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March 22, 2011
Assistant U.S. Trade Representative for Intellectual Property and Innovation
Office of the United States Trade Representative
600 17th Street NW
Washington, D.C. 20508
Dear Mr. McCoy:
The undersigned appreciate the opportunity to provide comments on the Transpacific Partnership (TPP) Agreement. We limit our comments to the intellectual property (IP) chapter of the TPP. We understand that your office has submitted a draft text of the IP chapter, a copy of which has leaked on the Internet. The leaked text reveals an approach to IP protection similar to the approach taken during the course of negotiating the Anti-Counterfeiting Trade Agreement (ACTA). Proposed controversial provisions in that agreement caused significant resistance to ACTA among your negotiating partners, led to opposition by the public and the Internet and consumer electronics industries, and caused significant delays in conclusion of an agreement. These controversial provisions proposed extreme measures to protect IP to the detriment of the rights of third parties. In order not to repeat these mistakes, the TPP's IP chapter should be balanced and should include limitations and exceptions that foster trade not only in IP products, but also products and services of the Internet and consumer electronics industries. It should also secure citizens’ rights to participate in culture and democratic discourse. In addition, the agreement should reflect a balance between the need for effective enforcement of IP rights on the one hand and fair process and respect for the interests of third parties on the other. As you move forward with the negotiations, we urge you to call for modifications to the U.S. proposed text in order to achieve such a balance.
To illustrate how the TPP may incorporate the above-mentioned principles, we attach our own proposed discussion draft text. This draft draws on language in the Korea-U.S. Free Trade Agreement (KORUS), the Transpacific Strategic Economic Partnership Agreement (P4), and U.S. law. Below is an explanation of key provisions in the draft:
Technological Protection Measures
Article 5 of the chapter on Copyrights and Related Rights in the attached draft calls for “adequate legal protection and effective legal remedies against the circumvention of” technological protection measures (TPMs). This Article mirrors Article 11 of the WIPO Copyright Treaty (WCT), which binds the U.S. and some of the TPP countries. In contrast to current U.S. law and some Free Trade Agreements (FTAs) to which the U.S. is a party, this draft does not require a blanket ban on circumvention, enumeration of a narrowly defined set of limitations and exceptions, or treatment of circumvention as a separate offense. This minimalist approach is necessary considering the U.S.’s experience with the operation of its TPM provisions, also called the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). These provisions have resulted in several instances of suppression of free speech, stifling of fair use and other lawful uses, and prevention of competition. For example, threats of DMCA lawsuits have prevented researchers from promptly revealing that TPMs contained on certain media would expose user devices to security vulnerabilities; TPMs on DVDs have prevented users from using clips from popular movies and television shows in order to make fair uses; and the TPM on Apple’s music delivery platform iTunes has prevented users from playing music downloaded from iTunes on devices not supported by Apple’s proprietary software. Exceptions to this blanket ban on circumvention are too narrow and fail to address these concerns. In contrast, the WCT’s approach, followed in Article 5 of our draft, provides adequate protection for TPMs while also preserving the right to make lawful uses of content protected by TPMs.
Limitations and Exceptions
A robust limitations and exceptions regime is essential to promote access to information, foster free speech, and promote innovation. In order to achieve these goals, limitations and exceptions to copyright should permit certain unauthorized uses of copyrighted works by libraries, educators, and people with disabilities. In addition, they should also permit fair uses of copyrighted works. Article 6, paragraph 2 of the chapter on Copyrights and Related Rights in our draft secures these uses by calling for mandatory limitations and exceptions for these purposes. These limitations and exceptions are recognized in current U.S. law and also the laws of some TPP countries. Additionally, Article 6, paragraph 3 of the same chapter proposes permissive limitations and exceptions that would allow countries to craft laws to ensure that the monopoly granted by copyright is not abused or exercised in a manner that defeats the purpose of copyright limitations and exceptions.
The undersigned believe that enforcing IP laws is important. However, enforcement mechanisms should employ fair procedures, be proportionate to the wrong committed, and consider the rights of third parties. With a view to secure these values our draft proposes that the TPP reserve criminal sanctions only for willful trademark counterfeiting and willful copyright infringements on a commercial scale. In addition, we propose that the TPP not contain extensive seizure and forfeiture provisions. Such provisions could ensnare goods and services with only a tangential connection to infringement. Their codification in international agreements would prevent domestic legislatures from remedying such a result. Also, extensive and detailed enforcement provisions would hamper the ability of other TPP countries to design enforcement regimes that suit their domestic needs.
Liability of Internet service providers
The Internet and services provided via the Internet are crucial to the functioning of modern economies and democracies. This basic infrastructure can function only when Internet service providers (ISPs) are not saddled with responsibility for the illegal acts of their subscribers, including infringements of IP. Yet ISPs can in some instances help reduce IP infringements. In order to protect IP owners while also taking account of these factors and following the approach taken in U.S. law, Article 5 of the chapter on Enforcement of IP Rights in our draft suggests that TPP countries limit the liability of these intermediaries for infringements occurring on their networks. The provision requires TPP countries to consider the effect of the infringement on the copyright owner as well as the burden of implementing the remedy on the intermediary. Furthermore, it acknowledges the fact that technology in this area is evolving rapidly and that the effects of liability limitation regimes on various actors have not been studied thoroughly. Therefore, provisions in our draft are general and seek to preserve the flexibility of TPP countries to craft more detailed provisions as they feel necessary.
Thank you for considering our views. We remain at your disposal to answer any questions you may have regarding the content of or reasoning behind this text.
Special Libraries Association
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