The U.S. Trade Representative (USTR) recently called for comments on the upcoming trade negotiations with Taiwan. 46 comments were submitted from a wide range of groups. The full docket is available here. The following excerpt from the Computer and Communications Industry Association (CCIA) below stresses the importance of copyright exceptions to the digital economy. The full CCIA comment is here.

k. Copyright rules for emerging technologies.

A flexible copyright regime is necessary for the continued growth of the digital economy. Principles such as fair use are a cornerstone of U.S. copyright law, and industries that rely on this right are a significant contributor to the U.S. economy and exports. CCIA released a report in 2017 on the economic contribution of fair use industries which found that these industries account for 16 percent of the U.S. economy and generate $5.6 trillion in annual revenue. Fair use is also critical to activities central to new areas of innovation and cutting-edge technology such as artificial intelligence and text and data mining.[45]

A balanced copyright regime with appropriate limitations and exceptions is also what Congress intended when it granted the prior Trade Promotion Authority (TPA) in 2015. TPA provides that the principal negotiating objectives of the United States should include promoting intellectual property in a way that facilitates legitimate digital trade.[46] Committee reports from Congress contained identical language elaborating on this mandate, specifically recognizing thattrade agreements should “foster an appropriate balance in copyright systems, inter alia by means of limitations and exceptions consistent with the internationally recognized 3-step test.”[47] USTR has also noted that the United States “seeks . . . the commitment of our free trade agreement partners to continuously seek to achieve an appropriate balance in their copyright systems, including through copyright exceptions and limitations.”[48]

Additionally, mandated technological protection measures (TPMs) are a frequent inclusion in U.S. trade agreements. Corresponding statutory exceptions to these anticircumvention measures are a critical component of these provisions. Consistent with USMCA, any TPM provision should include exceptions to anti-circumvention that are consistent with U.S.C. § 1201, including § 1201(f) on reverse engineering and interoperability, in providing limitations and exceptions to TPMs.[49]

To the extent copyright considerations are included in the U.S.-Taiwan Trade Initiative discussions, the United States should secure commitments that reflect U.S. law on limitations and exceptions, and that will foster innovation in emerging technologies.[50]

45 European Alliance for Research Excellence, The Global AI Race (June 2018), http://eare.eu/assets/uploads/2018/06/Global-AI-Race.pdf.

46 Section 102(b)(5)(A)(ii) of the Bipartisan Congressional Trade Priorities and Accountability Act of 2015.

47 S. Rep. No. 114-42, at 17 (2015), available at https://www.congress.gov/114/crpt/srpt42/CRPT114srpt42.pdf.

48 OFFICE OF THE U.S. TRADE REP., The Digital 2 Dozen (2017), https://ustr.gov/sites/default/files/Digital-2-Dozen-Updated.pdf

49 USMCA, supra note 13, art. 20.H.11.

50 There are policy discussions taking place on the role of Internet services in the new content distribution process, and some have called for payment to news publishers through ancillary copyright protections or through competition related measures. CCIA opposes such measures as a way to support the sustainability of the news industry. Industry is monitoring developments in Taiwan on potential policy options being presented this year. The United States Copyright Office recently concluded as part of a study that “ancillary copyright protections have not been shown to be necessary in light of publishers’ existing rights” and that “to the extent that any ancillary copyright protections would lack traditional copyright limitations and exceptions . . . would raise significant policy and Constitutional concerns”. U.S. COPYRIGHT OFFICE, Copyright Protections for Press Publishers (June 2022), https://www.copyright.gov/policy/publishersprotections/202206-Publishers-Protections-Study.pdf at 2. Competition related proposals such as those pursued by Australia through the News Media and Digital Platforms Mandatory Bargaining Code have raised trade concerns. See The Dangers of Australia’s Discriminatory Media Code, DISRUPTIVE COMPETITION PROJECT (Feb. 19, 2021), ), https://www.project-disco.org/21st-century-trade/021921-thedangers-of-australias-discriminatory-media-code/.