Trade Agreements Need More IP Research, Input, Legal Experts Say
The process for informing and crafting trade negotiations needs to be improved, said panelists at an American University Washington College of Law event on intellectual property, trade and development Tuesday. During a morning panel, David Langdon, senior economist in the Office of the Chief Economist in the Commerce Department’s Economics and Statistics Administration, pointed to a report from April (http://1.usa.gov/HxZbYf) that discussed the impact of IP laws on the U.S. economy. The report, which Langdon said was commissioned by the White House, attributes 34.8 percent of the country’s GDP and 40 million jobs in 2010 to “IP-intensive industries.” But, Langdon said, responding to comments from panelists and audience members, the study “does not explicitly call for policy” based on the concept that increased IP protection results in increased employment.
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These types of studies need to be done on how IP exceptions such as fair use benefit the economy, said Rashmi Rangnath, staff attorney and director of the Global Knowledge Initiative at Public Knowledge. Studies like these are used to call for stronger IP protection policies, such as proposals for the Trans Pacific Partnership (TPP), she said, “but they don’t focus on any particular design of the IP regime” or on asking “what role the limitations and exclusive rights play in promoting certain sectors of the economy.” Exceptions and limitations to IP protections can generate economic growth as well, she said, citing examples like DVRs and search engines making temporary copies of copyrighted material. “These are important contributors to the economy and this aspect needs to be studied,” she said.
The trade agreement process needs to be reconsidered, said Oona Hathaway, director of the Center for Global Legal Challenges and international law professor at Yale Law School. Hathaway, a member of the Advisory Committee on International Law for the Office of the Legal Adviser at the State Department, said in a keynote speech on the Anti-Counterfeiting Trade Agreement (ACTA) that more agreements need to be done as “ex post congressional-executive agreements” -- which would require congressional approval -- rather than as sole executive agreements or ex ante congressional-executive agreements. This change would “force the executive to actually reach out to key members of Congress” earlier and “make it more democratically accountable,” she said. Additionally, the agreement should be “fast-track” legislation, she said, meaning it could only get voted up or down without amendments. That would “push congressional involvement earlier,” she said, to avoid years of negotiating to get rejected with one vote. Hathaway encouraged attendees to get involved by “keeping up the pressure, keeping an eye on these things."
More congressional involvement is a step in the right direction, said New York University School of Law Professor Rochelle Dreyfuss, but the process needs to be more open to outside review and input. Commenting after Hathaway’s keynote, Dreyfuss, an expert on international IP law, said stakeholders “would be less concerned if the ACTA committee ... included a mechanism for stakeholders to question decisions.” Additionally, she said, the fact that there are multiple trade negotiations being discussed all around the world makes it “close to impossible for all the relevant stakeholders to participate consistently and effectively.”
International law provisions can be stopped in Congress, Dreyfuss said, pointing to the debate over the Stop Online Piracy Act and the PROTECT IP Act earlier this year. That debate “is actually a good example” of how constituents can effect change before the proposed legislation moves any further, she said. There is not such room for involvement in trade negotiations, she said: “Once it’s in the TPP, I think it’s a train that can’t be stopped.”