Charming. While the Bush Administration is willing to fudge or fail to push for confirmation or withdraw from international treaties they find objectionable, they apparently don’t have any problem with signing treaties that bind Congress’ hands regarding the DMCA.
But the FTA is also the first of its kind in another sense, as well. It is the first international trade agreement to demand that the signatories implement anti-circumvention provisions similar to those of the hotly controversial Digital Millennium Copyright Act (“DMCA”).
By pursuing anti-circumvention measures in a bilateral trade agreement, the Bush Administration had taken a new step in the progression by which the ownership and use of intellectual property have been increasingly politicized in recent years.
This step will have international, as well as domestic consequences: If Congress approves the FTA, it will not able to alter the DMCA without violating its obligations to Singapore.
And it’s fast-tracked, too. Swell.
And it gets even better.
Unless and until the FTA is enacted, courts will be able to narrow the DMCA’s scope to respect free speech and the public domain. After the FTA, however, that will be impossible: it is not the judiciary’s role to decide whether the United States should honor its treaties.
If Congress promises, in the FTA, to stick to a harsh version of the DMCA, the judiciary cannot renege on that promise. Again, this dynamic would be less troubling if we were dealing with straightforward legislation relating to ordinary products and goods – not legislation that implicates serious constitutional issues because it relates to intellectual property.
If the FTA is ratified, the judiciary will be out of options when it comes to ameliorating the effect of the fair-use-stifling DMCA. Congress will then have only one option: vote to override the treaty, a complex and wide-ranging trade agreement that regulates commerce between two nations.
(via BoingBoing)