In 2002, Congress passed the Bipartisan Trade Promotion Authority Act, thereby restoring the President's fast-track trade negotiation authority. This authorization includes intellectual property within its scope, and over the past year, the Office of the United States Trade Representative (USTR) has been negotiating a series of multilateral and bilateral trade agreements that contain extensive intellectual property chapters. While several rounds of negotiations are ongoing (the Free Trade Area of the Americas (FTAA) and the U.S.-Central America Free Trade Agreement (CAFTA)), two important bilateral agreements, with Chile and Singapore, have been concluded and are awaiting Congressional approval.
Over the past few years, AALL has worked closely with the American Library Association and other educational, research, and consumer-oriented groups to oppose these types of expansionary copyright policies because they threaten to limit access to information and because they unduly tilt the traditional balance that has existed in copyright law towards the rights of the content community at the expense of consumers as well as the library and educational communities.
Copyright Provisions in the Agreements
The AALL Copyright Committee has studied the copyright sections of these agreements and has concluded they contain several provisions that require our strong opposition to the intellectual property provisions. Both the Chile and Singapore agreements require:
- that the duration of the copyright term reflect the U.S. rule of life + 70 years instead of the international standard of life + 50;
- 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. These agreements actually extend the scope of copyright protection well beyond what exists even under current U.S. law. This extension of the reproduction right to temporary copies would have negative implications for reading and browsing, and has consistently been strongly opposed by the user community. A similar provision was proposed and rejected as part of the WIPO Copyright Treaty.
The inclusion of the life + 70 copyright term and the strong version of the anti-circumvention rules not only impose a U.S.-centric version of copyright policy on our trading partners in the developing world, but also "locks-in" bad copyright policies at the domestic level. If these provisions are included in international trade agreements, it will be very difficult to convince Congress to revisit these policies or provide needed relief to the user community from some of their harshest applications.
Limiting Fast-Track Authority
Beyond the U.S.-Chile and U.S.-Singapore Agreements, there are several other agreements on the horizon that will raise many of the same problems. The USTR has stated that the Chile and Singapore Agreements are models for future agreements including CAFTA and ultimately the FTAA.
AALL believes that there are already a sufficient number of international copyright treaties and conventions that provide adequate standards for the protection of intellectual property. We are deeply concerned that the expansive language in the FTAs seeks to raise the level of copyright protection in several instances above and beyond the international standards under the Berne Convention for the Protection of Literary and Artistic Works (Berne) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) annexed to the agreement establishing the World Trade Organization. We are also concerned that any unnecessary institutional duplication of this framework will only increase complexity and uncertainty. At the same time, any departures from the Berne-TRIPS standards in terms of particular provisions, especially as part of an international trading agreement with independent enforcement mechanisms, should be viewed with extreme caution.
Unfortunately, Congress does not have the ability to amend trade agreements negotiated by the USTR under fast track authority. Each agreement must be adopted or rejected in whole. For this reason, AALL opposes the ratification and implementation of the U.S.-Chile and U.S.-Singapore Free Trade Agreements.
The House Ways & Means and Senate Finance Committees have begun hearings on these trade agreements, and Congress likely will vote on them before the summer recess. Please contact your member of Congress and your Senators and urge them to:
- reject the ratification and implementation of the U.S.-Chile and U.S. Singapore Free Trade Agreements when they are presented for an up or down vote; and
- remove intellectual property matters from fast-track authority at the earliest opportunity.
Thanks for your help,
Keith Ann Stiverson, Chair
AALL Copyright Comm.
Mary Alice Baish
Associate Washington Affairs Rep.