Academic journal article Harvard Law Review

Charming Betsy and the Intellectual Property Provisions of Trade Agreements

Academic journal article Harvard Law Review

Charming Betsy and the Intellectual Property Provisions of Trade Agreements

Article excerpt

For over three decades, a paramount goal of U.S. trade policy has been to ensure robust protection of intellectual property (IP) rights across national borders. (1) Beginning with the Agreement on Trade-Related Aspects of Intellectual Property Rights (2) (TRIPS) in 1994, the United States has repeatedly sought to "export" its own comparatively protective IP regime through multilateral and bilateral trade agreements. (3) The currently pending Trans-Pacific Partnership (4) (TPP) is arguably the culmination of this trend toward greater focus on the harmonization of IP policy. (5) TPP's architects aim to seize the initiative from China--a nation with notoriously lax IP protections--and set the rules of Pacific trade on American terms, (6) with the hope that China will eventually accede to those rules in order to gain greater market access. (7) In addition to its economic significance, the agreement's IP provisions are a key part of a geopolitical strategy endorsed by presidential administrations from both parties.

But the project of exporting American IP law is built on a more brittle domestic foundation than most realize. The U.S. Trade Representative (USTR) is always negotiating some agreement or another and can promote new IP rules to settle issues that arise in the course of technological and economic change. Our domestic IP statutes, on the other hand, are updated only sporadically. As a result, the IP provisions in trade agreements often address issues that the federal patent, copyright, and trademark acts do not clearly resolve. On several important questions of IP policy, U.S. trade agreements clearly commit the nation to a rule internationally, while our courts continue to dis-agree, as a matter of statutory interpretation, on whether the rule is part of our domestic law. (8)

U.S. courts have long sought to avoid such conflicts between foreign and domestic commitments--and the negative foreign policy consequences that can follow--by applying the Charming Betsy (9) canon, which counsels that "where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States." (10) But in 1998, in Quality King Distributors, Inc. v. L'Anza Research International, Inc., (11) the Supreme Court departed from this principle without explanation and dismissed as "irrelevant" (12) five trade agreements that ran counter to its interpretation of the Copyright Act of 1976 (13) (Copyright Act). In the years since, the few lower courts to confront the issue have indicated that the Charming Betsy canon should apply to conflicts between domestic law and trade agreements. But the observance of the canon in IP cases has been irregular at best--and litigants often fail to even raise the issue.

This Note argues that courts and litigants should invoke the Charming Betsy canon more frequently to avoid inconsistencies between trade agreements and ambiguous provisions of domestic IP law. Part I briefly introduces and comments on the legal framework underlying trade agreements and the procedure by which Congress approves them. To give an example of the problems posed by nonobservance of the canon, Part II looks at the dispute in U.S. courts over the "making-available" right, which is secured by treaty but unsettled in domestic law. Part III examines the principles underlying the Charming Betsy canon, canvasses the case law on Charming Betsy and trade agreements, and argues that the separation of powers values that provide the strongest justification for the canon apply with particular force when courts are reviewing conflicts between domestic IP law and trade agreements. Finally, Part IV explores what the institutional implications are when courts apply a robust version of the Charming Betsy canon to conflicts between domestic IP law and trade agreements, and argues that the canon's critics overstate the risk of executive branch overreach. …

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