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November 28, 2005, 8:00 AM ET, Alert No. 1,260.
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WTO Releases Draft Hong Kong Ministerial Text

11/26. Pascal Lamy, the Director-General of the World Trade Organization (WTO), released a document [44 pages in MS Word] titled "Doha Work Programme: Preparations for the Sixth Session of the Ministerial Conference: Draft Ministerial Text". This draft addresses many topics, including both e-commerce and TRIPS. The tentative language of this draft provides that "Members will maintain their current practice of not imposing customs duties on electronic transmissions until our next Session".

This document states that it "is a first draft" and that "this draft text does not purport to represent agreement overall". Moreover, it indicates that much specific language for the final document has yet to be drafted.

E-Commerce. The draft document's language on e-commerce is as follows: "We take note of the reports from the General Council and subsidiary bodies on the Work Programme on Electronic Commerce, and that the examination of issues under the Work Programme is not yet complete. We [agree to reinvigorate that work, including the development-related issues under the Work Programme and discussions on the trade treatment, inter alia, of electronically delivered software. We agree to maintain the current institutional arrangements for the Work Programme. We declare that Members will maintain their current practice of not imposing customs duties on electronic transmissions until our next Session]." (Brackets in original.)

TRIPS. This draft also contains three paragraphs that pertain to Trade-Related Aspects of Intellectual Property Rights (TRIPS). First, it states that "We take note of the report of the Chairman of the Special Session of the Council for TRIPS setting out the progress in the negotiations on the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits, as mandated in Article 23.4 of the TRIPS Agreement and paragraph 18 of the Doha Ministerial Declaration, contained in document TN/IP/14, and agree to intensify these negotiations in order to complete them within the overall time-frame for the conclusion of the negotiations that were foreseen in the Doha Ministerial Declaration."

Second, it references a paragraph to be drafted later. It states that "[Text to be inserted following meeting of TRIPS Council on 29 November]". (Brackets in original.)

Third, it states that "We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to paragraph 11.1 of the Doha Decision on Implementation-Related Issues and Concerns and paragraph 1.h of the General Council Decision of 1 August 2004, and [direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to our next Session. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement]." (Brackets in original.)

Portman Discusses Status of WTO Trade Negotiations

11/22. Robert Portman and Peter Allgeier held a news conference in Geneva, Switzerland, at which they discussed the progress of talks leading up to the World Trade Organization's (WTO) Sixth WTO Ministerial Conference in Hong Kong, PR China, on December 13-18, 2005. See, transcript.

Portman said that "We intend to use our remaining time between now and Hong Kong as productively as possible. We want Hong Kong to be more than just a simple stock-taking exercise. Stock-taking is important and there is an educational process that needs to go on and I think that is an important aspect of Hong Kong, but we would like to go further. We'd like to be sure that Hong Kong provides the necessary guidance for our negotiators to complete the work in 2006. Hong Kong is, in my view, a very important gathering. It does create the road map for negotiations in 2006 and we want to be sure there is as much specificity as possible to achieve the ambitious results that we've talked about in this room before."

Portman was also asked "what discussions took place in regards to the post-Hong Kong agenda"? He responded that "I believe we ought to have another meeting. Without a meeting, without setting up sort of a backstop, it's tough to make progress. We've got to make sure that coming out of Hong Kong we don't simply all breathe a sigh of relief and go back home and start working on other very important issues and leave Doha behind. We need to keep the pressure on."

Much of the negotiating has focused on agriculture. However, Portman did reference telecommunications and information technology in passing at this news conference.

Portman was asked, "Can you highlight whether the U.S. is keen to join some of the sectorials the Chairman has highlighted in his Chairman's text today?" He responded that "... the sectoral approaches are also very important. Why? Because they almost leapfrog the normal negotiating process and provide for, among a critical mass of countries who are interested, immediate zeroing of tariffs. We've seen this before, by the way in telecommunications, and to a certain extent with information technology. So this is a good model."

Mandelson Discusses Status of WTO Trade Negotiations

11/23. Peter Mandelson, the EU Trade Commissioner, spoke to the European Parliament's Trade Committee in Brussels, Belgium, on November 23, 2005. He addressed the failure to make progress before the December ministerial meeting in Hong Kong. He also discussed pharmaceutical IPR. See, transcipt.

Peter MandelsonMandelson (at left) stated that "We are far from where we should be in the process. We have for too long exchanged statements of political positions instead of entering into real negotiation. For too long we have had too little to negotiate about, having existed in an agricultural silo and only recently started to look beyond this. As a result we have not had time to discover potential trade-offs and to narrow our differences so as to pin down the possible deals."

He added that "lowering expectations for HK does not mean lowering ambition for the round as such. Lowering expectations for HK means that the key decisions will have to come some time early next year, so that the Round can end as scheduled at the end of 2006 or early 2007."

He also offered a four part proposal. "First, all industrialised WTO members should commit to provide duty and quota-free access to all products from all LDCs".

"Second, we should adopt a package on special and differential treatment proposals to reconfirm the flexibilities for LDCs that already exist in the WTO".

"Third, it is crucial that we enshrine in the WTO’s intellectual property agreements the conditions for a better access to cheap drugs against pandemics".

"Fourth, we should agree on a strong Aid for Trade package along the lines of what was agreed at the Gleneagles G8 Summit. This is key to help strengthen the capacity of developing countries to trade. The Commission has set an example with the €1bn per year pledge made by President Barroso at the G8 Summit."

He concluded that "The WTO will produce a draft text within days that will make clear what we may agree in HK and what should be left for later."

The WTO released this draft on November 26. See story above titled "WTO Releases Draft Hong Kong Ministerial Text".

EU Commissioner Advocates EU Wide Copyright and Censorship Regimes

11/23. Viviane Reding, the EU Commissioner for Information Society and Media, gave a speech [6 pages in PDF] in Montpellier, France titled "Why Broadband Needs Content".

She said that "If we want growth and jobs, if we want better lives for citizens and if we want to retain Europe's position at the front of the global telecommunications industry then we have to clear away the barriers to the development of new, high-value, content-rich and interactive services."

She identified several such regulatory barriers. She advocated single European copyright regime. She advocated a single European content censorship regime that would apply to broadcast television, and all other audiovisual content services. She also spoke in vague terms about digital rights management (DRM).

EU Copyright Regime. She said that "we need a common approach to Intellectual Property Rights in the European Union." She added that there must be "robust copyright protection and clear rules on liability for online-distribution, EU-wide and beyond".

Viviane RedingShe elaborated that "copyright continues to be closely linked to national territories inside the EU" and that "content is licensed still at national level, and not for the entire EU". She concluded that "we have to start calling into question the territoriality of copyright protection in Europe."

She also stated that "we will not be able to boost Europe's digital economy without tackling the fragmentation both of its telecommunications and of its content markets."

Digital Rights Management. She stated that "Authors, artists, creators should be able to reap a due reward for their talent and skills. As long as the broadband internet is seen as lawless frontier, then the strong services I spoke earlier will not appear. But we do have tools that can help establish law and order for the benefit of all. We have are Digital Rights Management (DRM) technologies already available that can make distribution of content secure while giving users safeguards that the content and services are safe, reliable and backed up by reputable service suppliers. But we need DRMs that are widely accepted. In particular, we need to know that they are interoperable, that they are used in a reasonable manner, that market access is open."

Content Censorship. She stated that "Content rules can no longer be limited to traditional broadcasting. Television services are increasingly available on the Internet and they are also going mobile. We need a modern framework to make sure that these new services will grow strongly and correctly. We need a level playing field between the different audiovisual content service providers, in particular with respect to the rules applying to the protection of minors and human dignity. We also need legal certainty for the new audiovisual service providers so that services can be offered on a Pan-European basis."

She added that "We cannot expect Europe to lead the way if innovators and entrepreneurs are confronted with 25 or more different regulatory regimes. Moreover, we will not make progress if we burden new services with regulatory obligations."

Finally, she said that "there will be no internet quotas as long as I am Commissioner."

EU Commissioner Advocates State Supported Innovation

11/17. Neelie Kroes, the EU Competition Commissioner, gave a speech in Brussels, Belgium, titled "Innovation from a Business Perspective: the State Aid Aspects". She argued that in Europe there is a market failure in the case of innovation, and that government should therefore provide aid to remedy this market failure.

She said that "A more innovative knowledge based economy is crucial for getting Europe back on the right economic track and keeping it there in a changing world."

Neelie KroesKroes (at left) argued that "state aid can be justified in cases where the evidence shows that there is a genuine market failure." Then, she offered this definition of "market failure": "where the overall benefit to the economy that is brought by filling a gap that markets do not meet naturally outweighs the potential distortion of competition caused."

She continued that "there are instances where markets fail to deliver an appropriate environment for innovation. These market failures have a negative impact on the risk-to-return ratio of innovative ventures. By giving State aid, it is possible to change the risk-to-return ratio and thereby encourage private actors to invest more in innovation. State aid policy therefore has a contribution to make, by laying down rules to target those market failures which hamper innovation and for which the benefits of state aid clearly outweigh competition concerns."

She referenced several forms of state aid to innovation, including "tax exemptions and subsidies", "state aid to risk capital", and aid for research and development. She also advocated "Subsidising SMEs to buy services from innovation intermediaries". (SMEs are small and medium sized enterprises.)

Finally, she advocated "supporting the development of poles of excellence through collaboration, clustering, and projects of common European interest". She explained that "Innovative clusters are businesses of all sizes grouped around research facilities. State aid could be used to strengthen regional clusters and to create European poles of excellence." That is, she wants to "build European Silicon valleys".

While Kroes advocated government planning of innovation, she also expressed some skepticism of this approach.

For example, when she advocated creating clusters such as Silicon Valley, she also asked rhetorically, "Can such a thing be created ``by decree´´?" and "And how do you avoid feeding fat cats or picking winners?".

She also said that "we must not be tempted to think that State aid is the innovation panacea. Effective competition is the most potent tool for creating natural incentives for companies to come up with new ideas and new products." And, she said that "We must never underestimate the damage done to Europe's image as an attractive place to invest by protectionist discourse directed primarily to domestic audiences."

There was no issue of the TLJ Daily E-Mail Alert on Thanksgiving Day, Thursday, November 24, 2005, or on Friday, November 25, 2005..
Washington Tech Calendar
New items are highlighted in red.
Monday, November 28

The House will next meet on Tuesday, December 6, 2005.

The Senate will next meet on Monday, December 12, 2005.

Deadline to submit written comments to the Department of Justice's (DOJ) Antitrust Division and the Federal Trade Commission (FTC) regarding their joint workshop on October 25, 2005, titled "Competition and Real Estate Workshop". See, FTC notice and notice in the Federal Register, September 8, 2005, Vol. 70, No. 173, at Pages 53362 - 53364.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding whether its roaming requirements for commercial mobile radio service (CMRS) providers should be modified, expanded, or eliminated. This NPRM is FCC 05-160 in WT Docket Nos. 05-265 and 00-193. See, notice in the Federal Register, September 28, 2005, Vol. 70, No. 187, at Pages 56612 - 56620.

Deadline to submit nominations for members of the Commerce Spectrum Management Advisory Committee to the Department of Commerce's National Telecommunications and Information Administration (NTIA). See, NTIA release.

Tuesday, November 29

10:00 AM. The Supreme Court will hear oral argument in Illinois Tool Works v. Independent Ink, No. 04-1329, a patent tying antitrust case. See, story titled "Supreme Court Grants Certiorari in Patent Tying Antitrust Case" in TLJ Daily E-Mail Alert No. 1,158, June 21, 2005.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) will host an event titled "The On-Going Debate Over the Sunshine Act". Location: 6th floor, Sidley Austin, 1501 K Street, NW.

9:30 AM - 5:00 PM. The Senate Commerce Committee (SCC) will host an event titled "Open Forum on Decency". Press contact: Melanie Alvord (Stevens) at 202 224-8456 or Melanie_Alvord at commerce dot senate dot gov, or Aaron Saunders (Stevens) at 202 224-3991 or Aaron_Saunders at commerce dot senate dot gov. Location: Room 50, Dirsksen Building.

Wednesday, November 30

9:00 AM - 4:00 PM. The National Archives and Records Administration's (NARA) Advisory Committee on the Electronic Records Archives (ACERA) will hold a meeting. The NARA asserts that registration is required for attendance. See, notice in the Federal Register, November 15, 2005, Vol. 70, No. 219, at Pages 69360. Location: 700 Pennsylvania Ave., NW.

9:30 AM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, November 9, 2005, Vol. 70, No. 216, at Pages 68045 - 68046. Location: FCC, Commission Meeting Room (Room TW-C305), 445 12th Street, SW.

10:30 AM. The U.S. District Court (DC) will hold a supplemental status conference in U.S. v. Microsoft, D.C. Nos. 98-1232 and 98-1233. Judge Colleen Kotelly will preside. Location: Courtroom 11, Prettyman Courthouse, 333 Constitution Ave., NW.

TIME? The Federal Communications Bar Association's (FCBA) will host a luncheon on the future of regulation of communications. The panelists will be Ray Gifford (Progress and Freedom Foundation), Andy Schwartzman (Media Access Project), Jeannine Kenney (Consumers Union), and Jerry Ellig (Mercatus Center at George Mason University). The moderators will be FCBA President Michele Farquhar and Bryan Tramont. Location: Hogan & Hartson, 13th floor, 555 13th Street, NW.

2:00 - 3:00 PM. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet to prepare for meetings of the Organization for Economic Cooperation and Development/Committee for Information, Computer and Communications Policy (OECD/ICCP) Working Parties ITU-D Telecommunication Development Advisory Group (TDAG). See, notice in the Federal Register, October 26, 2005, Vol. 70, No. 206, at Page 61876. Location: DOS, Harry Truman Building, Room 2533A.

Thursday, December 1

10:00 AM. The Antitrust Modernization Commission (AMC) will meet. There will be a panel from 10:00 AM to 12:00 NOON titled "Government Civil Remedies". There will be three panels from 1:15 - 4:30 PM titled "Statutory Immunities and Exemptions". See, notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Page 69511. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

12:00 NOON - 2:00 PM. The Forum on Technology will host an event titled "The Future of Broadband". See, notice. Location: Room G50, Dirksen Building, Capitol Hill.

12:00 NOON. The Heritage Foundation will host a lecture by Tom Bethell, author of the book titled The Politically Incorrect Guide to Science [Amazon]. See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch. David Gross (U.S. Coordinator for Communications and Information Policy at the State Department) will discuss the November meeting of the World Summit on Information Society (WSIS) in Tunis, Tunisia. Location: Hogan & Hartson, 555 13th St., NW, Concourse Level.

10:00 AM - 4:30 PM. The Antitrust Modernization Commission (AMC) will meet. The topic will be "Statutory Immunities and Exemptions". See, prepared testimony [PDF] of John Sullivan, prepared testimony [PDF] of James Miller, prepared testimony [27 pages in PDF] of Peter Carstenen (University of Wisconsin law school), and prepared testimony [44 pages in PDF] of Darren Bush, Gregory Leonard (NERA Economic Consulting), and Stephen Ross (University of Illinois law school). See, AMC notice and notice in the Federal Register, Vol. 70, No. 220, November 16, 2005, at Page 69511. Location: FTC, Conference Center, 601 New Jersey Ave., NW.

CANCELLED. 6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "Regulation in the Post-Katrina Environment".

Deadline to submit initial comments to the Copyright Office in response to its notice of inquiry (NOI) regarding exempting certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. See, 17 U.S.C. § 1201(a), and notice in the Federal Register, October 3, 2005, Vol. 70, No. 190, at Pages 57526 - 57531.

Deadline for the National Cable & Telecommunications Association's (NCTA) and Consumer Electronics Association (CEA) to file their second round of status reports with the Federal Communications Commission (FCC) regarding progress in talks regarding the feasibility of a downloadable security solution for integrating navigation and security functionalities in cable set top boxes. See, FCC's Second Report and Order [37 pages in PDF] adopted and released on March 18, 2005. This order is FCC 05-76 in CS Docket No. 97-80. See also, FCC release [PDF] summarizing this order, and story titled "FCC Again Delays Deadline for Integrating Navigation and Security Functionalities in Cable Set Top Boxes" in TLJ Daily E-Mail Alert No. 1,099, March 21, 2005. See also, notice of extensions (DA 05-1930) [2 pages in PDF].

Friday, December 2

8:30 AM - 3:00 PM. The National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, November 18, 2005, Vol. 70, No. 222, at Page 69954. Location: NIST, Administration Building, Room A1038, Gaithersburg, MD.

Deadline to submit comments to the Office of the U.S. Trade Representative (USTR) regarding its out of cycle reviews (OCRs) of Russia, Canada, Indonesia and the Philippines. These OCRs pertain to the identification of countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. See, notice in the Federal Register: September 29, 2005, Vol. 70, No. 188, at Pages 56963 - 56964.

Monday, December 5

1:00 - 5:00 PM. The Antitrust Modernization Commission (AMC) will meet. The topic will be "Antitrust in Regulated Industries". The witnesses will be Scott Alvarez, Ellen Hanson, Rob McKenna, Mark Cooper, Harold Furchtgott-Roth, Diana Moss, and John Thorne. See, AMC notice and notice in the Federal Register, November 16, 2005, Vol. 70, No. 220, at Page 69511. Location: Federal Trade Commission, Conference Center, 601 New Jersey Ave., NW.

People and Appointments

11/23. The Internet Corporation for Assigned Names and Numbers (ICANN) announced several news hirings: Bernadette Failla (Executive Assistant to the General Manager Global Partnerships and the Head of HR), Nicole Bihari (Executive Assistant to ICANN General Counsel), Sarah Trehern (IANA Project Assistant), Peter Sanchez (Network Engineer), and Michael Zupke (Registrar Liaison Manager). See, ICANN release.

11/7. Ian Ballon joined the law firm of Greenberg Traurig as a shareholder in its Los Angeles and Palo Alto, California, offices. Ballon's clients include e-Bay, Knight-Ridder, Fujitsu America, EMI Records, Twentieth Century FOX Film Corporation and Universal Studios. He was previously at Manatt Phelps & Phillips. See, release.

More News

11/24. Viviane Reding, the EU Commissioner for Information Society and Media, gave a speech in Manchester, United Kingdom, on electronic government in Europe.

11/23. The Government Accountability Office (GAO) released a report [72 pages in PDF] titled "DOD Business Systems Modernization: Important Progress Made in Establishing Foundational Architecture Products and Investment Management Practices, but Much Work Remains".

11/18. The U.S. and Microsoft filed a pleading titled "Supplemental Joint Status Report on Microsoft's Compliance with the Final Judgments" in U.S. v. Microsoft, D.C. Nos. 98-1232 and 98-1233. The Court will also hold a status conference on November 30, 2005.

11/16. Scott Hammond, Deputy Assistant Attorney General for Criminal Enforcement in the Department of Justice's (DOJ) Antitrust Division, gave a speech in Washington DC titled "An Update of the Antitrust Division's Criminal Enforcement Program".

11/16. The Department of Justice's (DOJ) Antitrust Division announced that it has closed its investigation of NASDAQ's proposed acquisition of Instinet Group. See, DOJ release.

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