Copyright Divisions Emerging on Trade Promotion Authority Legislation

Passage of the TPA would allow the U.S. Trade Representative to expedite international trade negotiations like the Transatlantic Trade and Investment Partnership and the Trans-Pacific Partnership Treaty, said the experts. The TPA's copyright provisions would influence how U.S. trade partners enact and enforce their copyright laws, they said. Such enforcement underscores a fundamental IP disagreement between content creators and ISPs, they said. Passage of an IA-friendly version of the TPA could by stymied by Senate Finance Chairman Orrin Hatch, R-Utah, a longtime supporter of rightsholders, said Maira Sutton, Electronic Frontier Foundation global policy analyst. The EFF considers committee ranking member Ron Wyden, D-Ore., to be an Internet “advocate,” but Sutton said he’s likely under significant pressure to pass TPA. Hatch and Wyden didn’t comment.

“TPA is often called, colloquially, ‘fast-track’ authority,” said Derek Bambauer, a University of Arizona law professor specializing in Internet law and intellectual property. TPA “permits the executive branch to negotiate [international] trade agreements … subject to ratification but not amendment by Congress,” he emailed. “Historically, copyright has not been particularly partisan -- it’s that Democrats have cared more about it than Republicans,” Bambauer said. “Now, we’re seeing attention to it from both parties, including the emergence of a more copyleft approach in small parts of the Republican party,” he said: “I suspect the TPA negotiations will, in a small way, serve as a preview.” The term "copyleft" refers to a "social movement that has emerged that is more skeptical of IP incentive claims and of IP-intensive industries," Bambauer said.

The “more is better” attitude for copyright protections that has prevailed in U.S. trade negotiations has had harmful effects on tech companies in the past decade, said Sherwin Siy, Public Knowledge vice president-legal affairs. IA is saying that tech companies wouldn’t have been as successful without fair use, he said. IP laws globally are “very strong,” particularly for those countries involved in U.S. trade, said Siy. For countries with “weak” copyright enforcement, passing “even stronger” laws creates “more problems than it solves,” he said. When fair use provisions are implemented internationally, countries are more likely to take copyright enforcement more seriously, Siy said.

“We support the balance that was struck” in the TPA bill introduced by Hatch, former Sen. Max Baucus, D-Mont., and former Rep. Dave Camp, R-Mich., in the 113th Congress, said a Motion Picture Association of America spokesman. He said the TPA should “encourage all our trading partners to use legal and policy mechanisms appropriate to their particular systems to advance a common goal: promoting the online arena as a safe and innovative venue for lawfully accessing, enjoying and using creative works and information products and services."

There’s a “growing appreciation for balancing copyright protections and enforcement with limitations and exceptions like fair use,” said Erik Stallman, Center for Democracy & Technology Open Internet Project director. That “balance” needs to be “reflected” in the TPA, he said. Including Communications Decency Act Section 230 in the TPA, as requested by the Internet Association, would be “fantastic,” Stallman said. Section 230 protects Internet intermediaries from third-party liability. Stallman said it would be “great” to see “more transparency” in how Internet issues are addressed in trade negotiations.

EFF wants TPA “stopped,” because both TTP and TTIP have been “negotiated in secret,” said Sutton. Many of the “user focused considerations were never really on the table,” she said. EFF has asked Wyden to “fight” such negotiations, Sutton said. EFF has blogged about alleged TPP leaks that show a trade secrets provision that would criminalize the dissemination of documents considered a trade secret, such as the stolen copyright documents in the Sony Pictures Entertainment hack, she said. Such provisions are intended to “crack down on reporting,” she said. USTR didn’t comment.