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

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, complaints 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 request.

The Chamber says it supports “robust and effective intellectual property (IP) rights and norms,” and then launched into complaints 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 letter:

“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. 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, 07/03/2012.


James Love

James Love is the Director of Knowledge Ecology International. Previously, he was an economist for the Center for Study of Responsive Law where he also directed the Consumer Project on Technology and the Taxpayer Assets Project, Senior Economist for the Frank Russell Corporation, and held lecturer positions at Rutgers and Princeton Universities. His KEI webpage is