Letter from Senator Tillis to Ambassador Tai: TRIPS waiver (copyright)
On Thursday, Senator Thom Tillis (R-NC) sent a fourth letter to United States Trade Representative (USTR) Katherine Tai regarding the proposed waiver of intellectual property rights under the Related Aspects Agreement to Trade in Intellectual Property Rights (TRIPS), this time focused on copyright. The letter came in response to another letter, sent to President Biden on September 27 by a group of 12 open content organizations, including the Electronic Frontier Foundation, Public Knowledge and Wikimedia. The organizations urged Biden to “resist the temptation to narrow the scope of the disclaimer to exclude copyrights and other rights.”
The following is the full text of Tillis’ letter to Tai, excluding footnotes and appendices. The letter is available in full here.
October 7, 2021
Dear Ambassador Tai:
I am writing to you again today for the fourth time regarding the Biden Administration’s waiver of international obligations under the Trade-Related Aspects of Intellectual Property Rights, or the TRIPS Agreement.
Last week, several open content organizations wrote to President Biden arguing that your proposed TRIPS waiver should cover not only patents, but copyrights and other intellectual property rights as well. These organizations ask you to include copyright simply because it may apply to software, drug labels, manuals, or “tools” associated with vaccines. The letter does not address the importance of these protections for the economy, trade and employment, the limits placed on protections to ensure a balanced system, and how copyright protection facilitates innovation, creativity and knowledge sharing that will enable us to end this once in a lifetime pandemic. The inclusion of copyright is both unfounded and unjustified, and would impose devastating consequences on American creators, businesses and workers, while doing nothing to advance the goal of fighting COVID.
Our laws, as guided by our Constitution, recognize the importance of intellectual property rights, including copyright. Our laws also implement international agreements that help form a global infrastructure for innovation, such as the Bern Convention ratified by the Senate which protects copyright internationally. The United States, led by the United States Trade Representative, has historically played a leadership role in establishing adequate and effective protection of intellectual property rights around the world, including through his report special annual 301 which specifically names the countries which do not adequately protect copyright and thus undermine our economic interests.
The proposed TRIPS waiver ignores these important laws and commitments. We are committed to respecting these international intellectual property treaties for a purpose, and renouncing our obligations is not an exercise to be taken lightly.
Our nation’s copyright system supports creators and industries that collectively add more than $ 1.5 trillion to the U.S. economy, employ 5.7 million hardworking Americans, and contribute more than $ 200 billion dollars in exports. Yet a handful of organizations with no particular expertise in the medical industry claim that copyright “obstructs the use of essential tools in the manufacture and repair of medical equipment intended to treat patients.” They also don’t provide any evidence beyond speculating that “tools” may be subject to copyright to speculate that this is a problem for the industry.
They point to evidence that a single company is trying to enforce its rights by sending “takedown notices to those who share critical service information.” Copyright law does not prohibit the sharing of critical service information. Instead, it establishes that such sharing must be done with permission, either by law or by the copyright owner. “Sharing” what does not belong to you or that you do not have the right to share is quite simply “theft”. By ignoring the value of the underlying copyrighted works and stigmatizing the legitimate attempts by rights holders to resolve a dispute, the examples mentioned in the letter reveal the broader anti-copyright bias of authors of the letter. Their letter also does not establish why a total revocation of copyright or other intellectual property law is the solution to the COVID-19 pandemic.
I have established that I am firmly committed to making the necessary reforms to our country’s intellectual property system. If reform is needed to address certain issues, such as the right to repair medical diagnostic equipment, then those reforms should take place in Congress and in a transparent manner that takes into account different perspectives. It is alarming that the TRIPS waiver is being pursued without public debate. As of the date of this letter, we have not received any response or formal acknowledgment of our previous request for responses from the USTR.
This race to cure COVID is our generation’s equivalent of landing a man on the moon. The solution will require the innovation and expertise of thousands of American companies and millions of hardworking, creative and innovative Americans. We cannot undermine this innovation and creativity by weakening our country’s strong intellectual property rights, the very rights that have led to the rapid development of new treatments and diagnostics. I urge you to consult with the intellectual property experts within the Biden administration, respond to letters from Congress, and provide the American public with answers to the many questions surrounding your May policy statement, and drop this disastrous waiver and ill-conceived to our nation’s intellectual property rights.
If you have any questions, please do not hesitate to contact me.
United States Senator
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Senator Thom Tillis was elected to represent North Carolina in 2014. Senator Tillis is a member of the Judiciary Committee and Chairman of the reinstated Subcommittee on Intellectual Property. As President, his vision is to tackle key issues facing the U.S. intellectual property system and to conduct rigorous oversight of the agencies responsible for protecting our nation’s intellectual property system.