Strong copyright protection in free trade means fair and meaningful market access for creators

President Barack Obama has said that the Trans Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) will be different from previous free trade agreements. During the most recent State of the Union, Obama explained that even though prior agreements have not lived up to their hype, he still wants to pursue them and asked Congress to give him “trade promotion authority to protect American workers, with strong new trade deals from Asia to Europe that aren’t just free, but fair.”

Where does this concern with fairness come from and what does it mean for the creative community?

The main goal of free trade agreements is to provide businesses, large and small, with access to new markets. With 95% of the world’s consumers residing outside of the U.S., free trade agreements offer potentially significant benefits for U.S. businesses. Many opponents to free trade agreements are concerned with the effect that inadequate labor and environmental standards will have for American workers because, enabled by prior free trade agreements, profit-driven companies have moved away from the U.S. to countries where lower standards reduce the cost of doing business. President Obama and U.S. Trade Representative Michael Froman have both explained that as a lesson learned from previous free trade agreements, the Administration is including high labor and environmental standards in the negotiations of TPP and TTIP to prevent the loss of American jobs. The inclusion of high labor and environmental standards seeks to make free trade agreements fairer.

For artists and creators, fair and meaningful market access means being able to (1) receive fair compensation through various business models – including the ability to sell and license their works; and (2) have effective redress against unauthorized uses of their work. Strong copyright protection provides the basic legal basis for these two conditions. Several countries in the TPP – and many potential future members of the initiative (including China), have weaker copyright protection than the U.S. Without strong and effective copyright provisions contained in the TPP, U.S. creators will miss out on the benefits of free trade, as they will continue to face massive infringement of their works abroad. A commitment to strong copyright protection consistent with U.S. standards will set a key foundation in all TPP member countries, allowing their creative communities to flourish and participate in the market on an even playing field.

Fairness for creators in trade promotion authority

Before the negotiations for TPP and TTIP can come to a conclusion, the Obama Administration needs to secure trade promotion authority (TPA) from Congress. The U.S. Constitution gives Congress the power to oversee foreign trade and gives the President the power to make treaties with foreign nations, with the advice and consent of the Senate. TPA is legislation that enables Congress and the President to combine their powers to enter into free trade agreements with other countries. With TPA, Congress sets specific trade objectives that the President commits to negotiating with foreign nations. At the same time, Congress agrees to give expedited treatment to any trade agreement the President has concluded at the negotiating table. With this arrangement, the U.S. has a stronger bargaining position because trading partners can be sure that there will be no amendments to whatever agreement they reach on the table. TPA is temporary, giving Congress the opportunity to revisit its policy priorities. As a result, TPA must be renewed from time to time. The last TPA was granted to President George Bush in 2002 and expired on July 1, 2007. By passing strong TPA legislation, Congress will help ensure the success of future TPP negotiations.

Last year, Senators Hatch and Baucus, and Representatives Camp, Sessions and Nunes, introduced the Bipartisan Congressional Trade Priorities Act of 2014 in identical bills H.R. 3830 and S.1900. The bills proposed thirteen overall negotiating objectives, and more specific principal negotiating objectives in seventeen different areas, including goods, services, agriculture, intellectual property, state owned enterprises, dispute resolution, anticorruption, labor and environmental standards, etc. In the case of intellectual property, the bills ask that any agreement reflects “a standard of protection similar to that found in United States law” and that such standards “keep pace with technological developments.”

As Congress gears to discuss a similar bill on TPA in the coming days and weeks, it is paramount that policy makers have in mind that strong copyright protection ensures that international trade is free and fair for creators. Passing TPA legislation that reflects strong copyright protection will secure a strong foundation for protecting creators in the TPP.

photo credit: Pogonici/iStock/thinkstock

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