US Trade Representative (USTR)

The recently leaked Trans-Pacific Partnership (TPP) provisions do “disappointingly little to protect users’ rights,” wrote Public Knowledge Director-Global Knowledge Rashmi Rangnath in a blog post (http://xrl.us/bnkumm). Rangnath criticized the leaked provisions, which provide a glimpse into the ways the U.S. Trade Representative has attempted to negotiate the free trade agreement with eight other countries. Specifically, Rangnath took issue with the provisions’ “three-step test,” which would determine which unlicensed uses of copyrighted material would be legal. According to the post, “one of the standard iterations of the test” designates exceptions to copyrights as “[1] certain special cases that [2] do not conflict with a normal exploitation of the work, performance, or phonogram and [3] do not unreasonably prejudice the legitimate interests of the rights holder.” This test on its own leaves too much room for interpretation, Rangnath said: “The controversy over how to interpret the three-step test means that many countries may hesitate to protect users’ rights in their copyright laws, out of a fear that the provisions they adopt will be assailed as violating their international obligations. ... Given this environment, provisions in international agreements like the TPP need to spell out in more detail what copyright limitations and exceptions should look like.” While Rangnath commended the provisions for “enumerating purposes such as criticism, commentary, news reporting, research, and scholarship,” she encouraged USTR to include provisions that would “promote uses of works by people with disabilities,” such as translating reading material into Braille, and “promote educational uses of works including by transmission over wired or wireless networks.” Concepts like these, Rangnath said, can be found in the Trans-Pacific Strategic Economic Partnership Agreement of 2005, which, she said, “is technically the predecessor to the TPP. ... However, it is unclear whether those provisions will still be valid and applicable if the TPP comes to force.” A USTR spokeswoman declined to comment on the leaked provisions. Regarding the release of the official draft, the spokeswoman told us the “full draft of the negotiated TPP text will be made public at the completion of negotiations, so that Congress and the public can have ample time to review and discuss before Congress acts on any legislation to implement the TPP agreement."

President Barack Obama’s choice for U.S. intellectual property enforcement coordinator is nailed down, but the White House hasn’t decided where in the administration to place her, we're told. Victoria Espinel, who recently left the George Mason University Law School and was the first assistant U.S. Trade Representative for IP, had been rumored to be the leading candidate for several months, but this summer she has been practically guaranteed the job, a copyright industry insider told us. The White House doesn’t want to seek Senate confirmation until it settles on where the office will go, the source said. Many senators expected the official to be in the Executive Office of the President, an idea applauded by executives with copyright-related companies, the source said. Another idea is to put Espinel back in the office of the U.S. Trade Representative as an independent official, not reporting to the representative, Ron Kirk. The Office of Science and Technology Policy is where Espinel would be “most likely to be buried,” because the office often takes positions contrary to copyright companies’ preferences, the source said. A spokesman for Public Knowledge said the group, generally identified with what’s called the copyleft, doesn’t have a position on where the office should be. But he also said the USTR had been widely discussed. Keith Kupferschmid, Software and Information Industry Association senior vice president of intellectual property policy, said placing the czar in its own office was the best option but would be an “uphill battle,” while putting Espinel at OSTP “would make no more sense than coupling Oscar and Felix.” The Office of Management and Budget, which historically doesn’t create policy, nevertheless could be the best option, since it coordinates projects with several agencies -- the core function of the IP czar, he said. We couldn’t reach Espinel for comment.

India is “self-reliant” in the communications satellite area, Madhaven Nair, chairman of the Indian Space Research Organization, told a Wednesday Washington, D.C., policy lunch. The country has a fleet of satellites carrying a total of 200 transponders, Nair said. As India builds new communications satellites, their capacity already is reserved, he said.

Rep. Portman (R-O.) has solid credentials and ties to the White House and Capitol Hill, but President Bush’s nominee as U.S. Trade Representative will be an unknown quantity in that role, telecom industry officials said Thurs. Portman, 49, was a surprise choice to replace Robert Zoellick, who left in Feb. for the State Dept.’s No. 2 spot.

A handful of World Trade Organization member countries have policies unfriendly toward the U.S. satellite industry, according to a new Satellite Industry Assn. (SIA) report. The document, which some experts said could have some influence, also singled out several countries not part of WTO but with membership offers on the table.

The U.S. Trade Representative (USTR) is concerned that Korea will require mobile wireless broadband service providers to use the 802.16 standard to get access to up to 100 MHz of spectrum expected to open up in that country next year. The Korean govt. has said it will open up spectrum at 2.3 GHz next year and will begin licensing mobile wireless broadband services in that country. But it said as a condition for service, it would require use of the 802.16 standard. “While this is an improvement over initial plans to mandate an alternative indigenous Korean standard, this approach remains overly restrictive and will preclude many commercially proven U.S. technologies from accessing the Korean market,” a U.S. trade official told us. Another country of concern is Japan, officials said.

U.S. Trade Representative Robert Zoellick called for a global agreement to open markets and expand trade in high- tech goods and services. “To keep generating good jobs for Americans here at home, we have to stand firmly against economic isolation,” he said at an Electronic Industries Alliance dinner Tues. in Washington. Zoellick said the U.S. had to be “bold and ambitious in our agenda to open markets and expand trade” in industrial goods and services. “To successfully address new challenges that are part of the global trading networks, we must tear down tariff walls and non-tariff barriers, especially in high-tech goods, and we must also overhaul old customs procedures that choke trade at borders,” he said. Zoellick said “some important progress” had been made since the Doha negotiations broke down in Cancun. On industrial goods, he said, “I believe that we are closing in on a framework for liberalization that will focus on core elements, including a non-linear, line-by-line formula cut in tariffs, complemented by eliminating all tariffs negotiated sectors and a serious effort to try to address the non-tariff barriers, both sector-by-sector and across sectors.” He encouraged the high-tech industry to “continue to help us by working with industry associations in other countries to try to build a critical mass of countries that are willing to participate.” Zoellick said the goal was to reach agreement on “these critical frameworks” in goods and services before Aug., and trying to “keep the global trading rules and objectives aligned with a very rapidly changing, globally interconnected digital society” is one of the main challenges trade negotiators face. He said other challenges were “dealing with billions of new entrants to the global trading system” and “using enforcement strategies that will produce real results, not just rhetoric and lawsuits.” Zoellick said while “some have suggested that we should measure the commitment to trade enforcement by how many law suits we bring in the WTO… It’s not a good measure of real commercial results, especially in an industry that is as fact-moving” as high-tech. He said the USTR also used its “leverage with countries that want to enter free trade agreements [FTAs] with the United States. Dealing with some… issues before negotiations even begin allows us to produce what we are in the market for: Real results.” He said the USTR, which last week signed an FTA with Australia - - only the 3rd FTA between developed countries -- hoped to close an FTA with Bahrain today (Thurs.), 5 Central American countries Fri. and Morocco in about 2 weeks. Zoellick said to meet the challenges, “our trade agenda must be bolder and push faster for results that ever before.” To achieve that, he said “we need to keep up the positive momentum” by: (1) “Passing these bilateral [FTAs] through the Congress, including this year.” (2) “Negotiating new [FTAs] that set very high standards for liberalization.” (3) “Pressing other countries to create a level playing field for U.S. exporters.” (4) “Making the case in [high-tech] communities… about the importance for open markets for [high-tech] companies and the country.” (5) “Renewing our commitment to make 2004 a year of real progress in the Doha round of global negotiations.” He said the Constitution gave Congress authority over trade. “We need to make our case… with members of Congress, both at home and in Washington,” he said. After the dinner, the crowd buzzed over the speech delivered by Hewlett-Packard Chmn. Carly Fiorina, who emphasized the role of information technology (IT) to create economic prosperity, which in turn would foster peace. Accepting the EIA Medal of Honor, Fiorina spoke of 2 women in India who worked their way out of poverty by using a solar- powered digital camera and printer -- donated by HP -- to start a business photographing weddings and other social events. The women earned more in a week than they had previously earned in a month, she said. She said Internet usage was higher in sub-Saharan Africa than in the Arab world, and suggested economic prosperity could go a long way toward deterring terrorism.

Telecom and intellectual property are among the major issues Russia should address before it can enter the WTO, a U.S. Trade Representative (USTR) spokesman told us. “The pace of the accession process is determined by Russia,” he said: “It’s been an on-again and off-again process, but we are pleased the talks are on again.” The spokesman didn’t speculate on timing for the entry, but U.S. Trade Representative Robert Zoellick indicated last week Russia could become a WTO member by year-end. “There is no limitation on our part in terns of trying to get that done by the end of the year and I would be very pleased if we could,” Zoellick said Fri. after the meetings of the OECD in Paris. He praised Russia for “making some headway” with the European Union, saying “that will be good because… once there is a commitment made to one country they apply to all countries.” He also noted that after Russian President Vladimir Putin was reelected in March, there was a “renewed effort to try to work through some of the issues that we'll have to work through.” But he said there was “a real problem with intellectual property rights,” with the estimated loss from copyright piracy reaching $1 billion a year. The USTR spokesman said to enter the WTO, Russia should “make sure [of] fair access for American and European” carriers to its telecom market. He also said Russia should “put in place some domestic legislation to comply with the WTO” requirements.

U.S. Trade Representative (USTR) said it reached an agreement with Korea to ensure that U.S. systems competing with Korea’s Wireless Internet Platform for Interoperability (WIPI) technology can continue to operate in that country’s telecom market. The long-standing trade dispute could have shut the U.S. telecom companies out of an important part of Korea’s market. “American telecommunications companies can now be assured of unimpeded access to this important market,” said USTR’s Robert Zoellick. The dispute goes back more than 2 years, when the Korean govt. launched development of the WIPI standard -- a technology that competes with several other established software platforms. WIPI was originally envisioned as the exclusive technology for downloading Internet content to cellphones in Korea. It threatened to shut out other competing systems, including a U.S. system that already had more than 7 million subscribers in the country and was expected to generate hundreds of millions of dollars over the next 5 years. The resolution follows bilateral consultations and meetings between senior officials in Washington and Seoul that have intensified the past several months, the USTR said. “It’s wrong for countries to mandate exclusive standards that have the effect of shutting us out,” Zoellick said: “The United States will continue to aggressively seek resolution of this and other similar issues throughout Asia and the world.” The industry applauded the decision, saying it would provide Korean wireless applications developers, manufacturers and operators with flexibility to introduce various wireless Internet technologies into their service offerings. Qualcomm Chmn. Mark Jacobs said “freedom for each operator to select a preferred wireless Internet platform… will maintain a high level of competition and creativity in the South Korean wireless market.” He said the decision would benefit “all parties in the mobile applications marketplace. Subscribers of BREW-enabled services, for example, can continue to benefit to delivering their locally developed BREW-based applications to the worldwide marketplace.” The deal comes shortly after the Chinese govt. last week decided not to impose the unique Chinese wireless LAN encryption standard (WAPI), which was set to go into effect June 1. China also agreed to work with international standard-setting bodies on wireless encryption and to adopt a policy of technology neutrality for licensing 3G services. The USTR said it hoped the agreements reached would provide momentum for resolution of Korea’s plan to mandate an exclusive domestic transmission standard for a new service -- portable broadband wireless Internet. “Telecom carriers should have maximum flexibility in the technology they choose, unencumbered by government interference,” the USTR said.

Foreign “countries are typically opening up” their telecom markets to competition and foreign investment, a U.S. Trade Representative (USTR) official told us: “There is a clear trend there.” The official said countries such as Cambodia and former Soviet Union republics had “opened up in terms of allowing new people to participate in the market. But at the same time, it’s hard” for foreign carriers to operate in many of those markets because “often [those markets] don’t have adequate rules to support competition.”