WTO-GATS and the FTAA:
Double Trouble for Libraries and
Public Information Services
Samuel E. Trosow
Assistant Professor
University of Western Ontario
Faculties of Law / Information and Media Studies
strosow@uwo.ca
November 26, 2003
General Overview
• taken together, the various WTO agreements,
NAFTA, the FTAA, and the WIPO Copyright
Treaties present a complex web of overlapping
measures
• in many ways, the proposed FTAA combined
the most troubling aspects of all of these
agreements
• the apparent collapse of the full-fledged FTAA
still needs to be carefully sorted out –it would
be premature to declare victory and sit back
• the ultimate meaning of “FTAA-lite” is still an
open question
General Overview
• Structure of the WTO
• Overview of GATS and TRIPS
• NAFTA
• WIPO Copyright Treaty
• Intermediate US bilateral and multilateral
agreements
• FTAA
General Concerns to Libraries
Three general areas of concern:
Measures pertaining to Trade in Services
Measures pertaining to intellectual property
(particularly copyright)
3) Inclusion of NAFTA investment rules in
broader FTAA
1)
2)
All of these areas present important challenges for public
library services and both areas are affected by the
inter-relationship between the WTO agreements, the
FTAA and other treaties and agreements
THE WTO FRAMEWORK
•
•
•
•
basic framework of international trade agreements
is embodied in the General Agreement on Tariffs
and Trade (GATT) which was established in 1947
framework has been amended by successive
rounds of trade negotiations over the years
prior to the conclusion of the Uruguay Round,
(started in 1986 and ending with the 1994 WTO
Agreement) the GATT framework only applied to
trade in goods
1994 WTO Agreement includes annexes on trade in
services (GATS) as well as for intellectual property
rights (TRIPS)
THE WTO FRAMEWORK
•
•
•
advent of the WTO Agreements has
elevated the importance of international
trade agreements into areas that were
previously matters of domestic policy
The WTO framework includes general
provisions on dispute settlement and
enforcement.
GATT, GATS and TRIPS (and other annexed
agreements) are subject to these same
general provisions
Measures Pertaining to
Trade in Services
• WTO-GATS
http://www.wto.org/english/docs_e/legal_e/26-gats.pdf
• FTAA Chapter XVI
http://www.ftaaalca.org/FTAADraft03/ChapterXVI_e.asp
THE GATS FRAMEWORK
Applies to Measures
Article I of the GATS provides:
This Agreement applies to measures by
Members affecting trade in services
The term “measure” is given an expansive
definition by Article XXVIII:
"measure" means any measure by a
Member, whether in the form of a law,
regulation, rule, procedure, decision,
administrative action, or any other
form;
THE GATS FRAMEWORK
Applies to Measures
Article I (3) of the GATS provides that it covers all
levels of government, including local
municipalities as well as to:
non-governmental bodies in the exercise of
powers delegated by central, regional or
local governments or authorities;
•
scope would include a Public Library Board
established pursuant to the Ontario Public
Library Act (or similar legislation in other
provinces, territories or US states, etc.)
THE GATS DISCIPLINES:
What is a service?
•
•
•
unlike the term “measures” there is no express
definition of “services” in GATS
but the broad intent of the Agreement has
been made clear in WTO decisions addressing
the meaning and application of GATS.
GATS disciplines have been given very liberal
application so as to interpret the term
“affecting trade in services” to include
government measures which may only
incidentally affect services.
THE GATS DISCIPLINES
Exception for Government Services
there is general exception to the comprehensive
inclusiveness of the GATS for services
supplied in the exercise of government
authority
Article 1.3(c) defines as such a service :
a service supplied in the exercise of
governmental authority means any
service which is supplied neither on a
commercial basis, nor in competition
with one or more service suppliers.
THE GATS DISCIPLINES
Exception for Government Services
In other words if a service is either
supplied on a commercial basis,
or
supplied in competition with one
or more service suppliers
then the governmental services
exemption is NOT applicable
THE GATS DISCIPLINES
“Progressive Liberalization”
The long-range goal of GATS is a comprehensive set of
agreements that will cover all services. GATS Article
XIX provides:
In pursuance of the objectives of this Agreement, Members
shall enter into successive rounds of negotiations,
beginning not later than five years from the date of entry
into force of the WTO Agreement and periodically
thereafter, with a view to achieving a progressively
higher level of liberalization. Such negotiations shall be
directed to the reduction or elimination of the adverse
effects on trade in services of measures as a means of
providing effective market access. This process shall
take place with a view to promoting the interests of all
participants on a mutually advantageous basis and to
securing an overall balance of rights and obligations.
Measures Pertaining to
Intellectual Property
• WTO-TRIPS
http://www.wto.org/english/docs_e/legal_e/27trips_01_e.htm
• WIPO Copyright Treaty
http://www.wipo.int/treaties/ip/wct/index.html
• FTAA Chapter XX
http://www.ftaa-alca.org/FTAADraft03/ChapterXX_e.asp
The Internationalization of Copyright Policy
• historically, copyright policy has been a matter
of national concern.
• individual countries have determined their own
copyright laws based on their particular needs
and conditions.
• in recent years, copyright policy has become
increasingly internationalized.
Pressures towards Internationalization
of Copyright Policy
• rise of digital networks that transcend borders
• increased importance and scope of international
trade agreements
• from trade in goods to trade in services and
intellectual property
• role of information products re balance of trade
deficits
• national decision making on copyright matters is
now heavily influenced by international
developments.
Proliferation of International Agreements
Pertaining to Copyright
• Pre 1994, Berne Agreement was sole standard
international agreement
• NAFTA includes IP
• 1994 WTO Agreement includes IP
• 1996 WIPO Copyright treaties
• FTAA Draft Agreements include IP
• Other bilateral / multilateral agreements
Proliferation of International
Treaties & Agreements
• Berne
• TRIPS
• NAFTA
• WIPO
•FTAA
•CAFTA
•other bilateral FTAs
?
FTAA
WIPO
Berne
TRIPS
NAFTA
CAFTA
US - xxx
Beyond NAFTA
The ink was hardly dry on
the NAFTA agreement
before the idea of
expanding the
agreement throughout
the Western Hemisphere
was considered.
But President Clinton’s
“fast-track” trade promotion
authority expired in 1994.
Structure of FTAA
• Ministers Responsible for Trade exercise the
ultimate oversight and management of the
negotiations. They meet generally every eighteen
months
• Vice Ministers Responsible for Trade constitute the
Trade Negotiations Committee (TNC), which
manages the FTAA negotiations process
• 9 negotiating groups
• Special Committees address “horizontal issues”
related to the negotiations
Trade Negotiations Committee
• selects the Chair and Vice Chair of each of the 9
negotiating groups
• guides the work of the negotiating groups and of
deciding on the overall architecture of the agreement
and institutional issues.
• takes overall responsibility of ensuring the full
participation of all the countries in the FTAA process.
• should meet as required and no less than twice a year.
9 Negotiating Groups
• Market Access
• Investment
• Services
• Government Procurement
• Dispute Settlement
• Agriculture
• Intellectual Property Rights
• Subsidies, Antidumping & Countervailing Duties
• Competition Policy
Special Committees
• Consultative Group on Smaller Economies
• Committee of Government Representatives
on the Participation of Civil Society
• Joint Government-Private Sector Committee
of Experts on Electronic Commerce
• Technical Committee on Institutional Issues
Negotiating Group on
Intellectual Property Rights
• Agendas and Work Plans available at
http://www.ftaa-alca.org/ngroups/ngprop_e.asp
• Objective (from San José Ministerial Declaration):
“To reduce distortions in trade in the Hemisphere
and promote and ensure adequate and effective
protection to intellectual property rights. Changes
in technology must be considered.”
FTAA Draft Agreements
•
Second draft dated November 1, 2002 (supersedes first draft) full text
available at
http://www.ftaa-alca.org/ftaadraft02/eng/draft_e.asp
• text is based on a limited number of proposals and does not
cover all the elements or provisions on general and institutional
issues of an overall architecture of the future FTAA Agreement
• Article 1: “purpose of this Agreement is to establish a free trade
area in accordance with Article XXIV of the General
Agreement on Tariffs and Trade (GATT) 1994 and
Understanding thereon, and Article V of the General Agreement
on Trade in Services (GATS)”
• Third Draft Agreement (Nov 21, 2003) available at
(November 21, 2003).
http://www.ftaa-alca.org/FTAADraft03/Index_e.asp
History of FTAA
• 1st Summit of the Americas (Miami, 1994)
• Miami Declaration of Principles:
http://www.ftaa-alca.org/ministerials/miami_e.asp
• Plan of Action:
http://www.ftaa-alca.org/ministerials/plan_e.asp
• Four ministerial meetings during the preparatory phase
(June 1995 Denver, USA, March 1996-Cartagena, Colombia,
May 1997 in Belo Horizonte, Brazil, March 1998-San José,
Costa Rica)
• 2nd Summit of the Americas (Santiago, 1998)
• Santiago Declaration:
http://www.ftaa-alca.org/ministerials/chile_e.asp
• formally launched negations
• 5th Ministerial meeting in Toronto (Nov 1999)
History of FTAA
• 3rd Summit of the Americas (Quebec City, 2001)
Ministers received a first draft
text of the FTAA Agreement
from the Negotiating Groups
•6th Ministerial
meeting (Buenos
Aires, 2001)
•7th Ministerial
meeting (Quito,
2002)
Photos by Goran Petkovksi
http://www.contrast-photo.com/story_pgs/gp/
History of FTAA
8th Ministerial Meeting – Miami November 2003
• 8th Ministerial Declaration available at
http://www.ftaa-alca.org/Ministerials/Miami/declaration_e.asp
• Third Draft Agreement Text available at
http://www.ftaa-alca.org/FTAADraft03/Index_e.asp
• See links to news stories at
http://www.oxfam.qc.ca/html_en/press/3medias.html
FTAA-lite?
“Taking into account and acknowledging existing
mandates, Ministers recognize that countries may
assume different levels of commitments. We will seek
to develop a common and balanced set of rights and
obligations applicable to all countries. In addition,
negotiations should allow for countries that so choose,
within the FTAA, to agree to additional obligations and
benefits. One possible course of action would be for
these countries to conduct plurilateral negotiations
within the FTAA to define the obligations in the
respective individual areas. …”
8th Ministerial Declaration available at
http://www.ftaa-alca.org/Ministerials/Miami/declaration_e.asp
FTAA-lite?
“We instruct the Trade Negotiations Committee (TNC) to
develop a common and balanced set of rights and
obligations applicable to all countries. The negotiations
on the common set of rights and obligations will include
provisions in each of the following negotiating areas:
market access; agriculture; services; investment;
government
procurement;
intellectual
property;
competition policy; subsidies, antidumping, and
countervailing duties; and dispute settlement. On a
plurilateral basis, interested parties may choose to
develop additional liberalization and disciplines. “
8th Ministerial Declaration available at
http://www.ftaa-alca.org/Ministerials/Miami/declaration_e.asp
2nd Draft Agreement: Chapter
on Intellectual Property Rights
PART I. GENERAL PROVISIONS AND BASIC PRINCIPLES.
PART II. INTELLECTUAL PROPERTY RIGHTS
SECTION1.TRADEMARKS
SECTION 2.GEOGRAPHICAL INDICATIONS
SECTION 3.COPYRIGHT AND RELATED RIGHTS
[SECTION 4. PROTECTION OF [EXPRESSIONS OF] FOLKLORE]
SECTION 5. PATENTS [FOR INVENTIONS]
[SECTION 6. [TRADITIONAL KNOWLEDGE AND ACCESS TO GENETIC RESOURCES UNDER THE
INTELLECTUAL PROPERTY FRAMEWORK][RELATIONSHIP BETWEEN THE PROTECTION OF
TRADITIONAL KNOWLEDGE AND INTELLECTUAL PROPERTY, AS WELL AS THE
RELATIONSHIP BETWEEN ACCESS TO GENETIC RESOURCES AND INTELLECTUAL PROPERTY]
[SECTION 7. UTILITY MODELS]
[SECTION 8. INDUSTRIAL DESIGNS]
[SECTION 9. RIGHTS OF BREEDERS OF PLANT VARIETIES]
SECTION 10. UNDISCLOSED INFORMATION
[SECTION 11. UNFAIR COMPETITION]
[SECTION 12. ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENSES]
PART III. ENFORCEMENT
PART IV. TECHNICAL COOPERATION
PART V. [TRANSITIONAL ARRANGEMENTS]
PART VI. [OTHER PROVISIONS][FINAL PROVISIONS]
Section 3:
Copyright and Related Rights
Article 1. Definitions
Article 2. Protectable Subject Matter
Article 3. [Rights Conferred] [Economic Rights]
Article 4. Right of reproduction
Article 5. Right of distribution
Article 6. Right of Rental
Article 7. [Right of Participation]
Article 8. Right of communication to the public
Article 9. Moral rights
Article 10. Term of protection
Article 11. Limitations and exceptions
Article 12. [Transfer of Rights]
Articles 13-20 re related rights (performances, phonograms, broadcasts)
Article 21[Obligations concerning technological measures]
Article 22. [Obligations concerning rights management information]
Article 23. [Collective Administration of Rights]
[Article 24. Government use of Computer Programs]
Canada’s position on
IP in the FTAA
•
•
•
•
•
Canada has not yet tabled any proposals on (IP) within the FTAA
negotiations.
“Canada's immediate priority is to ensure that the current international
IP rules are fully implemented, rather than to seek an extension on
existing IP rights protection.”
“Canada's goals regarding IP within the FTAA are to maintain and
support the improvements achieved within the WTO while also
pursuing areas of specific interest to Canada. Ongoing discussions
within the FTAA”
“ [the WTO-TRIPS agreement] establishes comprehensive global
standards for IP protection largely based on several widely accepted
and well established treaties regarding IP.”
“Canada is studying what other countries are proposing in the area of IP
in order to determine if any of these are in the Canadian interest. The
Government is continuing to develop its negotiating position and has
undertaken ongoing consultations with Canadians.”
Canada Department of International Trade & Foreign Affairs
http://www.dfait-maeci.gc.ca/tna-nac/IP-P%26P-en.asp
Submissions on the FTAA
IIPA supports an FTAA IPR Chapter which is a forwardlooking, technologically neutral document that sets
out the most modern copyright obligations. The IPR
Chapter in the proposed FTAA should contain the
highest levels of substantive protection and
enforcement provisions possible. In other words, this
means that the IPR Chapter should, at a minimum:
(a) be TRIPS- and NAFTA-plus,
(b) include, on a technologically neutral basis, the
obligations in the [WCT and WCCT] and
(c) Include modern and effective enforcement provisions
that respond to today’s digital and Internet piracy
realities.
http://www.iipa.com/rbi/2002_Sep23_FTAA.pdf (September 2002)
on Anti-Circumvention
“A provision must be included which tracks the WCT
and WPPT obligations on making illegal the
circumvention of technological measures and ensures
that devices, services and components thereof are
fully covered. Adequate and effective legal remedies,
both criminal and civil, must be incorporated into the
enforcement text. This is an essential element of a
protection system that is adapted to the digital and
Internet Age, where new forms of piracy are already
harming the copyright-based industries.”
http://www.iipa.com/rbi/2002_Sep23_FTAA.pdf (September 2002)
on Moral Rights
IIPA supports Article 9.1 of the TRIPS Agreement which provides that
the rights conferred, or derived from, Article 6bis of the Berne
Convention are not applicable in the TRIPS environment. Said
another way, IIPA believes that moral rights should not appear in
the trade context contemplated by the FTAA. We do note, for
example, that there are some FTAA countries which do include
varying levels of moral rights in their domestic laws. In those
circumstances, IIPA believes the laws should make expressly clear
that moral rights should be waivable (or to rephrase, an author
should be able to exercise his or her moral rights by consenting to
acts that might otherwise violate moral rights). Such waiver is
essential to provide the owner of the economic right with the ability
to finance, market and update the copyrighted product. Furthermore,
because we believe that moral rights are ‘personal’ rights, they
should not subsist after the author’s death, nor should they be
transferred to other entities, including government agencies
http://www.iipa.com/rbi/2002_Sep23_FTAA.pdf (September 2002)
Other recent and pending
US agreements
In addition to the FTAA and WTO, the United States is
pursuing an aggressive strategy of global trade
liberalization through bilateral agreements. In the last
month, the United States has launched FTA negotiations
with five Central American nations (Costa Rica, El
Salvador, Guatemala, Honduras and Nicaragua); with
Morocco; and with the nations of the Southern African
Customs Union (SACU - Botswana, Lesotho, Namibia,
South Africa and Swaziland). The United States also
recently completed FTA negotiations with Singapore and
Chile.
USTR Press Release
February 11, 2003
http://www.ustr.gov/releases/2003/02/03-08.htm
USTR negotiating strategy
on IP under Fast-Track Authority
19 USC 3802 (b)(4) Intellectual property.—
The principal negotiating objectives of the United States regarding trade-related
intellectual property are–
(A) to further promote adequate and effective protection of intellectual property rights,
including through–
(i) (I) ensuring accelerated and full implementation of [TRIPS] particularly with respect to
meeting enforcement obligations under that agreement; and
(II) ensuring that the provisions of any multilateral or bilateral trade agreement governing
intellectual property rights that is entered into by the United States reflect a standard of
protection similar to that found in United States law;
(ii) providing strong protection for new and emerging technologies and new methods of
transmitting and distributing products embodying intellectual property;
(iii) preventing or eliminating discrimination with respect to matters affecting the availability,
acquisition, scope, maintenance, use, and enforcement of intellectual property rights;
(iv) ensuring that standards of protection and enforcement keep pace with technological
developments, and in particular ensuring that rightholders have the legal and technological
means to control the use of their works through the Internet and other global
communication media, and to prevent the unauthorized use of their works; and
(v) providing strong enforcement of intellectual property rights, including through accessible,
expeditious, and effective civil, administrative, and criminal enforcement mechanisms;
Added by “Bipartisan Trade Promotion Authority Act of 2002''.
Public Law 107-210, Title XXI (aka- Fast Track authorization)
US- Central America Free
Trade Agreement
• includes US, Guatemala, El
Salvador, Honduras, Costa
Rica and Nicaragua (not
Mexico or Canada)
• negotiations began in
January 2003
• precursor to FTAA -- US is
pushing CAFTA because of
the strategic role it will play in
advancing the FTAA.
if CAFTA is passed, it will establish a unified block within the
ongoing FTAA negotiations . . . but draft text is unavailable
CAFTA is an impetus
to the FTAA
“an FTA would lend momentum to concluding the Free Trade Area
of the Americas negotiations by January 2005.”
USTR letter to Congress nitiating action on CAFTA
http://www.ustr.gov/releases/2002/10/2002-10-01-centralamerica-house.PDF
“By moving on multiple fronts simultaneously, we create a
competition in liberalization with the United States as a central
driving force. This strategy enhances America’s leadership by
strengthening our economic ties, leverage, promotion of fresh
approaches, and influence around the world.”
Proposed U.S. - Central America Free Trade Agreement Fact Sheet
http://www.ustr.gov/CAFTA-FactSheet.PDF
US- Jordan Free Trade Agreement
•agreement signed on October 24,
2000 / entered into force on
December 17, 2001
•Article 4 contains strong
protections for IPRs (TRIPS + and
WIPO +)
•Article 4 section 13 sets standards
for anti-circumvention rules
to include broad device prohibitions
•Section 10 provides temporary
reproductions are subject to the
reproduction right
‘. . .each Party shall prohibit civilly
and criminally the manufacture,
importation or circulation of any
technology, device, service or part
thereof, that is designed, produced,
performed or marketed for
engaging in such prohibited
conduct, or that has only a limited
commercially significant purpose
or use other than enabling or
facilitating such conduct’
text available at: http://usembassy-amman.org.jo/FTA/FTATxt.html
US- Singapore
Free Trade Agreement
•agreement signed on October 24,
2000 / entered into force on
December 17, 2001
•Article 4 contains strong
protections for IPRs (TRIPS + and
WIPO +)
•Article 4 section 13 sets standards
for anti-circumvention rules
to include broad device prohibitions
•Section 10 provides temporary
reproductions are subject to the
reproduction right
‘. . .each Party shall prohibit civilly
and criminally the manufacture,
importation or circulation of any
technology, device, service or part
thereof, that is designed, produced,
performed or marketed for
engaging in such prohibited
conduct, or that has only a limited
commercially significant purpose
or use other than enabling or
facilitating such conduct’
text available at: http://usembassy-amman.org.jo/FTA/FTATxt.html
http://www.ustr.gov/new/fta/Singapore/consolidated_texts.htm
Valenti on the US- Singapore
Free Trade Agreement
“The US-Singapore Free Trade Agreement
(FTA) represents a milestone agreement that secures market
access for the U.S. filmed entertainment community.
Similar to the historic U.S. Chile Free Trade Agreement that was announced in December, the U.S.Singapore FTA again demonstrates that a trade agreement can be achieved by striking an appropriate
balance between trade liberalization and the promotion of cultural diversity. By rejecting “cultural
exceptions,” the negotiators prove there is adequate flexibility in trade agreements to address specific,
cultural related concerns, such as Singapore’s interest in television content.
We applaud the FTA’s strong provisions on intellectual property protection. From commitments such
as copyright term extension to strong enforcement measures, Singapore’s unparalleled commitments
lead the way for effective regulations that will set the standard for efforts to curtail optical disc piracy
in Asia.
We also commend Singapore for ensuring the protection of creative works in a digital economy.
Singapore’s embrace of strong copyright protection provisions sets the benchmark in Asia for good
protection of content online.
We salute Ambassador Zoellick for his work on behalf of the American intellectual property
community. We are grateful for his determination to negotiate a strong Agreement to protect
America’s creative resources.”
Statement by Jack Valenti on US-Singapore FTA (Jan 17, 2003)
http://www.mpaa.org/jack/2003/2003_01_17.htm
Summary of Copyright Provisions
in US-Chile Free Trade Agreement
• “Right of reproduction encompasses temporary copies, an important principle in
the digital realm.
• New rights unique to the digital age, which help ensure the effective
implementation of standards set out in several international agreements on
intellectual property. For instance, the right of communication to the public
ensures that authors, program writers, and composers have the exclusive right to
make their works available online
• Longer terms of protection for works and phonograms (consistent with U.S.
standards and international trends) (Life + 70 for works measured by a person=s
life; 70 years for corporate works)
•Anti-circumvention obligations to prevent persons from tampering with
technologydesigned to guard against copyright piracy and to manage access to,
and compensation for, music, programs, and literary works provided over the
internet, reflecting the balance attained in US law.
• Requirement that that governments only use legitimate computer software,
setting examples for the rest of the country
• Limited liability for Internet Service Providers, reflecting the balance in U.S.
law between legitimate activity and infringement of intellectual property rights.”
http://www.ustr.gov/new/fta/Chile/summaries/Chile%20IP%20Summary.PDF
“The US Chile Free Trade agreement
represents a landmark achievement on
market access for the filmed
entertainment industry . . .
In stark contrast to some earlier trade
agreements, this Agreement avoids the
“cultural exceptions” approach, while
demonstrating that a trade agreement has
sufficient flexibility to take into account
countries’ cultural promotion interests.
Valenti on the US-Chile
Free Trade Agreement
We are grateful to Ambassador
Zoellick for his tireless efforts in
negotiating this historical Agreement.
He and his staff deserve the gratitude
of all of us in the American
intellectual property community.
We are also encouraged by USTR’s characterization
of the copyright provisions as “groundbreaking” and
“state of the art.” We understand the Agreement
addresses important issues from copyright term
extension and the protection of digital works, to
strong enforcement provisions.
Statement by Jack Valenti on US-Chile FTA (Dec. 11, 2002)
http://www.mpaa.org/jack/2002/2002_12_11.htm
Summary of FTAs
• The US has already concluded bilateral
FTAs with Jordan, Chile & Singapore
• Many others are in progress (CAFTA)
• USTR indicates US will step up strategy of
using individual FTAs in the absence of a
broad FTAA