The scene last week at the Intercontinental Dallas Hotel looked like any generic corporate event held in any generic hotel ballroom—until the protesters crashed the party.
Trade officials from countries scattered around the Pacific Rim mingled in business attire. Ron Kirk, current US Trade Representative and former mayor of Dallas, welcomed everyone to the the latest round of negotiations for the Trans-Pacific Partnership (TPP). The crowd applauded, and Kirk stepped down, ready to continue with the festivities, when a man strode confidently to the podium and introduced himself as "Git Haversall," president of the "Texas Corporate Power Partnership."
"I would like to personally thank the negotiators for their relentless efforts," he said into the microphone. "The TPP agreement is shaping up to be a great way for us to maximize our profits regardless of whether the public of this nation, or any other nation, thinks it's right."
Haversall then held up a plaque labeled the "2012 Corporate Power Tool Award" and invited Kirk to receive it.
By this point, it had become clear that "Haversall" wasn't who he said he was, and security kept Kirk from returning to the stage. Indeed, Haversall was local puppeteer, David Goodwin, and the fake award had been the brainchild of the Yes Lab and Occupy Dallas, who were escorted from the hotel for their trouble. Not that this deterred them; the groups also managed to project a "TPP, Why So Secret?" message in light on the hotel's exterior, and they replaced hundreds of toilet paper rolls in the hotel with their own version.
The stunt was the latest example of popular discontent with US trade policy, which has increasingly become an instrument of copyright and patent law export.
TPP is a massive new free-trade style agreement that aims to provide “comprehensive market access,” “regulatory coherence,” and, most notably for the tech community, a commitment "to ensure an effective and balanced approach to intellectual property rights among the TPP countries.” The agreement is currently undergoing its latest round of negotiations between representatives of nine Pacific Rim countries: Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States. (Japan, Mexico, and Canada are trying to enter the negotiations as well.)
“I would say it’s ACTA-plus, not ACTA redux,” said Gwen Hinze, the Electronic Frontier Foundation’s (EFF) international IP director, in an interview with Ars. In other words, if you loved to hate Anti-Counterfeiting Trade Agreement (ACTA), then you may love to hate the Trans-Pacific Partnership Agreement (TPP) even more.
But it's hard to know. That's because, as with ACTA, negotiating texts for TPP have been kept secret; unlike ACTA, TPP leaks have been only sporadic. For now, the only version of the "intellectual property chapter" that the public has seen was leaked (PDF) over a year ago, and no drafts have appeared since. Negotiators are serious about the secrecy, too. As page one of that 2011 draft reads, “Declassify on: Four years from entry into force of the TPP agreement or, if no agreement enters into force, four years from the close of the negotiations.”
Consequently, every public interest group, academic, legal scholar, and other interested party readily acknowledges that their concerns with TPP are based on a document over a year old that may no longer be valid. So far, other than each national delegation, the only people who have been allowed to see the actual text of the proposed agreement are members of various Industry Trade Advisory Committees (ITAC). In the US, the group pertaining to intellectual property law is known as ITAC15; its members include top executives from AT&T, Verizon, the RIAA, the pharmaceutical lobby, and Cisco, but no one from academia or civil society.
Who’s in favor of the TPP? So far, the usual suspects: the Obama Administration, the Motion Picture Association of America (PDF), and the United States Chamber of Commerce, to name a few. Most declined to speak to Ars beyond their published statements.
“Intellectual property-intensive industries account for approximately one in every four American jobs, 60 percent of total US exports, and over one third of US GDP,” said David Hirschmann, president and CEO of the Global Intellectual Property Center at the US Chamber of Commerce, in a statement. “Pursuing high-standard, comprehensive, and commercially meaningful intellectual property obligations will not only benefit US interests but will also help bring investment, innovation, and jobs to all TPP economies.”
Critics aren't convinced. And while few want to spread their message through the medium of toilet paper, organized resistance to TPP and to the process under which it has developed has emerged in both academia and the world of public interest groups concerned about IP law and access to medicine issues. Here's why they're worried.
Scholars speak out
On May 9, 2012, 30 legal academics wrote a letter to USTR's Ron Kirk “to express our profound concern and disappointment at the lack of public participation, transparency, and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP).”
Kirk responded immediately, saying that he would provide a more detailed response later, but he wanted to make one thing clear right away:
“You may be surprised to know that USTR has conducted the most active outreach to all stakeholders relative to the TPP than in any [free trade agreement] previously, including the proposed disciplines on intellectual property,” Kirk wrote.
As the academics pointed out in their reply, this was setting the bar pretty low. “USTR’s consultation process consists of choosing with whom to share its international legislative proposals and leaving the rest of the country in the dark until the deal is done,” they wrote.
"We are dedicated to transparency, but sometimes what you put in a negotiating document is a negotiating position," said Ambassador Demetrios Marantis, the deputy US Trade Representative, in an interview with Ars. "It’s not necessarily what your actual position is. It’s in the judgment of the negotiators."
For the process to work well, negotiators argue they need to keep these negotiating positions private.
“I understand that many trade negotiations involve some amount of secrecy that can be difficult to do in public,” said Michael Geist, a law professor at the University of Ottawa and a signatory to the May 9 letter, when I spoke to him.
“But it seems to me that we’re incorporating stuff that hasn't been part of trade agreements until recently, and where there has been multilateral trade agreements there hasn't been more transparency. What you risk is a 'take it or leave it' approach.”
Beyond the process concerns around the fact that TPP has been negotiated essentially in secret for the last few years, the leaked IP chapter has given critics more substantive ammunition.
Among the most important are a lack of definition of fair use and public domain rights, extension of copyright to “life plus 70” (putting it in line with American law), treating temporary copies (such as in a cache or a video buffer on streaming sites) as copyrightable, and a ban on the circumvention of digital locks, among others.
Exporting enforcement
While American IP law remains imperfect, one of the things that it does well is attempt to maintain a balance between strong enforcement mechanisms while also allowing for robust fair use and the public domain. But in IP treaties, all that tends to get exported from the American model is the restrictions, not the exemptions.
Public domain, of course, is an important part of copyright law that allows for copyrighted works to pass to the rest of us once the copyright expires, which in the United States, is limited to life of the author plus 70 years. Fair use, meanwhile, is an equally important provision that allows for artists, journalists, academics, and just about anyone to use a non-substantial portion of copyrighted works for various transformative purposes. The leaked 38-page IP chapter focuses extensively on defining copyright measures and subsequent enforcement, but it contains no mention of the “public domain” or “fair use."
“The problem is not what’s in the agreement, but what’s not in the agreement,” long-time IP lawyer Jonathan Band told me.
“US copyright law in particular, and trademark law too, works largely because it’s balanced. It has strong rights to owners, strong enforcement, but also balances those with strong exceptions. So you end up with this balanced framework that allows users to make interesting uses of works but allows new creators to come along. Fair use is just one of a series of exceptions in our copyright law, but we also have things like first-sale doctrine which is the notion that once you buy, you are allow to re-sell it without infringing copyright—that’s what allows libraries to lend books.”
The TPP, at least in its current form, Band says, mentions none of these provisions.
“The problem with TPP is that it has a lot of detail about rights, details about enforcement, but nothing about limitations or exceptions,” Band added. “It says countries can have limitations and exceptions, but it doesn't say what they should be.”
Perhaps by now, some such language has been added. But without access to the latest drafts being discussed in the Dallas round, it’s impossible to know.
USTR says it is aware of the importance of such issues. "We know that many consumers and businesses rely on principles like fair use," wrote spokesperson Carol Guthrie in an e-mail to Ars.
"Negotiators are continuing to engage with stakeholders as these issues are negotiated, and representing that interest by working to ensure that the TPP provides flexibility, consistent with international norms, for governments to adopt exceptions and limitations like fair use, or similar concepts that achieve the goal of appropriate flexibility for users coupled with effective protection that preserves opportunities for normal exploitation of creative works."
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