Fast Track Trade Authority and the Free Trade Agreements: Implications for Copyright Law

In 2002, Congress passed the Bipartisan Trade Promotion Authority Act, which restored the presidential fast-track trade-promotion authority that had lapsed in 1994. Fast-track trade promotion authority is a means by which Congress delegates to the president a portion of its constitutional authority over international trade policy. This paper reviews the development, scope, and application of fast-track trade-promotion authority, evaluates some of the copyright provisions in key Free Trade Agreements, and concludes that the process has been effectively captured by the information and entertainment industries. There are numerous negative consequences that flow from the resulting policy environment. Not only is an expansionary copyright policy imposed on the trading partners of the U.S., but the domestic legislative process with respect to copyright legislation in the U.S. is itself short-circuited. This paper concludes that intellectual property issues should not come within the scope of the fast-track negotiating authority, that Congress should discontinue, or effectively limit, fast-track authority at the earliest opportunity; and in the short term, should reject the flawed agreements that will be submitted for its approval. Following a general overview of the fast track provisions, the Free Trade Area of the Americas (FTAA), the U.S.–Central America Free Trade Agreement, and key bilateral agreements will be discussed. Two specific digital copyright provisions contained in these agreements, the issue of temporary copying as a reproduction, and the anti-circumvention rules will then be considered