Secret negotiations over the Trans-Pacific Partnership agreement (TPP) continued this week in a golf resort outside Washington DC, and the process continues to be as secret and undemocratic as ever. TPP is yet another example of how the US entertainment and pharma industry are pressuring lawmakers to push forward overprotective intellectual property laws that will also put the Internet and its users at risk.
Last Sunday, EFF was at the negotiations to participate in the “stakeholder” events hosted by the Office of the US Trade Representative (USTR). There were noticeably more organizations and companies present at the three-hour stakeholder tabling session than the last round of negotiations in San Diego.
EFF had roughly 25 delegates and representatives come by the table to engage with us on our concerns with this agreement. We provided them with materials analyzing the agreement based upon leaked texts, and explained how the TPP would impact digital rights in their countries. The Stop the Trap coalition projected public comments on one of the walls of the large hotel conference room, while other stakeholders were protesting outside.
Maira Sutton and Carolina Rossini speaking to a delegate.
Carolina Rossini, EFF’s International Intellectual Property Director, spoke to negotiators at the stakeholder presentation about how the TPP would create incentives for ISPs to police the Internet, and how this will effect users’ right to free speech, privacy, and innovation. A copy of the presentation is available here. Her presentation was followed by the International Intellectual Property Alliance, a coalition of trade associations that supports the expansion of copyright protection and enforcement, with a presentation titled “TPP & IPR: Myths and Realities.” More interestingly, the Walt Disney Company made a presentation titled “Creativity, Brought to you by Copyright,” which asserted that creativity and innovation is not possible without copyright protection. The full schedule of stakeholder presentations is available here.
Carolina Rossini presenting on TPP and ISP liability
The stakeholder engagement events in the morning were followed by a stakeholder briefing in the afternoon. The briefing allowed registered individuals from civil society and the public to ask questions of and make comments to eight out of the nine negotiators who represent a TPP country. The press was barred from the room. Roughly 25 people rose from the audience to ask questions to the trade delegates during the 90-minute briefing period. As predicted, they were not transparent about the talks, revealed little new information, and delegates also refused to make any comments based on leaked version of texts—the only text EFF and other public interest organizations have had access to. It is difficult for public stakeholders to ask accurate questions or receive any substantive answers when the content of the agreement continues to be shrouded in secrecy.
Rossini asked the USTR about its claims that the TPP’s intellectual property chapter will provide for fair use in its IP chapter, and how those public statements starkly contrast with the recent leaked TPP chapter that shows that the US delegation is in fact pushing for provisions that will restrict non-US countries from enacting fair use. Further, they neglected to comment on the fact that the leaked test has the potential to limit US fair use to the three-step test restrictions. In response, the lead negotiator for the USTR dodged the question and stated that they would not comment on issues raised by text EFF has “purportedly” received. The representative did acknowledge that fair use would be discussed during the week's meetings.
The last question of the briefing came from EFF’s International Intellectual Property Coordinator, Maira Sutton, who raised from the crowd and asked the lead negotiator how they justify pushing for ever more restrictive copyright laws in the agreement even though it has become clear, with the defeat of ACTA in Europe, that users are sick and tired of international agreements regulating their Internet through overprotective intellectual property provisions (see video below). In response, the lead negotiator for the US stated that the standard for copyright regulation in international agreements has been the US Digital Millennium Copyright Act (DMCA). They claimed that the DMCA was legislated fairly and is an effective model for copyright enforcement in the US. The representatives' answer contradicted the fact that EFF and others have been arguing for years that the DMCA is fraught with problems. Sutton responded that based upon what we saw in the recent leaked text on fair use, developing countries would not be able to implement such copyright laws as soundly given that the three-step test language restricts signatory nations from determining and establishing fair use as they see fit.
International venues such as the World Intellectual Property Organization (WIPO) already exist to address issues regarding the Internet and intellectual property in a multilateral and transparent way. The US Trade Representative's office recognizes that it could never obtain international agreement from the 182 member countries of WIPO to many of the proposals in TPP. Initiatives like the TPP allow the content industry to work within privileged channels of communication with the USTR to skirt open democratic processes that would likely prevent them from getting the IP regulations of their dreams. EFF is concerned with this forum shifting, even more in a moment that a positive agenda for exceptions and limitations is been pushed for within WIPO.
Agreements like TPP and ACTA chill online expression, prevent access to knowledge, and impede our freedom to innovate. The way to fight back is to make your voice heard: to demand an open transparent process that allows everyone, from experts to civil society members, to analyze, question, and probe any initiatives to regulate the Internet. The secrecy must be stopped once and for all.
Join EFF and more than 25,000 people in sending a message to Congress members to demand an end to these secret backdoor negotiations: