TPP and a Very Basic Point About Transparency

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If you've been following this space, you've likely seen that Public Knowledge was on the ground in Dallas this past weekend, covering the latest round of negotiations on the Trans-Pacific Partnership Agreement, or TPP. Among the various problems with the agreement itself (possible increases to already-draconian copyright penalties internationally, increased emphasis on protecting DRM, a lack of inclusion of well-established limitations and exceptions like library uses and fair use), there's the fact that the agreement itself remains a closely guarded secret. The public is apparently not allowed to see even the opening positions their governments are making in negotiations. As you've seen from Jodie's reports, the public and public interest groups are excluded not just from the room in which the future of international IP laws are being decided, but even from what representatives of their governments are asking the rest of the world to do.

This has been one of the most universal causes of complaint about the TPP. Last week, over 30 legal academics from various countries sent a letter to Ron Kirk, the U.S. Trade Representative, noting the lack of transparency in the negotiations for the TPP. Unusually, the response from USTR and Ambassador Kirk was swift: the next day, Kirk sent this message, reprinted below:

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.

As many have pointed out, saying the TPP is "more transparent than any FTA previously" is cherry-picking from a smaller set of international negotiations. The fact of the matter is that the TPP is slated to do far more than just negotiate trade positions, but to set standards for legal obligations of the signing countries. It's also striking that Kirk would be "offended" by accusations of a lack of transparency. However many stakeholder consultations they have, or however many opinions they solicit doesn't actually change the transparency of the agreement.

This is a key point that needs to be made about transparency—it's not about whether or not the government has the relevant opinions of the public. Transparency is about the flow of information the other way—information about the workings of government being visible to the people it is supposed to represent. That is precisely what is lacking in this process. This should be an obvious point, but it's one that Kirk's response either fundamentally misunderstands or deliberately sidesteps. So long as no actual proposed text comes to light (you know, the way draft laws and international treaties are published), the process remains opaque, and no amount of input from whatever stakeholders into the TPP process makes up for a lack of real information flowing the other way.

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