IP in Trade Agreements: How the USTR Can Begin to End Industry Domination
IP in Trade Agreements: How the USTR Can Begin to End Industry Domination
IP in Trade Agreements: How the USTR Can Begin to End Industry Domination

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    International agreements prescribing what domestic intellectual property (IP) laws should look like have been around for a long time. However, the linkage between IP and trade is of more recent vintage. By recent I mean at least 16 old. And with this linkage comes the ability to enforce IP agreements with the threat of trade sanctions. For instance, recently the U.S. successfully brought an action against China before the World Trade Organization claiming that China’s IP policies violated the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). At the same time, IP aspects of trade agreements are increasingly affecting domestic policies. In view of these developments IP aspects of trade agreements should be formulated with a view to not only protecting the interests of rights holders but also users. Yet, as agreements like the Anti Counterfeiting Trade Agreement (ACTA) indicate, this is not current practice.

    One obscure process that allows IP owners to provide their perspective to the Office of the United States Trade Representative (USTR), that negotiates IP agreements colored as trade agreements, is the industry trade advisory committee (ITAC) system. Specifically, ITAC 15, advises USTR on IP aspects of trade agreements. Only representatives of rights holders are on ITAC 15. These representatives get to see drafts of trade agreements, like ACTA, and comment on them, while members of the public cannot.  

    Yet, IP aspects of trade agreements impact not just IP owners but also ordinary citizens. As I said in my post on ACTA, they affect our rights to enjoy and use copyrighted works. Those advocating for affordable access to medicines, explain that ACTA would impact our rights to access medicines at reasonable prices.  In view of these impacts, hearing from those affected by trade agreements is crucial to making good policy. It would lead to greater acceptance of these agreements and remove suspicions that U.S. IP policy making agencies have been captured by industry.

    To their credit, the USTR, Dept. of Commerce, and the International Trade Administration recently invited public comment on the composition of trade advisory committees. Our comments urging greater inclusion are available here.

    In our comments we urge the USTR and the Dept. of Commerce, which jointly administer ITAC 15, to open this committee up for membership to those who represent non-business interests, including public interest representatives, and representatives of user communities such as libraries, archives, and museums. The Trade Act, which instituted the ITAC system in 1974, gives the President’s designee, the USTR, the discretion to do so. While the USTR points out the Trade Act’s legislative history suggests that trade advisory committees should consist of “producing sectors of the economy”, other portions of the legislative history of the Trade Act encourage broader participation in trade advisory committee system, including participation by non-business interests.

    We hope our comments and comments filed by other public interest groups will lead to a more balanced composition of ITAC 15, one that reflects the policy that trade agreements should benefit all Americans, not just industry. We hope this comment procedure will not turn into a dog and pony show like the Special 301 proceeding.