Today, the White House announced that Michael Froman is the nominee to be the new U.S. Trade Representative. The U.S. Trade Rep is the office in charge of negotiating all trade agreements including the Trans-Pacific Partnership (TPP) agreement, the Anti-Counterfeiting Trade Agreement (ACTA), and the upcoming US-EU trade agreement. This office has therefore been a fundamental player in the game of international copyright policy laundering.
Froman has served under the Obama administration as Assistant to the US President and Deputy National Security Advisor for International Economic Affairs. Prior to that, he was the managing director of Citigroup, one of the banking giants that was bailed out of bankruptcy in 2008. For the past four years, he has been heavily involved in the White House’s trade agenda, and credited with finalizing trade deals with South Korea, Colombia, and Panama — all of which contain the same heavy-handed copyright policies found in ACTA and the TPP.
Hollywood and Big Content groups like the MPAA, RIAA, and IFPI have convinced the US Trade Rep to push for increasingly restrictive copyright provisions in trade instruments and for years copyright enforcement around the world has grown more expansive and restrictive. A major force in this trend has been a practice called policy laundering. This is when unpopular policies that wouldn't normally survive public oversight are cycled through international negotiations that aren't subject to the same level of democratic oversight as national lawmaking systems.
In the same way, abusive copyright rules that echo the U.S. Digital Millennium Copyright Act (DMCA) are copied and pasted from trade agreement to trade agreement. Since no single governing body regulates these policies, these agreements become a moving target that raises global standards of copyright enforcement while avoiding accountability.
The copyright industries take advantage of this secretive process, and continue to lobby the U.S. Trade Rep to export DMCA-like provisions around the world. This disproportionately impacts other nations that do not have the same fair use protections that exist in the U.S. The DMCA is controversial even domestically, facing reform efforts in light of countless harmful effects on Internet users, mobile phone users, security researchers, students, the blind, and others. It’s deeply problematic if it comes to be treated as an international standard of copyright enforcement.
There have been a handful of cases where trade negotiations have been transparent. In 2001 for example, the U.S. Trade Rep released the draft text of the Free Trade Area of the Americas (FTAA), calling it an "unprecedented effort to make international trade and its economic and social benefits more understandable to the public." Legislators, civil society groups, academics and the public had the opportunity to examine, analyze, and propose alternative language. The deal, however, ultimately did not get concluded.
U.S. Trade Rep Ron Kirk has hinted that the blame for its incompletion lies with the fact that they officially released the draft text to the public. In other words, he was saying that the only way to negotiate these trade deals is to skirt democratic oversight. Their rejection of transparency was echoed again this morning at a meeting between civil society groups and the U.S. trade office regarding the upcoming U.S.-EU trade agreement. Knowledge Ecology International Director Jamie Love reported that the U.S. trade office again stated that it is incapable of having a transparent process to negotiate international agreements.
In a few short weeks, there will be a Congressional confirmation hearing for nominee Michael Froman, where members of the Senate Finance Committee, including Ron Wyden, will have an opportunity to ask him questions about his trade policy objectives.
Our petition to the new USTR asks for an end to this secrecy. The letter requests the nominee to commit to a list of guidelines, that upon taking office he will make trade negotiations transparent and democratic going forward. Otherwise, we demand that he take “intellectual property” issues off the table. Without public input, there is no chance for these trade agreements to uphold the interest of the public, and for its provisions to recognize and respect the free and open Internet.