Is not the Atwater Elementary School District part of the public school system? If it is still a part of the public school system; then, the general public still has a right to know just what is happening in the public domain. If board members Lena Mendoza, John Hall and Sheila Whitley want their actions to remain secret, then let them; but, at the same time let action be taken to immediately fire them from their positions of trust. There would be no secret about their being fired as the general public would already know just why such action was taken.
The scene last week at the Intercontinental Dallas Hotel looked like any generic corporate event held in any generic hotel ballroom—until the protesters crashed the party.
Trade officials from countries scattered around the Pacific Rim mingled in business attire. Ron Kirk, current US Trade Representative and former mayor of Dallas, welcomed everyone to the the latest round of negotiations for the Trans-Pacific Partnership (TPP). The crowd applauded, and Kirk stepped down, ready to continue with the festivities, when a man strode confidently to the podium and introduced himself as “Git Haversall,” president of the “Texas Corporate Power Partnership.”
“I would like to personally thank the negotiators for their relentless efforts,” he said into the microphone. “The TPP agreement is shaping up to be a great way for us to maximize our profits regardless of whether the public of this nation, or any other nation, thinks it’s right.”
By this point, it had become clear that “Haversall” wasn’t who he said he was, and security kept Kirk from returning to the stage. Indeed, Haversall was local puppeteer, David Goodwin, and the fake award had been the brainchild of the Yes Lab and Occupy Dallas, who were escorted from the hotel for their trouble. Not that this deterred them; the groups also managed to project a “TPP, Why So Secret?” message in light on the hotel’s exterior, and they replaced hundreds of toilet paper rolls in the hotel with their own version.
The stunt was the latest example of popular discontent with US trade policy, which has increasingly become an instrument of copyright and patent law export.
TPP is a massive new free-trade style agreement that aims to provide “comprehensive market access,” “regulatory coherence,” and, most notably for the tech community, a commitment “to ensure an effective and balanced approach to intellectual property rights among the TPP countries.” The agreement is currently undergoing its latest round of negotiations between representatives of nine Pacific Rim countries: Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States. (Japan, Mexico, and Canada are trying to enter the negotiations as well.)
“I would say it’s ACTA-plus, not ACTA redux,” said Gwen Hinze, the Electronic Frontier Foundation’s (EFF) international IP director, in an interview with Ars. In other words, if you loved to hate Anti-Counterfeiting Trade Agreement (ACTA), then you may love to hate the Trans-Pacific Partnership Agreement (TPP) even more.
But it’s hard to know. That’s because, as with ACTA, negotiating texts for TPP have been kept secret; unlike ACTA, TPP leaks have been only sporadic. For now, the only version of the “intellectual property chapter” that the public has seen was leaked (PDF) over a year ago, and no drafts have appeared since. Negotiators are serious about the secrecy, too. As page one of that 2011 draft reads, “Declassify on: Four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations.”
Consequently, every public interest group, academic, legal scholar, and other interested party readily acknowledges that their concerns with TPP are based on a document over a year old that may no longer be valid. So far, other than each national delegation, the only people who have been allowed to see the actual text of the proposed agreement are members of various Industry Trade Advisory Committees (ITAC). In the US, the group pertaining to intellectual property law is known as ITAC15; its members include top executives from AT&T, Verizon, the RIAA, the pharmaceutical lobby, and Cisco, but no one from academia or civil society.
“Intellectual property-intensive industries account for approximately one in every four American jobs, 60 percent of total US exports, and over one third of US GDP,” said David Hirschmann, president and CEO of the Global Intellectual Property Center at the US Chamber of Commerce, in a statement. “Pursuing high-standard, comprehensive, and commercially meaningful intellectual property obligations will not only benefit US interests but will also help bring investment, innovation, and jobs to all TPP economies.”
Critics aren’t convinced. And while few want to spread their message through the medium of toilet paper, organized resistance to TPP and to the process under which it has developed has emerged in both academia and the world of public interest groups concerned about IP law and access to medicine issues. Here’s why they’re worried.
Scholars speak out
On May 9, 2012, 30 legal academics wrote a letter to USTR’s Ron Kirk “to express our profound concern and disappointment at the lack of public participation, transparency, and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP).”
Kirk responded immediately, saying that he would provide a more detailed response later, but he wanted to make one thing clear right away:
“You may be surprised to know that USTR has conducted the most active outreach to all stakeholders relative to the TPP than in any [free trade agreement] previously, including the proposed disciplines on intellectual property,” Kirk wrote.
As the academics pointed out in their reply, this was setting the bar pretty low. “USTR’s consultation process consists of choosing with whom to share its international legislative proposals and leaving the rest of the country in the dark until the deal is done,” they wrote.
“We are dedicated to transparency, but sometimes what you put in a negotiating document is a negotiating position,” said Ambassador Demetrios Marantis, the deputy US Trade Representative, in an interview with Ars. “It’s not necessarily what your actual position is. It’s in the judgment of the negotiators.”
For the process to work well, negotiators argue they need to keep these negotiating positions private.
“I understand that many trade negotiations involve some amount of secrecy that can be difficult to do in public,” said Michael Geist, a law professor at the University of Ottawa and a signatory to the May 9 letter, when I spoke to him.
“But it seems to me that we’re incorporating stuff that hasn’t been part of trade agreements until recently, and where there has been multilateral trade agreements there hasn’t been more transparency. What you risk is a ‘take it or leave it’ approach.”
Beyond the process concerns around the fact that TPP has been negotiated essentially in secret for the last few years, the leaked IP chapter has given critics more substantive ammunition.
Among the most important are a lack of definition of fair use and public domain rights, extension of copyright to “life plus 70” (putting it in line with American law), treating temporary copies (such as in a cache or a video buffer on streaming sites) as copyrightable, and a ban on the circumvention of digital locks, among others.
Exporting enforcement
While American IP law remains imperfect, one of the things that it does well is attempt to maintain a balance between strong enforcement mechanisms while also allowing for robust fair use and the public domain. But in IP treaties, all that tends to get exported from the American model is the restrictions, not the exemptions.
Public domain, of course, is an important part of copyright law that allows for copyrighted works to pass to the rest of us once the copyright expires, which in the United States, is limited to life of the author plus 70 years. Fair use, meanwhile, is an equally important provision that allows for artists, journalists, academics, and just about anyone to use a non-substantial portion of copyrighted works for various transformative purposes. The leaked 38-page IP chapter focuses extensively on defining copyright measures and subsequent enforcement, but it contains no mention of the “public domain” or “fair use.”
“The problem is not what’s in the agreement, but what’s not in the agreement,” long-time IP lawyer Jonathan Band told me.
“US copyright law in particular, and trademark law too, works largely because it’s balanced. It has strong rights to owners, strong enforcement, but also balances those with strong exceptions. So you end up with this balanced framework that allows users to make interesting uses of works but allows new creators to come along. Fair use is just one of a series of exceptions in our copyright law, but we also have things like first-sale doctrine which is the notion that once you buy, you are allow to re-sell it without infringing copyright—that’s what allows libraries to lend books.”
The TPP, at least in its current form, Band says, mentions none of these provisions.
“The problem with TPP is that it has a lot of detail about rights, details about enforcement, but nothing about limitations or exceptions,” Band added. “It says countries can have limitations and exceptions, but it doesn’t say what they should be.”
Perhaps by now, some such language has been added. But without access to the latest drafts being discussed in the Dallas round, it’s impossible to know.
USTR says it is aware of the importance of such issues. “We know that many consumers and businesses rely on principles like fair use,” wrote spokesperson Carol Guthrie in an e-mail to Ars.
“Negotiators are continuing to engage with stakeholders as these issues are negotiated, and representing that interest by working to ensure that the TPP provides flexibility, consistent with international norms, for governments to adopt exceptions and limitations like fair use, or similar concepts that achieve the goal of appropriate flexibility for users coupled with effective protection that preserves opportunities for normal exploitation of creative works.”
The Protection of State Information Bill is worse than apartheid, an IFP MP said in Port Elizabeth on Sunday.
“This is even worse than what happened during apartheid, when even the worst laws were supported by a segment of the South African population,” Albert Mncwango said in a speech prepared for delivery at a community meeting.
This was because all other political parties, churches, the media and members of the public had voiced their concern about the proposed legislation.
“We stand united to speak with one voice to oppose the secrecy bill,” he said.
“We are here to make sure that the rot stops here and now, and never happens again.”
Mncwango said it appeared that the African National Congress was putting the will of “the spies, the secret services and the security apparatus” ahead of that of the people.
This meant that South Africa was faced with a “coup d’etat”.
“Democracy is about Parliament expressing the will of the people. Why is Parliament adopting a law that the people don’t want?” he asked.
The rationale behind the Protection of State Information Bill appeared to be that the ANC wanted to “cover up its actions and its inefficiency”.
“It wants to cover up the evidence that shows how the ANC has failed the people of South Africa.”
If voters had access to all such information, no one would ever vote ANC again, Mncwango said.
Concessions made by the ANC National Council of Provinces on Thursday were not sufficient to satisfy the public, he said.
He likened sections of the legislation relating to information already in the public domain as attempts to “unscramble a scrambled egg”.
“You can’t unsay what you said. Yet, this is exactly what this absurd bill tries to do, when it wants to put people in jail for speaking about what has become public because it was not kept secret.”
The public needed to make Parliament reject the bill, if necessary by occupying Parliament in such numbers that it would be impossible for it to be passed into law.
“The people, not Parliament, shall have the final say,” Mncwango said.
SINCE 2002, at first in secret and later with great fanfare, Google has been working to create a digital collection of all the world’s books, a library that it hopes will last forever and make knowledge far more universally accessible.
But from the beginning, there has been an obstacle even more daunting than the project’s many technical challenges: copyright law.
Ideally, a digital library would provide access not only to books free from copyright constraints (those published before 1923), but also to the tens of millions of books that are still in copyright but no longer in print.
Copyright law makes it risky to digitize these books without permission from copyright owners, and clearing the rights can be prohibitively expensive (costing on average, according to estimates, about $1,000 per book). Even if the money wasn’t a problem, hundreds of thousands—and probably millions— of books are likely to be “orphan works” whose rights holders are unknown or can’t be found.
Google bumped up against copyright law in 2005, when lawsuits were filed by the Authors Guild and by a group of five publishers alleging that Google’s scanning of books from major research library collections constituted copyright infringement. Google argued that scanning books to index their contents and make snippets available online was fair use, not infringement. But with its potential liability running into the billions or even trillions of dollars, Google was understandably receptive to overtures from the Authors Guild and publishers to settle instead of litigate.
A settlement announced in October 2008 would have given Google a license to keep scanning books and to help re-commercialize those that were out of print by running ads next to search results, selling books to consumers, and licensing digitized out-of-print books to libraries and other institutions. Google could have also displayed up to 20 percent of a book’s contents in search queries.
But the proposed settlement fell apart in March 2011 when the judge overseeing the case ruled that it was unfair to the authors and publishers on whose behalf it had been negotiated, and that it would give Google “a de facto monopoly over unclaimed works.” The proposal went far beyond the issues in litigation, he concluded, addressing matters “more appropriately decided by Congress” than through litigation.
But the dream of a universal digital library lives on. Now a coalition of libraries and archives has come together to create a Digital Public Library of America to fulfill the original vision of a digital library for all. It could well be that an effort without commerce in the mix will have an easier time of it.
A broad consensus already exists to remove copyright obstacles to orphan works. There is also growing interest in mass digitization of out-of-print works. The arguments for increased access are compelling: These books aren’t producing any revenue for copyright owners, and most of them are unlikely to be reprinted. Libraries already own copies of many of them and want to make them available digitally to their communities. And rights holders can always opt out of a library mass-digitization project.
The US Copyright Office recognizes that barriers to mass digitization need to be overcome. It proposed a partial legislative fix, which became the Orphan Works Act of 2008. The bill passed in the Senate, but then stalled in the House. Maria Pallante, who heads the Copyright Office, recently announced her interest in renewing this legislative initiative at a Berkeley Law conference on orphan works.
Meanwhile, the European Union is also working on a legal framework to allow greater access to orphan works. France has adopted legislation permitting libraries to mass-digitize books that aren’t in print but are still in copyright. Germany is considering a similar proposal. Japan and Norway have authorized national libraries to undertake mass-digitization projects that even include in-copyright works. The US should not lag behind.
Digital libraries containing millions of out-of-print and public domain works would vastly expand the scope of research and education worldwide, extending access to millions of people in undeveloped countries who don’t have it now. It would also open up amazing opportunities for discovery of new knowledge. Being able to conduct searches over a corpus of millions of books allow researchers to learn things never before possible.
There are three promising strategies for removing barriers to a universal digital library: First, it should be considered “fair use” in copyright law for nonprofit libraries to circulate orphan works for their patrons for noncommercial purposes. Second, Congress should pass legislation to limit damages and injunctions for other reuses of orphan works. Third, the Copyright Office should explore a collective licensing program under which all in-copyright but out-of-print works could be made available, as some countries are now trying.
Workable solutions exist to fulfill the dream of a universal digital library. Do we really want to tell our grandchildren that we could have achieved this goal but lacked the will to do so?
I am the parent of an elementary school student in New York City, and even though my son is only in first grade and not yet taking statewide tests, the impact of the city and state’s testing policies are felt in his classroom.
At my son’s school, test prep began in kindergarten and has ratcheted up a notch or two in first grade, clearly shaping the work the children do. This has come at the cost of the more exploratory and play-centered sorts of things that I did in my early school years, and that concerns me.
The debates surrounding high-stakes testing also capture my attention because of my career history: I started out in educational publishing and moved on to public administration, spending much of the last 20 years on performance metrics, accountability and contracting.
So as word began to leak out about pineapple-gate and the other testing gaffes, I started poring over news accounts, editorials and public commentary from educators.
I learned that the tests themselves are being kept secret because the state Department of Education and Pearson, their test development contractor, wrote strong confidentiality provisions into the contract. My understanding is that this was so that they both could reuse test
questions in the future. In order for the questions to be reusable, they have to be kept secret, otherwise students could prep too easily for the tests, and Pearson’s other customers would be able to get the tests from the public domain.
We only know about the gaffes because students exposed them. Educators have been sworn to secrecy. The Education Department has emphasized their concerns about test prep, but to me the secrecy seems rooted in economics: Secrecy saves New York on future test development costs and makes it easier for Pearson to re-sell the questions it created for New York (at New York taxpayers’ expense) in other states.
Two things strike me as odd about this. First, it’s uncommon to keep tests completely secret after the fact of their administration. Letting people see the test is a basic part of education.
The purpose of testing is to measure how well a student knows subject matter and to identify what areas need work. If the only thing one knows about a child’s performance on a test is his grade, and one can’t review the actual test, the test is pedagogically useless and can only serve a punitive purpose.
If the broader community of parents, educators and researchers can’t see tests, then we have no way of judging the connection between them and curricula or how to help our children.
When the only information that emerges about the tests is anecdotes about bad questions, we lose all confidence in their educational value and senior education officials’ assurances that the errors are inconsequential.
Second, from a public procurement standpoint, it’s unusual for a New York State agency to buy content that is restricted in terms of who can see it. While the Education Department says differently, from my perspective, secrecy promotes the advantages that wealthy parents have in test preparation.
If the tests are secret, test prep companies can claim special abilities to suss out test content, which they use to justify their high fees and freeze out the poor. On the other hand, if tests are released (after a reasonable interval to allay cheating concerns), then the information is available to everybody for free and the rich no longer have this advantage.
While many contracts do have confidentiality and copyright language, the default position on intellectual property in New York State procurements is that the state either owns the content outright or licenses it with as few limitations as possible.
Content developed for the state with the state’s money should belong to the state, and should be available to the public unless there is a compelling public purpose for keeping it from public view.
This principle is best expressed by New York’s Freedom of Information Law, commonly referred to as FOIL, which states: “The people’s right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.”
With all this in mind, on May 3 I submitted a FOIL request to the New York State Education Department for copies of the exams and answer keys used in grades three through eight. I received acknowledgement of the request on May 7, but have not yet heard back about whether the request will be granted.
My hope in writing this article is that other people (and perhaps also, news organizations like The New York Times) will also file Freedom of Information requests, and that Pearson and the state will recognize the public demand for transparency in testing and reverse their positions on test secrecy.
A parent writes that he believes there is no good educational reason to keep parents and others from seeing the state exams produced for the state by Pearson, and so has filed a request under the state's Freedom of Information Law for the release of copies of the exam and the answer sheets.
The Victorian government’s partner in the $1 billion Royal Children’s Hospital project was none other than Babcock & Brown, the financial engineer whose empire of leverage and exotic corporate structures now lies in a smoking ruin.
Desperate for cash to prop up its ailing empire in 2008, Babcock flicked on its stake in the hospital to an associate in the Atlantic tax haven of Guernsey for a quick $91 million in cash.
The state could do little more than stand by in horror, hoping nobody would draw attention to it. Few did. It was a tumultuous time.
Now, keen to allay concerns it may not have learnt the lessons of the financial crisis, the government message is that taxpayers had lost nothing from the hospital debacle.
”The change in the financial structure of the Royal Children’s Hospital did not impact the funding or security available to the project,” a spokeswoman for the Department of Treasury and Finance told BusinessDay last week.
It was a misleading statement.
Apart from the likelihood that funding costs on the deal were higher than they ought to have been, the department failed to mention, rather conveniently, that a $35 million payment was never forthcoming.
This underwritten and committed donation to the Royal Children’s Hospital was contracted as part of the state’s deal with the winning tender.
A year ago, it was written off. Suffer the children.
Strangely, the company that promised the donation, Babcock & Brown International, remains alive, which begs the question why it has not been pursued for its debt and bankrupted.
There is a far greater question, however, which needs to be answered. Why does the state not properly monitor the financial position of its PPP (public-private partnership) owners and managers?
The Department of Treasury and Finance has transferred billions of dollars worth of public assets to private joint venture partners but won’t provide their financial details.
Yet the devil, as anybody knows, lurks in the details.
Last month, BusinessDay revealed the ultimate financial position of Australia’s most successful new participant in government privatisations, Plenary Group, was hidden by a secret trust structure.
Plenary, which has won 20 PPP deals in a halcyon decade – hospitals, convention centres, army bases, high-security buildings – is now being sued by the Tax Office.
The taxman has made an application to the Federal Court in Victoria to wind up one of its subsidiaries for failing to come good with $2.35 million in overdue BAS payments. Despite this contretemps with the taxman, the high gearing of the Plenary PPP projects and, consequently, some edgy financial results, our political overlords still don’t deem it appropriate for taxpayers to be availed of the full details of their own counterparties.
In NSW, contracts for most of the billion-dollar toll-road deals are still under wraps. But at least the counterparties, firstly Macquarie Bank and now Transurban, are public entities that disclose their accounts.
The financial status of a manager, equity sponsor and debt arranger of no less than five Partnership Victoria projects – including the $1 billion VCCC hospital – ought to be in the public domain.
Does the government have access to financial information on Plenary Group and its associated unit trusts? If it doesn’t, it should. And if it does, it should put it on the record.
Plenary itself is hardly to blame. As its principals say, it only discloses what it has to. Further, infrastructure projects are typically highly geared, it says. And with regard to the tax dispute, any citizen or legal entity has the right to test its claims in the courts.
And they do. Plenary Group and its builder Grocon are now chasing more funding from the government for the Biosciences Research Centre, a $280 million PPP at La Trobe University.
The matter is in the Victorian Supreme Court as Plenary Research requests a 226-day extension on the completion date. Plenary Group owns 100 per cent.
In the case of another offshoot, Plenary Conventions, which owns the Melbourne Convention Centre, its most recent financial statements show it technically insolvent.
Plenary says a deficiency of assets over liabilities is not the best gauge of financial health. Cash flow, it points out, is strong. Assets versus liabilities is a fine indicator of leverage. How much leverage lies with the parent?
Surely authorities should ask that Plenary Group Pty Ltd and its Plenary Group Unit Trust – those that control Plenary Conventions – make full disclosure of their financial position at the end of 2011 and explain why a 100 per cent-owned subsidiary is not meeting its tax liabilities on a timely basis.
Late last month, Plenary lodged a copy of its 2011 accounts for the company, which provides accommodation and other services to the Australian Defence Force.
Plenary Living LEAP No 1 Pty Ltd – a federal government project – reported a profit of almost $4 million. Like Plenary Conventions, this PPP contractor is highly leveraged. Some $300 million of assets are funded by just over $20 million of equity – and that’s after taking a dividend that was greater than post-tax profits.
The statements note Plenary founders John O’Rourke and Paul Oppenheim resigned as directors during the year, replaced by representatives of new majority shareholders, Pinnacle RE Services Ltd and Canada’s largest pension fund, CDPQ.
The company’s financial position appears satisfactory in the circumstances, given its two financially strong shareholders.
This is indeed the case with many of Plenary’s entities.
Yet the ultimate bona fides of the group remain a mystery, and one that casts a pall over the state’s management of privatisation deals.
Russia’s newly sworn-in President Vladimir Putin Monday was handed the black suitcase Monday that controls the country’s vast nuclear arsenal moments after taking his oath to a third term.
With outgoing Kremlin leader Dmitry Medvedev standing at his side, Putin was given command of the “nuclear suitcase” at a formal post-inauguration ceremony overseen by Russian Defence Minister Anatoly Serdyukov, official images showed.
The portable communications device uses a secret code called Cheget to allow the country’s commander-in-chief to launch instruction that could potentially trigger a nuclear attack against a foreign country.
Widely seen as a relic of the Cold War standoff between Moscow and Washington, the suitcase remains at the president’s side at all times, including on his foreign visits.
First developed in 1983, the system is usually carried by specially assigned officers called “operators” and was first used by former Soviet leader Konstantin Chernenko in 1984.
Although the president’s black suitcase is the most famous and symbolic, it is actually one of three operated in Russia on a daily basis.
The other two accompany the army’s chief of staff and the defence minister. The strategic command centre must receive a coded signal from each of the devices before it can launch a nuclear attack.
The suitcase left the Kremlin chief on only one occasion in October 1996, when the late premier Viktor Chernomyrdin briefly assumed it from Boris Yeltsin when Russia’s first post-Soviet president underwent a heart bypass operation.
Medvedev held on to it for four years after taking over the presidency from Putin, whose first two terms stretched between 2000 and 2008.
Chattisgarh Chief Minister Raman Singh and the Maoists’ mediators on Friday emphatically said there was no secret deal or any quid pro quo between Naxals and the state government behind the release of Sukma Collector Alex Paul Menon after he was held hostage for 12 days.
A day after he was set free, the 32-year-old IAS officer returned to his Sukma home, about 450 km from the state capital, this morning to an emotional welcome from his pregnant wife Asha and other family members.
Menon spent the night at CRPF base camp at Chintalnar before reaching Sukma by helicopter and was brought home under tight security. His mother-in-law offered the traditional ‘aarti’ before he stepped into his official residence.
There is no secret deal or any understanding to facilitate the release of Alex Paul Menon, CM said when asked whether there was any understanding between the state government and the rebels to bring to an end the 12-day hostage crisis.
At a press conference in Sukma, the two Maoists’ mediators — B D Sharma and Prof Hargopal — who facilitated the release of Menon denied any secret deal for the freedom of the Collector.
S K Mishra, one of the two government mediators, also categorically said there was no secret deal or any quid pro quo between the two sides.
Everything is in public domain, he said referring to the agreement reached at between the mediators of the state government and the Maoists that paved the way for the release of the official.
TALLAHASSEE — Gov. Rick Scott, once so wary of the state's public records law that he refrained from creating a state email account, launched a new open records program Thursday designed to give the public access to his emails and those of his 11 top staff members.
SINCE 2002, at first in secret and later with great fanfare, Google has been working to create a digital collection of all the world’s books, a library that it hopes will last forever and make knowledge far more universally accessible.