international omnibus bill, the effects of which will be detrimental to Canadians. The greatest pain will be inflicted upon those youthful voters whom this government so assiduously courted.

Regards,

Meera Nair

 

 

[1] The C.D. Howe analysis estimates the loss to Canada for not joining the TPP; “The real GDP impact would be a negligible -0.006 percent in the first year, rising to about -0.026 percent in 2035.” The losses to existing industries are not taken lightly, but it is essential to wonder what industries could rise in their place, if unrestricted by the constraints embodied within the TPP.

[2] Michael Enright, “Canada’s cowardly CEOs are sitting on billions, rather than investing in the economy,” The Sunday Edition, 16 October 2016 <http://www.cbc.ca/radio/thesundayedition/timid-ceos-endless-war-in-syria-steve-earle-fall-in-vermont-1.3801572/canada-s-cowardly-ceos-are-sitting-on-billions-rather-than-investing-in-the-economy-michael-s-essay-1.3801574&gt;.

[3] Deloitte, The future belongs to the bold, <http://www2.deloitte.com/ca/en/pages/insights-and-issues/articles/the-future-belongs-to-the-bold.html&gt;.  As an aside, poetry lovers will enjoy the inference of Invictus by the report’s authors.

 

looks like it is up to the Conservatives

In Posts on February 7, 2016 at 6:58 pm

On Friday, counterpunch published a detailed article by Murray Dobbin, concerning the TransPacific Partnership (TPP) Agreement and what appears to be a fog of ignorance in the halls of our Federal Government. Dobbin writes:

[The] consultation process has not penetrated the ideological bubble created by … trade department officials. In spite of the fact that by far the biggest concern of critics of the deal (including Joseph Stiglitz and a United Nations report) is the Investor State Dispute Settlement (ISDS) feature (the one that allows corporations to sue governments for regulating) … [Minister Freeland] seems to be either ill-informed or misled about its impact.

Dobbin raises concerns as to how meaningful the Government’s purported consultations are proving to be. Apparently, in response to queries from Canadians concerned about ISDS, Global Affairs Canada has offered assurances that there is nothing to worry about. As quoted by Dobbin:

“With respect to Investor-State Dispute Settlement (ISDS), the TPP will not impair the ability of Canada or its partners to regulate and legislate in areas such as the environment, culture, safety, health and conservation. Our experience under the NAFTA demonstrates that neither our investment protection rules nor the ISDS mechanism constrain any level of government from regulating in the public interest.”

Dobbin does not hesitate to point out the utter falseness of such a statement; not only has ISDS been used repeatedly against Canada, but particularly to inhibit measures taken by Canada to address environmental concerns. (We can only wonder if our Minister of the Environment and Climate Change, the Honourable Catherine McKenna, has been made aware of this.)

Environmental concerns overlap with health concerns. To add another story to Dobbin’s account: a sad day it was, when Canadians’ health placed second to American profits. Briefly, in 1997 the Canadian government of the day banned a manganese-based gasoline additive (MMT), deeming it harmful to human health. MMT’s American producers, Ethyl Corporation, took issue with this decision. It claimed expropriation, an actionable offense under the ISDS framework brought in by NAFTA. Facing a $350 million challenge, the Canadian government opted to settle. To fulfill the terms of the settlement, the ban was reversed and the country left poorer by some $19 million dollars (more than the entire budget for Environment Canada’s regulatory and compliance efforts at that time).

These details, and much more, were provided by Ken Traynor (Canadian Environmental Law Association) in 1998:

Most of the industrialized world does not use MMT as an octane-enhancer in gasoline. It is banned in many of the most smog-prone areas of the United States, including California and much of the Eastern Seaboard. Eighty-five percent of US oil refiners have confirmed that they are not currently using MMT. Alternatives exist and they are not that expensive. … And we’d get better air as a bonus.

If NAFTA did not exist, MMT would still be banned in Canada. Ethyl would have had to convince the US government to go to bat for it with the Canadian government, or sue Canada in a Canadian court. In a Canadian court, a judge can balance corporate property rights with the public interest, something glaringly absent from the deliberations of NAFTA arbitration panels.

We have two physicians in our Cabinet, the Honourable Carolyn Bennet and the Honourable Jane Philpott. Are they aware that any progressive action they may wish to take, should first be evaluated to ensure a foreign investor will not see its expected profits diminish? For that matter, what does our Minister of Justice, the Honourable Jody Wilson-Raybould think of the operation of ISDS? To put it plainly, if multinational corporations may operate in Canada, removed from all obligations to observe Canadian regulation or judicial oversight, do our citizens have any recourse to justice?

Canadians’ best hope for detailed discussion in Parliament may lie in the hands of our Official Opposition. Granted, they are the party that championed the TPP (and its further entrenchment of ISDS), but as Rick Mercer pointed out last week,  current Conservative Members of Parliament have comfortably reversed their stance on a number of issues already. If our Loyal Opposition will continue with their self-induced amnesia, ISDS would be a worthy issue to confront.

All levity aside, a good starting point for all recently elected members of Parliament is an article by Lisa Sachs and Lise Johnson of the Columbia Center for Sustainable Investment. Published in November, through the Globe and Mail, Sachs and Johnson encouraged the new government to pay close attention to ISDS: “[In the TPP] we see a further evisceration of the role of domestic policy, institutions and constituents, and greater liabilities for governments and domestic stakeholders.”

 

dear Ms. Freeland

In Posts on November 8, 2015 at 5:38 pm

The Honourable Chrystia Freeland
Minister of International Trade
House of Commons
Ottawa, Ontario
Canada K1A 0A6

Dear Ms. Freeland,

I am pleased to see your invitation to Canadians to familiarize ourselves with the Trans-Pacific Partnership agreement (TPP) and provide comments to the government. Such an overture is much appreciated, particularly in light of the style of governance that has gone before.

But, the Canadian public may need some help in understanding the issues presented through 6000 pages of text. The media are most likely their expected guides in judging the merits of the TPP. Unfortunately, the media has shown little interest in covering, let alone assessing, what may be the most deleterious aspect of the TPP, namely the Investor State Dispute Settlement (ISDS) mechanism. (At this blog, some coverage can be found here, here, here, and here.)

This mechanism, brought to Canada through NAFTA, ostensibly secures business investments from seizure by hostile governments. Sugar plantations and oil fields in alien jurisdictions come to mind. But ISDS windfalls have come through, not for Canada, but from Canada, for international corporations seeking redress when they have felt their profits unfairly curtailed by domestic regulations.

Just prior to the conclusion of the TPP negotiations, Brook Baker (Northeastern University) and Katrina Geddes (Harvard University) posted a paper describing the rise in global applications of ISDS, from 50 instances in the first 50 years of the existence of the mechanism to 608 in the last 15 years. They write:

This sea change in investor-state claims was triggered by the belated realization that not only could investors bring claims against banana-republic confiscations but against emerging economies and even advanced democracies whenever their expectations of profit were thwarted … Accordingly, foreign corporations have used investor-state dispute resolution to challenge a broad array of environmental and land use laws, government procurement decisions, regulatory permitting decisions, financial regulations, consumer protection, public health, and public safety laws, and a range of other public interest policies (p.11).

Baker and Geddes draw attention to Canada’s current difficulties under ISDS: a $500 million challenge from Eli Lilly, all because our courts had the temerity to invalidate a patent which did not live up to assurances. Eli Lilly also complained that our system of patenting was not to their liking. It may be their prerogative to complain about our system, but it should not be their right to change it. Like any other regulatory measure, Canada’s system of patenting was set by a Canadian government, in full compliance with existing international norms. Eli Lilly had every opportunity to press their concerns through Canadian courts. They did, and they lost. The story should have ended there. Yet ISDS offers a venue for Eli Lilly to take a course of action that would render our courts’ decisions irrelevant.

As I noted in an earlier post, the former Harper Government presented the TPP investment protection measures in glowing terms. While such a rosy outlook did not ring true, it is plausible that, having curtailed the Civil Service from doing its job of meaningful scrutiny, the mandarins in Mr. Harper’s office truly did not know better. But with the release of the text we now know that what is encoded into the TPP is ISDS at its worst. Experts who condemned the agreement before it was released have been vindicated, cold comfort as that may be.

Among those experts is internationally acclaimed economist Joseph Stiglitz. In your 2012 publication, Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else, Stiglitz appears in your acknowledgement of scholars who became “important sounding boards and advisors (p.290).” It is no secret that Stiglitz views the TPP as a charade of a trade agreement; among his recent columns is this assessment:

… These agreements go well beyond trade, governing investment and intellectual property as well, imposing fundamental changes to countries’ legal, judicial, and regulatory frameworks, without input or accountability through democratic institutions.

Perhaps the most invidious – and most dishonest – part of such agreements concerns investor protection. Of course, investors have to be protected against the risk that rogue governments will seize their property. But that is not what these provisions are about. There have been very few expropriations in recent decades, and investors who want to protect themselves can buy insurance from the Multilateral Investment Guarantee Agency, a World Bank affiliate (the US and other governments provide similar insurance). Nonetheless, the US is demanding such provisions in the TPP, even though many of its “partners” have property protections and judicial systems that are as good as its own.

The tone from the participating governments of the TPP is that the agreement is good for business; they rely upon the implied orthodoxy that business well-being translates to citizen well-being. However, you have questioned this orthodoxy. In Plutocrats, you describe a heated exchange in 2011 between then-Governor of the Bank of Canada, Mark Carney and Jamie Dimon, CEO of JP Morgan Chase and write:

Are the interests of the state and its big businesses synonymous? If not, who decides? And if they do clash, does the state have the right—and the might—to curb specific businesses for the collective good (p.255)?

That our Minister of International Trade has your background suggests that the TPP will be examined comprehensively. That our civil service has been unshackled suggests that qualified personnel with backgrounds in law, commerce, human rights, and trade negotiation will be encouraged to exercise their expertise with vigour. That Prime Minister Trudeau has promised transparency suggests that, whatever decision is reached concerning the TPP, Canadians will be fully informed as to both its merits and demerits. If Canadian sovereignty must continue to be diminished, we expect to be told the truth.

But, I choose to be optimistic. The state will not be limited to serving only as a handmaiden to business. My optimism stems from an encore remark in Plutocrats:

The issue, instead, is whether the interests of business and of the community at large are always the same and, if they aren’t, whether the government has the will, the authority and the brains to defend the latter, even against the protests of the former (p.261).

You and your colleagues have been given the authority. Your collective credentials remove any doubt as to the brains. What remains to be answered is the question of will.

I wish you all the best in your endeavors.

Sincerely,
Meera

Meera Nair, Ph.D
Edmonton

 

Update — January 25, 2016

Minister Freeland has posted an open letter, detailing the state of the TPP Agreement. It is encouraging to read that the Federal Government has undertaken widespread consultation, and is committing to fully evaluate the agreement in a transparent manner: “… this should include extensive, non-partisan consideration, analysis, and testimony from all regions, sectors, and backgrounds. Most importantly, this process will be fully public.”

Freeland also states the Canada will sign the agreement in February, but emphasizes that signing the agreement now does not commit Canada to full ratification in two years.  (Readers may remember Howard Knopf’s explanation during discussion of the WIPO treaties, that signing is like dating, whereas ratification is like marriage.) Freeland echoes the simile; stating that, by signing, we preserve our status as “a potential full partner in the Agreement, with all of the rights and powers that go with it.”

Canadian opinion concerning the TPP Agreement is divided. It will not be possible for any government to please everyone. Whatever decision is ultimately arrived at, if it is chosen by knowledgeable, non-partisan actors, with the aim of making the best possible, overall decision, and, with frank acknowledgement of the more deleterious consequences, then Canada will have been well-served by its government.

 

TPP – the untold story

In Posts on October 9, 2015 at 7:28 am

Since the agreement in principle of the TransPacific Partnership Agreement was announced this week, our media coverage has focused primarily upon its adverse impact to the dairy industry in Canada. The Federal Government was quick to respond with some reassuring details including an offer of $4.3 billion over fifteen years to ease the pain of greater competition.

But the government has yet to release the complete text of the agreement, content to indicate that it will provide more information in the next few days. Unless “more information” is comprehensive, Canadians will head to the polls on October 19, without a detailed understanding of the potential ramifications of the TPP.

At this stage, all we have is the technical summary provided by the government; among other details, the TPP apparently:

1. Includes protection from expropriation without prompt and adequate compensation.

2. Provides access to an independent international investor-state dispute settlement (ISDS) mechanism that is prompt, fair and transparent, and subject to appropriate safeguards.

3. Preserves the full rights of governments to legislate and regulate in the public interest, including for public health and environmental reasons.

The language appears intended to assure Canadian companies who invest abroad that their money and property will be safe – that statement (2) protects the integrity of (1). What the government fails to indicate is that this settlement mechanism has already seen use – directed at Canada. Brought to life through NAFTA, ISDS is a process by which foreign corporations can sue domestic governments for practices that might diminish expected profits. Moreover, these suits do not take place in a court of law, but in private tribunals.

Our government’s claim that the process by which disputes are to be settled is “prompt, fair and transparent, and subject to appropriate safeguards” is less than credible. As has already been written, ISDS disputes “are managed by a trio of corporate attorneys who rotate among the positions of advocate and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute.”

Furthermore, our government’s claim that Canada’s right “to regulate … in public interest” is protected (said another way, we maintain our sovereignty) also strains credulity. As I noted here, in 1997 Canada retracted its own ban on a gasoline additive because of an ISDS dispute. Retracting the ban was not the only punishment meted out to Canada, the government also paid $13 million in damages, covered the opposing corporation’s legal costs, and publicly proclaimed that the additive was safe, even though our own environmental protection agency had said otherwise.

The one area where the TPP might be held at bay is in the area of tobacco law suits. It has been reported that the agreement includes a carve out against disputes from tobacco companies who object to policy measures that reduce smoking rates. (The disputes are very real; Uruguay is paying a heavy price for its worthy efforts to reduce smoking among its population.)  Sean Flynn (Washington College of Law), writes that such a carve-out “validates, rather than assuages, the concerns of those who have been criticizing ISDS systems for many years. Without express carve outs, ISDS provisions do threaten common health and safety regulations.”

The destructive nature of ISDS in existing agreements has prompted careful study and analysis. One such paper seems to have been designed expressly for the Canadian electorate; on 29 September 2015, co-authors Brook Baker (Northeastern University) and Katrina Geddes (Harvard University) posted Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines – Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement to the SSRN network.

Canada’s prominence is due to its dubious honour of being the first country to be targeted for patent dispute via ISDS, even though NAFTA ostensibly shielded domestic patent decisions from ISDS. Yet, we are embroiled in a $500 million challenge. This dispute began because our courts had the temerity to invalidate a patent that did not live up to expectation. Among the details provided by Baker and Geddes is that the research underpinning the patent consisted of a study of 21 patients over three weeks, with modest improvement detected in the condition of 11 patients (p.28). Baker and Geddes’ work is meticulous in its evaluation of ISDS and ought to have been compulsory reading for every member of Canada’s negotiating team.

The lone media coverage of ISDS this past week came via the Winnipeg Free Press. In an op/ed penned by Ronald Labonté and Arne Ruckert (University of Ottawa), they write: “Canada is already the most sued country in the world. It has so far lost $170 million in NAFTA cases with hundreds of millions more still pending.”

What has been most perplexing about the mania for the TPP is the insistence that Canada could not be left out. Given our experience, can Canada afford to be left in?

That the TPP might have actual trade benefit could well be true. But will the gains be large enough to compensate for the losses we will endure by throwing away our capacity to make sound policy decisions, in keeping with our own aspirations with respect to clean air, clean water, public health and safety, labour laws, or allocation of intellectual property rights?

ISDS was originally deemed a necessary measure for situations where the country involved did not have a robust, functioning system of law. Canada does not fit that bill.

So far, Canadians have been presented with a take it or leave it conceptual view of the TPP. There remains a third approach: hold out for a trade agreement that is only about trade, with the expected give and take in tariffs that is required for fruitful growth across all parties. As Labonté and Ruckert noted, Europeans are pushing back on similarly flawed agreements.

International corporations do not need to be given absolute freedom to seek unbridled profit to the detriment of public interest. Canadians have an opportunity to express their concerns to our government. And when the dust settles on October 19, if the opposition parties hold the balance of power, we can only hope that they will set aside partisan sniping and work together. Canadians deserve nothing less.

a $3.5 billion reminder

In Posts on January 18, 2015 at 3:19 pm

Investor-State Dispute Settlement (ISDS) reappeared in the news last week. Writing for Toronto Star, Les Whittington alerts Canadians that our country is on the receiving end of a claim of $3.5 billion by the owner of the Ambassador Bridge which connects Windsor and Detroit. “Matty Moroun … is claiming damages from Ottawa in connection with Canada’s plan to help build a second bridge linking Ontario to Michigan at Detroit.”

It is the ISDS mechanism established within the North American Free Trade Agreement (NAFTA) that is providing the avenue of complaint for Moroun. I have written about ISDS before (most recently, see here); in essence, foreign corporations have recourse to sue governments, via private tribunal, when government or judicial actions of the home country are deemed to compromise the foreign investment. ISDS was introduced ostensibly to provide security to corporations when dealing in countries with less-than-robust systems of law, but has now become part and parcel of most bi-lateral or multi-lateral trade agreements. The recently agreed upon Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, and the pending Trans-Pacific Partnership (TPP) which is described as the largest trade agreement negotiated outside of the World Trade Organization, are no exceptions. From a Canadian perspective though, it is perplexing that any government of Canada should embrace the continuance of ISDS in trade agreements.

Whittington draws from a newly–released compilation of actions against NAFTA governments, authored by Scott Sinclair for the Canadian Centre for Policy Alternatives (CCPA), to observe that, disproportionately, Canada receives most of the action. It could be argued that Canadian trade with the United States is of higher volume than that of Mexico, and thus such proportion is inevitable. One could also argue that Canada’s past commitments to public-wellbeing are more likely to impede a laissez-faire mantra, and that is why we attract unwanted attention. A day after Whittington’s article, Thomas Walkom also weighed in via Toronto Star: “… 69 of the 77 complaints made against governments in the three countries were leveled against public policy measures in areas such as environmental protection, land-use planning, drug regulation and health care.”

Whittington observes that the Canadian government sees concerns of ISDS as overdrawn; with respect to CETA, he quotes a representative: “Investment protections have long been a core element of trade policy in Canada and Europe, and will encourage job-creating investment and economic growth on both sides of the Atlantic.” But, in March of last year, Public Citizen issued a report which comprehensively illustrates that ISDS offers protection far beyond what occurred in the past and that “… countries bound by ISDS pacts have not seen significant FDI increases, [whereas] countries without such pacts have not lacked for foreign investment (p.3).” And in that same report, Public Citizen illustrates precisely how deleterious actions under ISDS are to public well-being.

For instance, both Uruguay and Australia have drawn fire for their anti-smoking efforts (larger warning labels and plain packaging requirements), despite the fact that the World Health Organization commends such effort. (Jim Armitage, writing for The Independent last fall, described in detail Uruguay’s success in reducing smoking rates among its population.) Yet tobacco company Phillip Morris, is challenging both countries by way of ISDS. As noted by Public Citizen, “Philip Morris is demanding compensation from the two governments claiming that the public health measures expropriate the corporation’s investments in violation of investor rights established in Bilateral Investment Treaties (p.2).” Neither Uruguay’s health success nor the fact that Australia’s regulations were upheld by its Supreme Court, will have much sway in the tribunal operations of ISDS.

Under ISDS, disputes are managed by a trio of corporate attorneys who rotate among the positions of representative and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute. Even if one is willing to accept that such critical decisions are rendered outside the forum of any country’s judiciary, the lack of statutory guidance to the outcome is extraordinary; Public Citizen writes:

If a tribunal rules against a challenged policy, there is no limit to the amount of taxpayer money that the tribunal can order the government to pay the foreign corporation. Such compensation orders are based on what an ISDS tribunal surmises that an investor would have earned in the absence of the public policy it is attacking. The cases cannot be appealed on the merits. There are narrow technical and procedural grounds for annulment. Firms that win an award can collect by seizing a government’s assets if payment is not made promptly. Even when governments win cases, they are often ordered to pay for a share of the tribunal’s costs. Given that the costs just for defending a challenged policy in an ISDS case total $8 million on average, the mere filing of a case can create a chilling effect on government policymaking, even if the government expects to win (p.2-3).

For Canadians, that last sentence is not conjecture; Walkom writes “[In 2013] … the Ontario government paid a U.S.-based company $15 million to withdraw its complaint.” Moreover, the phrase “would have earned in the absence of the public policy it is attacking” should send chills down everyone’s spine. Clean air, clean water, access to medicine, and, worker and public safety, all sit on the cost side of any ledger. It is unrealistic to expect that measures addressing these social needs would have been voluntarily adopted by entire industries, and then maintained by those industries, without some prodding from government. The appropriate forum to address dispute between corporate expectation and government commitment to public well-being, can only be a court of law.

Harold Innis (1894-1952) once remarked upon the brilliant achievement that was the development of law; that law represented “an alternative to force.” True, in the 21st century, citizens of nation states do not fear marauding armies traipsing through the streets in a hostile takeover of the nation. But we should not lose sight of the fact that nations can be taken over in a far more insidious way; losing the supremacy of our judiciary and the autonomy of our government should be an early warning sign.

the $500 million tip of the TPP iceberg

In Posts on July 13, 2014 at 8:19 pm

Last week, international negotiators met in Ottawa to further discuss the Trans-Pacific Partnership (TPP) agreement. With the usual shroud of secrecy, few details regarding agenda and outcomes were released for public consumption. Nevertheless, based on a leaked copy of the chapter relating to intellectual property, there is sufficient reason for concern with respect to copyright. As reported last week (see Electronic Frontier Foundation here, Michael Geist here, Public Knowledge here, and VICE here) Canada’s copyright regime is likely to be challenged on at least two fronts:

  • the role of internet service providers (will they remain as neutral providers or become key figures in policing the internet?)
  • copyright duration (will Canada’s life-plus-fifty term give way to life-plus-seventy?)

Geist reminds us that the TPP will touch more than copyright; Canada’s privacy and patenting regimes are also implicated. Indeed, the question of Canadian sovereignty with respect to patenting is already at risk, via Eli Lilly’s $500 million challenge to the Canadian government regarding the loss of two secondary-use patents. The means by which Eli Lilly has launched its claim is a consequence of the Investor-State Dispute (ISD) mechanism of NAFTA.

Courtesy of Dennis Lowe and National Geographic

Courtesy of Dennis Lowe and National Geographic

Our made-in-Canada copyright regime has been painstakingly crafted over ten years of deliberative thought; to watch it cast aside will be difficult. But more deleterious will be further entrenchment of the ISD mechanism through the TPP. Yet this issue has received little attention in Canada. Perhaps in part because the topic is not sexy; Investor-State Dispute sounds painfully dull. The phrase cannot be summarily equated to freedom of expression, invasion of privacy, or even the dubious claim that a hit television series could not have been made under the TPP. ISDs are constructed with arcane language that seemingly has little to do with everyday life, but they are potentially lethal as is being demonstrated by Eli Lilly.

Eli Lilly provides the bizarre spectacle of a corporation suing a government because a court decision did not favour the corporation. It has vehemently insisted that the decision of Canadian courts not to uphold two secondary-use patents is a violation of investor safeguards provided through NAFTA; specifically, those relating to minimum standard of treatment, non-discrimination, and expropriation. That the courts rejected the patents because the drugs concerned did not live up to the standard of utility set by Canadian law, was not reasonable according to Eli Lilly. To take action against Canada required contorting the ISD chapter of NAFTA, despite the fact that the chapter in question does not apply to intellectual property. The entire event would read like a lurid novel, if novels were written about intellectual property and national sovereignty.

In a report dated to March 2013, Public Citizen provides a meticulously researched account of Eli Lilly’s actions and the operation of ISDs within trade agreements. At that time, Canada was only facing a $100 million challenge (Eli Lilly has since upped the ante); even so, Public Citizen did not miss the irony at hand:

… while Canada faces an investor-state challenge from Eli Lilly, the country has joined negotiations to establish the TPP, which would expand the investor-state system further. To date, Canada alone has paid more than $155 million to foreign investors after NAFTA investor-state attacks on energy, timber, land use and toxics policies. Underlying Eli Lilly’s claim against Canada is the notion that government patent policies and actions are subject to the investor privileges provisions of the agreement.

Public Citizen observes that Eli Lilly’s actions marks the first occasion of an intellectual property challenge occurring under the auspices of NAFTA’s ISD provisions. Our previous “first”, the first challenge of any kind, does not offer much comfort, resulting as it did in a loss both monetarily and for public health. Briefly, in 1997 a ban on the gasoline additive MMT was repealed by the Canadian government in response to opposition by Ethyl Corporation, the American producer of the additive. At the time, Public Citizen wrote:

The Canadian government settled the NAFTA suit yesterday agreeing to pay Ethyl $13 million in damages and to cover the company’s legal costs. It will also proclaim publicly that MMT is “safe” in direct contradiction of the view of its national environmental protection agency.

With respect to Eli Lilly’s present action, Michael Geist and E. Richard Gold (Professor, Faculty of Law, McGill University) have both indicated that the corporation’s chances of winning are slim. Notably, in a briefing session recently held in Washington DC, Gold indicates that “… no competent tribunal could rule in Eli Lilly’s favor”. We can only hope that both Geist and Gold are correct. But competence might prove a relative term; so far, arbitration tribunals have not distinguished themselves in weighing public interest (as a domestic court of law would) into the decision-making process. (Public Citizen has thoroughly documented past arbitration decisions, with added detail for some of the more egregious outcomes.) Moreover, even if Canada secures a win, that does not necessarily exclude involvement in costs.

The Washington DC briefing session was hosted by the firm of Stern, Kessler, Goldstein and Fox on 5 June 2014, with all the presentations posted online. I am hard pressed to choose a favorite but Simon Lester (Trade Policy Analyst, Cato Institute) raises the issue of Canada’s increasing involvement with ISDs. Despite some indication from the Canadian government that CETA (the impending trade deal with the European Union) will mitigate the ISD risks, Lester notes that Canada is simply trying to “tweak the language” to ensure that court decisions cannot be challenged. “…  what I have seen written is that the only changes are that no claims can be made under expropriation, but there are more avenues [of claim]… the slight tweaks that Canada wants to make are probably not enough.”

If the Canadian government is not decisively protecting sovereignty within a bilateral trade negotiation, it is unlikely that we will do better in the multi-national forum of the TPP.

There is much more that could and should be written about ISDs but, for now, Lester shall have the last word. In his presentation, he asks an important question: “Normally, the Supreme Court gets the final word. But apparently, there’s an international court system above the domestic Supreme Court system.  … Is everybody okay with that?”

 

 

 

 

 

it IS a big deal

In Posts on March 2, 2014 at 3:47 pm

On 27 February 2014, The NY Times published “No Big Deal”, by Paul Krugman on the Trans-Pacific Partnership (TPP) agreement and the apparent stalling of negotiations. He writes, “I am in general a free-trader, but I’ll be undismayed and even a bit relieved if the T.P.P. just fades away.” On that point, many people would likely share his relief. However, Krugman’s article is dangerous; he cloaks the TPP with an aura of blandness, arguing that the benign nature of the agreement is why it will not be missed. According to Krugman, the agreement does very little to enhance trade, instead:

… these days “trade agreements” are mainly about other things. What they’re really about, in particular, is property rights – things like the ability to enforce patents on drugs and copyrights on movies.  And so it is with T.P.P.

Krugman’s assessment of the TPP is framed by comparison to trade agreements of days gone by, when eliminating tariffs was a principle feature of negotiation. His remarks may be accurate in that regard, but by confining his assessment so narrowly, he avoids in-depth examination of the agreement as a whole. The TPP is not about trade. That word suggests a mutually beneficial exchange between two or more parties. The TPP is about domination and ensuring that countries do not oppose any actions taken by foreign corporations regardless of how those actions might affect health, environment, or even trade, within a host country.

Achieving such dominance includes imposing stringent measures upon intellectual property (more so than what is currently required by international agreement) and requiring that disputes arising are not adjudicated in either a court of law, or a seat of some impartiality like the WTO, but in private tribunals. (I have touched on the perils of investor-state dispute mechanisms, see here; Renée Loth writing for the Boston Globe on 22 December 2013 also covers this issue.)

Mr. Krugman could dismiss such remarks on the grounds that the actual agreement is yet to be seen. But that factor in itself ought to be a major reason for concern. Negotiations have been conducted in secret, with the public having to rely on a leaked document to discover what is being discussed. Granted, it is not possible, nor desirable, for any administration to govern by referendum. However, even U.S. elected representatives have not been privy to details. That combined with the desire of the Obama administration to fast-track the agreement, should have alerted Krugman: the TPP is a big deal.

But perhaps most startling of all is that Krugman’s article of the 27th is the second such article he has written. The first was published by The NY Times on 12 December 2013, titled “TPP”. Comparing the two articles, the tone is essentially the same; that judging by the former hallmarks of free trade, the TPP would not make much difference:

…  my starting point for things like this is that most conventional barriers to trade — tariffs, import quotas, and so on — are already quite low, so that it’s hard to get big effects out of lowering them still further.

That earlier article provoked some commentary. Dean Baker wrote a courteous dissent for the Center for Economic and Policy Research:

…it is a misunderstanding to see the TPP as being about trade. This is a deal that focuses on changes in regulatory structures to lock in pro-corporate rules. Using a “trade” agreement provides a mechanism to lock in rules that it would be difficult, if not impossible, to get through the normal political process.

Mike Masnick of TechDirt went into greater detail than Baker on the measures included in the TPP. And Masnick puts his fingers immediately on the value of an op/ed such as Krugman’s:

On [Krugman’s] basic reasoning, he’s correct. There’s little trade benefit to be gained here. In fact, some countries have already realized this. But that’s why the TPP is so nefarious. It’s being pitched as a sort of “free trade deal,” and Krugman analyzes it solely on that basis. That’s exactly what the USTR would like people to think, and it’s part of the reason why they’ve refused to be even the slightest bit transparent about what’s actually in the agreement.

Both responses are worth reading in their entirety; they are as germane today as they were three months ago.

Which leads me to question why Krugman continues to limit his exploration of the subject? He acknowledges that the TPP would, “increase the ability of certain corporations to assert control over intellectual property.” But he makes no effort to explore the ramifications of the increase. For such an accomplished economist, who writes under the tagline of “The Conscience of a Liberal,” this neglect is unconscionable.

Further Reading: InfoJustice.org (of the Washington College of Law, American University) has compiled a list of analyses (some for the agreement, others against), see hereChristopher Ingram, writing for The Washington Post (28 February 2014) describes the current composition of trade-advisory committees as selected by the Obama administration: “Of the 566 committee members, 306 come from private industry and an additional 174 hail from trade associations. All told they represent 85% of the voices on the trade committees.”

Update – 18 March 2014 – And more reading: On the Wrong Side of Globalization by Joseph Stiglitz.

TPP and ISDS – more acronyms

In Posts on December 8, 2013 at 3:45 pm

“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.

fun with the funnies

In Posts on September 25, 2013 at 7:55 pm

Mike Masnick, writing for Techdirt this week, brought the plight of Lauren LoPrete to wider attention. LoPrete is the creator behind the delightful Tumblr site This Charming Charlie, and, the recipient of take-down actions which claimed that her work violated American copyright law.

LoPrete combines snippets of lyrics from The Smiths with Peanuts comic strips, drawn by Charles Schulz (1922-2000), to delightful results. However, Universal Music Publishing Group (the licensing arm of The Smiths), issued multiple take-down notices to Tumblr, arguing that LoPrete had engaged in copyright infringement.

Under American law, in order to avoid liability, Internet Service Providers must remove allegedly infringing material without dwelling on details such as due process. According to Tumblr’s Terms of Service (dated to 2012-03-22), after the removal, a subscriber may file a counter-notification (which must include his or her name, address, telephone number and email address) to the Internet Service Provider, which is then forwarded on to the complainant. If the complainant does not take further action within ten days, the material “may be restored.”

LoPrete initially chose to discontinue her work. But, after she posted a farewell message, lawyers rallied to the cause and offered pro-bono services to help reinstate her work. The firm of Booth Sweet LLP responded accordingly to Tumblr:

So much to answer for! Yet our client believes in good faith that these three posts, like all posts on her charming website, do not infringe the copyright for any Smith’s lyrics as they constitute fair use in accordance with 17 U.S.C. § 107. …

Their explanation covers the salient details (the use is transformative*, very little of the lyrics are used in each strip, and the new works in no way compete with the market of the songs) with admirable clarity and brevity. As to whether the works are reinstated, Universal has five more days to ponder their actions. Covering this story for MotherBoard, Fruzsina Eördögh writes: “When it comes to DMCA take-downs on the Internet, no one is more Lucy van Pelt-like than Universal.” And so we wait for September 30.

This Charming Charlie

LoPrete 2013

Amusing as this story is, particularly in its David v. Goliath dimension, and admirable in its ingenuity and creativity, it also serves to illustrate a vital difference between American and Canadian copyright law.

Canadian Internet Service Providers (ISPs) are shielded from aggressive (and possibly baseless) copyright claims by virtue of the Canadian system of notice-and-notice. ISPs must convey complaints to subscribers, and maintain suitable records should the issue lead to litigation; that is all. ISPs are not required to remove material, disconnect subscribers, betray subscriber privacy, or take on the risk of liability.

However, if the TransPacific Partnership Agreement (TPP) should come to Canada, that sensible, made-in-Canada approach becomes a thing of the past. Canada would be obligated to adopt the notice-and-takedown approach of the United States. In an appearance to the House of Commons Standing Committee on Trade in June 2013, Michael Geist emphasized the backwardness of the TPP in connection to Canadian copyright law; specific to ISP liability he said:

This approach establishes the obligations for Internet providers and intermediaries when there are claims of copyright infringements, and grants copyright holders powers to raise allegations of infringement with the sites and their subscribers.  Moreover, it protects the privacy of subscribers and does not result in takedowns of content based on mere allegations. During the debates on Bill C-11, Canadian Heritage Minister James Moore repeatedly pointed to notice and notice as an example of a positive Canadian-specific approach. Yet according to leaked documents, the TPP would require that Canada drop its approach in favour of a more draconian takedown system that could stifle free speech and result in the removal of content without the need for any proof of infringement.

Two years earlier, when Parliament explored amendments to Canadian copyright law (through then-named Bill C-32, which later became Bill C-11, which passed in June 2012 and entered into law in November 2012) Geist wrote about the effectiveness of notice and notice, as documented by the ISPs themselves. For instance:

 … Rogers came prepared with evidence about how the system functions and on its effectiveness. It reports that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. In other words, 95% of its subscribers are not identified by rights holders as copyright infringers – far from the piracy haven that it often claimed. Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice. …

Returning to the immediate comparison, Canada does fall short of United States copyright law in one respect; the continued structure of fair dealing as a set of specified categories. Americans enjoy fair use’s language of “for purposes such as …” which gives shelter to uses that do not fit a set purpose. A scenario not uncommon in art, as I have identified in a post prior to the last amendments; see sometime art is just art. Fortunately, Canadians now have an expanded set of categories for fair use: research, private study, criticism, review, news reporting, education, parody and satire. And with continued reminders from our Supreme Court that fair dealing should be interpreted liberally, one can hope that artistic endeavor will more comfortably fall within fair dealing.

* Note: neither American nor Canadian law requires that a use be transformative before it can be considered fair use or fair dealing. The factor of transformation lends itself to discussion of new works, but is irrelevant in questions of unauthorized copying where the purpose is to disseminate the original work. In those situations, other aspects of the fairness analysis are germane.

Update — September 28, 2013 Good news. The Los Angeles Times editorial board writes that Universal is dropping the claim of infringement.

when Happy Birthday collides with the TPP

In Posts on June 16, 2013 at 5:02 pm

On Friday, two stories caught my eye. Benjamin Weiser, writing for the New York Times, describes a lawsuit underway which seeks to have the song Happy Birthday declared as belonging to the public domain. At the centre of his story is Jennifer Nelson, a filmmaker currently working on a documentary about the song, who discovered that her intended use of Happy Birthday must be preceded with a $1500 licensing fee. As the film-maker was filing her suit on Thursday in New York, Trans-Pacific Partnership (TPP) negotiators discreetly came to Vancouver for an inter-sessional round of talks scheduled for June 14-16. Writing for iPolitics, BJ Siekierski notes: “Despite it being the first time negotiators have gathered in Canada, however, the mini-round wasn’t publicized by the Department of Foreign Affairs and International Trade — only making it likelier to fuel ongoing criticism of the secrecy surrounding the TPP.”

These seemingly unrelated stories collide on the matter of copyright term. Canadian filmmakers may well be enjoying a measure of professional glee that they are spared the trials of Nelson and other American filmmakers. Thanks to our shorter copyright term of life-plus-fifty years Happy Birthday is already public domain material in Canada. But that glee may not last, as the leaked details about the oh-so-secret TPP agreement indicate that Canada would have to make questionable amendments to our copyright law, including extending the term of copyright. There has been very little official detail provided about the agreement, even when the Government asked Canadians for input in early 2012 (my concerns about term extension were duly submitted).

On 3 June 2013 Michael Geist appeared before the Standing Committee on International Trade and left no doubt as to how bad this agreement will be for Canadians. He began with the utter lack of transparency concerning the process:

No public report summarizing the [responses to the public consultation] was ever published, yet according to documents I obtained under the Access to Information Act, the government was overwhelmed with negative comments urging officials to resist entry into the TPP and the expected pressures for significant intellectual property reforms as part of the deal.  In addition to tens of thousands of form letters and e-mails criticizing the TPP, the government received hundreds of individual handcrafted responses that unanimously criticized the proposed agreement. In fact, a review of more than 400 individual submissions did not identify a single instance of support for the agreement; rather, those submissions focused specifically on copyright-related concerns.

Geist offered detailed illustration of the regressive changes that would be required, changes that will undo the  decade of effort that underwrote some progressive amendments achieved by this very government. On the specific matter of term extension he said:

The term of protection for Canadian copyright is presently the life of the author plus an additional 50 years after his or her death. This term meets the international requirement as established in the Berne Convention. The TPP would require Canada to add an additional 20 years to the copyright term. The extension in the term of copyright would mean that no new works would enter the public domain in Canada at least until 2034, assuming that the agreement takes effect in 2014. Many important authors would immediately be affected, since their works are scheduled to enter into the public domain in the period, let’s say, between 2014 and 2034. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould, as well as non-Canadians such Robert Frost, C.S. Lewis, T.S. Eliot, John Steinbeck, J.R.R. Tolkien, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to literature and history, particularly Canadian literature and history.

Finally, Geist reminded Committee members that:

The TPP negotiations have been ongoing for years, yet there has still been no official release of the draft text. To conduct a hearing on the benefits of the TPP without public access to the draft text forces participants to rely on leaked information that has not been officially confirmed. Canada should be demanding that a draft text be made available for all to see. Instead, it is deeply troubling that DFAIT has established a secret insider group, with some companies and industries associations being granted access to consultations as well as opportunities to learn more about the agreement and Canada’s negotiating position.

At the outset Canada had very little in the way of a negotiating position. Thomas Walkom observed that Canada was allowed to join by grace of the other TPP members, “on the understanding that [Canada] would have to abide by whatever the original nine had already decided (all of which is secret).”

If Canadians lose the competitive advantage that comes from having a better public domain, the issues surrounding Happy Birthday become even more pertinent. It is not the access to any particular work per se that warrants attention, but the power of anecdotal claims of control over historic works. In this instance, the power of the anecdote yields annual licensing revenues of $2 million for the currently presumed owner, Warner/Chappell (the publishing division within Warner Music).

The history of this song was the subject of meticulous research by Robert Brauneis, a law professor at George Washington University. Copyright and the World’s Most Popular Song (2010) is available through SSRN. At sixty-eight pages in length it is daunting to read, but well worth the investment in time. Professor Brauneis gives readers the life story of Happy Birthday, through its progenitors Mildred and Patty Hill. Mildred was an accomplished musician and composer; Patty was a prominent scholar and teacher in the field of early childhood education.

The genesis of Happy Birthday was their song Good Morning to All (published in 1893). Later, the lyrics of Happy Birthday were overlaid to the melody of the earlier piece. Through review of previously-ignored primary documents, Brauneis explains the difficulty in assuming that the Hill sisters wrote the new lyrics–the copyright notices that exist for the song do not support such an assumption. Moreover, regardless of confirmation of authorship, a proper renewal notice was not filed according to the American law of the day.

Weiser writes that Brauneis is not a consultant to this case; nevertheless, his informed opinion is clear: “I believe this song is in the public domain and therefore it is not owned by anyone. … [a successful legal challenge] might be a model for challenges to other songs.” However, Brauneis is equally clear in his paper as to the obstacle for future successful legal challenges:

[As] copyright term lengthens, it will become more and more difficult to gather evidence relevant to determining the validity of contested copyrights. It is now possible for a work to still be under copyright long after not only the death of its author, but after the death of anyone who knew the author, which makes it very difficult to present testimony about the circumstances of the work’s creation. There may be little that can be done about the problem of live testimony, but more could be done to preserve documentary evidence (emphasis mine).

One can only hope that national governments heed his advice.

Some Other References

“You Say It’s Your Birthday?” by Paul Collins, Slate, 21 July 2011.

Copyright Term and the United States, posted by Cornell University, current as of 1 January 2013.  For explanation concerning the use of the chart, see “When is 1923 going to arrive?” by Peter Hirtle (Senior Policy Advisor, Cornell University Library) in Searcher Vol. 20 No. 6 (September 2012).

And, for fun, Kermit the Frog on copyright posted to YouTube on 1 April 2013.