30 international intellectual property law professors from around the world filed a brief in the U.S. Supreme Court today in ABC v. Aereo. Aereo is being accused of being directly liable for copyright infringement by supplying equipment for a remote DVR service that allows consumers to record and play back free-to-air television programming. The brief responds to arguments made by IFPI et al and some other amici supporting ABC that international copyright law — including the Berne Convention, WIPO Copyright Treaty and several Free Trade Agreements — control the case. This brief argues that international law is not controlling, but rather leaves countries free to hold that Aereo’s equipment only facilitates private copying by consumers.
Yesterday, I was nominated by the Program on Information Justice and Intellectual Property for membership on the Industry Trade Advisory Committees dealing with Chemicals, Pharmaceuticals, Health/Science Products and Services (ITAC 3), Intellectual Property Rights (ITAC 15) and the Public Interest Trade Advisory Committee (PITAC). I was swiftly rejected by the coordinator of the ITACs because “Academic institutions, unless trading in educational services, do not qualify for ITAC membership.”
This comment is submitted on behalf of the undersigned legal academics. We are members of the Project on International Intellectual Property and the Public Interest, coordinated by the Program on Intellectual Property and the Public Interest (PIJIP). We write to provide the following comments on the Public Interest Trade Advisory Committee (PITAC) proposal.
The United States Trade Representative (USTR) recently announced that it would not seek sanctions against Ukraine following its designation as a Priority Foreign Country in the Special 301 process last year. The notice states that the USTR sticks by its finding that “certain intellectual property rights (IPR) acts, policies, and practices of Ukraine are unreasonable and burden or restrict United States commerce and are thus actionable under section 301(b) of the Trade Act of 1974, as amended (Trade Act).” But it is not taking action “[i]n light of the current political situation in Ukraine.” There is another reason USTR is not taking any action – sanctioning Ukraine or any other World Trade Organization member under Special 301 would violate the WTO.
The USTR recently issued two notices seeking membership applications for its Trade Advisory Committee System. One notice seeks “Industry” advisors and another seeks those for a new “Public Interest” committee. Each notice announces that the Committees will be established “[p]ursuant to the Federal Advisory Committee Act, as amended (5 U.S.C. App.).” The Committees also operate under Charters which state that the Committees will be operated “in accordance with the provisions of the FACA, . . . with the exceptions set forth in the Trade Act.” That last line, it turns out, is key. The Trade Act gives USTR broad authority to exempt the operation of these committees from FACA open government requirements, which USTR uses habitually. One positive reform of the system would be for USTR at its discretion — or for Congress through the force of law — to apply all of the provisions of FACA to USTR’s advisory committees — just as would apply if these committees were being consulted on rule making by any other federal agency.
We thank and appreciate the interest of the office of the United States Trade Representative (USTR) in allowing us to participate in the Special 301 hearing. We remain hopeful that our impartial, expert contribution to the process will assist the USTR’s efforts in assessing the legality of India’s intellectual property protections under binding international law and determining whether it is being deployed in an illegal protectionist manner against U.S. right holders.
USTR demands for hyper-secrecy in the Trans Atlantic Trade and Investment Partnership (TTIP) continue to be a major block to continuing negotiations. The current issue under discussion is access to US proposals by EU member states — which are of course themselves sovereign countries. The member states are demanding access to the text of proposals that would constrain their domestic law making, as they ave had in all other EU trade agreements (e.g. the recent EU-Canada FTA). But Inside US Trade (2/28/2014) reports that USTR Froman has offered only that “he might be able to allow the European Commission to share the U.S. negotiating documents it receives if they were accessible only in a secure reading room.”
United States Trade Representative Froman announced yesterday that his agency will create a public interest trade advisory committee (PITAC) for academics and NGOs as part of the trade advisory committee structure. But instead of including public interest representatives within Industry Trade Advisory Committees, USTR has accepted the proposal of industry representatives to segregate non-industry views into a separate committee.
Srividhya Ragavan (University of Oklahoma College of Law), Brook Baker (Northeastern University School of Law), and Sean Flynn (American University Washington College of Law) submitted the following statement to the International Trade Commission (ITC) Investigation No. 332-543 on Trade, Investment, and Industrial Policies in India: Effects on the U.S. Economy. The ITC will hold a public hearing on this investigation on February 13, 2014.
[Cross posted from CCUSA, Link (CC-BY)] Much of what we hear about the globalization of copyright law around the world does not favor users. The dominant trend of lengthening terms, increasing criminalization and “deterrent” penalties and expanding third party liability has the intent and effect of privatizing more and more of the public domain. But one trend moves in the opposite the direction – the recent shift toward a global expansion of fair use.
The term “fair use” is often used to refer the specific limitation and exception to copyright contained in the US Copyright Act, 17 U.S.C. § 107. But it has also come to have a broader meaning
Sean Flynn, American University Washington College of Law, 202-274-4157, email@example.com
Margot Kaminski, Yale Law School, firstname.lastname@example.org
David Levine, Elon University School of Law, 336-279-9298, email@example.com
The release of a Trade Promotion Authority bill yesterday, including provisions to increase Congressional oversight of the trade negotiation process, is a welcome sign that Congress may be preparing to increase its oversight over international trade, including trade laws that alter or restrict our domestic intellectual property laws. Unfortunately, the bill does not go far enough to ensure public transparency and participation, and does little to ensure that the products of such negotiations promote the public interest.
Researchers, scholars and policy specialists from over 40 countries drafted and endorsed a declaration of Fundamental Public Interest Principles for International Intellectual Property Negotiations that are starkly at odds with some trade agreement negotiations.
The Principles were adopted at the Third Global Congress on Intellectual Property and the Public Interest which met in Cape Town, South Africa December 7-13, 2013. The principles are strongly critical of the process and presumed substance of the negotiation of intellectual property provisions in the ongoing Trans Pacific Partnership (TPP) and US-EU Transatlantic Trade and Investment Partnership (TTIP).