June 27, 2014 | By Jeremy Malcolm

What Does Copyright Have to Do With "Free Trade"? Unpicking the Undemocratic Transatlantic Trade and Investment Partnership

Democracy makes the job of our trade negotiators much harder. The light of democratic oversight makes it difficult for them to pander to the incessant demands of industry lobbyists, while ignoring the broader public interest. And the transparency that is central to democratic systems of governments impedes their efforts to hide what they are doing behind closed doors.

But they are largely untroubled by this, as there are a range of secretive agreements that they can use to mask their negotiations from public view. Many of these agreements will affect the digital rights of citizens around the world. Readers of our blog will already be familiar with at least one of these—the Trans-Pacific Partnership (TPP) agreement, which threatens to rewrite global rules on intellectual property enforcement. (EFF will be in Ottawa at the next round of TPP negotiations next month to help ensure that doesn't happen.)

But there are other such agreements that are less well known. Last week, Wikileaks leaked the draft text of part of the Trade in Services Agreement, which will eventually include potentially privacy-threatening provisions on cross-border data transfers. This week EFF was in Washington D.C., where consumer organizations from both sides of the North Atlantic came together to confront government and business representatives about their concerns over yet another multilateral agreement: the Trans-Atlantic Trade and Investment Partnership or TTIP, which is a trade agreement between the United States and the European Union.

TTIP and TPP have a lot in common. Both are being negotiated in secret, without affording the public (or even the public's elected representatives) access to the text. They both cover countries accounting for a substantial segment of global GDP—about 40% in the case of TPP, and closer to 50% for TTIP. They both include chapters on intellectual property that lock-in maximal levels of protection for rightsholders, and will make it difficult for participating countries to relax those standards in the future.

The difference is that TTIP is at a much earlier stage, so we are not yet sure what it will exactly contain—though reports are that it may focus less on copyright and IP enforcement issues compared with TPP, and more on other legal regimes that are commonly lumped into the "intellectual property" (IP) catch-all, such as trade secrets. The implications of stronger trade secret rights for the digital world remain murky, but might provide tech companies with further justification for resisting disclosure of proprietary, but unpatented, information about the privacy and security of digital products and services that consumers use. EFF will be monitoring this issue as it develops.

But a broader and ultimately more significant question that we raise is whether IP belongs in trade agreements at all. This year marks the 20th anniversary of the TRIPS Agreement at the World Trade Organization, that saw IP being recognized as a trade issue for the first time. The rationale given is that aside from excise duties and tariffs, which are now generally low across the board, free trade can also be limited by weak support for IP rights, as this operates as an extra cost for the business of an IP exporter.

This rather tortuous argument requires you to accept that there can be no justification for one country to provide lower levels of IP protection than another; or in other words, that when it comes to IP laws, "one size fits all." But of course this is not the case, as there are many good reasons why countries may want to fine-tune their IP regimes to suit their own cultural and economic circumstances, and in many areas the TRIPS agreement allows this.

Indeed, as explained in a presentation given by EFF's Jeremy Malcolm at this week's meeting of consumer groups in Washington D.C., IP is more often a barrier to free trade than a facilitator of it. The use of patent laws to disrupt trade in smartphones and tablets between the United States and Korea is a well-known example, but the same has been true of copyright, trademarks, and other legal regimes classed as IP.

EFF does not believe that IP and trade agreements are a good match. Too often the cut and thrust of negotiation of a trade agreement lends itself to IP laws being used as a bargaining chip, rather than as an important issue of public interest in their own right, that should be developed giving first priority to the interests of a country's own citizens, rather than those of foreign IP exporters.

Lower levels of IP protection and enforcement that may exist in some countries are not simply a "cost" to be flattened under the steamroller of multilateral "free trade" agreements such as TTIP and TPP. Rather, they can be an integral component of the balance that a country strikes to suit its own level of development, and its particular cultural and educational needs. Rather than allowing IP laws to be rewritten through secretive trade agreements, each country should be allowed the flexibility to determine those laws through open, democratic processes that give its own citizens a say.

Last year EFF joined other civil society organizations last year in calling for IP to be left out of TTIP. A year on, as the closed negotiations inch forward, we have heard nothing to cause us to change our position.


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