The producer of press materials (press publisher) shall have the exclusive right to make these press materials publicly available, in whole or in part, for commercial purposes, unless it is a matter of single words or smallest text excerpts.

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

U.S. industry has expressed concerns regarding the policies of several developed trading partners, including Finland, Germany, Greece, Hungary, Italy, Korea, New Zealand, Poland, Portugal, Romania, Spain, Turkey, and Taiwan, on issues related to innovation in the pharmaceutical sector and other aspects of health care goods and services.

Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

The Chilean government said today it does not recognize as a valid instrument rating called "301 list" that makes the United States on violation of intellectual property rights and this year again includes the country in its Priority Watch section .

"This report is conducted outside the margins of the Free Trade Agreement between our country and the U.S., and therefore not recognized by Chile as a valid instrument rating," said a statement released this morning.

The "'301 List' lacks clear criteria for categorizing the different countries, but is rather a reflection of the interests of American industry selectively applying their intellectual property standards to other countries," it added.

[Michael Froman's] one of the most egregious examples — up there with Bob Rubin, literally — we’ve yet seen of the way the revolving door works between business and government generally, and between Citigroup and Treasury in particular.

Leading the search for the president’s new economic team was his close friend and Harvard Law classmate Michael Froman, a high-ranking executive at Citigroup. During the campaign, Froman had emerged as one of Obama’s biggest fundraisers, bundling $200,000 in contributions and introducing the candidate to a host of heavy hitters — chief among them his mentor Bob Rubin, the former co-chairman of Goldman Sachs who served as Treasury secretary under Bill Clinton. Froman had served as chief of staff to Rubin at Treasury, and had followed his boss when Rubin left the Clinton administration to serve as a senior counselor to Citigroup (a massive new financial conglomerate created by deregulatory moves pushed through by Rubin himself).

Incredibly, Froman did not resign from the bank when he went to work for Obama: He remained in the employ of Citigroup for two more months, even as he helped appoint the very people who would shape the future of his own firm....

Geithner, in other words, is hired to head the U.S. Treasury by an executive from Citigroup — Michael Froman — before the ink is even dry on a massive government giveaway to Citigroup that Geithner himself was instrumental in delivering. In the annals of brazen political swindles, this one has to go in the all-time Fuck-the-Optics Hall of Fame.

Wall Street loved the Citi bailout and the Geithner nomination so much that the Dow immediately posted its biggest two-day jump since 1987, rising 11.8 percent. Citi shares jumped 58 percent in a single day, and JP Morgan Chase, Merrill Lynch and Morgan Stanley soared more than 20 percent, as Wall Street embraced the news that the government’s bailout generosity would not die with George W. Bush and Hank Paulson.

One thing to note is the fact that Spain succeeded in staying off the list. As we recently noted, the Spanish government has essentially admitted that its recent copyright reform efforts were designed entirely to keep the country out of the 301 Report. Well, it looks like they got their wish, and all they had to do was sell out their country to US interests. Nobody will be able to say that they sit on a list of dirty thieves alongside backwards pirate nations like Canada and Finland, which brazenly ignore the kind US diplomats who surely have our best interests at heart. Congratulations, Spain!

The 2013 National Trade Estimate Report on Foreign Trade Barriers (NTE) is the 28th in an annual series that surveys significant foreign barriers to U.S. exports. This document is a companion piece to the President's Trade Policy Agenda published in March. The issuance of the NTE Report continues the elaboration of an enforcement strategy, utilizing this report, among other tools, in that strategy.

Reading through the rest of the 400-page report, it's truly extraordinary to see transparency mentioned dozens of times as one of the US's key concerns with other countries around the world. Of course, that's deeply ironic, since the US was not only the lone holdout against ACTA transparency, and responsible for reducing what little transparency was present in the TPP negotiations, but it even refused to be transparent about its own positions on transparency. Hypocritical much?

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The new Chief “Intellectual Property" Negotiator would have to be approved by the Senate Finance Committee — of which Senator Hatch himself is the Ranking Member — and would be required to "be a vigorous advocate on behalf of United States innovation and intellectual property interests." That is to say, this representative wouldn't be there to represent the public interest, or the average Americans who are paying his or her salary.

Worse still, this proposal comes at the precise moment that the legacy content industry's trade agenda has shown itself to be most at odds with the public interest. In particular, opponents of an effective and permanent fix to the Digital Millenium Copyright Act's ban on phone-unlocking have cited language in recent trade agreements as a reason why any such legislation could be impossible — even though it's been described as simple "common sense" by the White House. Regardless of the truth of those opponents' claims, they slow the pace of change, even for extremely popular proposals. In other words, industry interests at the international level are trying to tie the hands of democratically elected legislators and dictate which laws are unacceptable.

As Upton Sinclair once famously wrote: "It is difficult to get a man to understand something, when his salary depends on his not understanding it." On this point, Hatch's proposal is clear: question the assumption that "vigorous" copyright and patent enforcement may be at odds with innovation, or that the public interest should supercede industry interest, and you're out of a job. Appointing a representative for the industries dedicated to "strong" copyright and patent laws all but guarantees that U.S. trade policy will reflect the industry-friendly regulations that representative is paid to promote, regardless of whether they are in the public interest.

First of all, trade agreements don't dictate what laws Congress can and can't pass. If they're executive agreements, they can't override any laws passed by Congress in the past, and even if they're executed as treaties, they can be superseded by later acts of Congress. Just like Congress can pass a law that overrides an earlier law, it can pass a law that overrides an earlier treaty.

It is thus relevant that Justice Ginsburg writes, in dissenting from the majority opinion, that "[u]nlike the Court's holding, my position is consistent with the stance the United States has taken in international trade negotiations." But trade negotiators do not get to decide what the law is: Congress passes statutes and courts interpret them. The USTR is not part of this workflow. If trade negotiators have ever taken positions that are inconsistent with Kirtsaeng then those positions are now, and always have been contrary to US law. I would make a similar argument even if Kirtsaeng came out the other way: trade negotiators should not try to anticipate how contentious legal battles will turn out. They should steer clear of these areas entirely and allow the system to do its work.

“Article 4(2). Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance, or phonogram made without authorization, or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram.”

“Intellectual property and innovation are the cornerstones of American competitiveness and job creation. Yet in recent years, they are all too often relegated to second tier status in our trade policy,” said Hatch. “With our economic competitors getting more sophisticated by the day, finding more ways to steal, expropriate or otherwise undermine the value of U.S. innovation, negotiating strong intellectual property agreements and enforcing them is a necessity, not an option. The establishment of a Chief Innovation and Intellectual Property Negotiator will give intellectual property and innovation the stature they deserve. The Office will help guarantee that America remains at the forefront of innovation policy, that our trade agreements reflect the critical importance of intellectual property to our economy and that the preservation of high-standard IP protection and enforcement are at the forefront of every trade debate.”

We find it troubling that, even as the Trans-Pacific Partnership (TPP) Free Trade Agreement enters its 16th major round of negotiations this March in Singapore, U.S. negotiators still refuse to inform the American public what they have been proposing in our names. Shielding not only proposals, but agreed-upon texts from public view until after negotiations have concluded and the pact is finalized is not consistent with democratic principles. In this regard, the TPP appears to be even less transparent than some past trade negotiations. For example, in 2001, the United States joined with 33 other countries in releasing draft text of the Free Trade Area of the Americans, and draft texts within the World Trade Organization are frequently made available.

The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.

The first is that this bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect (six ratifications are needed). ACTA is toxic in Europe, where officials now go out of their way to assure the public that ACTA is dead and that any new agreements will not involve efforts to revive it. ACTA has also faced serious opposition in other negotiating countries, including Switzerland (which has not signed it), Australia (where a Parliamentary Committee recommended against ratification), and Mexico (where the Senate rejected it in 2010). ACTA was promoted as a "gold standard" agreement on counterfeiting, yet the failure to garner support from many participants has left an agreement that is often cited as an example of how not to engage in international negotiations.  Given the global opposition, Canadian support for ACTA is disappointing.

These comments address a troubling new legislative proposal in Germany that would violate long-established rights of Internet services to make use of information online. The legislation would create a new Leistungsschutzrecht for press publishers, such as newspapers and magazines. Contrary to Article 10(1) of the Berne Convention, this proposed legislation would prohibit Internet platforms from displaying snippets of news stories without obtaining the publisher’s permission and paying a license fee for these quotations. While it is as of yet unclear, we expect that the new right will be administered by a collecting society, with newspapers that wish to exercise the new right being required to join. If this comes to pass, no search engine or affected social media platform will be able to directly negotiate with any publisher; they would instead be forced to enter into a blanket, compulsory license, or be penalized as an infringer of IP rights. Thus, the proposed legislation is simply a government mandated compulsory license, transferring money from one industry to another. As such, it would constitute a costly new market access barrier. Some commentators have even speculated that the legislation might force news search services and affected social media out of the German market, by not returning results for German IP addresses. At the same time, this proposal would have obvious debilitating effects on German-based Internet platforms.

USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

Written comments should include a description of the problems that the submitter has experienced and the effect of the acts, policies, and practices on U.S. industry.

Building on an existing JCCT commitment to develop a Judicial Interpretation making clear that those who facilitate online infringement will be jointly liable for such infringement, China announced that its Supreme People’s Court will publish a Judicial Interpretation on Internet Intermediary Liability before the end of 2012.

For good cause, existing secondary liability law... does not extend to facilitation – it requires more knowing, culpable conduct, or direct financial benefit. A pirate's utility company arguably facilitates piracy by providing electric power to the pirate – and indeed, benefits from the added electricity consumed. We don't penalize utilities for piracy committed by their customers, however: since its inception, secondary liability has been wisely limited exclude such sweeping application.

The term seems particularly inappropriate in relation to commitments extracted from China regarding Internet policy. Construed broadly, "facilitate" could encapsulate any website or web service that allows users to communicate information freely. Given the ambiguity of the term, China could potentially interpret the word broadly to engage in censorship of its own, not only for IP infringement offenses, but for other activities "illegal" in China as well. If censorship concerns were sufficiently problematic in the U.S., they should be at least as problematic in China.

With regard to the second category, we identified sixteen (16) pages of responsive records. We have determined that all 16 pages of responsive records are exempt from disclosure under the deliberative process prong of section of the FOIA. The deliberative process privilege protects the decision making processes of government agencies by encouraging open and frank discussions on policy matters among subordinates and superiors. These records contain predecisional discussions regarding negotiating positions and their implications on future negotiations. Moreover, these documents contain policy recommendations and opinions shared between subordinates and superiors.

This year's seizures of Megaupload.com and Megavideo.com by the Department of Justice illustrate the extent and impact that hosting hubs have on the online landscape. Prior to the seizures, Megavideo.com (Alexa 177) and Megaupload.com (Alexa 72) were estimated to receive 3,447,7741 and 2,640,8452 unique visitors each month, respectively. Megaupload.com alone was estimated to have consumed 11.4% of the Internet bandwidth in Brazil. When these two websites were taken down, many linking websites, custom search engines, and custom streaming scripts that relied on the sites for content became inoperable. Some websites were abandoned by their operators, others lost traffic, while still others shifted their business model. For example, Wupload.com (Alexa 918), which was featured in MPAA's filing last year, disabled file sharing. Affiliate programs that paid uploaders for content were also discontinued or removed by many hubs. Further, infringing content was purged by operators in bulk, which was followed by uploaders who deleted their own files to prevent the hubs from profiting on the uploads without paying incentives. In sum, the impact of these seizures was massive and the hub landscape is still recovering.

On the eve of the World Conference on International Telecommunications (WCIT), we believe that it is the right time to reaffirm the U.S. Government's commitment to the multistakeholder model as the appropriate process for addressing Internet policy and governance issues. The multistakeholder model has enabled the Internet to flourish. It has promoted freedom of expression, both online and off. It has ensured the Internet is a robust, open platform for innovation, investment, economic growth and the creation of wealth throughout the world, including in developing countries.

[....] The Internet's decentralized, multistakeholder processes enable us all to benefit from the engagement of all interested parties. By encouraging the participation of industry, civil society, technical and academic experts, and governments from around the globe, multistakeholder processes result in broader and more creative problem solving. This is essential when dealing with the Internet, which thrives through the cooperation of many different parties.

The global community has many serious topics to discuss with respect to the Internet. Collectively, we need to ensure that these matters are taken up in suitable multistakeholder venues so that these discussions are well informed by the voices of all interested parties.

Our commitment to the multistakeholder model is based on the fact that transparency, inclusion and participation are the 21st century standards governing discussions related to modern communications.

We have and will continue to advocate for an Internet that is not dominated by any one player or group of players, and one that is free from bureaucratic layers that cannot keep up with the pace of change. We will work with everyone to ensure that we have a global Internet that allows all voices to be heard.

Transient copies, such as buffer copies on a computer’s random access memory (RAM), are necessary for a host of streaming services that carry content over the internet to end users. Recognizing a right to exclude such copies, in addition to the ultimate right to distribute the content itself, adds another layer of licensing requirements that can block innovative services (like Netflix or Pandora) from being offered. Many other trade agreements and national and regional laws contain explicit exceptions for “transient” or “incidental” copies necessary for technological or other communications. But the Panama Free Trade Agreement contains nothing of the kind, and neither does Panama’s law. By extending protection to temporary electronic storage, with no clear exception for transient electronic copies – the Panama bill fails to give internet service providers and other businesses the legal certainty they need to enter and maintain operations in Panama’s market.

Free trade agreements have great potential to unleash new competition in markets, producing better products and services at lower prices. This assumes, however, that these agreements actually lower barriers to trade.

Unfortunately, due to misaligned priorities and poor drafting, the U.S. Government’s framework for free trade agreements has neglected aspects of U.S. law that are instrumental to a flourishing Internet sector, and in doing so has erected new barriers to tech exports.

The trend of expanding liability and constraining the balancing provisions of copyright law also manifested recently in Colombia. Also responding to a recently enacted Free Trade Agreement with the United States, Colombia hurriedly passed a controversial copyright revision this spring which similarly left little flexibility for technology innovation. The upshot of the copyright law revisions in these countries is to erode certainty and discourage investment by online services, e-commerce platforms, device manufacturers, and ISPs. This is not lowering barriers to market access.

It would be a mistake to understand this as solely an issue affecting U.S. exports, however. In fact, it is a more serious issue for our trading partners, because while U.S. firms may look to more fertile export markets, Colombian and Panamanian firms must survive at home before they can reasonably expand abroad.

1. USTR should make the US positions (not those of other countries) open to the public. She doesn't even say the full text needs to be open, but merely summaries of the US's position. It's hard to see any reasonable argument against this. Since the USTR is negotiating on behalf of the American public (in theory, though the reality often seems so different), it seems ridiculous that the USTR would ever not put out at least summaries of its positions on what it's negotiating. Contrary to Kirk's claims, this does not weaken the US's negotiating ability at all. Quite the opposite, it strengthens it by making it subject to public scrutiny and input, while also highlighting to the world our resolve in coming up with a proposal that the public will accept.
2. Any IP section within TPP must have strong support for flexible "limitations and exceptions" for things like fair use and the public domain. While the USTR has shown a willingness to include some text on limitations and exceptions, the most recent leak raises questions since it appears to be rather inflexible and goes much further than is reasonable.
3. USTR should create more representative "trade advisory committees," which it consults on these issues. As it stands, the ITACs (International Trade Advisory Committee) is heavily, heavily biased in favor of older legacy industries, rather than innovators or the public. Lofgren reasonably suggests that a lot more thought and effort should go into fixing how unbalanced these committees are, since they have tremendous influence over the text.

The contempt for the public is all the more clear when USTR carries out an extensive system of briefing corporate interests on the nature of the proposals it makes in the negotiations, and openly embraces a double standard for access that can best be understood by the public when looking at the amount of money that various parties dump into political campaigns, in part to obtain this type of preferred access. According to USTR, the Advisory board for intellectual property rights is chaired by Richard Kjeldgaard, the Deputy Vice President, International Intellectual Property, PhRMA. That pretty much sums up how this process is perceived. The fact that the Obama Administration cares more about PhRMA than the public as regards access to information is a great disappointment.

In Eric Schwartz of IIPA's testimony, he claims that the 3-step test applies to all exceptions, including those like the quotation or news of the day exceptions, which are mandatory. When State asks him a question about the TPP text, Scwartz says he has only seen the leaked text. Exchange illustrates the ackward nature of asking for comments on a secret text.

“USTR is committed to transparency in trade negotiations,” said Ambassador Kirk. “Today’s hearing is a good example of our engagement with interested stakeholders and members of the public. As the TPP negotiations progress, we will continue to ensure that all interested parties have an opportunity to express their views.”

We just received an email from the USTR indicating that they are going to cut down the already inadequate 15-minute time allotment for our stakeholder presentation, to a mere eight minutes. In addition, they will all be held in four separate rooms. So not only will the presenters have barely any time to discuss their specific concerns with the agreement, it will literally be impossible for negotiators to attend all the presentations they would be interested in hearing since they will all be held simultaneously in different locations. Moreover, this entire round of negotiations will last 10 full days, and so it seems especially odd that they would need to cut down time for public participation this drastically.

Good evening,

You are confirmed for a stakeholder presentation slot on Sunday, September 9^th during TPP Round 14 Direct Stakeholder Engagement Forum.

Due to space constraints and an overwhelming showing of interest, we will have to limit presentation time to 8 minutes. Each presentation room will have a laptop, projector, and screen. If you would like to give a PowerPoint presentation, all you need to do is bring your presentation with you on a flash drive. No need to send to me ahead of time.
Please plan ahead so that your presentation fills the allotted time. We will have to stop you at the 8 minute mark in order to give every presenter an equal opportunity to make their presentation.

A schedule of presentations will be provided for you at the round. All presentations will be scheduled within the 11:00 am- 2:00 pm block, and take place in Potomac rooms A, B, C or D.

Thank you, again, for your participation. We value your input, and look forward to an on-going conversation regarding TPP.

Very best,

USTR

Members shall confine limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder

Article QQ.G.16: Limitations and Exceptions

[US:
1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

[US/AU propose: With respect to this Article and Articles 5 and 6, each party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. [NZ/CL/MY/BN/VN propose; US/AU oppose: Paragraph 1 permits a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws. Similarly, these provisions permit a Party to devise new] [US/AU propose; NZ/CL/MY/BN/VN oppose: its understood that each party may, consistent with the foregoing, adopt or maintain] exceptions and limitations for the digital environment.]

---
92 [US: For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under paragraph 2]
93 Negotiator’s Note: SG/PE: Can accept both versions of paragraph 1.

Dear Congress: WHY IS THIS NEGOTIATING TEXT KEEP SECRET FROM THE PUBLIC?

Leaks are hard to come by, and do not invite as much scrutiny as official versions that are shared with the public.

Imagine being invited to formally offer input on a huge piece of legislation, a proposed international agreement that could cover everything from intellectual property rights on the Internet to access to medicine to investment rights in the agreement’s signatory countries. For 10 minutes, you’d be able to say whatever you’d like about the proposed law—good, bad, or indifferent—to everyone involved in the negotiations. But there’s a caveat: All of your questions, all of your input, on what may be the most controversial part of the package, would have to be based on a version of the proposed international agreement that was 16 months old. And in that 16-month period, there were eight rounds of negotiations that could have changed any and all of the text to which you had access, but no one could tell you if that version was still accurate.

Would you still take the deal? This is not a hypothetical question; rather, this is the take-it-or-leave-it offer made to the public in May by the United States Trade Representative regarding the intellectual property rights chapter of the massively important but little-known Trans-Pacific Partnership Agreement (TPP).