Transparency in government is a fundamental aspect of a democratic society. Citizens have the right to be informed and have access to information regarding political affairs and the laws and regulations that will impact them. Without access to information, the public is disadvantaged in its ability to make substantive commentary, challenge and influence public policy, or participate in the political process in a meaningful way.
For the past four years, the United States has been involved in secretive negotiations for a large, regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP). Over the course of negotiations, the membership has grown and now includes twelve negotiating parties including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, covering a trading area that comprises forty-percent of the world’s GDP. Eventually, the agreement is intended to cover the entire APEC region.
The intellectual property chapter has been one of the most controversial chapters in the TPP. Over the course of the four-year negotiations, no government has officially released any of the negotiating text. The only reason that the public is aware of the proposals that have been drafted results from leaked text, primarily a March 2011 leak of the United States’ proposal for the chapter and a November 2013 leak of the consolidated intellectual property chapter which reflected each country’s negotiating position. The negotiations themselves take place behind closed doors and observers are not permitted. Although stakeholders are often permitted to make presentations, there is no guarantee that the relevant negotiators will attend such presentations. Further, it can be difficult to give meaningful presentations when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other agreements, transparency is key to the ability to comment on the negotiating text and “will 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 invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.
The standards set in the TPP will create new global norms and it is important that those who will be affected by these standards have access to information about the agreement. Substantive and meaningful engagement can take place only with full knowledge and understanding of what provisions are at stake in the agreement. Without transparency, the negotiations lack legitimacy and represent a highly undemocratic process.
Unbalanced Access to Information
It should be noted that while the general public must rely on the possibility of leaks in order to gain substantive information about the agreement, hundreds of “cleared advisors” on the International Trade Advisory Committees (ITAC) have had access to the United States’ negotiating positions and texts throughout the process. ITAC-15, the committee on intellectual property rights, currently has seventeen members, all of whom represent corporate interests.
Not only is the general public kept in the dark, but there have also been reports that USTR has denied access to the text to Congressional staffers.
Members of Congress have criticized the secrecy of the agreement. Senator Sanders (I-VT), for example, in a December 1, 2011 letter to USTR concluded, “I firmly believe that the public has a right to monitor and express informed views on proposals of such magnitude as the TPP. While I recognize that some opportunity has been provided for the public to make presentations to delegates, I urge you to make the negotiating text of the TPP available to the public for review and comment. Without access to the actual texts being discussed, in my view the effective input and informed participation of the public is severely curtailed.”
After the November 2013 leak of the consolidated intellectual property chapter, Representative Zoe Lofgren (D-CA) criticized the copyright provisions, noting in a December 5, 2013 press statement that the agreement “is something that is backdooring, through a trade agreement, that which could not be obtained in Congress.” Numerous organizations and individuals have decried such “policy laundering.”
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 to change current law, many of the provisions could be harmful by locking in standards and preventing reform. The inclusion of a chapter on investment in the TPP, including strong investor-state provisions by the United States, means the agreement has strong enforcement mechanisms. Not only can one TPP member country sue another for violations of the provisions of the agreement, but a corporation may sue the government directly for failure to implement the text of the TPP.
Locking in lengthy copyright terms
The United States tabled the copyright term that currently exists domestically, a period of the life of the author plus an additional seventy years. For corporate works, the period of protection is ninety-five years for published works or one-hundred-and-twenty years for unpublished works. The United States and the four countries with which it has existing bilateral trade agreements have supported this proposal of life plus seventy. By contrast, other countries have proposed the international standard of life plus fifty years.
The effect of including the life plus seventy copyright term in the TPP would be to lock in a lengthy term of protection that shrinks the public domain. In advance of the December 2013 TPP ministerial meeting, 29 organizations—including library and archival associations such as ARL, The American Library Association (ALA), the Australian Library and Information Association (ALIA), and the International Federation of Library Associations (IFLA), and the American Archivists (SAA)—and 71 individuals signed a letter directed to the trade ministers that warned that “The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are ‘owned’ but largely not commercialized, forgotten and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.”
If the final text of the agreement includes a period of protection of life plus seventy years, such a term would be very difficult to change and would require re-negotiation with all TPP members. While Maria Pallante, Register of Copyrights, has suggested that the current term should be re-thought and that formalities should be re-introduced for the last twenty years of protection, the United States will be unable to amend its law to include formalities without violating the TPP.
Preventing reform of technological protection measures (TPMs)
The United States proposal includes highly prescriptive provisions on TPMs. The proposal makes the very act of circumvention of a TPM an independent cause of action, apart from any copyright infringement that may occur. The United States proposal uses a narrow and closed list of limitations and exceptions to anti-circumvention measures. The proposal also includes a three-year rulemaking procedure for additional limitations and exceptions, modeled after Section 1201 of the DMCA. The new limitations and exceptions are valid only for a three-year period and then must be renewed. If included in the final text of the agreement, new permanent limitations and exceptions could not be added without violating the TPP.
Several proposals have been made in Congress to add new permanent exceptions to permit the unlocking of cell phones after outrage over the Librarian of Congress’ refusal to renew such an exception. The Unlocking Technology Act of 2013, introduced by Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO), goes beyond the cell phone issue and would permit all circumvention of TPMs for all non-infringing uses. However, because such legislation would create new permanent exceptions, it would violate the TPP if approved as currently drafted under the United States’ proposal. Thus, new permanent exceptions to allow unlocking of cell phones, or for example, to permit persons who are visually impaired or blind to overcome TPMs designed to limit access to the text-to-speech function on e-readers, would not be permitted.
The agreement is reportedly in its final stages. Although many areas of the intellectual property chapter remain controversial with little agreement, trade ministers met in Singapore in December to try to come to a deal. It is expected that the United States will make concessions regarding market access on sugar, dairy, textiles, and automobiles in exchange for other countries’ concessions to the United States’ demands on intellectual property.
In the next few weeks, another meeting of the TPP trade ministers will take place and is expected to take place in late January or early February. As with the last ministerial meeting, stakeholders will likely not be invited to attend, present, or meet with ministers. After the last ministerial, the ministers released a short statement with little substantive information regarding any agreements or offers that had been made.
The stakes for the TPP are high, creating new global norms and locking in provisions of United States law that may be controversial and in need of repeal or reform. The general public must have access to the negotiating texts in order to understand how the TPP will affect them and to contribute meaningful and substantial commentary regarding the proposals.