May 282013

sean - 150x150This submission is made in my personal capacity.

The central point of this submission is that the TTIP negotiation should exclude intellectual property issues. It should exclude IP issues because the US trade policy lacks IP proposals that have the kind of broad-based support necessary to be adopted in a trade negotiation of this kind – i.e. one that is ultimately multilateral, requiring consent by a wide range of diverse countries. This is the prime lesson that should be drawn from the failure of the Anti-Counterfeiting Trade Agreement (ACTA), and the Free Trade Area of the Americas before it, as well as from the current deadlock in the Trans-Pacific Partnership negotiation. It is the prime lesson of the mounting evidence that our bilateral commitments do not contain sufficient flexibility to accommodate current proposals to amend our own intellectual property laws. US trade policy on intellectual property needs to be rethought. In the mean time, there should be a moratorium on any new efforts to negotiate IP commitments in trade forums that are not fully open, transparent and accommodating of the full range of inputs necessary to produce good policy.

I. Learning From the Failure of ACTA

It would be remiss to go into a TTIP negotiation without an adequate response to the failure of ACTA. ACTA was meant to be the first step toward the multilateralization of an international IP agenda hatched at the bilateral level. An IP chapter in the TTIP would promote the same goals. And thus any such effort must learn from the ACTA mistake.

After ACTA was declared concluded, the internet went dark over similar ideas in the United States. People in Europe took to the streets. And they remained there until governments responded. Protests followed in ParisStockholm, and, on February 11, by over 300,000 people throughout all of Europe. Hundreds of thousands of people took to the streets.

These were not protests merely reacting to an abstract idea. They were fed by close monitoring of the ACTA negotiation. Academics, including myself, analyzed leaked texts and informed the greater public about real risks from specific provisions as well as from the greater agenda. Chat rooms and bulletin boards analyzed text. Expert-led NGOs informed mass based movements and distributed information in the blogosphere.

The protests were not just by street activists. There was a public resignation by the EU Parliament’s rapporteur on ACTA, who criticized the public process as a “masquerade.” And also to the resignation of the Slovenia Ambassador to Japan who signed ACTA – who left office apologizing to her country and her children.

Legislatures considered and rejected ACTA all over Europe. By the end of February 2011, the EU states to suspend ACTA ratification included Bulgaria, Czech Republic, Slovakia, Germany, the Netherlands, Latvia, Romania, Cyprus, Estonia and Austria.

The EU commission suspended its ratification activities by referring ACTA to the EU Court of Justice to determine the extent to which the agreement encroaches on fundamental rights to access to information.

Human rights experts challenged ACTA in reports by the UN special rapporteur for Freedom of Expression as well as analysis by prominent academics.

The EU parliament ultimately rejected ACTA with over 420 no votes and just a handful of yes’s. This was a total rejection. And it was not done merely to kowtow to a street movement. It was done because the ACTA negotiators did not listen to a series of resolutions calling for ACTA to be negotiated in public, to ameliorate access to medicines concerns, to remove regulations of the internet, to create an ultimate legal structure more protective of human rights and democracy.

And so, moving into a new trade agreement with the EU, if IP is going to be on the table, then you owe the American and EU public a very important explanation – what did you learn? What are you going to do differently? Why should the internet and access to medicines advocates trust trade negotiations to reach just and appropriate outcomes on the setting of domestic intellectual property policy?

II. The present TPP Negotiation Suggests US Trade Policy has Learned Nothing

Unfortunately, the other multilateral IP agreement being conducted right now shows no evidence of any new learning have taken place since ACTA.

The TPP leaked text of US positions is much worse than ACTA on every contested issue.

  • ACTA attempted to remove ISP liability and notice and take down issues – TPP includes them.
  • ACTA removed in transit seizures of confusingly similar trade mark and alleged patent violating goods – TPP includes them.
  • ACTA carved out parallel importation from its scope – the US proposal includes bans on parallel importation even though the USTRs position on interpretation of US law was rejected by the Supreme Court in Kirtsaeng.

And the process is worse as well. ACTA released four public versions of text in the last 12 months of its negotiation – TPP is declared to be less than 6 months away from its completion and not a single word of it has been publicly shared.

III.  The Present Template Needs to Change to Accommodate US policy Change

I have been part of an academic group that has for many years criticized the US intellectual property template as being insufficiently flexible to accommodate changes in US policy to make such policy better promote the public interest in a variety of ways. We are already at the point where we can identify a number of key issues in which major parts of the policy making establishment is moving away from the FTA template model – thus requiring renegotiation of our international commitments to change our own policies. To name the most important of these:

  • The U.S. Registrar of Copyrights has testified to Congress that U.S. copyright should change should make minimum terms 50 years rather than 70, with an extra 20 year period subject to a formality. (See Librarian of Congress testimony before the Judiciary Committee, as well as her longer piece “The Next Great Copyright Act”) This policy would meet Berne and WIPO 1996 commitments, but would violate existing FTAs.
  • H.R. 107, 108th Cong (2003) proposed a fair use exception to DMCA TPM protection, which has been referred to favorably by the Librarian of Congress for consideration in U.S. Copyright reform. The White House and Senator Wyden (likely future Finance Chairman) has endorsed a permanent exception for phone network switching. The Librarian of Congress has proposed broadly reconsidering the permanent exceptions in US DMCA (Sec. 1201). WIPO Internet treaties are permissive in this regard.
  • Modification of FTA commitments on the first sale doctrine is needed to accommodate the Supreme Court ruling in Kirtsaeng. (See my statement on the ruling)
  • The United States has obtained obligations in some FTA’s, such as the U.S.-Colombia Free Trade Agreement, to prohibit adoption of statutory licensing for the retransmission over the internet of broadcast television signals. The U.S. Copyright Act currently contains such licenses for other media (i.e. cable and satellite television). Congress has held hearings on the potential desirability of similar licenses for internet service providers. Alteration of existing FTA standards is necessary to afford Congress the opportunity to address this policy matter as one of first impression.

There are also a number of important issues where the US template does not reflect policy as described by US officials. These were summarized in a letter from myself and two other of my colleagues who study copyright to USTR Kirk in September 2012. That letter highlighted a number of areas where the FTA template does not un-ambiguously embrace and protect current US policy on limitations and exceptions to copyright – including in areas of:

  • temporary copies,
  • application of the international “three step test”
  • application of investor state dispute clauses to fair use and to the scope and definition of copyright laws
  • definition of ISP safe harbors
  • and the prioritization balancing over “confining” provisions of limitations and exceptions in international law.

US trade policy needs to address these issues before it embarks on another collision course with copyright user groups in the U.S. and EU. The lesson is not that making these changes will make the US text acceptable. The lesson is that there is a problem with going to this degree of specificity in FTAs – a problem not just for other countries but for the US itself. Especially in a closed door process like this, you are bound to get some details wrong. Details that matter. Details that close off policy choices you should not close off.

We are negotiating supra national structures. These agreements operate like constitutions. And you do not see constitutions – or multilateral agreements – with the level of specificity you see in bilaterals.

The U.S.-EU High Level Working Group on Jobs and Growth, which originally proposed TTIP, noted in its June 2012 interim report that

Both sides agree that it would not be feasible in negotiations to seek to reconcile across the board differences in the IPR obligations that each typically includes in its comprehensive trade agreements.  

That statement was later dropped after lobbying by rightholders. But it was right.  This trade agreement is important for trade.  Using it as a vehicle to continue pushing a controversial and stalled IP harmonization agenda will its outcome in jeopardy.

IV. Proposals for a Better Process and Substance

There are, of course, ways that US trade policy could change to begin a committed effort to respond to the problems you now face in this area. Here are some modest proposals:

  • On process – a minimum standard should be to abide by the openness norms of the EU Parliament’s March 2010 resolution, calling for ACTA text to be shared with the public on an ongoing basis. A more inclusive process can be witnessed in the ongoing negotiation of the Treaty for the Visually Impaired being negotiated by WIPO — where NGOs can sit in on plenary negotiations and even listen to closed door meetings over a internal audio system.
  • On substance, future IP agreements need to shift its focus to enabling instead of restraining internet freedoms. There ideas out there for this. Just this year, for example, Public Knowledge announced an Internet Blueprint bill (see a blog on this topic). You can find a compendium of ideas written by over 200 international experts from 35 countries in the Washington Declaration on IP and the Public Interest. These and other sources can guide you toward substantive responses to the very valid objections that current US trade policy on IP does not represent the interests of users and innovators.