USTR’s Advisory Committee on Intellectual Property Rights: Public Interest Groups Still Calling for a Voice

In the wake of a series of U.S. free trade agreements (FTAs) which include ‘TRIPS-plus’ commitments on intellectual property, civil society groups are again urging the United States to better incorporate public interest views in the formulation of its trade strategy.

Since the late 1990s, consumer advocates, such as James Love of the Consumer Project on Technology, have been calling on USTR to adopt internal procedures to “ensure that its policies reflect greater input from public interest groups, and rely less on special pleadings from a handful of narrow commercial interests.” In devising its approach to intellectual property aspects of its international trade negotiations, USTR is required by Congress to call on advice and information from its Industry Trade Advisory Committee on Intellectual Property Rights (ITAC-15).

With a membership comprising fifteen representatives of U.S. companies and industry associations, ITAC-15 still lacks even one representative of non-commercial interests (see Box). “Even for an industry advisory committee,” Love argues that ITAC-15 is highly unbalanced. Where, he asks, “are the US generic drug companies, the Internet Service Providers and consumer electronic companies, or innovative companies like IBM, Novell or Google? These are industry stakeholders with different views” on intellectual property policy.

There are also concerns that excessive industry influence means that USTR demands that countries adopt more restrictive practices than are maintained in the United States. Take the case of compulsory licensing, argues Rob Weissman of Essential Action, “the United States frequently takes advantage of compulsory licensing, but USTR is negotiating trade agreements that significantly limit developing countries’ ability to employ this vital policy tool.”

The debate about the appropriate level of non-business representation on trade advisory committees is not new. In 2002, for example, a U.S. General Accounting Office (GAO) report on the role, structure and operations of the trade advisory committee system (prepared at the request of the U.S. Senate Committee on Finance) noted that at that time only two of USTR’s industry advisory committees included non-business interests—in both instances as a result of legal challenges.

Noting the Federal Advisory Committee Act (FACA) requirement that U.S. government advisory committees be ‘fairly balanced’ in terms of points of view represented, the GAO report suggested that Congress may wish to provide guidance on how FACA requirements are to be applied in the context of trade advisory committees.

While USTR took steps earlier this year to revise its Committee Structures in response to many of the GAO’s findings, the issue of greater non-business participation was left aside. While conceding that there is some “confusion and ambiguity” on this issue, the Department of Commerce (DOC) maintains that the U.S. Trade Act, as amended, allows the U.S. President to “establish functional committees comprised solely of industry representatives”. The DOC argues that in the context of industry advisory committees, the FACA ‘fair balance’ requirements call for a balance among industry points of view.

Both environment and labour groups have, in the past, successfully lobbied for a dedicated Trade and Environment Policy Advisory Committee (TEPAC) and a Labor Advisory Committee (LAC) respectively. Representatives of consumer rights groups are included in USTR’s overarching Advisory Committee for Trade Policy and Negotiations (ACTPN).