I submitted the following comment to USTR in response to its Request for Comments on Negotiating Objectives for the US-Kenya Trade Agreement. The full docket (with almost 5,000 comments!) is available here: https://www.regulations.gov/docket?D=USTR-2020-0011
Michael Palmedo[1]
American University
April 28, 2020
19 USC § 4201 (b)(5) sets out the U.S.’s principle negotiating objectives in the area of intellectual property. Among these objectives are “ensuring that the provisions of any trade agreement governing intellectual property rights that is entered into by the United States reflect a standard of protection similar to that found in United States law.” U.S. copyright law balances the interests of rightholders and users of copyrighted works through copyright exceptions, including through fair use.[2]
Fair use allows many unauthorized uses of works, as long as the uses meet the four-factor test. Importantly, it allows users to make unauthorized reproductions of works for research purposes. This protection of the right to research is the focus of my comment.
U.S. negotiating objectives should be interpreted to include protection of the right to research, as it is a protection granted under U.S. law. The U.S. should negotiate language in the intellectual property chapter of the US-Kenya Trade Agreement that protects the right to research.
The Covid-19 pandemic has highlighted the need for researchers to access to the latest scientific knowledge, as well as access the underlying data. In recent months, publishers have temporarily opened access to a range of scientific publications in order to provide researchers around the world with the information they need to search for treatments and vaccines for this one grave disease.[3] But researchers’ need for access to previous scientific works is not new, and it is not temporary. When the current pandemic has run its course, researchers everywhere will still need access to the world’s stock of scientific knowledge in order to meet other challenges.
Access to knowledge goods is unequal across countries, and it is particularly lacking in the Global South. Academic libraries in developing countries have well documented shortages of journals and books, and these shortages have been tied to high prices of copyrighted works.[4] Limited access to existing works has been found to limit the output of researchers in the South,[5] and it has been found to limit research into the types of diseases most prevalent in the South.[6]
My research has found that stronger copyright exceptions for researchers is associated with greater research output. Scientists residing in countries that implement more robust research exceptions publish more papers and books in subsequent years. This relationship between copyright exceptions and publishing is stronger in lower-income countries and stronger where there is stricter copyright protection of existing works.[7]
FTA language to protect researchers’ access to needed information goods could draw from the proposed Treaty on Copyright Exceptions and Limitations for Educational and Research Activities (TERA).[8] Originally proposed at the World Intellectual Property Organization in 2018, TERA has been endorsed by 43 organizations from around the world. TERA Article 3 contains broad language requiring parties to protect the right to research.
Article 3 – Adoption of National Exceptions
1. Contracting Parties shall take all appropriate measures to respect, protect and fulfill the right to receive education and conduct research through appropriate exceptions and limitations in their national laws, consistent with their international obligations, maintaining the balance between the rights of authors and the larger public interest…
Adjacent articles clarify ways contracting parties can meet this obligation,[9] give an open list of permitted uses,[10] and specify that copyright exceptions and limitations for research “shall permit” cross border uses.[11]
U.S. trade negotiators should propose FTA text based on TERA Article 3, and perhaps the adjacent articles. In the future, a new article could be added to 19 U.S. Code § 4201 (B)(5), to include the protection of the Right to Research through U.S. trade policy, as a specific negotiating objective defined in the statute.
[1] Assistant Director for Interdisciplinary Research, Program on Information Justice and Intellectual Property, American University Washington College of Law. I make this comment in my personal capacity.
[2] 17 USC § 107
[3] As an example, see the example of Oxford University Press: https://global.oup.com/about/covid19?cc=us
[4] Bannerman, S. (2014). Access to Scientific Knowledge. In S. Bannerman, International Copyright and Access to Knowledge. Cambridge, MA: Cambridge University Press. Retrieved April 21, 2019, from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2749240; Kleyn, L., & Nicholson, D. R. (2018, October 26). The cost of accessing academic research is way too high. This must change. Retrieved June 19, 2019, from The Conversation: https://theconversation.com/the-cost-of-accessing-academic-research-is-way-too-high-this-must-change-105583;
[5] Adcock, J., & Fottrell, E. (2008). The North-South Information Highway: Case Studies of Publication Success Among Health Researchers in Resource-Poor Countries. Global Health Action. Retrieved June 21, 2019, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779915/
[6] Langer , A., Díaz Olavarrieta, C., Berdichevsky, K., & Villar, J. (2004). Why Is Research from Developing Countries Underrepresented in International Health Literature, and What Can Be Done About It? Bulletin of the World Health Organization, 82(10). Retrieved June 21, 2019, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2623037/
[7] Palmedo, M. (2019). The Impact of Copyright Exceptions for Researchers on Scholarly Output. Efil Journal of Economic Research, 2(6), 114-139. Available at http://infojustice.org/archives/41292
[8] The full text of TERA is online at http://infojustice.org/tera
[9] TERA Art. 3(2)
[10] TERA Art. 5
[11] TERA Art. 6
