Trade agreements have often been used to secure intellectual property (IP) provisions that are harmful to ordinary citizens. The secrecy that generally surrounds trade agreements makes them the ideal vehicle to secure such provisions. These agreements are used to usher in international obligations that would require countries around the world to protect copyrights for longer, prosecute infringements with longer prison terms and higher fines, and generally subject more uses of works to the control of copyright owners. We have written extensively about the Anti-Counterfeiting Trade Agreement (ACTA), which was called a trade agreement and concluded in great secrecy. The Transpacific Partnership Agreement (TPP) seems to be the sequel to ACTA, but with different participating countries. You can find more information about the TPP in my previous post.
The 8th round of negotiations for the TPP is currently underway in Chicago. This past Saturday, the Office of the United States Trade Representative (USTR) hosted a stakeholder’s forum ostensibly to hear the concerns of various constituencies whose interests would be affected by chapters in the agreement. There were presentations on a wide range of issues including: access to educational material; access to medicines; ability to innovate; impact of the agreement on human rights; impact of the agreement on labor; and the impact of the agreement on the environment.
First let me be clear that I appreciated the opportunity to present my views to the USTR. However, despite the forum, advocates for balanced copyright laws stand in the same place we did before– shut out from any substantive discussions about the agreement and unable to provide effective commentary. If the purpose of the forum was to influence the thinking of negotiators, we have no way of knowing whether we did in fact influence their thinking. The agreement is being negotiated in secret and negotiators will not say publicly whether they understand our concerns and will work towards ensuring that the treaty language reflects these concerns.
Second, because we do not have actual texts of the agreement, we could not provide effective commentary on how specific provisions would affect the public interest. Shielding the texts from us and shielding the negotiators from our effective input gives them the ability to turn a blind eye to important public concerns. The stakeholder forum would have been much more useful if stakeholders actually had information about the content of the text to comment on. In the absence of more information about the content of the TPP, most of us made our case based on leaked texts.
Here’s the summary of my presentation at the stakeholder’s forum:
The principle that copyright needs to balance interests of authors and society at large has a history as long as copyright itself. The title of the first copyright statute, the Statue of Anne, read “A Statute for the Advancement of Learning….” Similarly the US constitution says that the purpose of copyright is to “promote the progress of science”. In the international arena, agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which sets the current international standard for IP protection, provides that “the protection and enforcement of IP rights should contribute to the promotion of technological innovation, and to the transfers and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare and to a balance of rights and obligations.”
When the law ignores its purpose and focuses single mindedly on protecting rights, we all suffer. Educators are prevented from taking advantage of the promise of digital technology and delivering distance education to those who need it. This is because many educational text books are copyrighted and use of these would have to be made in the course of distance education. For example, according to a report published by Consumer’s International, Chilean law requires that any transmission of copyrighted books in the course of distance education be confined to the network terminals in the same institution. Such a provision is unlikely to allow true distance education, i.e allow poor people constrained by distances and lack of resources to secure education that would let them complete with the rest of the world.
Similarly, when the law ignores this balance, researchers would not be able to access material and conduct research effectively. For example, a study (page 46) recently commissioned by the U.K. government noted how copyright problems are preventing access to about 1000 journal papers on malaria produced as a result of research conducted during the first half of the 20th century. The report observed that these papers could “offer significant insights for the development of methods for preventing and treating malaria.”
Extremely strong rights for copyright owners and overly rigid enforcement would also prevent citizens from making mash-ups and posting them on sites such as YouTube.
To counter threats like these, at a minimum, TPP’s copyright chapter must have mandatory limitations and exceptions that are flexible and would leave policy space within TPP countries to achieve social objectives.
Here are summaries of some of the other copyright-related presentations: Jonathan Band, representing the Computer and Communications Association explained how technology companies, such as Google, rely on fair use in order to function. Google’s search function relies on being able to make copies of entire web pages. Laws of most countries do not permit such copying. However the fair use exception in U.S law creates the space where Google’s uses of copyrighted works and many other types of uses by technology companies are possible. Band noted that Google would not have been able to start its business in countries without this exception. Prof. James Boyle of Duke University talked about the dangers of concluding a trade agreement that had no basis in evidence. He noted how there was no text of a TPP and how most of us had to base our comments on a draft that leaked in February this year. According to that draft the TPP requires countries to increase their copyright terms to match the current, longer, term in the U.S. Prof. Boyle mentioned how many studies have concluded that such long terms have absolutely no impact on the incentive for creativity. Despite this lack of evidence, negotiators are ostensibly pursuing provisions that would require longer terms.
The next round of negotiations for the TPP is scheduled to start on the 24th of October in Lima, Peru. According to the USTR the goal is to reach “the outlines of an agreement by the APEC Leader’s meeting in Honolulu in November.” When the agreement is concluded and we finally have a text, we will know if our concerns were considered and addressed. It they were not, the agreement would have been locked into place making it very hard to change specific provisions.