Yesterday the Trans-Atlantic Consumer Dialogue (TACD) held an event on Capitol Hill about the trade agreement currently under negotiation by the US and the EU – the Transatlantic Trade and Investment Partnership (TTIP). Videos of presentations have been posted to YouTube by Knowledge Ecology International. This blog is a quick writeup of the first panel, which discussed the agreement’s potential impact on access to knowledge and digital rights.
Sean Flynn (American University, PIJIP) opened the first panel with the story of the Anti-Counterfeiting Trade Agreement (ACTA) as an example of the product of a flawed process. The secrecy itself fueled opposition to the agreement, and the lack of input from civil society it led negotiators to draft provisions that turned out to be wildly unpopular.
Kostas Rossoglou from the Bureau Européen des Unions de Consommateurs (BUEC) said that the ACTA experience showed that there is a disconnect between the goals of civil society and the policymakers that are supposed to represent them. But it also showed policymakers that it is not always wise to advocate for stronger IPR enforcement, and showed members of civil society that a network available to push back against these efforts to strengthen IP enforcement. There is currently a lot of discussion about needed reforms to copyright law, there has not been much change, but there is an acknowledgement that changes should be made. Why would policymakers try to increase enforcement of laws before the laws themselves are fixed?
Rossoglou argued that intellectual property rights enforcement involves questions of civil rights, so it should not be handled by trade negotiators who lack civil rights expertise. For example, one of the things that killed ACTA was its controversial language on intermediary liabilities. EU policymakers keep trying to put a system in place where rightholders can have websites taken down without a court order or evidence of infringement, a situation like that of China. But civil society wants safeguards against this type of takedown regime – the presumption of innocence and due process are important. There are also rightholder efforts to force intermediaries to monitor or filter content, but civil society opposes this (noting that the costs will always fall on consumers). We do not think that the private sector should become part of a surveillance state.
Gaëlle Krikorian from the EU Greens discussed efforts to include enhanced trade secret protections in TTIP. The issue is new for the EU Greens, and for much of civil society that has been following IP in trade negotiations (including me) so her talk opened with a primer on trade secrets in general: Trade secrets are bits of information that are not known to the public, that have commercial value because they are kept secret, and which the owner has taken steps to keep secret. Examples include the recipe for Coca-Cola, the know-how involved in the production of certain medicines, and concepts for unreleased products. Unlike knowledge protected by forms of intellectual property like patents and copyrights, there is no requirement that trade secrets be new, no registration or disclosure of information to the government, and no concept that the protection for owners should be balanced with protection for the good of consumers. There is no balance between protection of trade secrets and transparency and disclosure obligations in health and environmental regulations.
There is no EU regional law on this, but each country in the U.S. protects trade secrets under a variety of different legal frameworks. France includes trade secrets in the IP code. Germany and Spain protect them under competition law. The Netherlands protect them under tort law. However, there is a drive in Europe to protect trade secrets at the regional level. The European Commission has drafted a directive and presented it to the Parliament, and there is pressure to pass it quickly and with minimal debate. At the same time, industry is promoting the protection of trade secrets as a top priority for the IP chapter in TTIP.
It is unclear how regional trade secrets would be implemented. An EU mandate could lead to poor application at the national level, and to legal uncertainty. Trade secrets can be used by firms to bypass regulatory disclosure obligations and to otherwise circumvent environmental and consumer protections. There are concerns that trade secrets will be used to stop whistleblowers, to cover up fraud and to facilitate internet surveillance.
Jeremy Malcom from the Electronic Frontier Foundation described the assumed state of play of the TPP and TTIP – assumed because with the lack of official information about the negotiations, one must rely on leaks and private conversations to try to discern what is going on.
- Likely included in the TPP are anti-circumvention measures like those found in the WIPO Copyright Treaty; enforcement provisions like those found in ACTA; and a restatement of the three step test. Likely negotiated out of the TPP are limits to parallel trade; a ban on pre-grant opposition to patents; and copyright protection of temporary copies. Likely still under debate in the TPP are extensions of copyright term; notice & takedown systems; and investor-state dispute settlement.
- Likely included in TTIP are geographical indications; trade secrets; and patentability standards. Likely negotiated out of the TTIP are enforcement measures; interoperability; and data protection. It is unknown whether TTIP will include rules on copyright term extensions; protection of seeds; and trademarks.
Malcolm wants intellectual property out of the agreement entirely, but if there must be an IP chapter, there are better provisions available. The TPP could take text from its precursor – the P4 TPSEP between Brunei, Chile, New Zealand and Singapore – which upholds TRIPS and recognizes the “need to achieve a balance between the rights of right holders and the legitimate interests of users and the community.”
The secretive process in which the TPP is being negotiated is highly problematic. There is no release of negotiating texts, limited and uncoordinated release of background information, and systems of cleared advisors that have their own barriers and don’t lead to real transparency. The TPP is actually less transparent now then it was before. This year the rounds have stopped including opportunities for civil society to meet negotiators on the side of the official meetings. It is argued that the secrecy is needed in order for negotiators to do their work, but other forums such as WIPO negotiate openly. If TTIP emulates this secrecy, it will be a big problem for civil society. In the end, the lack of transparency could fuel opposition to both the TPP and TTIP, and lead to their undoing.
Carolina Rossini (Public Knowledge) noted that the US is one of the founders of Open Government Partnership, under which it has made a series of commitments on transparency. Civil society to needs to make sure that the federal government does a better job abiding by its commitments. She also noted that many local government in the United States have really positive transparency initiatives, so there are examples to be followed.
Rossini noted the U.S. is conducting a multiyear review of copyright law, based on the idea that significant changes may need to be made to a variety of topics including licensing, first sale, and limitations and exceptions. It would make sense to take a step back from efforts to lock in the current system, instead of trying to make binding international commitments that freeze copyright in place. It would be better for trade agreements to promote a positive agenda, such as ensuring the right of countries to construct systems of limitations and exceptions based on their own needs and experiences.
James Love (Knowledge Ecology International) expressed frustration that the President, Congress, and the media have been so complacent to corporate demands that trade negotiations be negotiated in secret. Its tied to larger issues of corruption, like the revolving door between trade negotiators and the IP industry (the former chief ACTA negotiator now works for AbbVie and the former chief TPP IP negotiator now works for the Motion Picture Association).
Love said that the effort to put the three step test into the trade framework is an attempt to regulate and limit the abilities of governments to put exceptions into their copyright laws. TTIP goes farther than previous trade agreements by letting companies litigate their complaints before private arbitrators under an investor-state dispute settlement mechanism. Firms like Disney and Viacom will be much more willing to challenge American intellectual property laws under the terms of a trade agreement than foreign countries have been, so this will lead to fines for the U.S.
At the opening of the Q&A, Flynn asked if there were opportunities to insert positive things into the TTIP, like moderation of the application of the three step test, or enhanced protection for limitations and exceptions. He asked how the U.S. Congress and the European Parliament could get involved to improve the process. Rossoglou warned of the risk that TTIP would preempt normal domestic lawmaking. Love said that it would be feasible to introduce registration requirements for longer copyright terms. There were a number of other positive ideas floated around the previous day’s TACD TTIP Stakeholder Forum – such as public research requirements and implementation of the WIPO Marrakesh Treaty. We suggested to US Chief Negotiator Dan Mullaney that USTR host a two day forum to discuss these types of public interest provisions, but he did not like the idea. We should propose this meeting to Ambassador Froman.
Kirk Carter asked about retroactive copyright term extensions in the TPP. Malcolm confirmed that this issue is under discussion, and noted that it is pure rent seeking by rightholders.
I noted that trade negotiators in the U.S. defend their negotiating positions by pointing to their Congressional mandate to negotiate levels of IP protection found in current U.S. law, but this is less than ideal when one considers that laws change (for instance, U.S. copyright laws may change after the current review). Negotiating objectives are determined by the Trade Promotion Authority Act, but this law needs to be renewed and the legislation for the renewal is currently under debate. Is there an opportunity to change the language that requires negotiators to seek IP protection comparable to a snapshot of U.S. law at a certain point in time? Rossini answered that the legislation is an opportunity to consider how to put accountability for USTR into the framework. Right now they are only accountable to the White House. There is Congressional oversight in the law, but it should be strengthened – Congress should set and review the trade agenda.
Maira Sutton asked how trade secrets could affect access to knowledge. Love said that interoperability fights have often revolved around trade secrets, and that the related issue of confidential business information could also serve as an open ended block of access to knowledge. Krikorian said that including trade secrets in TTIP would lead to big changes in EU national laws, in ways that could not easily be reversed.
