Tell Congress to Fix the DMCALearn More About Section 1201
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.