A recently leaked document revealed details about the Trans-Pacific Partnership, a secret trade agreement being negotiated between 12 Asia-Pacific countries which includes measures that could affect the protection and enforcement of intellectual property rights.
The countries in negotiation include the US, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. Notably, China is excluded.
WikiLeaks published a leaked draft of a chapter of the TPP in November, providing the public a glimpse into a trade agreement that could have a wide range of IP implications for medicine, publishers, internet services, civil liberties and biological patents.
It’s very difficult to draw any conclusions based on the draft of the treaty, which merely shows what measures are being proposed, and which countries agree or oppose them. Many of the measures described resemble those found in the defeated acts SOPA and PIPA, which drew strong criticism from many of those in the internet community. Still, it’s unclear what stage the TPP negotiations were at when the chapter was leaked – only that it was not final.
What has drawn criticism from experts has been the procedure, which lacks some of the oversights afforded to not only domestic legislation, but also trade agreements.
“What I think is the difference between the TPP from other treaties, just from the US perspective, is the sheer amount of secrecy that has surrounded the TPP,” says internet lawyer David Snead, who is a co-founder of industry group i2Coalition. “Typically, treaties are negotiated in secret… but every country invites a lot of industry participation.”
There’s concern, Snead says, that the US government hadn’t sought out the opinions of industry stakeholders as thoroughly as in other treaty negotiations, but also that members of congress and their staff have not been given access to the treaty in the same fashion they would have in the past.
He points out that IP is just one of the very large number of trade issues that are part of the TPP which stakeholders may not have enough input. “There’s real concern that not just in the US, but in every country negotiating the TPP, the stakeholders who might be adversely affected by provisions in the TPP haven’t been asked how those provisions might affect them.”
In the technology sector, for instance, the interests of those supplying long-haul connectivity, to consumer hosting providers, to online media startups, and any number of other industry all have specific desires when it comes to IP law. “There’s concern that the negotiators have relied on the input of a small number of the entities assuming that they speak for the entire tech industry,” Snead says.
Copyright and patent law have a constitutional basis in the US, according to Dan Garon, a consultant in the hosting services industry who has been following IP law issues for several years. He says the major issue in copyright law has been striking a balance between protecting the rights of creators and publishers and those of the public in a way that promotes and incentivizes the creation of works.
“How can we make sure that we’re always properly balancing protections that might be in the public interest and exclusive rights that are in the private, economic interest?” says Garon. “We’ve been struggling with that since 1790.”
Rather than the balance be made through secret negotiation with the limited input from stakeholders and then be fast-tracked by the Senate, Garon argues that the regular US legislative process is the best way available to find this balance.
Potentially significant changes to domestic copyright and patent law, he says, “should come about as they are supposed to – by proposing a bill in each chamber, having it debated, having it go to a conference committee, [and] having town hall meetings where you have a congressman getting yelled at on national television.” The extent to which the TPP will modify domestic law is not clear.
This process has seen the defeat of acts that would introduce changes to copyright law such as SOPA and PIPA. Many tech companies, whose business models would not be possible under SOPA and PIPA, drew attention to the aspects of these laws that arguably place the rights of copyright holders over those of consumers.
Contrary to SOPA and PIPA which were relatively open to scrutiny, the secrecy around the TPP makes it difficult for the public and industry to make conclusions around the measures proposed because they’re unclear. In fact, it has likely damaged public opinion towards the TPP.
In order to reestablish trust, Snead says, “negotiators need to go back to the industry and say, ‘Here is a summary of what is being negotiated; tell us how this might affect you.’ The way it’s working now is industry has to say, ‘We saw this leaked draft; we hate it!’ That’s not the way the process is supposed to work.”
He says, “Negotiators need to go to their constituents and ask for input, and not say to their stakeholders, ‘Trust us’, because it’s clear that the stakeholders don’t trust them.”