January 13, 2014 | By Maira Sutton and corynne mcsherry

Transparency Is Fundamental to Good Copyright Policy

In the week leading up the two-year anniversary of the SOPA blackout protests, EFF and others are talking about key principles that should guide copyright policy. Every day, we'll take on a different piece, exploring what’s at stake and and what we need to do to make sure the law promotes creativity and innovation. We've put together a page where you can read and endorse the principles yourself. Let's send a message to DC, Hollywood, Silicon Valley, Brussels, and wherever else folks are making new copyright rules: We're from the Internet, and we're here to help.

In the days after millions of Internet users banded together to derail the Stop Online Piracy Act (SOPA), and just as millions of others were organizing to stop the Anti-Counterfeiting Trade Agreement (ACTA), Motion Picture Association of America Chairman Chris Dodd told the New York Times that he would “welcome a summit meeting between Internet companies and content companies, perhaps convened by the White House, that could lead to a compromise." The former Senator apparently hoped for a return to the traditional game, where law and policy are written by lobbyists, sold through back-room deals negotiated behind closed doors, and passed with little chance for careful review.

Two years later, the content industries (and some of their friends in Washington) still haven’t figured out that we’re not going to let that happen. Copyright policy is too important to leave to lawyers and lobbyists. The rest of us need and want to be part of the process. And that means we need, and demand, openness and transparency at every stage of that process.

Let’s get the obvious out of the way. In a democratic society, our laws and policies should reflect the will of the people. If the public, and its representatives, cannot scrutinize proposed legislation, agreements, and regulations in advance, it cannot express that will. That means any such back-room deals are illegitimate from the get-go.

But transparency also means better copyright policy. One of the fundamental flaws in SOPA was the damage its provisions would have caused to Internet infrastructure. If the drafters had bothered to consult with a few technologists, they might have seen that risk (granted, they might not have cared but at least it wouldn’t have been a surprise). More broadly, it is clear that copyright law is increasingly out of touch with how we share, interact, and remix digital works. If we want copyright policy that truly serves its intended purpose—to promote new creativity and innovation—Internet users need a chance to weigh in. And we cannot do so unless we know what the heck is on the table in the first place.

The need for transparency is particularly great in the international policymaking space. Too often, the public is left completely in the dark about the provisions that officials are negotiating or even proposing in closed door meetings.

Case in point: the secret negotiations over international agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). Despite repeated demands for inclusion, advocates, academics, and other public interest representatives are always excluded from the negotiations. The U.S. Trade Representative (USTR) will not publish any of the negotiating texts or proposals, so all we know about these agreements come from unauthorized leaks. Even our elected representatives have extremely limited opportunities to see the text. To even read the thing, Congress members have to visit a specific room at the USTR. They cannot take notes or bring legislative aides (who might have relevant expertise). By contrast, Trade Advisory Committees—mostly made up of advisors for big corporations—have ample opportunity to view and comment on the draft text.

The content industries, and others, enjoy the fact that trade negotiations are secret. Behind closed doors they can get away with scoring a wish list of restrictive copyright enforcement measures. Historically, trade negotiations have been closed in order to discuss import tariffs and other market barriers to the free trade of goods, without political interference from domestic industries. But these new agreements are much broader. TPP for instance, includes regulatory obligations that could impact how our lawmakers set domestic policy. Its “intellectual property” provisions will affect free speech, access to knowledge, and access to lifesaving medicines—hardly arenas we traditionally think of as matters of “trade.” But even though these deals go far beyond traditional trade issues, corporate lobbyists are using the guise of “trade” to enact new, draconian copyright standards that would likely not survive public scrutiny.

Senator Elizabeth Warren said it best in a letter to the USTR about TPP in June of last year:

I have heard the argument that transparency would undermine the Administration's policy to complete the trade agreement because public opposition would be significant. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States.

Equally frustrating is the US trade representative’s curious inability to comprehend the word “transparency.” In statement after statement during negotiations over TPP and other international copyright agreements, the USTR claims that it is in fact committed to transparency. This is just crazy talk. The USTR has an idea that because it have consulted with various stakeholders, that is the same as transparency. Here’s some straight talk: If you have a strict policy of keeping texts hidden from the public and continue to exclude public interest representatives, your negotiations are not transparent. It’s that simple.

Perhaps the USTR needs reminding: Our laws, and the mechanisms that determine them, need to be wide open so that we can make sure they are representing our interests, and not just the interests of a select few corporate industries. That’s how democracy works. Until we can force policymakers to snap out of this delusion and begin releasing negotiation texts to the public, nothing that they do will make up for the secrecy. We need to demand that they make the international policy process open—really open—once and for all.

In the U.S., there is something you can do right now. A bill that was introduced in Congress last week would sharply limit democratic oversight over these already secretive trade agreements. This “fast track” bill prevents Congress from exercising their Constitutional authority over U.S. trade policy, limiting them to a short period to conduct hearings over binding trade provisions, and give an up-or-down vote on ratification without any ability to amend the terms before they bind the U.S. government.

U.S. folks can help us oppose this draconian process. Demand that your Congressional representatives step up to the plate and take back their Constitutional role in trade policy and shine a light on this opaque process.

There are also some other efforts to make more information public. Intellectual Property Watch has been pursuing Freedom of Information Access (FOIA) requests to the USTR about U.S. lobbying positions in TPP negotiations and the influence certain industries have on those positions. After more than a year of delay in responding, the USTR ultimately refused to disclose most of the relevant information. Intellectual Property Watch has since filed an appeal to compel them to release more documents due to their failure to adequately respond to the original FOIA request. We will be keeping an eye on further developments.


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