U.S.-Korea Free Trade Agreement: Potential Economy-wide ... - USITC

Declaration and confirm that the obligations of the IPR chapter would not prevent a party
from taking measures to protect public health by promoting access to medicine for all. 109
The section on measures related to regulated products also would require the implementation
of measures in the marketing approval process to prevent the approval of generic drugs
during the term of the patent without the patent owner’s consent (a “patent linkage”
provision), including a requirement that the patent owner be notified of the identity of a
person seeking marketing approval during the patent term. 110
Enforcement
The enforcement section of the FTA contains detailed measures intended to promote full and
effective IPR enforcement. It contains general obligations, civil and administrative procedure
and remedies provisions, provisional measures, special requirements related to border
measures, criminal procedures and remedies, and provisions on liability of Internet service
providers. In particular, Korea would agree to supplement its civil remedies with a regime
of statutory damages, costs, and attorney’s fees and to provide criminal remedies for
trafficking in counterfeit labels and the illegal recording of audiovisual works (so-called
“camcording”). 111
Side Letters
The IPR chapter includes a series of side letters addressing Internet service provider
obligations, copyright infringement on university campuses, enforcement against online
piracy, and patent linkage. More specifically, the first side letter contains detailed provisions
for an effective “notice and takedown” process for Internet service providers when online
materials are claimed to be infringing and when it is asserted that online materials should not
have been removed from the Internet. The second side letter would require the Korean
government to take appropriate measures—such as the training of personnel, public
education campaigns, and increased enforcement—to control infringement of books on or
near school campuses. The third letter would confirm the commitment of the parties to shut
down Internet sites that permit the unauthorized downloading and distribution of copyrighted
works. Korea would further agree, within 6 months of entry in force of the Agreement, to
issue a policy directive establishing clear jurisdiction for effective enforcement against
online piracy. In the fourth side letter the parties would agree not to invoke the disputesettlement
provisions of the FTA during the first 18 months after the FTA enters into force
if a problem arises in the implementation of the patent linkage provision.
Although the first side letter is similar to side letters contained in other FTAs, the other side
letters are unique to the U.S.-Korea FTA. The side letter on copyright infringement near
school campuses and the letter on online infringement would address particular IPR
protection and enforcement challenges noted in the USTR’s Special 301 review of Korea.
The fourth side letter was added to the FTA as a result of the Bipartisan Trade Deal.
109 Ibid., Articles 18.9.3 and 18.11. These new provisions are the result of a “Bipartisan Trade Deal”
between the Office of the U.S. Trade Representative and certain Members of Congress. USTR, “Bipartisan
Trade Deal,” May 2007, 3.
110 Ibid., Article 18.9.5.
111 Ibid., Articles 18.10.6, 18.10.28, and 18.10.29.
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