IIPA Wants Mexico on Watchlist Even After it Signed ACTA

By Drew Wilson

We’ve been covering the various countries that the IIPA (International Intellectual Property Association) wants to see on the Special 301 report. A surprising request is that Mexico be included on that list. It’s not what was included in the submission that is the most surprising, but what isn’t.

Last year, to the surprise of many, Mexico signed the controversial Anti-Counterfeiting Trade Agreement (ACTA). Some suggest that this was to get into the controversial Trans-Pacific Partnership agreement (TPP) which is an agreement for even further tightening of copyright laws around the world. In addition to that surprise move, Mexico is famous for having the longest copyright term in the world (100 years after the creators death). You’d think that these moves would put Mexico in the good books for foreign copyright holders. You’d think wrong. The IIPA, in spite of all of these moves to please such entities, it once again, demanding that Mexico be placed on the Special 301 report (PDF) anyway.

We’ve looked through the submission and the move to sign ACTA (one of the few individual countries to do so) didn’t even seem to register. One would think that rights holders would see this as a positive step at least, but it appears as though that the signing of ACTA didn’t even warrant a mention, let alone help Mexico get off of the watchlists. Such a move might make one think that even rights holders, at this stage, view ACTA as useless (at least, useless in terms of not being included in a watchlist). So, while there doesn’t appear to be any mention of ACTA, we’ll look at what was mentioned in the submission.

In the second paragraph, the submission makes the following observations:

Much of the successful enforcement has focused on hard copy piracy, but there have been very disappointing results against Internet piracy due to ineffective criminal and customs procedures. Most non-commercial digital platforms are generally not prosecuted at all, even though there is rampant piracy including peer-to-peer (P2P), and at social networking sites, at linking sites and in cyberlockers. Effective enforcement against digital piracy will require revisions to the Copyright Law, and authorities also need increased resources and training, and to coordinate their efforts.

So, even though there are crackdowns happening on physical piracy (physical piracy being something that would garner little sympathy from digital rights activists), that just isn’t enough and they are demanding that non-commercial file-sharing receive more attention for copyright enforcement. So, what are the expectations for rights holders? Here’s one of them:

Additionally, the Government of Mexico has been very slow to work on resolving a cornerstone of Internet enforcement, namely a cooperative agreement between rights holders and ISPs. Efforts to raise penalties to deterrent levels and to create a warning system for online users stalled in 2012.

So, in other words, a three strikes law. The same three strikes law that failed to help stop the slumping of music sales in France. The same three strikes law that is proving to be a massive money drain in New Zealand. Yet, this failed policy is being lobbied for in Mexico anyway. Another comment by the IIPA is the following:

The copyright industries recommend several legal reform and enforcement measures (criminal, administrative and prosecutorial) for the Government of Mexico to take in order to improve its IPR regime. These measures are in keeping with Mexico’s participation in the Trans-Pacific Partnership (TPP) negotiations, which aims to achieve a high-standard agreement on IPR, market access, and other key trade issues.

The disappointing part about this is the fact that not only is there no official text of the agreement that was made available to the public, but rights holders already know the contents of the agreement in question.

Here are some of the IIPA demands for Mexico:

Develop legislation calling for ISPs’ cooperation to address online piracy following the direction of the Coalition for the Legal Access to Culture (CALC) initiative, and including notice and takedown procedures.

Amend the Criminal Code and the Copyright Law to facilitate the imposition of criminal sanctions for the distribution and importation of devices used for the unauthorized circumvention of technological protection measures (TPMs).

Adopt legal norms that create incentives for ISPs to cooperate with right holders in fighting infringement taking place over their networks or platforms, including inter alia: (1) legal incentives for ISPs to cooperate with rights holders to effectively deal with Internet piracy; (2) rules that clarify the illegality of providing services that are intended to promote the infringement of copyright and related rights; and (3) injunctive
relief and a duty on ISPs to provide information to law enforcement agencies and rights holders.

Ensure that an unauthorized online distribution, communication or making available is considered an act of infringement, regardless of whether it is undertaken for profit-making purposes or other commercial benefit or advantage. The government has, reportedly, prepared a draft bill to provide a making available right.

The submission goes further by going as far as blaming Google for piracy:

The most widespread source of music piracy is P2P activity due to the migration of customers from hard copies to downloaded copies, with ARES, Gnutella and BitTorrent dominating (e.g., Megaupload, Fourshare and Rapidshare), as well as “linked” piracy on blogs and forum sites. Blogspot, a Google service, has been widely used; Google Mexico has been blocking links in response to takedown notices sent by rights holders (although their
takedown procedure has proven to be very time consuming, and, thus not a very effective remedy).

This fight between rightsholders and Google goes back a long way. Last year, the Recording Industry Association of America (RIAA) slammed Google for not allowing rightsholders to file an unlimited number of DMCA complaints. This battle continues to this day with the RIAA being outraged that Google tailor search results according to their bidding. So, why is this specifically directed at Mexico when Google resides in the US to begin with? We’re not really sure.

Another comment is this:

Against digital music piracy, in 2012, APCM reported 149,154 actions (down from 882,402 in 2011), consisting of 1,388 cease and desist letters to webpages; 30,740 for permalinks; 117,169 against cyberlocker links; 209 notifications to blogs and 1,039 links removed from YouTube (including 3,300 cyberlocker and streaming link notices from the motion picture companies).

So, in spite of this, Mexico is being included in the piracy watchlist anyway.

The submission continues:

Some IIPA members report cooperation with hosted content takedowns, but most said the ISPs were “not cooperating” or there was “very little cooperation” by the ISPs. Because ISPs are not allowed to provide information on alleged infringers, rights holders must bring a criminal action to the PGR to obtain those details.

In other words, the IIPA is upset that ISPs in the country are following the law rather than bend to whatever rightsholders are demanding. It would be very hard to complain that another party won’t break the local laws just to suit your demands, so why this is even a complaint is, at best, mystifying and troubling. Of course, the IIPA doesn’t stop there:

Additionally, ISPs have been reluctant to include clauses in their subscriber agreements to permit terminations if subscribers infringe intellectual property rights. It is hoped that in 2013, ISP liability issues, and clear notice and takedown rules will be adopted.

Again, rightsholders are upset that ISPs won’t adopt the failed three strikes law policy.

Another remark from the IIPA:

IMPI has also been working with ISPs and rights holders to develop “cooperative models” for fast and efficient disabling of infringing websites.

It’s unclear at this point whether the IIPA is referring to the takedown of websites residing in Mexico (ineffective), the blocking of websites it doesn’t like (also ineffective) or both. In any event, the IIPA seems to want the ability to just remove websites without the need of any judicial oversight here.

Overall, the submission for Mexico’s inclusion shows that ACTA is of no concern to rightsholders, that rightsholders are demanding more even though Mexico is doing things to please these interests and that rightsholders are ignoring evidence and failing to take into consideration real world consequences of what they are asking Mexico to do. All this points to one reasonable conclusion – that countries everywhere should be ignoring such demands because no matter what a given country does, these particular rights holders will always demand more no matter what. It’s sad that any lawmaker today even treats these people seriously.

Drew Wilson on Twitter: @icecube85

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