Global Access in Action Submits Comments to the Office of the U.S. Trade Representative regarding PITAC

March 27, 2014

Berkman Center Faculty Director Terry Fisher, with Quentin Palfrey of WilmerHale and Sara Boettiger of Global Access in Action, have submitted comments responding to a Requests for Nominations: Public Interest Trade Advisory Committee to the Office of United States Trade Representative (USTR). Global Access in Action applauds the Office of the U.S. Trade Representative for its decision to establish the Public Interest Trade Advisory Committee (PITAC). The full set of comments follows: 

Global Access in Action applauds the Office of the U.S. Trade Representative (USTR) for its decision to establish the Public Interest Trade Advisory Committee (PITAC). (See http://www.gpo.gov/fdsys/pkg/FR-2014-02-25/pdf/2014-04062.pdf.) We appreciate the opportunity to provide comments on this important initiative.

Global Access in Action is a project of the Berkman Center for Internet & Society that seeks to improve access to pharmaceutical and agricultural technology for the global poor, and to encourage research and development into technologies that will help solve the challenges of the global poor. (See http://www.globalaccessinaction.org/.) Consistent with this mission, Global Access in Action has an ongoing inquiry into ways in which trade policy can be used as a tool for promoting access to technology such as seeds, vaccines, and medicines. The Berkman Center, of which Global Access in Action is a part, is an interdisciplinary research center at Harvard University that examines and participates in innovations in information technology. In so doing, the center seeks to reinforce innovations that promote the public interest and to curb innovations that do not. (For a variety of projects of this sort undertaken by the center, see http://cyber.law.harvard.edu/research.)

The Berkman Center has a long history of engagement in trade and other international issues, including the launch of ICANN, comprehensive studies on the practices and policies of various regimes in filtering Internet content, and a variety of trade-related legal and policy analyses. Two of many Berkman Center projects that address the intersection of trade and technology include Internet Monitor, which evaluates the means, mechanisms, and extent of Internet content controls and activity worldwide, and the Internet Robustness Project, which is designed to improve the resiliency and robustness of the Web in a wide variety of Internet contexts around the world. The Berkman Center has also provided direct support to scholars who have developed theories of trade for cyberspace, and have contributed to the World Trade Institute’s NCCR Trade Policy project.

The Berkman Center regularly partners with international research institutions and private industry to study and promote initiatives that encourage socially beneficial innovation worldwide. The Global Network Initiative, for example, is a collaboration with The Berkman Center, The Center for Democracy and Technology, Business for Social Responsibility, leading human rights groups, academic institutions, socially responsible investment firms, and information and communications technology companies— including Google, Vodafone, France Telecom, Microsoft, TeliaSonera, and Yahoo!. The Initiative is working to formulate an international and industry-wide response to guide businesses when they encounter laws and practices that may contravene international human rights standards or be at odds with law or culture in their home jurisdiction. The Berkman Center also spearheaded the Cloud Computing Project, which is a multi-year cloud computing research initiative that the center coordinates with the NEXA Center for Internet & Society (Italy), Keio University (Japan), the Research Center for Information Law (Switzerland), the NCCR Trade Regulation project on digital technologies and trade governance (Switzerland), and the participants at the center’s Cloud Computing Workshop series held in Cambridge, MA, Washington, DC, and Tokyo.

Global Access in Action believes that the PITAC can and should help to identify ways in which U.S. trade policy could be deployed to advance the interests of the United States, broadly defined. Those interests of course include the prosperity of U.S.- based private enterprises and the employees whose livelihood depends on those enterprises. But they also include the goals identified by President Obama in his Policy Directive on Global Development, where he recognized that the security and economic success of the United States depends on “growing the ranks of prosperous, capable and democratic states that can be our partners in the decades ahead.” As the President contended, pursuit of that goal requires, among other things, advancing “game-changing developmental technologies such as vaccines for neglected diseases, weather-resistant seed varieties, and clean energy technologies.” (See http://www.whitehouse.gov/the-press-office/2010/09/22/fact-sheet-us-globaldevelopment- policy.)

The same broad understanding of the interests of the United States infused the Administration’s report to Congress, entitled The Competitiveness and Innovative Capacity of the United States. That report reaffirmed the President’s commitment to an intellectual property rights system that “addresses international health and public safety challenges,” as well as the development of “strategies to incentivize humanitarian technologies through the intellectual property system.” (See http://www.commerce.gov/americacompetes.) One manifestation of that commitment has been the U.S. Patent and Trademark Office’s Patents for Humanity program, which has recently been given permanent status after a successful one-year pilot. (See http://www.uspto.gov/patents/init_events/patents_for_humanity.jsp.)

Identifying ways in which U.S. trade policy can simultaneously promote both U.S. commercial interests and the more capacious conception of the public interest just summarized is not always easy. However, in our view, it is feasible much more often than is commonly appreciated. The principal responsibility of the PITAC, we contend, should be to identify such opportunities for reconciliation of commercial interests and the public interest—and then to help develop policies that will take advantage of those opportunities.

The PITAC can perform that role only if (a) it is invested with sufficient power and responsibility and (b) it is staffed with knowledgeable persons genuinely committed to a capacious understanding of the public interest. More specifically, we contend that, if the PITAC is to have a meaningful effect on trade policy, it must be granted the same powers and responsibilities as chapter-level industry trade advisory committees. PITAC Members should also have access to the knowledge necessary to oversee industry advisers and to provide both formal and informal advice prior to trade negotiations.

Even if configured in this fashion, the PITAC will likely have only a limited impact on U.S. trade policy unless its establishment is accompanied by related adjustments in the process by which that policy is formulated and implemented. In particular, we urge greater use of the Trade Enhancing Access to Medicines (TEAM) concept, which promises to “deploy the tools of trade policy to promote trade and reduce obstacles to access to both innovative and generic medicines, while supporting the innovation that is vital to developing new medicines and achieving other medical breakthroughs.” (See http://www.ustr.gov/about-us/press-office/press-releases/2011/september/tradeenhancing- access-medicines). A cross-governmental, USTR-led strategic initiative with these laudable goals is highly commendable, but as yet the visible fruits of this initiative have been limited. Greater reliance on this approach would effectively complement the work of the PITAC.

Although the PITAC, properly configured, could contribute importantly to U.S. trade policy, it should not be the only forum in which the public interest is taken into account. We thus encourage the U.S. Department of Commerce and the U.S. Trade Representative to appoint public interest representatives to ITAC 15 and 3, so that public health voices can be heard in those conversations.

Finally, we note that USTR is currently seeking to fill the important position of Assistant U.S. Trade Representative for Intellectual Property. Whoever fills that post will have a profound impact on a variety of important trade issues. We hope that the Administration will take applicants’ demonstrated commitment to furthering a balanced intellectual property trade policy into account in selecting a new head for that important office.

U.S. trade policy can have a profound impact on sustainable development and global public health. Global Access in Action stands committed to working with you on any and all of the issues discussed above. Consistent with this commitment, we intend to nominate Quentin Palfrey to serve on ITAC 15.

Last updated March 27, 2014

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