Topic for today: free trade agreements and copyright
The Free Trade Area of the Americas (FTAA) is the formal name given to an expansion of the North American Free Trade Agreement (NAFTA) to every country in Central America, South America and the Caribbean, except Cuba. Negotiations began after the completion of NAFTA in 1994 and are to be completed by the end of 2004, to be implemented in 2005.
Article 21 of the draft FTAA agreement 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 that are found in 17 U.S.C. Sections 1201(c)-(k) are not included in the Draft. Additionally, Article 8 of the draft requires each agreeing party to “grant the authors of literary and artistic works the exclusive right to authorize any communication of their works to the public by wire or wireless means, including the making available to the public of their works, such that members of the public may access them from a place and at a time individually chosen by them” — which seems to be a broadcast flag/analog hole theme. See Supplemental Comments of the American Library Association et al. on the Second Draft Consolidated Texts of the Free Trade Area of the Americas Agreement (arguing that the entire copyright chapter of the draft agreement should be eliminated because the agreement “would serve to unduly extend intellectual property rights beyond what is available under the laws of the United States”).
In an October 20, 2003 white paper, the civil liberties organization IP Justice noted that expanded criminal penalties in the treaty will send file sharers to jail throughout the Western Hemisphere and the treaty's DMCA-like provisions (without the exceptions) will limit consumers' fair use rights. The white paper concluded that “unless the draft intellectual property chapter is substantially reformed or deleted in its entirety, the treaty will grant even greater control to major intellectual property holders to chill freedom of expression, prevent competition, restrict consumer rights, and stifle innovation.” The US has already agreed to bilateral Free Trade Agreements (FTAs) with Chile and Singapore that include similar provisions — and the MPAA has had a great deal of influence on these agreements. Dugie Standeford, Trade Pacts Could Broaden IP Law and Harm Poorer Economies, WASHINGTON INTERNET DAILY, April 15, 2003.
Michael Geist has written a good storyabout this from the Canadian perspective. His quote from the Canadian Supreme Court is particularly helpful:
Noting the importance of maintaining a fair copyright balance, the Court stated that “the proper balance … lies not only in recognizing the creator's rights but in giving due weight to their limited nature . . . excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”