By Liza Porteus Viana for Intellectual Property Watch
The Office of the United States Trade Representative (USTR) last week delivered to Congress its 2008 National Trade Estimate Report (NTE), which includes many intellectual property-related challenges in 62 trading partners around the world. The report shows USTR’s plan to pursue ever-stronger IP protection with its trading partners, large and small.

Many of the report’s highlights were also included in USTR’s 2008 Trade Agenda, delivered to Congress in early March.

USTR has been seeking stronger intellectual property rights provisions in many of the free trade agreements (FTAs) pursued with various countries. For example, in 2007, USTR worked on FTAs with Peru, Colombia, Panama and South Korea; the United States-Peru Trade Promotion Agreement was implemented via legislation in Congress. Colombia agencies, for one, have extensive backlogs in the granting of patents, copyrights and trademarks. A proposed United States-Colombia Trade Promotion Agreement would include calls for state-of-the-art protections for digital products like software and music, stronger protection for US patents and test data, and criminalising end-use piracy.

”Approval and entry into force of these pending FTAs will make American goods and services more competitive in these markets, and more competitive relative to other trading partners,” US Trade Representative Susan Schwab said of Colombia, Panama and South Korea.

Some intellectual property protection success stories of 2007 include, according to USTR: lodging complaints at the World Trade Organization against China for inadequate enforcement of intellectual property rights and market access barriers to US products; including “world-class IPR provisions” in the three pending FTAs; Oman and the Dominican Republic reformed their intellectual property laws as part of the FTA process; raids of unlicensed optical disc plants in Russia; implementation of measures to reduce end-user software piracy in China; prosecutions for business software piracy in Taiwan; and seizures of counterfeit drugs in Indonesia and Nigeria.

The USTR said in 2008, the United States will continue to pursue its rights at the WTO in the cases that are still pending, and will seek additional action, as needed, to ensure China’s compliance with its WTO obligations.

This year, the United States also will pursue trade opportunities and stronger intellectual property protections in India, Israel, Taiwan, China, and Africa, among other countries and regions. An issue that it said continues to hamper US exporters in several of the sub-Saharan African countries is import bans on certain products, onerous customs procedures, corruption, and ineffective enforcement of intellectual property rights. The US also is calling on Chile to provide more patent and test data protection in the pharmaceutical sector and crack down on copyright piracy of movies, music and software. Chile is on the 2007 Special 301 Priority Watch List of countries identified by USTR as having deficiencies in intellectual property rights protection. USTR will release its 2008 list on 30 April.

Other issues highlighted by USTR include:

-The United States-Korea Free Trade Agreement (KORUS-FTA), signed last year, will provide strong intellectual property rights protections and “meaningful market access” to US providers; the United States continues to push Korea to strengthen its legal regime to protect temporary copies, and address internet service provider liability and copyright term extension, among other things.

-The US-Russia IPR Working Group meets quarterly to discuss Russia’s implementation of intellectual property-rights provisions of a bilateral agreement between the two countries; piracy in Russia reportedly resulted in losses of nearly $1.5 billion to the copyright industry in 2007. Internet piracy and trademark squatting are among the serious concerns. Russia also is on the 2007 Special 301 Priority Watch List.

-The United States has been engaging Middle Eastern countries on a variety of issues. Bilateral TIFA Councils (Trade and Investment Framework Agreement) established under TIFA agreements with countries such as Saudi Arabia, Egypt, and United Arab Emirates allow the US to work with those countries to promote market access, liberalisation of investment rules, intellectual property rights, and, where applicable, accession to the WTO. Some intellectual property enforcement has been added but more needs to be done.

-The Central American-Dominican Republic-United States Free Trade Agreement (CAFTA-DR), signed in 2004, continues to improve standards and enforcement on broad intellectual property rights issues but there is still a lack of enforcement; piracy of copyrighted materials such as audio and video recordings remains common and prosecutions are slow.

”The free trade agreements negotiated during this administration have set a new international standard for strong IPR protection and enforcement, in line with the high standards reflected in US law,” reads the 2008 trade agenda.

- Thailand, which has been under pressure from the brand-name pharmaceutical industry for its use of compulsory licences to increase availability of some medicines, was cited by USTR, which “expressed concern” about the practice and urged that it pursue policies that recognise IP rights. Some academics and activists cried foul on that message, saying it serves to undermine Thailand’s legitimate use of WTO rules that allow nations to decide for themselves when to use such licences.

Cracking the ACTA

USTR also is touting the multinational Anti-Counterfeiting Trade Agreement (ACTA) as a way to fill in enforcement gaps with the TRIPS agreement and other treaties. The language of ACTA, which was announced last fall (IPW, WTO/TRIPS, 24 October 2007), has not yet been released to the public - which has many consumer groups up in arms. USTR put a notice in the Federal Register soliciting comment on the agreement.

”Until you have economies of the world effectively cooperating together, it’s difficult to be as effective as law enforcement would like to be,” Victoria Espinel, who served as the first assistant US Trade Representative for Intellectual Property and Innovation, said last week during an intellectual property law conference at Fordham University in New York City. “It is very much the hope” of USTR and other participating countries “that more and more countries will join,” she added.

Eddan Katz, international affairs director at the Electronic Frontier Foundation, said the US “shouldn’t rush on this one.”

”In terms of combating piracy, this is the wrong instrument,” Katz said, arguing that it is ill-designed in terms of maintaining the integrity of the law and improperly puts enforcement responsibility in the hands of customs officials at airports.

Jamie Love, director of Knowledge Ecology International in Washington, D.C., argued that the US government is not being forthcoming enough on what exactly ACTA will do, since it has been more than five months since ACTA was announced and the text still has not been distributed publicly. “I think that’s also not helpful to the overall effort - the transparency issue,” Love said.

Steven Tepp, a policy planning adviser to the US Copyright Office who has been involved in some of the ACTA discussions going on at USTR, said he has been told that the document is subject to “special handling,” as it contains material dealing with other governments. “To the best of my knowledge, that document has not been given to anyone outside the US government,” he said, countering Love’s statement that some drafts have been circulated to “certain lobbying groups.”

A testy exchange erupted when Love asked Tepp - as a representative of the US government privy to some ACTA discussions - if he could meet with him to discuss the measure. Tepp agreed, until Love asked if he could bring other consumer groups and, perhaps, some media with him, so the broader public would know what’s going on.

”Jamie, please don’t manipulate it - you asked me for a meeting,” Tepp said. “I’m very happy to meet with you.”

Countered Love: “What I’m asking for, both from USTR and the Copyright Office, is to open up the process, have a meeting that is truly public.”

Katz then piped in, asking Tepp: “How big is your office? Can other people come? …There are multiple points of view.”

Liza Porteus Viana may be reached at info@ip-watch.ch.