Experts Testify on Intellectual Property Challenges Ahead of US-EU TTIP Negotiations

The Obama Administration’s inter-agency Trade Policy Staff Committee (TPSC) convened the initial day of its two-day hearing on the Transatlantic Trade and Investment Partnership (TTIP), focusing heavily on intellectual property (IP) and internet privacy concerns expected to dominate forthcoming negotiations between the United States and the European Union.

Chaired by Doug Bell alongside Assistant USTR for Europe and the Middle East Dan Mullaney, the panel also included representatives from the Departments of Health and Human Services, State, Labor, and Commerce. The hearing featured testimony from multiple stakeholders, whose written submissions are publicly available through the USTR docket.

Stephen Metalitz, representing the International Intellectual Property Alliance (IIPA), a coalition of seven trade associations advocating for copyright protection, emphasized the shared interest of the US and EU in maintaining robust copyright regimes. He highlighted that both economies benefit significantly from copyright industries, which contribute disproportionately to economic growth. Metalitz referenced the US-EU High Level Working Group on Jobs and Growth, noting its recognition of mutual commitments to strong IP protection and enforcement.

Metalitz proposed that the TTIP’s IP chapter should diverge from prior US trade agreements, not by imposing stricter rules, but by leveraging the already strong IP frameworks on both sides. He advocated for enhanced US-EU collaboration in international forums such as the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), and emerging internet governance bodies. Additionally, he called for joint efforts to combat piracy in third countries where enforcement is lax, and for systematic exchanges of best practices regarding IP implementation.

In response to questions from the State Department representative, Metalitz identified differences in US and EU approaches to copyright protection, citing variations in national treatment of sound recordings and the absence of federal anti-camcording laws in some European countries. He also noted the US’s more advanced voluntary agreements addressing online piracy.

Assistant USTR Mullaney inquired about specific third countries where cooperation could be intensified. Metalitz pointed to China and Ukraine as priority targets for strengthening IP enforcement. He also highlighted widespread issues in third countries, including government use of unlicensed software and challenges related to collective management organizations.

Krista Cox of Knowledge Ecology International (KEI), a nonprofit dedicated to innovative knowledge resource management, urged greater transparency in the TTIP negotiation process. She criticized the current advisory system that grants privileged access to corporate advisors while excluding the general public. Cox recommended adopting transparency standards akin to those in WIPO and WTO negotiations.

Cox cautioned negotiators to consider ongoing domestic IP reform efforts, such as the Register of Copyrights’ recent calls for revisiting copyright law and Congressional Judiciary Committee hearings on reform. She warned against creating trade obligations that could hinder these initiatives, specifically referencing the Supreme Court’s recent ruling on parallel imports, which conflicts with US positions in other trade talks like the Trans-Pacific Partnership (TPP).

Echoing European Trade Commissioner Pedro Martins’ statement against upward harmonization, Cox advocated for TTIP provisions that benefit consumers and users. She suggested including measures to facilitate cross-border sharing of accessible works for the visually impaired.

When asked about additional forums for US-EU collaboration, Cox pointed to the World Health Assembly’s efforts toward a binding research and development convention, WIPO’s Conference for the Visually Impaired, and ongoing WIPO discussions on limitations and exceptions for libraries and educators.

Regarding internet intermediary liability, Cox noted that the leaked US TPP proposal was modeled on the Digital Millennium Copyright Act (DMCA) but lacked certain protections, such as those for universities. She recommended that all DMCA safeguards be incorporated into both the TPP and TTIP frameworks.

Sean Flynn of the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law testified independently, advocating for the exclusion of intellectual property from TTIP. He referenced the original recommendation of the US-EU High Level Working Group proposing the trade pact.

Flynn argued that US trade policy has repeatedly faltered when attempting to transplant IP provisions from bilateral agreements into broader plurilateral deals. He cited the Anti-Counterfeiting Trade Agreement (ACTA), the stalled TPP negotiations, and the failed Free Trade Area of the Americas as cautionary examples where IP demands impeded progress.

The hearing underscored the complexity and sensitivity of intellectual property issues in the TTIP negotiations, with stakeholders urging a balanced approach that respects existing strong protections while promoting transparency, cooperation, and respect for domestic policy evolution.