[A2k] Final Decision - Information Disclosure Suit on Korea-US FTA IPR Chapter

Heesob Nam hurips at gmail.com
Mon Oct 8 09:13:42 PDT 2018


Now the decision of the Seoul High Court became final and conclusive
as the Supreme Court dismissed  the appeal of Koren government by
deciding to cease hearing such an appeal. Now following documents have
to be disclosed and I expect that happen no later than next week.

1. In connection with the Second Preliminary Review Meeting of 28-29
March 2005, the Provisional List of Questions to the United States
delivered by the Korean side on 14 March 2005 regarding IPRs.

2. Regarding the Intellectual Property Chapter in relation to the
first formal negotiations of 5-9 May 2006:
(1) a draft text of the agreement provided by the US side to the Korean side;
(2) a consolidated text prepared by both sides;
(3) the document entitled “US Proposed IPR Chapter” (2006. 5. 26.)
provided by the US; and
(4) the document entitled “18 USC 2511, 18 USCS 2520, 18 USCS 2512, 47
USC 325, 47 USC 553, 47 USCS 605” provided by the US.

3. Regarding the Intellectual Property Chapter in relation to the
second formal negotiations of 10-14 July 2006:
(1) the amendments to the consolidated texts which were exchanged by
the two sides;
(2i) the consolidated texts jointly written by the two sides;
(3) the document entitled "Overview of Customs Bond" (2006. 7. 4.)
drafted and delivered by the US;
(4) the document entitled "Computer Software Piracy FR notice (2006.6.
6.)" provided by the US side;
(5) the document entitled "Copyright Term Ext & Temp Copies" (2006. 6.
29.) provided by the US side;
(6) the document entitled "Inequitable Conduct (2006. 6. 30.) provided
by the US side;
(7) the document entitled "Sound and Scent Mark Info (2006. 7. 4.)"
provided by the US side;
(8) the document entitled "Statutory Damages Paper (2006. 6. 27.)"
provided by the US side;
(9) the document entitled "US File Sharing Policy" (2006. 6. 13.)
provided by the US side;
(10) the document entitled "Contemporary Damages" (June 13, 2006)
provided by the Korean side;
(11) the document entitled "Acceptable Forms of Security" (June 29,
2006) provided by the Korean side;
(12) the document entitled "Additional Material on Patents" (2006. 6.
29.) provided by the Korean side;
(13) the document entitled "Additional Material on Trademarks" (2006.
6. 30.) provided by the Korean side; and
(14) the document entitled "Geographical Indications Application
Requirements" (2006. 6. 29.).

4. Regarding the Intellectual Property Chapter in relation to the
second formal negotiations of 6-9 September 2006,
(1) the amendments to the consolidated text which were exchanged by
the two sides,
(2) the consolidated text jointly written by the two sides,
(3) exchanged documents on ISP liability,
(4) the document entitled "In Transit" (July 27, 2006) provided by the US;
(5) the document entitled "Confusingly similar border enforcement laws
and regs" (2006. 8. 30.) provided by the US;
(6) document entitled "RMI Scope USG_Final (2006. 8. 29.) provided by
the US side;
(7) the document entitled "USCBP IPR Enforcement in Foreign Trade
Zones" (August 9, 2006) provided by the US;
(8) the document entitled "Exclusive License" (2006. 8. 30.) provided
by the Korean side;
(9) the document entitled "Administrative Proceedings" (August 30,
2006) provided by the Korean side, and
(10) the document entitled "OSP TPM" (August 30, 2006) provided by the
Korean side.

5. Regarding the Intellectual Property Chapter in relation to the
fourth formal negotiations of 23-27 October 2006,
(1) Amendments to the consolidated text exchanged by the two sides,
(2) consolidated text written jointly by the two sides,
(3) the document entitled "Customs Act" (2006. 10. 16.) provided by
the Korean side,
(4) the document entitled "Formal Complaint" (October 16, 2006)
provided by the Korean side; and
(5) the document entitled "Free Trade Zone" (October 16, 2006)
provided by the Korean side.

6. Regarding the Intellectual Property Chapter in relation to the
fifth formal negotiations of 4-8 December 2006,
(1) the amendments to the consolidated text which were exchanged by
the two sides, and
(2) the consolidated text jointly written by the two sides.

7. Regarding the Intellectual Property Chapter in relation to the 6th
official negotiations of 15-19 January 2007,
(1) the amendments to the consolidated text which were exchanged by
the two sides,
(2) the consolidated text jointly written by the two sides,
(3) the document entitled "1201 Rulemaking" (2007. 1. 10.) provided by the US,
(4) the document entitled "Cases Referenced by CBP" (2007. 1. 10.)
provided by the US side;
(5i) the document entitled "Federal Acquisition Regulations” (2007. 1.
10.) provided by the US, and
(6) the document entitled "Traceable Assets Explanation" (2007. 1.
10.) provided by the US side to Korea.

8. Regarding the Intellectual Property Chapter in relation to the 7th
official negotiations of 11-14 February 2007,
(1) the amendments to the consolidated text which were exchanged by
the two sides,
(2) the consolidated text jointly written by the two sides,
(3) the document entitled "Assets traceable to the infringement"
(2007. 1. 26.) provided by the Korean side,
(4) the document entitled "Civil Procedure Act" (2007. 1. 29.)"
provided by the Korean side, and
(5) the document entitled "Geographical Indications" (2007. 1.30)
provided by the Korean side.

9. Regarding the Intellectual Property Chapter in relation to the 8th
official negotiations of 8-12 March 2007,
(1) the amendments to the consolidated text which were exchanged by
the two sides,
(2) the consolidated text jointly written by the two sides,
(3) a package deal proposed by the Korean side.

10. In relation to high level talk of 19-22 March 2007, a package deal
proposed by the Korean side on IPRs.

11. In relation to the Ministerial Meeting of 26 March to 2 April
2007, documents exchanged between the two sides concerning the side
letter for Online Piracy Prevention.

12. Documents exchanged between the two sides to discuss the issue of
patent-approval linkage for the US-Korea trade ministerial meeting of
26 October 2010.

13. Documents provided by the US and the Korean sides between 4 May
2011 and 3 June 2011, regarding the correction of the Korean
translation of the Agreement of Chapter 18.

Best,
Heesob

On Sat, 26 May 2018 at 17:48, Heesob Nam <hurips at gmail.com> wrote:
>
> On May 10th, the appeal court (Seoul High Court) upheld the lower court decision, ordering Korea government to disclose all of documents for KORUS IPR negotiation. It took three years and two months in getting this decision from my FOIA request. But the appeal court limits the scope of negotiation documents as listed in Appendix 1, which includes consolidated texts for IPR Chapters exchanged at each round and proposals for a package deal at the high level talk.
>
> The decision of Seoul High Court in original Korean text is here https://drive.google.com/file/d/1VEwf21DWnjXubXVtH07_S7Syj3ZPBOMg/view?usp=sharing
>
> Best,
> Heesob
>
> On 25 November 2016 at 17:37, Heesob Nam <hurips at gmail.com> wrote:
>>
>> Again, I'm glad to share this big news.
>>
>> Yesterday, the Korean Administrative Court ordered the Korean government to disclose all of the documents exchanged between the US and Korean negotiators for negotiating KORUS IPR Chapter. This decision was made through 9 hearings for one and half years. The documents to be disclosed include those exchanged at any unoffical or informal negotiations and at meetings held before official launch of the KORUS negotation. Court also ordered, as I requested, to disclose every negotiation documents and subsequent discussions related to the side letter on shuttiing down websites that permit the unauthorized reproduction, distributing, or transmission of copyright works.
>>
>> As for now, I have no time to translate the decision into English. If someone in this list help me, I would appreciate. Scanned copy of the decision is found here.
>>
>> https://drive.google.com/file/d/0B_JKlVyrXR0tbzR0NVNYcHEwdzA/view?usp=sharing
>>
>> Best,
>> Heesob
>>
>> On 9 December 2015 at 23:24, <hurips at gmail.com> wrote:
>>>
>>> Yes it is. So I think a parallel action is to be taken in the U.S.
>>>
>>> Best,
>>> Heesob
>>>
>>> 나의 iPhone에서 보냄
>>>
>>> 2015. 12. 9. 오후 3:10 Jane Kelsey <j.kelsey at auckland.ac.nz> 작성:
>>>
>>> > Very interesting Heesob - this confirms it is a US initiated proposal for all negotiated with it
>>> >
>>> > Prof Jane Kelsey
>>> > Faculty of Law
>>> > The University of Auckland
>>> > New Zealand
>>> > J.kelsey at auckland.ac.nz
>>> >
>>> >
>>> >
>>> >
>>> >
>>> >
>>> >
>>> >
>>> >
>>> >> On 9/12/15, 5:22 PM, "Heesob Nam" <hurips at gmail.com> wrote:
>>> >>
>>> >> As part of the information disclosure request, the Korean government
>>> >> sent me the letter between Wendy Cutler of USTR and Mr. Kim of SKG on
>>> >> the handling of negotiating documents.
>>> >>
>>> >> They agreed that "Both sides plan to hold these documents in
>>> >> confidence for three years after entry into force of the KORUS FTA."
>>> >> Scanned copy is available at
>>> >> https://drive.google.com/file/d/0B_JKlVyrXR0tQzZ5ajBxX0lIMk0/view?usp=sharing
>>> >>
>>> >> Best,
>>> >> Heesob
>>> >>
>>> >>> On 15 September 2015 at 01:00, Heesob Nam <hurips at gmail.com> wrote:
>>> >>> In April 2006, Mr. Han, then the vice-Prime Minister of the SK
>>> >>> government (https://en.wikipedia.org/wiki/Han_Duck-soo) said that the
>>> >>> US and Korea agreed not to make public every detail of the negotiation
>>> >>> for three years from the effective date of FTA (March 15, 2012). He
>>> >>> added that SK government intended to disclose it but the U.S. objected
>>> >>> and asked to keep it confidential for ten years. According to him, the
>>> >>> three years came from the Korean counter-proposal.
>>> >>>
>>> >>> When the three year period lapsed this March, I requested SKG to
>>> >>> disclose all of the information on the negotiations related to IPRs.
>>> >>> Specifically, I asked every material tabled or exchanged by the Korean
>>> >>> and the US negotiation teams during the official and unofficial rounds
>>> >>> of Korea-US FTA talks. SKG simply denied. So I filed an administrative
>>> >>> suit (like an FoIA litigation) and SGK is strongly arguing that the
>>> >>> information should not be disclosed. Their main grounds are two: it
>>> >>> would "seriously undermine national interests;" and expose Korean
>>> >>> strategy resulting in harm in future IPRs negotiations of SKG.
>>> >>>
>>> >>> In this context, I would appreciate if anyone help me concerning the followings:
>>> >>>
>>> >>> - Did the U.S. really ask details of the FTA negotiation confidential
>>> >>> for ten years? Is the non-disclosure period of three years known to
>>> >>> the US Congress and any actions of US Congress or activists?
>>> >>>
>>> >>> - Any case laws on information disclosure of details of other FTAs or
>>> >>> regional pacts (I know some material of FTAA was made public).
>>> >>>
>>> >>> - SKG argued that the US government was also requested to disclose
>>> >>> information by someone, but it was held NO. Is there any case on this
>>> >>> in the US?
>>> >>>
>>> >>> - I submitted leaked documents on RCEP and ACTA to show little risk of
>>> >>> exposing SGK's strategy in the future FTA talks. For RECP, I used the
>>> >>> link provided by Jamie (http://keionline.org/node/2239). But the judge
>>> >>> disallowed their proving power simple because they were leaked. Do you
>>> >>> know any courts or authorities recognizing their authenticity.
>>> >>>
>>> >>> Best,
>>> >>> Heesob
>>> >>
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>>
>
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