The Transpacific Partnership Agreement (TPP) negotiations
are being conducted in extreme secrecy and that is a problem. In this post, I
suggest some options that would end the secrecy and allow members of the public
or their representatives to participate in the TPP negotiation process.
But first, here is a quick recap of why secrecy is a
problem: International copyright agreements affect a broad set of stakeholders
including artists, their intermediaries (like record labels and publishers),
technology companies, Internet service providers (ISPs), libraries, archives,
museums, and the general public. But the copyright chapters of trade agreements
usually only reflect the interests of a small set of these stakeholders: the
largest rights holder intermediaries and, as a secondary matter, the largest
ISPs. Furthermore, these agreements are formulated with their input, while the
rest of us are kept out.
The USTR justifies this secrecy as an essential element of negotiations. They have said that without secrecy negotiators could not engage
in a “frank exchange of views necessary to reach compromise.” These
justifications are not completely meritless. But they only consider the
benefits of secrecy while completely ignoring its deep, detrimental impact on
the public. In the copyright context, these impacts include: the ability of the
largest rights holder representatives to have an unfair influence over
negotiations; the inability of the negotiators to benefit from expert advice
from all, including public interest experts; and the inertia of negotiators to
change their stances to suit newer technologies and social conditions.
To address these shortcomings, the administration should
re-examine its stance on secrecy and explore various options to increase public
participation. I outline some possible options here. These options are based on
existing practice and the first two would be more effective at seeking public
participation that the last two options.
1. The USTR should publish its proposed texts
of negotiating documents relating to IP after these documents are presented to
other country negotiators.
The USTR has
argued that publishing texts would undermine its negotiating advantage over
other country negotiators. Perhaps this advantage is based on the fact that
secrecy prevents other countries’ negotiators from understanding and responding
to U.S. proposals. Once negotiators from other countries have access to the U.S.
proposal, the element of surprise that is supposed to give U.S. negotiators
their advantage is gone. At this stage keeping the text secret harms no one but
the public.
While publishing
the U.S. proposal would be the first step, the USTR should follow such
publication with a formal request for public comment. In addition, the agency
must also consider holding round table discussions among various stakeholders.
2. The USTR should publish texts of working
documents relating to IP that form the basis of negotiation.
I define a
“working document” as one that consolidates the positions of all negotiators,
forms the basis of future negotiations, and reflects various options for
designing particular provisions. To give the public a meaningful opportunity to
influence the outcome of the negotiation, the publication should not be delayed
too much after the working document is developed. To preserve the ability of
negotiators to come up with creative proposals, information about their
identity may be deleted. As with the first option, publication of working
documents should be followed by public comments and possibly round table
discussions.
3. The USTR could provide a broad range of public
interest organizations confidential access to negotiating texts and seek their
input.
This option
would follow the example set by the Organization for Economic Cooperation and
Development (OECD). The OECD’s Committee on Information, Computer and
Communications Policy (ICCP) permits civil society to participate in its work
through an organized coalition. The coalition decides on admission of new
members based on a set of objective criteria. The coalition receives
confidential access to OECD documents and is charged with arriving at consensus
positions on these documents.
A similar
coalition of a wide range of public interest organizations could be given
access to TPP negotiating documents and charged with maintaining
confidentiality. The advantage of this option is that it would introduce at
least some balanced perspectives as the TPP’s IP chapter is negotiated. Its
disadvantages are several: 1) the approach would still exclude general public
participation and no organization or even groups of organizations can
accurately represent the entire range of public interests; 2) depending on its
design, decisions about which organizations participate in this coalition could
be controversial, tarnishing the legitimacy and effectiveness of the exercise;
and 3) public interest representatives themselves would be deprived of valuable
input from the public.
4. The USTR and the Dept. of Commerce should
permit public interest representatives to serve on the Industry Trade Advisory
Committee for intellectual property (ITAC 15).
Industry Trade
Advisory Committees consist of industry representatives charged with advising
the USTR on the design of trade agreements. ITAC 15 is dedicated to IP issues
and its membership is limited to representatives of rights holders and some
ISPs. While the Trade Act does not require exclusive industry representation on
these advisory committees, the USTR and the Department of Commerce take the
view that they do. These agencies have the discretion to expand membership to
include public interest representatives. Under this option, the agencies would
exercise that discretion and amend the eligibility criteria for membership on
ITAC 15 to include public interest representatives. To make sure that their inclusion is effective, they
should not be reduced to a very small minority of members on ITAC 15.
The effectiveness of this option is lesser than the effectiveness of the previous one. Even if public interest representatives on ITAC 15 were not a miniscule minority, the people chosen to serve would still represent a very small part of the public interest community. And the secrecy surrounding ITAC processes would prevent them for consulting with their colleagues. While this limitation applies equally to business interests, because the range of what constitutes the public interest is extremely diverse and amorphous, its adverse impact would be greater on the public.
The options I suggest here are preliminary and would benefit
from input from a wide variety of groups. But, as an initial matter, they show
that openness and secrecy are not binary options. They are two ends of a
spectrum and policy makers can explore several options in between.
Read more about the TPP:
- The TPP and Policy Laundering
- TPP Negotiations Reveal Chink in U.S.’s Armor
- Shhhh. The TPP is Secret.
- What’s Actually in the TPP?
- Proposed New Copyright Treaty Asks For Tougher Terms Than ACTA
- ACTA the Sequel: The Transpacific Partnership Agreement