USTR Nominee Lighthizer May Fit Strong Stance On IP Protection

Robert Lighthizer, President-elect Donald Trump’s newly named choice for United States Trade Representative, appears to fit Trump’s strong stance on China, including on intellectual property protection, but is a longstanding Washington Republican insider and negotiator of trade agreements, which might seem contrary to Trump’s stated questioning of the status quo. Still, some say he is apart from Trump’s other appointments on trade in important ways.

Lighthizer was deputy USTR under President Reagan in the 1980s, has been an advocate for a more aggressive approach to trade with China, including on intellectual property rights. In his time at USTR and on the Senate Finance Committee, he helped drive through many trade agreements, according to his biography on the website of the Skadden Arps law firm where he is a partner. Trump signalled that he wanted to “tear up” or at least renegotiate a number of recent trade deals, and if so, Lighthizer might have the skills and original thinking to do so.

In his practice, he represents heavy manufacturing, agricultural and high-tech companies, as well as financial services institutions, the site says.

In a statement, Trump said: “Ambassador Lighthizer is going to do an outstanding job representing the United States as we fight for good trade deals that put the American worker first. He has extensive experience striking agreements that protect some of the most important sectors of our economy, and has repeatedly fought in the private sector to prevent bad deals from hurting Americans. He will do an amazing job helping turn around the failed trade policies which have robbed so many Americans of prosperity.”

In testimony [pdf] before the US China Economic and Security Review Commission in 2010, he said China’s accession to the World Trade Organization in 2000 had not brought the expected benefits to US businesses as China, and that China had not committed to the rule of law, including the protection of IP rights. In the testimony, he points to the massive US trade deficit and job loss that arose since China’s accession.

“[O]verwhelming evidence shows that the most important claim made in support of PNTR [Permanent Normal Trade Relations with China] that it would bring significant economic benefits to U.S. workers and businesses – was simply wrong,” he wrote. “Our trade deficit with China has exploded, millions of U.S. manufacturing jobs have been lost, China continues to maintain significant market barriers to block our exports, and the current trend within China is away from further liberalization.”

“USTR’s most recent report regarding China’s WTO compliance identified a number of problems, including: (1) poor enforcement of IPR laws and regulations, (2) the use of export restrictions in violation of WTO commitments, (3) the use of investment rules to protect Chinese industries, and (4) pressure from the Chinese government on non ­Chinese companies to license their technology or intellectual property on unfavorable terms,” Lighthizer added. “These are not isolated problems, but part of a broader resistance within China to key WTO norms such as ‘national treatment’ (giving others the same market access as one’s own nationals), providing MFN status to all members (i.e., not discriminating among trading partners), and “transparency” (making rules as clear and public as possible).”

Perhaps a sign of the uncertainty surrounding Washington in the days before Trump takes office, public reactions from the trade and IP community – either strong free-traders or skeptics – were hard to find, as lobbyists tend to wait till the congressional approval process runs its course before showing their hand.

But 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.

Last month’s USTR “notorious markets” report included several Chinese websites and markets (IPW, North America, 21 December 2016).

Recording Industry Association of America (RIAA) spokesperson Cara Duckworth commented to Intellectual Property Watch, “Music is one of this country’s greatest exports, enjoyed the world over, and along with other US copyright industries contribute more than $1 trillion to the US economy. We look forward to working with Mr. Lighthizer to help promote American competitiveness, creativity, and innovation around the world.”

[Update:] Motion Picture Association of America (MPAA) Chairman and CEO Chris Dodd said in a statement: “The USTR plays a critical role in fostering America’s creative industries by negotiating and enforcing trade agreements that protect US intellectual property rights and expand access to foreign markets for US film and television. Mr. Lighthizer’s extensive experience as a trade negotiator and advocate for U.S. workers and businesses, which includes serving as Deputy USTR in the Reagan Administration, 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.” [end update]

Watchdog group Public Citizen in a release addressed the apparent difference between Lighthizer and the status quo on trade.

“Lighthizer has consistently noted that historically Republicans favored trade policies designed to obtain specific national economic goals and criticized the Republican Party’s rigid support over recent decades of “free trade” ideology. His views put him at odds with most of Trump’s other high-level appointees who represent the very perspective on trade that Lighthizer has long critiqued,” it said.

“Lighthizer is very knowledgeable about both technical trade policy and the ways of Washington, but what sets him apart among high-level Republican trade experts is that for decades his views seemed to be shaped by the pragmatic outcomes of trade agreements and policies rather than fealty to any particular ideology or theory,” Lori Wallach, director of Public Citizen’s Global Trade Watch, said in the statement. “I don’t know that he would agree with progressive critics of our status quo trade policies about alternative approaches, but he also has had quite a different perspective on trade policy than the Republican congressional leaders and most of Trump’s other cabinet nominees who have supported the TPP and every past trade deal.”

Trump takes office on 20 January. The Office of the USTR is part of the White House, though Lighthizer was part of an attempt in the 1980s to create new office combining the USTR with parts of the Commerce Department.

It remains to be seen how the USTR will fit with other appointments on trade under the Trump administration. The Trump team said last month that his nominee for Commerce Secretary, Wilbur Ross, would take the lead on trade. Trump also named Peter Navarro, a China critic, to lead a White House National Trade Council. The US Patent and Trademark Office (USPTO) falls under the Commerce Department, but IP is negotiated in trade deals by USTR.

The Trump website said: “In his new role, Ambassador Lighthizer will work in close coordination with Secretary of Commerce-designate Wilbur Ross and Peter Navarro, head of the newly created White House National Trade Council, to develop and implement policies that shrink our trade deficit, expand economic growth, strengthen our manufacturing base and help stop the exodus of jobs from our shores.”

 

Image Credits: USTR