Friday, September 15, 2006

Making U.S. Law Overseas

BNA's September 15th PTCJ has two articles well worth reading. The first describes a meeting held by the PTO and the Copyright Office on September 5th about a proposed new treaty protecting broadcasters. The second is an announcement of a diplomatic conference about the proposed treaty from July 11 to August 1, 2007.

There are two dangers presented, both serious. The first is the merits of the protection sought. Broadcasters may be the most powerful lobby in Washington, and they have used that power over many decades to enrich themselves through the use of giveaways of public resources, the public airwaves; digital television is only the most recent example. In the early 1990s, they rammed through, over the Judiciary Committee's objections, another property right, retransmission consent. They also enjoy a complete exemption from payment of Section 106(6) performance royalties for terrestrial transmissions, while webcasters, a far less economically viable market segment must pay. (In a rare lobbying lapse, in 1998, the broadcasters let themselves become liable for web retransmissions of terrestrial broadcasts). I see no reason for broadcasters to further feather their nest, and that feathering will come at the expense of new technology companies and consumers: arguments that it is only foreign consumers who will pay sound alot like the arguments that were made during the Sonny Bono term extension debates. If no amendments to U.S. law are required to join the proposed treaty, fine; but if amendments are necessary, as commentators at the hearing indicated, that is a red flag.

But beyond a concern over the fabulously rich getting richer, there is a serious process point at issue, raised, thankfully, at the PTO-Copyright Office meeting. That point is the trend, certainly since the DMCA, and possibly earlier with the GATT/TRIPs agreement, of the Executive Branch, through the Office of the United States Trade Representative (USTR), of making domestic law indirectly through treaty negotiations. Here's how it works: U.S. industry group X goes to USTR and says we need new rights; please obligate the United States to provide for those rights in an international agreement, whether a new treaty or trade deal. Without public input, without congressional hearings, without legislation, USTR commits the U.S. to provide that protection. The Executive Branch then goes to Congress and says to Congress that legislation has to be passed on pain of the U.S. violating its international obligations. Congress complies.

Whatever one might say about USTR, one cannot fairly describe that agency as concerned with the larger public good; its concerns are with increasing the U.S. share of markets overseas. If that means obligating domestic changes to U.S. law to get more goodies for U.S. industries overseas, so be it. There are serious institutional and policy issues with this trend. Initiatives to amend U.S. law should be taken up first by Congress; they should make sense as a matter of domestic balancing. Congress is the policymaker in our system, not the Executive Branch. Couching issues as trade issues or foreign policy is a too clever and dangerous way to make U.S. law overseas. It should stop for the public good.

While the PTO-Copyright Office hearing is a good first step, but only public demand that Congress take control of the issues is sufficient. There is time to do so. Congress can and should hold oversight hearings on the issues presented early in the next Congress. Congress should then set the U.S. position for the diplomatic conference, and not the Executive Branch. Given the broadcasters' much larger influence over the commerce committees, the Judiciary Committees would do well to make their voice heard early and forcefully; if the retransmission experience is any precedent, the Judiciary Committees will get rolled if they don't.


Anonymous said...

Thanks for the latest insightful post.

The dynamic you describe is sometimes referred to as policy laundering. This term has a lot of descriptive power and, as a bonus, an implicit metaphorical link with money laundering.

For more on the use of various international strategies such as policy laundering, see Ian Hosein, The Sources of Laws: Policy Dynamics in a Digital and Terrorized World, 20 The Info. Soc’y 187 (2004).

Jessica Litman details the policy laundering that led to Title I of the DMCA in Digital Copyright (2001).

Max Lybbert said...

I would expect a former Congressional lawyer to somewhat enjoy the procedural shenanegans. Or at least enjoy reading about them.

Anonymous said...

There's something I don't get: shouldn't Congress see through this process and tell the Administration to go stuff itself after it negotiates these sorts international agreements? There's plenty of treaties that the executive has signed that the Senate has never ratified (and never will). Every government in the world knows (or should know) that this is possible. Why does Congress put up with this sort of bullying? and/or What am I missing?

Anonymous said...

Bill et al:

Indeed, we are shocked, shocked that such tactics exist in the USA and perhaps other sovereign democracies.

Moreoever, compounding the problem to a great extent is the “fast track” mechanism that essentially makes it a simple yes or no rubber stamp proposition for Congress.

Congress has been complicit in this dance. It suits both Congress and the Executive. Both get to pass the buck back and forth.

I believe that the strategy began with the Canada/US Free Trade Agreement of 1988, and was perfected in the NAFTA and WTO negotiations.

Some have even suggested that the US may also have been very active in encouraging (instigating?) the EU to go to the life + 70 copyright term. The EU move was then effectively used to convince Congress to follow suit, even though there was no treaty requiring the US to do so.

Howard Knopf

William Patry said...

I very much like the term policy laundering. On my good friend Howard Knopf's suggestion of complicity with term extension here and the EU, I don't think so. First, the idea of a term extension was first broached in the U.S. in the legislative branch in 1994, after adoption in the EU when I still worked for the House. We said no way. It was only later, with a different regime, that there was more receptivity, and even so, it took until 1998 when the bar and tavern folks were bought off with the Section 110(5) amendment (a buying off the USG ended up payng for as a result of the Irish WTO complaint) for term extension to pass. Nor in the run up to the EU's adoption of its term directive, was I aware of any such encouragement on the USG's part. Since I was a part of the government during that period and such a wink wink nudge nudge would have had to have been run past Congress first to be ultimately successul (as Howard also suggests), I can say I never heard of such a tactic. Howard, is this perhaps a Canadian conspiracy theory, like the grassy knoll?

WREK Atlanta said...

As a broadcaster, I strongly disagree with the need for the broadcast content protection.