From Colombia to the TPP: Calling for an End to Unbalanced IP Exportation
From Colombia to the TPP: Calling for an End to Unbalanced IP Exportation
From Colombia to the TPP: Calling for an End to Unbalanced IP Exportation

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    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.