January 8, 2015 | By Jeremy Malcolm

Europe Releases its TTIP Proposals on Intellectual Property

Secrecy is trade negotiators' stock-in-trade, and it has allowed them to sneak through rules on topics such as copyright and patents that would never pass muster under public scrutiny. EFF has not hesitated to call them out over this, whether the trade agreement in question is the Trans-Pacific Partnership, the Transatlantic Trade and Investment Partnership (TTIP) between Europe and the United States, or the Trade in Services Agreement (TISA).

But we also gave credit last year to Europe for committing to make some incremental changes to improve the transparency of the TTIP neogtiations, by releasing its negotiating texts and giving access to all TTIP texts to members of the European Parliament. We weren't alone, being joined by 47 other civil society groups and experts from around the world in calling on the TPP negotiators to follow Europe's lead on transparency.

This week, the first batch of the TTIP documents that we had been promised by Europe has been released online. They take two different forms: two-page fact sheets for each of the 23 chapters, and for certain chapters the negotiating texts given to US negotiators, which in turn may be either actual textual proposals, or a more general statement of intent in the form of a position paper.

What have we learned from these documents? As yet, not much. For the intellectual property chapter—which is the chapter of most interest to EFF—no negotiating texts have yet been posted, presumably reflecting the fact that none has yet been provided to US negotiators. Instead, we have a two-page fact sheet on this chapter (which provides very little detail), and another on “Cultural services” (which gives somewhat more).

Amongst the biggest gripes for Europe that it plans to address in TTIP, as confirmed by these texts, is that the United States, unlike others countries, does not require radio stations to pay royalties to performers when their performances are played on air—only the composers receive royalties. But this is unlikely to change anytime soon. Although contentious, the exemption for performance royalties on radio has long been accepted as a quid pro quo for free marketing that artists receive when their performances are broadcast, which flows into sales of albums, concert tickets and merchandise.

Similarly, in the US composers do not receive royalties when their songs are played in bars or restaurants. But this too has been the subject of a long hard-fought battle, which has even made its way to the World Trade Organization (which ruled, in part, against the United States). Europe has its work cut out for it if it expects the US to reverse its position here. So too it has a hard battle in pushing for payments to visual artists on the resale of their works, which the released documents have also flagged for the EU wish-list, but which conflicts with the US first sale doctrine.

None of these issues are likely to have a direct impact on Internet users; in particular, online music streaming is already treated differently from radio broadcasts and from performances in that royalties are already payable to both performers and composers. So we are somewhat comforted that Europe is not pushing for proposals that would extend into the online and digital environment, though we still maintain our position that copyright is not an appropriate subject for trade agreements at all, and we will be continuing to closely monitor information about the intellectual property chapter as it comes to hand.

Meanwhile, there are other aspects of the agreement that remain troubling to us, perhaps most notably including Europe's insistence on including provisions on Investor State Dispute Settlement (ISDS), that could allow foreign investors to challenge laws that they believe impact the value of their investments. Although the ramifications of this policy extend much further, there is the prospect that balanced intellectual property laws that one country adopts—such as an orphan works law, for example—could trigger an investor's claim.

Perhaps the most important thing that we have learned from these documents is that the sky has not fallen simply because negotiating texts have been released. The US has not stormed away from the table, and Europeans are not rioting in the streets. That being so, it is becoming increasingly untenable for the USTR to hold its position that there should not be a similar show of transparency in the TPP and TISA negotiations, nor indeed that the US proposals for TTIP should not also be released.


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