Roundup from Day 2 of Fair Use Week 2016

*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 fairuseweek.org*

Check out all of the great posts from Day 2 of Fair Use Week 2016! Don’t see yours? Contact us to get yours added! 

Quizzes

Brigham Young University: single-question quiz to test your understanding of whether Google Books is fair use

MIT Libraries, quiz to test your knowledge of how to weigh the four factors of fair use

UCLA Library, quiz on whether five famous works inspired by other sources are fair use or foul play (PDF)

Reddit Ask Me Anything (AMA)

OverClocked ReMix, a fan community creating free video game music (VGM) arrangements, answers questions, especially questions about whether creating fan-made VGM remixes is fair use

Videos

Gerald Beasley, vice-provost and chief librarian at the University of Alberta, emphasizes the balance of rights in copyright, noting that access to copyrighted material is essential to scholarship because of the need to build upon works that came before

Gary Price, editor of infoDOCKET, and Peter Suber, director of the Harvard Open Access Project and the Harvard Office for Scholarly Communication, discuss key issues in the open access movement

Texas A&M University Libraries explains what fair use is and how the university libraries has empowered faculty to determine what is fair use in the context of their own classrooms

Ann Thornton, university librarian and vice provost of Columbia University, explains how fair use has contributed to allowing “quality” access to scholarly materials

University of Massachusetts Amherst Libraries highlights its W. E. B. Du Bois collection as one of its special collections that it has digitized and made available online relying on fair use

University of New Brunswick Libraries presents an overview of the fair dealing provisions of the Canadian Copyright Act

University of Tennessee, Knoxville, Libraries describes its consideration of fair use while digitizing its collection of postcards from the Great Smoky Mountains

University of Waterloo Library discusses what fair dealing is, why it matters, and campus resources for help using the fair dealing exception

Blog Posts

Stan Adams on Center for Democracy & Technology blog, “Fair Use in Art, Politics, and Babies Going Crazy”

Patricia Aufderheide on Center for Media & Social Impact Fair Use blog, “Fair Use Week: Plenty to Celebrate”

Hillary Corbett on Northeastern University Libraries SNELL Snippets blog, “February 22–26 is Fair Use Week!”

Krista Cox on Copyright at Harvard Library blog, “Thankful for Fair Use”

Nora Dethloff on Fair Use Week website, “Welcome to Fair Use Week 2016!”

Melissa Green on University of Alabama Libraries’ Academic Technologies blog, “Accessible Formats and Fair Use”

Julie Grob on University of Houston Libraries News blog, “Three Famous Fair Use Cases”

April Hathcock on At the Intersection blog, “Fair Use for Social Justice”

Janet Landay on College Art Association News blog, “CAA Celebrates National Fair Use Week”

Mayra Linares on Center for Media & Social Impact Fair Use blog, “How to Use Copyrighted Material in Your Work | Fair Use Week”

Russell McOrmond on his blog, “Fair Use/Fair Dealing Week”

Kathryn Michaelis on Georgia State University Library blog, “Fair Use: The Four Factors”

Meera Nair on Fair Duty blog, “Fair Use Denied—Part II”

Vicky Ludas Orlofsky on Stevens Library blog, “I Haz Rights! Memes and Fair Use”

Marta Palacio on Safe Creative blog, “¿Qué es el “Fair Use” y qué está pasando en YouTube?”

Carrie Russell on District Dispatch blog, “Fair Use Déjà Vu”

Peggy Tahir on UCSF Library In Plain Sight blog, “Fair Use Week, Day Two: Court Cases”

Timothy Vollmer on Creative Commons blog, “The Flip Side of Copyright”

Sara Maurice Whitver on University of Alabama Instruction Adventures blog, “How The Citation Project Helps Librarians Promote Fair Use”

Canada’s Copyright Board Finds Most Educational Copying is Fair Dealing

*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’s post is by guest blogger, Wanda Noel, a Canadian lawyer with a practice focused exclusively on copyright. Noel was legal counsel in three recent Supreme Court of Canada and Canadian Copyright Board decisions interpreting the fair dealing provision in the Canadian Copyright Act, including acting as counsel to the objectors in this matter.* 

On February 19, 2016, the Canadian Copyright Board issued a decision setting the Access Copyright Elementary and Secondary School Tariff, 2010-15. With its decision, the Copyright Board set a tariff rate of $2.46 for 2010-2012 and $2.41 for 2013-2015 per full time equivalent student per year to copy print materials such as books, magazines and newspapers.

The announced tariff rate is substantially lower than the per-student rates requested by Access Copyright, a copyright collective representing educational publishers and authors. Access Copyright initially requested rates of $15.00 for the years 2010-12 and $9.50 for the years 2013-15. These rates were a significant increase over the prior rate of $4.81 set by the Copyright Board in 2009. The Copyright Consortium of the Council of Ministers of Education, Canada (CMEC), representing the ministers of education in every Canadian province and territory, except Quebec, and the school boards of Ontario objected to the proposed Access Copyright rates and requested much lower rates.

This Copyright Board decision is the first application of fair dealing in educational institutions since two significant events in 2012 altered the copyright landscape in Canada. First, the Copyright Act was amended to add “education” as a new purpose in the fair dealing provision. Second, the Supreme Court of Canada issued a landmark decision interpreting fair dealing to permit teachers to copy and use short excerpts from published works for students in their classes.

The Board attributed the decrease from the prior rate of $4.81 to the decision of the Supreme Court of Canada in Alberta v. Access Copyright, [2012 SCC 37.] That decision established that copying short excerpts of copyright-protected works for student instruction, assignments or class work did not require royalty payments because the copying was fair dealing. This conclusion resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair dealing provisions of the Copyright Act. Based on data available from a large-scale copying study in Canadian schools, the Board found that 97.2% of copying from books, 98.1% of newspapers and 98.5% from periodicals was fair dealing. This large volume of copying therefore did not require a licence from the owner of the copyright.

The royalty payments of $2.46 and $2.41 set by the Board relate primarily to the copying of consumables. Consumables are works that are intended for one-time use and contain a statement that copying is not permitted. An example is a workbook with questions and answer sheets to be completed by students. The Board found that none of the dealings with consumables were fair. Over three quarters (79% for 2010-2012, and 81% for 2013-2015) of the tariff value is attributable to consumables.

This Copyright Board decision is noteworthy because of the Board’s findings relating to fair dealing. For a dealing to be fair, two tests established by the Supreme Court of Canada in 2004 in CCH v. Law Society of Upper Canada 1 SCR 339 must be met. First, the dealing must be for one of the purposes set out in the Copyright Act. The Board found that the vast majority of copies being considered passed the first test because they were made for one of the following purposes captured by the copying study: research, criticism, review, future reference, private study or student instruction. Only copies made for entertainment and administration did not pass the first test.

The second test is that the dealing must be fair. To determine fairness, the Board applied six fairness factors established by the Supreme Court of Canada in its CCH decision: purpose of the dealing, amount of the dealing, character of the dealing, nature of the work, alternatives to the dealing, and effect of the dealing. These six factors were applied separately to books, newspapers, periodicals and consumables. The Board’s fairness analysis for consumables differed from the other genres particularly on the factors of the nature of the work and alternatives to the dealing.

The Copyright Board also accepted the position of the CMEC Copyright Consortium with respect to several issues besides fair dealing, including the fact that significant amounts of copying are not substantial (and therefore do not trigger any royalty payments under the Copyright Act), the limited nature of Access Copyright’s repertoire, and Access Copyright’s inability to adequately licence the copying of sheet music.

The present Copyright Board’s decision follows another recent tariff decision relating to Access Copyright issued in May of 2015 covering copying by provincial and territorial government employees, where a number of the legal issues were similar. Access Copyright had sought rates as high as $24 per full-time employee, but the highest rate certified was only $0.49. This government tariff decision is currently the subject of a judicial review application in the Federal Court of Appeal brought by Access Copyright.

Roundup from Day 1 of Fair Use Week 2016

*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 fairuseweek.org*

Check out all of the great posts from Day 1 of Fair Use Week 2016!  Don’t see yours?  Contact us to get yours added! 

Resources

Association of Research Libraries: infographic showing fair use’s importance in a day in the life of a college student

Carnegie Mellon University, Libraries and Integrative Design, Arts, and Technology Network (IDeATe): slides promoting student projects taking advantage of fair use (PDF)

Fair Dealing Canada: personal stories about how fair dealing impacts the lives of students and instructors

Georgia Tech Library, Intellectual Property Advisory Office: resources to guide creators and users through the copyright and fair use determination process

Harvard Library, Copyright First Responders: infographic explaining fair use and the four factors

Blog Posts

Authors Alliance blog, “Authors Alliance Celebrates Fair Use and Fair Dealing Week!”

Jonathan Band on ARL Policy Notes blog, “Thanks, But No Thanks”

Dan Booth on Fair Use Week blog, “What Would Ian Do? Punk Rock and the Ethics of Fair Use”

Krista Cox on ARL Policy Notes blog, “Happy Fair Use/Fair Dealing Week!”

Kenneth D. Crews on Copyright at Harvard Library blog, “Fair Use: A Place in the World”

Michael Geist’s blog, “Fairness Confirmed: Copyright Board Deals Another Blow to Access Copyright”

Bobby Glushko on Fair Use Week blog, “Expert Fair Dealing: Friday, February 22, 2016, Was a Great Day for Fair Dealing in Canada”

Lloyd J. Jassin on Copylaw blog, “Top 10 Considerations When Evaluating Fair Use”

Brandy Karl on Penn State Copyright Portal blog, “Penn State Celebrates Fair Use Week 2016 #WeAreFairUse”

Gary Price on infoDOCKET, “Fair Use Week 2016 is Now Underway”

Sarah Remy on Organization for Transformative Works (OTW) blog, “It’s Fair Use Week! Ask Us Anything About Fair Use And Fair Dealing Law”

Maria Scheid on The Ohio State University Libraries Copyright Corner blog, “Google Launches YouTube Fair Use Protection Program”

Jennifer Sowa on University of Calgary UToday blog, “How the University’s Copyright Office Helps Advance Research and Scholarship: Fair Dealing Week Raises Awareness about Use of Copyrighted Material for Education”

UC Santa Barbara Library, “Celebrate Fair Use Week (Feb. 22–26)”

University of Alabama Libraries, Web Services @ UA Libraries blog, “Fair Use and Computer Software”

University of Guelph Library blog, “Fair Dealing Week February 22nd to 26th”

University of Tampa Library blog, “Fair Use Week—What Is It and Why Is It Important to You?”

Kalli Vimr on University of Arkansas Libraries 365 McIlroy blog, “Fair Use Week, Feb. 22–26”

University of Virginia Library, “Join Us in Celebrating Fair Use Week, February 22–26”

Timothy Vollmer on Communia blog, “Fair Use and the Importance of Flexible Copyright Exceptions”

Scott Walter on DePaul University Library Full Text blog, “Fair Use Week (February 22–26, 2016)”

Sara Maurice Whitver on University of Alabama Instruction Adventures blog, “Fair Use, Library Instruction, and First-year Students”

Tom Wilson on University of Alabama Digital Humanities Center blog, “Fair Use Week (February 22–26, 2016)”

Quizzes/Polls

Brigham Young University: quiz to test your understanding of whether a particular use is a fair use

Gettysburg College, Musselman Library: Fair Use Week 2016 display, with in-person voting on three cases of fair use

Five Videos from ARL Libraries Celebrate Fair Use and Fair Dealing

*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 honor of Fair Use/Fair Dealing Week 2016, five ARL member libraries have created videos celebrating the important doctrines of fair use and fair dealing—essential limitations and exceptions to copyright that allow 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 and facilitate balance in copyright law.

The University of Tennessee, Knoxville, Libraries highlights in a two-minute video its collection of Great Smoky Mountains postcards and digitization of this collection under fair use. Holly Mercer, associate dean for research and scholarly communication, notes that the University of Tennessee relied on the Code of Best Practices in Fair Use for Academic and Research Libraries to evaluate the fair use case to digitize and make the postcards available online. She clearly explains the transformative nature of making this special collection available digitally.

Ann Thornton, university librarian and vice provost of Columbia University, explains in a four-minute video how fair use has contributed to allowing “quality” access to scholarly materials. She discusses court cases from the past year that provide clear direction in allowing the robust application of fair use, including Authors Guild v. Google and Lenz v. Universal Music. Thornton also talks about the importance of open access and why it must act in tandem with fair use.

Texas A&M University Libraries has created a two-minute video explaining what fair use is and how, rather than creating strict rules about fair use, the university libraries has empowered faculty to determine what is fair use in the context of their own classrooms. The libraries thinks of fair use like a muscle—“if you don’t use it, you lose it.”

University of Massachusetts (UMass) Amherst Libraries highlights in a one-minute video its W. E. B. Du Bois collection as an example of one of its special collections that it has digitized and made available online relying on fair use. This collection is used in more than 30 courses at UMass alone. The Du Bois collection is just one of 100 other collections that are available via the libraries’ digital repository.

Gerald Beasley, vice-provost and chief librarian at the University of Alberta, emphasizes in a four-minute video the balance of rights in copyright. University of Alberta’s impact on Alberta’s economy is estimated at $12.3 billion and Beasley points out that access to copyrighted material is essential to scholarship because of the need to build upon works that came before. He also notes that a “liberal interpretation and application of fair use and fair dealing should be encouraged, especially for universities.”

Thanks, But No Thanks

*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 post is brought to you by guest blogger, Jonathan Band of policybandwidth*

Over the past decade, policymakers on both sides of the Atlantic have devoted significant attention to finding ways to permit the use of orphan works: works whose copyright owners are difficult to identify or locate. Library associations in both Europe and the United States initially supported these efforts strongly. In Europe, these efforts culminated in the adoption of an Orphan Works Directive in 2012. In the United States, by contrast, legislation stalled in 2008. Although the U.S. Copyright Office continues to push for orphan works legislation, U.S. library associations no longer seek such relief. This is due to changes in the copyright legal landscape, particularly the evolving case law concerning fair use. This paper explores the different trajectories of orphan works legislation in the EU and the United States, with special emphasis on how U.S. libraries changed their position in response to legal developments on the ground.

The full paper is available here.

Infographic Shows Fair Use’s Importance in a Day in the Life of a College Student

*Cross-posted from ARL News*

In conjunction with Fair Use/Fair Dealing Week 2016, ARL is releasing an infographic that shows how a college student relies on fair use numerous times in a typical day. 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 rightholder under certain circumstances, thereby promoting creative progress and accommodating freedom of expression.

The “Fair Use in a Day in the Life of a College Student” 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 campus 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 2016 is being celebrated this week, Monday, February 22, through Friday, February 26. 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 http://www.fairuseweek.org/ to participate or find additional resources.

Happy Fair Use/Fair Dealing Week!

Today, we’re kicking off Fair Use/Fair Dealing Week 2016!

While we believe every week is fair use and fair dealing week, February 22-26 is a time to celebrate the important doctrines that provide essential balance in copyright law.  ARL has a number of resources that will be released this week, so stay tuned!  Last year, a number of great resources were created and shared including an infographic, podcasts, a comic book, blog posts and more.  A summary of some of the highlights from Fair Use/Fair Dealing Week 2015 is available here.

Check out all the resources and events (which will updated as the week progresses) herel.  Don’t forget to follow ARLpolicy and FairUseWeek on Twitter.

Obama Administration Sends Marrakesh Treaty to Senate for Ratification

On Wednesday, February 10, 2016, the Obama Administration sent the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled to the U.S. Senate for ratification.  The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to create and distribute accessible formats for the print disabled and allows for the cross-border exchange of these formats.

The cross-border exchange is a critical feature of the treaty and could greatly alleviate what is known as the “book famine,” a situation in which the National Federation of the Blind estimates that no more than 5 percent of published works are created in an accessible format.  The ability to import works from other English speaking countries would aid in growing the collection of accessible formats in the United States and avoid unnecessary duplication of efforts in creation of these formats.  Additionally, the Marrakesh Treaty allows the import of works in other languages for those in the United States who do not speak English as a first language or for those learning a foreign language.  It would also provide significant benefits to those in developing countries, which generally have an even smaller number of accessible formats available, who could import works from the relatively larger collections in the United States and elsewhere.

President Obama’s Message to the Senate notes that the Treaty “advances the national interest of the United States in promoting the protection and enjoyment of creative works.  The Marrakesh Treaty lays a foundation, in a manner consistent with existing international copyright standards, for opening up a world of knowledge for persons with print disabilities by improving their access to published works.”

ARL applauds the Obama Administration’s transmission of the Marrakesh Treaty to the United States Senate and urges swift ratification of this Treaty.   The Marrakesh Treaty needs 20 ratifications to enter into force; it currently has 14 ratifications and ARL urges the United States to demonstrate its leadership in promoting the rights of persons with disabilities by becoming one of the first 20 countries to ratify the Marrakesh Treaty.

As previously noted by the Library Copyright Alliance, U.S. law complies with the Marrakesh Treaty and can be ratified without changes to current law.  The transmission of the Marrakesh Treaty to the Senate, however, included proposed changes to U.S. law.  ARL looks forward to reviewing these proposed amendments which are not yet publicly available.

USPTO White Paper on Remixes, First Sale, and Statutory Damages

*Guest post by Jonathan Band, policybandwidth*

Today the Department of Commerce Internet Policy Task Force today released its White Paper on Remixes, First Sale, and Statutory Damages. (This follows on from the Green Paper issued in 2013.) The Task Force has proposed several significant changes to statutory damages. It recommends that the statutory damages provision be amended: 1) to incorporate a list of factors for courts and juries to consider when determining the amount of a statutory damages award; 2) to expand the eligibility for lower innocent infringement awards when the copyright owner uses a copyright notice; and 3) to give courts discretion to assess statutory damages other than on a strict per-work basis in cases involving non-willful secondary infringement for online services offering a large number of works. These changes, if adopted, would make the statutory damages framework much less burdensome. The Task Force does not recommend any statutory changes relating to remixes or digital first sale, but it proposes multi-stakeholder negotiations related to these issues. The White Paper contains numerous references to comments submitted by the Library Copyright Alliance (which consists of ARL, ALA, and ACRL) and individual libraries.

The message at the beginning of the White Paper from Commerce Secretary Penny Pritzker states that “a healthy copyright system strikes important balances between rights and exceptions–delineating what is protectable and what is not, determining which types of uses require permission or payment, and establishing appropriate frameworks to effectively protect rights and foster creativity and innovation. These balances must be reviewed regularly to ensure they continue to function well as a foundation for America’s culture and economy.”

Digital First Sale. The Task Force does not recommend statutory amendment to facilitate digital first sale. It says that it was hard to measure the extent of consumer loss resulting from the absence of a digital first sale provision. Further, it feels that the market has responded with business models such as providing access to large quantities of digital works, e.g., Netflix. At the same time, digital first sale could cause harm to the primary market. Accordingly, the Task Force sees no need to amend the Act at this time.

However, the Task Force notes the problems libraries had experienced with the lending of e-books. The Task Force observes that the situation appears to be improving, and that government intervention could interfere with the development of innovative solutions. However, “if over time it becomes apparent that libraries have been unable to appropriately serve their patrons due to overly restrictive terms imposed by publishers, further action may be advisable (such as convening library and publisher stakeholders to develop best practices, or amending the Copyright Act).” Similarly, the Task Force recognizes that publishers might interfere with library preservation. This could be addressed, if necessary, in the context of updating section 108.

Remixes. The White Paper does not recommend any statutory changes to facilitate the creation of remixes. The Task Force recognizes that fair use is the central mechanism for permitting remixes, and believes that fair use performs this job well. It rejects compulsory licensing schemes as unnecessary. At the same time, the Task Force has suggestions for making it easier for remixers to understand what uses are fair and to obtain a license when they wish to do so. While recognizing the role of single sector best practices (e.g., the best practices organized by AU), it expresses a preference for negotiated guidelines for remixing. Although acknowledging the challenge of different stakeholders reaching an agreement on guidelines, it believes they are achievable if the scope of any guideline is narrow enough.

The Task Force also encourages the development of voluntary licensing systems. It acknowledges the concern the Library Copyright Alliance raised that licensing systems might undermine fair use, but disagrees with that assessment in a helpful way. In essence, it argues that the fourth fair use factor receives less weight in cases of transformative uses. Thus, the existence of a licensing system should not weaken a remixer’s fair use argument.

The Task Force recognizes that users would benefit from clarification of the terms of EULAs, and recommends a multi-stakeholder process for better communicating terms to the public (e.g., developing standardized notices or alternatives to a “buy” button).

Statutory Damages. As noted above, the White Paper’s most important contribution is in the area of statutory damages. The Task Force recognizes that the existing framework can be applied inconsistently because courts and juries have insufficient guidance. Moreover, the potential of draconian damages deters development of innovative technologies. At the same time, the Task Force does not seem convinced that there was a copyright troll problem.

The Task Force’s first proposal is to codify model jury instructions concerning statutory damages adopted by several circuits. The instructions include a list of factors to consider when determining the amount of a statutory damages award. These factors would help insure that the damages award is related to the actual harm and that the defendant’s state of mind and financial condition are given appropriate weight. These factors would improve consistency and transparency in the application of statutory damages.

The second proposal is to expand the eligibility for lower innocent infringement awards ($200 as opposed to $750). Currently, under sections 401(d) and 402(d), the innocent infringer defense is not available when the copyright owner places a copyright notice on the work. The Task Force proposes eliminating the preclusive effect of notice on the innocent infringement defense. At the same time, the Task Force rejects the Library Copyright Alliance proposal to expand the remission of damages when a library or archives has a good faith belief that its copying was a fair use. Currently, this provision applies only to the reproduction right, not the other exclusive rights. The Task Force believes that the libraries had not demonstrated need for this amendment. If the problem becomes more evident, the Task Force suggests addressing it in the context of section 108 reform.

The third proposal is to give courts discretion to assess statutory damages other than on a strict per-work basis in cases involving non-willful secondary infringement for online services offering a large number of works. This would reduce the threat statutory damages pose to innovative Internet companies.

Finally, the Task Force expresses support for the establishment of a small claims court for copyright infringement. The Task Force evidently believes that such a court could benefit defendants by diverting smaller cases away from a venue where significant statutory damages can be assessed.

Edited: January 28, 5:00pm

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.