May 18, 2013

About the list.

This is a work in progress. KEI has been engaged in the negotiations for a WIPO treaty on copyright exceptions for persons with disabilities since 2008. We have attended each negotiation that has been open to accredited NGOs, and participated in countless briefing and meetings with negotiators and key players in the negotiation.

The list identifies a handful of individuals who have played a particularly negative and impactful role in the negotiations. Singled out (for now) are persons who have sought to weaken or block the treaty, even if their business is excluded, and their only interest is in the “precedent” of expanding intellectual property right exceptions for consumers generally.

The list now includes a small number of companies in the motion picture and patented technology businesses that have recently demanded the European Commission and the Obama Administration abandon positions preciously embraced or accepted beginning in 2011.

None of the individuals should be proud to be a member of this list, although perhaps some are.

Companies

General Electric

General Electric Company (GE) is a diversified technology and financial services company, with shares worth $244 billion (as of May 17, 2013). The company sells diverse products such as aircraft engines, power generation, water processing, and household appliances, as well as medical imaging, business and consumer financing and industrial products.

In 2013, General Electric mobilized patents owners to oppose much the proposed text in the WIPO treaty, and to push for narrower exceptions. This included direct monitoring of the WIPO process, lobbying Senator Leahy and other members of the U.S. Senate, and getting the Intellectual Property Owners (IPO) Assocation and Business Europe to write to the US and EU governments. The IPO letter called the treaty a “dangerous precedent” and a “risk” to holders of patents for health, energy and climate change technologies. The Business Europe letter complained that the treaty was “strongly supported by the same group of NGOs and advanced emerging economy countries that pursue a general IPR-weakening agenda at WIPO and other international forums.” These are four of the key people working at or for GE on this issue.

Jeffrey R. Immelt is the CEO of General Electric. Immelt has worked GE since 1985, joining the company that employed his father. He is also on the board of the oddly named Robin Hood Foundation, a charity that seeks to alleviate poverty in New York. In 2011, Immelt’s compensation from GE was estimated by Forbes at $21.6 million. Immelt once promised to “protect our intellectual property to the death.” Under his leadership, GE has become increasingly politically active in a wide range of global intellectual property issues that GE perceives as a threat to its patent portfolio. GE’s lobbying against copyright exceptions for blind persons marks a new and expanded scope of the GE advocacy on intellectual property issues.

Carl Horton, Vice President & Chief IP Counsel at GE. Horton sees linkages between any effort to weaken intellectual property rights. Horton has long monitored global negotiations on intellectual property, including disputes over patents on medicines. In a 2008 IP-Watch story on disputes over access to life saving drugs, Horton described compulsory licensing of patents as: “a bullet in the heart of the intellectual property system.”

Thaddeus Burns, Senior Counsel, Intellectual Property & Technology Policy at General Electric. Thaddeus got his start in intellectual property by opposing patent exceptions for persons who were HIV positive and living in Africa and other developing countries, as the Intellectual Property Attache in Geneva for the USPTO and USTR, during the Clinton Administration. Most famous quote — “its not about truth, its about power.”

Jennifer Brant. Brant is a consultant to General Electric, Microsoft, GE, Qualcomm, Inovent, Procter and Gamble (P&G) and Pfizer. From 2005 to 2007, she was a trade policy advisor for Oxfam, where she lobbied against strong patent protection for pharmaceutical products in developing countries. Upon leaving Oxfam, Brant worked on trade issues at Sidley Austin LLP, from 2007 to 2010. General Electric hired Brant to monitor the WIPO negotiations on the treaty for the blind.

Disney

The Walt Disney Company is a diversified worldwide entertainment company. On May 17, 2013, the company shares were worth $120 billion. Disney is one of the two most aggressive media companies demanding that exceptions be narrowed, even though none of Disney’s video assets are even covered by the treaty. Disney has asked the MPAA to lobby the Obama Administration to abandon positions it has held since 2011, and is closely monitoring the negotiations.

Bob Iger, the CEO of Disney, grew up in Long Island, New York. Both his parents were teachers, his mother for a junior high school, and his father as a professor of advertising and public relations. He began his career as a weatherman at a local television station and began a steady climb up, initially rising in the management of various ABC companies. In addition to being the CEO of Disney, Iger is a member of the Apple Computer Board of Directors. Forbes estimated his 2012 compensation from Disney at $40.2 million. His Wikipedia entry notes that in 2012, Steven Spielberg presented Iger with the “Ambassador for Humanity Award” recognizing “his longtime philanthropy, and his leadership role in corporate citizenship.” In the present case, Iger is pushing to block any version of the WIPO treaty for the blind that does not provide a narrow precedent. Mindful of the need to protect the Disney brand, Iger wants the MPAA to be the public face of the opposition to the WIPO treaty.

Alan Braverman is the Senior Executive Vice President, General Counsel and Secretary at the Walt Disney Company. Braverman has taken a deep interest in copyright issues. Among other things, Braverman was active in efforts to curb unauthorized uses of copyrighted works as “user generated content” — which explains in part his focus on the language in the treaty dealing with fair use, a concept that Braverman and Disney are not anxious to export.

Viacom

Viacom and Disney are considered the two most aggressive firms influencing the MPAA lobbying against the treaty. On May 17, 2013, Viacom had a market capitalization of $34 billion. While Viacom’s primary assets are excluded from the treaty, Viacom is concerned about the language in the treaty about fair use, which it sees as undermining its infringement claims against the use of video clips on web sites (Viacom owns vast video content, including such programs as the Daily show).

Philippe Pierre Dauman is the President and CEO of Viacom, where he has taken a strong interest in copyright issues. Dauman complained about the “mob mentality” and “unfortunate rhetoric” that lead to the defeat of SOPA and PIPA.

As CEO of Viacom, Dauman was paid $43.1 million in 2011, and $33.4 million in 2012.

Exxon Mobil

Exxon Mobil is the world’s largest company by revenue and in 2013, was at times the largest publicly traded company by market capitalization in the world. On May 17, 2013, shared were valued at $408 billion. On April 15, 2013, Richard F. Phillips of Exxon Mobil Corp. signed a letter on behalf of the Intellectual Property Owners Association, calling the WIPO treaty for the blind a “dangerous precedent” and a “threat” to patents in the field of energy and health. Given the chance, Exxon Mobil declined to walk back anything in the letter.

Exxon has been on both sides of the exceptions issue, depending upon their business interests. In 2001, Exxon Mobil lobbied the Federal Trade Commission to grant compulsory licenses on Unocal Corporation patents on the production of cleaner-burning gasoline.

Richard F. Phillips is the Chief Attorney for Technology at Exxon Mobil, and the President of the Intellectual Property Owners (IPO) Association. In his capacity as President of the IPO, Philllps signed the April 15, 2013 referring to the WIPO treaty for the blind as a “dangerous precedent” and a “threat” to patents in the field of energy and health.

Caterpillar

Caterpillar Inc. is a manufacturer of construction and mining equipment, diesel and natural gas engines, industrial gas turbines and diesel-electric locomotives. The company shares were valued at $57.6 billion (on May 20, 2013). Dennis C. Skarvan, the Caterpillar General Patent Counsel, was one of the names on the April 15, 2013 Intellectual Property Owners (IPO) Association letter that referred to the treaty as “dangerous precedent” and a “risk” to patent owners. Surprised that a company like Caterpillar would weigh in on a treaty on copyright exceptions for blind persons, we contacted Caterpillar, which evaluated the issue at the corporate level, and elected to stand by the IPO letter, without qualification.

Douglas R. Oberhelman, is the CEO of Caterpillar, a firm he joined in 1975. He also serves as a director of Eli Lilly and Company, and the National Association of Manufacturers, as well as a chapter of the Nature Conservancy and the Wetlands America Trust. He is past president of Easter Seals, a non-profit that provides services to persons living with autism and other disabilities . In 2011, Oberhelman received $16.9 million in compensation, according to Forbes. By all accounts, Oberhelman seems like a very sold citizen, and sensitive to broader social issues. But when the company was asked to distance itself from the IPO letter, they declined, and so Caterpillar and Oberhelman remain on record calling the treaty a “dangerous precedent” and a risk to their patent portfolio.

Dennis C. Skarvan is the General Patent Counsel at Caterpillar Inc. His name was the April 15, 2013 IPO letter.

Trade Associations

MPAA

The Motion Picture Association of America, Inc. (MPAA) describes itself as “the voice and advocate of the American motion picture, home video and television industries.” Members include: Walt Disney Studios Motion Pictures; Paramount Pictures Corporation; Sony Pictures Entertainment Inc.; Twentieth Century Fox Film Corporation; Universal City Studios LLC; and Warner Bros. Entertainment Inc. From 2008 to 2012, the MPAA went from an opponent of the treaty to a supporter, after demanding that the treaty exclude persons who are deaf or audio visual works. In early 2013, after the MPAA had already secured a narrowing of the treaty so that it excluded deaf persons and audio visual works, the MPAA re-emerged as the most energized opponent of robust copyright exceptions for blind people, demanding all sorts of changes in texts that the United States and the European Union had agreed to in June 2011 and February 2013. (More on the MPAA impact here).

Chris Dodd. In March 2011, despite “repeatedly and categorically insisting that he would not work as a lobbyist” Dodd took a job as the chairman and chief lobbyist for the Motion Picture Association of America (MPAA). Dodd personally had directed the MPAA lobbying on the WIPO treaty for blind, calling Senate President Harry Reid and other former colleagues in the US Senator, and his contacts in the White House.

Dodd served in the United States Senate for 30 years, and began is career in politics as a champion of liberal causes. Dodd’s father was also a US Senator from Connecticut, before losing his seat after an official censure for transferring campaign funds to his personal accounts and spending the money. Chris Dodd declined to run for re-election in 2010, after this poll numbers fell following multiple disclosures of his close ties to companies involved in the financial collapse of 2008-2009.

IPO

The IPO claims to represent 200 corporate members and more than 12,000 individuals worldwide who participate in the association through corporate or law firm memberships or as individual members.” Its 50 member board of directors feature many of the best known companies in the world, such as Exxon Mobil, Apple Computer, Caterpillar, Pfizer and IBM.

On April 15, 2013, the Intellectual Property Organization sent a letter (copy here) to several United States government officials, describing the WIPO treaty for the blind as a “dangerous precedent” and a “treat” to patent rights, with a special mention of patents on health and climate change technologies.

Herbert Wamsley is the Executive Director at Intellectual Property Owners (IPO) Association. Prior to his work at the IPO, Wamsley was chief of staff at the US Patent and Trademark Office. Even though copyright is not his main interest, Wamsley’s attack on the treaty for the blind is not surprising. Among other things, Wamsley has lobbied against the USPTO “Patents for Humanity” program to provide incentives to license patents for humanitarian purposes.

Business Europe

In a May 14, 2013 letter signed by Markus Beyrer, Brussels based Business Europe sent a letter to Commissioners Michel Barnier and Karel De Gucht opposing the WIPO treaty on copyright exceptions for persons who are blind or have other disabilities. Business Europe describes itself as “the main horizontal business organization at the EU level.” It represents 41 national business organizations in 35 European countries, claiming to promote “growth and competitiveness in Europe.” The primary clients of Business Europe are the 55 companies on their corporate advisory board. (More here).

Markus Beyrer is the Director General of Business Europe. He was previously the Chief Executive Officer of Österreichische Industrieholding AG (ÖIAG). Beyer was born in 1965 in St. Pölten, raised in Krems, Lower Austria. It is doubtful that Beyrer understands any of the issues in the letter he signed.