[Ip-health] US Chamber letter to USPTO opposes fair use, expresses "concerns" about WIPO treaty for blind

Fedro Paolo De Tomassi detomass at stolaf.edu
Wed Jun 12 09:52:49 PDT 2013

US Chamber letter to USPTO opposes fair use, expresses "concerns"
about WIPO treaty for blind

Source URL: http://keionline.org/node/1745

On April 19, 2013, the US Chamber of Commerce wrote a letter to the
USPTO to "express concerns about the ongoing meetings of the World
Intellectual Property Organization (WIPO) regarding visually impaired
persons (VIPs).

David Hirschmann, CEO of the Chamber's GIPC, signed the letter

The letter, sent by the Chamber's Global Intellectual Property Center
(GIPC) and signed by David Hirschmann, complains that "certain
proposals" that are "both wholly unnecessary to the goals of those
negotiation and seem instead to be driven by an unrelated agenda of
undermining copyright." We could not find a copy of the letter on the
GIPC web page, but obtained a copy from the USPTO as part of a FOIA

The Chamber says it supports "robust and effective intellectual
property (IP) rights and norms," and then launched into complains that
the copyright three step test, which is mentioned four times in
Article S of the treaty text, was not sufficiently restrictive of
exceptions, and also complained about fair use. From the Chamber

"When we consider measures that provide new exceptions or limitations
to the critical property rights recognized by copyright, we must be
mindful not to undermine that fundamental incentive. An Example of
this is the thee-step test for limitations and exceptions to
copyright. The test is a foundational aspect of international
copyright law, and is critical to enabling creative works for
consumers available through a wide variety of distribution channels.

Respecting the three-step test should not be controversial. In fact,
the three step test was reaffirmed by the global community less than
ten months ago by its inclusion in WIPO’s Beijing Treaty on
Audiovisual Performances. We understand that current efforts to ensure
the three-step test applies to all exceptions adopted pursuant to the
VIP instrument are facing resistance. The failure to embody this
principle would contradict United States policy in its trade
agreements. It would not only threaten to permit limitations to
copyright that unreasonably prejudice the copyright owner, but would
also set a profoundly negative precedent for future agreements.

Another important issue at hand is the effort to appropriate the VIP
negotiations as a vehicle for advancing a broad and vague concept of
“fair use”. This effort has little to do with the goals of the
proposed instrument, but has strong potential to undermine the rights
of authors significantly. The U.S. should aggressively reject this
effort to sidetrack the VIP negotiations to serve a separate and
highly controversial agenda."

The Chamber letter, like similar communications from the book
publishers, MPAA, and patent holders, does not acknowledge that the
publishers want to expand the current reach of the three step test to
areas where it currently does not apply, and that fair use is an
important legal tradition in the United States that benefits both
creative communities and users, and that fair use plays an important
role in expanding access to works for persons with disabilities,
including for example the example being litigated in the Hathitrust
litigation [1]. Nor does the Chamber mention the 2012 announcement
from USTR that they proposing language on fair use for the TPP
negotiations (see link below).

The Chamber letter also shows a high degree of collaboration between
the publishers, the MPAA, the IPO, Business Europe and the Chamber.

See: USTR Introduces New Copyright Exceptions and Limitations
Provision at San Diego TPP Talks [2], 07/03/2012.

[1] http://www.hathitrust.org/authors_guild_lawsuit_information
[2] http://www.ustr.gov/about-us/press-office/blog/2012/july/ustr-introduces-new-copyright-exceptions-limitations-provision
[3] http://keionline.org/sites/default/files/Chamber_GIPC_19April2013_USPTO.pdf

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