Update August 5, 2015: See our analysis of the new leaked TPP Intellectual Property text.
Despite intense pressure to wrap up with a complete deal, the Hawaii round of the Trans-Pacific Partnership (TPP) negotiations ended on Friday in a deadlock. The trade ministers ultimately remained in disagreement over auto, dairy, and biologic drug patent provisions. This is a major setback for the White House, which had promoted this round of talks as the final meeting that would result in a completed trade agreement. They badly wanted to conclude the TPP last week, because now, it's not possible for the Obama administration to sign and get congressional ratification for the deal before the end of 2015.
The Fast Track bill, passed earlier this summer, stipulates various time schedules for trade agreements that make use of the trade promotion procedure. This includes a mandate that at a minimum, a 90-day notice must be given before the President signs the agreement. Thirty days after that notice the text must be posted publicly online. Then the White House must wait at least 30 days to send Congress the final deal. On top of all of that the deal needs to be legally scrubbed and properly translated, which would take weeks to complete. So in order for the Obama administration to be able to get it done by the end of the year, they had to have concluded it by August—last Saturday.
The more the TPP is delayed, the more this debate overlaps with the U.S. presidential election season and puts the trade agreement in the blinding spotlight. By the time any vote can happen on the agreement we'll have the text to read and analyze, so we'll be able to make our lawmakers answer to specific issues in the TPP and force them to take accountability for everything that has been negotiated in secret in the meantime.
The Canadian election, which was just called over the weekend, also throws a wrench into the TPP's conclusion. This usually means that the "caretaker" convention kicks in, where the government becomes restricted to dealing only with routine administrative activities, and is unable to pass any new major legislation or policy changes—including international trade deals. But yesterday, the Canadian government suddenly released new guidelines that are essentially designed to grant itself the power to continue negotiating the TPP.
Even if the current administration claims it can stay involved in TPP talks, that doesn't mean that it has an actual mandate to do so. Other TPP countries may not have the confidence that the government is able to commit to anything it agrees to in the deal since the current administration could be voted out. And like in the U.S., the overlap of TPP discussions with the election gives Canadian voters an opportunity to probe their candidates about their stances on the hundreds of issues raised by the TPP and demand accountability over provisions that don't correspond with their own domestic policy objectives.
The TPP Is Stalling, But That Doesn't Mean It's Dead
Despite an increasing number of signs that the deal might be in trouble, we can't be assured that the TPP is actually dead. Trade ministers still seem to be confident that the deal can be completed soon and claim that they made "significant progress" in this last round of talks. U.S. Trade Representative (USTR) Michael Froman said “We are more confident than ever that TPP is within reach,” and that "We have agreed we are going to continue to engage intensively...in this coming period with the goal of resolving outstanding issues." Many sources say the next official meeting will not happen until at least November, and the USTR even hinted (in the comment above) that efforts to complete the deal will go on even without any formal scheduled talks.
The major remaining issues involve auto, diary, and pharmaceuticals policies, but there is still indication that countries are still resisting the most extreme copyright provisions. Does this include rules on a life-plus-70 year copyright term? We can only hope so, but the signs are not good.
Australia seems to be pushing back on its obligations around ISP liability rules, which set out obligations on how and when websites and online services need to remove content based on a notice claiming copyright infringement. The TPP's text on this issue is more flexible than the deal Australia got in its bilateral trade deal with the U.S. So Australia is seeking a footnote that would make the TPP's more general rules override the harsher, more specific takedown rules that they signed onto in its earlier Australia-U.S. trade agreement.
There's no way of knowing what's in store for the TPP now, but the deal is only growing more controversial. People are realizing how it is wrong for our governments to be deciding so many regulatory issues behind closed doors, and trading away public interest policies in the name of lowering tariffs and enabling market access for various commodities. This is not how digital policy should be decided, nor any kind of domestic regulation that affects people's lives. Our rights online and over our digital devices should not be sacrificed in the crossfire of this special interest horse trading. As long as rules for the online and digital environment are in the deal, and as long as there is still a real threat that it will pass, we need to keep raising awareness about this toxic deal and fight back.
If you're in the United States, sign this petition urging the U.S. Copyright Office to reaffirm its call for balanced policy.
If you're in Canada, take action by sending an email to party leaders urging them to speak out against this unwarranted copyright term extension in the TPP.