infoJustice

Though negotiations are still underway on the South Korean – US Free Trade Agreement (KORUS FTA), the officially released version features significantly more strenuous provisions regarding IP enforcement and the Internet than those found in ACTA (Dec. 3, 2010 version). Given the similar pro-digital agendas of the negotiating parties, it is not surprising that the KORUS FTA would feature an entire e-commerce chapter (Chapter 15). However, the KORUS FTA’s approach to Internet enforcement in its IP chapter (Chapter 18), particularly service provider liability, differs greatly from the language in ACTA.

The KORUS FTA is structured around certain negative rights whereby liability is presumed for copyright and trademark infringement on the Internet, except in certain enumerated instances which the agreement elaborates on. This differs from the ACTA approach of describing when infringement would be found and what punishment would be in those instances. Thus, while KORUS FTA’s criminal and civil penalties for infringement nearly mirror those found in ACTA, the sections on service provider liability in the KORUS FTA are more sophisticated. (Compare Art. 27 of ACTA with Section 18.10.30 of KORUS FTA.) Similarly, the KORUS FTA features detailed sections on anti-circumvention technology, rights management information, and trademark infringement in Internet domain names. All of these additions reflect the technological advancement of the US and South Korea and their mutual reliance on the Internet.

The KORUS FTA also goes beyond ACTA in its e-commerce chapter. While ACTA is strictly confined to enforcement provisions, the e-commerce chapter of KORUS FTA incorporates digital and electronic products into its trade negotiations. Much of the language of the chapter features language typically found in free-trade agreements (i.e. most favored nation, national treatment, tariff schedules) but it is innovative in that the exchange of electronic data and digital products is an area which is still fairly new to trade.

The implications of the KORUS FTA and its developed Internet provisions are far-reaching in terms of future trade negotiations for the US and South Korea. The inclusion of digital products into traditional trade negotiations and the elaborate service provider liability and other Internet-specific provisions featured in the agreement, in combination with the enforcement provisions of ACTA, sets a much higher bar for future trade negotiations. If the KORUS FTA sets precedent for what US negotiators can anticipate in future negotiations, it may only further widen the gap between the US and developing countries who lack such technological sophistication rather than bring them closer together.

Click here for a side-by-side comparison of the internet provisions.