Access to Text Provides Meaningful Transparency

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.

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Today’s theme is Transparency and Representation: Copyright policy must be set through a participatory, democratic, and transparent process. It should not be decided through back room deals, secret international agreements, or unilateral attempts to apply national laws extraterritorially.

Transparency is critical in understanding what laws may be created that will affect the public. For years, the United States has been involved in negotiated trade agreements in secret, without giving the public ample opportunity to make comments and engage in a meaningful way.  ARL has blogged about the concerns around the lack of transparency in trade negotiations many times in the past, noting that this is a primary failing of the negotiations of the Trans-Pacific Partnership Agreement (TPP), Trans-Atlantic Trade and Investment Partnership (TTIP) and other agreements, resulting in a lack of democratic process.  Although USTR has claimed transparency due to the opportunities to provide stakeholder presentations at various negotiations round, the secrecy of the negotiating texts and proposals made it impossible to actually give meaningful engagement.  Unlike the EU, for example, in the TTIP negotiations, USTR has not released draft textual proposals.

In 2016, ARL joined a coalition making critical recommendations for the United States Trade Representative Open Government Plan.

  1. Publish U.S. textual proposals on rules in ongoing international trade negotiations: USTR should immediately make available on its website the textual proposals related to rules that it has already tabled to its negotiating partners in the context of the TTIP, TiSA, and any other bilateral, regional, or multilateral trade negotiation it undertakes.
  2. Publish consolidated texts after each round of ongoing negotiations: USTR should impose as a prerequisite to any new or continuing trade negotiations that all parties agree to publish consolidated draft texts on rules after each negotiating round.
  3. Appoint a “transparency officer” who does not have structural conflicts of interest in promoting transparency at the agency.

These are the critical steps that USTR should take in negotiating trade agreements, whether the government is negotiating new agreements or, as President-elect Trump has promised to do, revisiting old agreements. The textual proposals are key to understanding what is being negotiated. While fact sheets may be useful, they are no substitute for the actual language of the texts which are highly technical and nuanced. As noted in ARL’s analysis of the final TPP text, there were significant improvements in the text from earlier proposals. Some of these improvements may have been made possible through the input of civil society and academics, but these comments were only possible due to access to leaked text.

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