Roundup From Day 2 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts

Re:Create Copy This Podcast Episode 4: Fair Use: You Use It More Than You Realize with Corynne McSherry (EFF)

Videos

CMSi, Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices

Blog Posts

Authors Alliance,Fair Use Week: Our Best Practices Guide is Underway

Jonathan Band on ARL Policy Notes Blog,Copyright Notice and Fair Use

Brandon Butler on Copyright at Harvard University Blog,Fair Use and Open Access: Two Great Tastes That Taste Great Together

Canadian Association of Research Libraries,CARL Statement in support of Fair Use/Fair Dealing Week 2017

Melanie Clark on Visual Resources Association Blog,Fair Use Week: Image Sources

EDUCAUSE,Fair Use

Ellen Euler, Anne Klammt und Oliver Rack on Deutsch Digitale Bibliothek,Bereit zu teilen?” (translation: “Ready to Share?”)

David Hansen on Scholarly Communications @Duke,Fair Use For Authors

Brandy Karl on Penn State Copyright Portal,Penn State Celebrates Fair Use Week 2017 #WeAreFairUse

Brandy Karl on Penn State Copyright Portal,Fair Use Myths & Facts #WeAreFairUse

Joshua Lamel,Fair Use: You Use It More Than You Realize

Mayra Linares on CMSi,How to Use Copyrighted Material in Your Work: Fair Use Week

Jeremy Malcolm, Electronic Frontier Foundation,Australia’s Battle Over Fair Use Boils Over

Jim Neal in The Hill,Balance is Everything

Stakebait on Archive of Our Own, “In Defense of Fanfiction (a sonnet to Fair Use)

Rebecca Reznik-Zellen on LSL Now,Fair Use Week 2017

Adrian Sheppard on The QUAD Where UAlberta Meets Online,The Importance of Fair Dealing

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Debunking Fair Use Myths

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross-posted from Copyright at Harvard Library*

Many myths perpetuate in the world of copyright. There are myths about copyright term, copyrightability, and the most important exception to copyright: fair use. Fair use is, of course, an essential right that allows the use of copyrighted material without permission from the rightholder under certain circumstances. Without fair use, we might not have the great technological advancements like DVRs and search engines. Without fair use, there would be no parody, no critique, or mash-ups. Without fair use, scholarship and education would be severely hampered. Unfortunately, some myths surrounding fair use serve to severely limit this essential right or might cause confusion about what is actually a fairly predictable doctrine with plenty of existing guidance.

For Fair Use Week 2017, ARL commissioned an infographic on ten fair use myths and facts. This post focuses on two of those ten myths and facts. 

Myth: Fair use is a defense, or minor exception, not a right.

Fact: Fair use is a right that accommodates the First Amendment.

Often, we hear that fair use is a defense to copyright infringement. Rightholders categorize fair use as merely a defense that excuses copyright infringement. In reality, however, fair use is a critical right and Congress has recognized its status as a user’s right. Section 108 of the Copyright Act, which provides for the exceptions for libraries and archives, explicitly references “the right of fair use.”

Fair use must be viewed as a right because of its essential relationship to freedom of speech and expression. The Supreme Court has acknowledged the important role of fair use as a First Amendment “safeguard.” In Eldred v. Scott, for example, the Court noted that the idea-expression distinction for copyrightability standards and the fair use right are “generally adequate to address” First Amendment concerns and that these copyright elements serve as “built-in First Amendment accommodations.” The Court continues by explaining, because “The Copyright Clause and First Amendment were adopted close in time, [t]his proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed copyright’s purpose is to promote the creation and publication of free expression.” The “Copyright Clause,” of course, refers to the constitutional purpose of copyright to “promote the progress of science and the useful arts.” Fair use supports both this purpose and the First Amendment. In fact, the only way to square the potential restrictions that copyright places on speech with the guaranteed right to freedom of expression, a flexible mechanism must exist to ensure that copyright does not conflict with free speech.

Today, more than ever, the First Amendment is fundamental to our democratic society. It is critical in ensuring access to information, both in terms of political and economic issues, but also in terms of arts and culture. Kyle K. Courtney’s Fair Use Week 2017 kickoff video, Fair Use Fights Fascism, discusses the importance of fair use to the First Amendment in today’s political climate. Beyond the importance of sharing information in the political discourse, as one of my former law professors, Joseph P. Bauer, pointed out in his article Copyright and the First Amendment: Comrades, Combatants, or Uneasy Allies,* “The First Amendment may also act as a societal safety valve. If people feel less free to communicate either orally or in written form, they may resort to less desirable forms of communication, including violent methods. The freedoms guaranteed by the First Amendment make it less likely that those alternatives will be necessary.”

Because of the role of fair use in protecting the First Amendment, it is correctly viewed as a right.

Myth: Where a specific limitation or exception exists under copyright law, fair use does not apply.

Fact: Fair use is a right that exists in addition to specific exception.

Another fair use myth is that where a specific limitation or exception exists under copyright law, a user cannot rely on the fair use doctrine. During the Authors Guild v. HathiTrust litigation, the Authors Guild argued that the actions of HathiTrust were impermissible because they went beyond the scope of the Section 108 library exceptions. The Authors Guild claimed that libraries could only perform activities explicitly laid out under Section 108 and that fair use was not relevant to the activities of HathiTrust. The Second Circuit rejected this argument—giving it no more weight than a footnote in its decision—noting that Section 108(f)(4) unambiguously permits fair use to work in tandem with the specific exception: “Nothing in this section . . . in any way affects the right of fair use as provided by section 107 . . .”

Even beyond the explicit savings clause under Section 108, fair use clearly works in tandem with other specific limitations and exceptions. The Authors Guild also tried to claim that HathiTrust’s provision of accessible format copies to those with print disabilities violated copyright. Although Section 121 of the Copyright Act provides for a specific exception for the creation and distribution of accessible works, the Second Circuit turned first to the fair use doctrine and found that this activity is, indeed, a fair use. As a result, the Second Circuit found “we need not consider” whether the activity was permitted under the specific exception in Section 121.

While specific exceptions provide certainty for particular activities or apply where fair use does not, they do not exclude the applicability of fair use. Instead, the specific exceptions essentially provide a safe harbor while fair use accommodates not only other uses, but also responds to changes in technology or circumstances, effectively updating the specific exceptions.

In fact, specific exceptions may actually be evidence that Congress recognizes a strong public policy interest in permitting these types of uses and the first fair use factor (the purpose and character of the use) should therefore tilt in favor of the user. Jonathan Band has written an excellent article, The Impact of Specific Exceptions on Fair Use, making this argument. The Association of Research Libraries, together with other library organizations and the Internet Archive, also advanced this argument recently in its amicus brief in Capitol Records v. ReDigi.

Fair use is critical to a balanced copyright system and it’s a shame that there are so many myths around this important right. Hopefully we can continue to celebrate fair use every day—giving it a little bit of extra love this week—and help dispel some of these myths.

You can see all ten fair use myths and facts here and learn more about Fair Use/Fair Dealing Week here.

 

*In his article, Professor Bauer argues that the idea-expression dichotomy and fair use doctrine ameliorate the conflict between the Copyright Act and the First Amendment, but that they are insufficient. He advocates for an external mechanism—beyond the internal mechanisms of the idea-expression distinction and fair use—to promote greater protections for the First Amendment.

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Infographic: Fair Use Myths and Facts

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross-posted from ARL News*

In conjunction with Fair Use/Fair Dealing Week 2017, the Association of Research Libraries is releasing an infographic that refutes 10 popular misperceptions about fair use (PDF). Fair use and fair dealing are vitally important rights for everybody, everywhere—students, faculty, librarians, journalists, and all users of copyrighted material. These doctrines provide balance to the copyright system by allowing the use of copyrighted resources without permission from the rightsholder under certain circumstances, thereby promoting creative progress and accommodating freedom of expression.

Screenshot 2017-02-21 11.21.29

The “Fair Use Myths & Facts” infographic is freely available as a PDF to embed on blogs and websites and to print and hand out at events. Share the link, embed the PDF on your site, print copies for your next event, and continue to support and work with your partners on promoting fair use.

Fair Use/Fair Dealing Week is an annual, community celebration coordinated by the Association of Research Libraries to promote the opportunities presented by fair use and fair dealing, highlight successful stories, and explain these doctrines. Fair Use/Fair Dealing Week 2017 is being observed this week, Monday, February 20, through Friday, February 24. You can participate on a single day during the week, multiple days, or the full week—publish a blog post, host an event, share resources. Visit fairuseweek.org to participate or find additional resources.

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Copyright Notice and Fair Use

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

The absence of a copyright notice on content posted by its author on the Internet should weigh in favor of fair use of that content, by libraries and other users, under the second fair use factor.

Until the United States joined the Berne Convention in 1989, a work could fall into the public domain if it was published without a copyright notice. The notice had to include the copyright symbol, the name of the copyright owner, and the year of first publication. The Berne Convention prohibits “formalities” as a condition for protection, so once the United States joined the Berne Convention, it eliminated the notice requirement.

However, the Copyright Act still provides an incentive for including a copyright notice. Under 17 U.S.C. § 401(d), if a copyright owner applies a copyright notice to his work, no evidentiary weight may be given to a defendant’s claim that he is an innocent infringer in mitigation of damages. In other words, if the copyright owner applied a notice, a defendant can’t claim the infringement was innocent because he or she “was not aware, and had no reason to believe, that his or her acts constituted an infringement….” This means that the defendant can’t seek reduction of the statutory damages minimum from $750 to $200 per work infringed.

The Copyright Act does not set forth what impact copyright notice should have on the fair use analysis. Nor, as far as I am aware, does the fair use case law. But a powerful argument can be made that the absence of a copyright notice should weigh in favor of fair use under the second fair use factor.

The second fair use factor—the nature of the copyrighted work—receives little attention by courts. They typically ask whether the work is published or unpublished, and whether it is a work of fact or fiction. Robert Kasunic has argued that courts should take a more nuanced view of the second factor. In particular, Kasunic contends that the second factor should be understood to ask “whether copyright might have reasonably encouraged or provided an incentive for an author to create the work.” Kasunic adds that “once we understand the work and the reasonable and customary expectations of authors for that type of material, we can better understand how various uses might affect the incentive to create such works.” Significantly, the starting point for Kasunic’s analysis is Judge Leval’s famous law review article Toward a Fair Use Standard. With respect to the second factor, Kasunic explains that Judge Leval “recognized the need to distinguish between authors of works for whom copyright provided an incentive to create and those authors who were incidental beneficiaries of copyright.”

It is hard to imagine a clearer indication of an author’s expectations concerning her work—whether she intends to use copyright to control subsequent uses of her work or instead is an “incidental beneficiary” of copyright—than whether she attached a copyright notice when she published it. In many situations, a user could reasonably assume that by omitting notice, the author was signaling that she did not expect to rely on copyright to control reproduction and distribution of the work. In such situations, the author’s failure to place a notice on the work should weigh in favor of fair use under the second factor.

What are these situations? Daily, millions of photographs, videos, blogs, songs and other works are posted on the Internet. Many (if not most) of these works are posted without copyright notice. The terms of service of large social media platforms such as Facebook specify that users agree that everyone may use their content published on the platform. But vast quantities of content are posted on other websites that do not have such terms of service. People repost these works without requesting the author’s permission and without incurring the author’s opposition.

In the event the author of such a work did challenge a reuse, fair use is the legal theory that would best support the lawfulness of the reuse. And the absence of copyright notice should buttress the fair use calculus under the second factor. A user could reasonably interpret the absence of notice as a signal that the author did not expect to rely on copyright to control the reproduction and distribution of the work—that the author is just an incidental beneficiary of copyright. Of course, this is just one element of one factor, and would not be dispositive of the fair use question. And if there were indicia that the work was posted on the website without the author’s authorization, then the absence of notice should have no weight.

Factoring the absence of notice into the fair use calculus could be of particular importance to libraries interested in harvesting content posted on websites. Although the existing fair use case law is very strong for the preservation of this content and its inclusion in search databases, the jurisprudence is less developed with respect to providing access to full text or full-sized images. The argument that the author’s failure to include notice tilts the second factor in favor of a fair use determination should give libraries additional comfort as they decide what to do with web content they have collected.

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ARL Files Amicus Brief in Capitol Records v. ReDigi

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

The start of Fair Use/Fair Dealing week, which runs from February 20-24, 2017, immediately follows a week in which ARL filed amicus briefs along with other library associations and organizations in two fair use cases. The first case, ARL joined the American Library Association (ALA), Association for College and Research Libraries (ACRL) and the Electronic Frontier Foundation (EFF) in filing a brief in the Georgia State e-reserves case which is again before the Eleventh Circuit. In the second case, ARL joined ALA, ACRL and the Internet Archive in filing an amicus brief in Capitol Records v. ReDigi, currently before the Court of Appeals for the Second Circuit, arguing that other existing limitations and exceptions can tilt the first fair use factor (character of the use) in favor of the user and that fair use encourages innovative services.

In the summary of the argument, the brief notes:

First, in its truncated fair use analysis, the district court ignored the similarity between the use ReDigi sought to make and uses authorized by Section 109(a). This similarity should have tilted the first fair use factor, the purpose and character of the use, in favor of ReDigi. In Authors Guild v. HathiTrust, 755 F.3d 87, 102 (2d Cir. 2014), this Court used the rationale for a specific exception—17 U.S.C. § 121, which permits the making of accessible format copies for people who have print disablilites—to support a finding of a valid purpose under the first factor. Likewise, the Copyright Office has repeatedly based fair use conclusions on specific exceptions in the context of a rulemaking under section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. As this Court did in HathiTrust and the Copyright Office did in the section 1201 rulemaking, the district court should have recognized that the purpose behind the first sale right tilted the first fair use factor in favor of ReDigi.

Second, the brief argues that a positive fair use determination in this case would encourage libraries to provide innovative services to their users. Fair use findings in technology cases have permitted libraries to provide new, digitally-based services such as HathiTrust Digital Library. In addition to enabling researchers to find relevant texts and perform critical data mining, HathiTrust provides full-text access to over fourteen million volumes to people who have print disabilities. A fair use finding in this case would provide libraries with additional legal certainty to roll out innovative services such as the Internet Archive’s Open Library. Such a result would increase users’ access to important content without diminishing authors’ incentive to create new works.

The full brief can be read here.

 

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Happy Fair Use/Fair Dealing Week 2017!

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Today marks the start of Fair Use/Fair Dealing Week 2017!

Fair use and fair dealing are essential limitations and exceptions to copyright, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. Fair use and fair dealing are flexible doctrines, allowing copyright to adapt to new technologies. These doctrines facilitate balance in copyright law, promoting further progress and accommodating freedom of speech and expression.

While fair use and fair dealing is employed on a daily basis by students, faculty, librarians, journalists, and all users of copyrighted material, Fair Use/Fair Dealing Week is a time to promote and discuss the opportunities presented, celebrate successful stories and explain the doctrine.

The level of participation in Fair Use/Fair Dealing Week is entirely up to each participant. Some will publish a blog post on fair use on one day during the week, while others might host events each day of the week. Below are some examples of ways to participate in Fair Use Week:

  • Write a blog post on fair use/dealing.
  • Publish an op-ed.
  • Host a live panel on fair use/dealing at your campus, institution, or organization.
  • Host a webcast or webinar.
  • Create a video about fair use/dealing.
  • Publicize fair use/fair dealing on social media using the hashtag #fairuseweek2016.
    (On Twitter, you can also follow and tag @fairuseweek.)
  • Write to your member of Congress highlighting the importance of fair use and how you, your members, or institution/organization rely on fair use.
  • Create resources or share existing resources. (See http://fairuseweek.org/resources/ for a great collection of resources developed during last year’s Fair Use/Fair Dealing Week celebration.)

To find out more, get resources, post news items or see a calendar of events for the week, please visit the Fair Use/Fair Dealing Week website.

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Library Copyright Alliance Files Amicus Brief in GSU E-Reserves Case

On Monday, February 13, 2017, ARL together with the American Libraries Association, Association of College and Research Libraries and the Electronic Frontier Foundation filed an amicus brief in support of Georgia State University (GSU) in the e-reserves fair use case. After years of litigation and two opinions by the district court and one by the Eleventh Circuit, the case is once again before the Eleventh Circuit.

The brief opens by noting that that the continued appeals in the case are unnecessary:

Appellant Publishers (“Publishers”) and their amici don’t know when to quit. Publishers could have declared victory in 2009, when GSU modified its e-reserves policy in response to the initiation of this lawsuit. Publishers could have declared victory in 2014 after this Court reversed the district court’s 2012 decision and provided detailed guidance on how fair use principles should be applied to e-reserves. Publishers could have concluded this litigation after the district court refused to re-open the record on remand. Instead, Publishers doggedly pursue their claims concerning excerpts used in three school terms, eight years ago.

The brief then urges the Eleventh Circuit to affirm the lower court’s decision. In doing so, the brief notes that GSU’s copyright policy is consistent with the ARL Code of Best Practices for Academic and Research Libraries. The brief also suggests that the district court’s analysis of the second fair use factor (nature of the work) was flawed and the context of the works actually favors fair use. Finally, the brief notes the importance of the public interest in considering the fourth fair use factor (market harm).

On the second factor, the brief states that analysis of the second factor should be focused on “ascertain[ing] whether copyright was needed to incentivize creation and, by extension, whether or not a fair use finding helps serve the purposes of copyright.”  The brief points out that the scholarly community is a “gift culture” and while

We do not suggest that scholarly works should receive no copyright protection.  But we do agree with Judge Posner that copyright-based incentives are less necessary in the context of many academic works to serve copyright’s own fundamental goal: to further the progress of science.  Because scholarly works require “thinner” copyright protection to ensure their production, the second factor strongly favors a fair use finding with respect to all of the works at issue here.

With respect to the fourth factor, the brief points the constraints of library budgets and the growth of open access publishing.  It states that,

Placed in this context, it is clear that the public benefit of e-reserve practices such as GSU’s far outweighs any potential cost to publishers.  Although some academic publishers may have difficulty adjusting to the digital environment, predictions of the devastating impact the decision below would have on the evolving scholarly communications ecosystem are complete fiction.

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ARL Applauds Approval of Email Privacy Act, Urges Swift Senate Action

The Association of Research Libraries (ARL) applauds the approval of the Email Privacy Act by the US House of Representatives.  The House passed the bill with a voice vote, moving this critical piece of legislation one step toward ensuring that the outdated Electronic Communications Privacy Act (ECPA) is reformed to keep pace with the digital age. The House previously passed the Email Privacy Act in a unanimous vote during the last Congress.

House passage of the Email Privacy Act signals an important recognition that Fourth Amendment protections extend to online communications. As libraries and universities move services into the cloud and more communications take place online, ensuring the protection of information long considered to be private—including what individuals are reading or researching—is essential.

ARL has long supported reform of ECPA to ensure that the Fourth Amendment applies to digital communications and urges the Senate to quickly move forward to pass this bill.

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Finding Fair Use in Unexpected Places

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 theme is: 21st Century Creators: Copyright law should account for the interests of all creators, not just those backed by traditional copyright industries. YouTube creators, remixers, fan artists and independent musicians (among others) are all part of the community of creators that encourage cultural progress and innovation.

*This is a guest blog post by Jonathan Band, policybandwidth*

og-copyrightweek

In December 2016, strong endorsements of fair use appeared in somewhat unexpected places.

First, the Joint Strategic Plan (“JSP”) released by the Office of the Intellectual Property Enforcement Coordinator on December 12, 2016, stated that nothing in the JSP

should be interpreted as limiting the scope of exceptions and limitations, such as fair use, under U.S. copyright law. To the contrary, the basic principles that have permitted the Internet to thrive must be safeguarded, and the Strategic Plan expressly recognizes and celebrates advancements in technology. The way people use and access content – which has led to new and innovative uses of media (e.g., remixes and mashups involving music, video and the visual arts), and fair use, for example – will undoubtedly continue to evolve. We must work to foster creativity, understanding the role of exceptions and limitations as not only part of our body of laws, but as an important part of our culture. Indeed, it is the combination of strong copyright rights with a balance between the protection of rights and exceptions and limitations that encourages creativity, promotes innovation, and ensures our freedom of speech and creative expression are respected.

The JSP concludes this discussion by observing that “IP enforcement options must be crafted to allow for effective measures against actors that unlawfully prey on the works of rights holders, while ensuring that enforcement activities do not affect lawful activity.”

Second, the Copyright Office, in its December 15, 2016 report on software enabled consumer products, noted that “courts repeatedly have used the fair use doctrine to permit copying necessary to enable the creation of interoperable software products.” In support of this declaration, the report discussed the decisions in Atari v. Nintendo, Sega v. Accolade, and Sony v. Connectix, where the courts found that fair use excused the copying performed during the course of reverse engineering. The report added that “the case law generally holds that intermediate copying for purposes of reverse engineering and creation of interoperable products is, in most cases, a fair use.”

The report concluded its discussion of fair use by stating that “proper application of these principles should ensure that copyright law preserves the ability to create interoperable products and services.” In support of this statement, the report quoted the Ninth Circuit in Sega v. Accolade stating that “an attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.”

Third, in an amicus brief it filed in Georgia State University electronic reserves case on December 9, 2016, the Copyright Alliance stated that it “is a staunch supporter of fair use principles, which allow for copyright to achieve it purpose without undermining the incentive to create. Its members regularly rely on these principles to create new, expressive, transformative works, consistent with the Copyright Act’s inherent purpose.”

Fair use is often referred to as a “user’s right.” But as these statements correctly indicate, fair use is a creator’s right as well. Fair use is essential to the creation of new works in all forms, including books, films, music, and software.

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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.

og-copyrightweek

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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