The following is a guest blog post by Sean Flynn, Associate Director of the Program
on Information Justice and Intellectual Property, American University
Washington College of Law.
Monday morning a group of nearly 70 international intellectual property academics and
experts wrote to the Colombian legislature “in response to what we perceive as
a hurried process to implement the provisions of the U.S.-Colombia Free Trade
Agreement (FTA) through amendments to Colombian law that may not fully take into
account the importance of balance in a healthy copyright system.”
letter specifically notes that the group of experts reviewed the recently
released Copyright reform bill in Colombia and
“we find that many of the
changes that upgrade protection for copyright go beyond what the FTA requires
and are, in fact, more restrictive than U.S. law itself. Moreover, we note that
Colombia’s legislators do not appear to be using this opportunity to
recalibrate the balance between rights holders and other citizens by
introducing flexible limitations and exceptions into national law, along with
stronger safeguards for ownership.”
full letter is available here.
is happening in Colombia this week is emblematic of the pitfalls associated
with entering and implementing trade agreements with the U.S. without
sufficient attention to how unbalanced the norms in these documents are.
trade policy on intellectual property is notoriously unbalanced. It seeks input
almost exclusively from ‘big Hollywood’ content owners and ‘big Pharma’ brand
name pharmaceutical companies during the formation of the agreements. These
interests dominate the formal advising structures that have ongoing access to
negotiating texts and privileged access to the negotiators themselves. There
is, for example, only one internet service provider (Verizon) and one generic
drug representative on the intellectual property advising committee. There are
no consumer groups, health groups, libraries, educators or the many other
important voices that shape domestic intellectual property policy.
sausage that comes out of this dirty factory is predictably tainted. U.S. trade
agreements seek to export a set of strong U.S.-style proprietor rights and
enforcement procedures. But the agreements do nothing to export U.S.-style
limitations and flexibilities in intellectual property laws that benefit other
interests in our own country – interests that include free expression, access
to educational materials, high technology innovation or completion from generic
drug manufacturers. While the trade agreements do not ban flexibilities in
intellectual property laws, they
do not promote it either. As a result, if countries signing free trade
agreements with the U.S. do nothing to update their IP laws except pass the FTA
requirements into their local legislation, they will put in place highly
unbalanced systems that will hamper their own economic growth and social
welfare as well as the market opportunities for U.S. companies – like generic
drug makers and internet service providers – whose business models rely on
flexible intellectual property systems.
next flawed intellectual property agreement is being negotiated this week in
Santiago, Chile. As usual, the general public has been denied access to the
text of the agreement being negotiated. But the U.S. proposal has been leaked,
and it is worse than all previous agreements. It demands more draconian enforcement
and penalties than the highly criticized ACTA. And it contains far fewer
limitations and exceptions than current U.S. law. And this in an agreement with
some of the world’s poorest countries, including Vietnam, Peru and Malaysia.
is time to call a halt to this trend. The answer to this problem is not merely
to export all of U.S. law to the rest of the world, including the limits and
exceptions. U.S. law was crafted through complex negotiations between U.S.
stakeholders. Other countries have other stakeholders, other interests, other
economies, and other social and economic frameworks.
a presidential campaign set to begin, we should be asking tough questions about
this agenda. This is especially true because the rules we use to bind other countries
bind ourselves. Do we really think that the intellectual property framework we
have now – including issues like incredibly high statutory damages, criminal
enforcement of consumer level infringement and take downs on the internet
without a court order — is the framework that is best for our current digital
world, much less the one of the future? Do we want a global legal structure in
which changing these U.S. domestic laws will require the renegotiation of a web
of international agreements?
should call for a moratorium on intellectual property legislative requirements
in trade agreements. Trade agreements should return to setting rules of
trade —like tariffs and quotas, not rules of domestic regulation, which is what
intellectual property laws are. The U.S. should not be the legislature for the
world, particularly through a process that fails the most elemental tests of
transparency and representation.