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[Editor’s Note: This is the first of a three-part series on the intersection of trade agreements, foreign affairs, and U.S. copyright law. Portions of this part were published previously as Dames, K. Matthew (2007). Trade Agreements as the New Copyright Law, Online, 31(2), 16-21.]

In this article, I detail how global trade agreements influence the Copyright Act of 1976, including an explanation of the U.S. Trade Representative’s role, the role of “harmonization,” and an analysis of how international trade agreements effectively circumvent Congress’ constitutional authority to enact copyright laws.

Traditional Path to Copyright Law

Just as every other federal law that is ultimately codified into the U.S. Code, this country’s official compendium of federal statutes, the development and ultimate passage of copyright laws happens according to a time-honored process. Bills that originate in the House of Representatives or the Senate will become law if the bill is passed by both houses of Congress and the President signs the bill. Once the bill becomes law, it will be published in the U.S. Code, which is the public and permanent statutes arranged by topic or subject. (For a fuller discussion of the U.S. federal legislative process, please see Charles W. Johnson’s classic guide “How Our Laws Are Made.”)

The Copyright Act of 1976 is codified at Title 17 of the U.S. Code. The authority for the 1976 Act (as well as the predecessor Acts of 1909 and 1790) comes from the Copyright Clause of the U.S. Constitution. Art. 1, sec. 8. cl. 8 states “The Congress shall have Power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Congress is, has been, and always should be the first and final drafter and arbiter of the Copyright Act. As Justice Ruth Bader Ginsburg wrote in the Supreme Court’s decision in Eldred v. Ashcroft, 537 U.S. 186 (2003), “[The Court has] stressed … that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” But in recent years, Congress’ role in enacting copyright law legislation has diminished. In order to understand how this has occurred, it is instructive to go back to 1988, when the United States became a signatory to the Berne Convention.

The Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) is an international treaty, first signed in 1886, that seeks to give creators some level of consistent copyright protection across the world. The principle that guides Berne is that where an author’s nationality differs from the work’s country of origin, the author should receive the same copyright protection as national authors. Further, the Berne Convention obliges all signatory countries to respect an author’s moral rights. (“Moral rights” is a term that describes the ability of authors to control the eventual fate of their works. The concept relies on the connection between an author and her creation, and protects the personal and reputational aspects of a creative work, rather than its monetary value. (See Betsy Rosenblatt’s primer on moral rights from the Berkman Center.)

The U.S. signed the Berne Convention treaty in 1988, becoming the 76th nation to sign. More than 100 countries are signatories.

From a practical standpoint, the U.S.’s adoption of Berne eliminated the need for authors to place a copyright notice on their work, and made copyright registration optional except in circumstances where the owner wishes to sue for copyright infringement in Federal court. For example, The the “no registration” requirement has had a significant and detrimental affect on digitization programs, since an item for which copyright ownership cannot be determined often is an item that is removed from the universe of digitization possibilities.

Further, the Berne Convention has been cited as the basis for domestic legislation such as the Visual Artists Rights Act of 1990 (which provides authors with some semblance of moral rights under U.S. law); the Digital Millennium Copyright Act of 199 (which protects digital works and has been the source of controversies too numerous to mention here); and the Sonny Bono Copyright Term Extension Act of 1998 (which retroactively lengthened copyright terms by two decades).

“Harmonization”

Additionally, the Berne Convention’s widespread adoption has helped usher a new term into the copyright lexicon: “harmonization.” I first recall hearing the term in the late 1990s, around the time Congress was debating the legislation that ultimately became the Digital Millennium Copyright Act (“DMCA”).

Simply put, “harmonization” is a concept whereby the intellectual property laws of different countries are made consistent, mostly to facilitate international trade and business. The concept of harmonization is not unusual; almost all the states and territories in this country are signatories to the Uniform Commercial Code (UCC), a model law in the U.S. that makes consistent (or “harmonizes”) the law of contracts, sales, banking, and secured transactions. This allows firms in one state to reasonably, predictably, and consistently do business with firms in another state.

Since each state has its own law—New York law is different from Indiana law, which is different from Texas law—it could be difficult for firms to do business across jurisdictions. The UCC facilitates interstate commerce by providing a core standard. States may deviate from it or tweak it—it is, after all, a model—but almost all U.S. states and territories have adopted the UCC’s core provisions into their state statutes.

National intellectual property laws work in a similar fashion. Intellectual property law is a national construct: U.S. intellectual property law differs from Spanish intellectual property law, which differs from Russia’s intellectual property law. Without an overarching, facilitating treaty such as the Berne Convention, there would be mass legal anarchy. This issue is exacerbated when the laws of different nations to problems and issues that exist exclusively online, where the notion of jurisdiction is vague at best, are applied. Instead, Berne allows U.S., Spain, and Russia to work from the same core intellectual property principles. Each nation has its own copyright law, but with a nation’s adoption of Berne, a core consistency is enforced.

From a linguistic perspective, harmonization suggests a voluntary coordination that the parties to an agreement will be held to the same, core standards and will be working under the same rules. Ideally, each country’s intellectual property laws should have similar weight and effect where harmonization occurs.

But in reality, harmonization of intellectual property laws is different. The term has become a euphemism for the global, one-sided spread of United States’ intellectual property laws. One could argue that under the guise of harmonization, intellectual property law has become America’s chief 21st century export. In the harmonization model, U.S. intellectual property law effectively becomes the world’s de facto intellectual property law, effectively overriding the voluntary coordination principle that should be inherent through the Berne Convention.

The dismissal of voluntary coordination occurs because the U.S. leverages its economic power to force other countries to adopt U.S. copyright law in lieu of their own if the U.S. thinks the foreign country’s laws are insufficient to protect American intellectual property. It is a “carrot and stick” approach: If a foreign country wants to do business with the U.S. (or get U.S. support to enter into the World Trade Organization), it must adopt U.S. copyright standards and codify them into their statutes.

For most foreign countries, this quid pro quo has become the price of doing business with the U.S. On the other hand, it is unusual that the U.S. would agree to agree to another country’s intellectual property regimen: It doesn’t have to. Therefore, harmonization really is doublespeak for a worldwide adoption of the American intellectual property standard. Much of this deal making happens through the Office of the U.S. Trade Representative.

The U.S. Trade Representative

According to its Web site, the Office of the U.S. Trade Representative (USTR) is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy and for overseeing negotiations with other countries. The head of the Office, Ambassador Ron Kirk, is a former mayor of Dallas whom President-elect Obama nominated to the position in December 2008. The Senate confirmed Kirk’s nomination on March 18, 2009. Kirk is a member of President Obama’s Cabinet and serves as his negotiator and spokesperson on trade issues.

Given intellectual property’s undeniable importance to the bottom line of several large U.S. companies, it is unsurprising that Kirk continues to make intellectual property protection a centerpiece of international trade discussions, much like his predecessor, Susan Schwab. Schwab thought the intellectual property issue so central that in late June she created a new Intellectual Property office within USTR. Schwab announced she was increasing resources and staff for the new office, including appointing a chief intellectual property negotiator whose priority is negotiating trade deals with China and Russia, countries that routinely are identified in the USTR’s annual “Special 301” review as being lax on protection of U.S. copyrights, trademarks, and patents.

The Workaround

There long has been concern that expansive language in free-trade agreements may raise the level of copyright protection above and beyond the international standards under the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights annexed to the agreement establishing the World Trade Organization. Now, arguably, the trade negotiation process has become a channel through which large, corporate copyright portfolio owners manipulate the trade agreement process to enforce a narrow, protectionist extension of copyright law, circumventing the traditional legislative process. Most of this work is done without notice to the public or Congressional hearings, so the first time those outside the process learn about the new arrangement—which has the effect of law—is when a USTR press release announces the trade agreement.

William Patry, author of the treatise Patry on Copyright, summarized this process in September 2006.

U.S. industry group X [insert software, publishing, music, etc.] goes to USTR and says we need new rights; please obligate the United States to provide for those rights in an international agreement, whether a new treaty or trade deal. Without public input, without congressional hearings, without legislation, USTR commits the U.S. to provide that protection. The Executive Branch then goes to Congress and says to Congress that legislation has to be passed on pain of the U.S. violating its international obligations. Congress complies.

This is the epitome of backroom, middle-of-the night deal making with cigars, winks, and nods, the stuff of local machines and voting blocs purportedly dismissed long ago as gross perversions of democracy. Patry also notes that these trade deals also pose a considerable threat to our notions of fairness and democracy in the political process.

“Whatever one might say about USTR, one cannot fairly describe that agency as concerned with the larger public good,” continues Patry. “There are serious institutional and policy issues with this trend. Initiatives to amend U.S. law should be taken up first by Congress; they should make sense as a matter of domestic balancing. Congress is the policymaker in our system, not the Executive Branch. Couching issues as trade issues or foreign policy is a too clever and dangerous way to make U.S. law overseas. It should stop for the public good.”

What about Congress? Many veteran political observers, including Thomas E. Mann and Norman J. Ornstein, authors of The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, have accused Congress of totally abdicating its role as the first branch of government since the Sept. 11, 2001, terrorist attacks. On this issue, one would expect members of Congress to be offended at the suggestion that trade representatives know better what America’s intellectual policy should be. Instead, the Congress has failed to provide any resistance.

The problem was exacerbated by the “fast track” authority that presidents once held. “Fast track” is a procedure through the president has sole and exclusive authority to negotiate trade agreements. Elected members of Congress must agree with all of the terms and conditions of an agreement negotiated under “fast track” authority, otherwise it must vote against the entire agreement. President George W. Bush was able to secure “fast track” authority after President Clinton failed to secure it for his administration. This allowed Bush’s trade negotiators the authority to cut their own deals and bind the U.S. (as well as foreign countries) to those deals on a “take or leave” it basis. According to Public Citizen, presidential fast track authority (also called “trade promotion authority”) expired June 30, 2007.

While “fast track” has expired, the U.S. Trade Representative’s role in shaping foreign and domestic intellectual property affairs continues to manifest itself through the Special 301 process. We will address Special 301 in Part 2 of our three-part series.

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