Regional/Bilateral Trade Negotiations with the United

States on Copyright and Related Rights

Manon Ress

CPTech

July 22, 2004

Bogotả, Columbia

US Trade Policy

• In August 2002, the U.S. Congress enacted the “Bipartisan Trade Promotion Authority Act of 2002,” providing simplified “fast tract” congressional ratification procedure, that limits review of negotiated agreements, and a new Trade Promotion Authority (TPA) to pursue a parallel track of bilateral, regional and multilateral trade negotiations.

• The USTR has focused on bilateral and small regional agreements to set norms.

• The USTR selects FTA condidates who are eager to obtain market access to the US, and are willing to largely accept US positions on intellectual property issues.

• In the area of copyrighted goods, the US is focused on the “digital agenda,” following an agenda set by lobbies representing the music, motion picture, software and publishing industries.

Trade Policy (2)

• In the area of international copyright negotiations, US trade associations and Individual firms like Time-Warner or Microsoft play an important role in shaping policy.

• The International Intellectual Property Alliance (IIPA) is the group that is most responsible in the US for the annual 301 list on copyright issues. Its members include:

– Association of American Publishers (AAP)– AFMA (formerly the American Film Marketing Association)– Business Software Alliance (BSA)– The Entertainment Software Association (ESA)– The Motion Picture Association of America (MPAA)– Recording Industry Association of America (RIAA)

• The Bush Administration very agressively supports these copyright owners. John Kerry has criticized Bush for not being tough enough on intellectual property issues in trade negotiations.

US Trade Objectives for Intellectual Property Protection in the Digital Age*

(A) Ensure accelerated and full implementation and enforcement of the TRIPS.

(B) Ensure that any trade agreement governing intellectual property rights that is entered into by the U.S. reflects a standard of protection similar to that found in United States law.

(C) Provide strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property. Recommended adoption of the two new WIPO Internet treaties.

(D) Ensure that standards of protection and enforcement keep pace with technological developments, and in particular ensure that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media and to prevent the unauthorized use of their works.

*Source: “The Digital Trade Agenda of the U.S.: Parallel Tracks of Bilateral, Regional and Multilateral Liberalization,” Sacha Wunsch-Vincent, Institute for International Economics, Washington D.C.

Negotiating Objectives of US trading partners

• Many countries do not table their own copyright texts or agendas.

• Most developing countries have conceded on the main US objectives regarding enforcement, longer terms, and technological protection measures.

Style of negotiations

• US asks for many provisions– offers little negotiating time.

• Lack of transparency is tactic.– US industry has deep access to negotiating texts

(which they often prepare).– Domestic industries and constituencies in non-

US trading partners or US consumer interests rarely have access to texts.

What to expect from USTR on copyright and related rights?

• Benchmarks– TRIPS+, WCT/WPPT+, Chile+, CAFTA+ – Morocco is the new benchmark for copyright chapter

• Main features– Implement of WCT and WPPT– Accept 70 year term of copyright protection– Strong technological protection measures– Ban on parallel imports, limits on compulsory

licenses, narrowing grounds for exceptions– Tough and potentially costly enforcement obligations– Subject all TRIPS+ copyright measures to dispute resolution

Chile Morocco

WCT/WPPT No Yes

Terms Life plus 70 Life plus 70

Technological Protection Measures

Article 17.7(5) actual knowledge standard. No obligation to mandate changes in design of consumer electronics.

Any circumstance

Anticompetitive practices Nothing in this Chapter prevents a Party from adopting measures necessary to prevent anticompetitive practices . . from the abuse of the intellectual property rights

No mention

Parallel trade Permitted Not permitted

Compulsory licenses Explicitly permitted for broadcasts of phonograms

No compulsory licenses of TV signals on the Internet

ChileFootnote 17

Article 17.7(3) permits a Party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws which have been considered acceptable under the Berne Convention. Similarly, these provisions permit a Party to devise new exceptions and limitations that are appropriate in the digital network environment. For works, other than computer software, and other subjectmatter,such exceptions and limitations may include temporary acts of reproduction which are transient or incidental and an integral and essential part of a technological process and whose sole purpose is to enable (a) a lawful transmission in a network between third parties by an intermediary; or (b) a lawful use of a work or other subject-matter to be made; and which have no independent economic significance.

• Morocco– No such

provision

What to ask for in the negotiations over copyright

Part 1 – Traditional Provisions

Provide a good preamble

• IPR chapters with preambles– Chile

• IPR chapters without preambles– Australia

– Morocco

– CAFTA

– Bahrain Draft

– Singapore

– FTAA Draft

Accession to Treaties

• WCT/WPPT– First, oppose automatic accession in general

provisions– If access is discussed, propose

• Transition period

• Require independent evaluation and study of appropriate implementation in developing countries

• Build in review mechanism to determine the impact on the public

Copyright terms• Propose NAFTA term

– Canada has 50 years

• If USTR wants life plus 70 years, propose– Registration formalities and levies after TRIPS/Berne

term of 50 years, • Protecting the works that are most important commercially• Creating fund from levies to compensate local creators/artists• Permitting the public to have access to works not registered after

50 years

– Nothing in that provision [clause] shall prevent the government from subjecting the exercise of copyright extended term to conditions set by an appropriate governing body.

Technological Measures• Insist on standard of actual knowledge of circumvention in connection with liability

for circumvention of a technological protection measures.• Incorporate a legislative or administrative review and exemption process that permits

exemptions to be granted for both the act of circumvention and the tools necessary to do so (as in the US and EU).

• Provide a general, legitimate purposes exception to both the act of circumvention and the tools prohibition.

• Limit criminal and monetary liability for scientific research and educational purposes (see Chile)

• Permit flexibility to exclude civil and criminal liability for innocent infringers (Chile)• No criminal or civil liability for non-profit libraries, archives and educational

institutions (in Chile and in the US)• Incorporate a robust "no mandate" provision to facilitate technological innovation.

See in the US section in 1201(c )(3) which was inserted in to the DMCA to provide that nothing in section 1201 shall require that the design of, or design and selection of parts and components for a consumer electronics, telecommunications or computing product, must respond to any particular TPM, so long as the part or component or product is not otherwise banned under the "tools" ban.

Regarding TPMs

• "It is not a violation of this section to circumvent a technological measure in connection with access to [only relevant where an access right has been created ], or the use of a work if such circumvention is done to allow a use that is permitted by law’. [this would even be in compliance with the WCT art. 11]

• It shall not be a violation of this section to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work.’’

Control of anticompetitive practice

From TRIPS, Article 40Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices.

From Chile/US FTANothing in this Chapter prevents a Party from adopting measures necessary to prevent anticompetitive practices . . from the abuse of the intellectual property rights

Limitations and Exceptions: coherence with other international obligations

Nothing in this agreement shall prevent a party from adopting limitations and exceptions that further the purposes of the:– 1948 Universal Declaration of Human Rights, particularly

Articles 19, 25, 26 and 27.

– 1966, International Covenant on Economic, Social and Cultural Rights (ICESCR)

– 2000, United Nations Millennium Declaration

– 2001 UNESCO Universal Declaration on Cultural Diversity.

– 2003 UNESCO Recommendation concerning the Promotion and Use of Multilingualism and Universal Access to Cyberspace

– 2003 UNESCO Charter on the Preservation of Digital Heritage.

Limitations and Exceptions II

Nothing in this agreement will prevent parties from creating limitations or exceptions that promote the effective use of– distance education tools, – technologies to expand access to information for the

visually impaired,– non-commerical listserves and discussion groups,– Internet searching tools, – academic archiving for historical purposes

provided such measures are consistent with obligations under the TRIPS Agreement.

What to ask for in the negotiations over copyright

Part 2 – Less Traditional Provisions

Support for Open Journals

• The parties agree that agencies that manage public funded R&D will provide mandates or incentives for government funded researchers to publish results in open journals

Promote open file formats for essential client software

• The parties agree to require as a condition of government software procurement, word processing, presentation graphics and spreadsheet programs be required to save data in open, public, standards compliant file formats

Cooperate on open standards for internet protocols

• The parties agree to undertake a work program to facilitate mechanisms to require disclosure of intellectual property claims on proposed standards for internet protocols.

Least Privacy Restrictive Implementation

• The Parties agree to implement the digital rights management provisions in a manner that is least harmful to personal privacy.

Software licenses

The Parties agree that provisions in standard form non-negotiated licenses for mass market software products do not prevent consumers from exercising the limitations and exceptions recognized in copyright statutes.

It is important to change the dynamics of the negotiations on

copyright related issues

How to change the dynamics• Change the topic• Change the policy framework• Bring in new stakeholders

– Open source/Free software community– Open journal movement– Google and other search engine company– Handicapped– Libraries and educators– Privacy activists– Internet Standards Organizations– Human rights and development groups

For more information

Manon Ress

Manon.ress@cptech.org

http://www.cptech.org

voice +1.202.387.8030

fax +1.202.234.5176