1. INTRODUCTION AND OVERVIEW
The United States manages its trade policy on a comprehensive basis. The U.S.
government arrives at particular objectives, and then seeks to advance them through any
tool available -- whether negotiations at the level of the World Trade Organization
(WTO) or enforcement of WTO rules, or through bilateral trade talks or other
negotiations. In no area is this more true than intellectual property, which is a top priority
concern in all trade negotiations and the subject of special governmental initiatives.
This briefing note seeks to provide readers, particularly in developing countries, with an
introduction to how the United States develops and conducts trade policy in the area of
intellectual property (IP). Its focus is especially on U.S. policymaking and negotiations
related to bilateral and regional trade agreements, as well as the conduct of trade policy
outside of the realm of global multilateral institutions, the WTO foremost among them.
This focus reflects a sense that, although there are still significant substantive and
political challenges in ensuring more balanced participation in multilateral intellectual
property discussions, the greater and more urgent challenges for developing country
governments and civil society are in the realm of regional and bilateral negotiations.
The briefing note describes both formal and informal processes by which trade and IP
policymaking and negotiations are conducted. Understanding both elements of the
policymaking process is vital.
The formal processes indicate opportunities for civil society input to urge more balanced
perspectives in U.S. trade and IP postures. Understanding the formal rules is also crucial
to gain insight into the sequencing of trade and IP policymaking, and at what points civil
society may be able to exert leverage on behalf of a more balanced IP perspective.
The informal processes, however, are at least as important. It is not controversial to say
that IP rights holders, and especially the brand-name pharmaceutical and copyright holder
industries (foremost among them, software, film, music and publishing), exert enormous
influence over all aspects of U.S. trade and IP policy. They do employ formal channels,
but their ability to fundamentally shape U.S. trade and IP policy depends as much on
their informal relations with both the Executive Branch and the U.S. Congress.
Part Two of this briefing note examines U.S. trade and IP negotiating objectives and
strategy. The broad outline of U.S. trade and IP policy is contained in key trade
legislation, the 1974 Trade Act and the 2002 Bipartisan Trade Promotion Authority
(TPA) Act. The TPA Act establishes as a matter of law that U.S. trade negotiators shall
urge enhanced IP protection and enforcement, and work to obtain IP standards in other
countries that are comparable to those in the United States.
U.S. trade policy is coordinated and carried out by the Office of the U.S. Trade
Representative (USTR), an office within the Executive Office of the President. USTR
generally views its mission as expanding export and investment opportunities for U.S.
firms, and effectively views industry as its client. Although differences sometimes arise
1
between USTR and IP industries, USTR works very closely with industry, especially the
brand-name pharmaceutical companies and copyright-holding industries, in developing
and carrying out IP-related trade policy. Indeed, in many cases, the thinly staffed USTR
relies on industry to provide detailed information about circumstances in other countries.
One mechanism by which industry is able to provide information and advice to USTR is
the agency's extensive network of advisory committees. Although civil society has
pushed for an expanded presence on these committees, its role has been very limited.
Participants on the committees indicate they are an important way to maintain access to
USTR.
Bilateral and regional FTAs are only a component of the comprehensive effort of USTR
to enhance IP protections and enforcement. Part Two concludes by examining other
elements of the U.S. strategy to ratchet up IP protections, including the use of the
"Special 301" process.
Part Three of the briefing note examines what goes on in the United States as its
representatives undertake FTA negotiations. U.S. trade law requires that USTR consult
with both Congress and the public in advance of negotiations commencing. Civil society
representatives are able to testify at USTR hearings in advance of trade negotiations.
While negotiations are underway, or at least in advance of the ratification process, key
Congressional committees regularly hold public hearings on negotiations. While few civil
society representatives are likely to testify at any such hearings, there are often
opportunities for the public to submit comments. U.S. law also requires that the U.S.
International Trade Commission (ITC) issue an assessment of the impact of an FTA
before Congress ratifies it. The ITC holds public hearings as part of its assessment
process, at which the public (including civil society representatives from outside the
United States or representatives of overseas business interests) is able to testify. The
ITC's assessment mandate, however, is to focus only on the impact of an FTA on the U.S
economy.
Part Four of the briefing note looks at the precise mechanism by which Congress ratifies
FTAs. Under TPA, a process known as "fast track" is employed. Under fast track,
Congress must consider an FTA and implementing legislation for approval within 90
days of presentation by the President. Congress is prohibited from amending the
implementing legislation, and formal debate on the FTA and implementing legislation is
strictly limited. These requirements constitute a major forfeiture of Congressional
authority. Although the counterbalance under TPA is supposed to be that Congress is able
to provide meaningful input during the negotiation process (thanks to the required
mechanisms of consultation), in practice TPA shifts power considerably to the executive
branch. By contrast, consideration of a trade preference program (the African Growth and
Opportunity Act) that was enacted without fast-track rules shows how Members of
Congress might be able to intervene strategically to advance a more balanced IP agenda - if they retained authority to do so.
2
Part Five of the briefing note highlights the fact that U.S. pressure for more stringent IP
protection and enforcement continues even after an FTA is ratified. This part examines
the Guatemala experience under the U.S.-Dominican Republic-Central American Free
Trade Agreement (CAFTA-DR), where the U.S. refused to commence the trade deal until
Guatemala had acceded to its aggressive IP-related implementation demands.
Part Six concludes the briefing note, drawing lessons for developing country negotiators
and civil society organizations, in both the United States and developing countries. It is
important that an understanding of U.S. processes inform the strategies of developing
country negotiators. Foreign governments will generally not be able to participate
robustly in U.S. consideration of trade deals or development of negotiating strategy. They
may, however, be able to coordinate efforts with allies in civil society, including civil
society allies in the United States, who are able to work to affect U.S. objectives and
strategies -- in pursuit of more balanced IP provisions and objectives.
3
2. U.S. TRADE AND IP NEGOTIATING OBJECTIVES AND STRATEGY
2.1. U.S. IP NEGOTIATING OBJECTIVES
The overarching negotiating objectives of the United States in trade negotiations are
established in very general terms in the omnibus trade law known as the Trade Act of
1974.1
More specific negotiating objectives are contained in the Bipartisan Trade Promotion
Authority Act of 2002 (TPA Act), which establishes the framework for how the United
States shall conduct trade negotiations and for what purposes. In the sphere of intellectual
property, TPA establishes a goal of enhancing IP enforcement and ratcheting up IP
protections in U.S. trading partners.
The specific TPA objectives related to intellectual property include:
* Full and rapid implementation of the World Trade Organization's TRIPS Agreement;
* Inclusion in bilateral trade agreements of IP provisions that "reflect a standard of
protection similar to that found in United States law;"
* Providing strong IP protections related to emerging technologies;
* Preventing discrimination in provision of IP protections;
* Providing IP protections to prevent unauthorized use of works via the Internet or other
digital technologies;
* Providing for strong IP enforcement;
* Securing non-discriminatory market access for U.S. IP rights holders; and
* Respect for the Declaration on the TRIPS Agreement and Public Health, adopted by the
World Trade Organization at the Fourth Ministerial Conference at Doha, Qatar on
November 14, 2001.2
Congress passed the TPA Act in 2002, and provided that it shall remain in force through
June 2007.
Passage of TPA was very controversial, reflecting widespread public discontent with the
effect of free trade agreements on the U.S. economy. The very hard-fought U.S. political
dispute over TPA turned primarily on domestic issues. Proponents acknowledged that
there are domestic losers from international trade, but contended that the nation benefits
overall. Opponents said the agreements are crafted to benefit multinational corporations,
and hurt citizens and the environment in both the United States and its trading partners.
Although the TPA debate was primarily about domestic issues, environmental and
especially access-to-medicines groups sought to use the opportunity to raise the issue of
how strengthened IP protections would impact trading partners in the developing world.
1
2
19 USC 2102
19 USC 3802(b)(4)
4
Many such groups urged a "no" vote on TPA. Some groups worked to amend the TPA
legislation to at least modify the IP-related demands that the United States would make of
trading partners. It is from this latter effort that the negotiating objective of respecting the
Doha Declaration on the TRIPS Agreement and Public Health emerged. That objective
was added during Senate consideration, as an amendment introduced by Senator Edward
Kennedy. There is reason to question the ultimate impact of that amendment, given the
other objectives in the TPA Act and subsequent U.S. practice in trade negotiations, but it
evidenced at least some room for maneuver for civil society.
Industry, however, had a much greater role in crafting the trade negotiation objectives.3
The House of Representatives first voted on TPA in December 2001, and the TPA debate
overlapped with WTO debates over the TRIPS Agreement (which ultimately led to the
Doha Declaration). In the run-up to the vote, many Members of Congress pushed
positions urged by the pharmaceutical industry, insisting that the U.S. should insist on
expedited compliance with TRIPS, rather than any measures that would enhance its
flexibilities4 -- a posture that was reflected in the TPA legislation. Generally, it is fair to
say that the pharmaceutical and copyright industries had a major hand in the drafting of
the TPA legislation.
For all parties, however, more important than the objectives included in TPA was
whether Congress would pass TPA -- whatever the law formally stated, it was generally
understood that the President would make enhanced IP protection a key component of the
trade deals negotiated.5
Particularly because trade issues are so closely contested in the United States, the
Congressional legislative process is often not as transparent as it might be. This
significantly limits the influence of citizen groups, who generally cannot match the
insider access available to industry lobbyists. In the case of TPA, the House of
Representatives and the Senate passed different versions, as commonly occurs with U.S.
legislation. The differing versions then went to "conference committee," where
representatives from the House and Senate negotiate a compromise version to be
considered by both chambers -- the two chambers must pass identical versions of a bill
before it goes to the President for approval. Both political parties are represented in the
conference committee, but in recent years the Republicans (who now control both houses
of Congress) have effectively closed the process and limited the Democrats' role. In the
case of TPA consideration, this gave the pharmaceutical industry, which is very
influential with Congressional Republicans, good access, and at one point led to the
jettisoning of the Kennedy amendment (as well as a number of other amendments
3
See "A Fairer Trade Bill" (editorial), New York Times, July 25, 2002, p. A16.
See, for example, letter from Representatives Ellen Tauscher and Pete Sessions to USTR Robert Zoellick,
draft available at <http://lists.essential.org/pipermail/ip-health/2001-October/002103.html>
5
See, for example, the statement from the International Intellectual Property Alliance after TPA approval.
"We can now move forward more effectively in our joint efforts to achieve strong intellectual property
rights protection and, particularly, enforcement worldwide and to secure non-discriminatory market access
for all U.S. creative products," said IIPA President Eric Smith. STATEMENT OF IIPA PRESIDENT ERIC
H. SMITH, August 7, 2002, available at
http://www.iipa.com/pressreleases/2002_Aug7_IIPA_TPA_press_statement.pdf
4
5
favored by the Democrats), though the Kennedy amendment was ultimately included.
6
2.2. THE ROLE OF THE OFFICE OF THE U.S. TRADE REPRESENTATIVE
Trade agreement negotiating authority is lodged with the Office of the U.S. Trade
Representative, which functions as an office within the Executive Office of the President
(as opposed to as an independent department).6 The U.S. Trade Representative is
appointed by the President and confirmed by the Senate. By statute, USTR is charged
with primary responsibility for developing and implementing U.S. trade policy and
conducting international trade negotiations.
The USTR is a small agency within the federal government, but widely viewed as one of
the most effective and aggressive. USTR leads discussions within the executive branch
on all trade issues, and is subordinate only to the White House.7 USTR is typically not
sensitive to conflicts with the missions of other agencies (in regard to the environment, or
health policy, for example), and typically does not defer to these agencies when conflicts
do arise. Even consultation with other agencies, especially agencies that do not have
commercial purposes, may be limited.
USTR essentially understands its mission to be the advancement of the interests of U.S.
export industries. These industries are effectively viewed as clients -- sometimes
unreasonably demanding clients, but clients nonetheless. USTR does not completely
adopt the positions urged by industry trade associations, but it is very responsive to their
recommendations, which are provided through formal and informal channels. It is very
important to understand this institutional orientation and the associated culture at USTR,
for these factors are in many ways more important than the particular directives provided
by Congress through mechanisms such as establishment of trade negotiating objectives.
Nonetheless, direct pressure on USTR by public interest advocacy groups can affect the
positions it pursues. Environmentalists have sensitized the agency to the effects of trade
agreements on a range of environmental questions, and as a result, there has been some
nod to environmental concerns in U.S. trade agreements. Similarly, the agency has
responded to pressure on the access to medicines issue. Told in the mid-1990s that the
lives of millions of African consumers might hinge on USTR IP policy demands, a USTR
6
19 USC 2171
The broadest determinants of U.S. trade policy are established by the White House and leading
administration officials on economic policy. In terms of the details, however, USTR dominates the process.
There are a variety of statutorily created interagency groups that are designed to coordinate trade policy,
including the Trade Policy Staff Committee and the Trade Policy Review Group, but USTR chairs and
directs these interagency groups. Agencies involved in these two working groups are: Council of Economic
Advisors, Council on Environmental Quality, Department of Agriculture, Department of Commerce,
Department of Defense, Department of Energy, Department of Health and Human Services, Department of
Interior, Department of Justice, Department of Labor, Department of State, Department of Transportation,
Department of Treasury, Environmental Protection Agency, Agency for International Development,
National Economic Council, National Security Council, Office of Management and Budget, U.S.
International Trade Commission (non-voting member). See
<http://www.ustr.gov/Who_We_Are/Executive_Branch_Agencies_on_the_Trade_Policy_Staff_Committee
_the_Trade_Policy_Review_Group.html>.
7
7
official responded, "we don't work for African consumers."8 Such a comment would be
never be uttered today (and indeed that official went on to change his views to a
considerable extent), and the policies advocated by USTR have changed somewhat to
reflect this sensitization.
8
See James Love, "Notes From Meeting with USTR on Intellectual Property and Healthcare," July 30,
2006, available at <http://lists.essential.org/1996/pharm-policy/msg00034.html>
8
2.3 THE ADVISORY COMMITTEES ON TRADE
The 1974 Trade Act requires the USTR to establish a series of advisory committees as a
means of "consult[ing] with representative elements of the private sector and the nonFederal governmental sector on the overall current trade policy of the United States."9
The private sector is defined as including business but also labor and environmental and
consumer groups. The consultation with civil society is supposed to cover all aspects of
U.S. trade policy, including trade negotiating objectives, implementation of trade
agreements and, very broadly, "important developments in other areas of trade for which
there must be developed a proper policy response."
The Trade Act requires USTR to establish an Advisory Committee for Trade Policy and
Negotiations (ACTPN), which looks broadly at U.S. trade policy. The ACTPN is known
as the tier-one advisory committee. The Act also authorizes establishment of other
advisory committees. Tier-two committees focus on particular policy areas, and include
the Trade and Environment Policy Advisory Committee (TEPAC), the Intergovernmental
Policy Advisory Committee (IGPAC), the Labor Advisory Committee (LAC) and the
Agricultural Policy Advisory Committee (APAC). Tier-three committees are known as
Industry Trade Advisory Committees. There are 13 USTR-administered Industry Trade
Advisory Committees -- covering Aerospace Equipment; Automotive Equipment and
Capital Goods; Chemicals, Pharmaceuticals, Health/Science Products & Services;
Consumer Goods; Distribution Services; Energy and Energy Services; Forest Products;
Technologies, Services and Electronic Commerce; Non-Ferrous Metals and Building
Materials; Services and Finance Industries; Small and Minority Business; Steel; Textiles
and Clothing; Customs Matters and Facilitation; Intellectual Property; and Standards and
Technical Trade Barriers. There are also six agricultural-related Industry Trade Advisory
Committees that USTR co-administers with the Department of Agriculture.
As of July 2006, the members of the Intellectual Property Industry Trade Advisory
Committee are: [note: this list from USTR has at least one mistake and must be checked]
* Eric H. Smith, President, International Intellectual Property Alliance (committee chair)
* Jacques J. Gorlin, President, The Gorlin Group (vice chair)
* Catherine P. Bennett Vice President, Federal Tax and Trade Policy Pfizer, Inc.
* Hope H. Camp, Jr., Consultant, Law Offices of Hope H. Camp, Jr., P.C., Representing
Eli Lilly and Company
* Susan K. Finston, Associate Vice President for Intellectual Property, Pharmaceutical
Research and Manufacturers of America
* Morton David Goldberg, Partner Cowan, Liebowitz & Latman, P.C.
* Francis (Frank) Z. Hellwig, General Counsel, Anheuser-Busch Companies,
* Dr. Joseph Anthony Imler, Director, Public Policy, Merck & Company
Inc.
* Mary A. Irace, Vice President, Trade and Export Finance, National Foreign Trade
Council, Inc.
9
19 USC 2155
9
* Jeffrey P. Kushan, Trade Counsel, Sidley, Austin, Brown & Wood LLP, Representing
Biotechnology Industry Organization
* Shira Perlmutter, Vice President and Associate General Counsel, Intellectual Property
Policy, Time Warner Inc.
* Timothy P. Trainer, President, International AntiCounterfeiting Coalition
* Neil I. Turkewitz, Executive Vice President, International Recording Industry
Association of America
* Herbert C. Wamsley, Executive Director, Intellectual Property Owners Association
* Deborah E. Wiley, Senior Vice President, Corporate Communications, John Wiley and
Sons, Inc., Association of American Publishers, Inc.
As is evident from the membership of the intellectual property committee, public interest
voices are scarcely represented in the USTR advisory committee system.
A number of civil society organizations in the United States, led by the Center for Policy
Analysis on Trade and Health (CPATH), have worked in recent years to gain public
health representation on the USTR advisory committees. Previous lawsuits by
environmental groups have led to environmentalists being added to some of the Industry
Trade Advisory Committees (just one environmental representative on each committee),
and CPATH and others have sued USTR to demand public health interests be similarly
represented. But although USTR created a space on one committee for a tobacco control
representative, the agency has resisted the CPATH suit, and in June 2006 prevailed in
U.S. district court.
Although the normal rule for U.S. advisory committees is that they operate openly, USTR
has decided that the advisory committees shall function in secret, on the grounds that they
discuss and gain access to U.S. negotiating strategies that should remain confidential. As
CPATH notes,
The USTR can authorize advisory committees to operate in a transparent,
public manner. For a number of years, however, the USTR has chosen to
impose a blanket closure rule, requiring that advisory committee members
maintain complete confidentiality regarding proposed trade agreement
provisions until after each agreement is signed. This restriction limits
debate by Committee members’ own constituencies, by the public, and by
policymakers, on public health matters of significant domestic concern.10
The advisory committees are an important means of ongoing discussion and consultation
between business and USTR. The general exclusion of public interest representation
means public interest groups do not maintain comparable access or influence.
10
Center for Policy Analysis on Trade and Health, "INTERNATIONAL TRADE ADVISORY
COMMITTEE SYSTEM SHOULD INCLUDE PUBLIC HEALTH REPRESENTATION," September
2004.
10
In 2002, the U.S. Government Accounting Office (GAO, an independent Congressional
research service) reviewed the functioning of the USTR advisory committees. It found
that, "Officials with whom we met said that the committees are a unique forum for candid
discussion of sensitive trade negotiating topics and help U.S. trade officials readily tap a
wide range of private sector expertise. U.S. negotiators cited numerous specific cases of
input from advisory committees that helped them secure more beneficial trade
agreements."11
GAO surveyed the advisory committee members, and although they had some
complaints, they generally indicated that participation on the advisory committees
was very useful. Seven in ten members said they were very satisfied or generally
satisfied with their committee’s opportunity to provide advice at meetings;
roughly half said they were satisfied with the way the executive branch responded
to their committee's advice.12
The advisory committee members also told GAO that they benefit from increased
access to USTR and other government agencies, and in their ability to influence
trade negotiations and policy. Seventy-eight percent of advisory committee
members said that they benefited from a moderate to a very great extent in access
to USTR officials. Sixty-two percent said they benefited from a moderate to a
very great extent in their ability to influence trade negotiations. Sixty-two percent
felt they benefited from a moderate to a very great extent in their ability to
influence U.S. trade policy.13
Many of the benefits of participation on the advisory committees flow from their
informal operation. As Joseph Brenner and Ellen Shaffer of CPATH note,
When quick responses are needed, USTR and other key agencies
such as the Departments of Commerce and Agriculture frequently
request informal advice from committee members through faxes,
emails, ad hoc meetings and teleconferences. Informal consultation
is a routinized part of the process; government officials look to
advisory committee members to provide guidance on what industry
wants. By law, advice that is provided outside of formal advisory
meetings, such as through ad hoc meetings, is considered to be
personal opinion. No central record is kept of informal advice,
which is typically provided directly to the relevant government
official.14
11
General Accounting Office, " Advisory Committee System Should Be Updated to Better Serve U.S.
Policy Needs," GAO-02-876, September 2002, p. 2.
12
General Accounting Office, " Advisory Committee System Should Be Updated to Better Serve U.S.
Policy Needs," GAO-02-876, September 2002, p. 17.
13
General Accounting Office, "Advisory Committee System Should Be Updated to Better Serve U.S.
Policy Needs," GAO-02-876, September 2002, p. 81.
14
Joseph Brenner and Ellen Shaffer, "Advice and No Dissent: Public Health and the Rigged U.S. Trade
Advisory System," Multinational Monitor, November 2004.
11
The GAO study also concluded that, even to the limited extent that non-business
interests are represented in the advisory committee process, they believe they are
marginalized.
Although many new trade issues impinge upon domestic regulatory areas
that are of concern to nonbusiness groups, USTR and the other managing
agencies have had difficulty incorporating nonbusiness stakeholders into
the committees. Some nonbusiness interests from the labor, environment,
and consumer communities participate in the committee system but stated
that they feel marginalized within it. Most nonbusiness members currently
participating in the system are placed on a few committees in the second
tier, where committees are less active and productive than in the third tier.
... New stakeholders in the trade process, such as public health,
development, and gender advocates, have limited or no participation in the
formal committee system, even though topics such as intellectual property
are of interest to them.15
The public interest representatives that do participate in the advisory committee process
have raised serious questions about trade policy, including on intellectual property
matters, but their concerns have been relegated to dissenting reports, and have been
overwhelmed by the inputs from industry interests. There is little evidence, so far, of
public interest participation in advisory committees affecting the U.S. negotiating
posture. This is not to say that public interest representatives can have no influence
through such participation -- but meaningful influence will likely only come in
conjunction with other advocacy efforts to encourage incorporation of public interest
viewpoints in U.S. trade policy.
15
General Accounting Office, " Advisory Committee System Should Be Updated to Better Serve U.S.
Policy Needs," GAO-02-876, September 2002, p. 40.
12
2.4. EFFORTS TO RATCHET UP INTELLECTUAL PROPERTY PROTECTIONS
OUTSIDE OF THE SPHERE OF FREE TRADE AGREEMENTS
2.4.1. OVERVIEW
Negotiation of FTAs is only one part of a comprehensive strategy by the U.S.
government to raise IP protections in trading partners.16
Among the U.S. tools to pressure trading partners to enhance IP protections are:
* USTR examines IPR practices in connection with its implementation of trade
preference programs, such as the Generalized System of Preferences (GSP). On its own
initiative or in response to petition by a private party, USTR may review a GSP
beneficiary country's IP rules and enforcement. If the agency concludes that protections
are inadequate, it may suspend a country's GSP tariff preference.
* Intergovernmental programs to address counterfeiting, among them the Strategy
Targeting Organized Piracy (STOP!) initiative. STOP! involves the development of best
practices for enforcement, and aims to gain agreement from other countries to implement
such practices and coordinate with the United States.17 It is quite conceivable that as the
norms developed under STOP! evolve, the United States will seek to incorporate them in
FTAs and otherwise demand that partner countries adopt them on threat of sanction.
* Extensive provision of technical assistance on IP matters. From 2001-2005, the United
States spent more than $23 million on IP technical assistance, on projects that vary
greatly.18 An $85,000 grant to Armenia, for example, is to be used in part to conduct a
public awareness campaign to build awareness of the TRIPS Agreement.19
16
2006 SPECIAL 301 REPORT 3 ("The United States is committed to a policy of promoting stronger
protection or intellectual property rights. In this regard, the United States is advancing the protection of
these rights through a variety of mechanisms, including the negotiation of free trade agreements (FTAs).")
17
2006 SPECIAL 301 REPORT 4 ("In 2005, USTR led interagency teams to meet with a number of key
trading partners, including Japan, Korea, Hong Kong, Singapore, UK, France, Germany, and the European
Union, to establish greater cooperation on IPR enforcement. This year, USTR will continue these efforts to
strengthen IPR laws and enforcement and create an international alliance against counterfeiting and piracy.
As part of this effort, USTR, in coordination with other agencies, is introducing new initiatives in
multilateral fora to improve the global intellectual property environment that will aid in disrupting the
operations of pirates and counterfeiters. Key initiatives have gained endorsement and are undergoing
implementation in the G-8, the US-EU Summit, the Organization for Economic Cooperation and
Development (OECD), and the Asia-Pacific Economic Cooperation (APEC) forum. At the November
APEC Ministerial, APEC Leaders adopted best practices guidelines to improve border enforcement, protect
digital copies and combat internet piracy. USTR is spearheading an effort to have APEC leaders endorse
additional IPR guidelines that would keep supply chains free of pirated and counterfeit goods and improve
IPR public awareness campaigns throughout the Asia-Pacific region.")
18
USTR/USAID, "Participation, Empowerment, Partnership: Seeking Sustainable Results Through U.S.
Trade Capacity Building, 2005, p. 16.
19
U.S. Agency for International Development, Trade Capacity Building Database, available at
<http://qesdb.cdie.org/tcb/index.html>.
13
More far reaching was IP technical assistance provided to Jordan. According to USTR,
Prior to joining the WTO in 2000, Jordan faced enforcement difficulties
regarding intellectual property rights (IPR). USAID and the U.S. Patent
and Trademark Office worked with the Jordan Intellectual Property
Association to improve enforcement of IPR in Jordan. As a result of U.S.
assistance, the Government of Jordan drafted legislation to join
international agreements on patent and trademark registration. The United
States also provided support for Jordan’s National Library and public
seminars to improve copyright awareness and strengthen enforcement.
Jordan is now regarded as a regional leader in the enforcement of
intellectual property laws. The number of copyright infringement cases
referred to the courts has sharply increased with about 80 percent of those
cases resulting in corrective actions.20
* Projects to ensure governments use licensed software.
* Use of WTO dispute settlement mechanisms to force full compliance with TRIPS
obligations.
* "Special 301," which requires the USTR to conduct an annual review of trading
partners' intellectual property rules, and to highlight those countries deemed to deny
adequate protection for IP and/or adequate market access for IP goods. Under Special
301, countries that fail to reform their IP standards face trade sanctions. Along with
denial of GSP benefits, Special 301 is among the most powerful and coercive of the U.S.
policy instruments. It is described further below.
2.4.2. SPECIAL 301
Under Special 301,21 USTR is charged with identifying in an annual report countries that
"deny adequate and effective protection of intellectual property rights, or deny fair and
equitable market access to United States persons that rely upon intellectual property
protection." Countries that have the "most onerous or egregious acts, policies, or
practices" are designated "priority foreign countries." Priority Foreign Countries are
potentially subject to an investigation under the Section 301 provisions of the Trade Act
of 1974, and ultimately to trade sanctions. Countries that were previously designated a
Priority Foreign Country but enter into "good-faith negotiations" and/or are viewed as
making progress are placed under "Section 306" monitoring. The USTR places countries
with less "egregious" IP policies on "priority watch" or "watch" lists. These countries
"are the focus of increased bilateral attention concerning the problem areas."22
The standard against which countries' IP policies are judged is, first, their obligations
20
USTR/USAID, "Participation, Empowerment, Partnership: Seeking Sustainable Results Through U.S.
Trade Capacity Building, 2005, p. 11.
21
19 USC 2242
22
2006 Special 301 Report, p. 15.
14
under the TRIPS Agreement. But this is only the first standard. On substantive issues,
USTR demands that countries maintain IP policies consistent with the level of protection
in the United States. In the area of pharmaceuticals and agrichemicals, for example, the
United States demands that countries provide five years data exclusivity (denying generic
firms the right to use or rely on data generated by brand-name firms in their application
for marketing approval), even though no such requirement is included in TRIPS. In the
area of copyright, the U.S. emphasis is both on expanded substantive protections,
especially in the area of new technologies. Through Special 301, the United States
pressures countries to ratify and implement the WIPO Internet treaties and provide
extensive copyright protection over the Internet. An overarching USTR copyright
concern is enforcement of copyright against unauthorized copying, including especially
of optical media (including CDs and DVDs) and software.
In recent years, following the urging of the pharmaceutical industry, USTR has expanded
the issue areas subject to review under Special 301, to go beyond intellectual property
concerns. Notably, the agency has expanded the scope of its review to include
government price controls and restraints. Explains the USTR's 2006 Special 301 report:
Historically, the Special 301 process has focused on the strength of
intellectual property protection and enforcement by our trading partners.
However, even where a country’s IPR regime is adequate, price controls
and regulatory and other market access barriers can serve to discourage the
development of new drugs. These barriers can arise in a variety of contexts,
including reference pricing, approval delays and procedural barriers to
approvals, restrictions on dispensing and prescribing, and unfair
reimbursement policies. Such measures have the potential to be
nontransparent, as the criteria and rationale for certain pharmaceutical
prices or reimbursement amounts are often not fully disclosed even to the
pharmaceutical companies seeking to market their drugs.23
This USTR concern is directed especially at OECD countries, but is likely to apply
increasingly to developing countries. As adoption of TRIPS-compliant and TRIPS-plus
intellectual property rules give brand-name pharmaceutical companies enhanced
monopoly pricing power in developing countries, they are likely to turn to some of the
price restraining tools and policies now in place in many OECD nations.
The Pharmaceutical Researchers and Manufacturers of America (PhRMA, the brandname drug manufacturer trade association) has been particularly adamant regarding the
need for U.S. pressure on countries with price controls. "Despite significant academic and
government research outlining the dangers of government-imposed price and access
controls on pharmaceuticals, this damaging practice continues unchecked throughout
foreign markets," assets PhRMA's 2006 Special 301 submission. "Without U.S.
Government action, price and access controls will threaten innovation, delay and deny
market access and diminish U.S. intellectual property rights."24
23
24
2006 Special 301 Report, p. 12.
PhRMA Special 301 Submission, February 13, 2006, p. 3
15
By statute, in preparing its Special 301 report, USTR is required to accept and consider
information submitted by parties outside of government (as well as from relevant
government agencies).25 In practice, USTR coordinates very closely with, and relies very
heavily on, industry trade groups such as PhRMA and the International Intellectual
Property Alliance (IIPA, a coalition of seven copyright-based industry trade
associations). As USTR's 2006 Special 301 report explains, "The designations and
corresponding requisite actions announced today result from close consultations with
affected industry groups, other private sector representatives, Congressional leaders,
foreign governments, and numerous agencies within the United States Government, and
demonstrate the Administration's commitment to use all available methods to resolve IPR
issues."26
PhRMA and IIPA in particular submit very detailed petitions to USTR outlining areas of
industry concern. The very lean USTR does not have sufficient staff to compile the kinds
of detailed information submitted by the trade associations, and the agency necessarily
relies heavily on their submissions. By no means does USTR follow all of the
recommendations from the trade associations -- in 2006, PhRMA urged to no avail that
Canada and Germany be designated priority countries due to their pharmaceutical price
control systems, for example -- but there is not dramatic deviation between the petitions
submitted by the trade associations and the final report prepared by USTR.
The consequences of appearing on the various Special 301 lists is open to interpretation,
and is arguably in the eye of the beholder. In some countries, appearance on the list is
highlighted in the media, and treated by policymakers and opinion leaders as a source of
serious concern.
In the Philippines, for example, the lowering of the country from the Priority Watch to
Watch list in 2006 was touted by President Gloria Arroyo's press spokesperson as "a seal
of approval of the good housekeeping (efforts of the Arroyo administration) as far as the
fight against piracy is concerned."27 The Manila Bulletin celebrated the climbdown from
the "dreaded" Priority Watch list.28
By contrast, USTR removed Egypt from the Priority Watch list in 2003, but placed it
back on the list in 2004, due to "recent marketing approvals for locally produced copies
of patented pharmaceutical products, as well as deficiencies in Egypt's copyright
enforcement regime, judicial system and trademark enforcement."29 Egypt remains on
the priority watch list, with no apparent consequence.
25
26
19 USC 2242 (b)(2).
2006 Special 301 Report, p. 1.
27
Asia Pulse, " MALACANANG WELCOMES UPGRADE ON PHILIPPINES' ANTI-PIRACY
RATING," February 20, 2006.
28
BERNIE CAHILES-MAGKILA, "To prevent backsliding by RP; USTR prescribes IPR measures,"
Manila Bulletin, June 15, 2006.
29
2004 Special 301 Report, p. 15.
16
There are, certainly, diplomatic pressures that must be absorbed by countries on the lists;
how seriously such pressures are interpreted will vary by country, depending on a variety
of circumstances.
It is also worth noting that, because USTR is pushing a broad agenda, countries may be
able to make concessions in certain areas and improve their position on the lists, even as
they resist other demands. In 2005, for example, USTR upgraded Taiwan's position from
the Priority Watch list to the Watch list, because of strengthened enforcement and
copyright protection. This upgrade came even as the agency continued to complain about
Taiwan's failure to adopt "an effective data protection regime."30
It is important to emphasize that mere appearance on the Special 301 watch or priority
watch list by itself does not trigger any sanctions. The lists serve as a pressure tactic, and
potentially a warning to countries that the United States might take further action if they
do not implement desired policy reforms.
By contrast, appearance on the Priority Country list may lead to trade sanctions, which
clearly have significant impact. Ukraine, for example, was recently hit with costly
sanctions. In March 2001, the United States designated Ukraine as a Priority Foreign
Country and initiated a Section 301 investigation. The United States withdrew Ukraine’s
GSP benefits in August 2001 and imposed sanctions on Ukrainian imports worth $75
million in January 2002. In August 2005, in response to Ukraine’s passage of legislation
related to unauthorized optical disc production, the United States ended trade sanctions.31
Industry forcefully pushes USTR to impose trade sanctions under Special 301 more
frequently than it does. In 2006, for example, the IIPA has urged revocation of GSP
benefits for Russia (a USTR Priority Country) on the grounds that unauthorized copying
is rampant and that the country has failed to make improvements despite a decade of
prodding from USTR.32
Decisions to impose trade sanctions are taken seriously, however, and are not especially
frequent. By statute, USTR cannot designate countries as a "Priority Country" if they
"ente[r] into good faith negotiations" with the United States.33 Even countries that appear
on the Priority Country list will have an opportunity to revise or explain policies before
sanctions are imposed.
30
USTR, U.S. Announces Results of IPR Out-of-Cycle Reviews for Poland and Taiwan, January 18, 2005,
available at
<http://www.ustr.gov/Document_Library/Press_Releases/2005/January/US_Annuonces_Results_of_IPR_
Out-of-Cycle_Reviews_for_Pol_Taiwan.html>.
31
2006 Special 301 Report, p30
32
IIPA, "Copyright Industries Call for Positive Action in Priority Countries and For Termination of
Russia’s GSP Benefits Given its High Piracy Levels and Poor Enforcement," News Release, April 28,
2006.
33
19 USC 2242 (b)(1)(C)
17
3. THE TRADE NEGOTIATION PROCESS
3.1 IN ADVANCE OF NEGOTIATIONS
3.1.1 CONSULTATION WITH CONGRESS
Specific authority for USTR to negotiate trade agreements is provided by TPA under
what is known as "fast track" procedures. Fast track refers to the rules under which
Congress considers trade agreements and related implementing legislation; as discussed
below, it constitutes a major limitation on Congress' normal authority. Among other
provisions, it prevents Congress from amending trade agreements or implementing
legislation. In exchange for this sacrifice of ability to affect the final product, TPA
establishes a process of ongoing and extensive consultation of Congress by USTR.34 In
this way, Congress is envisioned to have a substantive role in shaping negotiating
priorities for particular trade agreements and to influence how the negotiations are
conducted.
Under TPA, the President must give notice to Congress of his intent to enter into trade
agreement negotiations at least 90 days before initiating negotiations. 35 The
administration must also consult with the Congressional committees with primary
jurisdiction over trade agreements (the Finance Committee in the Senate, and the Ways
and Means Committee in the House of Representatives), before and after providing
notice.36
The administration must consult with the Senate and House trade agriculture committees
on the agricultural aspect of trade agreements.37 Special assessments are to be made about
the impact of an agreement on sensitive agricultural products.38 The administration must
also consult with the trade committees and other relevant Congressional committees (the
Committee on Resources of the House of Representatives and the Committee on
Commerce, Science, and Transportation of the Senate) on trade agreements impacting the
trade in fish.39
Special assessments and consultations are also required relating to trade agreements and
the textile industry.40
Extensive consultation is also required during agreements' negotiations,41 with both the
trade committees and all committees with jurisdiction over subject matters covered by the
agreements. These consultations are supposed to cover:42
34
19 USC 3804
19 USC 3804 (a)(1)
36
19 USC 3804 (a)(2)
37
19 USC 3804 (b)(1)
38
19 USC 3804 (b)(2)
39
19 USC 3804 (b)(3)
40
19 USC 3804 (c)
41
19 USC 3804 (d)
35
18
* the nature of the agreement;
* how and to what extent the agreement will achieve TPA's specified objectives; and
* how the implementation of the agreement will affect existing U.S. laws.
Consultation and special reports are required on the effect of trade agreements on U.S.
trade remedy laws -- relating to antidumping, countervailing duty, and safeguard laws.43
TPA provides that Congress may pass a resolution of disapproval regarding the effect of
a trade agreement on trade remedy laws -- although Congress retains such power on any
element of a trade agreement, even without the particular authorization in TPA.
More generally, USTR says it regularly consults with the following Congressional
committees:44
Primary jurisdiction:
* House Ways and Means Committee
* Senate Finance Committee
* Leadership Office of the House
* Leadership Office of the Senate
Other House committees:
* Appropriations
* Agriculture
* Banking
* International Relations
* Judiciary
* Commerce
Other Senate committees:
* Appropriations
* Agriculture
* Banking
* Commerce
* Foreign Relations
* Judiciary
* Environment and Public Works
42
19 USC 3804 (d)(2)
19 USC 3804 (d)
44
USTR, "Congressional Committees Regularly Consulted on Trade Policy," available at
<http://www.ustr.gov/Who_We_Are/Congressional_Committees_Regularly_Consulted_on_Trade_Policy.h
tml>.
43
19
The TPA Act also created a new entity, the Congressional Oversight Group (COG),
which is supposed to be in regular contact with USTR over trade policy and
negotiations.45 The TPA Act calls for "the closest practicable coordination between the
Trade Representative and the Congressional Oversight Group at all critical periods during
the negotiations, including at negotiation sites,"46 and provide that members of the COG
are to be accredited as official advisers to USTR in negotiation. COG members are to be
given access to all "pertinent" documents, including confidential material. Membership in
the Congressional Oversight Group is drawn from the leadership of the committees
whose jurisdiction includes subjects implicated in trade agreements. From the Senate, the
top two Republican and Democratic members of the Finance Committee are members, as
are the top Republican and Democrat of the Agriculture, Commerce, Science and
Transportation, Foreign Relations, Governmental Affairs, and Judiciary committees. In
the House, the top Republican and Democrat of the Agriculture, Energy and Commerce,
Financial Services, Judiciary, Rules, International Relations, Government Reform and
Oversight, Resources, Education and the Workforce, Small Business and Ways and
Means committees are members.
Some Members of Congress have charged that the COG has not met regularly, is not
regularly consulted by USTR, and does not function as an effective oversight mechanism
or means for Congress to offer input on trade policy. Representative James McGovern,
for example, contended that COG was not notified of a U.S. proposal for the U.S.Australia Free Trade Agreement that would have undermined Australia's system of
pharmaceutical price controls; and that if COG had been notified, it would have advised
USTR not to make the proposal (which Australia rejected, though other provisions that
may undermine its price control system were included in the final deal).47
3.1.2 PUBLIC HEARINGS
U.S. trade law also requires that the public be given an opportunity to comment on
proposed trade negotiations before they begin. Under the Trade Act of 1974,48 USTR
through the interagency Trade Policy Staff Committee must hold public hearings that
afford interested persons an opportunity to present their views regarding any matter
relevant to a proposed agreement.
On March 22, 2006, for example, USTR issued notice of public hearing and request for
comment on the proposed U.S.-Malaysia Free Trade Agreement.49
45
19 USC 3807
19 USC 3807 (b)(2)(C)
47
HOUSE FLOOR STATEMENT BY U.S. REP. JIM MCGOVERN ON THE U.S. - AUSTRALIA FREE
TRADE AGREEMENT, July 14, 2004, ("[T]he Bush Administration could avoid future embarrassments of
this kind by consulting more with the Congressional Oversight Group and paying less attention to the bad
ideas of drug industry lobbyists.")
48
19 USC 2153
49
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, "Request for Comments and Notice
of Public Hearing Concerning
46
20
The hearing was held on May 3, 2006. Government panel members included six persons
from USTR, a representative from the Department of Agriculture, three persons from the
Department of Commerce, two from the Department of State, a representative from the
Treasury Department and a representative from the U.S. International Trade Commission.
Testimony was presented over a three-and-a-half hour period. Intellectual property was a
chief concern of many witnesses. Industry witnesses came from the Advanced Medical
Technology Association, the National Electrical Manufacturers Association, the
Computing Technology Industry Association, the Automotive Trade Policy Council, the
Soap & Detergent Association, the Rubber and Plastic Footwear Manufacturers
Association, the International Intellectual Property Alliance, the U.S.-ASEAN Business
Council, the National Association of Manufacturers, the Generic Pharmaceutical
Association, and the Western Growers Association. Two NGOs presented testimony, the
Consumer Project on Technology and Environmental Investigation. Witnesses' oral
testimony was limited to roughly 10 minutes or less, and there were few follow-up
questions from the panelists, who were eager to finish the hearing.
USTR also held separate hearings on environmental and labor issues related to the
proposed Malaysia trade deal.
This public comment opportunity offers a chance for civil society organizations to
formally note their concerns about trade agreements on the record butaffords little real
opportunity to affect U.S. negotiating strategies.
U.S. trade negotiating objectives do not vary much from one bilateral agreement to
another, though each partner country necessarily presents particular issues of concern to
the United States. Because U.S. negotiators effectively operate from a template on IP
(and other issues), it is difficult to urge fundamentally different policies for any particular
agreement.
Proposed United States-Malaysia Free Trade Agreement," Federal Register: March 22, 2006 (Volume 71,
Number 55,) Page 14558-14559. http://frwebgate2.access.gpo.gov/cgibin/waisgate.cgi?WAISdocID=363731388168+14+0+0&WAISaction=retrieve
21
3.2. THE ROLE OF CONGRESS AND OTHERS PRIOR TO TRADE
AGREEMENT RATIFICATION
3.2.1. CONGRESS
Congress possesses three distinct powers with respect to trade policy:



it adopts legislation, ranging from trade agreement implementing laws to the
legislation creating the executive branch trade bureaucracy;
it appropriates money to fund executive agencies undertaking trade talks, as well
as for trade-related programs ranging from technical assistance to other countries
for IP enforcement and policymaking, to domestic programs for workers who lose
their jobs due to import surges; and
it exercises oversight of executive branch activity.
The issue of adoption of trade agreement legislation is discussed in Part 4 of this briefing
note.
3.2.1.1. THE APPROPRIATIONS PROCESS
The appropriating function is in many ways Congress' ultimate power. Although it is a
Capitol Hill truism that Congress is not supposed to "legislate" in the appropriations
process -- meaning authorization bills are supposed to do nothing more than allocate
funds -- in practice there is room to affect policymaking. One example of how the
appropriations process was used to advance a global public health objective relates to
tobacco: Representative Lloyd Doggett inserted into the appropriations legislation for
USTR a provision that forbids any funds to be used to promote tobacco exports or to
remove non-discriminatory tobacco control measures.50 Any Member of Congress could
introduce such a provision, but it is Members who serve on the appropriations
committees who most realistically might be able to maneuver to make such a provision
law.
Congress may also include in the non-binding report accompanying appropriations
legislation indications of what it expects or requests of the executive branch. In the 2007
appropriations bill covering USTR, for example, the House of Representatives praises
USTR's work to combat unauthorized copying of IP products, but urges more diligence:
Although modest steps have been made to harness U.S. Government resources to
tackle the problem of IPR piracy by our trading partners, the United States has not
yet taken an intellectual property rights enforcement case to the WTO against its
trading partners to stem the hemorrhaging of U.S. intellectual property. The
50
Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2007 Section 609. ("None
of the funds provided by this Act shall be available to promote the sale or export of tobacco or tobacco
products, or to seek the reduction or removal by any foreign country of restrictions on the marketing of
tobacco or tobacco products, except for restrictions which are not applied equally to all tobacco or tobacco
products of the same type.")
22
Committee expects the USTR to use all necessary means to enforce IPR
agreements.51
3.2.1.1. OVERSIGHT HEARINGS
Congress's oversight function is exercised primarily through the holding of investigative
hearings. This function is not exercised with anywhere near the vigor it was decades ago;
most hearings are now one day long or less, and there is rarely follow-up.
Nonetheless, every year, there are a substantial number of hearings on trade-related
issues, a few of which focus on IP-related topics and many of which at least touch on IPrelated subjects. In 2005 and 2006 through July, there were at least 31 hearings that either
focused on IP and trade or -- much more commonly -- focused on a trade topic at which
IP issues might be discussed. (These hearings are listed in Appendix One.) Because the
hearings are of short duration, there is limited opportunity to testify. Most witness slots
go to USTR or other executive branch representatives, and to domestic industry groups.
One or two spaces are typically reserved for civil society representatives critical of the
prevailing trade paradigm. Foreign government or civil society representatives are
permitted to testify at these hearings, but are rarely invited. In many cases, committees
will accept written testimony from those who are not given spaces to testify in person,
and there is usually no screen applied to such submissions. In particular, the House Ways
and Means Committee seeks such submissions in connection with its trade policy
hearings. These submissions do not tend to have a significant impact on the policymaking
process, but they do at least provide a formal means for civil society, or potentially a
foreign government, to present its views.
3.2.2. THE INTERNATIONAL TRADE COMMISSION ASSESSMENT
The TPA Act also specifies that, at least 90 days before the President signs a trade
agreement, the latest draft shall be presented to the U.S. International Trade Commission
(ITC), an independent federal agency with economic analysis and trade research
expertise. The ITC is charged with "assessing the likely impact of the agreement on the
United States economy as a whole and on specific industry sectors."52 Part of the ITC's
charge is to take account of dissenting views of the effects of a trade agreement. As part
of its process of preparing its report, the ITC holds hearings, which are open to any party
that wishes to testify or submit comments.53 The ITC report must be presented to the
President and Congress not later than 90 days after the President has signed the
agreement.
51
House Report 109-520 - SCIENCE, STATE, JUSTICE, COMMERCE, AND RELATED AGENCIES
APPROPRIATIONS BILL, FISCAL YEAR 2007.
52
19 USC 3804 (f)
53
See, for example, the ITC notice announcing its investigation regarding the U.S.-Peru Free Trade
Agreement and the public hearing, available at
<http://www.usitc.gov/secretary/fed_reg_notices/econ_effects_2104_131/index.htm>
23
The ITC process thus offers opportunity for input, but the ITC's report focuses on a trade
agreement's effects in the United States. It also is published after the agreement is
negotiated, when the only remaining issue is whether Congress will approve it or not.
The report on the U.S.-Peru Free Trade Agreement, for example, concluded that:
The expected growth in U.S. trade with Peru under the TPA may have a
positive effect on the U.S. economy, but this positive effect will likely be
small because Peru's economy is small relative to the U.S. economy, its
share of total U.S. trade is small, and Peru has existing duty-free access to
the U.S. market under the Andean Trade Preference Act (ATPA). …
Only three U.S. sectors -- metals n.e.c. (mainly gold, copper, and
aluminum), crops n.e.c. (e.g., cut flowers, live plants, and seeds), and
paddy rice -- are estimated to experience a decline in output, revenue, or
employment of more than 0.10 percent. …
The TPA may also increase trade and investment through enhanced
logistics, an improved regulatory environment, and increased
transparency. …54
Here too, then, the public has good access to the process, but little ability to affect actual
policy.
54
U.S. International Trade Commission, U.S.-Peru Trade Promotion Agreement: Potential Economy-wide
and Selected Sectoral Effects, Investigation No. TA-2104-20, June 2006, p. iii.
24
4. CONGRESSIONAL CONSIDERATION OF TRADE AGREEMENTS
4.1 TPA/FAST TRACK RULES FOR RATIFICATION AND ADOPTION OF
IMPLEMENTATION LEGISLATION
Once a trade agreement is finalized, the "fast track" rules of TPA very much limit the
ability of Congress to exercise any influence.
The President controls when an agreement is presented to Congress. This is an important
power, because it enables the President to delay introduction of an agreement if he
believes he needs more time to generate support, or for other reasons. Because trade
agreements are generally unpopular in the United States, Members of Congress who
support them may face political risk, and this risk is heightened if a vote is scheduled in
the run-up to an election. It has now become the norm for the President to delay
presentation to Congress of controversial trade deals such as CAFTA-DR until after an
election.55
Once the agreement and implementing legislation is presented, Congress must consider it
as presented by the President.56 Members of Congress are not permitted to amend the
implementing legislation.57 Nor are they able to delay consideration of agreement. Each
chamber must vote on the implementing legislation within 60 days of initial
presentation.58 Formal debate on the implementing legislation is limited to 20 hours, and
normal rules are suspended to prevent delay.59 Under TPA, Congress does retain
authority to pass a resolution stating that the agreement under consideration was
negotiated with insufficient consultation of Congress -- though, again, Congress retains
authority to pass resolutions on any matters it chooses, without TPA's special
authorization.
Members of Congress may try to exert some influence over implementation agreement
language, or draw attention to key issues of concern for them or their constituents, but
TPA very much limits their power.
Procedurally, the key trade committees engage in a "mock mark-up" of implementing
legislation ("mark up" is the process by which committees amend bills), because they
cannot actually amend the text. The exercise is of uncertain effect.
Report Burke and Stanbury about the process for considering the controversial CAFTADR,
55
See Tom Ricker and Burke Stansbury, "CAFTA Chronicles: Strong-Arming Central America, Mocking
Democracy," Multinational Monitor, January/February 2006.
56
19 USC 2191 (c)(1)
57
19 USC 2191 (d)
58
19 USC 2191 (e)
59
19 USC 2191 (f) and (g)
25
The first step in the process was a "debate" in the Senate Finance
Committee, where it was clear that few of the members really understood
what was going on. Senator Jeff Bingaman, D-New Mexico, for example,
asked three times what his vote in the committee would mean given that
the vote was a non-binding recommendation to send the current CAFTA
draft to the floor of the Senate with non-binding amendments. It was not
clear anyone really knew the answer.
The next step was a "mock mark up" in the House Ways and Means
Committee. This mock mark-up began after the Senate had already started
floor debate for the final CAFTA vote -- at which point no changes could
be made. Thus, whatever ability the mock mark-up in the House might
theoretically have had to influence the legislation was eliminated.60
In close votes, however, Members are frequently able to cut side deals. Often, these
involve appropriations or favors related to their district, on matters unrelated to the trade
deal. Other times, however, they relate more directly. For example, one Democratic
Senator announced support for CAFTA-DR after obtaining a commitment from the
administration to allocate funds for labor and environmental protection in Central
America, as well as monies to subsidize displaced Central American subsistence
farmers.61 Critics have pointed out, however, that many of the commitments made in side
deals for trade votes turn out to be illusory or are not fulfilled.62
Some in developing countries have perceived the U.S. fast-track procedure to be an asset,
because it means that Congress cannot demand U.S. trade negotiators renegotiate
provisions after an agreement is reached and implementing legislation has been presented
to Congress. From this perspective, fast-track offers predictability and an assurance that
U.S. negotiated commitments will be kept.
There is a strong counter-argument, however. The enormous power that fast-track lodges
in the executive branch may create a less favorable negotiating environment for
developing country trade partners. In any likely scenario in the absence of fast-track,
post-negotiation Congressional demands regarding the substance of trade agreements
would likely focus on issues along the margins, and not fundamentally affect the overall
terms of an agreement. And, those demands might well be for terms more favorable to
developing countries. The fast-track process limits greatly the role of developing
countries, or civil society allies, in the U.S. ratification process.
60
Tom Ricker and Burke Stansbury, " CAFTA Chronicles: Strong-Arming Central America, Mocking
Democracy," Multinational Monitor, January/February 2006.
61
Jim Abrams, "Senate Finance Committee Approves CAFTA," Associated Press, June 30, 2005.
62
Public Citizen, "Trade Wars: Revenge of the Myth -- Deals for Trade Votes Gone Bad," June 2005.
26
4.2 TRADE AGREEMENTS APPROVED WITHOUT TPA/FAST TRACK
That TPA prevents Congress from amending trade legislation is quite significant.
Although successive administrations have argued that they would be unable to negotiate
trade deals without TPA's fast track procedures, experience suggests otherwise. The
Clinton administration, for example, was able to negotiate and win approval of the U.S.Jordan Free Trade Agreement, and participate in WTO negotiations, without fast-track
being in place.
But a Congressional power to amend implementing legislation could meaningfully
change U.S. trade policy.
Consider the case of the African Growth and Opportunity Act (AGOA), a unilateral
trade preference package for sub-Saharan Africa enacted in 2000 (when fast-track was
not in place). U.S. and African civil society organized substantial opposition to AGOA,
claiming that it would benefit U.S. multinational corporations, but not the African
people who were its purported beneficiaries. In 1999, Representative Jesse Jackson, Jr.
and Senator Russell Feingold introduced a counter-proposal, the Human Rights,
Opportunity, Partnership and Empowerment for Africa Act (Hope for Africa Act).63 The
HOPE for Africa Act diverged quite significantly from AGOA, including in the area of
intellectual property.
AGOA makes available trade preferences for sub-Saharan African countries, contingent
on a range of factors, among them whether a country has eliminated barriers to United
States trade and investment by "the protection of intellectual property."64
By contrast, the HOPE bill prohibited any agency from seeking revocation of TRIPScompliant IP rules designed to promote access to medicines or medical technologies.65
Although the HOPE for Africa bill garnered an impressive 74 co-sponsors, AGOA
became law. Nonetheless, the Congressional debate of an alternative over IP policy had
a major impact. The language in the HOPE for Africa bill became the template for an
Executive Order issued by President Clinton in 2000 as part of the compromise that led
to final passage of AGOA.66 This Executive Order forbids the U.S. Government from
seeking TRIPS-plus protection for HIV/AIDS drugs in sub-Saharan African nations, and
has influenced U.S. policy outside of Africa. President Bush decided early in his term to
keep the Executive Order in place.67
63
H.R.772 in the U.S. House of Representatives; S.1636 in the Senate.
19 USC 3703 (a)(1)(C)(2)
65
HOPE for Africa Act, H.R.772, Section 602(c).
66
Executive Order 13155.
67
DONALD G. McNEIL Jr., "Bush Keeps Clinton Policy on Poor Lands' Need for AIDS Drugs," New
York Times, February 22, 2001.
64
27
4.3 A NOTE ON THE CONSTITUTIONALITY OF U.S. TRADE AGREEMENT
RATIFICATION PROCESSES
Although the trade agreements the U.S. has entered are considered treaties under
international law, this is not so under U.S. law. "Treaty" has a particular meaning in U.S.
constitutional terms; crucially, a treaty must be sent to the Senate for ratification by a
two-thirds vote. In U.S. law, the trade agreements the U.S has entered have been
considered congressional-executive agreements, to be approved by a majority vote in
both legislative houses.
This has been a matter of some controversy. The Restatement (Third) of the Foreign
Relations Law of the United States states that "The prevailing view is that the
Congressional-Executive agreement can be used as an alternative to the treaty method in
every case."68 As even its proponents acknowledge, this view is not well grounded in U.S.
Constitutional text. The text of the Constitution suggests that treaties are a distinct
category of international agreement, and that treaties may be entered into only through a
process delineated in Article II of the Constitution. Article I specifies that while States
may enter into agreements with foreign powers under certain conditions, they may never
enter into "treaties."69 Article II does authorize the federal government to enter into
treaties, but only according to the precise process prescribed in Section 2, clause 2 -requiring two-thirds Senate approval.
Under the U.S. constitutional structure, the question of whether trade agreements should
be considered as treaties or congressional-executive agreements (or whether the President
may choose between the two) is considered non-justiciable.70 That is, courts will not
resolve it. If the Senate wants to insist that a trade agreement brought before it as a
congressional-executive agreement be considered as a treaty, it must vote the trade
agreement down.
This has not happened. And, while the issue was heatedly debated in the run up to
congressional approval of the Uruguay Round Agreements (establishing the WTO and
including the TRIPS Agreement), it is no longer seriously contested.
The main practical impact of this resolution is that agreement ratification and
implementing legislation are presented together to both chambers of the legislature for
majority approval.
Although it may happen that it would be easier to achieve a two-thirds Senate majority
than a simple majority in both houses, it will generally be the case that consideration as a
congressional-executive agreement makes it easier to win approval of trade agreements.
This is especially true because Senate two-thirds ratification of a trade agreement as a
68Restatement (Third) of the Foreign Relations Law of the United States §303, cmt. e (1986). Note that the
Restatement does acknowledge the political issue remains.
69U.S. Const., Art. I, §10, cl. 1.
70
See Dole v. Carter, 569 F. 2d 1109 (10th cir., 1977).
28
treaty would still need to be accompanied by implementing legislation that both chambers
would have to consider.
This subtle but substantial grant of power to the President arguably runs counter to basic
constitutional separation of power understandings; because the President controls the
negotiations over international agreements, executive power is already elevated in this
area compared to the drafting of legislation, in which the President has no direct hand.71
Article II's supermajority requirement can be understood in part as means to vest
countervailing power in the Senate -- but the Senate has declined to insist on preservation
of that countervailing power.
71See Arthur Bestor, "Advice" from the Very Beginning, "Consent" When the End is Achieved, 83 The
American Journal of International Law 718, 725 (1989).
29
5. U.S. MONITORING OF FTA IMPLEMENTATION
U.S. pressure for increased IP protection and enforcement does not end once an FTA has
been entered into. The U.S. pattern is to push aggressively for full and rapid
implementation, and, in some circumstances, arguably to demand more than is required
by the FTA.
Probably the most notable case of post-ratification pressures involves Guatemala. In
March 2005, Guatemala's Congress ratified CAFTA-DR. Guatemala also adopted a new
intellectual property rights law [Decree 31-88], to come into compliance with CAFTADR. As required by CAFTA-DR, the new law provides for "data exclusivity," denying
generic pharmaceutical manufacturers the right to rely on test data from brand-name
companies for a period of five years after a brand-name product comes on market, and
thereby delaying the introduction of price-reducing generic competition. The Bush
administration had threatened to leave Guatemala out of CAFTA-DR after the Congress
had earlier voted to eliminate test data protection -- even though Ambassador John
Hamilton had written in an op-ed in the Guatemalan press that "there is no doubt" that
Guatemala had rescinded data exclusivity rules "out of its concern to protect public
health."
The Bush administration did not find Guatemala's revised intellectual property law
satisfactory, however.
In November 2005, the Bush administration prepared a detailed list of CAFTA-DR
"implementation deficiencies" in Guatemala, especially regarding intellectual property
rights issues.72
Although Guatemala revised its intellectual property laws to satisfy U.S. demands at the
time it ratified CAFTA-DR, USTR insisted on the most aggressive interpretation of even
the most picayune of provisions. For example, CAFTA-DR permits an exemption from
pharmaceutical test data rules "to protect the public." The U.S. government objected that
Guatemala's law also includes an exemption for protection of plants, animals and the
environment.
In total, the memo listed 32 separate demands for changes in, or clarifications to,
Guatemala's intellectual property law.
Some critics argued that the U.S. implementation demands actually went beyond the
requirements of CAFTA-DR. A letter from nine Members of the U.S. Congress,
prompted by Oxfam and other advocacy groups,73 argued:
Among the reported changes to Guatemalan law that go beyond the
CAFTA-DR mandates are:
72
U.S. Trade Representative, "Preliminary List of Implementation Deficiencies: Guatemala,"
November 16, 2005.
73
Letter from Representative Dennis Kucinich et. al. to USTR Rob Portman, April 7, 2006.
30
- expanding the scope of what is considered a new product and is,
thus, subject to data exclusivity;
- increasing the regulatory requirements for generics to gain
marketing approval
- allowing for patent or data protection for new clinical applications
for existing medicines.
The demands for aggressive interpretation or for provisions exceeding CAFTA-DR
requirements were particularly objectionable, critics contended, because Guatemala had
written into its intellectual property law a CAFTA-DR supremacy clause -- stipulating
that where there is a conflict between Guatemalan law and CAFTA-DR, CAFTA-DR
shall prevail.74
(By way of contrast, it is interesting to note that the U.S. CAFTA-DR implementing
legislation specifically establishes the supremacy of U.S. law. That is, where there is a
conflict between U.S. law and CAFTA-DR provisions, U.S. law shall prevail. Only the
U.S. federal government may force a change in a U.S. state's law to ensure compliance
with CAFTA-DR provisions. And no private individual or corporation may bring an
action to change U.S. law on the grounds that it is incompatible with CAFTA-DR's
provisions.75)
The United States further demanded that Guatemala ratify three intellectual property
treaties before CAFTA-DR goes into effect, the International Union for the Protection of
New Varieties of Plants, the Budapest Treaty on the International Recognition of the
Deposit of Microorganisms for the Purposes of Patent Procedure and the Washington
Patent Cooperation Treaty. Guatemala's Congress did this in June 2006.76
The United States pressed its implementation demands through high-level meetings, with
then-USTR Rob Portman insisting, as Inside U.S. Trade reported, that "Guatemala fully
compl[y] with all of its commitments under the CAFTA-DR, both in legislation and
through regulations."77
The United States sought to exercise maximum leverage in implementation negotiations
with Guatemala and other CAFTA-DR countries by refusing to commence the trade deal
with any nation until it had satisfied U.S. implementation demands.
74
"In case of a discrepancy between provisions contained in this Law and those contained in trade
agreements in force in Guatemala, the application of the latter will prevail with regard to parties to the
agreement" (Law 30-2005, Article 7).
75
Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, SEC.
102.
76
GUATEMALA RATIFIES IPR TREATIES AS STEP TOWARD CAFTA IMPLEMENTATION, Inside
U.S. Trade, June 9, 2006.
77
PORTMAN SAYS CAFTA IMPLEMENTATION BY GUATEMALA MONTHS AWAY, Inside U.S.
Trade, April 7, 2006.
31
6. CONCLUSION: IMPLICATIONS FOR DEVELOPING COUNTRY
NEGOTIATORS AND CIVIL SOCIETY ORGANIZATIONS ADVOCATING FOR
MORE BALANCED IP RULES
Although the U.S. political system is built on a separation and proportional distribution of
power between the executive and legislative, as well as judicial branches, power in the
trade and IP policymaking area is heavily concentrated in the executive branch. USTR,
the locus of decision-making on trade issues is institutionally oriented to advance the
interests of U.S. IP rights-holding industries, an orientation that has held true whichever
party is in power. This poses a significant challenge for actors seeking to promote more
balanced IP policies than the U.S. has advocated.
Although it has, for now, chosen to forfeit much of its potential power in trade and IP
policymaking, Congress remains a vital venue for advocates of more balanced IP
policymaking to register their concerns. Civil society organizations have a key role to
play in this regard, but foreign government representatives may be able to find allies in
the United States sympathetic to particular concerns, and willing to advocate for
improved balance in U.S. trade negotiation positions and policy-making. This is true even
though a majority in Congress sometimes calls for harsher trade and IP policies than
those urged by USTR. That is because there is necessarily a diversity of views among the
535 Members of Congress, and those favoring more balanced policymaking -- even if
they are in a minority -- may at times be able to exert an impact if they are strategic.
Advocating for more balanced policymaking, however, is definitely an uphill climb. The
pharmaceutical, recording, software, publisher and movie industries are very politically
powerful, and they are deeply nestled into the formal and informal processes of trade
policymaking in Washington. Because these are industrial sectors in which the United
States generally runs trade surpluses at a time when the country is recording
overwhelming trade deficits, politicians of all stripes are eager to promote their interests
(with the important caveat that the pharmaceutical industry faces major domestic political
opposition, because of its pricing policies). Moreover, with a few exceptions, the IP
industries' trade demands are that other countries' adopt U.S.-levels of protection -- to
many Members of Congress, the executive agencies and opinion leaders, this seems fair
and reasonable. It also means that, for the most part, the expanded monopoly power
conferred by trade agreement provisions inflicts little or no cost on U.S. consumers.
Against this challenging backdrop, developing countries must face off against skilled and
aggressive trade negotiators from USTR. Among many other advantages, the USTR
negotiators benefit from being "repeat players." That is, the because the USTR negotiates
many bilateral and regional trade agreements, it is more familiar with the implicated
issues, more experienced at using textual maneuvers to achieve its substantive objectives
while apparently addressing concerns raised by developing countries or civil society, and
more experienced at gaming the negotiations.
These advantages are especially important in the area of intellectual property, which is
highly technical and often a source of major controversy in the U.S. developing country
32
negotiating partners. The U.S. negotiators enter IP negotiations with a consistent strategy.
First, they insist negotiations should be secret, with text not made public until it is final.
Second, they present the text from which negotiations should occur. Third, they rely on a
standard template for what should appear in FTAs to which the U.S. is a party, and insist
they will not deviate from the language they have established as standard in previous
trade agreements. Fourth, because the IP negotiations are controversial, the United States
commonly suggests that they be deferred, until later in the negotiations. Finally, the
United States seeks to impose artificial deadlines for negotiations, so that pressure builds
on partners holding out on IP (or other) subject matters.
In this context, it is vital that developing country negotiators consciously seek to match
the strategic sophistication of USTR.
A first consideration for developing country negotiators is to reject the demand that
negotiating texts should remain secret. Both parties are of course aware of the texts, as
are key elements of U.S. industry, thanks to the U.S. trade advisory system. The only
significant party that remains in the dark if the texts are secret is civil society, in both the
United States and the negotiating partner. This makes it harder (or impossible) for civil
society to critique the U.S. proposals, an important loss because of the substantial
expertise lodged in civil society, and particularly among consumer, health, development
and environmental organizations on IP-related issues. It also makes it much harder for
advocacy groups to urge, in a specific fashion, more balanced provisions. By the time
they see the text, it has been finalized. And, from the U.S. side, there is very little
opportunity for creative maneuvering in Congress, because of the strictures of TPA/fast
track. These factors combine not just to disempower civil society, but to undermine the
leverage of developing country negotiators, who generally will benefit from an informed
and mobilized public, in both their home country and in the United States.
Second, developing country negotiators should avoid falling into the trap of waiting until
the end of negotiations to commence serious talks over IP. This places artificial time
pressure on the IP negotiations, as everything else otherwise agreed to appears to rest on
rapid conclusion of the controversial IP provisions. Especially because in relative terms
the trade agreement is more consequential to the U.S. negotiating partner than to the
United States -- meaning the United States can more easily walk away than its
negotiating counterpart -- this makes it very hard for IP negotiators for developing
countries to secure and maintain the political backing needed to resist capitulation to U.S.
demand.
Third, it is important for developing countries to propose -- publicly and early in the
negotiations -- counter-frameworks to the U.S. IP template. Countries that just seek to say
"no" to the U.S. proposals are likely simply to capitulate at the end, in significant part
because of the dynamic just described. If countries are able to propose different
frameworks for treating IP in general or for handling specific elements of the standard set
of IP protections in U.S. FTAs, they be able to shift the negotiating dynamic. The
prospect of succeeding with this approach will be much increased if countries make these
proposals public. That will enable civil society to support them, while they are under
33
discussion. From the U.S. side, the possibility of civil society rallying support in
Congress, among opinionmakers and the public, and possibly even in the executive
branch, is much greater if there is a positive alternative offered, as opposed to simple
rejection of the U.S. proposal. Among other reasons, the fact that so many other countries
have previously accepted the U.S. demands makes it harder to draw attention to the next
case. Elaborating on the substance of such counter-frameworks is beyond the scope of
this paper, but examples might include:








An obligation to spend a certain percentage of GDP on R&D as an alternative to
expanded IP protection, at least in the patent area;
A cost-sharing approach as opposed to the U.S. demand for marketing approval
data exclusivity;
Affirmative proposals to address abuse of patents;
Demands for safeguards to prevent biopiracy, rather than U.S. demands for the
recognition of patents on plants and animals;
Binding provisions requiring technology transfer;
Mandated exceptions to measures concerning Digital Rights Management (DRM)
systems and prohibitions against the circumvention of technological protection
measures (TPMs), for example to ensure access to public domain and scientific
research material;
Presumptive placement in the public domain of government-funded research;
Prohibitions on retroactive extensions of term of protection for copyright and
related rights.
Any such effort to resist U.S. demands will require not such strategic creativity, but
political will. Where there is political will, however, some concessions may be attainable.
The recent experience of Peru and Colombia in obtaining Understandings Regarding
Biodiversity and Traditional Knowledge illustrate that U.S. negotiators may be
moveable;78 although if critics are right, the shortcomings of these understandings also
illustrate how U.S. negotiators are skilled at offering more form than substance.79
In terms of processes within the United States, this briefing note has highlighted the
several opportunities that are available for civil society and sometimes foreign
governments to offer formal input into the trade negotiation, assessment and deliberation
process. However, most of the formal opportunities are of limited importance, especially
if they are exercised by themselves. A single testimony or submission at a USTR,
Congressional or ITC hearing will, by itself, have very little impact.
There is no single place or moment for advocates of more balanced IP policy to make a
difference. Rather, they must seek to use all available formal opportunities. More
78
See, for example, UNDERSTANDING REGARDING BIODIVERSITY AND TRADITIONAL
KNOWLEDGE, United States-Peru Trade Promotion Agreement.
79
For a positive interpretation of the Biodiversity/Traditional Knowledge Understanding, see Manuel Ruiz,
"The Not-So-Bad US–Peru Side Letter on Biodiversity," Bridges, January-February 2006, pp. 18-20; for a
more pessimistic assessment, see "US-PERU FTA PUBLISHED, CONTROVERSY ENSUES ON
BIODIVERSITY," Bridges BioRes, February 3, 2006.
34
importantly, they need to develop informal relationships with policymakers that allow for
regular communication, deeper shared understandings, and more concerted efforts from
the policymakers. The IP industries maintain these relationships through very extensive
and expensive lobbying operations, which benefit further from the industry's other
sources of political power. If advocates for more balanced policy are to offset this
political power and access, they must work on a sustained basis, and find compelling
ways to communicate their concerns to opinion makers and the public at large.
Although the challenges are great, it is also clear that there are opportunities to advance a
more balanced IP agenda for U.S. trade policymaking. There are several important
opportunities in Congress -- none easy to capitalize on.
The Congressional appropriations process is one under-examined opportunity. The
Doggett amendment related to tobacco and trade issues illustrates that it may be possible
to address particular issues through restrictions on how appropriated money may be
spent.
The negotiating authority granted to the President under the TPA Act expires in June
2007. U.S. Trade Representative Susan Schwab says she is intent on securing a renewal;
and, even if no such effort is made until after the 2008 elections, a renewal is likely to be
sought whichever party occupies the White House. There is some opportunity to
influence policy goal-setting at the time that TPA is under legislative consideration. Civil
society groups have proven some ability in this area, as the Kennedy Amendment on the
Doha Declaration illustrates, and there is possibility to do more. Expectations about what
ultimately can be achieved in this fashion, however, must be tempered by the reality that
major trade debates in the U.S. Congress will overwhelmingly be about domestic
concerns. Moreover, once TPA negotiating objectives are established in law, there is little
opportunity to affect them. (Although TPA or elements of it could conceivably be
overturned by legislative act, absent a major shift in the composition of Congress, this is
very unlikely.)
Perhaps the best prospect for U.S. advocates of balanced IP policymaking stems from the
current nature of Congressional trade debates. Trade policy is very controversial, and
several recent trade agreements -- most notable among them, the U.S.-Dominican
Republic-Central American Free Trade Agreement -- have passed by very narrow
margins. The contested nature of trade policy means that a few Members of Congress -or possibly even one -- can leverage influence to affect policy. Particularly if Members
who are viewed as undecided or swing votes on trade agreements can be persuaded to
urge more balanced IP policymaking, and indicate that they may oppose agreements that
do not contain more balanced measures, meaningful change is conceivable.
With the future balance of political power in the Congress -- and soon the White House -uncertain, the possibility of capitalizing on this dynamic bears close attention. The
balance of power between the two parties will affect prospects for a more balanced U.S.
approach to trade and IP policy. Both parties, however, share many presumptions about
the benefits for the United States and many of its leading industries of enhanced IP
35
protections and enforcement in U.S. trading partners, and so nothing can be taken for
granted.
36
APPENDIX ONE: CONGRESSIONAL COMMITTEE HEARINGS TOUCHING ON IP
AND TRADE ISSUES 2005-JULY 2006
WAYS AND MEANS
Peru
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=491
Oman
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=473
Bush Trade Agenda
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=460
Bahrain
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=444
US-Japan
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=443
Future of WTO
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=404
CAFTA-DR
http://waysandmeans.house.gov/hearings.asp?formmode=detail&hearing=397
ENERGY AND COMMERCE
Safety of Imported Pharmaceuticals: Strengthening Efforts to Combat the Sales of
Controlled Substances Over the Internet
http://energycommerce.house.gov/108/action.htm
Product Counterfeiting: How Fakes Are Undermining U.S. Jobs, Innovation, and
Consumer Safety
http://energycommerce.house.gov/108/Hearings/06152005hearing1551/hearing.htm
Issues before The U.S.-China Joint Commission on Commerce and Trade
http://energycommerce.house.gov/108/Hearings/06092005hearing1544/hearing.htm
Dominican Republic-Central America Free Trade Agreement
http://energycommerce.house.gov/108/Hearings/04282005hearing1489/hearing.htm#List
GOVERNMENT REFORM
Full Committee Hearing on U.S. Competitiveness
http://reform.house.gov/GovReform/Hearings/EventSingle.aspx?EventID=39022
37
Domestic Source Restrictions Threaten Free Trade
What is the Federal Government Doing to Ensure a Level Playing Field in the Global
Economy?
http://reform.house.gov/GovReform/Hearings/EventSingle.aspx?EventID=26725
"Pharmaceutical Supply Chain Security"
http://reform.house.gov/CJDPHR/Hearings/EventSingle.aspx?EventID=46631
Sick Crime: Counterfeit Drugs in the United States
http://reform.house.gov/CJDPHR/Hearings/EventSingle.aspx?EventID=36449
INTERNATIONAL RELATIONS
Asian Free Trade Agreements: Are They Good for the USA?
http://wwwc.house.gov/international_relations/fullhear.htm
Africa Growth and Opportunity Act: A Five Year Assessment
http://wwwc.house.gov/international_relations/afhear.htm
U.S. Trade Agreements with Latin America
http://wwwc.house.gov/international_relations/whhear.htm
Patent Harmonization
http://judiciary.house.gov/Oversight.aspx?ID=235
Oversight Hearing on "International IPR Report Card - Assessing U.S. Government and
Industry Efforts to Enhance Chinese and Russian Enforcement of Intellectual Property
Rights."
http://judiciary.house.gov/Oversight.aspx?ID=212
Oversight Hearing on "Intellectual Property Theft in Russia."
http://judiciary.house.gov/Oversight.aspx?ID=161
"Intellectual Property Theft in China."
http://judiciary.house.gov/Oversight.aspx?ID=160
SENATE
FINANCE (excluding legislative hearings (mock mark ups)
To hear testimony on “S.3495—A bill to authorize the extension of nondiscriminatory
treatment (normal trade relations treatment) to the products of Vietnam”
http://finance.senate.gov/sitepages/hearing071206.htm
38
The U.S.-Peru Trade Promotion Agreement
http://finance.senate.gov/sitepages/hearing062906a.htm
The U.S.-Oman Free Trade Agreement
http://finance.senate.gov/sitepages/hearing030606.htm
The Administration’s Trade Agenda for 2006
http://finance.senate.gov/sitepages/hearing021406.htm
The Status of World Trade Organization Negotiations
http://finance.senate.gov/sitepages/hearing102705.htm
U.S. – Bahrain Free Trade Agreement
http://finance.senate.gov/sitepages/hearing100605a.htm
The U.S. - Central America - Dominican Republic Free Trade Agreement
http://finance.senate.gov/sitepages/hearing041305.htm
FOREIGN RELATIONS
None
HOMELAND SECURITY AND GOVERNMENT AFFAIRS
STOP!: A Progress Report on Protecting and Enforcing Intellectual Property Rights Here
and Abroad
http://hsgac.senate.gov/index.cfm?Fuseaction=Hearings.Detail&HearingID=382
JUDICIARY
"Piracy of Intellectual Property"
http://judiciary.senate.gov/hearing.cfm?id=1514
39