This Is Not Transparency: TPP Delegates Refuses To Reveal Text, Refuse To Discuss Leaked Text

from the massive-fail dept

The folks over at the EFF have a decent summary of the travesty that was the "stakeholder" events at the latest TPP negotiating round, in which various groups (on all sides) were supposedly given an "opportunity" to express their thoughts on the TPP. We've already discussed some other aspects of it, but the one thing that the EFF writeup makes clear, is that the whole thing is a complete joke. The text, of course, remains "secret," and negotiators flat out refuse to discuss any points raised about the various leaked texts:

The stakeholder engagement events in the morning were followed by a stakeholder briefing in the afternoon. The briefing allowed registered individuals from civil society and the public to ask questions of and make comments to eight out of the nine negotiators who represent a TPP country. The press was barred from the room. Roughly 25 people rose from the audience to ask questions to the trade delegates during the 90-minute briefing period. As predicted, they were not transparent about the talks, revealed little new information, and delegates also refused to make any comments based on leaked version of texts—the only text EFF and other public interest organizations have had access to. It is difficult for public stakeholders to ask accurate questions or receive any substantive answers when the content of the agreement continues to be shrouded in secrecy.

Rossini asked the USTR about its claims that the TPP’s intellectual property chapter will provide for fair use in its IP chapter, and how those public statements starkly contrast with the recent leaked TPP chapter that shows that the US delegation is in fact pushing for provisions that will restrict non-US countries from enacting fair use. Further, they neglected to comment on the fact that the leaked test has the potential to limit US fair use to the three-step test restrictions. In response, the lead negotiator for the USTR dodged the question and stated that they would not comment on issues raised by text EFF has “purportedly” received. The representative did acknowledge that fair use would be discussed during the week's meetings.

This is not "transparency," no matter how many times the USTR claims that they have "unprecedented" levels of transparency around the TPP negotiations. If negotiators won't share what they're even negotiating, and won't respond to any questions related to the actual text that's leaked, the only thing you can discuss are vague generalities not found in the leaked documents. That's insane. And because of that, the negotiators are focused on ridiculous ideas. For example, the EFF writeup notes that negotiators were asked how they could justify negotiating expansive copyright laws in secret after seeing what happened with SOPA and ACTA... and the response revealed just how out of touch the negotiators are. They don't even realize that the DMCA is controversial:

The last question of the briefing came from EFF’s International Intellectual Property Coordinator, Maira Sutton, who raised from the crowd and asked the lead negotiator how they justify pushing for ever more restrictive copyright laws in the agreement even though it has become clear, with the defeat of ACTA in Europe, that users are sick and tired of international agreements regulating their Internet through overprotective intellectual property provisions... In response, the lead negotiator for the US stated that the standard for copyright regulation in international agreements has been the US Digital Millennium Copyright Act (DMCA). They claimed that the DMCA was legislated fairly and is an effective model for copyright enforcement in the US. The representatives' answer contradicted the fact that EFF and others have been arguing for years that the DMCA is fraught with problems. Sutton responded that based upon what we saw in the recent leaked text on fair use, developing countries would not be able to implement such copyright laws as soundly given that the three-step test language restricts signatory nations from determining and establishing fair use as they see fit.

So, the end result is that we have a completely secret back-room process, where the USTR pretends to listen to the public, but won't talk to them about what's in the actual negotiations, and refuses to comment on the little we actually know is in the document thanks to leaks. And because of that, we have completely clueless negotiators pushing something they think is sensible, totally ignorant of the reality.

This could be solved pretty easily: make the US positions and negotiating documents public and allow public comment on them. The USTR still hasn't given a reason why this can't be done. Though, the answer seems kind of obvious: actually being transparent would mean having to listen to the public and various experts point out where they're completely clueless. If USTR negotiators are so insecure in their positions, they shouldn't be in that job.

Filed Under: negotiators, secrecy, tpp, transparency
Companies: eff

ACTA Negotiators Don't Seem To Know Or Care About What They're Negotiating

from the that-is-downright-scary dept

With the latest round of ACTA negotiations going on this week in Washington DC, following pressure from various public interest groups, a hasty lunch was organized that was apparently quite informal. Attendees from the event have been posting their notes, and there are a few interesting tidbits. James Love notes that US negotiators don't seem to realize or care that ACTA goes against US law, as they note that the US will just ignore the parts that don't mesh with current law. Other countries are probably out of luck though:

The U.S. negotiators at the ACTA meeting have, over the past year or so, been remarkably indifferent to the fact that the US positon in the negotiation runs counter to about a dozen U.S. statutes where remedicies are now limited by statute, contrary to the plain language of the ACTA text advanced by the U.S. government.

At the lunch meeting the U.S. negotiators explained the reason for this -- they said it was obvious that regardless of what the ACTA provisions say, the U.S. can ignore the provisions in cases where there are statutory exceptions. "It is not necessary to say that in the ACTA text" I was told. "It's obvious."

At the lunch there was discussion among the Australian, Japan, US and Singapore negotiators over this issue. Some delegates pointed out that the U.S. had spent a lot of time talking about the fact that this was an executive agreement, and therefore "could not" change U.S. law. Therefore, they argued, it was understood that ACTA would grandfather in any inconsistency between U.S. law and ACTA. People were not so sure how this worked for other countries in the negotiations -- including those where the ACTA provisions would clearly require changes in national laws, if taken seriously. Some delegates indicated that it was hard to understand what ACTA meant, at this point, given the many brackets in the text, and a lack of understanding about how the "general" and "high level" provisions of the ACTA would apply to a country's actual laws. Other delegates said the issue of exceptions to ACTA obligations, while important, had not really been addressed in the negotiations.

Yes, it appears we're negotiating an agreement where the US isn't too concerned with the fact that it goes against key points in US law because we'll just ignore the parts we don't like. But, you can bet that we'll put massive pressure on any other country that tries to do the same. And, when there's any discussion of improving US law, we'll be told we can't, because of our "international obligations" under ACTA.

As for that last point about how "it's hard to understand what ACTA meant" at this point, Michael Palmedo from American University sent over his notes from the meeting, which I've published below with permission. The key scary point in his notes was that the top European negotiator, Luc Devigne, doesn't seem to realize or care that this is supposed to be an "anti-counterfeiting" agreement, but insists it's an "intellectual property agreement." Perhaps they should rename it, then. Here was the key part:

Luc Devigne (Head EU Negotiator) is gung ho that patents will be in. He thinks that medicines have been addressed and therefore medicines are not an issue. He asked more than once how you could have an 'IP Enforcement' treaty and not include patents - and dismissed suggestions that ACTA was specifically an 'Anti-Counterfeiting' treaty rather than a broader enforcement treaty.

When you compare both of these points from Palmedo and Love, what you come up with are negotiators who are negotiating an agreement without much concern for what the agreement is supposed to be about or what it will actually do. That's downright scary.

Anyway, we've included Palmedo's full notes after the jump, so click on through if you want to read the differing views on patents, safeguards and key issues like access to medicine.

Filed Under: acta, copyright, intellectual property, negotiators