Trade

A key senator is questioning the Obama administration's claim that an international agreement aimed at curbing piracy and counterfeiting does not require congressional approval.

Sen. Ron Wyden, D-Ore., chairman of the Senate Finance Committee's International Trade Subcommittee, wrote President Obama Wednesday about the Anti-Counterfeiting Trade Agreement. The agreement, which the United States recently signed, was negotiated with more than 30 countries and is aimed at improving cooperation in efforts to fight piracy and counterfeiting.

The administration has maintained that ACTA is a "sole executive agreement" that doesn't change U.S. law and therefore doesn't require congressional approval.

Wyden begs to differ. "It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law," he wrote. "But regardless of whether the agreement requires changes in U.S. law ... the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval."

Wyden urged Obama to either declare that ACTA is not binding on the United States or provide Congress with a more precise legal rationale of why the deal does not require congressional approval.

ACTA critics have raised similar concerns. They also attacked the process used to negotiate the agreement as too secretive and voiced concern with provisions aimed at curbing online infringement of intellectual property.

"Hopefully, Senator Wyden's letter will alert the administration to the serious constitutional issue facing it and compel it to engage its constitutional and international law experts ... to ensure that the [U.S. Trade Representative] does not disregard this country's constitutional mandates in its fervor to hastily enter a broad ranging and controversial agreement restraining US policy options," said Sean Flynn, associate director of American University's Program on Information Justice and Intellectual Property.

The top executives of two of the nation's leading tech companies said Wednesday that they believe the nation is facing a crisis in terms of maintaining its competitiveness in the coming years given the aggressive steps taken by China, India and other countries to compete internationally.

During a forum on technology and innovation sponsored by the Center for Strategic and International Studies, IBM Chairman and CEO Samuel J. Palmisano and Dell Chairman and CEO Michael Dell discussed how the United States can maintain its innovation edge, while also outlining ways the federal government can reduce its deficit.

It's a "real crisis," Dell said in discussing the need for the country to take steps to maintain its competitive edge. "We can't afford to ignore these issues. We also don't believe its too late. We think if we take decisive action, a lot of progress can be made."

Dell, Palmisano and other tech CEOs met Tuesday with President Obama to talk more about some of the issues he raised during his State of the Union address last week including his call for more focus on ways to help spur U.S innovation.

Palmisano said during the White House meeting there "was a sincere and keen interest in addressing why the U.S. is not more competitive."

The IBM chief summed up the "three biggest inhibitors to competitiveness" in the United States as taxes, trade and education. On taxes, Palmisano noted in a global economy, big international companies like IBM can locate their operations anywhere in the world and said many companies will question why they should invest in the United States when it has one of the highest corporate tax rates at more than 30 percent, while other countries are as low as 10 percent.

Palmisano and Dell also brought this message to key lawmakers on Capitol Hill. They met Wednesday with Senate Finance Chairman Max Baucus, D-Mont. as well as Sen. Orrin Hatch, R-Utah, to talk about the need to lower the corporate tax rate, a move Obama echoed in his State of the Union speech, and implement several pending free trade agreements, Tim Sheehy, IBM's vice president of governmental programs, said after the forum.

When it comes to education, Palmisano said companies are having trouble getting access to top talent in the United States, noting that some countries are graduating twice as many students with doctorates than the Untied States.

On trade, he noted Obama urged the CEOs to help the administration make the case for some of the pending free trade agreements. The data shows that the "United States is better off" when it has free trade agreements in place, Palmisano said. However, he acknowledged that this is not the "perception of the average American." He added that business leaders "have to sell the case ... That's very, very difficult in a high unemployment environment."

The Office of the U.S. Trade Representative has released the "finalized" text of a trade agreement aimed at boosting international cooperation in curbing piracy and counterfeiting but it has yet to quell critics who say the agreement is unconstitutional.

"Following legal verification of the drafting, the proposed agreement will then be ready to be submitted to the participants' respective authorities to undertake relevant domestic processes," USTR said when releasing the text Monday.

Staff with the negotiating parties are still expected to meet at the end of the month in Sydney for a final "legal scrub" of the Anti-Counterfeiting Trade Agreement. Other remaining issues still outstanding after officials met for the final round of talks in Tokyo in September were resolved through e-mail and phone conversations, a USTR spokeswoman said.

USTR has maintained that as an executive agreement that does not change U.S. law, ACTA does not need Senate ratification. Other countries also have taken this view.

Australian Trade Minister Craig Emerson, whose government is hosting the technical legal review meeting later this month, said Australia would not have to change its domestic laws to implement ACTA.

"Australia already has rigorous enforcement standards - we want to see those same high standards adopted by other countries for the benefit of our knowledge-intensive exporters," Emerson said in a statement Tuesday.

Critics argue that ACTA is unconstitutional as it currently stands because it does not take the limited approach of most executive agreements.

USTR "argues the agreement will be binding on the U.S. once Ambassador [Ron] Kirk, as the U.S. negotiating representative, agrees to it. Congress will not receive the opportunity to review and amend the agreement before it goes into effect, as it would in any traditional international agreement binding on the U.S.," Sean Flynn, associate director of American University's Program on Information Justice and Intellectual Property, wrote in a blog post Monday. "If USTR succeeds in this bold plan, it will dramatically expand presidential power to make law without congressional consent."

Information Technology Industry Council CEO and President Dean Garfield Thursday urged U.S. and South Korean officials to "seize the opportunity" and conclude a fair trade agreement during President Obama's visit to Seoul.

"We strongly encourage the U.S. and Korean governments to seize the opportunity to conclude a free trade agreement," Garfield said in a statement from the Asia-Pacific Economic Cooperation forum in Japan. "This agreement, when completed, will be a job creator and economic catalyst at a time when both are badly needed. Given its positive implications for the American public as well as employers and markets worldwide, we hope both countries will conclude their efforts as soon as possible."

Despite strong support for such an agreement from ITIC and other U.S. business groups, Obama said during a joint news conference from Seoul Thursday with South Korean Leader President Lee Myung-bak that it could take days or weeks to conclude a deal. "We discussed the need to keep moving forward towards a U.S.-Korea free trade agreement, which would create jobs and prosperity in both our countries. We believe that such an agreement, if done right, can be a win-win for our people," Obama said.

Obama added that the leaders had "asked our teams to work tirelessly in the coming days and weeks to get this completed, and we are confident that we will do so."

Garfield said while "these types of negotiations are always challenging and unpredictable, failure to achieve a meaningful agreement shouldn't be an option for either side." Helping to secure free trade for information technology products is one of ITIC's top priorities. The group, made up of such companies as Apple, Dell, Hewlett-Packard, IBM and Microsoft, notes that "two-thirds of our markets and an even larger share of IT spending growth are outside our borders."

Obama is in the South Korean capital for a meeting with leaders of the G20 countries.

Even though the hot issue of whether to renew expiring income tax cuts are expected to dominate, next week's lame-duck session of Congress will featuring at least two technology-related hearings.

The Senate Finance Committee announced Wednesday that its International Trade, Customs, and Global Competitiveness Subcommittee would be holding a hearing Nov. 18 on international trade in the digital economy.

A spokesman for subcommittee Chairman Ron Wyden, D-Ore., said the hearing will examine "the importance of keeping overseas markets for digital goods and services as open and fair as the U.S. market." He added that witnesses will discuss both the benefits of tech to the global economy and the challenges the tech sector faces abroad, such as censorship, discriminatory privacy practices and security concerns about cross-border data flows.

Those expected to testify at the Finance hearing include Computer and Communications Industry Association President and CEO Ed Black, Salesforce.com Senior Vice President Daniel Burton, Association for Competitive Technology Board President Mike Sax and Greg Slater, Intel's director trade and competition policy.

The Senate Commerce Committee also announced Wednesday that its Communications Subcommittee will be holding a hearing Nov. 17 on disputes over retransmission agreements between cable providers and broadcasters. The most recent spat between Fox and Cablevision led to a cutoff of Fox broadcast programming for Cablevision's customers in the New York area before the two sides reached an agreement late last month.

The committee did not release a list of witnesses expected to appear at the hearing.

UPDATED: The Senate Judiciary Committee said Wednesday that it will be holding a markup on Nov. 18 and among the items on the panel's long agenda is legislation (S. 3804) sponsored by Judiciary Chairman Patrick Leahy, D-Vt., aimed at cracking down on online piracy and counterfeiting. A committee spokeswoman said while the panel hopes to get to the bill, it will first act on the 19 nominations on the agenda before it moves to the five bills it has listed for possible action.

Countries involved in negotiating a trade agreement aimed at curbing international piracy and counterfeiting are set to meet at the end of month in Sydney for a final "technical meeting," according to documents from the European Commission.

"The hosts propose that delegations included a legal expert and also a person familiar with the history of the negotiations, to avoid the re-opening of previously agreed issues," according to the leaked documents from the commission's Trade directorate. "They are also asking for a modest sized delegation, as the issues involved will solely be of a technical nature."

The document on the Sydney meeting, which will take place Nov. 30-Dec. 3, noted that the parties would be meeting for a "legal scrub" of the draft of the Anti-Counterfeiting Trade Agreement approved at a meeting earlier this fall in Tokyo.

A USTR spokeswoman confirmed that the meeting will take place and said only staff will be attending for the United States.

Meanwhile, the commission documents also detailed some of the concerns raised by negotiating parties such as France, Italy and Spain, about such as issues as the treatment of patents. Several countries "expressed the concern that ACTA could be seen as TRIPS minus, because certain provisions on the chapters on civil enforcement do not cover infringements of all" intellectual property rights, the commission document says, referring to the Trade Related Aspects of Intellectual Property agreement. Some of the negotiating parties "also complain about the fact that certain provisions in the border and digital chapters are only mandatory for copyright and trademark infringements and consider this discriminatory."

The ACTA negotiators agreed to allow countries to exclude patents from some ACTA provisions such as civil enforcement if they choose, but the commission document indicates that the European Union favors including patents. The commission said the reason behind these "targeted differences" is that "in several ACTA countries there are a number of civil, customs and digital enforcement provisions that only apply to trademarks and copyright or even only to copyright."

Meanwhile, the commission also noted that at the last formal ACTA negotiating session in Tokyo, the parties agreed "that ACTA would be a treaty covering infringements of IPR and not only of copyright and trademark, as was the wish of many ACTA parties."

The reference to a "treaty" is likely to further inflame ACTA critics who argue that the USTR's decision to treat ACTA as an "executive agreement," which means it does not require Senate ratification, is unconstitutional.

When asked about the Sydney meeting and the commission documents, Sean Flynn, associate director of American University's Program on Information Justice and Intellectual Property, said "it is a bit shocking that the parties are secretly planning a next round of negotiations to 'legal scrub' the text while the USTR still refuses to have an on the record meeting with the public on it. This agreement is an affront to democratic values that should guide the creation of substantive international intellectual property law."

A group of law professors are urging President Obama not to publicly endorse a proposed trade agreement aimed at increasing international cooperation in the fight to curb piracy and counterfeiting.

In a letter set to be sent to Obama Thursday, the professors take issue with the lack of public involvement in the crafting of the agreement and are asking the White House to ensure that the most recent, and possibly final text, is subject to "a meaningful participation process that can influence the shape of the agreement going forward."

The Anti-Counterfeiting Trade Agreement has been negotiated as a "sole executive agreement" and does not require congressional approval. The signatories argue that negotiating an agreement dealing with intellectual property and communications policy as a "sole executive agreement" is unconstitutional.

The current text is the product of three years of work and 11 rounds of negotiations, the most recent and likely last round of talks was held in Tokyo and ended earlier this month.

The draft letter takes Obama to task for not living up to his campaign promise of bringing a "new truthfulness and transparency to our public policy and law."

The office of the U.S. Trade Representative has not held a single public hearing on the text, the letter notes. The professors also accuse USTR of preventing the release of the text during earlier rounds of negotiations. The first formal release of the text came last spring.

"This degree of secrecy is unacceptable, unwise, and directly undercuts your oft-repeated promises of openness and transparency," according to the letter signed so far by two dozen academics including those well known for their technology and digital law expertise such as Harvard University law professor Lawrence Lessig and Pamela Samuelson, a law professor at the University of California at Berkeley.

After three years and 10 rounds of talks, the United States and several other countries appear to have wrapped up formal talks over a proposed trade agreement aimed at increasing international cooperation in the fight to curb piracy and counterfeiting.

The parties released the latest text Wednesday following the final round of talks in Tokyo last week over the Anti-Counterfeiting Trade Agreement. Despite public release of a text, the Office of the U.S. Trade Representative said in a statement that the "draft agreement will undergo final legal review and relevant domestic processes before signature."

"This text reflects tremendous progress in the fight against counterfeiting and piracy - a global crime wave that robs workers in the United States and around the world of good-paying jobs and exposes consumers to dangerous products," U.S. Trade Representative Ron Kirk said in a statement. "...We must now work quickly with our partners to finalize the results achieved in the Tokyo."

In addition to the United States, other countries involved in the ACTA talks included the member countries of the European Union as well as Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, and Switzerland.

"Today's release of the ACTA text marks an important step forward in the negotiations between 40 countries working to raise the bar for intellectual property enforcement," Rob Calia, senior director for counterfeiting and piracy at the U.S. Chamber of Commerce's Global Intellectual Property Center, said in a news release. "Better enforcement of IP rights around the world will help strengthen the global economy, create new jobs, and protect consumers from dangerous products."

Some public interest and technology groups as well as U.S. and European lawmakers have criticized the secrecy surrounding the ACTA negotiating process. Critics also voiced concern with some of the proposed provisions in previous drafts, particularly those related to online infringement and counterfeiting. They said the proposed deal would export IP protections in U.S. law without including provisions balancing the rights of users.

Some members of the European Parliament are demanding that the European Commission provide the final text - if talks have indeed concluded - on a proposed trade agreement aimed at increasing international cooperation in the fight to curb piracy and counterfeiting.

Following the most recent round of talks late last month in Tokyo, negotiators involved in drafting the proposed Anti-Counterfeiting Trade Agreement issued a statement Saturday indicating that they had "constructively resolved nearly all substantive issues and produced a consolidated and largely finalized text of the proposed agreement."

They added that the negotiating parties have "agreed to work expeditiously to resolve the small number of outstanding issues that require further examination in capitals, with a view to finalizing the text of the agreement as promptly as possible." In addition to the United States and the EU, other countries invovled in the ACTA talks include Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland.

U.S. Intellectual Property Enforcement Coordinator Victoria Espinel told Tech Daily Dose Tuesday that the ACTA text may be released this week.

The ACTA talks have been criticized for lacking transparency. Some public interest groups have been pushing the Office of the U.S. Trade Representative and others invovled in the ACTA talks to release more details about the draft treaty.

European Parliament Vice President Stavros Lambrinidis and three other Parliament members who have been active in pushing for more transparency in the ACTA talks said in a statement Monday that "there is no credible way of knowing whether the negotiations are actually concluded or not" and once again criticized the secrecy surrounding the process.

"In case the agreement has indeed been initialed, we demand from the Commission to present the final ACTA text to the European Parliament as soon as it is procedurally possible," the European Parliament members said. "It is the Parliament that will ultimately have to decide on rejecting or accepting the agreement, and a complete and thorough briefing of its members is now more urgent than ever."

Negotiators on an international trade agreement aimed at curbing piracy and counterfeiting of copyrighted works and products will meet beginning Thursday for the 11th round of talks in Tokyo.

Among the items on the agenda for talks on the Anti-Counterfeiting Trade Agreement include discussions of civil, criminal and border provisions, digital issues, international cooperation and enforcement practices. The negotiators also will discuss ACTA's definitions, general obligations, and initial provisions as well as "institutional arrangement and final provisions," according to the agenda released by the Japanese Embassy in Washington.

While the agenda also includes discussion of "transparency," the negotiations have been criticized as being too secretive. The negotiators have released few details of the draft agreement. In addition, critics worry that the agreement will include intellectual property protections in U.S. law without provisions aimed at protecting the rights of users.

The latest round is unlikely to quell such criticisms, particularly after the talks appear to have been move up by a few days, according to Sean Flynn, associate director of the Program on Information Justice and Intellectual Property at American University's Washington College of Law.

"It is hard to conclude other than that the negotiators of the Anti-Counterfeiting Trade Agreement, with the Obama Administration in the lead, do not want meaningful civil society input into the negotiation of the agreement," Flynn wrote in a blog post Tuesday.

The Japanese government announced there would be a meeting with civil society groups on Friday. Flynn noted that negotiators have been holding such meetings at some of the recent rounds. He added, however, that they are "getting less and less substantive and this one appears designed to ensure that no [nongovernmental organizations] show up." The meeting was just announced this week, giving at least U.S.-based groups little time to fly to Japan, Flynn said.

The Office of the U.S. Trade Representative did not have an immediate comment. USTR, however, has said in the past that international trade agreements require confidentiality sometimes "to enable officials of participating governments to engage in frank exchanges of views, positions, and specific negotiating proposals, and thereby facilitate agreement on complex issues."