Public
FTAA.soc/civ/78
May 23, 2003

Original: English

FTAA - COMMITTEE OF GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CIVIL SOCIETY

CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION

The U.S. Chamber of Commerce, the Association of American Chambers of Commerce in Latin America (AACCLA), and the U.S. Section of the Brazil-U.S. Business Council welcome this opportunity to present our views on the emerging Free Trade Area of the Americas (FTAA).  We strongly support free trade in the hemisphere, and we have previously submitted recommendations to the Committee of Government Representatives on the Participation of Civil Society and to the previous seven meetings of the Americas Business Forum giving our perspective on how the agreement should be framed.

The protection and enforcement of intellectual property rights is critical to the promotion of cultural diversity and the transfer of technology, which in turn promotes economic development.  We urge that the FTAA set new standards for intellectual property protection beyond those set in existing multilateral or regional agreements.  Negotiations should ensure intellectual property protection of patents, proprietary software and other trade secrets, as well as include disciplines for the protection and enforcement of intellectual property rights and service marks.  As a vehicle for the enforcement of intellectual property rights, we believe FTAA countries should support measures to reduce piracy and counterfeiting, as well as implement the WTO’s Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.  Above all, the FTAA should be a “TRIPS plus” agreement, offering protections for IP that go beyond those agreed to within the WTO context.

The U.S. Chamber of Commerce, the Association of American Chambers of Commerce in Latin America (AACCLA), and the U.S. Section of the Brazil-U.S. Business Council welcome this opportunity to present our views on the emerging Free Trade Area of the Americas (FTAA).  We strongly support free trade in the hemisphere, and we have previously submitted recommendations to the Committee of Government Representatives on the Participation of Civil Society and to the previous seven meetings of the Americas Business Forum giving our perspective on how the agreement should be framed.

                Specifically we recommend that the governments in the hemisphere agree during the Quito FTAA Ministerial to take the following actions to build a strong foundation for the final FTAA Agreement, including endorsing the following measures:

• The FTAA countries should continue to strengthen intellectual property rights protection, including through implementation and enforcement of the World Trade Organization (WTO)/Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, and supporting measures to reduce piracy and counterfeiting.

• All FTAA countries should become parties to, and implement the provisions of, the World Intellectual Property Organization (WIPO) Copyright Treaty and WIPO Performances and Phonograms Treaty.

• All FTAA countries should provide record companies and performers with broad exclusive rights to control the transmission of recordings and performances through digital signals.

• All FTAA countries should prevent the manufacture, importation, distribution or sale of devices or services designed to circumvent technological protection measures employed by rightholders to prevent the unauthorized use of, or access to, protected materials.

• All FTAA countries should harmonize the term of protection for copyright and related rights, the first at life plus seventy, and the latter at 95 years from publication.

• FTAA countries should abide by the WIPO’s 1999 “Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks.”

• The FTAA countries should take the necessary steps to adhere to and implement existing multilateral agreements, including the Brussels Convention, Berne Convention, Paris Convention, Budapest Treaty, Patent Cooperation Treaty, Trademark Law Treaty, and Madrid Protocol on the International Registration of Marks.

• The FTAA countries should only allow for compulsory licensing of patented products or processes in compliance with the stipulations outlined in Article 31 of the TRIPS agreement and Article 5A(4) of the Paris Convention.

• The FTAA countries should protect against unfair commercial use of any undisclosed test data received as part of an application to market a specific new pharmaceutical or chemical product.

• The FTAA countries should notify pharmaceutical patent holders of the identity of any company that is seeking approval to market a generic version of their patented invention while the patent is in effect.

• Under the FTAA Agreement, intellectual property holders seeking compensation for infringement should be able to receive compensation for any harm suffered, based on the retail or other value the right holders have set for their products or works, and also recover profits the infringers made.

• Under the FTAA Agreement, government agencies should have authority to seize suspected pirated and counterfeit goods, the equipment used to make or transmit them, and documentary evidence.  Also, government agencies should be empowered to take criminal action against piracy and counterfeiting without waiting for a formal complaint by a private party or right holder.  Maximum criminal fines should be high enough to deter and remove the incentive for infringements.

• The FTAA countries should immediately adopt and implement measures to reduce piracy and counterfeiting in the Hemisphere, within each country and at its borders, including measures along these lines:

• Urgently create a central plan and central coordination for anti-piracy efforts;

• Improve judiciary performance through training and orientation aimed at deterring intellectual property crimes and infringement; and

• Improve intellectual property legislation with relevant sanctions, presumptions and speedier processes.

• The FTAA countries should take steps to avoid unnecessary duplication in patent examination systems in the region, e.g., through exchanging databases and confirmation of patents.

• Unrestricted public access to current and accurate contact information about domain name registrations is a key ingredient in effective enforcement against copyright piracy in the online environment.  The FTAA should require signatories to take steps to ensure that the country code domain registries under their control provide this public access, such as by bringing their registration policies into compliance with the WIPO ccTLD Best Practices for the Prevention and Resolution of Intellectual Property Disputes.

We would like to underscore the importance of — and reiterate our support for — the following recommendation, which was endorsed during the intellectual property negotiation workshop at the VI Americas Business Forum in Buenos Aires, Argentina:

• We support and would like to highlight the importance of the decision of the 2001intellectual property rights workshop at the VI Americas Business Forum promoting the establishment of supplementary protection for pharmaceutical patent holders that grant extensions on the terms of their patents to compensate for any unreasonable delay in obtaining marketing approval for their products.