Growing Consensus Around Balanced Copyright Policy

by Ali Sternburg on July 18, 2013

This morning, the new USTR Michael Froman testified before the House Committee on Ways and Means about a variety of trade policy issues, including the Trans-Pacific Partnership (TPP).  In response to a question about access to medicine from Rep. Jim McDermott (D-WA), Ambassador Froman emphasized the need for balance in intellectual property policy.  Froman said the U.S. has been educating trade partners and stakeholders about provisions in U.S. law that achieve this balance, and been engaged in dialogues about principles.

This hearing followed a recent bipartisan letter to Ambassador Froman about intellectual property provisions in the TPP, signed by Rep. Doris Matsui (D-CA) and Rep. Michael McCaul (R-TX), Co-Chairs of the Congressional High Tech Caucus, along with 25 other Representatives.  The letter emphasizes the need for balanced IP in trade agreements, most notably urging the Administration to

address the problems of infringement of intellectual property rights in a manner that balances the rights and interests of the relevant right holders, service providers and users while respecting the interests of other relevant stakeholders.

Intellectual property is fundamentally a balance between private interests and the public interest, with established limitations and exceptions to rights-holders’ exclusive rights, such as the copyright doctrine of fair use.  The Constitution’s Copyright Clause empowers Congress to “promote the Progress of Science” through exclusive rights and limited monopolies, with the goal of incentivizing dissemination of creativity, knowledge, and information to the public.  Additionally, as Matt recently pointed out, a recent study

found that industries depending upon fair use and related limitations and exceptions accounted for an average of 4.6 trillion in revenues, and contributed an annual average of $2.4 trillion in “value added” to the U.S. economy, or approximately 17 percent of total U.S. current dollar GDP.

This recent letter reaffirms the Administration’s clearly and repeatedly articulated commitment to balanced IP policy, demonstrated below with quotes from several agencies, which is also consistent with years of Supreme Court precedent.

The Intellectual Property Enforcement Coordinator recently released the 2013 Joint Strategic Plan on Intellectual Property Enforcement, a report that mentioned fair use, limitations and exceptions, and balance many times.  One excerpt referred to USTR’s work in the TPP negotiations advocating for balanced IP alongside other U.S. agencies and other nations including Australia, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam:

USTR is also seeking possible enhancements in certain areas, such as . . . a commitment by parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research.

Similarly, in July 2012, the Office of the U.S. Trade Representative proposed a new copyright exceptions and limitations provision to the TPP to achieve balance, saying in a statement:

For the first time in any U.S. trade agreement, the United States is proposing a new provision, consistent with the internationally-recognized “3-step test,” that will obligate Parties to seek to achieve an appropriate balance in their copyright systems. . . . These principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence.

In 2009, the U.S. delegate to WIPO, Justin Hughes, gave a statement on behalf of the U.S. at the WIPO Standing Committee on Copyright and Related Rights on copyright exceptions and limitations for persons with print disabilities:

We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share that point of view. The United States is committed to both better exceptions in copyright law and better enforcement of copyright law. Indeed, as we work with countries to establish consensus on proper, basic exceptions within copyright law, we will ask countries to work with us to improve the enforcement of copyright. This is part and parcel of a balanced international system of intellectual property.

That a substantial number of members of Congress as well as various U.S. agencies have endorsed balanced IP is hardly surprising; the Supreme Court has articulated this balance for decades.  Just a few examples are below:

“Congress . . . has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or inventors in order to give the public appropriate access to their work product . . . . [T]his task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other. . . .”  Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984).

“[The Intellectual Property Clause] reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’”  Bonito Boats Inc. v. Thunder Craft Boats Inc., 489 U.S. 141, 146 (1989).

“Because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement.”  Fogerty v. Fantasy Inc., 510 U.S. 517, 527 (1994).

“[A]s the Founders recognized, monopoly is a two-edged sword. On the one hand, it can encourage production of new works. . . . On the other hand, copyright tends to restrict the dissemination (and use) of works. . . . Consequently, the original British copyright statute, the Constitution’s Framers, and our case law all have recognized copyright’s resulting and necessary call for balance.”  Golan v. Holder, 132 S. Ct. 873, 900 (2012) (Breyer, J., dissenting).

Given these established positions, that members of Congress insisted on balanced IP to Ambassador Froman is hardly new.

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