We’re taking part in 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.
Transparency in government is fundamental to a democratic society and meaningful participation. Without access to information about the laws and policies being considered, the public is unable to substantively comment and address potential areas of concern or challenge and influence public policy.
The negotiations of the Trans-Pacific Partnership Agreement (TPP) which took place over the course of more than five years before a final agreement was reached in October 2015, highlight a poor exercise in transparency. Over the course of the lengthy negotiations, the official text was never released nor was it released when the trade ministers of the twelve negotiating parties announced conclusion of the agreement. It was not until December 2015 that any of the parties released the text for the public to view. While there were several leaks of various portions of the agreement, including quite a few leaks of the intellectual property chapter, relying on leaks is a poor substitute for official releases of text. By the time a trade agreement reaches its conclusion, it is very difficult, if not impossible to change the text (particularly given the number of negotiating parties in the case of the TPP) and it is therefore important that the public is engaged at an earlier date.
Throughout these negotiations, USTR and other negotiating governments often made claims that the process was a transparent one. They touted the fact that they provided information about the locations of negotiating rounds and invited stakeholders to give presentations on a “stakeholder engagement” session and attend briefings by the chief negotiators. However, this form of engagement is not a substitute for seeing the actual text. Furthermore, the last time stakeholders were provided an official opportunity to present to the negotiators was in August 2013, despite the fact that negotiations continued for more than two years after.
On October 27, 2015, the White House its Third Open Government National Action Plan which sets forth a number of initiatives designed to create a more open government. One plan initiative regarding access to information reads:
Increase Transparency of Trade Policy and Negotiations. In September 2015, the Administration appointed a Chief Transparency Officer in the Office of the United States Trade Representative who will take concrete steps to increase transparency in trade negotiations, engage with the public, and consult with Congress on transparency policy. This work builds on previous steps to increase stakeholder engagement with trade negotiators, expand participation in trade advisory committees, and publish more trade information online. To further increase public access to U.S. trade policy and negotiations, the Office of the United States Trade Representative will also continue to promote transparency and public access to international trade disputes in the World Trade Organization and under regional trade agreements, and encourage other countries to similarly increase transparency in this regard. The Office of the United States Trade Representative will also continue to encourage posting video of trade dispute hearings to give the public insight into these processes.
While increased transparency is always welcome, in the case of the TPP, this goal comes too late. Furthermore, the initiative may also be too little as the specifics of the plan reveal that the government is not committing to the transparency necessary for the public to engage in informed debate. While increased stakeholder engagement with negotiators would certainly be welcomed, there is no commitment to releasing the actual negotiating texts. Furthermore, the “expand[ed] participation in trade advisory committees” may not be that useful given that under the current rules of the trade advisory committees, individuals are required to sign non-disclosure agreements.
The text of the copyright provisions of the TPP improved over the course of the negotiations. Many areas of concerns raised by critics of the agreement once leaked text was available were addressed, possibly because of the outcry over these provisions. Yet, again, relying on the availability of leaked text is risky and the public should be given an opportunity to comment on issues that will affect them, within a timeframe where such criticisms can be addressed. Backdoor policymaking has no place in a democratic society.
As the TPP negotiations have concluded (though it must still be signed and ratified by each of the negotiating parties), attention will turn to another regional trade agreement: the Trans-Atlantic Trade and Investment Partnership (TTIP) with the European Union.
The EU has made steps toward increased transparency in the negotiations. 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 revealed 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.”
The United States should improve its commitments to increased transparency in trade negotiations and make their proposals public. Descriptions about negotiating texts and engagement with stakeholders are no substitutes for the ability to view and comment on the actual texts. Often, the language included in these agreements are highly technical and commentary and concerns can change based on the exact text. The goal of increasing transparency should be applauded, but meaningful transparency must be achieved.