This morning a group of nearly 70 international intellectual property academics and experts wrote to the Colombian legislature “in response to what we perceive as a hurried process to implement the provisions of the U.S.-Colombia Free Trade Agreement through amendments to Colombian law that may not fully take into account the importance of balance in a healthy copyright system.” Meanwhile, in Santiago Chile, a new, worse, trade agreement is currently being fashioned this same week.
The letter to Colombia notes that the group of experts reviewed the recently released Copyright reform bill in Colombia and “we find that many of the changes that upgrade protection for copyright go beyond what the FTA requires and are, in fact, more restrictive than U.S. law itself. Moreover, we note that Colombia’s legislators do not appear to be using this opportunity to recalibrate the balance between rights holders and other citizens by introducing flexible limitations and exceptions into national law, along with stronger safeguards for ownership.”
What is happening in Colombia this week is emblematic of the pitfalls associated with entering and implementing trade agreements with the U.S. without sufficient attention to how unbalanced the norms in these documents are.
U.S. trade policy on intellectual property is notoriously unbalanced. It seeks input almost exclusively from ‘big Hollywood’ content owners and ‘big Pharma’ brand name pharmaceutical companies during the formation of the agreements. These interests dominate the formal advising structures that have ongoing access to negotiating texts and privileged access to the negotiators themselves. There is, for example, only one internet service provider (Verizon) and one generic drug representative on the intellectual property advising committee. There are no consumer groups, health groups, libraries, educators or the many other important voices that shape domestic intellectual property policy.
The sausage that comes out of this dirty factory is predictably tainted. U.S. trade agreements seek to export a set of strong U.S.-style proprietor rights and enforcement procedures. But the agreements do nothing to export U.S.-style limitations and flexibilities in intellectual property laws that benefit other interests in our own country – interests that include free expression, access to educational materials, high technology innovation or completion from generic drug manufacturers.
While the trade agreements do not ban flexibilities in intellectual property laws, nor do they promote it. As a result, if countries signing free trade agreements with the U.S. do nothing to update their IP laws except pass the FTA requirements into their local legislation, they will put in place highly unbalanced systems that will hamper their own economic growth and social welfare as well as the market opportunities for U.S. companies – like generic drug makers and internet service providers – whose business models rely on flexible intellectual property systems.
The next flawed intellectual property agreement is being negotiated this week in Santiago, Chile. As usual, the general public has been denied access to the text of the agreement being negotiated. But the U.S. proposal has been leaked, and it is worse than all previous agreements. It demands more draconian enforcement and penalties than the highly criticized ACTA. And it contains far fewer limitations and exceptions than current U.S. law. And this in an agreement with some of the world’s poorest countries, including Vietnam, Peru and Malaysia. It is time to call a halt to this trend.
The answer to this problem is not merely to export all of U.S. law to the rest of the world, including the limits and exceptions. U.S. law was crafted through complex negotiations between U.S. stakeholders. Other countries have other stakeholders, other interests, other economies, and other social and economic frameworks.
With a presidential campaign set to begin, we should be asking tough questions about this agenda. This is especially true because the rules we use to bind other countries bind ourselves. Do we really think that the intellectual property framework we have now – including issues like incredibly high statutory damages, criminal enforcement of consumer level infringement and take downs on the internet without a court order — is the framework that is best for our current digital world, much less the one of the future? Do we want a global legal structure in which changing these U.S. domestic laws will require the renegotiation of a web of international agreements?
We should call for a moratorium on intellectual property legislative requirements in trade agreements. Trade agreements should return to setting rules of trade —like tariffs and quotas, not rules of domestic regulation, which is what intellectual property laws are. The U.S. should not be the legislature for the world, particularly through a process that fails the most elemental tests of transparency and representation.
