On March 20, 2012, Senator Wyden (D-OR) filed two amendments to H.R. 3606, a bill known in its short form as “Jumpstart Our Business Startups” or JOBS Act, related to the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPPA).
The first amendment, number 1868, relates to ACTA and has the stated purpose “To prohibit the President from accepting or providing for the entry into force of certain legally binding trade agreements without the formal and express approval of Congress.” This amendment seeks to prohibit the President from entering into legally binding trade agreements that concern enforcement of intellectual property rights without approval of Congress. The text of the amendment reads:
Notwithstanding section 303 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8113) or any other provision of law, the President may not accept, or provide for the entry into force with respect to the United States of, any legally binding trade agreement that imposes obligations on the United States with respect to the enforcement of intellectual property rights, including the Anti-Counterfeiting Trade Agreement, without the formal and express approval of Congress.
The second amendment, number 1869, seeks to promote transparency in the Trans-Pacific Partnership Agreement with respect to the intellectual property chapter, with a particular emphasis on provisions relating to the internet. It would require public disclosure of US negotiating positions and proposals on intellectual property or those proposals relating to the Internet be made available, unless release of the documents would pose a national security threat. The full text of the amendment is as follows:
SEC. 801. DISCLOSURE OF UNITED STATES POSITIONS RELATING TO INTELLECTUAL PROPERTY OR THE INTERNET IN THE TRANS-PACIFIC PARTNERSHIP NEGOTIATIONS.
(a) DISCLOSURE OF EXISTING DOCUMENTS.—Not later than 30 days after the date of the enactment of this Act, the President shall make available to the public on the website of the Office of the United States Trade Representative each document—
(1) describing a position of, or proposal made by, the United States with respect to intellectual property, the Internet, or entities that use the Internet, including electronic commerce; and
(2) that was shared with other parties to negotiations for a Trans-Pacific Partnership Agreement before such date of enactment.
(b) ONGOING DISCLOSURE OF DOCUMENTS.—On and after the date of the enactment of this Act, the President shall make available to the public on the website of the Office of the United States Trade Representative any document describing a position of, or proposal made by, the United States with respect to intellectual property, the Internet, or entities that use the Internet, including electronic commerce, not later than 24 hours after the document is shared with other parties to negotiations for a Trans-Pacific Partnership Agreement.
(c) WAIVER.—The President may waive the application of subsection (a) or (b) if the President—
(1) determines that making a document described in subsection (a) or (b) (as the case may be) available to the public would pose a threat to the national security of the United States; and
(2) submits to Congress a report describing the reasons for that determination.
We support Senator Wyden’s efforts to require greater transparency in the TPPA. Although other Senate offices had expressed similar concerns regarding the lack of transparency previously, no other office to date has filed legislation mandating public disclosure of texts. We hope, of course, that transparency would be extended to other trade agreements because the content of these agreements can become binding on the US and affect the general public.
Techdirt has written on these two amendments here and noted that “because of the political process that will get this through quickly, it appears that Senator Wyden won’t get to introduce two amendments he proposed.”