For the past few months there have been rumors every few weeks that Congress was finally going to push out a "fast track" or "trade promotion authority" bill. As we've explained, these bills are Congress giving up their Constitutional right to regulate international trade, and handing the power over the USTR, a part of the executive branch. While some supporters of this argue that it actually gives Congress more power, by laying out the conditions of a trade deal it will approve, that's ridiculous. That might
be true if fast track authority were granted prior to a deal being done, but with the TPP and TTIP pretty far along, it's clearly not true. Either way, despite massive opposition
from the President's own party, an agreement has been reached
between Senator Hatch and Senator Wyden and a trade promotion bill
has been released.
Back in February, we presented a simple litmus test
concerning whether or not any such effort would actually be reasonable on intellectual property issues: would the text of the bill concerning intellectual property be any different
than the last fast track authority bill from 2002 (or an attempt to update it in 2014). Both of those bills had nearly verbatim text. And... as we feared, so does this new bill. Given just how much the internet has changed since 2002, it is simply inconceivable to suggest that the same intellectual property rules that made sense then would continue to make sense now. In other words, despite the involvement of Senator Wyden, it appears that little has been done here to make it clear to the USTR that bad IP rules in the TPP or TTIP agreement are unacceptable. That's a disappointment. Here are the key provisions on intellectual property. Note that they are basically all about enforcement
(i.e., protectionism) rather than the free flow of information (which is what you'd expect
a trade deal to be about).
providing strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade;
preventing or eliminating discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights;
ensuring that standards of protection and enforcement keep pace with technological developments, and in particular ensuring that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works;
providing strong enforcement of intellectual property rights, including through accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms; and
preventing or eliminating government involvement in the violation of intellectual property rights, including cyber theft and piracy;
These are basically word for word the same from 2002. In other words, despite over a decade of seeing how the USTR has used trade deals to browbeat other countries into bad
intellectual property laws, this new trade promotion authority is saying "go ahead and continue doing just that, no matter what harm it may do to the internet and all of the economic growth it creates."
Unlike some who are totally against any trade deals, I believe there are ways in which increasing actual free trade can be helpful. I had held out hope that the new trade promotion agreement would be more reasonable than what we'd seen in the past. But just looking at the intellectual property section alone, and the fact that it has remained unchanged since the 2002 version -- despite over a decade of seeing how bad IP policy can hurt internet innovation and economic growth -- suggests that this TPA agreement continues the mistakes of the past, rather than fixes them. That's unfortunate.
And so, now comes a very, very weird fight in Congress. With nearly all Democrats opposed to this bill even including the surprise change in position
by Senator Chuck Schumer, we'll have a situation where Congressional Republicans try and convince their colleagues to give President Obama more power
, by removing the Constitutional authority from Congress, while Congressional Democrats push back against
giving their own President that power. It's a really weird fight in oh so many ways.