Over the last year or two, critics of trade agreements have stepped up their attacks on the “secrecy” of trade negotiations. Discussing these agreements behind closed doors, or only with corporate advisers, they argue, undermines democracy and the rule of law.
In the past, I have suggested that an emphasis on transparency is misplaced. A bit of secrecy is necessary for trade negotiations, I said; and anyway, we know much of the substance, and that’s where the debate should be. I called on critics to focus on the policy issues covered by these agreements, rather than obsess about transparency.
But continued leaks of draft chapters of the Trans Pacific Partnership (TPP) agreement have changed things. As these leaks have come out, critics have engaged with the substance in great detail. While some of their rhetoric is inflammatory and over the top, they clearly understand the issues and they make strong arguments against some of the current language, particularly in the area of intellectual property.
Unfortunately, the U.S. government is not responding in kind. That’s not to say it is being completely silent. However, the explanations of U.S. negotiating objectives are sometimes very superficial. The result is a one‐sided debate. Critics are criticizing; the government is mostly keeping its head down.
I am skeptical of the TPP as a way forward on free trade and trade agreements. However, if the trade establishment wants Congress to sign off on the TPP, it will have to engage with the substance at some point. Negotiators do not necessarily have to publish every draft legal text, as some would like; but they should explain why they are doing the things that everyone knows they are doing.
Perhaps the idea is to wait until the final deal is struck, and then lay out the argument. It would be better, however, to try to make the case now, rather than get a surprise at the end, when it turns out that people object to what you have negotiated. What a waste of time it would be to spend years negotiating an agreement that people do not want.
So where to begin with U.S. government engagement on these issues? Anywhere is fine, really, but copyright would be a great starting point. Let me just mention two issues here.
With regard to the term of copyright protection, the recently leaked IP text provides in part:
Each Party shall provide that, where the term of protection of a work (including a photographic work), performance, or phonogram is to be calculated:
(a) on the basis of the life of a natural person, the term shall not be less than the life of the author and    after the author’s death;
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.