First there was SOPA, then there was PIPA. The Internet beat those back. Then along came ACTA inciting protests around the world. Up next is something far worse and far more secret – the Trans-Pacific Partnership Agreement.
For those that don't know about TPP, which is probably a large majority of the population, it's a treaty being devised by the U.S. with eight other countries in the Pacific including Peru, Chile, New Zealand, Australia, Singapore, Malaysia, Brunei Darussalem and Vietnam.
What many people consider to be the most dangerous thing about TPP is that the negotiations for it are being conducted in absolute secrecy. The public is not being allowed to be involved with the process of this all too important treaty.
WebProNews recently had the chance to speak with Sean Flynn, IP lecturer and director of the Information Justice Program at American University. He explained to us why the negotiations were being held in such secrecy.
The secrecy is being used to try to insulate the negotiation process from broader stakeholder and public input, and primarily is being driven by the USTR. What they are trying to avoid, of course, is broad attention to the many controversial provisions in the agreement which would draw criticism from citizens and businesses in the US and other negotiating countries, making reaching an agreement more difficult. This is because the norms USTR is pursuing are not broadly representative of the full scope of interests within the US or those represented in other countries. They primarily serve the big content industries and brand name pharmaceutical companies, which dominate the formal advising process that shapes the USTR positions. As the recent SOPA debate demonstrates, there are many more interests that need to be taken into account in intellectual property legislation.
Do you agree with Flynn? Are the TPP negotiations being held in secret to prevent public scrutiny and criticism? Let us know in the comments.
Let's back up a little bit though. The negotiations are being held in secret, but we've known about TPP for a while now. We're just being fed all the wrong info. The U.S. Trade Representative Web site details TPP as a great achievement for the economies of all the countries involved.
We are delighted to have achieved this milestone in our common vision to establish a comprehensive, next-generation regional agreement that liberalizes trade and investment and addresses new and traditional trade issues and 21st-century challenges. We are confident that this agreement will be a model for ambition for other free trade agreements in the future, forging close linkages among our economies, enhancing our competitiveness, benefitting our consumers and supporting the creation and retention of jobs, higher living standards, and the reduction of poverty in our countries.
Building on this achievement and on the successful work done so far, we have committed here in Honolulu to dedicate the resources necessary to conclude this landmark agreement as rapidly as possible. At the same time, we recognize that there are sensitive issues that vary for each country yet to be negotiated, and have agreed that together, we must find appropriate ways to address those issues in the context of a comprehensive and balanced package, taking into account the diversity of our levels of development. Therefore, we have instructed our negotiating teams to meet in early December of this year to continue their work and furthermore to schedule additional negotiating rounds for 2012.
We are gratified by the progress that we are now able to announce toward our ultimate goal of forging a pathway that will lead to free trade across the Pacific. We share a strong interest in expanding our current partnership of nine geographically and developmentally diverse countries to others across the region. As we move toward conclusion of an agreement, we have directed our negotiating teams to continue talks with other trans-Pacific partners that have expressed interest in joining the TPP in order to facilitate their future participation.
President Obama also backs TPP wholeheartedly claiming the same things that the USTR does. He goes over how it will "boost our economies, lowering barriers to trade and investment, increasing exports, and creating more jobs for our people." He goes on to say that TPP creates a trade network that will be America's fifth-largest trading partner.
From these statements, it seems like any other trade agreement. Nothing to see here, carry on. Even the Web site's statement on intellectual property enforcement doesn't seem out of the ordinary. It says that it's looking for "an effective and balanced approach to intellectual property rights among the TPP countries." It goes on to say that they are taking all the proposals of how IP rights should be enforced and considering all their options. This doesn't actually sound that bad. Too bad last year's draft of the IP chapter written by the U.S. was leaked online last year.
Knowledge Ecology International ran a quick rundown of the proposed changes to IP laws in TPP. They found that consumer protection was "weak or missing." They point out three major problems with the wording of the bill last year that should have people concerned.
Overall, the USTR proposal for the TPP intellectual property chapter would:
(1) include a number of features that would lock-in as a global norm many controversial features of U.S. law, such as endless copyright terms.
(2) create new global norms that are contrary to U.S. legal traditions, such as those proposed to damages for infringement, the enforcement of patents against surgeons and other medical professional, rules concerning patents on biologic medicines, disclosure of information from ISPs, etc.
(3) undermine many proposed reforms of the patent and copyright system, such as, for example, proposed legislation to increase access to orphaned copyrighted works by limiting damages for infringement, or statutory exclusions of "non-industrial" patents such as those issued for business methods.
It's important to note that this leak comes from late last year. The wording could have changed by now for better or for worse. We just don't know. The absolute secrecy in which the meetings are being held prevent anybody from getting a clear picture on how things are going.
Going back to Sean Flynn, he and his colleagues caught wind of negotiations happening in West Hollywood this past week. He organized a luncheon to discuss TPP while the negotiations were going on to perhaps broker some kind of cooperation between the negotiators and IP rights specialists. As expected, it didn't go as planned, here's Flynn's take on it:
Several weeks ago, global internet policy and health groups became aware that there would be an unannounced meeting of TPP negotiators this week in LA at the Sofitel in West Hollywood. Upon being informed, American University and the Computers and Communications Industry Association booked a conference room in the hotel for the first morning of the negotiation to offer a policy briefing to negotiators on concerns some experts have with a U.S. intellectual property proposal that has been leaked to the public. About an hour after the briefing was advertised to all delegations, including the host USTR, we received a cancellation of our venue by the hotel. The cancelation by Sophie Jones, Event Sales Manager, Sofitel Los Angeles stated:
“I am sorry to be the bearer of bad news but unfortunately we will not be able to move forward with your luncheon for Tuesday January 31st. It was brought to my attention that we have a confidential group in house and we will not be allowing any other groups in the meeting space that day. Again, my apologies for the late notice. Hopefully we can work together in the near future.”
After receiving the cancellation, some individuals called the hotel and were able to book a room for a claimed private event not related to the TPP. Apparently only TPP-related events were banned from the hotel at the request of an unidentified party. USTR is serving as the host of this meeting.
The film industry did not have similar problems. Not only were they informed about the TPP negotiation, but were given the opportunity to host an evening tour 20th Century Fox Studies the night before negotiations began, led by a representative of the studio’s government relations office.
The public interest briefing did ultimately take place, after being moved to a restaurant across the street from the main venue. The groups also held a public briefing at USC School of Law, a webcast and documents for which are available at: http://infojustice.org/archives/7511.
It's obvious that the government wants public disclosure kept to a minimum. Unfortunately, it didn't exactly happen that way. During the day of the negotiations, there were protestors outside the hotel making a stink about TPP. Thankfully, Anonymous provided pictures of the protests through imgur.
All of this begs the question of how TPP is any worse than its predecessors. We asked that very same question of Flynn:
After several leaks of ACTA text and the ensuing public outcry, especially over the internet enforcement provisions, the ACTA text improved somewhat. But one can see from the leaked TPP texts that provisions from earlier ACTA versions on issues such as internet service liability, creating a new global DMCA take down regime, and criminal enforcement for non-commercial file sharing, have entered the US proposal for TPP. There are also many provisions in the US proposal that could require alterations of US law. And the general trajectory of the US proposal remains similar to ACTA – it is all about strengthening, lengthening and increasing the aggressiveness of the enforcement of intellectual property rights, with no effort to export the balancing provisions of US law, like fair use, that have been central drivers for innovation on the internet and the protection of free speech. It is a very one-sided proposal.
The U.S. International Trade Commission, which is about as unbiased as you can get in the U.S. government, issued a report on TPP in October of last year. It outlines the problems facing the treaty and what provisions might prove to be the most controversial. Which provision is the most controversial in their eyes? You guessed it - the IP chapter.
Highly controversial; affects especially pharmaceuticals and information technology. Exporters seek provisions beyond TRIPS, such as accession to WIPO treaties. Resistance from importers, competitive producers, national health systems, NGOs. Developing countries may want to regulate bio-prospecting.
The most controversial part, however, in many opinions is the proposed copyright of buffers. For those unaware, a buffer is a small piece of data created in a computer before it plays any kind of file. While under current copyright law, a music label can claim to own the data in the MP3 for a song. These new laws would let them also claim copyright on the data buffer that was created when a user played the file. It's worth noting that a buffer vanishes after a few seconds of creation. Think about that for a second - every single piece of data on your computer, no matter how small or inconsequential it is, would have a copyright applied to it.
After seeing all the evidence and hearing from both sides, do you agree with Flynn? Or is TPP being made out to be worse than it actually is? Let us know in the comments.
In the end, we may be all overreacting. The wording of the provisions in the current treaty could have changed for the better. The only problem is that it's highly unlikely. The entertainment industry's pockets are deep and they want to make sure that they have control of the media for the foreseeable future.
It's important to note that these treaties don't only hurt the Internet; they affect physical trade and global relations as well. While the Internet regulation part is important, we have to keep in mind the repercussions outside of our digital playground. I would implore anybody interested to read the ITC's report on TPP and the leak of the IP chapter to form their own opinion on it.
If you're in agreement that TPP is no good, what can you do? It's obvious that the powers that be want as little public involvement as possible. Well, for what it's worth, there is a submission form on the USTR's Web site where citizens can submit comments and inquiries about TPP to the higher powers.
What's more important is to stay informed on all changes to the treaty. The next round of negotiations will be held in Australia in March. While I'm not advocating that you travel to Australia to protest, you can make your voice be heard through a variety of ways in which Flynn points out:
People wanting to get involved should contact their representatives in Congress and write the White House to express their concerns with negotiating new intellectual property laws in secret international negotiations. The next round of negotiations will take place in Melbourne, Australia, starting March 1, 2012. EFF has an action alert out on TPP. It would be great for other groups to do the same and make it easier for people to register their concern. It should also be noted that ACTA, another international IP agreement crafted entirely in secret, is still not in force and could be defeated. The EU parliament will begin considering the issue in March, with a vote scheduled in June. And in the US, the administration is saying that it will not allow Congress to vote on whether to bind us to that controversial agreement. There is still time to halt this course and return intellectual property law-making to domestic legislatures where it belongs.
Until we get more information or another leak on TPP, I'm afraid this is all we have. Once again, it's important to note that it could have changed. We just don't know. Until the governments of the world decide that it's smart business to include their citizens in any international treaties, we aren't going to know much this or any other treaties that could be around the corner.
Are you concerned about TPP? If you are, what concerns you most from the limited information we have on it? Let us know in the comments.