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The Perils of Secrecy in Copyright Rulemaking

DEEPLINKS BLOG
January 18, 2017

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

When a big corporation seeks special-interest laws to boost its profits at the expense of the broader public interest, it naturally gravitates towards the most secretive lawmaking venue possible. This is why Hollywood's copyright maximalists have invested so much in international trade agreements, where negotiations over copyright rules take place behind closed doors, and negotiators take the advice of secretive, industry-dominated advisory panels.

Last year, that tactic backfired—big time. After five wasted years of taxpayer-funded flights around the world, the Trans-Pacific Partnership (TPP) dramatically imploded, frustrating big media's plans to extend the term of copyright protection across the Pacific rim, to set broken U.S. rules on DRM in concrete, and to turn some cases of non-commercial copyright infringements into international crimes.

But the death of the TPP doesn't mean the end of free trade agreements. In one form or another, these agreements will continue, and so will the lobbying efforts of copyright maximalists. The only way to break the cycle is to make dramatic changes to the way in which trade agreements are negotiated, to make them a less attractive venue for rent seeking. The way to do this is to make trade agreements more open, democratic, and transparent.

To this end, EFF held a high-level roundtable on trade transparency in Washington, D.C. last Friday, inviting not only staff of the U.S. Trade Representative (USTR), but also representatives of other agencies with expertise in trade, along with interested Congressional offices, a few key Internet industry representatives, and colleagues from two civil society networks, the Open Digital Trade Network that EFF formed last year, and the OpenTheGovernment.org coalition.

As we explained in a background document [PDF] that we tabled at the meeting:

Trade agreements are disconnected from democratic oversight, mired in a swamp of influence from lobbyists and special interests, and harmful to the interests of American workers and entrepreneurs. Agreements are negotiated with levels of confidentiality that go far beyond those necessary for effective deal-making.

But the roundtable wasn't just a gripe session. We came into the meeting with some specific proposals for meaningful reforms that would make trade negotiations more transparent and inclusive; for example:

the regular release of U.S. text proposals and consolidated negotiation texts, the development of U.S. proposals through an open, notice-and-comment process, and (if they are to be retained at all) the relaxation of confidentiality obligations applicable to Trade Advisory Committees.

We left the meeting with strong support around the table for some of these ideas, and with a number of additional ideas from the assembled experts. While we also received some pushback, which amounts to an argument for business as usual, the idea that Americans will accept any future trade agreements that are negotiated in the same closed, captured fashion as the TPP is delusional thinking. As we explained:

the world in which such agreements are made has changed since America’s first trade agreements were negotiated in the 1930s under the Reciprocal Tariff Act. Today, transparency and broad public consultation are expected, and fierce public opposition can be expected to follow any trade agreement that does not follow these practices. This is especially so in relation to Internet-related rules, where prescriptions nominally about commerce and trade can affect citizens’ free speech and other fundamental individual rights.

As we also explained, copyright and other so-called intellectual property rules are the archetypal example of such rules that affect free speech and other human rights, and can't be treated as if they only had impacts on trade. Hollywood has pushed the use of trade agreements to their breaking point—and sure enough, they have broken, leaving the new administration to pick up the pieces.

It's too early to say whether trade negotiations will become more transparent and inclusive under the Trump administration, but EFF and our partners have made as best a case for it as we can. The USTR now has to decide what is more important—continuing to secretly write trade deals that include Hollywood's maximalist copyright rules, or negotiating agreements with a diversity of stakeholder views that may be less favorable to Hollywood, but have a better chance of being accepted as legitimate.

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