ACTA protesters in Germany. Photo by Danilo (CC-2.0)

[Enclosed are my comments at the TPP stakeholder forum in Melbourne, Australia, March 4, 2012. You may also see my Presentation Slides: What ACTA should learn from TPP and listen via Audio File TPP Presentation March 4 2012]

I want to speak in direct opposition to an argument I hear from some that the the Trans Pacific Partnership Agreement (TPP) needs to follow, and exceed, the “template” for intellectual property contained in past agreements, including the Korea FTA and ACTA, in order to be a “21st Century” and “high standard” agreement. I have previously presented on why countries should reject the US IP template because it is in direct opposition to the development agenda being implemented at WIPO and other multilateral organizations, and against the economic interests of all the countries represented —including the US. Today, I want to add a point about the current political context, which is that the TPP negotiations now face a social movement that the agreement’s process and substance should respond to.

Since the last time TPP negotiators officially met in Lima, the internet went dark. People in Europe took to the streets. And they remained there until governments responded. Protests followed in Paris, Stockholm, and, on February 11, throughout all of Europe. Hundreds of thousands of people took to the streets.

The protests led to the resignation of the EU Parliament’s rapporteur on ACTA, who criticized the public process as a “masquerade.” And also to the resignation of the Slovenia Ambassador to Japan who signed ACTA – who left office apologizing to her country and her children.

By the end of February, the EU states to suspend ACTA ratification included Bulgaria, Czech Republic, Slovakia, Germany, the Netherlands, Latvia, Romania, Cyprus, Estonia and Austria.

And finally, the EU commission itself suspended its ratification activities by referring ACTA to the EU Court of Justice to determine the extent to which the agreement encroaches on fundamental rights to access to information.

The human rights challenge to ACTA and the rest of the enforcement chapter in the template is serious – included in reports by the UN special rapporteur for Freedom of Expression as well as analysis by academic. Disconnections of the internet without adequate due process, intermediary liability – which can you think of holding the side walk owner liable for what is said from the soapbox upon it – criminalization, privacy: these have clear human rights implications.

So, here we stand, on the eve of ACTA’s demise debating a proposal from the US for an agreement that goes far beyond it: extending copyright to temporary copies on the internet; revoking the 2007 trade deal with developing countries on access to generic medicines; mandating a globalization of DMCA-like take downs on the internet; restricting government programs that restrain medicine prices through reimbursement policies.

Public concern over the TPP is still nascent, but is emerging in the same channels that produced the ACTA movement. There were, for example, up to 20,000 twitter mentions of TPP in a day during the unannounced intercessional IP negotiation in Los Angeles in February. These are not yet to ACTA levels, but show the rising concern and attention.

I would urge negotiators to not ignore the social movement but rather speak to it. Recognize that its concerns are legitimate. We are not at the point where what the world needs is less domestic flexibility on the shape and scope of its IP laws dictated from above. We are in a period of massive and rapid technological change. We need more domestic flexibility, not less.

Harvard Law Professor Yochai Benkler was on point on this matter when he wrote recently:

“The starting point for negotiation cannot be that everything the industry got while networked citizenry was weak and dispersed is sacrosanct, and the only things on the negotiating table are Hollywood’s shiny new regulatory toys. The politics have changed. Everything should be up for renegotiation . . . .”

On process – TPP negotiators could radically improve the negative public perception of this negotiation by abiding by the openness norms of the EU Parliament’s March 2010 resolution, calling for ACTA text to be shared with the public on an ongoing basis. It must be recalled that the IP chapter is legislating very directly. This is not the horse trading tariff schedules. It is setting a new supra-constitutional framework restricting what domestic polities can achieve through democratic action. If such restrictions are to be perceived as legitimate, the justification must itself sound in democratic terms.

On substance, this agreement needs to shift its focus to enabling instead of restraining internet freedoms. As Peter Nowak wrote recently, the focus of internet policy needs to shift from a theme of “no you can’t” to “yes you can.”

There ideas out there for this. Just days ago, for example, Public Knowledge announced an Internet Blueprint bill. I released a blog on this topic last week. You can find a compendium of ideas written by over 200 international experts from 35 countries in the Washington Declaration on IP and the Public Interest. Groups like MSF, Public Citizen, Knowledge Ecology International, Third World Network and others are full of ideas that could be tapped in current processes.

One big theme entering all of these and many other proposals is the needs to strengthen and harmonize limitations and exceptions rather than rights and enforcement. The Program on Information Justice and Intellectual Property hosted a meeting of about 30 IP academics from around the globe to explore how to make copyright flexibilities better. We found that there a huge amount of work to be done here. Most of countries we studies, and likely most countries represented TPP region, do not have clear and reasonable exceptions for some key modern practices, such digitizing library holdings, transforming works into new products through user generated content, or for the illustrative quotation of copyrighted works in other works like documentary film. Setting forward on an international agenda to promote these kind of freedom enhancing norms, while halting the maximalist agenda of expanding IP rights scope and enforcement, may go a long way to changing the narrative around this agreement and bolstering the legitimacy of its outcome.

[This note is based on a presentation delivered at the Stakeholder Forum at the Melbourne Round of the TPP negotiations, March 4, 2012. Invaluable research assistance was provided by Peter Fein]