WTO-GATS and the FTAA:Double Trouble for Libraries and Public

Information Services

Samuel E. Trosow Assistant Professor

University of Western OntarioFaculties of Law / Information and Media Studies

strosow@uwo.ca

November 26, 2003

General Overview

• taken together, the various WTO agreements, NAFTA, the FTAA, and the WIPO Copyright Treaties present a complex web of overlapping measures

• in many ways, the proposed FTAA combined the most troubling aspects of all of these agreements

• the apparent collapse of the full-fledged FTAA still needs to be carefully sorted out –it would be premature to declare victory and sit back

• the ultimate meaning of “FTAA-lite” is still an open question

General Overview

• Structure of the WTO• Overview of GATS and TRIPS• NAFTA• WIPO Copyright Treaty• Intermediate US bilateral and multilateral

agreements• FTAA

General Concerns to Libraries

Three general areas of concern:

1) Measures pertaining to Trade in Services2) Measures pertaining to intellectual property

(particularly copyright)3) Inclusion of NAFTA investment rules in

broader FTAA

All of these areas present important challenges for public library services and both areas are affected by the inter-relationship between the WTO agreements, the FTAA and other treaties and agreements

THE WTO FRAMEWORK

• basic framework of international trade agreements is embodied in the General Agreement on Tariffs and Trade (GATT) which was established in 1947

• framework has been amended by successive rounds of trade negotiations over the years

• prior to the conclusion of the Uruguay Round, (started in 1986 and ending with the 1994 WTO Agreement) the GATT framework only applied to trade in goods

• 1994 WTO Agreement includes annexes on trade in services (GATS) as well as for intellectual property rights (TRIPS)

THE WTO FRAMEWORK

• advent of the WTO Agreements has elevated the importance of international trade agreements into areas that were previously matters of domestic policy

• The WTO framework includes general provisions on dispute settlement and enforcement.

• GATT, GATS and TRIPS (and other annexed agreements) are subject to these same general provisions

Measures Pertaining to Trade in Services

• WTO-GATShttp://www.wto.org/english/docs_e/legal_e/26-gats.pdf

• FTAA Chapter XVIhttp://www.ftaaalca.org/FTAADraft03/ChapterXVI_e.asp

THE GATS FRAMEWORKApplies to Measures

Article I of the GATS provides:This Agreement applies to measures by

Members affecting trade in services

The term “measure” is given an expansive definition by Article XXVIII:

"measure" means any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;

THE GATS FRAMEWORK Applies to Measures

Article I (3) of the GATS provides that it covers all levels of government, including local municipalities as well as to:

non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;

• scope would include a Public Library Board established pursuant to the Ontario Public Library Act (or similar legislation in other provinces, territories or US states, etc.)

THE GATS DISCIPLINES: What is a service?

• unlike the term “measures” there is no express definition of “services” in GATS

• but the broad intent of the Agreement has been made clear in WTO decisions addressing the meaning and application of GATS.

• GATS disciplines have been given very liberal application so as to interpret the term “affecting trade in services” to include government measures which may only incidentally affect services.

THE GATS DISCIPLINESException for Government Services

there is general exception to the comprehensive inclusiveness of the GATS for services supplied in the exercise of government authority

Article 1.3(c) defines as such a service :a service supplied in the exercise of governmental authority means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.

THE GATS DISCIPLINESException for Government Services

In other words if a service is either

supplied on a commercial basis,

or

supplied in competition with one or more service suppliers

then the governmental services exemption is NOT applicable

THE GATS DISCIPLINES“Progressive Liberalization”

The long-range goal of GATS is a comprehensive set of agreements that will cover all services. GATS Article XIX provides:

In pursuance of the objectives of this Agreement, Members shall enter into successive rounds of negotiations, beginning not later than five years from the date of entry into force of the WTO Agreement and periodically thereafter, with a view to achieving a progressively higher level of liberalization. Such negotiations shall be directed to the reduction or elimination of the adverse effects on trade in services of measures as a means of providing effective market access. This process shall take place with a view to promoting the interests of all participants on a mutually advantageous basis and to securing an overall balance of rights and obligations.

Measures Pertaining to Intellectual Property

• WTO-TRIPShttp://www.wto.org/english/docs_e/legal_e/27trips_01_e.htm

• WIPO Copyright Treatyhttp://www.wipo.int/treaties/ip/wct/index.html

• FTAA Chapter XXhttp://www.ftaa-alca.org/FTAADraft03/ChapterXX_e.asp

The Internationalization of Copyright Policy

• historically, copyright policy has been a matter of national concern.

• individual countries have determined their own copyright laws based on their particular needs and conditions.

• in recent years, copyright policy has become increasingly internationalized.

Pressures towards Internationalization of Copyright Policy

• rise of digital networks that transcend borders• increased importance and scope of international

trade agreements• from trade in goods to trade in services and

intellectual property• role of information products re balance of trade

deficits• national decision making on copyright matters is

now heavily influenced by international developments.

Proliferation of International Agreements Pertaining to Copyright

• Pre 1994, Berne Agreement was sole standard international agreement

• NAFTA includes IP

• 1994 WTO Agreement includes IP

• 1996 WIPO Copyright treaties

• FTAA Draft Agreements include IP

• Other bilateral / multilateral agreements

Proliferation of International Treaties & Agreements

• Berne •FTAA•CAFTA•other bilateral FTAs

• TRIPS• NAFTA• WIPO

BerneTRIPSNAFTA

WIPO

FTAACAFTA

US - xxx

?

Beyond NAFTA

The ink was hardly dry on the NAFTA agreement before the idea of expanding the agreement throughout the Western Hemisphere was considered.

But President Clinton’s “fast-track” trade promotion authority expired in 1994.

Structure of FTAA

• Ministers Responsible for Trade exercise the ultimate oversight and management of the negotiations. They meet generally every eighteen months

• Vice Ministers Responsible for Trade constitute the Trade Negotiations Committee (TNC), which manages the FTAA negotiations process • 9 negotiating groups

• Special Committees address “horizontal issues” related to the negotiations

Trade Negotiations Committee

• selects the Chair and Vice Chair of each of the 9 negotiating groups

• guides the work of the negotiating groups and of deciding on the overall architecture of the agreement and institutional issues.

• takes overall responsibility of ensuring the full participation of all the countries in the FTAA process.

• should meet as required and no less than twice a year.

9 Negotiating Groups

• Market Access• Investment • Services • Government Procurement • Dispute Settlement • Agriculture• Intellectual Property Rights• Subsidies, Antidumping & Countervailing Duties• Competition Policy

Special Committees

• Consultative Group on Smaller Economies

• Committee of Government Representatives on the Participation of Civil Society

• Joint Government-Private Sector Committee of Experts on Electronic Commerce

• Technical Committee on Institutional Issues

Negotiating Group on Intellectual Property Rights

• Agendas and Work Plans available athttp://www.ftaa-alca.org/ngroups/ngprop_e.asp

• Objective (from San José Ministerial Declaration):

“To reduce distortions in trade in the Hemisphere and promote and ensure adequate and effective protection to intellectual property rights. Changes in technology must be considered.”

FTAA Draft Agreements • Second draft dated November 1, 2002 (supersedes first draft) full text

available athttp://www.ftaa-alca.org/ftaadraft02/eng/draft_e.asp

• text is based on a limited number of proposals and does not cover all the elements or provisions on general and institutional issues of an overall architecture of the future FTAA Agreement

• Article 1: “purpose of this Agreement is to establish a free trade area in accordance with Article XXIV of the General Agreement on Tariffs and Trade (GATT) 1994 and Understanding thereon, and Article V of the General Agreement on Trade in Services (GATS)”

• Third Draft Agreement (Nov 21, 2003) available at(November 21, 2003). http://www.ftaa-alca.org/FTAADraft03/Index_e.asp

History of FTAA

• 1st Summit of the Americas (Miami, 1994)• Miami Declaration of Principles:

http://www.ftaa-alca.org/ministerials/miami_e.asp• Plan of Action:

http://www.ftaa-alca.org/ministerials/plan_e.asp• Four ministerial meetings during the preparatory phase

(June 1995 Denver, USA, March 1996-Cartagena, Colombia, May 1997 in Belo Horizonte, Brazil, March 1998-San José, Costa Rica)

• 2nd Summit of the Americas (Santiago, 1998)• Santiago Declaration:

http://www.ftaa-alca.org/ministerials/chile_e.asp• formally launched negations• 5th Ministerial meeting in Toronto (Nov 1999)

History of FTAA

• 3rd Summit of the Americas (Quebec City, 2001)

Photos by Goran Petkovksihttp://www.contrast-photo.com/story_pgs/gp/

Ministers received a first draft text of the FTAA Agreement from the Negotiating Groups

•6th Ministerial meeting (Buenos Aires, 2001)•7th Ministerial meeting (Quito, 2002)

History of FTAA

8th Ministerial Meeting – Miami November 2003

• 8th Ministerial Declaration available at

http://www.ftaa-alca.org/Ministerials/Miami/declaration_e.asp

• Third Draft Agreement Text available at

http://www.ftaa-alca.org/FTAADraft03/Index_e.asp

• See links to news stories at

http://www.oxfam.qc.ca/html_en/press/3medias.html

FTAA-lite?

“Taking into account and acknowledging existing mandates, Ministers recognize that countries may assume different levels of commitments. We will seek to develop a common and balanced set of rights and obligations applicable to all countries. In addition, negotiations should allow for countries that so choose, within the FTAA, to agree to additional obligations and benefits. One possible course of action would be for these countries to conduct plurilateral negotiations within the FTAA to define the obligations in the respective individual areas. …”

8th Ministerial Declaration available athttp://www.ftaa-alca.org/Ministerials/Miami/declaration_e.asp

FTAA-lite?

“We instruct the Trade Negotiations Committee (TNC) to develop a common and balanced set of rights and obligations applicable to all countries. The negotiations on the common set of rights and obligations will include provisions in each of the following negotiating areas: market access; agriculture; services; investment; government procurement; intellectual property; competition policy; subsidies, antidumping, and countervailing duties; and dispute settlement. On a plurilateral basis, interested parties may choose to develop additional liberalization and disciplines. “

8th Ministerial Declaration available athttp://www.ftaa-alca.org/Ministerials/Miami/declaration_e.asp

2nd Draft Agreement: Chapter on Intellectual Property Rights

PART I. GENERAL PROVISIONS AND BASIC PRINCIPLES.PART II. INTELLECTUAL PROPERTY RIGHTS

SECTION1.TRADEMARKSSECTION 2.GEOGRAPHICAL INDICATIONS SECTION 3.COPYRIGHT AND RELATED RIGHTS[SECTION 4. PROTECTION OF [EXPRESSIONS OF] FOLKLORE]SECTION 5. PATENTS [FOR INVENTIONS][SECTION 6. [TRADITIONAL KNOWLEDGE AND ACCESS TO GENETIC RESOURCES UNDER THE INTELLECTUAL PROPERTY FRAMEWORK][RELATIONSHIP BETWEEN THE PROTECTION OF TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY, AS WELL AS THE RELATIONSHIP BETWEEN ACCESS TO GENETIC RESOURCES AND INTELLECTUAL PROPERTY][SECTION 7. UTILITY MODELS][SECTION 8. INDUSTRIAL DESIGNS][SECTION 9. RIGHTS OF BREEDERS OF PLANT VARIETIES]SECTION 10. UNDISCLOSED INFORMATION[SECTION 11. UNFAIR COMPETITION][SECTION 12. ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENSES]

PART III. ENFORCEMENTPART IV. TECHNICAL COOPERATIONPART V. [TRANSITIONAL ARRANGEMENTS] PART VI. [OTHER PROVISIONS][FINAL PROVISIONS]

Section 3: Copyright and Related Rights

Article 1. DefinitionsArticle 2. Protectable Subject MatterArticle 3. [Rights Conferred] [Economic Rights]Article 4. Right of reproductionArticle 5. Right of distributionArticle 6. Right of RentalArticle 7. [Right of Participation]Article 8. Right of communication to the publicArticle 9. Moral rightsArticle 10. Term of protectionArticle 11. Limitations and exceptionsArticle 12. [Transfer of Rights] Articles 13-20 re related rights (performances, phonograms, broadcasts)Article 21[Obligations concerning technological measures]Article 22. [Obligations concerning rights management information]Article 23. [Collective Administration of Rights][Article 24. Government use of Computer Programs]

Canada’s position on IP in the FTAA

• Canada has not yet tabled any proposals on (IP) within the FTAA negotiations.

• “Canada's immediate priority is to ensure that the current international IP rules are fully implemented, rather than to seek an extension on existing IP rights protection.”

• “Canada's goals regarding IP within the FTAA are to maintain and support the improvements achieved within the WTO while also pursuing areas of specific interest to Canada. Ongoing discussions within the FTAA”

• “ [the WTO-TRIPS agreement] establishes comprehensive global standards for IP protection largely based on several widely accepted and well established treaties regarding IP.”

• “Canada is studying what other countries are proposing in the area of IP in order to determine if any of these are in the Canadian interest. The Government is continuing to develop its negotiating position and has undertaken ongoing consultations with Canadians.”

Canada Department of International Trade & Foreign Affairs http://www.dfait-maeci.gc.ca/tna-nac/IP-P%26P-en.asp

Submissions on the FTAAIIPA supports an FTAA IPR Chapter which is a forward-

looking, technologically neutral document that sets out the most modern copyright obligations. The IPR Chapter in the proposed FTAA should contain the highest levels of substantive protection and enforcement provisions possible. In other words, this means that the IPR Chapter should, at a minimum:

(a) be TRIPS- and NAFTA-plus, (b) include, on a technologically neutral basis, the

obligations in the [WCT and WCCT] and (c) Include modern and effective enforcement provisions

that respond to today’s digital and Internet piracy realities.

http://www.iipa.com/rbi/2002_Sep23_FTAA.pdf (September 2002)

on Anti-Circumvention

“A provision must be included which tracks the WCT and WPPT obligations on making illegal the circumvention of technological measures and ensures that devices, services and components thereof are fully covered. Adequate and effective legal remedies, both criminal and civil, must be incorporated into the enforcement text. This is an essential element of a protection system that is adapted to the digital and Internet Age, where new forms of piracy are already harming the copyright-based industries.”

http://www.iipa.com/rbi/2002_Sep23_FTAA.pdf (September 2002)

on Moral Rights

IIPA supports Article 9.1 of the TRIPS Agreement which provides that the rights conferred, or derived from, Article 6bis of the Berne Convention are not applicable in the TRIPS environment. Said another way, IIPA believes that moral rights should not appear in the trade context contemplated by the FTAA. We do note, for example, that there are some FTAA countries which do include varying levels of moral rights in their domestic laws. In those circumstances, IIPA believes the laws should make expressly clear that moral rights should be waivable (or to rephrase, an author should be able to exercise his or her moral rights by consenting to acts that might otherwise violate moral rights). Such waiver is essential to provide the owner of the economic right with the ability to finance, market and update the copyrighted product. Furthermore, because we believe that moral rights are ‘personal’ rights, they should not subsist after the author’s death, nor should they be transferred to other entities, including government agencies

http://www.iipa.com/rbi/2002_Sep23_FTAA.pdf (September 2002)

Other recent and pending US agreements

In addition to the FTAA and WTO, the United States is pursuing an aggressive strategy of global trade liberalization through bilateral agreements. In the last month, the United States has launched FTA negotiations with five Central American nations (Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua); with Morocco; and with the nations of the Southern African Customs Union (SACU - Botswana, Lesotho, Namibia, South Africa and Swaziland). The United States also recently completed FTA negotiations with Singapore and Chile.

USTR Press ReleaseFebruary 11, 2003

http://www.ustr.gov/releases/2003/02/03-08.htm

USTR negotiating strategy on IP under Fast-Track Authority

19 USC 3802 (b)(4) Intellectual property.—The principal negotiating objectives of the United States regarding trade-related

intellectual property are– (A) to further promote adequate and effective protection of intellectual property rights, including

through–(i) (I) ensuring accelerated and full implementation of [TRIPS] particularly with respect to meeting

enforcement obligations under that agreement; and (II) ensuring that the provisions of any multilateral or bilateral trade agreement governing intellectual property rights that is entered into by the United States reflect a standard of protection similar to that found in United States law;

(ii) providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property;

(iii) preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;

(iv) ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works; and

(v) providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms;

Added by “Bipartisan Trade Promotion Authority Act of 2002''.Public Law 107-210, Title XXI (aka- Fast Track authorization)

US- Central America Free Trade Agreement

• includes US, Guatemala, El Salvador, Honduras, Costa Rica and Nicaragua (not Mexico or Canada)

• negotiations began in January 2003

• precursor to FTAA -- US is pushing CAFTA because of the strategic role it will play in advancing the FTAA.

if CAFTA is passed, it will establish a unified block within the ongoing FTAA negotiations . . . but draft text is unavailable

CAFTA is an impetus to the FTAA

“an FTA would lend momentum to concluding the Free Trade Area of the Americas negotiations by January 2005.”

“By moving on multiple fronts simultaneously, we create a competition in liberalization with the United States as a central driving force. This strategy enhances America’s leadership by strengthening our economic ties, leverage, promotion of fresh approaches, and influence around the world.”

USTR letter to Congress nitiating action on CAFTA http://www.ustr.gov/releases/2002/10/2002-10-01-centralamerica-house.PDF

Proposed U.S. - Central America Free Trade Agreement Fact Sheethttp://www.ustr.gov/CAFTA-FactSheet.PDF

US- Jordan Free Trade Agreement

•agreement signed on October 24, 2000 / entered into force on December 17, 2001 •Article 4 contains strong protections for IPRs (TRIPS + and WIPO +)•Article 4 section 13 sets standards for anti-circumvention rules to include broad device prohibitions•Section 10 provides temporary reproductions are subject to the reproduction right

text available at: http://usembassy-amman.org.jo/FTA/FTATxt.html

‘. . .each Party shall prohibit civilly and criminally the manufacture, importation or circulation of any technology, device, service or part thereof, that is designed, produced, performed or marketed for engaging in such prohibited conduct, or that has only a limited commercially significant purpose or use other than enabling or facilitating such conduct’

US- Singapore Free Trade Agreement

•agreement signed on October 24, 2000 / entered into force on December 17, 2001 •Article 4 contains strong protections for IPRs (TRIPS + and WIPO +)•Article 4 section 13 sets standards for anti-circumvention rules to include broad device prohibitions•Section 10 provides temporary reproductions are subject to the reproduction right

text available at: http://usembassy-amman.org.jo/FTA/FTATxt.htmlhttp://www.ustr.gov/new/fta/Singapore/consolidated_texts.htm

‘. . .each Party shall prohibit civilly and criminally the manufacture, importation or circulation of any technology, device, service or part thereof, that is designed, produced, performed or marketed for engaging in such prohibited conduct, or that has only a limited commercially significant purpose or use other than enabling or facilitating such conduct’

Valenti on the US- Singapore Free Trade Agreement

Similar to the historic U.S. Chile Free Trade Agreement that was announced in December, the U.S.-Singapore FTA again demonstrates that a trade agreement can be achieved by striking an appropriate balance between trade liberalization and the promotion of cultural diversity. By rejecting “cultural exceptions,” the negotiators prove there is adequate flexibility in trade agreements to address specific, cultural related concerns, such as Singapore’s interest in television content.We applaud the FTA’s strong provisions on intellectual property protection. From commitments such as copyright term extension to strong enforcement measures, Singapore’s unparalleled commitments lead the way for effective regulations that will set the standard for efforts to curtail optical disc piracy in Asia.We also commend Singapore for ensuring the protection of creative works in a digital economy. Singapore’s embrace of strong copyright protection provisions sets the benchmark in Asia for good protection of content online.We salute Ambassador Zoellick for his work on behalf of the American intellectual property community. We are grateful for his determination to negotiate a strong Agreement to protect America’s creative resources.”

Statement by Jack Valenti on US-Singapore FTA (Jan 17, 2003)

http://www.mpaa.org/jack/2003/2003_01_17.htm

“The US-Singapore Free Trade Agreement (FTA) represents a milestone agreement that secures market access for the U.S. filmed entertainment community.

Summary of Copyright Provisions in US-Chile Free Trade Agreement

http://www.ustr.gov/new/fta/Chile/summaries/Chile%20IP%20Summary.PDF

• “Right of reproduction encompasses temporary copies, an important principle in the digital realm.• New rights unique to the digital age, which help ensure the effective implementation of standards set out in several international agreements on intellectual property. For instance, the right of communication to the public ensures that authors, program writers, and composers have the exclusive right to make their works available online• Longer terms of protection for works and phonograms (consistent with U.S. standards and international trends) (Life + 70 for works measured by a person=s life; 70 years for corporate works)•Anti-circumvention obligations to prevent persons from tampering with technologydesigned to guard against copyright piracy and to manage access to, and compensation for, music, programs, and literary works provided over the internet, reflecting the balance attained in US law.• Requirement that that governments only use legitimate computer software, setting examples for the rest of the country• Limited liability for Internet Service Providers, reflecting the balance in U.S. law between legitimate activity and infringement of intellectual property rights.”

We are grateful to Ambassador Zoellick for his tireless efforts in negotiating this historical Agreement. He and his staff deserve the gratitude of all of us in the American intellectual property community.

Statement by Jack Valenti on US-Chile FTA (Dec. 11, 2002)http://www.mpaa.org/jack/2002/2002_12_11.htm

“The US Chile Free Trade agreement represents a landmark achievement on market access for the filmed entertainment industry . . . In stark contrast to some earlier trade agreements, this Agreement avoids the “cultural exceptions” approach, while demonstrating that a trade agreement has sufficient flexibility to take into account countries’ cultural promotion interests.

We are also encouraged by USTR’s characterization of the copyright provisions as “groundbreaking” and “state of the art.” We understand the Agreement addresses important issues from copyright term extension and the protection of digital works, to strong enforcement provisions.

Valenti on the US-Chile Free Trade Agreement

Summary of FTAs

• The US has already concluded bilateral FTAs with Jordan, Chile & Singapore

• Many others are in progress (CAFTA)• USTR indicates US will step up strategy of

using individual FTAs in the absence of a broad FTAA