July 29, 1998 comments by CPT, EFF, EPIC, Netaction and National Writers Union to USTR regarding FTAA negotiations, on intellectual property and information policy.

July 29, 1998

Ms. Gloria Blue
Executive Secretary
Trade Policy Staff Committee
Office of the U.S. Trade Representative
Rm. 501, 600 17th St., NW
Washington, DC 20508

Ms. Blue:

We are writing to provide comments to help U.S. trade negotiators determine the objectives for the initial September 1998 negotiations of the Free Trade Area of the Americas (FTAA). Our organizations represent the interests of citizens, consumers and authors. We present 13 points that will assist the U.S. negotiations team in ensuring that the intellectual property and electronic commerce provisions of the treaty protect creators and consumers, while promoting competition and innovation, while avoiding anticompetitive practices.

Comments for the Working Group on Intellectual Property

1. The Internet and other digital information technologies pose new issues for copyright and neighboring rights.
2. Legislation to protect copyrights or neighboring works should seek solutions that are least invasive of personal privacy.
3. Legislation to protect copyrights or neighboring works should avoid barriers to the development of new information technologies.
4. Avoid problems associated with overbroad patent or copyright protection, and anticompetitive barriers to the development of interoperable works.
5. Legislation to protect copyrights or neighboring works should protect non-commercial and commercial fair use. Countries should be given wide latitude to define fair use rights for educational and research purposes, including non-commercial distance education programs.
6. Efforts to protect "sweat of the brow" investments in databases should not create ownership of facts, create excessive levels of marketing exclusivity, authorize anticompetitive licensing practices, or exclude fair uses of data.
7. Efficient development of information technologies are enhanced by policies which promote interoperability of computer and telecommunications software and hardware.
8. Competition authorities should discourage anticompetitive software licensing practices and other monopolistic practices.
9. Mass market "shrink-wrap" or "click-on" licenses should not be permitted to include anticompetitive provisions. For example, mass market licenses should not be permitted to contain restrictions on reverse engineering, nondisclosure clauses, or restrictions on the use of the product that stop the customer from creating a competing product (except to the extent that this use would involve copying some of the product to an extent that would exceed normal fair use limits).
10. Trademark, copyright or other intellectual property rights should not be used to discourage criticism, parody, or free speech.
11. Mass market licenses should not be permitted to ban the consumer from expressing grievances against the product.
12. Copyright should not be extended to government documents and data.
13. Legislation to protect copyrights should preserve and enhance the moral and economic rights of individual authors, as distinct from large content owners.

Signed,

Consumer Project on Technology (CPT), http://www.cptech.org

Electronic Frontier Foundation (EFF), http://www.eff.org

National Writers Union (UAW Local 1981), http://www.nwu.org/nwu/

Electronic Privacy Information Center (EPIC), http://www.epic.org

NetAction, http://www.netaction.org

Excerpts from the 1996 Federal Trade Commission staff report, Anticipating the 21st Century: Competition Policy in the New High-Tech, Global Marketplace.

[s]hrinking product lifecycles and the increasing global character of high-tech competition, in combination with expanded Intellectual Property protection, creates a situation to warrant a closer examination to ensure that companies do not wield their IP rights to stunt competition." (pg. 233.)

. . .

Some participants expressed concern that overbroad copyright scope might either create disincentives for, or erect roadblocks against, follow- on innovation. One computer industry representative found overbroad copyright scope "harmful to progress because software, more than anything, is a series of inventions piled on top of each other."[*] Another emphasized that broad copyright scope can create a risk of "overcompensation" in the sense that "[a]n author or inventor with too broad a monopoly over a work can seek compensation from authors of inventors of [*] works, driving up the cost of such works, [and ultimately] resulting in fewer works being produced."[*]

. . .

"[Computer industry representatives] suggested that broad scope [of copyrights] could thwart efforts to enhance interoperability, which would in turn impact the growth of computer networks, the anticipated source of substantial innovation in the near term.[*] Some [representatives] suggested that the owner of a software copyright should be prevented from enforcing its copyright as to the interface, especially once that interface has become a standard,[*] or they advocated compulsory licensing of interface standards that dominate the market.[*]