Yesterday it was announced that negotiators had reached “miracle” conclusion for a new international treaty for the visually impaired. This agreement was reached under conditions of unprecedented (although not always perfect) transparency and public participation. And according to initial stakeholder opinions voiced from across the spectrum – the end outcome is nearly universally considered to be “balanced” – a key objective of modern intellectual property policy. The process and substantive outcome lies in sharp contrast to the conditions of intense secrecy that surrounded the last multilateral agreement on IP to be concluded – the much maligned Anti-counterfeiting Trade Agreement (ACTA) , as well as the most important one currently ongoing – the Trans Pacific Partnership (TPP). (See generally Jeremy Malcolm, Public Interest Representation in Global IP Policy Institutions). And thus it is an appropriate time to question what international IP negotiators in the TPP and elsewhere should learn from the success of WIPO and the failure of ACTA.
The elements of WIPO’s transparency processes are varied. they start with ongoing releases of draft negotiating documents dating back to the beginning of the process. ACTA was marked by releases of negotiating texts only through leaks, until the EU parliament demanded increased transparency – after which point negotiators released four public texts in the final 12 months. The TPP negotiators claim they will complete their treaty this October (which no one believes). There has not been a single public release of text, thus failing to live up to even the meager standard for public releases that defined ACTA. The leaked texts of TPP that we have show a secret agreement to keep the texts of the proposals being considered until four years AFTER the conclusion of the agreement. Thus, even subsequent interpreters of the TPP may be prevented from seeing its legislative history.
WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear (but not be physically present in) break rooms where negotiators were working on specific issues. ACTA was not subject to any observation of negotiating rooms by non-parties. TPP negotiators even rejected a request by a U.S. Congressman to observe a negotiation.
WIPO set up a system of open and transparent structured stakeholder input, including published reports and summaries of stakeholder working groups composed of commercial and non-commercial interests alike. ACTA was, and TPP is, informed by structured input from multinational corporations who receive secret drafts of texts and submit reports to the United States Trade Representative. There are no consumer representatives among these advisers and none of their reports are public.
Transparency in WIPO continued through the final days of intense, often all night, negotiations in the final diplomatic conference. When negotiators reached a new breakthrough on the language concerning the controversial “3-step test” limiting uses of limitations and exceptions in national laws, that news was released to the public (enabling public news stories on it), along with the draft text of the agreement. There are now reports that a majority of the chapters of the TPP are concluded, and perhaps a majority of the articles in the IP section – but the public has no public text to see what those agreements might be.
The conclusion of the WIPO VIP text was marked by public statements by stakeholders from industry, disability advocates and civil society alike that the product is “balanced.” The conclusion of ACTA was followed by industry campaigns to tout the benefits of the agreement that met the great majority of their requests, while hundreds of thousands of people marched across Europe in civil society led protests of its secret law making and unbalanced product. The controversy surrounding both the process and product led democratically elected parliaments to overwhelmingly reject the accord, both in the full EU parliament, and in an Australian committee. ACTA is by all accounts dead on arrival.
What text we have from the TPP displays the most unbalanced set of IP provisions ever offered in an international agreement. It is quite literally an industry wish list on a host of issues. TPP is facing mounting resistance in its member states,including powerful voices in the U.S. criticizing its lack of transparency. Senator Elizabeth Warren released a hard hitting critique last week, summarizing what many civil society groups have been arguing for years:
“I have heard the argument that transparency would undermine the Trade Representative’s policy to complete the trade agreement because public opposition would be significant. In other words, if people knew what was going on, they would stop it. This argument is exactly backwards. If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States.”
If ACTA is any indication, the resistance to TPP may not hit its crescendo until the agreement is finalized and it is too late to address the public’s concerns. If TPP does not open its doors to the public, taking some lessons from WIPO, then the best thing that can happen to it from the perspective of the cause of transparency in international law making is that it fails too. Maybe then intellectual property negotiators the world over will learn the lesson from the WIPO VIP that to achieve balanced law making products that will be readily accepted by citizens, the process must start and continue throughout with openness to input of those citizens.