Tag Archives: trade

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.

Meaningful Transparency is Needed in Trade Negotiations

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.

 

Analysis of the Final TPP (Leaked) Text on Intellectual Property: Mixed Results

*This post is also available as an issue brief here*

On October 5, 2015, the twelve trade ministers of the TPP negotiating parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States) announced that they had come to an agreement on the large regional trade agreement that had been under negotiations for the past five years.

While the agreement has been criticized for a number of reasons, it is important to recognize the areas where the agreement has improved from the initial proposals made by the United States in February 2011. Civil society, technology companies and academics have participated throughout the negotiating process to improve the language of the final text and many of these efforts are reflected in the agreement.

Of course, one of the main points of criticism regarding the TPP was the lack of transparency; without the various leaks of the intellectual property chapter throughout the course of the negotiations, substantive debate, criticism and proposed alternatives may not have been possible. It is worth noting that the agreement was signed by the trade ministers of the twelve negotiating parties in Atlanta, GA without a single official release of any chapter of the TPP. Notably, when international agreements are negotiated in multilateral fora such as at the World Intellectual Property Organization (WIPO), the negotiations are much more transparent and stakeholders have the opportunity to view and substantively comment on the proposals.  Even today, the final text has not been officially released, though Wikileaks has released a leaked copy of the final agreement’s intellectual property chapter.

Improvements in the Text

The final text of the TPP saw improvement in several areas, including the removal of certain provisions.

Removal of the Ban on Parallel Importation

The United States’ initial proposal included a ban on parallel importation, granting authors “the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance or phonogram made without authorization, or made outside the Party’s territory with the authorization of the author, performer, or producer of the phonogram.” This proposal would have prohibited parallel importation, limiting the application of the first sale doctrine to authorized copies made within the Party’s territory. Thus, a legitimate copy made in another country could not be sold in the United States without the author’s consent.

This proposal was controversial at the time it was introduced as other negotiating parties strongly rely on parallel importation of works. Additionally, during this time a high-profile court case, Kirtsaeng v. John Wiley & Sons, involving this very issue was making its way through the court system ultimately ending up before the Supreme Court of the United States. In that case, an individual purchased lawfully made textbooks in Thailand, where they were less expensive, and resold them in the United States.

In March 2013, the Supreme Court ruled that the first sale doctrine applies to lawful copies regardless of their place of manufacture. This ruling clarified that United States law does indeed allow for parallel importation, thus conflicting with the United States’ proposal. Despite this ruling, it took many months and several negotiating rounds for the United States to remove its language banning parallel importation. Ultimately, though, this prohibition was removed and is not in the final text of the agreement.

Removal of Language on Temporary Reproductions

Another area of controversy surrounding the United States’ proposal centered around language granting authors the right to authorize or prohibit reproductions “in any manner or form, permanent or temporary (including temporary storage in electronic form).” Many criticized the inclusion of temporary reproductions, particularly the clarification that it applied to “temporary storage in electronic form” as potentially prohibiting the temporary copies that are constantly made by a computer to read e-mails, store documents, access content, etc. Reference to “temporary reproductions” and “temporary storage in electronic form” is not in the final text, another helpful improvement in the text.

Removal of the Ban on Formalities

The October 2014 leak of the IP chapter, which reflected the state of negotiations as of May 2014, revealed that parties had agreed to new language banning formalities that did not appear in prior leaks. ARL criticized this development noting

This language could be problematic if the United States, or other TPP parties, wanted to re-introduce formalities for copyright protections granted that go beyond minimum international standards. Register of Copyrights Maria Pallante, for example, proposed the re-introduction of formalities for the last twenty years of copyright protection in the United States. If adopted, such a proposal would violate the TPP and subject the United States to investor-state dispute settlement, under which a corporation could sue the Unites States government for failure to comply with the TPP.

However, the August 2015 leak, reflecting the state of negotiations as of May 2015, as well as the final leaked text show that the text was ultimately removed. The removal of this language was a welcome improvement, preserving the ability to re-introduce formalities for protections granted under the TPP that go beyond minimum international standards set by the Berne Convention or TRIPS.

Improvements on Technological Protection Measures

The United States’ initial proposal on technological protection measures (TPMs) included detailed language, including a closed-list set of limitations and exceptions to the anti-circumvention rules. In addition to the very limited set of exceptions, the proposal would have allowed countries to use a three-year rulemaking process, modeled after the Digital Millennium Copyright Act (DMCA) 1201 rulemaking process, to create additional limitations and exceptions subject to a “substantial evidence” burden. This proposal would not have permitted new permanent limitations and exceptions to the anti-circumvention rules and was heavily criticized, particularly as certain events, such as the Register’s refusal to renew an exemption in 2012 to allow for the unlocking of cell phones, highlighted the absurdity of the process.

The 2014 leak and the final text of the agreement reveal that parties have removed the closed list of limitations and exceptions as well as the rulemaking process. Instead, the text allows parties to provide for limitations and exceptions and to use legislative, regulatory or administrative processes to create exceptions. This language would permit the creation of new permanent limitations and exceptions.

Furthermore, while the language still provides that a violation of the anti-circumvention rules “is independent of any infringement that might occur under the Party’s law on copyright and related rights,” this text could be mitigated by a helpful footnote that reads “A Party may provide that the obligations described in paragraph (ii) with respect to manufacturing, importation, and distribution apply only where such activities are undertaken for sale or rental, or where such activities prejudice the interests of the right holder of the copyright or related right.”

The fact that the United States’ initial proposal in 2011 made circumvention a “separate and independent cause of action” was controversial and makes little sense. Establishing that circumvention is independent of any copyright infringement negatively impacts legitimate, non-infringing circumvention. However, the footnote that appeared in the final text could mitigate the harm of this provision because circumvention for legitimate purposes would not prejudice the interests of the right holder.

Inclusion and Improvements on Text on Limitations and Exceptions

The United States’ initial proposal included placeholder text for limitations and exceptions on copyright. The United States tabled a proposal on limitations and exceptions in July 2012. While proposal was a welcome one, including language referencing balance for purposes such as “criticism, comment, news reporting teaching, scholarship and research” which had never been in any prior United States free trade agreement, there were also criticisms of the proposal which noted that this new paragraph was “subject to and consistent with” the three-step test. Critics pointed out that some specific limitations and exceptions, such as the quotation right under the Berne Convention, are not subject to the three-step test (that limitations and exceptions are confined to 1) certain special cases, 2) the at do not conflict with the normal exploitation of the work, and 3) do not unreasonably prejudice the legitimate interests of the right holder).

Ultimately, the language regarding limitations and exceptions was improved and clarification was included that the text on the three-step test did not reduce or extend the scope of limitations and exceptions under international agreements including TRIPS, the Berne Convention, and the WIPO Internet Treaties.

The text of the United States’ proposal also improved with respect to the fact that the list of “legitimate purposes” now specifically references “other similar purposes” as well as “access to published works for persons whoa re blind, visually impaired, or otherwise print disabled.” The text also includes a specific footnote recognizing the Marrakesh Treaty and acknowledges that some Parties facilitate the availability of accessible format works beyond the requirements of the Marrakesh Treaty.

Finally, while the language on limitations and exceptions could have been stronger with language mandating that parties achieve a balance or foster a balance, rather than the agreed to language that “Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system,” the inclusion of the language in the final text is still a success. The United States has now recognized in a free trade agreement the importance of balance in the copyright system. Furthermore, the United States has stated that this language provides “an obligation for Parties to continuously seek to achieve balance in copyright systems,” because the language requires Party to “endeavor to achieve” balance. The words “shall endeavor” do create a mandatory obligation for parties to seek this balance.

Inclusion of this language signals that the Office of the United States Trade Representative (USTR) has responded to criticisms that the United States proposals only export rights for rightholders and not our balanced system which includes limitations and exceptions. This language should be included in future trade agreements and USTR should seek to improve upon it in the future by strengthening the language requiring parties to achieve a balance or foster a balance. Despite the fact that the language could have been stronger, its inclusion in the final text still reveals a mandatory obligation for parties and represents a positive development.

Remedies Allow for Judicial Discretion

The final language regarding enforcement also shows areas where the text has improved from the United States’ initial proposal.

For example the final text includes language that replicates text from the Anti-Counterfeiting Trade Agreement (ACTA) requiring parties to take proportionality into account. The text reads, “In implementing the provisions of [the enforcement] Section in its intellectual property system, each Party shall take into account the need for proportionality between the seriousness of the intellectual property infringement, and the applicable remedies an penalties, as well as the interests of third parties.” This language on proportionality is a welcome inclusion and would ultimately allow domestic laws to provide judicial authorities discretion in ordering remedies.

Additionally, while the United States’ initial proposal in 2011would have required judges to consider certain measures of damages (“in determining damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the suggested retail price or other legitimate measure of value submitted by the right holder”) the final language provides judicial authorities the discretion to consider these measures of damages. The final text provides that “judicial authorities shall have the authority to consider . . .” and this added language “have the authority” changes the text from a mandatory obligation that judges consider these measures of damages to providing them the discretion to do so. This addition is an improvement and consistent with current United States law which permits judicial discretion.

Other provisions on the text on remedies includes similar language, providing that judicial authorities “shall have the authority” to impose certain remedies, but does not actually require that authorities order these remedies. While some have criticized the TPP as prohibiting the Copyright Office’s proposal on orphan works (which is a highly flawed proposal as analyzed here and here), the actual text of the TPP permits considerable discretion and does not actually require authorities to order damages in a particular amount.

General Provisions

As noted in ARL’s analysis of the August 2015 leak, language on general provisions reveal considerable positive developments. The final text includes language provides that the objectives of the agreement are as follows:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

The principles specifically reference the public interest and address the need to prevent abuse of intellectual property by right holders: 

1.  Parties may, in formulating or amending their laws and regulations, adopt measures necessary to protect health and nutrition, and to promote the public interest in sectors of vital importance to their socio­economics and technological development, provided that such measures are consistent with the provisions of this Chapter.

2.  Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

The final text also includes a section on “Understandings in respect of this Chapter” which reads as follows:

Having regard to the underlying public policy objectives of national systems, the Parties recognize the need to:

  • promote innovation and creativity;
  • facilitate the diffusion of information, knowledge, technology, culture and the arts; and
  • foster competition and open and efficient markets;

through their intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public.

The August 2015 leaked text, reflecting the negotiating text as of May 2015, also included language proposed by Chile and Canada “acknowledging the importance of preserving the public domain.” This text was, however, opposed by the United States and Japan and ultimately not included in the agreement. It is extremely unfortunate that the United States and Japan would oppose inclusion of such text.

However, in the section on “Cooperation” the text from the August 2015 leak remains in the final text recognizing the importance of the public domain:

The Parties recognize the importance of a rich and accessible public domain. 

The Parties also acknowledge the importance of information materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.

While it is disappointing that the United States and Japan opposed the inclusion of a reference to the public domain in the general provisions, the fact that the importance of the public domain is recognized on the section regarding cooperation is still welcome language.

Shortcomings/Areas for Improvement in Future Agreements

Flexibility on ISP Liability

The final language of the agreement does provide for some flexibilities with respect to Internet Service Providers (ISP). While the text, contained in Section I, is modeled off the DMCA and provides for safe harbors for ISPs implementing a notice-and-takedown system, an annex specifically preserves Canada’s notice-and-notice system. The annex provides that the notice-and-takedown safe harbors do not apply to a Party that has implemented a notice-and-notice system instead.

Unfortunately, this flexibility will only be permitted for Canada and not for the other negotiating parties. The language under the annex requires the system to be in place “upon date of agreement in principle of this Agreement,” which occurred when the trade ministers announced the agreement on August 5, 2015. Canada was the only country at that time to have a notice-and-notice system in place.

However, another annex to the intellectual property chapter provides that as an alternative to implementing the article on ISP, parties may instead implement Article 17.11.23 of the US-Chile free trade agreement. Chile’s system involves notice-and-takedown, but involves a judicial order before takedowns are required. Countries may therefore choose between implementing the language in the TPP or the language of the US-Chile trade agreement.

Unfortunate Extension of Copyright Term

Copyright Term Extension

One of the biggest areas of criticism that remains in the final agreement is that the parties settled on a copyright term of life plus seventy years, or seventy years for corporate works. The United States’ 2011 proposal would have set copyright term as the life of the author plus seventy years, or ninety-five (or up to one-hundred twenty years if unpublished) years for corporate works. While countries did not accept the United States’ proposals on corporate works, they did agree to the term of life plus seventy years. Some countries with pre-existing free trade agreements with the United States (Australia, Chile, Peru and Singapore) already had obligations to provide for a period of life plus seventy years and Mexico had an even longer term, which it proposed, of life of the author plus one hundred years.

However, it is highly unfortunate that the other countries ultimately agreed to extend copyright term, given the lack of justification for excessively long terms. The Hargreaves report commissioned by the United Kingdom, for example, points out that economic evidence does not support copyright term extensions. Maria Pallante, Register of Copyrights, noted that a Copyright Office study questioned “whether copyright term should be extended to benefit remote heirs or assignees, ‘long after the purpose of the protection has been achieved.’” Despite the lack of policy justification for these terms and the fact that copyright term extension damages the public domain and increases the orphan works problem, the final text of the agreement reveals that countries must provide for copyright terms that go far beyond the minimum international standards.

After the trade ministers announced an agreement had been reached, New Zealand released a fact sheet on the TPP. This fact sheet estimated that the copyright term extension would cause “significant cost” to New Zealand: “This cost – in terms of foregone savings on books, films, music and other works – increases gradually over 20 years and averages around $55 million a year over the very long term.”

Article QQ.A.10bis, however, does provide that countries that are required to implement copyright term extension do not need to restore protection to subject matter that has fallen into the public domain in its territory as of the date of entry into force of the agreement. The extension will therefore apply only to those works that are still under protection as of the date the agreement enters into force for that country (which will depend on each country’s domestic process for approving the final agreement).

While the United States will not require changes to its domestic laws with respect to copyright term, it is unfortunate that this term is being imposed on other countries when it far exceeds international standards. Brunei, Canada, Japan, Malaysia, New Zealand and Vietnam will all be required to increase the copyright terms in their countries. Furthermore, it would be extremely difficult for the United States to revisit this term and reduce copyright term in the United States, even though evidence justifies and supports shorter terms, as the TPP would need to be re-negotiated with all TPP parties.

Conclusion

While there are still areas where the TPP should be criticized and several areas where the language of the TPP could have been better, the final text reveals significant improvements from the United States’ initial proposals. It is possible that some of these proposals resulted from stakeholder engagement, including criticisms of prior texts and proposals which was only made possible through leaks. These improvements and changes in the text over the course of the five years of negotiations reveal the importance of transparency in negotiations.

The TPP will still need to be approved by the domestic procedures set forth in each of the parties. In the United States, Congress will vote under the “fast track” procedures it set when it granted the President trade promotion authority. Congress will be able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend the agreement. Due to the timing set forth under fast track procedures, a vote in the United States will not occur until 2016. In Canada, a vote will not take place on the TPP until after it concludes its upcoming elections on October 19 and the new Parliament is in place.

Whether or not Congress approves the agreement, the final text of the TPP will likely provide the starting point for future negotiations. USTR has used past agreements, particularly the most recently concluded free trade agreements, as a template for future agreements. The gains made with respect to supporting a balanced copyright system should serve as a basis for additional improvements in the future.

TPP Trade Ministers Announce Agreement

On October 5, 2015, the twelve trade ministers of the Trans-Pacific Partnership Agreement announced that an agreement had been reached after five years of negotiations.  The Trans-Pacific Partnership Agreement is a large, comprehensive regional trade agreement in Asia and the Pacific between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.

The press conference announcing a deal had originally been scheduled for Saturday, October 3, before being delayed several times through Sunday reportedly over obstacles concerning agreements on provisions regarding dairy and protections for “biologic” pharmaceutical products.

The New York Times reported that the text of the final agreement will not be made available for another month.  No official release of any of the text of the TPP has been released to date, though there have been several leaks of various chapters including the Intellectual Property Chapter.  It is disappointing that the lack of transparency continued throughout the negotiations, depriving the public of meaningful opportunity to discuss and debate the TPP on the merits of the texts.

While, based on the various leaks of texts, the copyright provisions and general intellectual property provisions have seen improvements since the United States’ initial proposal was leaked in 2011, there are still several areas of concern including around copyright term (no details regarding the agreed to term have been released as of yet, but the most recent leak revealed discussions over copyright terms of life plus 50, 70 or 100 years) and technological protection measures.  Additionally, while the agreement contains positive language regarding limitations and exceptions, this language appears to be permissive rather than mandatory, in contrast with the provisions granting rights to rightsholders.  (For more, based on the August 2015 leak, see this blog post.)

The final language of the TPP will soon be concluded and each country will then need to go through its own domestic processes to pass the agreement.  In the United States, the TPP will go through the “fast track” authority passed by Congress earlier this year, which includes a 90 day waiting period after the Obama Administration sends the TPP to Congress for approval.  Depending on when the TPP — which has been a controversial issue — is sent to Congress, a vote could come during the height of the United States’ election season.  Canada is currently holding its elections, set for October 19, 2015.  The new Parliament in Canada, once in place, will debate the TPP and vote on the agreement.  Other parties in the agreement will also hold elections over the next year, which could impact both the timing of any final approval as well as substantive debate of the TPP in these countries.

Senate to Move Ahead with Vote on Fast-Track Legislation

On June 23, 2015, the U.S. Senate cleared the procedural hurdle of attaining 60 votes on a motion for cloture to move ahead with a vote on Trade Promotion Authority (TPA), also known as “fast-track” legislation.  Under “fast-track,” Congress grants the President the authority to sign trade agreements and Congress can only approve or reject these agreements in a straight up-down vote, meaning that it must take the agreement as a complete package and cannot amend the agreement.  As noted in a February 5, 2015 letter from the Library Copyright Alliance (LCA), fast-track authority limits Congress’ ability to meaningfully weigh in on an agreement, particularly given the lack of transparency in trade negotiations.  Notably, no trade agreement presented to Congress under fast-track legislation has ever been rejected.  TPA has been seen as critical in concluding negotiations of the Trans-Pacific Partnership Agreement (TPP), a large regional trade agreement that currently has twelve negotiating parties.

Today, the Senate voted 60-37 to proceed with a vote on TPA.  While the Senate had passed TPA in an earlier vote in May, that bill packaged fast-track legislation with Trade Adjustment Assistance (TAA), legislation that reduces the negative impacts of imports on certain sectors in the U.S.  On June 12, 2015, the House of Representatives took separate votes on TPA and TAA, voting to pass the TPA portion of the bundled package by a vote of 219-211 but rejecting TAA by 302 to 126.  The House then voted to separate the package and passed TPA in a standalone bill on June 18, with the intention of scheduling a vote on TAA at a later date.  Because the Senate had packaged TPA and TAA, the TPA went back to the Senate.  Although some critics expressed concerns over the separation of the two bills and suggested that TPA could not pass without TAA, the Senate reached its 60 vote threshold to move ahead with the vote which will likely occur later this week.

 

 

Coalition Opposes Fast Track Authority for Trans-Pacific Partnership Agreement (TPP)

On Monday, March 23, 2015, 20 organizations, including the American Library Association, the Association of College & Research Libraries, and the Association of Research Libraries, sent a letter to Congress opposing “fast-track” authority for the Trans-Pacific Partnership Agreement (TPP) due to the lack of transparency in the negotiations.  The letter urges Congress to ensure that any fast-track authority include significantly improved transparency mechanisms, including calling for a release of the negotiating text.

Although organizations have previously urged the release of the texts as a critical transparency measure, the letter notes:

Unfortunately, more than three years later, this practice has not been adopted in the context of TPP . . . talks. Indeed, the talks have gone even further underground.  Even the already insufficient process of formal stakeholder engagement at the negotiating rounds has not occurred since August of 2013, despite at least eight chief negotiators’ meetings, 16 intersessional meetings, fur ministerial-level meetings and multiple attempts to conclude the talks.  Now the need to release the text is even more urgent.

The letter also notes that

The subject matter now being negotiated extends significantly beyond tariffs and other traditional trade matters. As the United States will be obliged to bring existing and future domestic policies into compliance with the international norms established in the pact, this process would establish policies binding on future U.S. Congresses and state legislatures on numerous non-trade subjects currently under the jurisdiction of these domestic legislative bodies.

Transparency is paramount for democratic participation and process, as noted in the Library Copyright Alliance’s February 5, 2015 letter to Senate Finance Committee Chairman Hatch (R-UT) and Ranking Member Wyden (D-OR).  The letter pointed out the importance of transparency in trade negotiations and opposed fast-track authority in the TPP with respect to the intellectual property chapter, or in the alternative, language that ensures balance in the intellectual property provisions.

Library Copyright Alliance Expresses Concerns Over “Fast Track” Trade Promotion Authority

On February 5, 2015, ARL, together with ALA and ACRL, sent a letter to Senators Hatch (R-UT) and Wyden (D-VT) expressing concerns over “fast track” trade promotion authority.  Under “fast track,” Congress grants the President authority to sign trade agreements and Congress is only able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend this agreement.  Such a process limits Congress’ ability to meaningfully weigh in on the agreement.

Using the Trans-Pacific Partnership Agreement (TPP) as an example, the letter highlights the inequities surrounding access to information about the substance of the agreements.  While the negotiations are conducted in secrecy and the general public is not permitted to see text, cleared advisors are permitted to view proposals and make substantive comments through “trade advisory committees.”  Members of the intellectual property trade advisory committee represent large corporate interests; current members include, for example, representatives from the Recording Industry Association of America (RIAA) and the Copyright Clearance Center (CCC).  Past representatives include Time Warner, the Association of American Publishers (AAP) and the Motion Picture Association of America (MPAA).  While these corporate interests are well represented, the general public has had to rely on leaks in order to view text.  The letter points out, “Policy should not be made in secret, with the general public kept in the dark about what effects the agreement will have.”

The letter also notes concerns that the comprehensive intellectual property chapter included in the TPP could contain provision requiring changes to current law, or locking-in undesirable provisions of U.S. law which would make it difficult to amend the law without violating the agreement.  One such harmful provision is the U.S. copyright term of life plus seventy years, which was recently reported as the term of protection TPP negotiators have agreed to.  This lengthy term has been problematic, contributing to the orphan works problem and hampering the public domain.

The letter concludes:

Given the impacts that agreements like the TPP and TTIP will have, Congress should ensure that it does not delegate its authority to the Executive Branch. Congress must be an active participant in reviewing these agreements before accepting their content and should not grant fast track authority, at least with respect to intellectual property provisions in these agreements. Alternatively, if legislation on fast track does include language on intellectual property, this language must protect the careful balance that exists in US law. Libraries, and the vast public we serve, depend on a balanced copyright system, including important limitations and exceptions such as fair use and the first sale doctrine. Any language granting fast track authority implicating intellectual property must recognize the importance of limitations and exceptions.

Trade, Transparency and Democratic Values

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.

ARL Joins Letter to TPP Trade Ministers Asking for Release of Negotiating Texts

On Thursday, December 11, 2014, ARL joined a diverse coalition of forty-eight organizations and individuals in submitting a letter to the trade ministers of the twelve countries involved in the negotiations of the Trans-Pacific Partnership Agreement (TPP) calling for enhanced transparency and the release of the negotiating text.  This letter comes on the heels of the European Commission’s statement agreeing to increased transparency in its current negotiations in a trade agreement with the United States.

Currently, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States are involved in the negotiations of the TPP, a large regional trade agreement. The agreement has been negotiated for the past five years and covers a trading area that comprises forty-percent of the world’s GDP; eventually it is intended to cover the entire APEC region. The final text of the TPP will bind all members to the agreement and make any changes extremely difficult. Even where the United States’ proposals do not seek changes to current law, some provisions could lock in standards and prevent reform.

The negotiations of the TPP have been conducted largely in secret and there has not been an official release of the negotiating text or proposals. While there have been several leaks of various chapters, including three leaks of the intellectual property chapter, these leaks have been fairly infrequent and have not reflected the most current state of the text. Furthermore, while full rounds of negotiations previously included stakeholder events, there is little information about where and when TPP negotiations are currently taking place.

Without transparency, it can be difficult to provide meaningful presentations or commentary when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other trade agreements, transparency is critical in the ability to comment on the negotiating text and “ensure the forging of an agreement that does not unfairly prejudice any stakeholders.” With respect to the Free Trade Area of the Americas Agreement (FTAA), after the consolidated negotiating text was made public and comments were invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.

In contrast to the TPP negotiations in which all negotiating parties have agreed to keep the texts secret, the European Commission recently agreed to publish the dates, locations, names and organizations it meets with and the topics of its discussions. With regard to the Trans-Atlantic Trade and Investment Partnership (TTIP) negotiations, the Commission intends to put forward the following actions:

  • Making public more EU negotiating texts that the Commission already shares with Member States and Parliament;
  • Providing access to TTIP texts to all Members of the European Parliaments (MEPs), not just a select few, by extending the use of a “reading room” to those MEPs who had no access to restricted documents so far;
  • Classifying less TTIP negotiating documents as “EU restricted”, making them more easily accessible to MEPs outside the reading room;
  • Publishing and updating on a regular basis a public list of TTIP documents shared with the European Parliament and the Council.

In its statement announcing enhanced transparency, the Commission noted that, “For people to regain trust in Europe, we have to open the windows wide and be more transparent about the way we work . . . The Commission intends to lead by example on transparency matters.”

The letter to TPP trade ministers, signed by organizations and individuals from across the TPP region, calls for the TPP negotiating countries to follow the lead of the European Commission and release the negotiating texts of the TPP:

The end of TPP negotiations now seems to be coming into focus. They have come down to high-level political decisions by negotiating countries, and the text is largely completed except for some resolutions on remaining landing zones. At this point, we know that there is a draft of the TPP that is mostly agreed upon by those negotiating the deal.

Today, we strongly urge you to release the unbracketed text and to release the negotiating positions for text that is bracketed, now and going forwards as any future proposals are made. The public has a legitimate interest in knowing what has already been decided on its behalf, and what is now at stake with our various countries’ positions on these controversial regulatory issues.

We call on you to consider the recent announcement from the European Commission as a welcome precedent to follow, thereby re-affirming your commitment to fundamental principles of transparency and public participation in rule making. The negotiations in Washington DC this week would provide the perfect opportunity for such a ground-breaking accord to be announced.