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DMCA gives blueprint for Chile deal

President Bush asks Congress to OK a trade pact with Chile that echoes the DMCA in its commitment to punishing people who bypass copy-protection technologies.

Congress is being asked to approve a trade agreement with Chile that would export a controversial U.S. law: the Digital Millennium Copyright Act.

In a letter to Capitol Hill sent Tuesday, President George W. Bush said the bilateral pact was necessary to enhance the prosperity of both countries and to "increase competition and consumer choice."

One chapter of the complex agreement, which closely mirrors the Digital Millennium Copyright Act (DMCA), affirms both nations' commitment to punishing people who bypass copy-protection technologies--such as those used in most DVDs, a relatively small percentage of CDs, many videogames and some computer software.

In 1998, the U.S. Congress enacted the DMCA over the objections of some librarians and computer scientists who see it as a threat to security research and to legitimate uses of copyrighted materials.

According to a recent version of the proposed pact, Chile must punish with civil penalties--and in, some cases, criminal sanctions--"any person who knowingly circumvents" any technological measure that controls access to a copyrighted work. In addition, both nations agree to punish people who distribute software or hardware that "do not have a commercially significant purpose or use other than to circumvent any effective technological measure."

In May, the United States and Singapore signed a free-trade agreement (FTA) with nearly identical provisions. The agreement "breaks new ground in emerging areas like e-commerce," Singapore Prime Minister Goh Chok Tong said at the time. "It also establishes high standards in intellectual property, transparency and customs. The FTA will expand opportunities for American businesses in Singapore. More importantly, the U.S.-Singapore FTA can be a model for other FTAs."

In his letter to Congress on Tuesday, Bush said the Chile pact "provides for state-of-the-art intellectual property protection and recognizes the importance of trade in the digital age by including significant commitments on trade in digital products."

Anticircumvention regulations are just one part of the long and complex agreement, which was imperiled after Chile did not back a U.N. Security Council resolution on Iraq. But the Bush administration eventually completed the process, which resulted in a treaty that relaxes trade barriers and says that the sale of digital goods via the Internet will not be taxed: "Neither Party may apply customs duties on digital products of the other Party transmitted electronically."

Two bills that would defang the DMCA have been introduced in the U.S. Congress. The bills take different approaches, but both would rewrite section 1201 of the DMCA to allow circumvention for noninfringing purposes such as making a backup or taking a short excerpt of a video or music file. Neither has had a hearing.