Limitations and Exceptions in IP and Trade Agreements

BY Ali Sternburg
March 8, 2012

The Internet is fundamental to this country’s economy, the media, security, education, and basic human rights, just to name a few.  The SOPA blackout on January 18, 2012 and its aftermath demonstrated participating websites’ commitment to balanced IP policy and the reliance of this country on these online resources.  Similarly, there has been growing backlash—particularly abroad—to international agreements like the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership trade agreement (TPP).  These initiatives at one point seemed inevitable, and many may celebrate if the ACTA agreement ultimately fails.  A better metric for success on these and future trade agreements, however, is whether all stakeholders have a say in a transparent, participatory process.

Balanced intellectual property laws and policies are essential for technology and innovation, to the companies that develop products and services and to the people that use them.  Without exceptions, limitations, and safe harbors, the risks of litigation and liability by rights holders would deter non-infringing fair uses and technological progress.  IP has always been a quid pro quo with corresponding public benefits in exchange for limited private monopolies; this includes works ultimately being granted to the public domain upon expiration of their terms, and also recognized limitations while works are still protected, such as uses encouraged by the First Amendment and free expression.  Jobs and investment in U.S. companies are dependent on exceptions to copyright law like fair use, as CCIA’s 2011 “Fair Use in the U.S. Economy” study demonstrated; other nations, such as the UKCanada and Israel are looking into developing similar exceptions.  Similarly, a 2011 Harvard studycommissioned by CCIA found that decisions around copyright scope can have significant impacts on investment and innovation, with millions of dollars more invested in the U.S. due to copyright exceptions.

While each trade agreement and multilateral treaty has tended to increase the scope and duration of intellectual property rights (with TRIPS considered “Berne-Plus” and ACTA as “TRIPS-Plus”), the presently-transpiring TPP negotiations also appear to provide an opportunity for other stakeholders, such as user-focused public interest groups and representatives from the Internet and technology industry, to propose statutory language that counterbalances expanded rights and enforcement with limitations and exceptions.

At the most recent round of TPP negotiations, CCIA has proposed flexible copyright limitations, consistent with existing U.S. law, in order to permit the smooth functioning of the Internet.  Concerns of CCIA and other interested parties that understand the Internet should be incorporated into the TPP for a more well-balanced and effective agreement.

Sen. Ron Wyden has repeatedly expressed significant concern about the transparency of the TPP and ACTA, particularly in reference to issues dealing with the Internet and IP, and he reiterated many of these concerns in the March 7, 2012 Senate hearing on The President’s 2012 Trade Agenda with Ron Kirk, the United States Trade Representative (USTR).  Wyden explained that ACTA “would hamper efforts to write laws on Internet freedom and innovation” and expressed concerns with the lack of transparency surrounding the TPP as well.

Additionally, Rep. Darrell Issa has begun an initiative to take public commentary on ACTA, just as he and Sen. Wyden had with SOPA and PIPAIssa recently called ACTA an “unconstitutional power grab begun by the Executive Branch to bypass Congress’ Constitutional authority over international commerce and intellectual property rights protections.”

Despite the lack of transparency and participation in the ACTA and TPP processes, there is an existing avenue for communication.  Industry Trade Advisory Committees (ITACs) provide a way for business leaders to interface with the USTR on trade negotiations and U.S. trade policy.  Right now there are ITACs for “Intellectual Property Rights” and “Information and Communications Technologies, Services, and Electronic Commerce,” but ideally there should be an ITAC focused more on Internet companies, due to their fundamental value to this country’s economy and trade relations.

Both ACTA and the TPP are agreements to be aware of, and may even be opportunities for more limitations and exceptions to be incorporated into IP and trade law.  At the very least, hopefully they will set the stage for all stakeholders to be more involved in future trade agreements.

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