Yesterday, we sent a letter to United States Trade Representative Ron Kirk, signed by over 30 legal scholars, criticizing the decision to cancel full day stakeholder presentations for the current round of negotiations being held in Dallas, Texas, and calling on the administration to “reverse course” and work to expand participation and transparency in the negotiation. The letter specifically called for Kirk to work to give the general public the same rights to see US proposals in the negotiation as cleared corporate advisers now have. The letter received an immediate response from the Ambassador, which we reprint below with a brief response from us.

Ambassador Kirk wrote us:

I look forward to reviewing your letter, and will provide a more detailed response later.   In the interim, you may be surprised to know that USTR has conducted the most, active outreach to all stakeholders relative to the TPP than in any FTA previously, including, the proposed disciplines on intellectual property.

I do not quarrel with any assertions that our work may not reflect the exact wishes of your colleagues, but, I am strongly offended by the assertion that our process has been non-transparent and lacked public participation.   USTR has conducted in excess of 400 consultations with Congressional and private stakeholders on the TPP, including inviting stakeholders to all of the twelve negotiating rounds.

I trust that after you have received my more formal response you will make every effort to educate your colleagues as to the extraordinary efforts our staff has engaged in relative to drafting our proposed texts for the TPP.

We are thankful that the Ambassador took the opportunity to engage us directly, even if he did not have the time to read the letter itself. While waiting for his full response, we take this opportunity to make a few notes on his reply thus far.

Ambassador Kirk makes reference to TPP being more transparent and participatory than “any FTA [Free Trade Agreement] previously,” whereas our argument makes comparisons to different, and far more open, processes – at WIPO, at the WTO and in domestic legislatures. So the question is which comparison is better from the perspective (we would posit) of the legitimacy of the institution for its purpose.

FTAs are indeed even more secretive than TPP (or ACTA). Unlike in the TPP negotiations, FTAs are often negotiated in unannounced locations and at unannounced times, prohibiting most of the public from even knowing when, much less what, is being negotiated. ACTA sometimes followed the same course, meeting with no, or 24 hours, notice to the public when a meeting would take place. Some rounds of the TPP have been similar. For example, the USTR refused to confirm to some stakeholders the location and time of the meeting of the intersessional meeting of IP negotiators in Los Angeles, California, earlier this year, even as it was working with the movie industry to hold a reception for the negotiators at a film studio that same week. But for the next intersessional, held in Santiago, Chile, last month — the USTR posted its location on its website. That is an improvement in process, certainly in comparison to FTAs.

Our argument is not that TPP is worse than FTA negotiations, but rather that FTA processes are the wrong standard for assessing the legitimacy of the TPP intellectual property chapter negotiations. This is because the IP chapter in the TPP, like ACTA, is not a trade agreement. It does not adjust tariffs and quotas – it sets new international limits on domestic regulation, regardless of whether such regulation discriminates against, or even affects, trade. It may be thought that tariff schedules primarily affect the industries covered by those schedules, and therefore those affected industries are the only ones who need to be closely consulted. Industry Trade Advising Committees serve that purpose. But it is certainly not true that the only parts of society affected by international minimum standards on intellectual property legislation are the narrow groups of industries reflected in the ITAC system. Intellectual property laws affect us all.

The better comparison for the legitimacy of the international intellectual property law making occurring in the TPP (as was the case in ACTA) is institutions like WIPO, the WTO or domestic legislatures where such regulations are normally crafted. In such forums, the texts of the US proposals in the policy forum would be open for inspection to all, not closed to a select few.

As for the comment that “USTR has conducted in excess of 400 consultations with Congressional and private stakeholders on the TPP,” this seems precisely the point. USTR’s consultation process consists of it choosing with whom to share its international legislative proposals and leaving the rest of the country in the dark until the deal is done.

It is simply not true that the limited range of aligned industry experts on ITACs are the only ones with useful information. The amplified use of formal secrecy as an international lawmaking construct hides its systems of operation – its texts, its negotiation sessions, it’s discussions and debates – from, the public and unaffiliated public experts. In this formal construct, these parts of the public lack the ability to gain access to useful information like negotiating texts. This creates needless tension as the public and its experts desire to offer input but has no formal way to do so. Yet this secret law will be enforced as if it were created as open law, it will restrain our formal democratic institutions, even though the means of creating this restriction was itself insulated from broad participation. This is, as we explained in our letter, no way to engender trust and faith in international law making with such a  broad impact.

We hope that Ambassador Kirk will answer these concerns when he replies to us formally. We would like to know: if we can and should follow more open models in WIPO, in the WTO, in our own Congress, with all the industry representatives in the ITAC system, and even in select areas like the recently published Bilateral Investment Treaty model text — why can’t and shouldn’t a similar open process be followed every time the US proposes a new international law standard on intellectual property in any binding international law making forum?

Sean Flynn, American University Washington College of Law

David S. Levine, Elon University School of Law

Christopher Jon Sprigman, Virginia Law