Information on FTAs

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Multilateral agreements, such as TRIPS, can provide effective protection to copyright holders worldwide, because they set a common framework for copyright protection in many countries. However, in order to create this common framework, every country that is a member to the agreement must agree with the version that will be adopted. This fact makes negotiations of the multilateral treaties complicated and the final draft of the treaty is likely to be a compromise among the proposals suggested from the different countries.

Persuading one country to reforms its intellectual-property laws can be much easier than persuading all of the member countries of the WTO. Such bilateral agreements are commonly known as free trade agreements (FTAs).

Although FTAs can be very useful in promoting both countries’ interests, they can also be misused by developed states, which typically have much greater bargaining power than developing countries. Developed countries are able to insist on intellectual property rules far in excess of the requirements imposed by the multilateral treaties in return for providing developing countries access to their large markets. These requirements can have adverse effects on technology transfer or access to information and information technology. As a result, there is a growing trend to conclude FTAs that remove or reduce the flexibilities in the TRIPS Agreement and establish even higher standards of intellectual property rights in developing countries. For example, the U.S. government has included strong anti-circumvention obligations in its bilateral FTAs with Jordan, Singapore, Chile, Morocco, Bahrain, and Oman.

Overly broad legal protection for technological protection measures can have serious unintended consequences in areas beyond those governed by traditional copyright law, including the technology sector and educational and research activities. It has been claimed that anti-circumvention provisions can stifle free speech and scientific research by censoring discussions of copy-protection systems for example; anti circumvention provisions have been also accused of unilaterally eliminating the public’s fair use rights, such as making personal copies of CDs or DVDs, as well as hindering competition and creating monopolies.

For these reasons, the governments of developing countries should be extremely cautious when negotiating FTAs and in particular intellectual property rules substantially in excess of the requirements imposed by the World Trade Organization.