Senator Tillis Letter to Ambassador Tai: TRIPS Waiver (Copyright)

On Thursday, Senator Thom Tillis (R-NC) sent a fourth letter to United State Trade Representative (USTR) Katherine Tai regarding the proposed waiver of intellectual property rights under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 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 waiver to exclude copyrights and other rights.”

What follows is the full text of Tillis’ letter to Tai, excluding footnotes and appendices. The letter is available in its entirety here.

October 7, 2021

Dear Ambassador Tai:

I write you again today for the fourth time about the Biden Administration’s waiver of international obligations under the Trade-Related Aspects of Intellectual Property Rights, or TRIPS agreement.

Last week, several open-content organizations wrote to President Biden and argued that your proposed TRIPS Waiver should cover not just patents, but also copyright and other intellectual property rights. These organizations ask that you include copyright simply because it may apply to software, medicine labels, manuals, or “tools” associated with vaccines. The letter fails to address the importance of these protections to the economy, trade, and employment, the limitations placed on protections to ensure a balanced system, and how copyright protection facilitates the very innovation, creativity, and knowledge sharing that will make it possible for us to end this once in a lifetime pandemic. The inclusion of copyright is both unsubstantiated and unwarranted, and would impose devastating consequences on American creators, businesses and workers, while doing nothing to advance the objective of combatting COVID.

Our laws, as guided by our Constitution, recognize the importance of intellectual property rights, including copyright. Our laws also implement international agreements which help form a global innovation infrastructure, such as the Senate-ratified Berne Convention which protects copyright internationally. The United States, led by the US Trade Representative, has historically played a leadership role in establishing adequate and effective protection of intellectual property rights worldwide, including through its annual Special 301 report which specifically names countries that fail to adequately protect copyright and thereby harm our economic interests.

The proposed TRIPS Waiver ignores these important laws and commitments. We bind ourselves to these international intellectual property treaties for a purpose, and waiving obligations is not an exercise that should be taken lightly.

Our nation’s copyright system supports creators and industries that collectively add over $1.5 trillion dollars to the American economy, employ 5.7 million hard-working Americans, and contribute more than $200 billion in exports. Yet a handful of organizations with no apparent particular medical industry expertise assert that copyright “hinders the use of critical tools for manufacturing and repairing medical equipment to treat patients.” Nor do they provide any evidence beyond speculating that the “tools” may be subject to copyright to suppose that this poses a problem to the industry.

They point to evidence of only one company attempting to enforce its rights by sending “take down notices to those who share critical service information.” Copyright law does not prohibit sharing critical service information. Instead it establishes that such sharing must be done with authorization, either by the law or the copyright holder. “Sharing” that which isn’t yours or which you don’t have the right to share is simply “theft”. By ignoring the value in the underlying copyrighted works, and stigmatizing rights holders’ legitimate attempts to address a dispute, the examples referenced in the letter reveal the letter writers’ broader anti-copyright bias. Nor does their letter establish why a wholesale 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 necessary reforms to our nation’s intellectual property system. If reform is needed to address certain issues, like a right to repair for medical diagnostic equipment, then such reforms should take place in Congress and in a transparent manner that accounts for different perspectives. It is alarming that the TRIPS Waiver should be pursued with no public discussion. As of the date of this letter, we have received no response or formal acknowledgement of our earlier request for responses from 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 hard-working, creative, and innovative Americans. We cannot undermine this innovation and creativity by weakening our nation’s strong intellectual property rights, the very rights which 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, to respond to Congress’s letters, and provide the American public with answers to the many questions surrounding your May policy statement, and to abandon this disastrous and ill-conceived waiver of our nation’s intellectual property rights.

If you have any questions, please do not hesitate to contact me.

Sincerely,

Thom Tillis
United States Senator

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