Trade treaties, internet imperialism, and intellectual property rights

The Digital Alarmist

These days, new trade treaties (such as the 2021 US-Mexico-Canada Agreement or USMCA) are constantly being negotiated by the US with other countries. Most of these treaties have to do with e-commerce facilitated by global internet platforms run by seven big IT companies -- Google, Apple, Facebook, Amazon, Microsoft, Netflix and IBM. Collectively, they run the most sophisticated electronic surveillance system on the planet, ready to do battle with any nation-state or individual citizen or organisation who dares to violate their intellectual property rights (IPR). The companies are guaranteed to win since their rights are being codified by special clauses in digital-trade agreements, violations of which can trigger economic sanctions and criminal/civil penalties.

If you think you are not being surveilled, consider this: Every time you use a Microsoft product such as Windows or Word, your particular copy of the software is checked for validity, and the copy is automatically disabled if it is not licensed. Microsoft knows exactly when and on what computing devices you use their products.

Here is an excerpt from the USMCA fact sheet. “USMCA sets the highest standard of any US trade agreement for strong, effective protection and enforcement of intellectual property rights, which are critical to driving innovation, creating economic growth, and supporting American jobs.”

The clauses in the new treaties aren’t all that different from old ones written some 175 years ago, but with one major distinction. The old treaties were formulated not before but after wars were fought to gain entry into Asian markets.

During much of the 18th and 19th centuries, both China and Japan had flourishing economies and possessed valuable luxury goods such as silk, tea and porcelain -- items much coveted by Britain and America. Since neither China nor Japan allowed western traders to participate in their economies, wars provoked by western powers resulted in the losing Asian powers signing four unfair trade treaties. The two so-called ‘Opium Wars’ between Britain and China led to the Treaty of Nanking in 1838 and the Treaty of Tientsin in 1858. Likewise, the Treaty of Kanagawa (1839) and the so-called 1858 Harris Treaty (ironically named the ‘Treaty of Amity and Commerce’) were the outcome of the US coercing Japan in matters of trade.

Some of the most egregious provisions of these treaties were the following -- virtually tariff-free importation of British and American goods into the Asian countries and the removal of any restrictions on the export of Chinese and Japanese goods; any trade disputes to be arbitrated by London, Washington and Paris; and extra-territoriality rights which ensured that all American and European citizens in China and Japan who committed crimes would not be subject to prosecution by local courts.

Even though only the US, Britain and, to some extent, France were involved in the wars, the fact that the extra-territoriality rights were extend to all Europeans and Americans shows that white privilege has a rich and long genealogy which continues to this day. For students of Indian history, this should come as no surprise since the East India Company did much the same thing, only earlier. See, for example, the Treaty of Amritsar (1809) and the Treaty of Allahabad (1765).

Fast forward 200 years, we now have extra-territoriality rights conferred on multinational US corporations via free trade agreements. After all, they are ‘persons’, too.

The USCMA, considered to be the gold standard against which all future trade pacts are to be assessed, largely focuses on digital trade and IPR that are designed to ensure US dominance in the digital ecosphere. Some of the crucial clauses in USMCA are the following: prohibit customs duties and other discriminatory measures from being applied to digital products distributed electronically (e-books, videos, music, software, games, etc.), permit cross-border data transfer with few limits on where data can be stored and processed, and limit the civil liability of internet platforms for third-party content that such platforms host or process, thereby enhancing the economic viability of these engines of growth that depend on user interaction and user content.

Under the new trade pacts being negotiated, any restrictive laws passed by individual nation-states which can impact the businesses of companies such as Google and Facebook can be challenged and ultimately result in a nation-state owing huge sums of monies to these corporations.

Did you know that in India, Google is used for 96% of all web searches, and that the country has the largest Facebook user base in the world? By way of comparison, in China only 5% of internet users choose Google for web searches or have Facebook accounts. China has its own search engine, Baidu, and its own social media platform, Weibo.

Internet – imperium or emporium? Either way, you lose.