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TPP Recap: San Diego Negotiations

July 13, 2012

This week the US and eight other countries finished the 13th
round of negotiations for the Trans-Pacific Partnership (TPP). Public Knowledge
attended the negotiation sessions to talk to negotiators and advocate for balanced
copyright policies that would benefit the public. Here is a recap of what PK
did and saw at the San Diego negotiations.

Stakeholder Events

The U.S., as host for this round of negotiations, organized
two events for public stakeholders to talk to negotiators and present
their perspectives at the beginning of the negotiation round. First, there was a
tabling event similar to the one held during the Dallas round of negotiations in May. Stakeholders could sign up for a table in hopes that negotiators
handling the issues they care about would stop by to discuss the stakeholders’
concerns.

The tabling event actually seemed more productive for Public
Knowledge in San Diego than it had in Dallas. Possibly this was in part due to
Public Knowledge’s past work at earlier negotiations rounds, so more
negotiators recognized our name this time and came over to talk. We heard that other
civil society groups had the opposite experience, though, so factors like the
location of the organization’s table (PK was closer to the front this time)
might have played a role, too.

The most disappointing aspect of the tabling event was that
the U.S. Trade Representative (USTR) scheduled it at the same time as the more
formal stakeholder presentations. It is good that the USTR provided both types of forums for stakeholders, but since the tabling and presentations were held simultaneously both stakeholders and negotiators had to
miss one in order to attend the other.

PK, for example, only had one representative attending the
negotiations, so when I was presenting on the economic benefit of limitations
and exceptions to copyright, I had to leave the PK stakeholder table unmanned. Even
worse, due an earlier scheduling mix-up the Electronic Frontier Foundation,
which was also presenting on copyright issues, was scheduled to present at the
same time as PK in another room that was generally dedicated to patent issues,
even though there was an empty presentation slot immediately after PK’s
presentation in the room with the rest of the copyright presenters. I heard from multiple negotiators that they wished they hadn’t had to split their staff between PK and EFF’s presentations.

Running the tabling event and formal presentations simultaneously also meant that individuals or non-profits with fewer resources weren’t able to leave the tabling event to hear each other’s presentations. This means that only the stakeholders with several staff attending the negotiations could afford to listen to, learn from, and respond to other stakeholders’ presentations.

These kind of administrative frustrations seem small and are
probably not due to any ill will or apathy on the USTR’s part, but they can
still have a big impact for civil society groups that have a very limited
opportunity to speak to a broad group of negotiators at once on issues that are
crucial to the future of innovation and cultural expression. Logistical details
can make a big difference, and they are worth getting right.

New U.S. Limitations and Exceptions Proposal

The big copyright news from this round was that the U.S. publicly
announced a new limitations and exceptions proposal consistent with, but apparently different from a
standard used in previous free trade agreements and treaties (called the
“three-step test”). The U.S. did not, however, release the text of this new
proposal for public review and discourse.

While including limitations and exceptions in the agreement
is a positive development, Public Knowledge remains concerned that the provision could be too limited or restrict countries’ ability to adopt
new legitimate limits and exceptions to copyright for the public’s benefit. Of
course, it’s extraordinarily difficult for PK or any other civil society group to provide meaningful
input without knowing what the U.S. proposal actually says.

At the End of the Day? Still No Text.

On transparency, the bottom line has not changed. The text of the TPP is still hidden from the public while hundreds of corporate interests have ample
access and influence. Even members of Congress are frustrated that the USTR won’t give them reasonable and convenient access for
them and the trade experts on their staff.

The stakeholder engagement events did have value, but they do not
and cannot replace an actual dialogue where the U.S. gives information to the public, in addition to receiving
information from the public.

The outcry against the secrecy surrounding the TPP
negotiations grows louder by the day and harms the U.S.’s credibility on other
important issues. The next round of negotiations will start September 6th
in Leesburg, VA. The U.S. should use the time it has before then to open a
dialogue, meaningfully engage with the public, and try to reclaim some
legitimacy for the TPP.