Copyright and Secrecy Don’t Make for Good Trade Agreements

Dear USTR, copyright has meaningful non-economic and social value; keep it out of the U.S.-E.U. Free Trade Agreement. If you have to have it, make sure it protects all Americans and not just large content owners. (And make the agreement transparent and inclusive while you’re at it.)


Today we filed comments about the proposed United States-European Union Free Trade Agreement – the Transatlantic Trade and Investment Partnership (TTIP). We told the Office of the United States Trade Representative (USTR) that copyright is an uncomfortable fit for a trade agreement and should be kept out of the TTIP.

If the USTR still wants to include copyright within the TTIP, it should make sure that a copyright chapter in the TTIP will not impede Congress’s ability to change U.S. copyright laws.

We also asked the USTR to break from the past and not negotiate the TTIP in secret.

Copyright is about more than economics and isn’t a good fit for trade

The purpose of trade agreements is to open markets and ensure that American producers have the best opportunity to sell their products in foreign markets. Its primary focus is thus increasing economic benefit. Its primary constituencies are companies that produce goods and services. The public is indirectly benefited when companies can make more domestically and sell more to foreign markets.

Some aspects of copyright fit well within this trade paradigm and others don’t.

The aspects that fit well relate to exclusive rights of U.S. copyright owners. Protecting these rights and improving their ability to penetrate foreign markets increases revenues for U.S. companies and that is good for the U.S. economy.

The aspect that does not fit so well within the trade paradigm, relates to non-economic aspects of copyright. These aspects promote cherished U.S. values such as free-expression and cultural enrichment. They are preserved and promoted through copyright limitations and exceptions, such as fair use. These exceptions allow others to use copyrighted material to comment on and criticize popular cultural products. For instance, fair use allows electoral candidates to use news clips of their opponents in creating their own campaign videos.

Limitations and exceptions, however, also promote economic benefit. For instance, fair use allows search engines, such as Google, to copy entire web pages in order to function. Fair use allows you to copy your song from a CD to an MP3 player and it allows companies to make those MP3 players. The USTR routinely overlooks this aspect of copyright.

So, overall the trade paradigm is an uncomfortable fit for copyright because it is just not suited to consider non-economic, social values. Furthermore, many existing international institutions, such as the World Intellectual Property Organization (WIPO) are better suited to deal with copyright. So, we don’t need trade agreements to deal with international issues raised by copyright.

However, if the USTR decides to have a copyright chapter in the TTIP, that chapter must reflect the purpose of the copyright system. It must provide for limitations and exceptions, just as it provides for protection of exclusive rights. This approach will ensure that countries will confidently introduce new limitations and exceptions within their copyright laws without fear that doing so will put them out of compliance with international treaty obligations.

Try an inclusive approach; secrecy is deeply flawed

Remember ACTA – the Anti-Counterfeiting Trade Agreement? The USTR and the EU authorities negotiated ACTA in secret. They ignored public interest concerns as they negotiated ACTA. Public interest representatives had an impact on ACTA mainly because texts leaked throughout the negotiating process and public interest representatives presented analyses of these texts and raised concerns about various issues. ACTA’s secrecy was a big factor in its downfall in Europe.

In our comments, we urged the USTR not to repeat that mistake with the TTIP. Ignoring public interest concerns will only hurt the legitimacy of the process. It will also prevent public interest representatives from providing their expertise and perspectives to the negotiators. These perspectives are essential for a balanced agreement.

We don’t know what a possible copyright chapter of the TTIP will look like.

The U.S. and E.U. governments have hinted that they might not follow the model of the past for intellectual property issues (copyright is part of these issues). This may be because of the significant differences in U.S. and E.U. copyright policies. While we hope that there will be no copyright chapter at all, if there is one, it should promote the interests of all Americans and not just copyright owners. 

Image by flickr user ALDEADLE Alliance of Liberals and Democrats for EU.

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