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    Inside Views
    Inside Views: Call For Transparency In The Trans-Pacific Partnership Negotiation

    Published on 10 May 2012 @ 4:34 pm

    Disclaimer: the views expressed in this column are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

    Intellectual Property Watch

    By Sean Flynn, American University Washington College of Law; David S. Levine, Elon University School of Law; Christopher Jon Sprigman, Virginia Law

    In this post, three US law professors explain a recent call by over 30 legal scholars for the US Trade Representative to increase transparency for the Trans-Pacific Partnership Agreement intellectual property chapter, and their response to Ambassador Kirk’s response that he is “strongly offended” by the suggestion that the negotiation is not adequately transparent already.

    We write to express our profound concern and disappointment at the lack of public participation, transparency and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP). We are particularly and specifically concerned that the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.

    At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.

    Our first and most important suggestion is that the USTR immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. While we are sympathetic to the need for some confidentiality in the negotiation of international agreements, just as there is in domestic law making, there can be no national security justification, much less one sounding in good governance concerns, for preventing the United States public from seeing its own government’s proposals to restrain its own domestic legislation.

    Indeed, there are many examples where the US engages in precisely the kind of information sharing about its proposals for international law making we request here. If, for example, this negotiation was happening in the World Intellectual Property Organization or World Trade Organization, all country proposals would be released to the public as a formal part of the negotiation process. This is, of course, also the process followed in a Congressional Committee mark up of a bill. And just last month USTR released to the public a 2012 revised model bilateral investment treaty (BIT), which one must assume reflects its positions in the TPP negotiation on the same titled chapter.

    Our concerns flow from the now-established observation that “trade” agreements no longer focus exclusively, or perhaps even predominantly, on the regulation of trade. Rather, the agreements increasingly propose international law standards that bind the legislative branch to change, or lock in place, domestic regulatory decisions. Democratic values demand that, at minimum, the promulgation of such restrictions on domestic law making processes afford the full range of participatory inputs as similar initiatives at the domestic level.

    Unfortunately, there is little about the TPP negotiating process that is open to the broad range of inputs that would be reflected in domestic policy making. There has been no publicly released text of what USTR is demanding in these negotiations, as there would be in policy making by regulation, in Congress or in multilateral forums. Reviews of leaked proposals show that the US is pushing numerous standards that are beyond those included in any past (i.e., publicly released) agreement and that could require changes in current US statutory law. Reviews also show that the US proposal is manifestly unbalanced – it predominantly proposes increases in proprietor rights, with no effort to expand the limitations and exceptions to such rights that are needed in the US and abroad to serve the public interest. Yet, we only know these things because the highly secretive law making process USTR established, including a ban on the release of all negotiation proposals until four years AFTER the conclusion of the agreement, has failed to prevent the US proposals from leaking to the public.

    The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers.

    We would never create US law or regulation through such a biased and closed process.

    All of the above makes the most recent further withdrawal from the TPP negotiation of a limited participation venue particularly disturbing. If there was one small albeit inadequate bright spot among this shower of democratic governance transgressions, it was the effort of the TPP negotiating parties to host open stakeholder forums where members of the public could apply to give presentations to other stakeholders and those negotiators that wished to attend. Although with limited information built largely on leaks and speculation, consumer, public health, and internet user groups, as well as academics and others, still availed themselves of the only avenue possible to offer any real-time input to the negotiators. Locked out of any opportunity for meaningful participation in their own country, many US consumer groups and affected businesses have flown half way around the world at their own expense for their 15-minute opportunities to address negotiators in-person and out loud.

    While far from ideal for all involved, including the USTR and its ITAC advisors, this mechanism at least allowed for some exchange, even if that exchange was fundamentally flawed and artificially limited in value because of the information-disparity problems discussed above. In the place of these full day open forums in Dallas, USTR has channeled stakeholder input into a 4-hour mid-day (10:30am-2:30pm, i.e. over the lunch hour) exhibit hall for stakeholder tables. There will be no opportunity, as in the past, to speak to assembled negotiators through presentations. Despite the label given to this reduction of stakeholder input as a “Direct Stakeholder Engagement event,” we take this for what it is – a further decrease in amount, variety and effectiveness of means for the public to speak to negotiators on matters of broad public concern.

    Now is (indeed, yesterday was) the time to ramp up participation mechanisms that might bolster the agreement’s legitimacy and fairness, not dial them back – if the goal is to create balanced law that stands the test of modern democratic theories and practices of public transparency, accountability and input. Please restore the stakeholder sessions and release negotiating texts now.

    We shared these concerns with USTR Ron Kirk yesterday, in a letter signed by over 30 other legal scholars. The letter received an immediate response from Ambassador Kirk who wrote:

    “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. 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.

    The difference is important. FTAs are indeed even more secretive than TPP (or ACTA). The justification for that secrecy was traditionally that their subjects were about the horse trading of tariff schedules rather than the setting of domestic legislative standards. The setting of domestic legislative standards should be subject to far more open and transparent processes than that for bilateral trade agreements, as is traditionally the case in international intellectual property law making. As a domestic regulation minimum standard agreement, the intellectual property chapter of the TPP, and indeed those in bilateral FTAs, should follow the more open and participatory processes for international intellectual property law making.

    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. This is, as we explain above, no way to engender trust and faith in international law making.

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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