INTERNET, COPYRIGHT & FREEDOM OF INFORMATION
Problematics of the EU Directive and MAI
9 October 1998
MAI AND LIBRARIES - a draft for the discussion
Finnish Library Association
How could the Multilateral Agreement on Investment affect on libraries? You may wonder what an agreement on investments has with libraries to do. There are not yet clear answers to these questions, but as we look at the agreement more carefully we understand better why it could be a threat to the libraries.
What is the MAI?
The MAI is a treaty being negotiated in secret at the Organisation for Economic Co-operation and Development (OECD), the group of 29 wealthiest countries to facilitate the flow of capital across borders and around the world. Paving the way for the global economy", the MAI proposes to create a level playing field" for investors. It was originally intended to be part of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), the forerunner of the World Trade Organisation. The MAI has been strongly opposed by countries of the South and by more than 600 NGOs from seventy countries in the South and in the North have joined to defeat the MAI as the treaty would affect on all sectors of the society including labour, the environment, health care, education and culture.
The negotiations of the MAI has started in 1995 and the treaty was meant to be approved in 1997. The negotiations were interrupted in April 1998, because USA was not satisfied with all the reservations made to it by other OECD countries. The countries are able to make reservations if they do not accept certain point in the treaty. The reservations must be made before the treaty is approved. Afterwards it cannot be changed any more. The negotiations have been to be started again in October.
One of the reasons for the strong inluence of the MAI in the society and also on culture is the wide meaning of the word investment". It means every kind of asset owned or controlled, directly or indirectly, by an investor, including ... intellectual property rights." Thus any and all kind of works of art, regardless of form or media, could be construed as an investment. And investor is any natural person or legal entity that owns an investment". Intellectual property in the MAI language means the domain covering both literary and artistic property and industrial property (patents, brand names, drawings and models9. Literary and artistic property means the domain encompassing authors' rights and related (or neighboring) rights, including performers' and producers' rights.
There are resolutions and statements published on the MAI by different organizations and NGOs. This paper is based on the text of the MAI, on the resolutions by the Social Responsibilities Round Table of the American Library Association, by the British Columbia Library Association Executive, by the European Parliament, by the World Council of Churches and on numerous articles and comments on the MAI in periodicals, newspapers and in the Internet. There are numerous websites in favor of the MAI and against it. There is no lack of information on this question - but it is hard to find the right answers.
The Principles of the MAI
The aim of the agreement is to strengthen the rights of multinational companies: These are:
- Non-discrimination - foreign investors must be treated as well as or better than domestic companies
- No entry restrictions - national and local government cannot restrict foreign investment in any form (e.g. buying of privatised companies) or in any sector (except defence)
- Non conditions - national and local government cannot impose performance requirements", such as to ensure local employment, control currency speculation or to require a minimum period for investment. These conditions are prohibited even if they apply ecqually to domestic and foreign owned companies.
Once the MAI is signed, a country cannot leave the agreement for five years and successor governments will be bound for fifteen years. If national or local governments breach any of the principles, they can be taken to an international tribunal and sued for past and potential future damages.
The Implications of the MAI
- the MAI takes away democratic powers from national and local government and gives new rights to multinational companies
- the MAI could effectivly dismantle existing environmental and social laws
- the MAI is unfair and could be damaging for the poorest countries
- the MAI would remove powers from local government and undermine local initiatives.
- the MAI is being negotiated with no public participation or debate and with the exclusion of the majority of countries (for instance developing countries)
Arguments in Favor of the MAI
- the MAI reduces obstacles for trade and foreign investments
- stronger global economies will stabilize and strengthen the economies and governments of infividual nations
- a provision that forces foreign investors to follow stringent environmental standards will result in more efficient, environmentally friendly methods of production
- global economies will facilitate foreign investment in developing countries and will benefit the environment through the willing transfer of technology
Discussion on the Potential Effects of the MAI on the Libraries
So far there has not been much discussion on the potential effects of the MAI on the libraries, though there has been some reactions in France on the effects on culture and very strong reactions around the world in other sectors like environment and working conditons. The first resolution on the effects on libraries was prepared for the British Columbia Library Association Information Policy Committee and distributed at the annual Canadian Library Association conference in June 1998. As the Canadian librarians see that the MAI would affect on libraries around the world, they have forwarded the document to several discussion lists. (click here for the plain text of the document.) Much of the information is relevant also in other countries though the text is primarily written to the Canadian audience. Also the Social Responsibilities Round Table of American Library Association has published a resolution on the MAI where it refers also to the above mentioned British Columbian resolution.
Also in other library organizations the MAI has raised questions and is on the agenda of the meetigs. The International Federation of the Library Associations and Institutions (IFLA) had its annual meeting in August in Amsterdam and this question was also handled there in the Committee of Copyright and other Legal Matters. The task was given to two members of the committee to gather information of the MAI and of its effects on the libraries. Also the European lobbing organization EBLIDA (European Bureau for Libraries, Information and Documentation Associations) has the MAI on the agenda in their Executive Board meeting in Athens on the 10th of October. Otherwise there is still very little discussion about the MAI in the library associations. The Finnish Library Association had it on the agenda in August, but we also had little information of the effects so we just desided to follow the situation and gather information on the MAI. The Nordic or other European library organizations neither the Autralian one have not given out resolutions so we better look what the colleagues on the other side of the Atlantic Ocean have found out.
The British Columbian Resolution
The British Columbian Library Association states that libraries would be affected by the MAI even to the extend that public libraries would disappear altogether," This is possible, because libraries receive subsidies from the government, and because subsidies fall within shooting range of the MAI, libraries could find themselves in jeopardy. There is the following scenario: a foreign information services" company enters (in this case) Canada and sets up operation. The company defines its services as similar to those offered by libraries in Canada. It then demands equal treatment with Canadian libraries under the articles of the MAI. Equal demand would include government subsidies, and the government would then be faced with the following options in response to this demand:
- subsidize the information services to the same degree as libraries
- decrease subsidies to libraries, and then extend this decreased level of assistance to the foreign corporations as well
- cut funding to libraries altogether and thereby avoid subsidizing every information services company that enters Canada
The last option is the governments most probable choice, less likely the second option. Libraries have already now financial problems under current funding levels. The worst case scenario could be a complete closure of public libraries due to lack of funds. Or they could start their own fund-raising, including fee-for-service schemes. The end result would be reduced service to the public. Potentially they could lose access through libraries and have to pay the information services companies for the information they need. Or should libraries survive, the public would be required to pay them for services that are now free. Libraries would be in competiton with corporations and information would become a commodity in the marketplace.
Also other threats are mentioned. Copyright legislation could come under fire. The fair dealings clause which allows library users to make a copy of the part of a work for personal use only. A corporation could see such copying as an interference in their ability to make a profit and could challenge it at an international tribunal at the World Trade Organization.
Another fear would be the MAI's lack of performance requirements for multinational corporations. This is an example of Canada so the Canadian libraries are required to use Canadian distributors to acquire their materials. When information services companies could be competing with libraries, the foreign corporations would not be required to use local distributors, byu local materials or support local authors. One dominant culture could emerge around the world.
These are some visions by the Canadian colleagues about the future if the MAI would rule the world. There are many questions in the MAI which should be solved before the agreement could promote the general welfare as is assumed in the OECD. These examples of the MAI`s potential effects on the libraries are not encouraging if we think of democracy, free access and equal rights to information.
- The MAI Negotiating Text (as of the 28 April 1998)
- European Parliament Resolution on the MAI, adopted March 10, 1998
- MAI Provisions and Proposals : An Analysis of the April 1998 Text. Public Citizen.
- British Columbia Library Association. Position paper on the MAI.
- ALA (American Library Association) Social Responsibilities Round Table. Resolution on the Multilateral Agreement on Investment (MAI)
- The Multilateral Agreement on Investment a Threat to Social Rights, the Environment & Democracy. Statement by the World Council of Churches
- Mattern, Douglas, Democracy or Corporate Rule? Humanist July/August 1998, p.5-8.