On Jan. 3, 2017, Robert Lighthizer was nominated to the position of United States Trade Representative, and on March 14, he sat before the Senate for his confirmation hearing.
Sen. Orrin Hatch (R-Utah) says that Lighthizer will be “a critical player in ensuring that America’s trade agenda reflects U.S. commercial interests, while helping set the standard for global trade.”
Intellectual Property Watch says that the nomination “appears to fit Trump’s strong stance on China, including on intellectual property protection,” and that some sources “indicated privately that Lighthizer’s tough stance on China could be good for reducing the flow of unauthorised creative content such as movies and music, both online and, for instance, openly in the streets of China.”
At Broadcasting & Cable, John Eggerton points out that the Motion Picture Association of America (MPAA) praises the nomination, quoting chairman and former senator Chris Dodd: “The [United States Trade Representative] plays a critical role in fostering America’s creative industries by negotiating and enforcing trade agreements that protect U.S. intellectual property rights and expand access to foreign markets for U.S. film and television. Mr. Lighthizer’s extensive experience as a trade negotiator and advocate for U.S. workers and businesses … will enable him to begin working immediately within the new Administration, with Congress, and with our trading partners to implement trade policies that benefit consumers, creators, and the national economy.”
Lighthizer has support from both the left and the right, and he seems concerned with their priorities, particularly intellectual property and the protection of the rights of the creative class, including inventors and music producers. During his confirmation hearing, the topic of intellectual property rights came up at least a half-dozen times. Lighthizer talked of a “robust protection of intellectual property,” because he sees it as in the interest of the “competitive advantage of the United States.” He will push a “policy as aggressive as we can have” in India, in particular. The slow processes, inefficiencies, and short patent protections in India are areas Lighthizer highlighted as responsible for increased abuses there.
On neither the left nor the right do we hear much debate about the existence of intellectual property itself. Lighthizer was not criticized or challenged for his conceptualization of intellectual property; he was only asked to explain how he will defend it for corporations based in the U.S.
Physical vs. Intellectual Property
But criticism of this paradigm means relatively little to the MPAA and others. The U.S. government is interested in protecting patents and copyrights as property so that American interests can maximize profit from them. If bad actors in China or India disregard good practice and international agreements on copyrights and patents, then the diplomatic and economic forces of our government, through our United States Trade Representative, apply leverage to affect those countries’ responses to the bad actors within their reach—encouraging respect for copyrights and patents while discouraging abuse. Or at least that’s the hope. And the concept of limited copyrights, as set down in our Constitution as rights “limited” in time, gets metabolized by corporate interests influencing our government to treat creative work as property indefinitely.
The practical outcome (particularly the practical financial outcome) is what motivates the United States Trade Representative, and the influence of the common conceptualization of intellectual property aids in providing a legal and ethical foundation for our actions.
The Limits of a Blanket Term
The kind of nuance that advocates of intellectual property reform and “copyleft” licensing may wish to see become more widespread, however, could be helpful for the bottom line too. Rather than using a blanket term such as “intellectual property,” specificity can help clarify opaque concepts of creative rights. Copyright is a well-established legal concept that is recognized by many countries. So are patents. Lumping them together as intellectual property, critic Richard M. Stallman argues, “systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion.” He writes:
One effect of the term is a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent, and trademark powers, these companies have worked to make the term fashionable.
Our United States Trade Representative, looking out for the interests of companies that (according to Stallman) systematically confuse concepts of copyright, trademark, and patent by conflating the terms, will apparently have no pressing reason to bring light and clarity to these issues. We can expect to continue to hear about intellectual property indefinitely. Those in power do not yet see how nuance in language and law could lead to greater flexibility and cooperative opportunities for the creatives inventing our next economy.
Lighthizer will make a great bulldog for U.S. intellectual property rights, and, barring procedural issues surfacing around his representation of legal interests of foreign governments in the 1980s, his nomination should sail through easily.