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ARL Views

Trade, Transparency and Democratic Values

Last Updated on January 22, 2015, 9:12 pm ET

It’s Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation! Today’s topic is “Transparency: Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.”

Tomorrow, intellectual property negotiators will begin meeting in secret to discuss the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement that currently has twelve negotiating parties: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States. As noted in last year’s post for Copyright Week’s Transparency Day, transparency in policymaking is essential to upholding democratic ideals. Without access to information about the negotiations and texts, the public is unable to substantively comment and address areas of concerns.

Despite the fact that the TPP has been negotiated for the past five years, none of the negotiating parties has officially released proposals or text. The only texts that have been made available resulted from leaks, the most recent occurring on October 16, 2014. There have been many areas of concern with respect to the copyright provisions in the TPP. While the most recent leak shows improvements in some areas (such as eliminating the three-year rulemaking procedure for creating exemptions to anti-circumvention laws), it also revealed new potential issues (such as possibly preventing the reintroduction of copyright formalities for the last twenty years of copyright protection in the United States). Yet the public is only alerted to these potential problems by relying on leaks, which do not occur on a regular basis.

Furthermore, while governments made information about earlier rounds of negotiations public and stakeholders were invited to give presentations or interact with negotiators, recent meetings have become more secretive. The last time stakeholders were provided the opportunity to present was in August 2013 even though negotiations have continued on a regular basis since then. The website of the Office of the United States Trade Representative does not give any details or even acknowledge the meetings that will take place over the course of the next two weeks.

As the TPP is reportedly in its final stages, it appears that negotiations with the European Union on a regional trade agreement known as the Trans-Atlantic Trade and Investment Partnership (TTIP) seems to be quickly advancing. After several rounds of negotiations, texts have already been proposed in some areas. Unlike the negotiations in the TPP, however, much more information has been publicly released on the TTIP.

In November 2014, the European Commission announced that it would publish the dates, locations, names and organizations it meets with and the topics of its discussions. Specifically, the Commission agreed that with respect to the TTIP it would make public the negotiating texts it shares with Member States and Parliament, provide all Members of the European Parliament the TTIP texts, make less negotiating documents classified, and publish a public list of TTIP documents that have been shared with the European Parliament and Council.

The EU has already started to fulfill its promise to enhance transparency and “negotiat[e] TTIP as openly as possible.” On January 7, 2015, the EU released its negotiating texts that had been shared with US negotiators as well as position papers for areas which it had not yet developed and proposed text. The EU’s position paper on intellectual property reveals the intended architecture of the chapter including 1) a list of international intellectual property agreements signed by the EU and US; 2) shared principles that are based on existing rules and practices; 3) binding commitments (specifically referencing two copyright issues: resale rights for visual artists and public performance and broadcasting rights); and 4) areas where the EU and US can work together on areas of shared interests. The fact sheet specifically states that because the EU and US already have detailed enforcement provisions in their laws, “we wont negotiate rules on things like penal enforcement [and] internet service provider liability.”

Secrecy is a poor model for policymaking. Even when an agency or government asserts that it is transparent because it has released statements or described what proposals have been made, as noted in a letter commenting on proposed text in the TPP, “informed commentary is possible only with respect to actual text, not descriptions of text.” The specific language, structure and details of a proposal are critical in understanding the potential impacts. USTR should consider following the lead of the EU and release its negotiating proposals in the TTIP as they become available.

Similarly, TPP countries should agree to release the negotiating texts to allow for informed participation. Releasing the negotiating texts of trade agreements has precedent; the text of the Free Trade Area of the Americas was released and the US government solicited comment on the negotiating text.  Library associations noted their appreciation for the open process for commenting on the Free Trade Area of the Americas.  Participation in the democratic process is dependent on access to information; without being able to read the texts these values are threatened.

Of course, even if the TPP text is released, another danger remains: Congress may choose to give the Obama Administration “trade promotion authority” also known as “fast track authority.”  If “fast track” is approved Congress will not have the ability to change the agreement and can only approve or reject the agreement on a straight up-down vote, meaning that it cannot amend the agreement.  Agreements that have reached Congress through fast track authority have never been rejected.  This delegation of authority further threatens democratic principles by reducing the ability of elected officials to meaningfully address concerns that may arise from portions of the agreement.