Is Ratification of the Trans-Pacific Partnership Free Trade Agreement likely?

Enactment of the Trans-Pacific Partnership (“TPP”) Free Trade Agreement would, amongst other changes, attempt to harmonize the patchwork of copyright laws across the various Signatories. Activists are concerned because sections of the TPP would undermine copyright fair use protections that presently allow limited use of a work for certain commentary or other opinion based purposes. TPP, Art. 4.3. Other changes eliminate or reduce the requirements necessary to seek a preliminary injunction against an alleged infringer. TPP, Art. 13.1. Most importantly though, is the establishment of a harmonized copyright enforcement scheme wherein Signatories would provide “legal incentives for [Internet] services providers to cooperate with copyright owners in deterring the unauthorized use and transmission of copyrighted materials.” TPP, Art. 16.3(a) (U.S. Draft IP Chapter).

Some domestic groups are already mobilizing against the TPP based on the possibility that it will be approved in the United States without regard to transparency in the negotiation process. During the 2012 negotiations, Amnesty International advocated for greater public access to the draft text of the proposed agreement. But, how and when is the U.S. Senate likely to ratify such a polarizing treaty? Since 2011, the American public has been firmly against “NAFTA-style” free trade agreements. How could something so unpopular have such a possibility of being ratified?

What is concerning is that the U.S. government has sought to “fast track” approval (or utilize what is known as “trade promotion authority”) of the TPP without going through the usual channels of debate such as the U.S. Senate. Adoption and use of the “fast track” power to ratify the TPP could undermine the constitutional separation of powers by giving the power to negotiate and approve international treaties solely to the Executive branch. Although the “fast track” power is not in place yet, it is presently being advocated by the Obama administration to expedite passage of the TPP.

It is possible that the Obama administration is aware that the TPP would not be approved in its current form by the U.S. Senate given the present ideological divisions, so they are trying to work around the Senate by having the “fast track” power approved? Presently, ratification of a treaty requires a 2/3 vote in the Senate.  The Senate is currently far too divided to muster the 2/3 votes needed to approve an international treaty like the TPP in its present form. If the Senate grants the “fast track” power to the appointed U.S. Trade Representative, then it is possible that the TPP will be negotiated in secrecy consistent with the predictions, and then left to a simple up or down vote in the Senate. However, the “fast track” power has not been renewed by Congress and does not appear to be renewed any time soon. Fortunately, for the time being, the U.S. Senate still maintains the power under the U.S. Constitution to negotiate and ratify treaties.

There are more than enough Senators at this time that would vote against ratification that the TPP would not pass in its present form. In August of 2013, Jared Polis (D-Colo.), sent a bipartisan Congressional letter signed by 17 other Congressional representatives to the U.S. Trade Representative advocating for a balanced approach to intellectual property rights and increased transparency in trade agreement negotiations.

Because of a recent U.S. proposal to allow for control over exchange rates, the likelihood that the TPP will be passed anytime this year is highly unlikely. At the very least, were the TPP to eventually reach Congress, it would face an uphill battle against public opinion given the unpopularity of other “free” trade agreements. There are still a number of hurdles to overcome before the TPP is likely to be ratified, so concerned activists can rest for now. But rest with one eye open because if the “fast track” power is somehow granted, then the likelihood of a quick ratification of the TPP without substantive debate increases.