[Ecommerce] FYI CPTech Comments on FTAA

[Manon Anne Ress]

Dear Colleagues:

Please find CPTech's comments on the Second Draft FTAA text- chapter on 
IPR at the bottom of this email.

Here's a link to our FTAA page:
http://www.cptech.org/ip/ftaa/

If you filed comments and can send me a digital copy, let me know if 
it's OK to either post it on our site or link to yours.

Thanks

Manon


Manon Ress
Consumer Project on Technology
PO Box 19367
Washington, DC 20036 USA
+1.202.387.8030 • fax: 1.202.234.5176
manon.ress@cptech.org • www.cptech.org

Comments Prepared by the Consumer Project on Technology (CPTech) on the 
Second Draft FTAA Text – Chapter on Intellectual Property Rights

February 28, 2003

The Consumer Project on Technology (CPTech) is submitting these comments 
in response to the USTR request, 67 Fed. Reg. 249 (December 27, 2002) 
for written  comments on the second Free Trade Area of the Americas 
(FTAA) Draft Agreement.

CPTech is non profit organization based in Washington, D.C., advocating 
for consumer interests in matters involving intellectual property 
rights. CPTech has reviewed the second Draft of the FTAA Chapter on 
Intellectual Property Rights and is pleased to have the opportunity to 
contribute at this stage of the negotiations.

Our comments are limited to those aspects of the FTAA Chapter on 
Intellectual Property Rights relevant to consumers and users of 
intellectual property products worldwide.  The comments reflect some but 
not all of our concerns.  We will be providing more detailed comments to 
the Civil Society Committee's Open and Ongoing Invitation to the Public 
in the near future.

Specific concerns include provisions relating to 1) database protection, 
2) trademarks, 3) copyrights and 4) patents.

1)	Treaty on Database Protection: Article 5 [(m) of the General 
Provisions and Basic Principles] requires all FTAA countries to "give 
effect" to a non-existing treaty on database that has been opposed in 
the US for years in the Supreme Court (Feist Publication Inc v. Rural 
Tel. Service Co., 499 U.S. 340 (1991) and in Congress.

2)	Trademarks and Free Speech: [Article 13.1] mandates that FTAA 
countries rely on a private and unaccountable body, the Internet 
Corporation for Assigned Names and Numbers (ICANN) to resolve domain 
name disputes, including disputes with free speech implications.

3)	Copyright Term and Technological Measures

A general concern is the absence of language that would reflect our 
current domestic standards of "fair use" and the general lack of balance 
between provisions that expand right holders’ rights while not ensuring 
the public and users' access privileges.


Article [10.1 a) and b)] extends the term of copyrights. Recently argued 
at the US Supreme Court, the extension of the copyright term is still 
extremely controversial in the US.  The United States may decide to 
shorten the term and this treaty would lock us in a mistaken policy.

Obligations concerning technological measures, Article 21, incorporates 
prohibitions consistent with Title I of the Digital Millennium Copyright 
Act (DMCA) which implements in U.S. law the circumvention provisions of 
the WIPO Copyright treaty and WIPO Performances and Phonograms Treaty. 
However, the exceptions to the circumvention prohibitions consistent 
with 17 U.S.C. Sections 1201(c)-(k) are not included explicitly in the 
Draft.

With regard to copyright and obligations concerning technological 
measures, we think it's important to explore new ways of thinking about 
copyright exceptions.  In particular, the internet raises important 
questions regarding cross border uses of copyrighted materials.  The 
treaty should guarantee that every country provides minimum rights to 
the public to use materials, including for fair use.  We draw your 
attention to the current request by internet users who are blind to the 
standing committee on copyrights at WIPO to provide for minimum 
exceptions in copyright laws for materials for the blind.  Furthermore, 
it is important to ensure that those products and materials can be 
exported across borders, including via the internet.  This is needed in 
order to ensure that societies that protect the interest of the blind 
can obtain special versions of copyrighted materials for the blind in an 
economically efficient manner.  The request by groups representing the 
blind relates to the fact that copyrights are territorial and exceptions 
are voluntary by country.

In addition, the Draft does not include language that would create safe 
haven from copyright liability for Internet Service Providers (ISPs) as 
in Title II Section 512 of the Copyright Act, 17 U.S.C §512.  We are 
concerned that the impact of increased liability for ISPs will be a 
threat on users' privacy and freedom of speech.

4)	Patents

The Section 5 on Patents for inventions raises several issues:

The draft text of the FTAA permits patents on genetically modified 
organisms, incorporating various aspects of the text of paragraph 
27.3(b) of the TRIPS that states that a government can deny patents on 
plants and animals that are not microorganisms, and on fundamental 
biological processes to produce plants and animals that are not
microorganisms. However, paragraph 27.3(b) of TRIPS is itself subject to 
a debate within the WTO and subject to change.

The draft text of the FTAA would give greater protection to 
pharmaceutical companies than the TRIPS itself at the expense of public 
health by:
-limiting the use of compulsory licenses “only for public non-commercial 
ends or in situations of a declared national emergency or other 
situations of extreme urgency”
-banning the export of compulsory licensed goods
-extending the effective patent term in some cases beyond the 20 years 
granted under the TRIPS
-proposing that information relative to the safety and effectiveness of 
a pharmaceutical or agricultural product be the exclusive property of 
the patent holder for five years. It will therefore be much more 
difficult for generic producers to produce copies because they will have 
to replicate all of the tests performed by the patent holder instead of 
demonstrating the “bioequivalency” of their product.

The treaty proposes that governments link drug registration to patent 
status.  However, in the United States this provision has been subject 
to well-documented abuses.  Companies obtain questionable or weak patent 
claims to extend their monopolies inappropriately.

In addition to provisions on medicine, we have concerns about the impact 
of the patent provisions on information technologies, standard settings, 
environmental technologies, agriculture and other areas of the economy. 
  For example, proposed restrictions on compulsory licensing provisions 
in the treaty are inconsistent with compulsory licensing provisions in 
the US related to clean air and civilian nuclear energy.

We have recently asked the United States Patent and Trademark Office and 
the Federal Trade Commission to address issues relating to global 
cooperation on disclosure of patent claims relating to standards 
settings.  The FTAA could be an area where such cooperation could be 
implemented.

On November 18, 2002, we asked the Office of Management and Budget for a 
cost-benefit analysis of the scope of patent protection to determine if 
the costs outweigh the benefits in areas such as software and business 
methods. The Federal Trade Commission and Department of Justice recently 
held hearings on competition and antitrust policies addressing the same 
issues.  Considering that these issues are under examination in the 
United States, the FTAA should not force countries to embrace a broad 
scope of what can be patented.  Negotiators should embrace the language 
of Section 5 Article 1.5 [e and g] which excludes business methods and 
software from patentability.

We ask the Office of the United States Trade Representative to recognize 
the importance of free and open source software development models.  The 
treaty should facilitate and not stifle the development of free and 
open-source software.  In fact, the US Department of Defense and the 
Office of Management and Budget have both expressed interest in 
expanding the use of free software for mid-tier server, saving taxpayers 
millions of dollars and providing better security.

In conclusion, we appreciate the opportunity to comment on the Draft and 
hope that our comments raise issues that will be addressed in future 
negotiations.  We look forward to reading language that ensures a 
balance between the rights and the interests of intellectual property 
owners and consumers.

Sincerely,
Manon Ress


-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176