The Agenda

Questioning the Value of the TPP

Henry Farrell raises questions about the value of the Trans Pacific Partnership, an effort ostensibly designed to liberalize trade among its 12 would-be signatories (in East Asia, North America, and Latin America), yet which seems to have much more to do with imposing a series of new regulations on business enterprises indirectly, via international agreement, rather than directly, via domestic legislatures or regulatory bodies. The Electronic Frontier Foundation, which has been critical of TPP, writes the following:

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked US-proposed IP chapter also includes provisions that appear to go beyond current US law.

One fairly accessible provision concerns copyright terms:

Expand Copyright Terms: Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TPP could extend copyright term protections from life of the author + 50 years, to Life + 70 years for works created by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (such as Mickey Mouse).

What is interesting about this provision is that it would actually make it much harder, if not impossible, for the U.S. to reform its copyright laws unilaterally. It is easy to see why incumbent U.S. firms with valuable copyright portfolios might want to push the TPP — it protects them from a cultural shift against long copyright terms and in favor of the short copyright terms established by America’s founding generation by effectively taking decisions about copyright terms out of the hands of U.S. lawmakers. It’s not obvious to me that the benefits the U.S. might get from the TPP outweigh the costs. But I would be very eager to read a case for the TPP that takes its intellectual property provisions into account.

Reihan Salam — Reihan Salam is executive editor of National Review and a National Review Institute policy fellow.

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