FTAA Treaty Threatens Innovation

The Importance of writes "IP Justice has published a white paper on the intellectual property aspects of the Free Trade Area of the Americas (FTAA) treaty, which is an attempt to create a single free trade agreement for the Western Hemisphere. Read the press release. The analysis is pretty devastating. The proposed language of the agreement has a number of serious flaws, including (but certainly not limited to) enhanced criminal penalties, a super-DMCA provision, reduced scope for fair use, and database protection elements. The proposed treaty is supposed to be complete by January 2005 and go into effect December 2005. Now is not too early to let your representatives and others know what a bad idea the intellectual property elements of the treaty are."

Comments

Representatives?

[Jeffrey Baker]

If you live in the USA, contacting your representative will be fruitless. The Senate ratifies treaties without consulting the House. Try contacting your Senator instead.

buh-bye Fair Use

[mabu]

Article 1 of the copyright section in the draft FTAA Treaty proposes the following new definition for "fair use":

"Use that does not interfere with the normal exploitation of the work or [unreasonably] [unjustifiably] prejudice the legitimate interests of the author [or right holder]".

FTAA's proposed definition is dramatically narrower than the current open-ended definition of fair use guaranteed by the US Constitution and codified in Section 107 of the US Copyright Act.[40] The US Supreme Court stated that fair use must be decided on a "case-by-case basis" and that there can be no "bright line rules" for deciding matters of fair use. Fair use is intended to permit unauthorized, but socially beneficial, copies of copyrighted works in cases such as personal use, research, and criticism.

In determining whether a particular use would be fair, traditional US copyright law focuses the question primarily on the use engaged it. In contrast, FTAA's definition for fair use focuses solely on the commercial interests of the copyright holder in determining whether a particular use would be ruled fair. No consideration is given to the social benefits of the use under the proposed FTAA Treaty.

FTAA's narrow definition of fair use also gives short shrift to Americans' freedom of expression rights guaranteed by the US Constitution. For example, copying something in order to criticize it can easily prejudice the rightsholders' interests (since it could discourage patronage); and traditional fair use, which accounts for free speech interests, would permit such copying. But under FTAA's definition, copying for critical purposes will count against the use being considered fair, chilling freedom of expression throughout the hemisphere.

If Fair Use is redefined in this manner, it seems like the FTAA could be interpreted to outlaw public libraries. If you check out a book as opposed to buying it, under the FTAA's new economic-based model of assessing Fair Use, a library would be liable for causing financial damage to the publisher.

Kudos to our corporate overlords for their foresight and wisdom.