On September 5th, the Congressional Research Service (CRS), a non-partisan governmental body that provides policy and legal analysis for all members and committees of US Congress, published a 55-page analysis of the Trans-Pacific Partnership Agreement [PDF]. While the CRS does not clarify if it had access to the complete current TPP text, they examine the Trans-Pacific Partnership agreement (TPP) within the broader context of multilateral and bilateral trade relations and international market access.

What we particularly noticed about this report was how the CRS compared the TPP to the Anti-Counterfeiting Trade Agreement (ACTA), other free trade agreements (FTAs) the US has signed with other nations that carry provisions increasing the enforcement of intellectual property rights abroad, as well as Congressional issues that arise in the US through the negotiation and passage of this trade agreement. Unfortunately, the CRS does not make its publications directly available to the public, but luckily we were able to obtain it from other organizations that publish these reports as a public service. Overall, there are two aspects of the report that are most relevant to us: the Congressional process and its transparency, and the intellectual property rules being negotiated in the TPP.



Fast Track Authority

International trade agreements negotiated under the Trade Promotion Authority (TPA)—also known as the fast track authority—are reviewed by Congress under limited debate, on an accelerated time frame and are subject to a yes or no vote by Congress without any amendments. This expedited consideration is conditioned on the President observing certain statutory obligations in negotiating trade agreements, including the notification and consultation of Congress. The purpose of the TPA is to preserve the constitutional role of Congress to regulate foreign commerce in consideration of implementing legislation for trade agreements that require changes in domestic law, while also bolstering the negotiating credibility of the executive branch by assuring that a trade agreement, once signed, will not be changed during the legislative process.

The CRS starts the report by making an important point in regard to this TPP implementation process, saying:

The present negotiations are not being conducted under the auspices of formal trade promotion authority (TPA)—the latest TPA expired on July 1, 2007—although the Administration informally is following the procedures of the former TPA. If TPP implementing legislation is brought to Congress, TPA may need to be considered if the legislation is not to be subject to potentially debilitating amendments or rejection. Finally, Congress may seek to weigh in on the addition of new members to the negotiations, before or after the negotiations conclude.

Although it has expired, the Obama Administration has proceeded to negotiate the proposed TPP as if the TPA were in effect. The fact that the Obama is negotiating TPP without a renewed TPA has raised questions from public interest organizations, academics, and members of Congress in regard to the future constitutionality and implementation of TPP into US law. They have also commented on the credibility of the negotiations and positions pushed forward by the Office of the US Trade Representative (USTR), since there is no assurance that Congress cannot amend any US commitments.

In a book titled "The Rise and Fall of the Fast Track Authority", Todd Tucker and Lori Wallach from Public Citizen comment on this fast track mechanism:

Under the U.S. Constitution, Congress writes the laws and sets our trade policy. Yet, over the last few decades, presidents have increasingly grabbed that power through a mechanism known as Fast Track. This undemocratic procedure has facilitated controversial commercial pacts like NAFTA and the WTO, which restrict nations’ trade and non-trade policies.

Intellectual Property Rights (IPR)

CRS also recognizes that the current USTR proposals for intellectual property rules within the TPP framework go beyond current international standards, and explain that this trend is not new. They have been present in FTAs negotiated under the TPA that was in effect during the 2002-2007 period:

IPR negotiating objectives in the last U.S. trade promotion authority (P.L. 107-210) in effect between 2002 and 2007 included, among others: (1) the application of existing IPR protection to digital media; and (2) negotiation of trade agreements in terms of IPR that “reflect a standard of protection similar to that found in U.S. law.” This phrase opened the door to the negotiation of provisions that go beyond the level of protection provided in the WTO Trade Related Aspects of Intellectual Property (TRIPS) Agreement, most recently with the TPP negotiations. For example, the United States has sought to have its partner countries sign the World Intellectual Property Organization’s (WIPO) Performances and Phonograms Treaty, an agreement to which Brunei, Malaysia, New Zealand, and Vietnam are not parties. For its part, New Zealand reportedly floated a discussion document that favors a “TRIPS-aligned” position, one that would be consistent with, but not go beyond, international standards already found in the TRIPS Agreement. In contrast, U.S. business groups have favored the TRIPS-plus provisions found in the KORUS FTA as a baseline for future negotiations. (p. 28) (emphasis ours)

This is in line with previous EFF analyses of the leaked USTR proposal for the IPR TPP chapter. Such proposals go beyond US laws, such as the DMCA, beyond multilateral agreements such as TRIPS, and even beyond the provisions in ACTA.

Specifically, when comparing TPP and ACTA, the CRS had this to say:

Although both ACTA and the U.S. proposal, which largely track the IPR provisions in the U.S.-Korea FTA, provide stricter criminal enforcement measures than the World Trade Organization (WTO) Trade-Related Intellectual Property Agreement (TRIPS), ACTA provides greater flexibility than what is reportedly contained in the U.S. text regarding a country’s enforcement of IPR. For example, in ACTA, financial gain is necessary to be considered commercial scale for [copyright infringement] prosecution, and willfulness is required for importation of trademark infringing goods. (p.29)

This actually opens up to the risk of countries looking back to ACTA as the alternative for TPP. In fact, New Zealand and Australia have done so in counter-proposals to US proposals on IPR and other rules under negotiation over the TPP.

We hope other countries, even those not currently negotiating TPP, join our call to stop the TPP and its IP chapter, and help us defeat it as many successfully did with ACTA in Europe. The US' investment of time, attention, and money on TPP—paired with the deliberate lack of transparency—shows a distrust in existing multilateral negotiating forums. These include the World Intellectual Property Organization (WIPO), where a positive agenda is being pushed forward with the Development Agenda, and the World Trade Organization (WTO), where developing countries like Brazil and others were able to balance US power. Congress can delegate fast track authority to the President to negotiate such agreements that carry such restrictive IP policies. However, it is always intended to allow Congress to keep close watch on the President, and we all know that Congress has not had any access to the current USTR proposals for TPP. The TPP negotiation opens the door to a dangerous trend in the US, where the executive branch has more power to lead the nation without the proper checks-and-balances of the democratic legislative process.

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