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March 18, 1996

Americas Business Forum  Committee 1, Workshop A  Trading Strategy-Defining Obstacles

Cartagena

Colombia Globalization-Technology

 

IMPROVING PROTECTION, ENFORCEMENT AND MARKET ACCESS FOR COPYRIGHTS IN THE AMERICAS

High levels of intellectual property rights protection and enforcement are critical to the growth of the cultural, entertainment and high technology industries in each country in the Hemisphere, regardless of its level of development.  As we move into the Information Age, the industries that depend on such protection have the potential to grow faster than other domestic industries.  To encourage such growth, investment in these sectors must be nurtured and safeguarded.  To this end, each nation in the Hemisphere must prepare to become a part of the "Information Superhighway" by removing trade barriers and protecting the content that will navigate this highway.

The International Intellectual Property Alliance (IIPA) believes that the following three actions are essential to foster local economic growth and increased trade and investment among member states of the Free Trade Agreement of the Americas (FTAA). We ask our colleagues in both the private sector and in national governments throughout the Hemisphere to support this agenda: 

--Governments in this Hemisphere should take immediate action to enforce their current copyright laws (including criminal laws) in order to reduce the levels of piracy and encourage the development of legitimate cultural, entertainment and high technology industries which depend on copyright protection;    

--Governments should ensure high levels of copyright protection for these valuable works and recordings found in digital format on the "Information Superhighway" throughout the Hemisphere and the world, and should take actions to outlaw the distribution of devices developed to defeat security measures which can protect copyright holders against unauthorized access, copying, modification and distribution of their creative works;

--Governments also should provide non-discriminatory access for information and entertainment services to all markets through the reduction of tariff and non-tariff barriers, and other measures which affect the free circulation of information, education and entertainment-based goods and services.   

Enforce Existing Copyright Laws

IIPA believes the most immediate problem in the Americas is the failure to adequately enforce existing copyright laws.  The high levels of piracy of films, television programs and home videocassettes, music, audiocassettes and compact discs, textbooks, tradebooks, reference and professional publications and journals, computers and business, entertainment and multimedia software on all platforms rob local creators, stunt cultural and technological development and retard economic modernization.  Piracy can only be fought through effective enforcement of laws.

Ineffective copyright enforcement results from a range of possible causes, including inadequate copyright and penal laws, a lack of engagement by police authorities, ineffective judicial procedures, or the lack of political commitment by senior government officials to address the piracy problem.  Piracy inflicts heavy damage to national economies.  Pirated foreign works drive out domestic creativity.  Cheap foreign pirated product unfairly competes with local product, making it virtually impossible for local authors, publishers and producers to make a living or earn an acceptable return on investment.  Usually domestic works are the first to be pirated, depriving local authors, songwriters, programmers, publishers and producers of the ability to earn a living from their creativity and depriving governments of the tax revenues that pirates rarely pay. 

Copyright piracy is a trade barrier which can be corrected in a relatively short period of time, in most cases, by a clear commitment from the responsible political officials and enforcement authorities to take immediate action against large, commercial pirates, and to impose deterrent penalties on such infringers.  IIPA believes that the enforcement obligations in Part III of the TRIPS Agreement provide a comprehensive foundation for the development of civil, administrative and criminal procedures and remedies necessary to provide the basis for effective enforcement against copyright piracy.  Governments also should take actions to outlaw the distribution of devices developed to defeat security measures which can protect copyright holders against unauthorized access, copyright, modification and distribution of their creative works.  In addition, Governments throughout the Hemisphere should make the education and training of judges, prosecutors, police and other experts on intellectual property rights protection and enforcement a top priority.   

It is in every country's own domestic interest to bring their substantive copyright (including enforcement) regimes into TRIPS compliance as early as possible.  This would accelerate domestic and foreign investment, enhance domestic and cultural economic growth, and, importantly, position these countries for the coming Information Revolution, in which protected content will be shipped around the world instantaneously through advanced networks, like the Internet. 

Build the Hemispheric Information Infrastructure

The building of a Hemisphere-wide information infrastructure must be a major component of an FTAA for the 21st century.  It is imperative to ensure high levels of protection for valuable works and recordings in digital format over the "Information Superhighway."  Copyright reform fosters technological and cultural development as well as local investment and employment.  There has been a flurry of reform efforts in the Americas.  For example, countries like Argentina, Bolivia, Chile, Colombia, Costa Rica, El Salvador, Honduras, Mexico, Panama, the United States and Venezuela have either amended their current copyright laws or adopted entirely new laws in the past few years.  Further legislation is either pending or being drafted in many of the other countries in the Hemisphere.  While this progress is to be applauded, we note that further legal refinements may be necessary to meet the coming challenges of new technological delivery systems. 

The potential investment and trade opportunity for the development of the HII is high.  But such potential will not be realized if adequate copyright protection on the HII's advanced networks is not afforded.  Without this protection, rightholders simply will not make their works available on the network.  Adequate protection for content in digital environments necessitates the adoption of technical measures to control unauthorized uses. Without valuable content on the HII, the massive investment necessary to build the infrastructure simply will not materialize. 

In fact, a regional group of countries in Latin America and the Caribbean (Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, El Salvador, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru, Trinidad and Tobago, Uruguay and Venezuela) recently made a proposal to improve the level of copyright protection and enforcement in the proceedings at the World Intellectual Property Organization (WIPO) regarding a possible protocol to the Berne Convention and a possible New Instrument for the Protection of the Rights of Performers and Producers of Phonograms.  IIPA would welcome the inclusion of the views of this Latin group into the work plan of the new FTAA Working Group on Intellectual Property Rights (IPR).  Given what appears to be wide agreement in the WIPO context on the need for, and the substance of, copyright protection and enforcement throughout the Hemisphere, IIPA believes the agenda of the FTAA IPR Working Group would be advanced rapidly by using this document as a guideline for action. 

 Provide Market Access to Copyrighted Goods and Services

In addition to improving current copyright enforcement and forwarding the development of the HII, Governments should also ensure non-discriminatory access for information and entertainment services to all markets.  This can be accomplished through the reduction of tariff and non-tariff barriers, and other measures which affect the free circulation of information, education and entertainment-based goods and services.  For example, these barriers may include customs valuation practices, quotas, regulatory issues, discriminatory taxation, certification procedures and restrictions on both content and technological aspects affecting the copyright industries.         

Conclusion

Every nation in this Hemisphere has an interest in nurturing the economic development of its local copyright industries.  Not only will this provide income and jobs, it will encourage foreign and domestic investment in this fast-growing sector.     

IIPA recommends that the Trade Ministers make a public declaration at Cartagena, stating that they are committed to improving enforcement against copyright piracy in their countries (including judicial and law enforcement training) as well as providing non-discriminatory market access for information and entertainment services.  Such a statement would contribute to a greater public awareness of the need to protect authors, publishers and producers from the theft of their creative materials.  In addition, this declaration would support the work of the new IPR Working Group and send a strong political message to all countries in the Americas that IPR is an important trade issue in which the Ministers expect concerted action in every market. 

Finally, IIPA and our members look forward to meeting and working with our copyright colleagues at the July 14-18, 1996, Intellectual Property Rights Summit in Los Angeles, an event which will be hosted by the U.S. Patent and Trademark Office of the U.S. Department of Commerce.  This summit will be a major opportunity for key decision-makers from throughout the Americas to continue to work together toward providing high levels of IPR protection and enforcement. 

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The IIPA represents more than 1,350 U.S. companies which produce and distribute materials protected by copyright laws throughout the world:  all types of computer software including business software and entertainment software (such as videogame CDs and cartridges, personal computer CDs and multimedia products);, motion pictures, television programs and home videocassettes; music, records, CDs and audiocassettes; and textbooks, tradebooks, reference and professional publications and journals (in both electronic and print media).