Just Say No to Legislation by Treaty

I’ve written before about the growing problem of trade agreements being hijacked for the benefits of domestic special interest groups, especially the copyright lobby. Free trade is about making it easier for goods to flow across borders. In recent years, we’ve seen an increasing abuse of trade negotiators’ authority, as they’ve inserted provisions into trade agreements requiring the parties to enact extremely specific changes to their domestic copyright laws.

Copyright scholar William Patry raises the alarm about another attempt by the United States Trade Representative to skirt the domestic legislative process with a treaty called the Anti-Counterfeiting Trade Agreement. The details are secret, but it appears that the agreement will cover much more than trade and counterfeiting issues. Patry explains why we should be concerned:

USTR is in the driver’s seat in initiating and negotiating agreements that are cast as trade agreements, but which are in fact agreements fundamentally reshaping substantive IP law. No trade official in any country, no matter how well intentioned, should have that authority. In the U.S., the power to make copyright policy vests exclusively in the Congress. We do not want our trade representatives to negotiate on their own agreements that require changes in domestic copyright laws and then present the agreement after signature to the legislature as a fait d’accompli.

Use of the fait d’accompli is not limited to trade representatives, and is seen in other executive branch agencies. The DMCA is an example of an attempted fait d’accompli. Much to the chagrin of its proponents, the DMCA ended up being only passed after considerable hearings and congressional involvement, in large part due to the fact that the Administration, in that instance through the PTO, did not get everything it wanted from other countries in the 1996 WIPO treaties, and hence couldn’t completely rely on the fait d’accompli argument. Had it been able to do so the story would have been different, and that is what the ACTA process is intended to achieve, a result that legislatures will have to accept, unless they are willing to permit the country to be in conflict with an important trade agreement.

I couldn’t agree more. The issue here is not that the particular copyright provisions are bad policy, although I suspect they are. The issue is that the Constitution vests Congress, not the executive branch, with authority to make laws. Congress should jealously guard that authority. At a minimum, it should demand public disclosure of the terms of the treaty well before it’s signed, so that there’s time for Congressional hearings and democratic debate about its provisions. And Congress should send a clear signal that it won’t ratify a treaty that’s negotiated in secret and sprung on the Congress at the last minute. Mike Masnick is absolutely right that this issue should be getting a lot more attention from American media.