In recent years there has been a trend toward the use of trade agreements as a means of bullying smaller nations into adopting copyright and patent policies favored by domestic special interest groups in the United States. Over at the EFF blog, Gwen Hinze has the goods:
In exchange for the promise of increased access to U.S. agricultural and textile markets, , U.S. trading partners are being required to rewrite their IP laws. For instance, the last nine U.S. free trade agreements signed since 2002 have required trading partners to adopt the U.S./ EU copyright term of life of the creator plus 70 years, create laws banning the circumvention of DRM (or technological protection measures) modeled very precisely on the controversial DMCA, and to treat temporary reproductions of copyrighted works (such as in computer memory) as copyright infringement. The FTAs also require trading partners to broaden their patent laws. The Central American Free Trade Agreement also required extended protection of test data, seemingly directed at precluding registration of generic pharmaceuticals.
I agree with James Surowiecki that there’s a symmetry between the “intellectual property standards” in these recent trade agreements and the “labor and environmental standards” that left-wing groups have long demanded be appended to trade deals. Free traders have always argued, correctly, that labor and environmental laws have nothing to do with trade, and that decisions about such laws should be decided by the ordinary political process in each country, not by international pressure.
Precisely the same argument applies to copyright and patent issues. I think there are good policy arguments to oppose longer copyright terms and anti-circumvention rules on their merits. But even if you think those are good policy, they certainly don’t belong in trade negotiations. Trade negotiations should be focusing on trade barriers. Failing to protect the copyright on Mickey Mouse until 2019, or permitting the sale of DVD players that will fast forward through commercials, is not a trade barrier.
We free traders should be just as outraged about these demands as we would be if a Democratic administration demanded changes to other countries’ labor or environmental laws in exchange for a trade agreement. The president and the USTR have only so much political capital in these negotiations. Had they not included the copyright and patent provisions among their demands, they most likely would have been able to obtain larger reductions in genuine trade barriers.