June 19, 2003
The Honorable Charles E. Grassley
United States Senate
135 Hart Senate Office Building
Washington, D.C. 20510
VIA TELEFACSIMILE: 202-224-6020
The Honorable Max Baucus
United States Senate
511 Hart Senate Office Building
Washington, D.C. 20510
VIA TELEFACSIMILE: 202-228-3687
RE: U.S.-Chile and U.S.-Singapore Free Trade Agreements
Dear Chairman Grassley and Ranking Member Baucus:
On behalf of the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, the Special Libraries Association and the Digital Future Coalition, we appreciate the opportunity to comment on the U.S.-Chile and U.S.-Singapore Free Trade Agreements (hereafter the FTAs), which soon will be considered by Congress under provisions of the fast-track trade negotiation authority revived last year by passage of the Bipartisan Trade Promotion Authority Act. We ask that you please include these comments in the official record of the Committee’s hearing of June 17, 2003.
The American Association of Law Libraries (AALL) is a nonprofit educational organization with over 5000 members nationwide who respond to the legal information needs of legislators, judges, and other public officials, corporations and small businesses, law professors and students, attorneys, and members of the general public. AALL’s mission is to promote and enhance the value of law libraries, to foster law librarianship and to provide leadership and advocacy in the field of legal information and information policy. The American Library Association (ALA) is a nonprofit educational organization of over 65,000 librarians, library educators, information specialists, library trustees, and friends of libraries representing public, school, academic, state, and specialized libraries. ALA is dedicated to the improvement of library and information services, to the public's right to a free and open information society--intellectual participation--and to the idea of intellectual freedom. The Association of Research Libraries (ARL) is a not-for-profit organization representing 124 research libraries in the United States and Canada. Its mission is to identify and influence forces affecting the future of research libraries in the process of scholarly communication. ARL programs and services promote equitable access to, and effective use of, recorded knowledge in support of teaching, research, scholarship, and community service. The Medical Library Association (MLA) is a nonprofit, educational organization of more than 900 institutions and 3,800 individual members in the health sciences information field, committed to educating health information professionals, supporting health information research, promoting access to the world's health sciences information, and working to ensure that the best health information is available to all. The Special Libraries Association (SLA) is an international professional association serving more than 13,000 members of the information profession, including special librarians, information managers, brokers, and consultants. The Digital Future Coalition (DFC) is a unique collaboration of many of the nation's leading non-profit educational, scholarly, library, and consumer groups, together with major commercial trade associations representing leaders in the consumer electronics, telecommunications, computer, and network access industries. Since its inception in 1995, the DFC has played a major role in the ongoing debate regarding the appropriate application of intellectual property law to the emerging digital network environment.
Our organizations have worked closely with other educational, research, and consumer-oriented groups to oppose copyright policies that threaten to unduly limit access to information or to upset the traditional balance that has existed in copyright law between the rights of the content community and the rights of consumers, libraries, and the educational community. We believe that such a balance is essential to the free flow of information. With that in mind, we want to bring to your attention several aspects of the FTAs that are problematic for the library community. While this is not by any means an exhaustive list, the most important issues that we believe require serious examination by Congress are listed below.
The Copyright Provisions
The copyright sections of these agreements contain several provisions that require our strong opposition. Both the Chile and Singapore agreements require:
- that the duration of the copyright term reflect the U.S. rule of life plus 70 years instead of the international standard of life plus 50 years;
- that anti-circumvention rules be adopted which reflect the expansive provisions of Section 1201 of the Digital Millennium Copyright Act, including strong device prohibitions; and
- that the reproduction right expressly include temporary copies. Under current standards, temporary copies in RAM do not necessarily implicate the reproduction right.
The inclusion of the life +70 copyright term and the detailed anti-circumvention rules also carry the deleterious effect of locking-in current provisions of law that Congress may want to revisit. The extension of the reproduction right to temporary copies raises an even greater problem, as these provisions go well beyond the protections provided under the Copyright Act. It would have profound and far-reaching negative implications for reading and browsing, and has consistently been strongly opposed by consumers and the library and education communities. During the negotiation of the WIPO Copyright Treaty, a similar provision was proposed and ultimately rejected by the Diplomatic Conference.
We believe that a bilateral free trade agreement is a particularly poor vehicle to use to extend the scope of U.S. copyright law in such a drastic manner. By extending the scope of copyright protection well beyond what exists, even under current U.S. law, the agreements exceed the scope of legitimate trade policy beyond even the most liberal interpretation. Congress should send a clear message to the USTR that the traditional balance and concern for the interests of all stakeholders that has historically informed Congressional deliberations in the area of copyright policy is crucial when negotiating trade agreements.
Although fast-track authority has been touted as essential to free trade agreements, the cost is very high. The many benefits of Congressional oversight are lost when the President and his designees are essentially given carte blanche to make agreements quickly to benefit the U.S. position among its trading partners. Because there is no ability to amend the trade agreements negotiated by the USTR under fact track authority, Congress has a minimal role to play while the Executive Branch makes new law in many peripheral areas simply by including the provisions in an FTA.
Lack of Transparency
In addition to the power bestowed by fast-track authority, the USTR negotiates the FTAs in secret; it is not an open process. Interested parties are discouraged from commenting because there is very little publicity about the provisions themselves and because the comments sent to USTR are not readily available to anyone outside the agency. One must visit the USTR Reading Room to view comments, which are available only on certain days by appointment. While we appreciate the opportunity to comment eventually on these agreements, we would have preferred to do so at a much earlier stage in the process. Because the full text of the agreements is not made publicly available until the end of the negotiation process, the public has been effectively precluded from ongoing participation in these crucial deliberations.
Because Congress must adopt or reject the entire agreement with limited debate and no possibility of amendment, we must oppose ratification and implementation of these two FTAs. We hope that Congress will see the wisdom of removing intellectual property matters from fast-track authority at the earliest possible opportunity. It is not appropriate or in the public interest to permit far-reaching intellectual property law to be made without the benefit of public debate and Congressional oversight.
Finally, we submit that the provisions of the WTO-TRIPS agreement as well as the various treaties and conventions administered by WIPO provide an adequate institutional framework for the international harmonization of international intellectual property protection. Institutional duplication within bilateral trade agreements is both unnecessary and inappropriate. We believe that Congress should encourage the Office of the USTR to pursue the changes in international intellectual property standards within the established frameworks of WTO-TRIPS or WIPO.
Robert L. Oakley
Washington Affairs Representative
American Association of Law Libraries
Mary M. Langman
Coordinator, Information Issues and Policy
Medical Library Association
Miriam M. Nisbet
American Library Association
Prudence S. Adler
Associate Executive Director
Association of Research Libraries
Director, Public Policy
Special Libraries Association
Digital Future Coalition