Derek Khanna

Recently, Wikileaks published a portion of the Trans-Pacific Partnership (TPP) Treaty. The leaked chapter was on intellectual property, and it demonstrates how the US Trade Representative must fix this portion of this massive treaty before it is signed to protect the free market from cronyism, and to ensure that we are not locked into imprudent policies.

The treaty process is in flux, so provisions can still change, but as drafted, the treaty has numerous significant problems for anyone with basic concern for the free market and Constitution– three of them are addressed here.

1. The treaty locks in international copyright terms at an absurdly long term, limiting Congress’s ability to ever reassess copyright term lengths.

2. It makes any permanent solution on phone unlocking illegal.

3. And the treaty had been negotiated under unacceptable and perhaps unprecedented secrecy for a trade deal (specifically not including important stakeholders).

Economists and legal scholars have long complained about the current “life + 70” copyright term as being excessively long and causing economic harm; as a comparison, the Founders’ copyright term was 14 years.

A copyright term length of life + 70 is clearly excessive. While there have been many studies on the matter, there is no empirical data that life + 70 is an appropriate copyright term length. Richard Coase, Milton Friedman and 14 other free market economists filed a brief explaining this “lengthened copyright term . . . keeps additional materials out of new creators' hands.” Ultimately it results in “fewer new works” and “higher transaction costs in the creation of some works.” The brief explained that life +70 was both inefficient and that it also “reduces consumer welfare.”

Despite, or because, the conservative movement having been opposed to life + 70, now the White House is seeking to internationalize life + 70 copyright terms to ensure that we can never restore constitutionally consistent copyright.

Term lengths must be implemented, assessed and revised as is best for the economy; rather that locked in by special interest lobbyists through international treaty. Milton Friedman has referred to the specific terms of copyright as a matter of “expediency” to be determined by “practical considerations.” Friedrich Hayek, known for his defense of property rights, called for “drastic reforms.” Liberal interest groups goal is to usurp the policy making process so they never have to debate these issues in Congress.


Derek Khanna

"Derek Khanna is a Yale Law Fellow with the Information Society Project, columnist and policy expert. Until recently he was a professional staff member for the House Republican Study Committee, where he authored the widely read House Republican Study Committee report “Three Myths about Copyright Law.” The report on copyright reform was praised throughout the tech community as being "brilliant" and a "breath of fresh air" and received praise from various conservative organizations. Derek has spoken at the Consumer Electronics Show as a technology expert and will be speaking at the Conservative Political Action Conference. Derek was referred to as a “rising star” in the party by David Brooks in the New York Times. Mr. Khanna continues to be a major thought leader on technology issues and disruptive innovation." He can be found on Twitter at @derekkhanna.


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