Trade Promotion Authority Bill Falls Short of Ensuring Transparency and the Public Interest

Image: Lumin Consulting for EFF (CC-BY)

Contacts:
Sean Flynn, American University Washington College of Law, 202-274-4157, sflynn@wcl.american.edu
Margot Kaminski, Yale Law School, margot.kaminski@yale.edu
David Levine, Elon University School of Law, 336-279-9298, dlevine3@elon.edu

The release of a Trade Promotion Authority bill yesterday, including provisions to increase Congressional oversight of the trade negotiation process, is a welcome sign that Congress may be preparing to increase its oversight over international trade, including trade laws that alter or restrict our domestic intellectual property laws. Unfortunately, the bill does not go far enough to ensure public transparency and participation, and does little to ensure that the products of such negotiations promote the public interest. Thus the bill does little to address significant public concerns that led to the rejection by the European Parliament of the Anti-Counterfeiting Trade Agreement (ACTA).

Trade law has become all-encompassing. Today’s free trade agreements are not primarily about reducing tariffs and duties on the importation of goods, as they were a generation ago. Trade agreements have transformed into regulatory harmonization agreements that restrict the ability of Congress and states to legislate in myriad policy areas, including intellectual property. Giving ex ante authority to the executive branch to restrict or change U.S. laws through a “fast track” legislative structure restricts Congressional debate and opportunities to amend proposals crafted by the executive, enables capture of the process, and produces bad policy.

We recognize the attempts of the bill to increase Congressional and public oversight of the trade negotiation process. This deserves to be a core focus of the bill. But the bill falls short in correcting the informational asymmetry in trade negotiations.

The bill fails to end the Administration’s practice of classifying trade negotiation texts as national security secrets immune from disclosure under the Freedom of Information Act. Nor does the bill ensure balanced membership on the advisory committees that provide input into the US proposals, to include the interests of teachers, doctors, students, entrepreneurs, innovators, patients, consumers, artists, and other members of the broad community affected by intellectual property laws. Any trade promotion authority bill should grant the public access to the trade negotiation proposals that are currently provided only to corporate advisors through the Trade Advisory Committee system. The public should receive the same access to information that it would have if the negotiation were held in an international intellectual property negotiation forum such as the World Intellectual Property Organization.[i]

Despite widespread criticism, the bill also fails to constrain the executive branch with negotiating objectives in intellectual property law that would promote balance and the public interest, and recognize significant human rights concerns. The intellectual property chapters in free trade agreements have long been criticized – rightly in our view – as containing imbalanced provisions focused on  enforcing and creating IP rights for legacy intellectual property rights holders, at the expense of other content producers, entrepreneurs, innovators, students, teachers, patients, consumers and others who fairly use intellectual property protected products and innovations. The bill does little to counter this trend.

Congress should instead include IP negotiating objectives that would accomplish three things: (1) acknowledge that IP law requires balance against other rights and values, as occurs in domestic U.S. law; (2) require that the USTR leave adequate space for Congress to change domestic laws; and (3) recognize the different social and economic contexts in which IP laws are enacted worldwide.

Last month hundreds of scholars, researchers and policy experts from nearly 50 countries released the Global Congress Declaration on Fundamental Public Interest Principles for International Intellectual Property Negotiations. This declaration provides a fuller blueprint for what public interest provisions in a Trade Promotion Authority bill should look like. Specifically, a Trade Promotion Authority bill should—but this bill fails to – bind the Executive Branch to:

• Refrain from proposing policies in international law that do not reflect current US law and practice (rather than being merely “consistent with” the silences in current law).
• Promote intellectual property policies that are balanced to serve the interests of users, consumers, and innovators as well as legacy intellectual property rights holders.
• Fully incorporate provisions of multilateral intellectual property instruments that provide flexibility to countries to tailor the scope and duration of intellectual property rights, define limitations and exceptions to rights, and recognize the necessity of regulation to serve human values.
• Preserve  domestic flexibility to modify and adjust  provisions of intellectual property laws in response to new circumstances and technological, social, economic, and cultural change, without requiring renegotiation of trade agreements.
• Ensure that intellectual property enforcement measures are reasonable and proportional to the infringement they target, including by avoiding “deterrent level” civil damages and inappropriate expansion of criminal and secondary liability.
• Ensure that countries retain the rights to make independent decisions about the prioritization of law enforcement resources to promote public interests.
• Avoid the creation of new dispute resolution forums parallel to, and that may conflict with, the multilateral system.
• End secret negotiations of international restrictions on domestic intellectual property laws – at minimum by requiring that information on US proposals shared with cleared advisors also be shared with the general public.
• Include balanced membership on the advisory committees that provide input into the US IP proposals, including members representing the public interest.
• End the policy of using national security exemptions to prevent the application of the Freedom of Information Act to the USTR.