Yes, You Can Have An Open And Transparent Treaty Negotiation For Intellectual Property

from the proof-is-in-the-pudding dept

We had mentioned along with the news that the WIPO treaty for the blind had been signed in Marrakech that it proved that -- contrary to the claims of the USTR -- that you don't need to keep negotiations of an intellectual property treaty secret. Sean Flynn has now expanded on this to debunk the USTR's clearly untrue assertion.

The elements of WIPO’s transparency processes are varied. they start with ongoing releases of draft negotiating documents dating back to the beginning of the process.  ACTA was marked by releases of negotiating texts only through leaks, until the EU parliament demanded increased transparency – after which point negotiators released four public texts in the final 12 months. The TPP negotiators claim they will complete their treaty this October (which no one believes). There has not been a single public release of text, thus failing to live up to even the meager standard for public releases that defined ACTA. The leaked texts of TPP that we have show a secret agreement to keep the texts of the proposals being considered until four years AFTER the conclusion of the agreement. Thus, even subsequent interpreters of the TPP may be prevented from seeing its legislative history.

WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear (but not be physically present in) break rooms where negotiators were working on specific issues. ACTA was not subject to any observation of negotiating rooms by non-parties. TPP negotiators even rejected a request by a U.S. Congressman to observe a negotiation.

WIPO set up a system of open and transparent structured stakeholder input, including published reports and summaries of stakeholder working groups composed of commercial and non-commercial interests alike. ACTA was, and TPP is, informed by structured input from multinational corporations who receive secret drafts of texts and submit reports to the United States Trade Representative.  There are no consumer representatives among these advisers and none of their reports are public.

Transparency in WIPO continued through the final days of intense, often all night, negotiations in the final diplomatic conference. When negotiators reached a new breakthrough on the language concerning the controversial “3-step test” limiting uses of limitations and exceptions in national laws, that news was released to the public (enabling public news stories on it), along with the draft text of the agreement. There are now reports that a majority of the chapters of the TPP are concluded, and perhaps a majority of the articles in the IP section – but the public has no public text to see what those agreements might be.

The list goes on and on and the contrast is incredibly clear. The USTR is being misleading to downright dishonest in suggesting that it couldn't possibly have the same level of transparency in the negotiations around agreements like the TPP or ACTA (or the upcoming TAFTA).

Filed Under: acta, blind, closed, negotiations, open, tafta, tpp, trade agreements, treaties, treaty for the blind, ttip, wipo

Rep. Alan Grayson: I've Seen The Details And There Is No Reason To Keep TPP Secret

from the speak-up dept

Rep. Alan Grayson has apparently been allowed to see a copy of the latest text of the Trans Pacific Partnership (TPP) agreement, and he's mystified about why it's being negotiated in secret. As we've noted in the past, the USTR likes to claim how "transparent" they are because (1) they "listen" to whoever wants to talk and (2) they'll show things to Congress. Neither of those things are "transparency." Listening to people is great, but transparency is about information flowing in the other direction, from the government to the public. As for showing things to Congress, we've explained how that's not really accurate. Elected officials in Congress can see the text, but they have to go to the USTR, where they can look at the document, but they're not allowed to take notes, make copies or bring any staffers (such as experts on trade or any of the issues in the document) with them.

Grayson apparently took the USTR up on that offer, and he says there's no reason that the text should be secret.

Because of this pressure, the USTR finally let a member of Congress – little ole me, Alan Grayson – actually see the text of the Trans-Pacific Partnership (TPP). The TPP is a large, secret trade agreement that is being negotiated with many countries in East Asia and South America.

The TPP is nicknamed “NAFTA on steroids.” Now that I’ve read it, I can see why. I can’t tell you what’s in the agreement, because the U.S. Trade Representative calls it classified. But I can tell you two things about it.

1) There is no national security purpose in keeping this text secret.

2) This agreement hands the sovereignty of our country over to corporate interests.

3) What they can’t afford to tell the American public is that [the rest of this sentence is classified].

(Well, I did promise to tell you only two things about it.)

Of course, the USTR argues -- ridiculously -- that the reason they can't share it is not because of "national security," but basically some crap about how they've never negotiated in public and somehow no agreement could be reached if negotiations were made public. But that's hogwash. Lots of other agreements, including ones on similar topics are negotiated with the various negotiating texts made public. And, considering these governments are all representing the public, the idea that they can't represent their constituencies is ridiculous.

It's good to see that more people are realizing just how problematic the nature of the TPP is today, and questioning why the documents are secret.

Filed Under: alan grayson, national security, negotiations, secrecy, tpp, ustr

'Intellectual Property' Mess Holding Up The TPP

from the maybe-just-drop-it dept

As negotiators are seeking to finish up the Trans Pacific Partnership (TPP) agreement as soon as possible (they had originally promised a done deal by October), it appears that the controversial "intellectual property" chapter is causing the most problems, according to Sean Flynn, who is at the current negotiating round in Lima.

Officially, the Chief Negotiators have backed off the prior commitment to end the TPP negotiation by October, but are still clinging to a goal to end the negotiation by the “end of the year.” But privately, none of the negotiators or stakeholders at this round would express any confidence that the intellectual property issues could be resolved by then. The issues still under contention are massive.

The intellectual property chapter has grown to over 80 pages of text – including all the bracketed suggestions and alternatives. Some negotiators describe it as the longest text currently under negotiation.

Many of the issues are completely blocked. There has not been any new negotiation text offered on the most controversial pharmaceutical provisions since the Melbourne round over a year ago. There is currently no mandate from many countries to negotiate (they only “consult” and “discuss”) the pharmaceutical reimbursement chapter. Barbara Weisel described the pharmaceutical issues as being in a “period of reflection,” and had no comment on when that period might end.

Furthermore, it appears that some of the negotiators are realizing that it's a bad idea to lock in certain concepts, as would be set under the TPP, especially as various court rulings are changing the way copyright laws are viewed, and while a new copyright reform process is ongoing. People seem to be recognizing that agreeing to specific norms that may quickly be undermined by national laws would be a waste of time.

The recent spate of proposals for policy changes for US copyright law have caused a stir. The US is being asked how it can hold on to demands for parallel importation restrictions after the Kirtsaeng ruling, 70 year copyright terms after the Copyright Office proposed shifting them back to 50 years with formalities required for extensions, and strict restrictions on anti-circumvention liability exceptions when the Obama Administration and the Library of Congress have endorsed reforms that would violate the US proposal. Barbara Weisel stated that USTR is “doing what we can to work with Congress” to make sure that the TPP will not restrict policy options. But negotiators have said that there has been no visible movement on the USTR’s positions on Copyright issues, which will be negotiated this week.

And, of course, once again, the USTR appears to have no plans to be transparent in the slightest.

And there is no plan to release any text to the public. This is stark contrast to the last to plurilateral agreements including countries in the region. The Free Trade Area for the Americas and the Anti-Counterfeiting Trade Agreement both released full texts of the negotiating document with brackets indicating text under consideration before the finalization of the texts. For ACTA, there were four publicly released texts between April 2010 and May 2011. For the TPP – none yet, despite the Chief Negotiators’ pronouncement of end of year finalization plans.

Considering how much controversy there is over these items, it seems ridiculous that we still can't actually see what's being negotiated in our name -- especially when there's quite reasonable fears that it could mess with the democratic process of potentially rewriting copyright law.

Filed Under: copyright, intellectual property, negotiations, pharmaceuticals, tpp

Over 400 Groups, Representing 15 Million People, Demand 'New Direction' From USTR In TPP Negotiations

from the time-for-a-change dept

We were just talking about the insanity of the latest round of TPP negotiations happening under the continued cloak of secrecy. It appears that more and more people are beginning to question why this is allowed. A letter has been sent to Congress by over 400 groups representing over 15 million people demanding a "new direction" in the TPP negotiations. In particular, they say that the secrecy needs to go away and that the public needs to be able to comment on what is being negotiated in our name.

We find it troubling that, even as the Trans-Pacific Partnership (TPP) Free Trade Agreement enters its 16th major round of negotiations this March in Singapore, U.S. negotiators still refuse to inform the American public what they have been proposing in our names. Shielding not only proposals, but agreed-upon texts from public view until after negotiations have concluded and the pact is finalized is not consistent with democratic principles. In this regard, the TPP appears to be even less transparent than some past trade negotiations. For example, in 2001, the United States joined with 33 other countries in releasing draft text of the Free Trade Area of the Americans, and draft texts within the World Trade Organization are frequently made available.

In terms of specifics, the letter asks Congress to reject the "Fast Track" authority that the USTR has been requesting. Congress, technically, is supposed to be in charge of regulating commerce with foreign nations. The USTR is seeking fast track authority because, without it, these negotiations and the resulting agreement have no basis in law.

Instead, the letter argues that Congress needs to rein in the USTR, to require them to be more open and public, to actually consult with the public, and to make sure that Congress will review the final agreement to ensure it is in the public's interest, rather than in the interest of a few select "industry advisory committees" whom the USTR relies on. Frankly, the letter could have been a lot stronger, but I'm guessing it needed to be slightly watered down to get all those groups to sign. Still, this letter isn't just from "the usual" public interest groups who have been complaining about TPP all along, and suggests that if the USTR continues on this secretive path, there is likely to be strong opposition from the public. We've suggested in the past that the USTR's failure to recognize why ACTA failed in Europe may come back to haunt them with the TPP, and this letter is yet another warning sign. Unfortunately, given the USTR's past behavior, it's likely to be a warning sign that is, once again, ignored.

Filed Under: congress, negotiations, tpp, trade agreements, transparency, ustr

Copyright Maximalism Never Rests: TPP Talks Continue In Singapore

from the unfortunate dept

Despite growing protests and concerns about the next big US trade agreement (with Europe), the discussions on the Trans Pacific Partnership continue to move forward, with the latest round taking place in Singapore this week. And... once again, it's a story of near complete secrecy, and a total lack of transparency. Of key concern, of course, are the sections of the agreement on patents and copyrights, which the public has not seen. There was a leak from over two years ago, but nothing since then. The USTR and others say that they want the agreement completed by this fall, and it is a complete travesty that they have not been willing to share the details publicly. Negotiating a treaty in complete secrecy -- especially when the "input" on the IP chapter is driven by industry stakeholders, rather than the public -- means that the treaty almost certainly is going to be a disaster that is harmful to the public.

What's most amazing is that the USTR doesn't seem to recognize that the playing field has changed since the last time they did this. The rejection of SOPA, followed by the widespread rejection of ACTA (even if the USTR is in total denial about this) shows that the public is not at all willing to accept backroom deals that fundamentally expand bad patent and copyright policies around the globe and (worse) lock us in to things that the public does not believe are legitimate.

The USTR's continued insistence on secrecy, combined with the few leaks of information showing just how extreme a position they're setting out for themselves on patents and copyrights, suggests an organization so totally out of touch that it is destroying its own credibility. Any reasonable organization would recognize that the old backroom negotiations method of creating these kinds of deals is no longer acceptable. That the USTR refuses to admit this only increases awareness of just how out of touch the organization and its leadership remain.

Filed Under: copyright, ip, negotiations, patents, secrecy, singapore, tpp, transparency

WIPO Negotiations Over Changes To Copyright For Those With Disabilities Once Again Shrouded In Secrecy

from the shameful dept

We've talked about the latest efforts concerning a treaty for the blind and others with disabilities, which will carve out some rules to give them slightly more rights to ignore certain copyrights in order to allow them to access some works. The negotiations have been going on for years (decades, depending on who you talk to) and the copyright maximalists absolutely hate the idea. They see it as opening the barn door for others to rush through asking for copyright law to be scaled back for them as well. There have been numerous stall tactics used and, of course, lots and lots of secrecy.

Once again, secrecy seems to be the way business is being done, as Jamie Love explains how everyone had been barred from using social media to inform the public what's going on.

Today after a short plenary session, the informal negotiations were scheduled to begin behind closed doors again. But WIPO decided to permit NGOs attending the negotiations to follow a live audio of the discussions, subject to a ban on the use of the Internet and related social media to report on the negotiations.

The ban specifically singled out "twitter, blogs, news reports, and email lists" and extends to social media in general.

Love argued that Chatham House rules could be effective (in which you can talk about what was said, just not who said it). But, of course, the US said that was unacceptable. Because, of course, the US doesn't want anyone to know about its crazy arguments, even if they're not attached to the US itself.

But, really, the bigger problem is the threat of retaliation under this system for reporting on info discovered through other means. Love explains the problem:

I assume we will be permitted to report and comment in other ways that do not rely upon this audio feed, but people will be careful because there is now a threat to cut off that access if the the forbidden information starts showing up on the Internet, and it maybe difficult to persuade people that the audio feed was not the source. This means less information will be disseminated, including the reports from the relatively accessible negotiators, of which there are many who are willing to talk in the breaks. These bans on the use of social media are increasingly being sought by transparency averse negotiators, particularly when pursuing anti-consumer and anti-freedom policies.

It is simply unacceptable these days to hold such negotiations in complete secrecy. It is for reasons like this that people don't trust such organizations and think they're corrupt. Even if they're not corrupt and totally aboveboard, just doing these kinds of things in secret stirs up distrust for the government.

Filed Under: copyright, disabilities, exceptions, fair use, negotiations, secrecy, treaty for the blind, user rights, wipo

Negotiations Continue Over Extension Of Feds Ability To Spy On Americans; But No Debate On The Issues

from the of-course-not dept

With the end of the year approaching, Senator Ron Wyden has admitted that he's willing to drop the hold on the renewal for the FISA Amendments Act in exchange for allowing some key amendments to be voted on. As summarized by David Kravetz at Wired:

Wyden said he would lift his hold in exchange for a Senate floor vote on an amendment requiring the government to account for how many times Americans’ communications have been accepted, and another amendment prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.

If that doesn’t go over, he’d lift the hold so the Senate could vote on brief extension of the act so his amendments and others could be fully debated next year.

“I’m willing to go along with a short-term extension as long as we have a chance in the early future, in 2013, to have a debate,” Wyden said.

Of course, we've seen this before. Just last year we had a "short-term extension" on these things for the sake of debate, but the "debate" never came. Instead, everyone waits until now, when the rules are about to expire, and then demand that it be renewed, sans debate, or else "terrorism!" The whole process is really kind of unfortunate. There should have been a debate years ago, before the FISA Amendments Act was rushed into law. But, unfortunately, actually considering the implications of these laws -- and how they're used and interpreted -- just doesn't seem to be a major issue for Congress.

Filed Under: debate, fisa, fisa amendments act, hold, negotiations, ron wyden

US Denies That It's Ready To Dump The ITU Over Internet Regulations

from the get-a-backbone dept

Last week, we covered the key fight at the ITU's World Conference on Telecommunications (WCIT) and it was all over just one word: would any new international telecom regulations apply to "recognized operating agencies" or just "operating agencies." The difference may sound minor, but it could mean a world of difference. If it's just recognized operating agencies, then the rules are limited to giant national telcos. If it's all "operating agencies" then the rules could apply to, well, just about everyone who runs any kind of internet service. This is a huge difference. As the debate rages on -- and even as the worst proposal from Russia, China, Saudi Arabia and others is now off the table -- reports started circulating that the US had announced that it was prepared to walk away from WCIT entirely if there was continued movement towards significant changes in internet governance. That was seen as a pretty big threat, because a US rejection of the overall process might doom it from any sort of acceptance. However, in an emailed statement, US ambassador Terry Kramer is claiming that the reports that he's made such a threat are simply untrue (and not particularly helpful):

In the past few days, a small number of media reports have characterized the United States as “threatening” to withdraw from the WCIT negotiations. These speculative reports are inaccurate and unhelpful to the Conference. The United States has made no such threat, and it remains fully committed to achieving a successful conclusion to the WCIT.

To be honest, whether or not it's "helpful," it seems like it might actually be a lot more effective. As some are beginning to point out, almost everything about the ITU is a mess, and it's time that the US stood up and told it to stop messing where it doesn't belong. That article quotes former White House CTO Andrew McLaughlin describing why the ITU has no business regulating the internet.

"What is so bad about the ITU?" Mr. McLaughlin asked in a speech to the New America Foundation in Washington on Nov. 29. "It's just simple things like the nature, structure, culture, values and processes of the ITU. They are all inimical to a free and open Internet, and they are all inconsistent with the nature of the technical infrastructure that now characterizes our communications networks." Voting rules let repressive governments "engage in horse trading that has nothing to do with the technical merits of the decisions under consideration."

Indeed. So why are we even playing the game?

Filed Under: diplomacy, internet governance, itu, negotiations, terry kramer, wcit

Wyden Traps Feds In Their Own Words: ACTA Explanation Opens Up Big Hole In Cybersecurity Bill

from the which-is-it? dept

Back in March, when the US State Department responded to Ron Wyden's questions about the feds' authority to negotiate and sign onto ACTA without Congressional approval (damn you, Constitution), it made an odd (and rather new) claim: that Congress had actually already approved the executive branch's ability to negotiate and approve international agreements on intellectual property issues. The claim was that the ProIP Act (of 2008) said the newly appointed IP Czar should create a joint strategic plan which, among other things, helps identify how the administration can deal with IP enforcement issues by "working with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights."

Yes, because Congress said that the IP Czar should create a strategic plan in which the administration can work with other countries on IP enforcement, the administration now claims that Congress effectively abdicated its powers over international commerce on that issue, despite it never clearly stating that.

Given that strained interpretation, Wyden has noticed that the new cybersecurity bill that the Senate is considering could be broadly interpreted in the same manner to create all sorts of powers for the administration to ignore Congress in crafting international agreements concerning online security. He's now sent the State Department a letter asking for clarification. Here's the key part:

Do these provisions, or any others, in S. 3414 authorize the Executive Branch to enter into binding agreements with foreign governments for the purposes of establishing disciplines on cybersecurity? If so, under what circumstances would Congress need to consider such agreements and under what circumstances would you argue that Congress need not consider such agreements? If S. 3414 does not authorize the Executive Branch to enter into binding international agreements over cybersecurity without Congress' consideration of such an agreement, how do you square this view with your interpretation of the Pro IP Act of 2008?

In other words: Wyden is calling the State Department on its bullshit retroactive interpretation of Pro IP by noting that if they truly believe it, then the new cybersecurity bill would effectively mean Congress gives up its powers to have oversight on any international agreements about cybersecurity -- something the administration almost certainly does not want, since that would spark a debate that would likely hold up approval of the bill. The State Department, of course, wants it both ways. It wants to claim that the Pro IP gave the administration the power to ignore the Constitution with IP issues, but the same is not true of the cybersecurity bill. But that would involve ignoring that the same language is present in both bills.

I fully expect that the State Department will now seek to tapdance its way around this -- or (more likely) not answer until after the cybersecurity debate is over.

Filed Under: authority, cybersecurity, negotiations, pipa, ron wyden, sopa, treaties

Looks Like Canada & Mexico Will Be Blocked From Next Round Of TPP Negotiations As Well

from the why-do-people-put-up-with-this-crap? dept

Last month, we noted that the US had agreed (after resisting for a while due to Hollywood pressure) to let Canada and Mexico join the TPP negotiations, with significant restrictions on their ability to go back and debate previously agreed upon terms. Both countries agreed to sign on... but were then forced to sit out the recently concluded negotiating round in San Diego.

That should already be a concern, because now you have two countries who have agreed to sign on to an agreement, without the right to object to clauses already agreed upon... and then allowing a negotiating round to take part in which they can't participate. Basically, then, they're agreeing to accept whatever comes out of that negotiation without being able to have real input. That's pretty crazy for a sovereign nation.

And now it gets even worse.

As Michael Geist has discovered, Canada isn't just being blocked from the San Diego round, but from the next round as well, which will be held in September in Virginia. One has to assume that Mexico is in the same boat, as it's likely that both were given the same 90-day period in which they are excluded. I really can't fathom how either country could agree to such terms, or how the citizens of Mexico and Canada put up with such things. Their governments have bound them to an agreement over which they don't know what's being agreed to, which they have no say in what's being negotiated for two rounds, and which they cannot object to once it's finally let in the door.

Who agrees to such things?

Filed Under: canada, mexico, negotiations, tpp