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Testimony of Gigi B. Sohn
President, Public Knowledge
Before the
U.S. House of Representatives
Committee on Ways and Means
Subcommittee on Trade
July 21, 2009
Chairman Levin, Ranking member Brady and members of the Subcommittee,
thank you for giving me the opportunity to submit this statement into the
record in this hearing on behalf of Public Knowledge and the Electronic
Frontier Foundation (EFF). Public Knowledge is an advocacy organization
that seeks to ensure that copyright and communications policies promote
citizens’ access to and participation in culture and knowledge.
Electronic Frontier Foundation (EFF) is a member based digital rights
organization that focuses on defending free speech, privacy, innovation,
and consumer rights. To achieve these goals, the public’s voice
should be present in the formulation of intellectual property laws and
policies both domestically and internationally. We limit this testimony
to the intellectual property aspects of trade agreements and the process
by which they are negotiated.
Introduction
Increasingly, international obligations are influencing U.S. intellectual
property (IP) law and policies. IP chapters of many international trade
agreements adopt unsettled interpretations of U.S. law to the benefit of
rights owners and ignore the policy decisions made in our domestic laws,
which promote learning and culture by striking a balance between rights
of owners and citizens generally. While U.S. IP industries such as the
pharmaceutical industry, the motion picture industry, and the recording
industry have considerable influence in the formulation of these
agreements, the American public has very little input in the process. In
order to correct this imbalance and ensure that IP aspects of trade
agreements reflect the interests of all Americans, Congress should
facilitate greater public interest input into the process by which trade
agreements are formulated. To this end, Congress should:
- Clarify that the “fair balance” requirement of the
Federal Administrative Committees Act (FACA) requires that ITAC
15[1], or any future
IP-related ITACs, represent the interests of everyone affected
by the IP aspects of trade agreements, including non-business interests. - Amend the Trade Act to ensure that the USTR’s power to close
meetings and documents to the public does not result in all such meetings
and documents relating to intellectual property negotiations being closed
by default.
These changes would ensure that trade agreements will represent not only
the interests of intellectual property owners but also American citizens
generally.
1. Congress should clarify that the “fair balance”
requirement of the FACA means that tier 3 industry trade advisory
committees should represent interests of all affected, including
non-business interests.
The USTR and executive agencies charged with administering industry trade
advisory committees (ITACs) currently follow the policy of excluding
non-business interests from representation on tier 3
committees.[2] As a
result, ITAC 15, which deals with intellectual property issues,
overwhelmingly represents the interests of IP owners.[3]
Perhaps because of this, intellectual property chapters of many U.S.
trade agreements have tended to ignore the interests of the public and
assume international obligations that are harmful to them. For example,
the U.S.-Australia Free Trade Agreement (FTA) requires the U.S. and
Australia to grant to copyright owners the exclusive right “to
authorize or prohibit all reproductions, in any manner or form, permanent
or temporary (including temporary storage in material
form)....”.[4]
The U.S. Copyright Act does not extend protection to temporary instances
of a work that are of a transitory nature, and U.S. courts are divided as
to how non-transitory reproductions must be to implicate the rights of
copyright owners.[5]
If temporary or transitory reproduction were considered a right granted
to copyright owners, Internet Service Providers (ISPs), internet based
services such as webcasters and online music stores, and consumers would
all be exposed to liability for copyright infringement during the course
of routine activities.
Like the U.S.-Australia FTA, the proposed Anti-Counterfeiting Trade
Agreement (ACTA) raises the specter of eroding consumer rights and
subjecting ISPs to unjustified burdens in order to prevent copyright
infringement. The USTR has announced its intention to negotiate, as part
of ACTA, provisions to counter Internet-based infringements of
copyrights. In public comments filed with the USTR, content industry
groups such as the Motion Picture Association of America (MPAA) and the
Recording Industry Association of America (RIAA) have called for ACTA to
contain measures that would require ISPs to reveal information of
customers accused of copyright infringement, suspend Internet accounts of
customers accused of repeat infringement, and require ISPs to filter
their networks for infringement.[6] These measures rely on ISPs and copyright owners
making infringement determinations without judicial intervention and thus
threaten consumers’ privacy and due process rights. While
representatives of the MPAA and the RIAA, as members of ITAC 15, have the
ability to influence the design of these provisions, consumers do not.
In order to ensure balance in the views expressed by ITAC 15, consumer
and public interest advocates should be included in its makeup. The law
does not explicitly exclude public interest perspectives from the
committee, and the legislative history of the Trade Act and the FACA,
both of which govern ITAC 15, actually support their inclusion. In
enacting FACA, which applies its “fair balance” requirement
to trade advisory committees,[7] Congress intended to end industry domination of
advisory committees.[8] Similarly, in enacting certain amendments to the
Trade Act in 1979, Congress expressed its intention to broaden the
interests represented on tier 2 and tier 3 committees to include, among
others, public interest representation.[9]
Although Congressional intent is clear, the language of the Trade Act
does not provide sufficient guidance about how the “fair
balance” requirement should be applied. Consequently, as the GAO
report noted,[10]
judicial decisions on this issue do not establish conclusively that
FACA’s “fair balance” requirement applies to tier 3
trade advisory committees.[11]
In the absence of clear direction in the Trade Act, the USTR[12] and the Department of
Commerce, which are responsible for administering certain ITACs, contend
that tier 3 committees “are not generally open to non-business
interests.”[13] In order to give effect to its intention and to
promote public interest, Congress should clarify that FACA’s
“fair balance” requirement extends to all tier 3 advisory
committees. Such clarification would facilitate appointment of public
interest representatives on the tier 3 ITAC that deals with intellectual
property issues – ITAC 15.
Public interest representation at the tier 3 level is essential in
addition to public interest representation on the tier 1 and tier 2
committees. As the 2002 GAO report noted, the tier 1 committee may not
have any influence on the tier 2 and tier 3 committees.[14] Furthermore, tier 2
committees have been less active than tier 3 committees.[15] Also, tier 1 and tier 2
committees are general policy committees that will not be able to provide
focused public interest perspective on specialized areas such as
intellectual property. Therefore, a significant public interest presence
on ITAC 15 is essential to ensure that the USTR promotes IP policy that
is beneficial to all Americans.
In order to be effective, public interest representatives should not be
relegated to a small minority whose views are ignored by the
committee.[16]
While the USTR cannot be expected to adopt the views of public interest
representatives and has discretion in appointing members of tier 3
committees, Congress should seek to avoid extreme imbalances in committee
composition by providing adequate direction to the USTR. Further, there
would be greater accountability within ITAC-15 discussions if the USTR
adopted the practice of responding to all written suggestions, as well as
requiring that more written consultations occur within the consultation
process.[17]
Public interest participation would not cause many of the harms that
detractors claim it would. For instance, many industry representatives on
tier 3 committees claim that non-business representation would prevent
members of the committees from providing candid advice for fear that
non-business representatives would release sensitive information to the
public.[18] This
argument either overlooks the fact that all members of tier 3 committees
are bound to keep committee information secret, or suggests that the
advisory committee process should be based on an assumption that
non-business representatives are somehow less trustworthy than their
commercial counterparts. Industry representatives also claim that too
many differences of opinions within a committee would prevent the
committee from providing clear advice to the USTR.[19] While clarity is essential, it is
not necessarily compromised by presentation of nuanced views that account
for interests of all concerned, including the public.
2. The Trade Act should clarify that the USTR’s discretion to close
documents to the public should not result in a default rule of secrecy.
IP aspects of some trade agreements, including the ongoing ACTA
negotiations, are shrouded in excessive secrecy. Members of the public
have no access to information concerning the need for the agreement, how
it would benefit or harm them, and the specific proposals that are under
negotiation. Although the USTR has made available to the public a summary
of the ACTA negotiations, this summary does not shed any light on the
actual nature of the agreement. Furthermore, it undermines the
credibility of USTR’s stated intention to seek greater public
input.
The USTR has offered several justifications for this excessive secrecy.
First, the agency claims that secrecy is an accepted policy in trade
agreements. Second, it claims that secrecy allows exchange of views in
confidence and facilitates the negotiation and compromise that is
necessary to reach agreement on complex issues. Neither of these reasons
justify excluding the public from discussion of issues that could have
harmful consequences for them.
That secrecy is accepted policy does not, in itself, mean that it is also
in the public interest. Further, it is not the policy in many
multilateral intellectual property negotiations. For instance, the U.S.
negotiated the WIPO Copyright Treaty and WIPO Performances and Phonograms
Treaty in the open. While secrecy may permit ease of negotiation, it does
not necessarily facilitate the best outcome. While revealing certain
information, such as U.S. negotiating positions before they are tabled
before the negotiating partner, may in certain situations be
counterproductive, the same concern does not extend to all information.
Intellectual property issues do not fit neatly within trade agreements.
Yet chapters on intellectual property have been part of trade agreements
since the GATT negotiations. The justifications for secrecy that may
apply to traditional trade aspects such as tariffs do not apply to
intellectual property issues. Opacity in formulating IP aspects of trade
agreements can only harm the interests of consumers.
The USTR should release information such as meeting dates, times and
agendas; industry studies or other presentations made available to the
USTR urging adoption of certain provisions in agreements; and draft
negotiating texts after they are tabled before negotiating partners.
These examples are not exhaustive and merely suggest certain steps
towards greater transparency. Release of such information would allow the
USTR to benefit from the expertise of members of the public. Further, it
would be in accordance with provisions of the Trade Act that require the
USTR to seek input from members of the public.[20] Ultimately it would lead to adoption
of negotiating positions that reflect the interests of all Americans.
Lifting the veil of secrecy over IP aspects of trade agreements will
become increasingly important if, as the parties to this testimony
expect, the IP industries abandon multilateral IP forums like WIPO for
agreements such as ACTA. While we believe that the proper forum for an
agreement like ACTA is WIPO or a similar multilateral forum, if ACTA is
to proceed as a trade agreement, it should be subject to the kind of
transparency and public input that would attach to a multilateral IP
treaty.
Conclusion
We urge Congress to implement the recommendations made above.
Thank you for giving Public Knowledge an opportunity to submit this
testimony. We remain at your disposal to answer any questions.
Contact information of witnesses:
Gigi B. Sohn
President
Public Knowledge
1875 Connecticut Ave. NW
Washington, D.C. 20009
Email: gbsohn@publicknowledge.org
Gwen Hinze
International Policy Director
Electronic Frontier Foundation
454 Shotwell Street
San Francisco CA 94110-1914 USA
Phone: 415 436 9333
Fax: 415 436 9333
[1] ITAC 15 is the
tier 3 Industry Trade Advisory Committee that deals with IP issues.
[2] GAO,
International Trade: Advisory System Should be Updated to Better
Serve U.S. Policy Needs, GAO-02-876, p.63 (Washington, D.C.:
September 24, 2002),(“GAO Report, 2002”); ITA International
Trade Administration, Dept. of Commerce, Become a Trade Advisor,
http://www.ita.doc.gov/itac//become_an_advisor/becomeanadvisor.asp
[3] With the
exception of one public health representative, all of the
members of ITAC 15 represent IP holders.
[4] US –
Australia Free Trade Agreement, Article 17.4, January 1, 2005,
available at:
http://www.ustr.gov/trade-agreements/free-trade-agreements/australian-fta/final-text.
[5] Compare MAI
Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th
Cir. 1993); and Advanced Computer Services of Michigan, Inc. v. MAI
Systems Corp., 845 F.Supp. 356, 362-364 (E.D. Va. 1994) with
Cartoon Network LP. V. CSC Holdings, 536 F.3d 121, 127-131 (2d. Cir,
2008); CoStar Group Inc. v. Loopnet, Inc. 373 F. 3d
544, 551 (4th Cir. 2004).
[6] Greg Frazier,
Motion Picture Association of America, Re: Request For Public Comment on
The Anti-Counterfeiting Trade Agreement (ACTA), March 20, 2008,
available at: http://www.publicknowledge.org/pdf/acta/mpaa-20080320.pdf;
Neil Turkewitz, Recording Indsutry Association of America,
Anti-Counterfeiting Trade Agreement: Request for Public COmment, March
17, 2008, available at: http://www.publicknowledge.org/pdf/acta/riaa-20080317.pdf.
[7] Federal Advisory
Committee Act (5 U.S.C. App. § 5(b)(2)) (1994).
[8] Northwest
Ecosystem Alliance v. Office of the United States Trade
Representative, 1999 U.S. Dist. Lexis 21689, 20 (W.D.Wash.1999).
[9] GAO Report,
2002, supra note 2, at. 60.
[10] GAO Report
2002, supra note 2, at 3.
[11] Compare
Northwest Ecosystem, supra note 8 (finding that the “fair
balance” applied to a tier 3 committee and ordering appointment of
members representing non-business interests) with Center for Policy
Analysis on Trade and Health v. Office of the United States Trade
Representative, 540 F. 3d 940 (9th Cir. 2008)(holding
that the “fair balance” requirement is not justiciable
because it is not clearly defined).
[12] ITA
International Trade Administration, Dept. of Commerce, Become a Trade
Advisor,
http://www.ita.doc.gov/itac//become_an_advisor/becomeanadvisor.asp.
[13] 2002 GAO
Report, supra note 2, at. 63.
[14] GAO report,
2002, supra note 2, at. 7 (noting that the trade act does not
establish any formal relationship among tier1, tier 2 and tier 3
committees and does not authorize the first tier to exercise any control
over the other two); Id, at. 25 (noting that although the Trade
Act and FACA do not forbid it, the USTR and the Dept. of Commerce do not
routinely consult a cross-section of committees concerned with a
particular issue.)
[15] GAO,
International Trade: An Analysis of Free Trade Agreements and
Congressional and Private Sector Consultations under Trade Promotion
Authority, GAO-08-59, p. 55 (Washington, D.C.: November 7,
2007)(“GAO Report, 2007”).
[16] GAO Report,
2002, supra note 2, at 41.
[17] Id.
at 28, (noting that many advisory committee chairs complain that written
suggestions from their committees do not elicit a response. Also noting
that predominance of oral advice causes problems in tracking and
distributing committee advice).
[18] GAO Report,
2002, supra note 2, at. 43; Hearing on the Trade Advisory
Committee System, Before the Subcommittee on Trade of the House Committee
on Ways and Means, 111th Congress, (June 21, 2009)
(Testimony of Brian T. Petty, Chairman, ITAC 2).
[19] Hearing
on the Trade Advisory Committee System, Before the Subcommittee on Trade
of the House Committee on Ways and Means, 111th Congress,
(June 21, 2009) (Testimony of Testimony of Timothy Hoelter, Vice
President, Vice President, Government Affairs, Harley-Davidson Motor
Company)
[20] See
19 U.S.C.A. § 2155 (2006)
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