The brackets in the text indicate differing views among the negotiating governments. Some governments currently use life of the author plus 50 years; the U.S. wants life of the author plus 70, which reflects U.S. law; and Mexico is pushing life of the author plus 100.
A typical U.S. government statement on this issue might say that convincing other countries to adopt the U.S. standard would boost U.S. exports, and also that there are benefits to those countries from following our approach. But that is not real engagement. Real engagement on this issue would involve an inquiry that compares different lengths and explains why one is better than the other. Where did life of the author plus 70 years come from, and why is that the right length? Perhaps USTR sees this policy battle as having been won, as it is already decided as a matter of U.S. law. Reading some criticisms, though, this debate may be just beginning. What happened in U.S. law caught people off guard; next time it comes up, they are ready for a fight.
You could also look at criminal enforcement of copyright law. Legal scholar Margot Kaminski has explained how U.S. law in this area infringes on free speech, and how exporting our standard to other countries has led to unjustified prosecutions. If the U.S. government has a response to these points, now is the time to hear it. As Professor Kaminski points out, “Criminal copyright is a large part of what got ACTA [the Anti‐Counterfeiting Trade Agreement] rejected in the EU.”
When trade agreements focused on tariffs and other protectionism, issues of transparency and engagement were less crucial. But now that these agreements act as tools of regulation and policy‐making, the debate needs to be more robust. In terms of promoting trade agreements as part of the U.S. trade policy agenda, all of the government’s eggs are in one basket: exports. That’s the primary answer given to every issue in trade agreements: The policy being pushed will help U.S. exports. But we all know the issues are more complicated. Regardless of whether a longer copyright term or criminal copyright enforcement will increase U.S. exports, both involve balancing a number of different interests and concerns. The government should walk us through the argument for its preferred policies and try to convince us it has the right balance; it should actively engage in the debate. If that does not happen, the TPP may fail simply for lack of effort.