New Zealand Government Trying To Streamroller TPP Through Ratification Without Proper Scrutiny Or Public Input

from the so-much-for-that-'don't-worry,-you-can-debate-it-when-it's-finished& dept

Back in February, we noted that the TPP has been officially signed, and that the focus now moves on to ratification by each of the 12 participating countries. On this score, there's been plenty of sound and fury in the US, including bizarre demands to re-negotiate TPP, but less coverage of what is happening elsewhere. As we noted, Canada's ratification has ground to a halt as the new government there launches "widespread consultations." Japan, too, won't be ratifying TPP for a while, for reasons explained by The Mainichi site:

The government and ruling Liberal Democratic Party (LDP)-Komeito coalition decided to put off attempting to ratify the treaty and enact related bills as they determined that a combination of opposition party resistance and the Kyushu earthquake disaster response leaves insufficient time to deliberate the legislation. The administration of Prime Minister Shinzo Abe is not planning to extend the current Diet session, which is scheduled to end on June 1. The government will instead carry the ratification and bills over to an extraordinary Diet session to be convened this autumn, to discuss them again in the House of Representatives for final approval and enactment.

The government in New Zealand, by contrast, seems to be doing everything in its power to ram through TPP as quickly as possible, with little time being given for that full public debate so frequently promised. Even the country's MPs are being stampeded, as Radio New Zealand News reports:

MPs have been given just five days to consider hundreds of submissions on the controversial TPP trade deal after the timeframe was drastically cut from four weeks.

The select committee was originally give a month to write its report and present it back to Parliament.

According to the news item, the committee was due to hear from hundreds of people who were keen finally to make their voices heard. But the government has apparently decided that it just doesn't care what the public thinks:

The tight deadline meant the [MPs'] draft report would be written before the committee had finished hearing all the submissions.

Apparently, the New Zealand government isn't interested in democracy, only timetables:

Opposition members on the committee say they were told yesterday the government wanted to cut down the time they had to analyse the submissions, so the legislation could get through by the end of the year.

Nor are MPs and the public the only ones being treated in a shabby way. So is the Waitangi Tribunal, which is an important commission charged with investigating and making recommendations on claims brought by the indigenous Māori people relating to actions by the New Zealand government. Because the select committee of MPs examining TPP will produce its report earlier than expected, the Waitangi Tribunal also finds itself with little time to consider the issue properly. An article on the Scoop site suggests that might be intentional:

"Why the government suddenly announced it is fast-tracking the report date for the select committee considering the Trans-Pacific Partnership Agreement (TPPA) from the end of May to 4 May is now clear.

It gives the Waitangi Tribunal three rather than seven weeks to produce its urgent report on the claim brought by prominent Maori that the Agreement violates the Crown's obligations under the Treaty of Waitangi", says Professor Jane Kelsey who has been advising the claimants.

What makes the situation even more worrying for New Zealanders is something Techdirt wrote about a couple of months ago: the fact that even if TPP fails, it seems that laws brought in to comply with the terms of the treaty would not be rolled back by the New Zealand government. That's an extremely good reason to take things slowly and carefully -- not to rush ahead recklessly as is currently happening.

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Filed Under: democracy, new zealand, public input, ratification, tpp

EU-Canada Trade Deal Still Struggling, As Romania And Belgium Say They Won't/Can't Ratify Treaty

from the it-ain't-over-yet dept

Alongside the better-known trade deals that aren't really trade deals, TPP and TAFTA/TTIP, the smaller one between the European Union and Canada, CETA, is still trapped in a strange kind of political limbo. It was "celebrated" way back in October 2014, and has been officially in the "legal scrubbing" phase where the text is tidied up and translated into all the relevant languages (lots of them for the EU). Cleverly, the EU has used this period to sneak in the "lipstick on a pig" version of corporate sovereignty in an attempt to head off revolts among EU nations worried about growing public resistance to the idea. But just when the European Commission thought it had everything nicely sewn up, this happens:

Romania will not ratify the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada which was concluded in 2014, as an angry reaction to the refusal by Ottawa to lift the visa requirement of its nationals, but also for the lack of EU solidarity for solving the issue.

As EurActiv explains, Romania is upset because Canada is requiring Romanian (and Bulgarian) citizens to obtain a visa before visiting Canada, whereas everyone else in the EU can get in without one. As a result:

A Romanian government official who asked not to be named said that Romania would "veto" the CETA ratification.

Normally the ratification of CETA should conclude by the end of 2016 or 2017. Romania however will not ratify the agreement, EurActiv was told.

If that were the only problem with ratifying CETA, it might be possible to resolve with some judicious arm-twisting by the European Commission. But it's not, because SputnikNews is reporting the following:

The government of the French-speaking Belgian region of Wallonia has refused to ratify the EU-Canada free trade agreement approved by the Belgian cabinet, the region's minister-president said.

Belgium may be a fairly small country, and Wallonia an even smaller part of it, but if the regional government doesn't agree, it would seem that Belgium can't ratify CETA, and without Belgium's OK, the whole CETA agreement might unravel. In truth, nobody really knows -- and that's why these unexpected developments are so worrying for the European Commission. It is uncharted legal territory for EU countries like Romania and Belgium to be unwilling or unable to ratify international trade agreements the Commission has negotiated. One thing is certain: CETA ain't over until it's really, absolutely, definitively over. Until then, grab the popcorn.

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Filed Under: belgium, canada, ceta, eu, international trade, ratification, romania, tpp, ttip

New Zealand Says Laws To Implement TPP Will Be Passed Now, Despite US Uncertainties, And Won't Be Rolled Back Even If TPP Fails

from the lose-lose dept

As Techdirt has noted, there is evidence from multiple sources that TPP will produce negligible economic benefits for most of the nations involved. Some governments are clearly well aware of this, because they are desperate to avoid an objective cost-benefit evaluation that would show that claims about TPP's value don't stack up. Even given that pig-headed determination to push the deal through, basic prudence would surely dictate that before making all the complex legislative changes required by TPP, countries should at least wait to see whether it's going to happen. Not in New Zealand, apparently, judging by this blog post by Kennedy Graham, a Member of Parliament for the Green party there:

Yesterday in Parliament I asked the Prime Minister if he is planning to change our laws to implement the Trans-Pacific Partnership Agreement (TPPA), even before it is clear if the US Congress will ratify it.

The Prime Minister said he was going to push ahead with changing our laws and wouldn't wait to see if the US was going to actually ratify the agreement.

If Congress doesn’t agree to the TPPA, or if the Japanese Parliament doesn’t, the whole deal falls apart. This is because the TPPA requires ratification by countries representing at least 85 percent of the total GDP, and that means the US and Japan have to be on board.

But as Graham points out, there's a problem with that:

We could find ourselves in a lose-lose situation where we've changed our laws to suit the TPPA, but the TPPA itself never comes into force so the tariffs and other trade barriers don't disappear for our exporters.

So then I asked, if the TPPA becomes null and void because the US Congress dumps it, will New Zealand reverse the changes to our laws that we’ll have already made?

The Prime Minister's answer was no. The Government won't delay introducing and passing legislation to ratify the TPPA, and then won't reverse the laws if it doesn’t go ahead.

As the video below indicates, when John Key, the Prime Minister of New Zealand, was challenged by Graham on this point, Key replied with barely-disguised contempt:

If the United States doesn't ratify the legislation, it's null and void with the United States, in which case we don't have anything to worry about.

But that doesn't really address the question. Yes, TPP will be null and void, but what about the domestic legislation that New Zealand will already have passed at that point? Here are some of things that will have happened:

Changing the length of copyright from 50 years to 70 years, with an annual cost of around [NZ]$55 million. We'll also need to establish new enforcement powers for Customs, and new civil and criminal penalties for copyright infringement.

Changes to the Patents Act, which are likely to complicate Pharmac’s access to cheaper medicines.

Changing the Plant Varieties Act, making it harder for farmers to save seeds for use in the following season, and the Agricultural Compounds and Veterinary Medicines Act to strengthen the rights of agricultural chemical manufacturers.

Maybe those changes would be automatically reversed if TPP fails, but Key did not say that in his answer, when he could have done so in order to dispel any doubts. The fact that New Zealand is one of the countries that will not be carrying out an independent cost-benefit analysis of the trade deal does not inspire confidence. As Graham points out, it seems that there is a very real risk that people in New Zealand will end up with most of the disadvantages of TPP, but with none of the advantages, which were slim enough to start with.

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Filed Under: copyright, john key, kennedy graham, legislation, new zealand, politics, ratification, tpp

Years Later, White House Sends Two Copyright Treaties To Senate For Ratification: One Good, One Bad

from the let's-see-how-this-goes dept

It's not clear why it's taken this long, but late Wednesday, the White House sent two WIPO treaties over to the Senate for ratification: The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled -- usually just called "The Marrakesh Treaty" or "The Marrakesh Treaty for the Blind" -- and the Beijing Treaty on Audiovisual Performances, usually just called "The Beijing Treaty." The Beijing Treaty was completed in 2012. The Marrakesh Treaty in 2013. It's not clear why it took the White House until 2016 to move on them, but such is life.

We covered both treaties while they were being negotiated. The Marrakesh Treaty is a good one -- creating a system that carves out a place in copyright laws to make it easier for the blind and visually impaired to be able to get access to books that they might not otherwise be able to access due to copyright laws. For absolutely insane reasons, this treaty, which should have been an easy one for everyone to get behind, took basically forever. The big problem? Big copyright legacy players, such as the MPAA, are scared to death of anything that moves copyright in a direction away from more control by copyright holders. They literally flipped out at the idea of any movement towards making copyright work for the public, even blind people, so that they put on a full court lobbying press that almost worked. Thankfully, it did not. Now, we'll see if they're able to do the same and block the Senate from ratifying it. But, seriously, voting against the Marrakesh Treaty is basically spitting in the face of the blind. The MPAA has done some shameful stuff for many years, but if they block this, it'll be a new low.

On the flip side, there's the awful, stupid and unnecessary Beijing Treaty. This one creates an entirely new form of intellectual property, a sort of special copyright for performers. Remember that awful 9th Circuit ruling saying an actress had a copyright interest in her performance in a movie -- the one that later (thankfully) got overturned? Part of Judge Kozinski's reasoning in his decision was the Beijing Treaty -- which, obviously, hadn't even been ratified yet. Kozinski pointing to the Beijing Treaty was ridiculous for a whole variety of reasons, but with the White House now supporting ratification, things may get even more ridiculous.

Under this treaty, Hollywood, and Hollywood actors in particular, will likely be getting their very own form of copyright, which almost certainly means that ratifying the treaty will lead to new copyright laws that are even more restrictive. It will allow performers to deny the ability to make use of any sort of performance they were in, even if they don't (as they usually don't) hold a copyright in that work. It also expands certain definitions in ways that are incompatible with US copyright law, including an explicit "making available" right (something Hollywood has wanted for ages) and broadening the concept of "moral rights" for actors. While many other countries recognize moral rights (which let copyright holders deny uses they disagree with), the US has rejected them in all but a few limited areas (mainly visual artists). And, finally, the agreement includes anti-circumvention provisions, basically expanding that already ridiculously problematic concept, so that someone breaking DRM in a way that violates someone's "performance rights," even if for otherwise legal purposes, such as commentary and criticism, may be breaking the law.

You may be wondering why Hollywood is such a big supporter of this, since it actually will hand more monopoly rights to performers -- people Hollywood has a history of screwing over. Well, it's because the agreement does allow (of course it does!) the transfer of such rights from performers to producers. So, guess what will go into every Hollywood movie and TV contract? The performers will fork over their rights, and the big Hollywood studios will end up with yet another form of monopoly control to silence people. And, with it will come all these neat little presents that Hollywood has always wanted in regular copyright law, that it might now be able to force through via the ratification of this treaty.

Both of these agreements are big deals -- but in different ways. I'm guessing the reason they're moving forward together is that it's something of a tradeoff for the MPAA. They "allow" the blind to get a few more rights, while secretly chuckling all the way to the bank as they get a massive expansion in copyright via the audiovisual treaty. Hopefully, there will actually be a big public discussion about both of these, and the Senate realizes that the Marrakesh Treaty is necessary, while the Beijing Treaty is dangerous and should not be supported.

Filed Under: beijing treaty, blind, copyright, fair use, marrakesh treaty, performers rights, ratification, senate, treaties, white house, wipo
Companies: mpaa

Countries Sign The TPP... Whatever Happened To The 'Debate' We Were Promised Before Signing?

from the now-the-ratification-fight dept

About an hour ago, representatives from 12 different nations officially signed the Trans Pacific Partnership (TTP) agreement in Auckland, New Zealand. The date, February 4th (New Zealand time) is noteworthy, because it's 90 days after the official text was released. There was a 90 day clock that was required between releasing the text and before the US could actually sign onto the agreement. The stated purpose of this 90 day clock was in order to allow "debate" about the agreement. Remember, the entire agreement was negotiated in secret, with US officials treating the text of the document as if it were a national security secret (unless you were an industry lobbyist, of course). So as a nod to pretend "transparency" there was a promise that nothing would be signed for 90 days after the text was actually released.

So... uh... what happened to that "debate"? It didn't happen at all. The TPP was barely mentioned at all by the administration in the last 90 days. Even during the State of the Union, Obama breezed past the TPP with a quick comment, even though it's supposedly a defining part of his "legacy." But there's been no debate. Because there was never any intent for an actual debate. The 90 day clock was just something that was put into the process so that the USTR and the White House could pretend that there was more "transparency" and that they wouldn't sign the agreement until after it had been looked at and understood by the public.

Of course, the signing is a totally meaningless bit of theater. The real fight is over ratification. The various countries need to ratify the TPP for the agreement to go into effect. Technically, the TPP will enter into force 60 days after all signers ratify it... or, if that doesn't happen, within two years if at least six of the 12 participant countries ratify it and those six countries account for 85% of the combined gross domestic product of the 12 countries. Got that? In short, this means that if the US doesn't ratify it, the TPP is effectively dead. The US needs a majority of both houses of Congress to approve it, similar to a typical bill. And that's no sure thing right now. Unfortunately, that's mainly because a group of our elected officials are upset that the TPP doesn't go far enough in helping big businesses block competition, but it's still worth following.

Inevitably, there will be some debate during the ratification process, though there are enough rumors suggesting that no one really wants to do it until after the Presidential election, because people running for President don't want to reveal that they're happy to sell out the public's interest to support a legacy business lobbyist agenda. But, even that debate will likely be fairly limited and almost certainly will avoid the real issues, and real problems, with the TPP.

Either way, today's symbolic signing should really be an exclamation point on the near total lack of transparency and debate in this process. The 90 day window was a perfect opportunity to have an actual discussion about what's in the TPP and why there are problems with it, but the administration showed absolutely no interest in doing so. And why should it? It already got the deal it wanted behind closed doors. But, at least it can pretend it used these 90 days to be "transparent."

Filed Under: aukland, debate, new zealand, ratification, signing, tpp, transparency, ustr

TPP Ratification Process Grinding To A Halt As Canada Launches 'Widespread Consultations' On The Deal

from the vicious-circle dept

As we noted recently, the arrival of a new government in Canada has meant that the corporate sovereignty provisions in CETA, the Comprehensive Economic and Trade Agreement between Canada and the EU, might be re-examined, even if they are unlikely to be dropped completely. The other major trade deal involving Canada, TPP, is much more complex, since there are 11 other nations to consider. Although that limits the Candian government's scope for changing course, it appears that it is nonetheless taking a radically different approach compared to its predecessor. Where Stephen Harper's government was unwilling to involve the public in any way, Justin Trudeau's team seems willing at least to ask for their views:

The Liberal government, under pressure from labour unions fretting about what they fear will be big job losses once TPP comes into effect, have launched widespread consultations on the deal. This could take considerable time, said the government, which strongly advocates the idea of free trade.

As that paragraph from an article in The Globe and Mail makes clear, the Canadian government is still keen on TPP, and aims to pass it, but it does seem that the process is going to take far longer than originally envisaged. According to The Globe and Mail, Canada aims to sign soon, but not ratify it -- the final part of the process. That's in part because it's not at all clear when the US will get around to its own ratification. Doubts about the US timetable have increased after The Washington Post published the following:

Senate Majority Leader Mitch McConnell (R-Ky.) dealt a significant blow to President Obama's global trade agenda Thursday, declaring that a sweeping pact with 11 Pacific Rim nations should not be sent to Congress for approval until after the 2016 elections -- and maybe not until after Obama leaves office.

McConnell, who previously supported efforts to enhance Obama's trade negotiating powers, signaled that he was undecided on how he would vote on the deal, but he was clear that the Trans-Pacific Partnership (TPP) would be defeated if it were sent to Capitol Hill next spring or summer, as the administration was planning to do.

That uncertainty is unnerving other TPP nations, as The Globe and Mail notes:

"Why would you expend any political capital on ratification if the whole process isn't going anywhere?" said an official from a third TPP nation.

One consequence of the other TPP parties not ratifying the agreement quickly is that it makes it even harder to pass the agreement in the US -- a classic vicious circle:

“It would certainly be helpful if other nations moved to ratify,” said a U.S. official familiar with the matter.

That's clearly not going to happen anytime soon in Canada, as the government there makes good on its promise to consult the public on the deal. TPP may be done, but it's by no means dusted.

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Filed Under: canada, justin trudeau, ratification, tpp, us

European Commission's Clever Ruse To Introduce Corporate Sovereignty Regardless Of Ratification Votes In EU

from the whatever-happened-to-democracy? dept

Because of the complicated nature of power-sharing in the European Union, some international agreements require the approval of both the European Parliament and of every Member State -- so-called "mixed agreements." It is generally accepted that both the Canada-EU trade agreement (CETA) and TAFTA/TTIP are mixed agreements, and will therefore require a double ratification: by the full European Parliament, and all the EU governments. Indeed, the European Commission has frequently cited this fact to bolster its assertion that both CETA and TAFTA/TTIP are being negotiated democratically, since the European public -- through their representatives -- will have their say in these final votes.

But a disturbing analysis published by Greenpeace on its Austrian pages (original in German), suggests that built into the CETA agreement, which is currently going through a "legal scrub" before being presented for ratification (pdf), are a couple of sections that will allow the European Commission to introduce the corporate sovereignty provisions anyway. According to Article X.06 3(a):

This Agreement shall be provisionally applied from the first day of the month following the date on which the parties have notified each other that their respective relevant procedures have been completed.

This means that CETA would enter into force provisionally as soon as the European Commission and the Canadian government have notified each other that "relevant procedures have been completed." There's no explicit requirement there for those "relevant procedures" to include ratification by the European Parliament or the EU Member States: the European Commission might claim that the "relevant procedures" simply meant things like the legal scrub. One of the provisions of CETA is a deeply-problematic corporate sovereignty chapter, so this too would enter into force at this point, regardless of what national governments might want.

Now suppose that the European Parliament, or one of those Member States, does not ratify CETA, perhaps because of the investor-state dispute settlement (ISDS) mechanism, in which case the entire agreement would fail. But here's what Article X.07 4 says happens in this case:

If the provisional application of this Agreement is terminated and it does not enter into force, a claim may be submitted pursuant to the provisions of this Agreement, regarding any matter arising during the period of the provisional application of this Agreement, pursuant to the rules and procedures established in this Agreement, and provided no more than three (3) years have elapsed since the date of termination of the provisional application.

In other words, even if CETA is rejected in Europe, thus causing the provisional application to be terminated, claims under the ISDS chapter would still be possible up to three years afterwards for investments made during the provisional period. This is no mere theoretical possibility: it is exactly what happened to Russia with the Energy Charter Treaty, which it never ratified, but where an ISDS tribunal made an award of $50 billion against the country because of the treaty's provisional application. What's even more troubling is that the European Commission proposes to add similar clauses to TAFTA/TTIP, as the Greenpeace article notes:

A representative of the European Commission at a press briefing session in Vienna on Tuesday confirmed to Greenpeace that the Commission intends to propose a "provisional application" for TTIP too.

This would be even worse than putting such sections in CETA, because ISDS in TAFTA/TTIP will apply retrospectively to all existing investments, as the negotiating mandate specifies (pdf):

The investment protection chapter of the Agreement should cover a broad range of investors and their investments, intellectual property rights included, whether the investment is made before or after the entry into force of the Agreement.

This would allow corporate sovereignty provisions applying to huge numbers of existing investments to enter into force and remain there for some years even if TTIP were rejected by the European Parliament or one of the national governments. So much for the European Commission's much-vaunted "democracy" -- and another compelling reason to take the ISDS chapter out of both CETA and TAFTA/TTIP.

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Filed Under: ceta, corporate sovereignty, eu commission, eu parliament, isds, ratification, tafta, trade agreements, ttip

Marrakech Treaty For The Blind Signed; MPAA Unable To Kill It

from the could-it-be? dept

It took decades to get this done, but it appears that a copyright treaty for the blind has been signed in Marrakech, and despite a full court press from the MPAA to further water down the agreement, it appears the final version is closer to what the various public interest and blind groups wanted. Apparently, US and EU negotiators were not thrilled with the outcome, but couldn't fight it any more. The full text hasn't been released yet, but from all the commentary out of Marrakech, it sounds like the MPAA failed to poison this treaty. I'm sure we'll have more on this later, but two things to discuss out of this:

1. Contrary to the claims of the USTR about how it would be crazy to negotiate agreements like ACTA, TPP or TAFTA with openness on the drafts being considered, this agreement was negotiated with transparency and (mostly) openness. Once again, we see that the USTR is full of it with its lack of transparency.
2. There is still a ratification question. Expect the MPAA efforts to now shift to blocking the US from actually ratifying the treaty, which is rather important, since the key part of the treaty is letting creative works for the blind enter into various countries, but most of the books would likely originate from the US....

Filed Under: blind, copyright, fair use, marrakech, ratification, three step
Companies: mpaa

New Petition Asks White House To Submit ACTA To The Senate For Ratification

from the as-required-under-the-constitution dept

As we noted in our post about people just discovering ACTA this week, some had put together an odd White House petition, asking the White House to "end ACTA." The oddity was over the fact that the President just signed ACTA a few months ago. What struck us as a more interesting question was the serious constitutional questions of whether or not Obama is even allowed to sign ACTA.

In case you haven't been following this or don't spend your life dealing in Constitutional minutiae, the debate is over the nature of the agreement. A treaty between the US and other nations requires Senate approval. However, there's a "simpler" form of an international agreement, known as an "executive agreement," which allows the President to sign the agreement without getting approval. In theory, this also limits the ability of the agreement to bind Congress. In practice... however, international agreements are international agreements. Some legal scholars have suggested that the only real difference between a treaty and an executive agreement is the fact that... the president calls any treaty an "executive agreement" if he's unsure if the Senate would approve it. In other words, the difference is basically in how the President presents it.

That said, even if Obama has declared ACTA an executive agreement (while those in Europe insist that it's a binding treaty), there is a very real Constitutional question here: can it actually be an executive agreement? The law is clear that the only things that can be covered by executive agreements are things that involve items that are solely under the President's mandate. That is, you can't sign an executive agreement that impacts the things Congress has control over. But here's the thing: intellectual property, in Article 1, Section 8 of the Constitution, is an issue given to Congress, not the President. Thus, there's a pretty strong argument that the president legally cannot sign any intellectual property agreements as an executive agreement and, instead, must submit them to the Senate.

This is why Senator Wyden has asked the President to explain why Congress has been cut out. Scholars have noted their concern that if allowed, this will open the door to allowing the president to regularly route around Congress on international agreements. Even more amusing, Vice President Joe Biden, back when he was just Senator Joe Biden, was one of the most outspoken critics of an attempt by President Bush to use an executive agreement on a weapons treaty -- forcing Bush to take the agreement to the Senate. Yet here, he stays quiet.

Either way, it looks like folks have figured this out, and there's now a new White House petition, demanding that ACTA be brought to the Senate before it can be ratified/signed by the US. This petition should be a lot more interesting than the other one if it gets enough signatures (so encourage people to sign, please!).

Filed Under: acta, constitution, executive agreement, petition, ratification, treaty, white house