II

103D CONGRESS

2D SESSION S. 2173

To improve the protection of intellectual property rights through the

implementation of the Uruguay Round Agreements, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 9 (legislative day, JUNE 7), 1994

Mr. ROTH (for himself and Mr. LAUTENBERG) introduced the following bill;

which was read twice and referred to the Committee on Finance

A BILL

To improve the protection of intellectual property rights

through the implementation of the Uruguay Round

Agreements, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. INTERNATIONAL INTELLECTUAL PROPERTY

4 PROTECTION OBJECTIVES.

5 The principal objectives of the United States regard6 ing international protection of intellectual property rights

7 are—

8 (1) to accelerate the full implementation of

9 parts I, II, and III of the Agreement on Trade-Re-
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1 lated Aspects of Intellectual Property Rights (here2 after referred to as the ‘‘Agreement on TRIPS’’);

3 (2) to seek enactment and effective implementa4 tion by foreign countries of standards for protection

5 and enforcement of intellectual property rights that

6 supplement and strengthen the standards and obli7 gations contained in the Agreement on TRIPS and

8 the North American Free Trade Agreement, includ9 ing, but not limited to—

10 (A) supplementing and strengthening such

11 standards and obligations through bilateral and

12 multilateral agreements to assure the protection

13 of new and emerging technologies, and new

14 methods of transmission, distribution, and use,

15 and

16 (B) eliminating discrimination, unreason17 able exceptions, or preconditions with respect to

18 the protection, enforcement, or commercial en19 joyment of the full economic benefits arising

20 from any use or exploitation of intellectual

21 property rights;

22 (3) to secure fair, equitable, and nondiscrim23 inatory market access opportunities for United

24 States persons holding intellectual property rights,

25 including rights that are currently or that may later
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1 be granted by a foreign country to its own nationals

2 with respect to the use or exploitation of intellectual

3 property;

4 (4) to take an active role in the development of

5 the intellectual property regime under the World

6 Trade Organization (hereafter referred to as the

7 ‘‘WTO’’), particularly with respect to monitoring im8 plementation of the regime by WTO members and

9 use of the WTO dispute settlement procedures;

10 (5) to take an active role in the World Intellec11 tual Property Organization (hereafter referred to as

12 the ‘‘WIPO’’) and to ensure that the WIPO and the

13 WTO work together in a mutually supportive fash14 ion;

15 (6) to establish and maintain a Model Intellec16 tual Property Agreement which sets forth a high

17 level of intellectual property rights protection and to

18 ensure that all future international trade agreements

19 entered into by the United States are based on the

20 Model Intellectual Property Agreement;

21 (7) to make protection of intellectual property

22 rights a priority factor for determining eligibility to

23 participate in future free trade agreements and the

24 generalized system of preferences;
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1 (8) to ensure that countries or fast-growing eco2 nomic entities that seek to accede to the WTO agree

3 to full and effective implementation of parts I, II,

4 and III of the Agreement on TRIPS and resolve any

5 major outstanding intellectual property-related is6 sues of concern to the United States prior to acces7 sion;

8 (9) to require that United States diplomatic

9 missions abroad include intellectual property rights

10 protection as a priority objective of the mission; and

11 (10) to take appropriate action, including the

12 establishment of technical cooperation committees,

13 to encourage and help foreign countries improve the

14 protection of intellectual property rights.

15 SEC. 2. REQUIREMENTS FOR ENTRY INTO NEW FREE

16 TRADE AGREEMENTS.

17 (a) IN GENERAL.—Notwithstanding any other provi18 sion of law, the President may not negotiate any new free

19 trade agreement with a foreign country, unless the Presi20 dent first determines that such country—

21 (1) is fully implementing parts I, II, and III of

22 the Agreement on TRIPS, and

23 (2) is willing to enter into an agreement with

24 the United States to provide intellectual property

25 rights protection in line with the protection set forth
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1 in the Model Intellectual Property Agreement devel2 oped pursuant to section 6.

3 (b) UPGRADING EXISTING FREE TRADE AGREE4 MENTS.—If, after the date of the enactment of this Act,

5 the United States enters into a free trade agreement with

6 a foreign country that provides greater protection of intel7 lectual property rights than a free trade agreement pre8 viously negotiated with another country, the President

9 shall seek to amend such previously negotiated agreement

10 to provide for such greater protection of intellectual prop11 erty rights.

12 (c) NOTICE TO CONGRESSIONAL COMMITTEES.—The

13 President shall provide written notice to the Committee

14 on Finance of the Senate and the Committee on Ways and

15 Means of the House of Representatives of—

16 (1) any determination made under subsection

17 (a), and

18 (2) any progress made in amending a previously

19 negotiated free trade agreement under subsection

20 (b).

21 SEC. 3. IDENTIFICATION OF COUNTRIES THAT DENY ADE22 QUATE PROTECTION OR MARKET ACCESS

23 FOR INTELLECTUAL PROPERTY RIGHTS.

24 Section 182 of the Trade Act of 1974 (19 U.S.C.

25 2242) is amended—
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1 (1) in subsection (a)(1)—

2 (A) by striking ‘‘or’’ at the end of subpara3 graph (A),

4 (B) by striking ‘‘and’’ at the end of sub5 paragraph (B) and inserting ‘‘or’’, and

6 (C) by adding at the end the following new

7 subparagraph:

8 ‘‘(C) deny the opportunity to enjoy on a

9 nondiscriminatory basis full commercial benefits

10 associated with exercising rights in protected

11 works, fixations, or products embodying pro12 tected works, and’’;

13 (2) in subsection (b), by adding at the end the

14 following new paragraph:

15 ‘‘(4) In identifying a priority foreign country

16 under subsection (a) (1) and (2), the Trade Rep17 resentative shall take into account—

18 ‘‘(A) the history of intellectual property

19 protection laws and practices of the foreign

20 country, including any past identification of the

21 country under such paragraphs (1) and (2),

22 and

23 ‘‘(B) the history of the efforts of the Unit24 ed States and the responses of the foreign coun-
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1 try to achieve adequate and effective protection

2 of intellectual property rights.’’; and

3 (3) in subsection (d)—

4 (A) by amending paragraph (2) to read as

5 follows:

6 ‘‘(2) A foreign country denies adequate and ef7 fective protection of intellectual property rights, if—

8 ‘‘(A) the foreign country is not implement9 ing parts I, II, and III of the Agreement on

10 TRIPS, or

11 ‘‘(B) in the case of a foreign country that

12 is implementing parts I, II, and III of the

13 Agreement on TRIPS, or has entered into any

14 other bilateral, regional, or multilateral agree15 ment with respect to the United States, the for16 eign country—

17 ‘‘(i) continues to deny adequate and

18 effective opportunity for persons who are

19 not citizens or nationals of such foreign

20 country to secure, exercise, and enjoy full

21 commercial benefits with respect to intel22 lectual property rights, or

23 ‘‘(ii) does not enforce rights relating

24 to patents, process patents, registered
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1 trademarks, copyrights and related rights,

2 trade secrets, and mask works.’’;

3 (B) by amending so much of paragraph (3)

4 as precedes subparagraph (A) to read as fol5 lows:

6 ‘‘(3) A foreign country denies fair and equitable

7 market access if the foreign country effectively de8 nies access to a market for a product protected by

9 a patent, process patent, registered trademark, copy10 right or related right, trade secret, or mask work

11 through the use of laws, procedures, or regulations

12 which—’’; and

13 (C) by adding at the end the following new

14 paragraphs:

15 ‘‘(4) A foreign country denies the opportunity

16 to enjoy the commercial benefits associated with ex17 ercising rights in protected works, fixations, or prod18 ucts embodying protected rights, if the foreign coun19 try grants access to methods of distribution or col20 lection of revenues generated from the use or fixa21 tion of a product embodying protected rights, or any

22 other benefit relating to such works, fixations, or

23 products embodying protected rights, on terms more

24 advantageous to its own nationals than to nationals

25 of another country.
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1 ‘‘(5) The term ‘Agreement on TRIPS’ means

2 the Agreement on Trade-Related Aspects of Intellec3 tual Property Rights entered into as part of the

4 Uruguay Round Agreements resulting from the mul5 tilateral trade negotiations conducted under the aus6 pices of the General Agreement on Tariffs and

7 Trade.’’.

8 SEC. 4. EXPANSION OF TRADE SANCTIONS.

9 (a) IN GENERAL.—Section 301(c) of the Trade Act

10 of 1974 (19 U.S.C. 2411(c)) is amended by adding at the

11 end the following new paragraph:

12 ‘‘(7) The President is authorized to take such

13 other action with respect to the United States rela14 tions with a foreign country as is necessary and ap15 propriate to enforce the rights of the United States

16 under any trade agreement or to eliminate an act,

17 policy, or practice described in subsection (a) or

18 (b).’’.

19 (b) UNREASONABLE ACTS, POLICIES, OR PRAC20 TICES.—Section 301(d)(3)(B)(i)(II) of such Act (19

21 U.S.C. 2411(d)(3)(B)(i)(II)) is amended to read as fol22 lows:

23 ‘‘(II) provision of adequate and

24 effective protection of intellectual

25 property rights, without regard to
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1 whether the country is fully imple2 menting parts I, II, and III of the

3 Agreement on TRIPS or the obliga4 tions of any other bilateral, regional,

5 or multilateral agreement, or’’.

6 (c) CONFORMING AMENDMENT.—Section 301(d) of

7 such Act (19 U.S.C. 2411(d)) is amended by adding at

8 the end the following new paragraph:

9 ‘‘(10) The term ‘Agreement on TRIPS’ means

10 the Agreement on Trade-Related Aspects of Intellec11 tual Property Rights entered into as part of the

12 Uruguay Round Agreements resulting from the mul13 tilateral trade negotiations conducted under the aus14 pices of the General Agreement on Tariffs and

15 Trade.’’.

16 SEC. 5. ELIGIBILITY FOR GSP TREATMENT.

17 Section 504(b) of the Trade Act of 1974 (19 U.S.C.

18 2464(b)) is amended to read as follows:

19 ‘‘(b) CHANGED CIRCUMSTANCES AND IDENTIFICA20 TION UNDER SECTION 182(a).—

21 ‘‘(1) IN GENERAL.—The President shall, after

22 complying with the requirements of section

23 502(a)(2), withdraw or suspend the designation of

24 any country as a beneficiary developing country if,

25 after such designation, the President determines—
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1 ‘‘(A) that as the result of changed cir2 cumstances such country would be barred from

3 designation as a beneficiary developing country

4 under section 502(b), or

5 ‘‘(B) such country has been identified

6 under section 182(a) and, after completion of

7 an investigation under title III, such country

8 has not implemented measures to eliminate the

9 reason for such country’s identification under

10 section 182(a)(1).

11 Such country shall cease to be a beneficiary develop12 ing country on the day on which the President issues

13 an Executive order or Presidential proclamation re14 voking his designation of such country under section

15 502.

16 ‘‘(2) REDESIGNATION.—Subject to the provi17 sions of section 501, the President may redesignate

18 a country as a beneficiary developing country if—

19 ‘‘(A) such country’s designation was with20 drawn or suspended pursuant to paragraph

21 (1)(B), and

22 ‘‘(B) such country is taking action to

23 eliminate the reasons for which it was identified

24 under section 182(a)(1).’’.
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1 SEC. 6. MODEL INTELLECTUAL PROPERTY AGREEMENT.

2 (a) IN GENERAL.—The United States Trade Rep3 resentative, in consultation with appropriate United States

4 Government agencies and the private sector, shall—

5 (1) develop and maintain a Model Intellectual

6 Property Agreement which contains provisions for a

7 high level of protection of intellectual property rights

8 that supplement and strengthen the standards and

9 obligations contained in the Agreement on TRIPS

10 and the North American Free Trade Agreement,

11 and

12 (2) review periodically the Model Intellectual

13 Property Agreement to ensure that it reflects ade14 quate protection for new and emerging technologies.

15 (b) USE OF MODEL.—The Model Intellectual Prop16 erty Agreement shall represent the negotiating objectives

17 of the United States in all international negotiations in18 volving the protection of intellectual property rights.

19 SEC. 7. ANNUAL INTERNATIONAL INTELLECTUAL PROP20 ERTY PROTECTION REPORT.

21 Section 163(a)(2) of the Trade Act of 1974 (19

22 U.S.C. 2213(a)(2)) is amended—

23 (1) by striking ‘‘and’’ at the end of subpara24 graph (J), and

25 (2) by striking the period at the end of sub26 paragraph (K) and inserting: ‘‘, and
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1 ‘‘(L) a review of the efforts undertaken

2 during the preceding calendar year by each

3 agency of the United States in support of inter4 national protection of intellectual property

5 rights.’’.

6 SEC. 8. PRIVATE SECTOR INVOLVEMENT IN INTER7 NATIONAL DISPUTE SETTLEMENT.

8 Not later than 90 days after the date of the enact9 ment of this Act, the United States Trade Representative

10 shall develop and implement a procedure for interested

11 persons from the private sector to participate in the prepa12 ration for dispute settlement proceedings which involve in13 tellectual property rights and with respect to which the

14 United States is a party.

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