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Australia Triumphs Definitively In Long-Running Battle With Big Tobacco Over Plain Packs For Cigarettes

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Techdirt has written a lot about corporate sovereignty -- also known as "investor-state dispute settlement" (ISDS) -- which allows companies to haul countries before special tribunals for alleged loss of profits caused by new laws or regulations. One industry's use of ISDS that Techdirt has been following particularly closely is tobacco. As a typically brilliant John Oliver segment explained back in 2015, Big Tobacco companies have used corporate sovereignty clauses in international trade and investment deals to sue countries for daring to try to regulate cigarettes, advertising or packaging. Thankfully, that didn't turn out so well. Philip Morris tried to use ISDS to roll back plain-pack laws, but cases against Australia and Uruguay were both thrown out. The tide against the use of corporate sovereignty by tobacco companies to undo health protection laws has turned so much that special carve-outs have been added to trade deals to prevent this kind of corporate bullying.But the tobacco industry had one last trick up its sleeve. John Oliver noted five years ago that Big Tobacco persuaded three countries -- Honduras, Dominican Republic and Ukraine -- to file complaints with the World Trade Organization (WTO) against Australia, claiming the plain-packaging law violates trade agreements. As an article in the Financial Review explains, they were later joined by Indonesia and Cuba. A dispute panel backed Australia in June 2018, but Honduras and the Dominican Republic appealed against that decision. Now the WTO's Appellate Body has made its final ruling:

The Appellate Body confirmed the previous WTO ruling, which said that when Australia prevented tobacco producers from differentiating themselves from their rivals via brand marketing, this wasn't necessarily a restriction on trade.It also rejected the argument that raising the purchasing age or increasing tobacco taxes were less trade-restrictive options that Canberra could have pursued instead of the plain packaging rules.And it said that the international intellectual property regime didn't give tobacco companies a right to use a trademark; it merely stopped competitors from using it. So there was no obligation on Australia to allow a company to use its trademark, and the plain packaging regime hadn't "unjustifiably" encumbered companies' trademark usage.
That last point is particularly interesting. As far back as 2011 the tobacco companies tried to argue that "plain packaging has a smothering effect on companies' logos and trademarks." The WTO has just stamped on the idea that companies have some kind of sacred right to use their trademarks, which could have wider implications.As for the main attempt to get rid of plain packs in Australia, that has now failed definitively -- there is no way to appeal against the WTO Appellate Body's ruling. That means that many more countries around the world are likely to bring in plain-pack laws -- a real victory for Australia's tenacious pursuit of this important health measure.Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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posted at: 12:00am on 16-Jun-2020
path: /Policy | permalink | edit (requires password)

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Internet Archive Closing National Emergency Library Two Weeks Early, Due To Lawsuit, Despite How Useful It's Been

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Last week, the Internet Archive announced that it was going to close the National Emergency Library two weeks earlier than it had originally planned to do so, because of the disappointing lawsuit against the organization by most of the major publishing houses. As we said when that lawsuit was filed, while the publishers may win (and may force the entire Internet Archive to close), it's still a blatant attack on culture. And, of course, the lawsuit isn't just over the National Emergency Library, but the entire concept of Controlled Digital Lending, the underpinning of the Internet Archive's OpenLibrary, which lets you check out scans of books in a one-to-one relationship with physical books the library holds.If you came down from space without understanding the history of copyright, there is no way this would make sense to you at all. The publishers are suing a library for making information available to people while they're stuck at home during a pandemic and all the physical books are locked up. Whether or not it meets the technical boundaries of fair use is one question. Whether or not the lawsuit is an abhorrent attack on access to knowledge and culture is another altogether.Indeed, in a separate blog post, the Archive made it clear just how impactful the NEL has been. It includes a huge list of testimonials.

Margaret D., Nassau, Bahamas, Educator: Margaret is an educator who uses the NEL for reading books in a classroom setting. 'I use the NEL daily for read-alouds and reading recommendations for students during remote learning, in addition to personal reading as well. It is the best thing to happen for my classwork needs and resources. And [I] couldn't have functioned without it. The NEL is [a] godsend.'Benjamin S., Camden, New Jersey, Librarian: Benjamin is a librarian who uses the NEL to help his community. 'I was able to find basic life support manuals (BLS Provider Manual) needed by front line medical workers in the academic medical center I work at. The physical collection was closed due to COVID-19 and the NEL allows me to still make necessary health informational materials available to my hospital patrons. It has also provided anatomy materials for the gross anatomy lab in the medical school. Additionally, the NEL has allowed me to augment the resources provided from paid databases to patrons in their transition to online learning.'Kathleen M., Santa Clara, California, Professor: Kathleen is a Professor with the Department of Art and Art History at Santa Clara University. 'The Internet Archive has been a godsend for my students at Santa Clara University this quarterespecially with all libraries and interlibrary loan services closed. My students wrote sophisticated research papers on a variety of subjects during spring quarter. The Internet Archive was a major factor in their success. They and I are so grateful that you made the decision to make all books available during COVID-19. Thank you so much!'Katrina R., Detroit, Michigan, Librarian: Katrina is a librarian using the NEL for research. 'I have used the NEL to help students and researchers access materials that they would otherwise be unable to access or request because of the coronavirus pandemic. Without this access, I believe student success will be negatively impacted as they try to complete their coursework. As an academic librarian working in an area of the country with a high rate of the coronavirus, the NEL has allowed me to continue to support the research needs of the University population while also keeping my colleagues and users safe.'Christopher D., Baltimore, Maryland, Educator: Christopher is an educator who uses the NEL in a classroom setting for teaching, research, and the completion of his dissertation. 'The NEL has been indispensable. With every library closed and many lending systems either unsuited or crashing due to the tidal influx of users, the NEL's smart, easy interface has assisted and accelerated my research enormously. I also use the NEL in teaching to pull articles from otherwise unavailable or inaccessible texts.'Kelly P., Detroit, Michigan, Researcher: Kelly uses the NEL for research purposes for her PhD. 'The NEL has provided access to scholarly monographs that are unavailable during the global pandemic due to library closures. It [NEL] has provided tangible resources allowing me to continue my research work while disconnected from physical networks (office space, library access, institutional support spaces). It has shown the need for free digital resources at all times, not just during the shutdowns due to the global pandemic.'
There are a lot more on that page. I don't know how the court will rule in the case -- and, again, courts often interpret anything having to with copyright in a fairly maximalist manner. But the attempt to kill the Internet Archive for helping people access books that are not available through other means is truly disgusting.

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posted at: 12:00am on 16-Jun-2020
path: /Policy | permalink | edit (requires password)

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