Copyright Week: Transparency and the TPP

Transparency in government is a fundamental aspect of a democratic society. Citizens have the right to be informed and have access to information regarding political affairs and the laws and regulations that will impact them. Without access to information, the public is disadvantaged in its ability to make substantive commentary, challenge and influence public policy, or participate in the political process in a meaningful way.

For the past four years, the United States has been involved in secretive negotiations for a large, regional trade agreement known as the Trans-Pacific Partnership Agreement (TPP). Over the course of negotiations, the membership has grown and now includes twelve negotiating parties including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, covering a trading area that comprises forty-percent of the world’s GDP. Eventually, the agreement is intended to cover the entire APEC region.

The intellectual property chapter has been one of the most controversial chapters in the TPP. Over the course of the four-year negotiations, no government has officially released any of the negotiating text. The only reason that the public is aware of the proposals that have been drafted results from leaked text, primarily a March 2011 leak of the United States’ proposal for the chapter and a November 2013 leak of the consolidated intellectual property chapter which reflected each country’s negotiating position. The negotiations themselves take place behind closed doors and observers are not permitted. Although stakeholders are often permitted to make presentations, there is no guarantee that the relevant negotiators will attend such presentations. Further, it can be difficult to give meaningful presentations when the texts are kept secret. As ARL and other groups have noted previously with respect to the TPP and other agreements, transparency is key to the ability to comment on the negotiating text and “will ensure the forging of an agreement that does not unfairly prejudice any stakeholders.” With respect to the Free Trade Area of the Americas Agreement (FTAA), after the consolidated negotiating text was made public and comments invited, numerous library associations wrote positively regarding the open process for reviewing and commenting on the draft text.

The standards set in the TPP will create new global norms and it is important that those who will be affected by these standards have access to information about the agreement. Substantive and meaningful engagement can take place only with full knowledge and understanding of what provisions are at stake in the agreement. Without transparency, the negotiations lack legitimacy and represent a highly undemocratic process.

Unbalanced Access to Information

It should be noted that while the general public must rely on the possibility of leaks in order to gain substantive information about the agreement, hundreds of “cleared advisors” on the International Trade Advisory Committees (ITAC) have had access to the United States’ negotiating positions and texts throughout the process. ITAC-15, the committee on intellectual property rights, currently has seventeen members, all of whom represent corporate interests.

Not only is the general public kept in the dark, but there have also been reports that USTR has denied access to the text to Congressional staffers.

Members of Congress have criticized the secrecy of the agreement. Senator Sanders (I-VT), for example, in a December 1, 2011 letter to USTR concluded, “I firmly believe that the public has a right to monitor and express informed views on proposals of such magnitude as the TPP. While I recognize that some opportunity has been provided for the public to make presentations to delegates, I urge you to make the negotiating text of the TPP available to the public for review and comment. Without access to the actual texts being discussed, in my view the effective input and informed participation of the public is severely curtailed.”

After the November 2013 leak of the consolidated intellectual property chapter, Representative Zoe Lofgren (D-CA) criticized the copyright provisions, noting in a December 5, 2013 press statement that the agreement “is something that is backdooring, through a trade agreement, that which could not be obtained in Congress.” Numerous organizations and individuals have decried such “policy launderi