“Policy Laundering”

Speaking of international issues, at the recent copyright conference at the University of Maryland University College Center for Intellectual Property, Gigi Sohn of Public Knowledge used the above phrase to describe a disturbing trend in copyright legislation. “Policy laundering” refers to the practice of negotiating bilateral trade treaties with other countries that include rules about intellectual property that are more strict than US law, then presenting the agreements to Congress as evidence that the US must change its law in order to “enable” the treaties. This use of trade agreements to force legislation without regard to whether it serves the original purpose expressed by the Constitution in its authorization of copyright and patent laws – “to promote the progress of science and useful arts” – represents an end run around the Constitution.

Concern about this practice is not merely abstract. David Nimmer, whose name represents the highest authority on US copyright, writes about the TRIPS (Trade Related Intellectual Property Rights) agreement as a similar, and successful, attempt to use trade negotiations to circumvent constitutional strictures in his book Copyright: Sacred Text, Technology, and the DMCA. The Hague, London, New York: Kluwer Law International (2004). And the recent (July 2003) extension of the copyright term in Mexico to life of the author plus 100 years (30 years longer than in the US) must surely raise the concern that calls for such an extension in the US for the sake of “harmony” will soon be heard.