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November 25 / Blogs, Other Intellectual Property

Telemedicine’s Opportunities and Risks: A Balancing Act

Abstract: The U.S. has recently undergone a significant shift in healthcare delivery for the 21st century, utilizing technology to deliver more efficient and effective care. Because the Affordable Care Ac
t
(ACA) and Health Information Technology for Economic and Clinical Health Act (HITECH) emphasizes healthcare to be preventative, to detect and care for patients before diseases or illness arise, technological innovation and standardization is critical in today’s healthcare world. If healthcare organizations can capitalize on innovation and standardization, the government will reimburse a substantial monetary reward for successful implementation of telemedicine.

Areas that healthcare organizations have taken in this preventative shift include lean management, more efficient primary care coordination and of particular interest, preventative care technology deemed under the umbrella term, “telemedicine.” Telemedicine isn’t singularly defined; some healthcare organizations interpret telemedicine as “the delivery of specialty care at a distance via telecommunications using applications that provide direct patient care.” The U.S. Department of Health and Human Services (DHHS) and the Center for Medicare & Medicaid Services (CMS) also define “telemedicine” as the “provision of clinical services to patients by practitioners from a distance via electronic communications.” In essence, telemedicine can be thought of as applications that can aid patient care outside of a traditional healthcare setting, even treating patients in their homes.

Obstacles that can complicate successful implementation of telemedicine are the legal ramifications. Legal complications can include fraud and abuse, patient confidentiality, and compliance with state requirements. Violation of patient care can result in heavy fines, and in telemedicine, a recent case involving the Texas Medical Board and a Telemedicine company could heat up within the coming months. Because of these obstacles, healthcare organizations face an arduous journey to getting reimbursed for implementing telemedicine.

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March 25 / Computing, Other Intellectual Property

Can We Really Have a Right to be Forgotten?

In May 13, 2014 the Court of Justice of the European Union (ECJ) held in Google Spain v. Agencia Española de Protección de Datos that search engines must consider requests from individuals to remove links that reference the name of the requesting individual.[1] Across the Atlantic, just a year before, the California legislature passed SB 568.[2] In its own words, the bill grants “privacy rights to California minors in the digital world.[3] In doing so, California became the first American state to require website operators to allow minors to remove information that they had previously posted to a website.[4] Together, these developments represent a movement toward recognition of the right to erase personal information from the Internet – more widely known as the “right to be forgotten.”  The recognition of these rights is controversial; it has not been, and perhaps could not be, universal. American freedom of speech jurisprudence, for example, is especially strong and could be fatal to domestic establishment of a similar right.

This tradition, however, has not deterred California from enacting its own right to be forgotten, albeit abridged and targeted towards minors. SB 568, dubbed the “eraser law” by the media, reflects California’s status as a leader in data privacy law.[5]  Section 22581(a)(1) stipulates that website operators shall “permit [minors] to remove or request and obtain removal of content or information posted on the [website]”, as well as provide notice of such ability and clear instruction on how to do so.[6] Section 22581(b)(1)-(5) lists exceptions- most importantly, for information that is required by federal or state law to be disclosed, content posted by third parties on such websites, information that is anonymized, and for minors that are compensated for the content they pose.[7]

Domestic U.S. groups including the Electronic Frontier Foundation (EFF) and the Center for Democracy and Technology (CDT) have been critical of both the Google Spain v. AEPD ruling and SB 568.[8] Citing concerns ranging from implementation and practicality to structural and rights-based issues, these criticisms highlight the complex nature of the discussion on digital rights – an area in which practicality, in both pragmatically and technically, intertwine with conceptual rights. However, complexity should not deter an important discussion. The advent of practices such as doxxing (the broadcasting of personal identifiable information about individuals), cyber-bullying, cyber-stalking, and other attacks unique to the data on the Internet have given rise to this discussion. Consequently, we must ask whether the “right to be forgotten” is the right solution to these problems.

Broadly, the issue with the right to be forgotten is that it is essentially a limit on the corner stone human right to freedom of expression.[9] Of course, this is not an absolute right: even the exceptionally strong American tradition, stemming from the First Amendment, bears certain exceptions: libel and slander, incitement, obscenity, child pornography, threats, and fighting words.[10] Similarly, the rights enjoyed by public actors and certain types of broadcaster are also not given the same breadth of speech rights.[11] These exceptions to the American constitutional right to speech is reflective of value decisions made over centuries balancing free speech against a broad number of other competing interests. Other democracies have opted to carve out more exceptions.[12] For example, in the Canadian legal tradition, freedom of expression is not absolute, and is subject to “reasonable limits.”[13] Such limits must take into account that some versions of speech are “more central to constitutional guarantees than others.”[14] Ultimately, a discussion about limiting free speech requires inquiry into the type of speech it is, and cannot reasonably be a blanket ban.

In Google Spain v. AEPD, the ECJ ruled that Google (and other search engine providers) have a responsibility to delete links concerning personal information upon request as long as the links are not relevant or in the public interest. In response to the ruling, Google has been complying with takedown requests by weighing each on a case-by-case basis, balancing the “right to be forgotten [with] the public’s right to the information.”[15]

However, the AEPD ruling gave Google no real instruction on how to comply with the requests. Google has essentially had to create their own process on how to obey the takedown requests, in which the company attempts to balance the public’s right by categorizing the individual as a private or a public individual, and then categorizing the information based off of its weaker or stronger privacy interest.[16] It seems absurd that a private institution is essentially given the responsibility of setting their own guidelines for the takedown requests, considering that the ECJ ruling essentially asks Google to balance deeply important human rights in their processing of these requests.[17] The CDT published an article criticizing the right to be forgotten, arguing “it is the role of legislatures and ultimately to ensure that human rights are protected and respected [and] to address conflicts where they arise between right.”[18]

The Google Spain ruling also poses structural issues. Because there are no clear guidelines as to how to obey the right to be forgotten, particularly litigious individuals can still choose to sue Google to get their information removed, should their request through Google’s process be denied.[19] These unclear boundaries can easily lead Google to decide that the cost of litigation is not worth it, and accept more takedown requests than it reasonably should. Such litigation, on top of the burden of being mandated to police their own website, is particularly unfair strain to push onto a private actor, no matter how important they are in today’s world. The right to be forgotten forces Google to answer difficult questions about speech rights and human rights that should not be answered by a private actor, and react in ways that are not necessarily in the best interests of speech rights.

That being said, these problems are not fatal to the right to be forgotten. The European Commission could pass a directive clarifying how to comply best comply with the Google Spain v. AEPD ruling. It could also attempt to eliminate any cause of action against Google by creating a separate type of procedure for takedown requests, such as creating an arbitration body, for such takedown requests.[20]

California’s SB 568, on the other hand, is a much narrower limitation on speech rights. SB 568 limits the right to be forgotten to allowing all minors to delete personal information about them that appears on the Internet. The Internet and social media have become a core part of minors’ lives, with 95% of all teens having an online presence.”[21] In light of issues such as cyber-bullying, and the unfairness of allowing someone’s childhood to impact their future, it is sensible to give such a narrow band of people the right to be forgotten. Such a narrowly carved out exception makes more sense than a broader right to be forgotten, though.

The right to be forgotten highlights many of the themes central to the intersection of the Internet and laws. For example, although Google may be a private actor, its status as the world’s primary search engine may require that we force it to adhere to certain governmental regulations. Given that the Internet is now so ubiquitous to everyday life, it is clear that some individuals’ previous conception of the Internet as an anonymous crypto-anarchic haven be reexamined. However, on the other hand, any regulations must be considered within the scope of the technical capabilities that we have to regulate content on the Internet and the realities of how people behave when using the Internet. Proxies and VPNs, for example, remain popular ways to circumvent domestic Internet filtering. Whether the right to be forgotten as conceived by the ECJ will ever extend outside of Europe remains to be seen.

 


 

[1] C-131/12, Google Spain v. Agencia Española de Protección de Datos, not yet reported.

[2] SB-568, California, http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568

[3] Id.

[4] Lee, James, SB 568; Does California’s Online Eraser Button Protect the Privacy of Minors?, 48 UCD L. Rev. 1173

[5] Shaheen, Randy and Arredondo-Santistebar, Laura. California Enacts Law Protecting Minors’ Digital Privacy Rights. Venable LLP, (November 24, 2014)

[6] SB-568.

[7] Id.

[8] O’Brien, Danny and York, Jillian. Rights That Are Being Forgotten: Google, the ECJ, and Free Expression. Electronic Frontier Foundation, (July 8, 2014)

[9] Universal Declaration of Human Rights. United Nations, (16 December, 1948)

[10] Ruane, Kathleen. Freedom of Speech and Press: Exceptions to the First Amendment. Congressional Research Service, (September 8, 2014).

[11] The FCC and the Freedom of Speech. Federal Communications Commission, (October 17, 2014)

[12] For example, unlike the US, Canada, France, and Germany all have exemptions for hate speech.

[13] Canadian Charter of Rights and Freedoms, Part I of the Constitutional Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[14] W.S. Tarnopolsky, The Canadian Bill of Rights, 2d ed. (Toronto: McClelland and Stewart, 1975).

[15] Floridi, Luciano et. al, The Advisory Council to Google on the Right to be Forgotten, Google, (November 4, 2014)

[16] Id.

[17] C-131/12, Google Spain v. Agencia Española de Protección de Datos, not yet reported.

[18] On the “Right to be Forgotten”; Challenges and Suggested Changes to the Data Protection Regulation, Center for Democracy and Technology, (May 2, 2013) <https://www.cdt.org/files/pdfs/CDT-Free-Expression-and-the-RTBF.pdf>

[19] Id.

[20] On the “Right to be Forgotten”; Challenges and Suggested Changes to the Data Protection Regulation, Center for Democracy and Technology, (May 2, 2013) <https://www.cdt.org/files/pdfs/CDT-Free-Expression-and-the-RTBF.pdf>

[21] Madden, Mary et. al. Teens and Technology 2013, Pew Research Center, (March 13, 2013). < http://www.pewinternet.org/2013/03/13/teens-and-technology-2013/>

November 10 / All Articles, Other Intellectual Property, Patent

The Patent Bar: What it is and What it Means For You

The Patent Bar: What it is and What it Means For You

by Holly Chamberlain and Ethan Rubin

The Patent Bar (officially the United States Patent and Trademark Office Registration Examination) allows one to engage in patent prosecution, the process of procuring patent rights for new inventions.  Patent prosecution is appealing to those who want to use their knowledge of science or engineering in a legal capacity.

What does it mean for your career?

The patent bar exam exists for reasons very practical to the practice of patent law.  It is in the best interests of both inventors and the United States Patent and Trademark Office (USPTO) that patent applications are written by a competent lawyer or patent agent.  The eligibility requirements for the patent bar help ensure that patent agents and attorneys possess enough technical knowledge to understand and explain their client’s invention effectively to the examiner. This in turn helps to improve efficiency of patent examinations.  The patent bar also tests lawyers for the requisite knowledge of patent law, and thus protects clients. Finally, the patent bar helps to prevent the USPTO from examining trivial patent applications, like inventions that supposedly defy the laws of physics or thermodynamics.

The patent bar exam also frames a general understanding of how intellectual property law firms are setup.  Boiled down, in the realm of patent law there are patent prosecutors and there are patent litigators.  A larger intellectual property law firm will have both kinds of patent lawyers.  Patent prosecutors must pass the patent bar in order to prosecute patents before the USPTO, whereas patent litigators need not pass the patent bar exam at all.  In fact, patent litigators need not have a technical degree or technical experience, although such knowledge may be useful over the course of their practice.  The relation patent prosecutors and patent litigators have with each other can be simplified to this: patent prosecutors generally represent an inventor up to and including the granting of a patent, while patent litigators represent their clients after a patent has already been granted.  Generally, patent prosecutors facilitate interactions between a private party (their client) and a public party (the USPTO), and patent litigators mostly resolve disputes between two private parties (two companies or inventors), often times representing a client entangled in a patent infringement lawsuit.[1][2]

Although eligibility for the patent bar is only necessary for those interested in becoming a patent prosecutor, those without the necessary requirements to take the exam are not precluded from working with patents. In other words, the arenas of patent litigation, copyright law, trademark law, and trade secrets are still available for those seeking to practice intellectual property law.

Who can take the exam?

To sit for the exam, a candidate must qualify under one of the three categories laid out by the USPTO in the General Requirements Bulletin for Admission to the Patent Bar. The first category requires a Bachelor’s degree in a qualifying subject, a list of which can be found online. The second category requires a Bachelor’s degree in any subject and also requires a significant amount of course-work in the sciences or engineering. The third category allows a candidate to take the exam with a Bachelor’s degree in any field as long as the candidate demonstrates proficiency and experience in the field of engineering shown by passing the Fundamentals of Engineering Examination (FE).[3] The applicant must present their qualifications to the USPTO in a preliminary application. The USPTO can take anywhere between a week to a few months to approve applicants and allow them to register for a test date. Note that neither a law degree nor legal knowledge beyond the scope of the materials is required to sit for the exam.

When should you take it?

Once you have been approved, you must take the exam within 90 days.[4] Because the exam takes a significant amount of preparation, find a one to three month period in which you can dedicate 150-250 hours to studying for the exam. Make sure that you have at least two days available to take full practice exams (a 6.5-7 hour stretch all in a row) because that is the easiest way to build confidence and test-taking stamina.

What does the exam cover and what does it look like?

The exam covers patent laws, USPTO rules of practice, the relevant procedures contained in the Manual of Patenting Examining Procedure (MPEP), ethical and professional standards expected of patent attorneys, as well as any other relevant, published USPTO policies. The majority of the exam is taken from the MPEP procedures and the patent laws. Note that changes in patent law due to the Leahy-Smith America Invents Act’s (AIA) enactment on September 16, 2011, will be tested.

The exam is electronic, six-hours long, and comprises 100 multiple-choice questions split into a three-hour, 50-question session in the morning and another in the afternoon. The exam does not test scientific principles or knowledge, though familiarity with technical language is helpful in working through the test quickly and efficiently.  An exam-taker must answer 70% of the questions correct to pass and there is no penalty for guessing on the exam. Ten of the 100 questions are experimental and do not count toward the score however, the exam taker does not know which questions are experimental. The exam is open book in that the laws, the MPEP, and any relevant USPTO rules and policies are accessible during the test; however, significant knowledge of the testable subject matter is required in order to move through the test quickly enough to pass the exam.

How do you study for the exam?

Some candidates choose to self-study for the exam as all of the material tested is publicly available in the MPEP or in related documents available on the USPTO website. Online databases and forums, like www.mypatentbar.com offer practice questions and answers for free. This study method is very economical, especially when compared to prep classes which cost thousands of dollars. However, the MPEP is several thousand pages long, and thus impractical to read and outline. Additionally, some of the chapters of the MPEP have not been revised to reflect changes to the law. Therefore, simply studying the MPEP and working through online practice questions can cause you to get questions wrong because the online answers rely on the unrevised MPEP while the actual exam will expect answers in accord with current patent prosecution practice (though not listed in the MPEP).[5] Because of having to outline and determine the most important parts of the tested materials and figure out which questions in online databases have wrong answers due to test updates on your own, this study method tends to only have a first-attempt pass rate of approximately 15%.[6]

Another study strategy is to enroll in an exam prep class. Classes can be online or in person and vary in cost. The most commonly taken prep course is the Practising Law Institute’s (PLI) Patent Bar Review; approximately 50% of all test takers take this class.[7] The class comprises approximately 50 hours of in-person or online lectures, check-point exams as you learn each piece of the law and MPEP, and access to an online testing platform called Patware which contains thousands of practice questions guaranteed to be updated to reflect the exam that you will take. The biggest advantages of using PLI’s Patent Bar Review course is that you are given a study guide that outlines all of the tested materials and have access to their bank of practice questions, which provides the user with statistics on their strong and weak points, allowing for more targeted study. PLI’s Patent Bar Review Course’s students pass the exam on their first attempt 88% of the time. However, this course is very expensive, costing almost $2800 for non-students and almost $1900 for students.  There are less expensive courses available, like PatBar’s Patent Bar Review course at $700, but pass rates of their students were not available online.[8]

Results and Next Steps

After finishing the exam, you will immediately see your preliminary results showing whether you passed or failed the exam. If you pass, you simply see that you have passed and do not get a numerical score. If you fail, you will see your score, letting you know how close you were to passing. After you finish your exam, the USPTO will send a letter with your official results and information as to how to complete your registration if you’ve passed or how to reapply to take the exam again if you’ve failed. If you have passed, make sure to celebrate!

For retakers or those hoping to sit for the exam soon, it is important to note that the patent bar exam will change again in January 2014, adding in three more document’s worth of material from the AIA.[9] The more patent law changes, the more the patent bar exam changes, and the less utility old exams will have in students preparation for the patent bar exam as less questions will be repeated from the released exams.

 

 

 


[1] http://www.luc.edu/career/practice_areas/patent.html

[2] http://www.isenberg-hewitt.com/Practice-Areas/Business-Litigation/Patent-Prosecution-and-Patent-Litigation.shtml

[3] http://www.uspto.gov/ip/boards/oed/exam/registration.jsp

[5] http://www.ipwatchdog.com/2013/07/27/beware-patent-bar-exam-study-advice/id=43136/

[6] http://www.ipwatchdog.com/patent-bar-exam/patent-bar-review-courses/

[7] http://www.ipwatchdog.com/patent-bar-exam/patent-bar-review-courses/

[8] http://patbar.com/patent-bar-exam-pass-rates.shtml

[9] http://www.uspto.gov/ip/boards/oed/exam/

February 1 / All Articles, Computing, Other Intellectual Property

Avoid The Rainy Day: Survey of U.S. Cloud Computing Caselaw

pdf version

Cloud computing, a computer networking model that gives users on-demand access to shared software applications and data storage, [1] is becoming increasingly popular among businesses and individuals. For example, if you use Google’s Gmail [2] for your email and calendaring, or Snapfish [3] for your online photo sharing and storage; or if your business remotely stores data with a third-party server provider like Salesforce, [4] or uses Windows Azure [5] to create and host web applications and services, you are already “floating in a cloud.” To provide guidance to those companies working within a cloud – *2 or those considering utilizing cloud computing – this article surveys U.S. cases that have direct, substantive implications for cloud users. These cases implicate issues of personal jurisdiction, privacy rights, e-discovery, and copyright infringement. [6] We also take a brief look at the newest case on the cloud computing horizon, Google v. The United States. [7] …

 

Fernando M. Pinguelo** & Bradford W. Muller***

 

February 2 / All Articles, Other Intellectual Property, Right of Publicity

The Presidential Right of Publicity

Although the right of publicity has historically been a cause of action invoked by celebrities to protect themselves from an extensive range of conduct, the question remains whether non-traditional celebrities deserve the same rights. [2] Can President Obama protect against the unauthorized use of his image since he has arguably attained celebrity-like status? I believe the answer is, to modify the President’s campaign mantra, “Yes [He] Can.” This Essay briefly discusses the application of the right of publicity to President Obama and concludes with suggestions on how he should protect that right.

 

As evidenced by the multi-million dollar industry surrounding celebrity endorsements and merchandise, image is a celebrity’s most valuable asset. [3] While some may cringe when they see celebrities shill a particular product, it is difficult to argue that celebrities deserve no compensation for the use of their names or images in advertisements since that image often requires time and expenditures to develop. Indeed, the sole reason advertisers use a celebrity’s image is its utility as an effective marketing tool. Also, if a celebrity’s image was built around being wholesome, it is unclear why they should be denied the right to control how their images are used. If a celebrity has the right to control the when, where, and cost of using their image, celebrity-politicians should not forfeit these rights solely because they enter office….

 

Sean T. Masson [1]

May 1 / All Articles, Other Intellectual Property

Second Life Strife: A Proposal for Resolution of In-World Fashion Disputes

This article proposes a system of dispute resolution for the virtual world of Second Life. Virtual worlds offer a unique opportunity to examine real world law in a similar environment. These environments might very well be the electronic market place of the future, replacing traditional two-dimensional web pages, but they also provide a fascinating way to experiment with legal theories. There are numerous ways in which the dispute resolution system may be implemented and numerous types of disputes to which it may be applied, but this article focuses on disputes that arise in Second Life’s vibrant fashion industry.

 

Fashion law in the real world operates in a contradictory way — low intellectual property protections do not result in a lessening of innovation, as one would expect, but rather, foster creativity. Against this backdrop of virtual worlds and electronic commerce, fashion-related disputes are used as a springboard to build a system of dispute resolution for a broad range of other conflicts.

 

I. Introduction

 

Second Life is a 3-D virtual world, created by Linden Labs, where the residents can build and own property parcels. [1] Further, residents can craft virtually anything and own the intellectual property rights to their creations. [2]

 

Just as in real life, however, conflicts arise. This article will outline steps for resolving disputes that arise “in-world” by using the example of fashion-related disputes. The wide range of issues that can arise, as well as the multitude of questions that follow, necessitate this course of action. For example, disputes over in-world casinos raise the question of accretion of real world income, while disputes over speech lead to questions of First Amendment protections. The scope of fashion disputes will not be limited to disputes between two users. Real world designers will also be able to use the dispute resolution process to put a halt to trademark violations, as well as stop the practice of directly copying real world designs for in-world couture. By focusing on fashion, this article will provide a blueprint for Second Life and other such virtual worlds to create a system of dispute resolution that will enable their continued growth.

 

Sarah E. Galbraith, J.D.

 

September 26 / All Articles, Other Intellectual Property

Transcript Of 2006 Telecommunications Federalism Conference: Intro And Opening Remarks

THE FEDERALIST SOCIETY

 

Presents its

 

2006 TELECOMMUNICATIONS FEDERALISM CONFERENCE

 

Introduction by The Honorable David M. McIntosh And Opening Remarks by The Honorable John M. Engler

 

The Honorable David M. McIntosh, Mayer Brown Rowe & Maw, and former Member, United States House of Representatives

The Honorable John M. Engler, President, National Association of Manufacturers, and former Governor of Michigan

 

September 26 / All Articles, Other Intellectual Property

Transcript Of 2006 Telecommunications Federalism Conference: Role of Public Utilities Commissions

THE FEDERALIST SOCIETY

 

Presents its

 

2006 TELECOMMUNICATIONS FEDERALISM CONFERENCE

 

The Role of Public Utilities Commissions

 

Panelists:

The Honorable Kathleen Q. Abernathy, Akin Gump Strauss Hauer & Feld LLP, and former Commissioner, Federal Communications Commission

The Honorable Larry S. Landis, Indiana Utility Regulatory Commission

The Honorable Connie Murray, Missouri Public Service Commission

The Honorable Gregory E. Sopkin, Chairman, Colorado Public Utilities Commission

Mr. Randolph J. May, Senior Fellow and Director of Communications Policy Studies, The Progress & Freedom Foundation, Moderator

March 11 / All Articles, Other Intellectual Property

Svyazinvest: A Failed Attempt At Creating A Big Contender

Russia’s attempts to introduce large-scale competition into the Russian telephone industry got off to an encouraging start in late 1995 when a public offering of shares in Svyazinvest, the holding company representing the government’s 51% stake in 85 of Russia’s 87 regional operating companies, attracted the bids of several foreign investors. But a promising set of negotiations with the Italian state telephone company ended in an imbroglio at the year’s end, turning imminent success into sudden, dismal failure. Ever since, Svyazinvest has been widely considered an unattractive investment, and the failed negotiations prompted concerns that Russia was incapable of successfully bringing off a major international investment. Recently, the government has taken steps to consolidate the ownership of Svyazinvest with that of Rostelekom, the partially-privatized, primary long-distance and international service provider, leading many observers to believe that Russia will soon have a telecommunications monopoly the likes of Deutsche Telekom or France Telecom. Given Russia’s pro-competition communications policy, however, such an outcome seems unlikely.

 

Steven M. Chernoff*

November 14 / All Articles, Other Intellectual Property

The 1997 GATS Agreement On Basic Telecommunications: A Triumph For Multilateralism, Or The Market?

On February 15, 1997, sixty-nine governments signed an agreement seeking to liberalize the world telecommunications market – a market, according to Renato Ruggiero, the Director-General of the World Trade Organization (WTO), worth “well over half a trillion dollars per year.” According to Ruggiero, these sixty-nine countries making commitments account for more than 90% of telecommunications revenue worldwide. In a statement issued February 17, 1997, Ruggerio congratulated the governments for their “determination and foresight in bringing this negotiation to a successful conclusion.” Perhaps in acknowledgment of the many delays in concluding the agreement, Ruggiero said that not all the decisions had been easy. “But in the end,” he concluded, “member governments have put their faith in the multilateral process of the WTO, and the WTO has delivered.” [1]

 

Is that, however, truly the case? Is the WTO Agreement on Basic Telecommunications an agreement which the ever sober Economist said “[i]n scope alone … is the most ambitious yet [of the WTO]” [2] really a triumph for the WTO, the General Agreement on Trade in Services and the multilateral process as a whole?

 

At first glance, the agreement does seem to be rather a triumph. The services covered under the agreement extend broadly to almost every sector of the telecommunications market: voice telephony, data transmission, telex, telegraph, facsimile, private leased circuit services (resale), fixed and mobile satellite systems and services, cellular telephony, mobile data services, paging, and personal communications services (PCS). The liberalization of the services in these market sectors will occur not only in cross-border supply of telecommunications, but also allows for services to be provided through the establishment of foreign firms, or commercial presence in foreign countries, including “the ability to own and operate independent telecom network infrastructure.” [3] In other words, when the agreement is fully implemented, AT&T or MCI could be selling long-distance in Sweden and building a new fibre-optic network in El Salvador, while Telia (Sweden’s formerly national telecommunications carrier) could be selling network service to U.S. businesses, while building a new digital cellular network in Bulgaria with a joint venture partner such as Ericsson.

 

The agreement not only offers nearly comprehensive telecommunications sector coverage, but it offers extensive national market coverage as well. The sixty-nine countries signing the agreement include all the world’s industrialized countries, as well as forty developing countries from all regions of the world. The developing countries include large nations such as India, small nations such as Belize, as well as economies in transition from the former Warsaw Pact such as the Czech Republic. [4]

 

On the surface, therefore, the agreement does seem to be a victory for the WTO, and a reaffirmation the principle of multilateralism enshrined in the GATT. When one begins to look a bit deeper, however, and compares the actual legal text of the General Agreement on Trade in Services (born in 1994 with the GATT Uruguay Round Agreement), with the various incentives for countries to avoid liberalization, and recent developments in the world telecommunications market, a different picture emerges. It is a picture of the triumph of technology and market forces rather than a triumph of multilateralism; a picture in which the agreement seems to have come about not due to, but rather in spite of the GATS itself. In his statement, perhaps without even realizing, Director-General Ruggiero acknowledged this triumph:

 

Perhaps most importantly of all from a longer-term perspective, this deal goes beyond trade and economics. It makes access to knowledge easier. It gives nations large and small, rich and poor, better opportunities to prepare for the challenges of the twenty-first century. Information and knowledge, after all, are the raw material of growth and development in our globalized world. [5]

In the final analysis, the real triumph of this agreement belongs not to the WTO, but to the force of the information economy itself.

 

Eric Senunas *