TYING IP TO TRADE DEALS COULD AFFECT PROGRAMMING, SPEAKERS SAY
U.S. insistence on building stringent intellectual property (IP) protections into multilateral and bilateral free trade agreements (FTAs) could have unintended consequences here and abroad, speakers said Mon. at a meeting on “Making Intellectual Property Law through Trade Negotiations?” The FTAs have become a key issue for program producers, with the MPAA seen playing a major role in the process, speakers said.
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A key problem is that the agreements expand IP protections for copyrights, trademarks and patents beyond those in U.S. law, and could harm poorer countries that lack the U.S.’s massive IP industry, speakers said. The conference, sponsored by the Consumer Project on Technology and the American U. law school Program on IP & the Public Interest, examined IP provisions of proposed FTAs with Chile and Singapore as well as the draft Free Trade Area for the Americas (FTAA) treaty.
It’s time to treat IP as “a trade commodity,” not just a “punishment tool” of the USTR, said Mark Palchick, an attorney who represents Caribbean cable TV operators. Most cable programming isn’t distributed legally in the islands because U.S. industry refuses to sell its programming there, he said. Meanwhile, he said, legitimate cable companies want to buy the programs and are being told they can’t unless they meet conditions such as bringing in only a Spanish-speaking channel.
By eliminating the possibility of compulsory licenses where there’s a market failure, Palchick said, the FTAA prevents Caribbean cable operators from bringing in more sophisticated technologies such as high-speed Internet. The lack of compulsory licenses also will hurt tourism, he said, because operators will lose many channels. Most negotiators’ “eyes glaze” when IP is discussed, he said, but it’s a commodity with a direct impact on economies negotiating FTAs. If those negotiators aren’t well trained, he said, any benefits to other countries arising from FTAs will be lost.
The secrecy in which FTAs are negotiated is another problem, several speakers said. The text is made available only after negotiations are completed, Electronic Frontier Foundation Staff Attorney Gwen Hinze said. Some stakeholders heard details of the Chile agreement only when MPAA Pres. Jack Valenti “gloated about” it, said Robert Oakley, a law prof. at the Georgetown U. Law Center. It’s “pretty obvious,” he said, that MPAA had a strong hand in getting IP language into the agreement when no one else could see it.
Congress instructed the U.S. Trade Representative (USTR) to look to U.S. law when setting international trade standards, said Jesse Feder, special legal adviser to the Register of Copyrights. The FTAs take in most of the elements of World Intellectual Property Organization treaties and require that they be implemented under U.S. law, including the Digital Millennium Copyright Act (DMCA), he said. The DMCA caused problems during FTAA negotiations, he said, when the USTR attempted to simplify its lengthy ISP liability provisions “so we could sell it” to trading partners.