EU-Canada Trade Agreement 'Celebrated', Text Officially Released; Even Worse Than Feared

from the handy-little-blueprint-for-TAFTA/TTIP dept

Techdirt has been covering the "Comprehensive Economic and Trade Agreement" (CETA) between the EU and Canada for a while now. Or rather, trying to, given the obsessive secrecy that has surrounded the negotiations, just as it does for TAFTA/TTIP and TPP. However, the agreement's text has now been officially released (pdf) -- on the day that those negotiating it declared it finished. This means that at precisely the moment when the people most impacted get to see what has been agreed to in their name, there is no point in expressing their views, since nothing can be changed. This is the shabby trick that governments routinely pull for these kinds of deals: the public is promised that it will have its say once the final text is available, but when that moment comes, people are informed that obviously no changes can be made since it has already been finalized.

However, in CETA's case, it's not quite so simple. During the ceremony marking the end of the negotiations, the leaders of Canada and the EU declared:

Today marks a truly historic moment in the evolution of the Canada-EU relationship as we celebrate the end of negotiations of the Canada-EU Trade Agreement.

Not "sign", but "celebrate". That's because Germany is threatening to withhold its support for CETA, as reported here by The Star:

New doubts about the fate of Canada’s long-sought free-trade deal with the European Union have cast a shadow over a meeting Friday where Prime Minister Stephen Harper and senior EU officials were to celebrate the completion of five years of negotiations.

A day before the Canada-EU summit in Ottawa, Germany signalled it won’t approve the landmark trade pact in its current form because of objections to the investor-protection measures included in the Comprehensive Economic and Trade Agreement (CETA).

It turns out that CETA contains many other deeply worrying aspects. That's doubtless why the negotiators were so keen to keep the text secret, but now that we have it, detailed analyses are coming through. The first in-depth look at what's lurking among CETA's 1500 pages comes from the Canadian Centre for Policy Alternatives (CCPA), which has produced a document called "Making Sense of the CETA: An analysis of the final text of the Canada–European Union Comprehensive Economic and Trade Agreement". Even that runs to over a hundred pages; what follows are some of the key points that it highlights.

Significantly, CCPA's analysis begins with the most contentious aspect of CETA, the investor-state dispute settlement (ISDS) chapter. It's crucially important not just because Germany is refusing to accept it, but also because it is likely to form the basis of a similar chapter in TAFTA/TTIP -- the European Commission included a draft version of the chapter as part of its public consultation on corporate sovereignty, offering it as a blueprint. One of the European Commission's repeated claims is that it will "fix" ISDS by making it clear that governments always retain the right to regulate, and that corporate sovereignty does not overrule that right. But CCPA's analysis shows why that is not true in CETA, despite similar claims there:

The 'right to regulate' is mentioned three times in the agreement. In the preamble, the parties simply 'recognize' that the CETA protects the right to regulate ("RECOGNIZING that the provisions of this Agreement preserve the right to regulate..."), yet the text fails to clearly and unequivocally confirm this right, especially in the investment chapter. The other mentions are to be found in the labour and environment chapters, so that, in effect, the CETA shields the right to regulate from any international obligations to protect labour or the environment but not from all the detailed obligations in the investment chapter. Also in the environment chapter, the right to regulate is limited by formulations which require environmental policies to be implemented “in a manner consistent with the multilateral environmental agreements to which they are a party and with this Agreement,” meaning that environmental policies have to be consistent with the CETA -- not the other way round.

CETA also includes a definition of "investor" that will make it easy for US companies to sue the EU using CETA and "treaty shopping", just as Philip Morris is suing Australia via its Hong Kong subsidiary:

For the purposes of this definition an 'enterprise of a Party' is: (a) an enterprise that is constituted or organised under the laws of that Party and has substantial business activities in the territory of that Party”). The reference to 'substantial business activities' is not enough to prevent 'treaty shopping.' For example, U.S. investors in Canada would be able to use the CETA investment provisions and ISDS to challenge European state measures.

One major surprise is found in the chapter covering regulation. Like ISDS, this is already a hot issue for TAFTA/TTIP, where many fear that national sovereignty will be sacrificed to the corporate kind. CETA shows another way in which this can happen -- and which is likely to be adopted in TAFTA/TTIP as well:

Parties to the agreement have to ensure that the licensing and qualification requirements and procedures are based on particular criteria to preclude regulators from acting in “an arbitrary manner” (Article 2.1). Specifically, covered regulations will have to be: “a) clear and transparent; b) objective; c) established in advance and made publicly accessible” (Article 2.2).

Parties have to ensure “that licensing and qualification procedures are as simple as possible and do not unduly complicate or delay the supply of a service or the pursuit of any other economic activity” (emphasis added) (Article 2.7). Making licensing procedures "as simple as possible" sets an absolute value on the ease with which corporations can get their projects approved to the detriment of all other considerations.

The CCPA report explains how this new requirement could have a major impact on regulation:

If a dispute panel interpreted "objective" to mean "not subjective," regulations could be overturned if they are based on the regulator's necessarily subjective balancing of different factors such as public input, the scenic impacts of a development and environmental considerations.

For example:

Dispute panels could determine that public input, environmental assessments and archaeological studies do not constitute a process that is "as simple as possible."

CETA also provides some hints about the shadowy Regulatory Council that TAFTA/TTIP is likely to set up in order to ensure the convergence of future US and EU regulations. The danger here is that such a council will effectively vet or change new regulations before they are made public, and allow corporations with privileged access to government sources to prepare their lobbying well in advance. Indeed, that's exactly how CETA's "Regulatory Co-operation Forum" will work:

Parties will endeavor to share "proposed technical or sanitary and phytosanitary regulations that may have an impact on trade with the other Party at as early a stage as possible so that comments and proposals for amendments may be taken into account." This means that information on future legislation could be shared with the other Party even before it has been shared with their Parliaments. If that were the case, the other Party could make amendments and comments before the country's own parliament got their hands on the draft legislation.

These are just a few of the awful things that are starting to crawl out of the CETA text now that it has been exposed to some sunlight. CCPA's excellent analysis is grim but required reading, not just in order to understand what is in CETA, but also as a taster for some of the bad stuff that is likely to turn up in TAFTA/TTIP too.

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Filed Under: canada, ceta, corporate sovereignty, europe, isds, trade agreement

Why The European Commission's Consultation On Corporate Sovereignty Is A Sham (And How To Respond To It Anyway)

from the make-your-voice-heard dept

One measure of the resistance to the inclusion of corporate sovereignty provisions in TAFTA/TTIP is that the European Commission unexpectedly announced that it would be holding a three-month public consultation on this aspect in an attempt to defuse public anger. Here's the consultation's home page:

The European Commission is consulting the public in the EU on a possible approach to investment protection and ISDS in the TTIP. The proposed approach contains a series of innovative elements that the EU proposes using as the basis for the TTIP negotiations. The key issue on which we are consulting is whether the EU's proposed approach for TTIP achieves the right balance between protecting investors and safeguarding the EU's right and ability to regulate in the public interest.

As that shows, at the heart of the exercise is the misguided belief that protecting investors is somehow comparable to protecting the public interest and national sovereignty, and that a "balance" has to be struck between the two. No wonder, then, that the consultation itself is a sham: it does not seek people's views on whether investor-state dispute settlement (ISDS) is needed at all, only what form it should take, down to extremely technical details that will be incomprehensible to anyone not an expert in international trade law.

The structure of the consultation document (pdf) reflects this: 12 highly-specific questions about aspects such as "Scope of the substantive investment protection provisions" and "Appellate mechanism and consistency of rulings", and only one more general one: "What is your overall assessment of the proposed approach on substantive standards of protection and ISDS as a basis for investment negotiations between the EU and US?" On top of that, you must answer all 13 questions in 90 minutes, and it's not possible to save your answers and return to them later (but the digital rights group EDRi has created an online tool that lets you do that.) A cynic might almost think the European Commission is trying to make it hard for the public to participate.

As the closing date of the consultation (6 July 2014) approaches, a number of organizations have put together handy guides to filling it in -- it's open to everyone, not just EU citizens. Here, for example, is the Answering Guide from EDRi (pdf), which helpfully explains what exactly the often opaque questions mean, then suggests a number of points you might like to mention in your reply. A new site with the self-explanatory name of "No 2 ISDS!" also runs through each question in turn, but offers rather more forthright suggestions. Here's a typical sample:

Question 5: Ensuring the right to regulate and investment protection

I fundamentally oppose the fact that investment protection is placed above the sovereign right to regulate because:

Rules emerging from a democratic voting process (democratic and parliamentary decision-making process), which reflect the public interest and the will of millions of people, must always be weighted more heavily than private sector vested interests.

Fundamental social rights and human rights must not be limited by economic freedoms.

Naturally, the open-ended last question provides the people behind the No 2 ISDS! site with more scope for expressing their views on the consultation:

Are there any other issues related to the topics covered by the questionnaire that you would like to address?

First of all I would like to express my deep concerns with this highly complicated and technical questionnaire. If a consultation asks for the contribution of civil society/the public, then an honest attempt should be made whereby non experts should be able enabled to contribute. This is definitely not the case with this consultation, especially because, up until this question, there has been no possibility to state that I do not want any investor-state dispute settlements at all -- in TTIP, or in any other trade agreement. Furthermore, technical obstacles that prevent me from only filling in one part of the form, or to respond through email or fax fundamentally alter the "public" character of this consultation.

A similarly robust reply is offered by the Trade Justice Movement, whose answer to Question 13 begins as follows (Microsoft Word document):

There are serious flaws in this consultation process. First: it fails to give European communities the possibility of responding to the proposed TTIP in its entirety. The EU should provide this opportunity, particularly in light of the controversy regarding issues such as the secrecy surrounding the negotiations and the undermining of basic democratic processes, regulatory harmonisation and the impact on standards, the impact on jobs and on the economies of non-Party countries.

It makes an important point about one of the serious knock-on effects of the questions' opacity:

Second, the consultation is written in such a technical (and occasionally obscure) language that it excludes everyone but investment law experts. As most of these are arbitration practitioners, the questionnaire in effect invites ISDS-friendly responses by design.

And continues with these excellent points:

Third, the consultation is not in fact a consultation on the TTIP text but on a CETA text that was valid in March but has since progressed further in the CETA negotiations. In addition, the Commission says that it wants to build on CETA but also refer back to existing treaty practice. It is therefore a consultation on a non-existent text; given the significance of the details, this renders the consultation all but useless.

Fourth, the consultation starts from the assumption that ISDS should be in the agreement. This is despite the fact that in the negotiating mandate it states that "the inclusion of investment protection and investor-to-state dispute settlement (ISDS) will depend on whether a satisfactory solution, meeting the EU interests concerning the issues covered by paragraph 23 is achieved".

This gives an indication of the quality and thoughtfulness of the responses that are currently being made to the corporate sovereignty consultation, and of the rich materials that citizens can draw upon in making their own comments. The European Commission certainly won't be able to claim that no one cares whether ISDS is included in TAFTA/TTIP -- the level of public interest in this previously obscure aspect of international trade law is unprecedented. Whether Karel De Gucht, the European Commissioner responsible for the negotiations on the EU side, is willing to take note of all the important points raised above and act on them, is quite another matter, though.

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Filed Under: corporate sovereignty, eu commission, international trade, isds, tafta, trade agreement, ttip

Meet TISA: Another Major Treaty Negotiated In Secret Alongside TPP And TTIP

from the really-good-friends dept

This Wednesday evening there is to be a "Public Information Session and Discussion" (pdf) about TISA: the Trade in Services Agreement. If, like me, you've never heard of this, you might think it's a new initiative. But it turns out that it's been under way for more than a year: the previous USTR, Ron Kirk, informed Congress about it back in January 2013 (pdf). Aside from the occasional laconic press release from the USTR, a page put together by the Australian government, and a rather poorly-publicized consultation by the European Commission last year, there has been almost no public information about this agreement. A cynic might even think they were trying to keep it quiet.

Perhaps the best introduction to TISA comes from the Public Services International (PSI) organization, a global trade union federation representing 20 million people working in public services in 150 countries. Last year, it released a naturally skeptical brief on the proposed agreement (pdf):

At the beginning of 2012, about 20 WTO members (the EU counted as one) calling themselves "The Really Good Friends of Services" (RGF) launched secret unofficial talks towards drafting a treaty that would further liberalize trade and investment in services, and expand "regulatory disciplines" on all services sectors, including many public services. The "disciplines," or treaty rules, would provide all foreign providers access to domestic markets at "no less favorable" conditions as domestic suppliers and would restrict governments' ability to regulate, purchase and provide services. This would essentially change the regulation of many public and privatized or commercial services from serving the public interest to serving the profit interests of private, foreign corporations.

The Australian government's TISA page fills in some details:

The TiSA negotiations will cover all services sectors. In addition to improved market access commitments, the negotiations also provide an opportunity to develop new disciplines (or trade rules) in areas where there has been significant developments since the WTO Uruguay Round negotiations. There negotiations will cover financial services; ICT services (including telecommunications and e-commerce); professional services; maritime transport services; air transport services, competitive delivery services; energy services; temporary entry of business persons; government procurement; and new rules on domestic regulation to ensure regulatory settings do not operate as a barrier to trade in services.

If that sounds familiar, it's because very similar language is used to describe TAFTA/TTIP, which aims to liberalize trade and investment, to provide foreign investors with access to domestic markets on the same terms as local suppliers, to limit a government's ability to regulate there by removing "non-tariff barriers" -- described above as "regulatory settings" -- and to use corporate sovereignty provisions to enforce investors' rights.

Those similarities suggest TISA is part of a larger plan that includes not just TAFTA/TTIP, but TPP too, and which aims to cement the dominance of the US and EU in world trade against a background of Asia's growing power. Indeed, it's striking how membership of TISA coincides almost exactly with that of TTIP added to TPP:

The 23 TiSA parties currently comprise: Australia, Canada, Chile, Chinese Taipei, Colombia, Costa Rica, European Union (representing its 28 Member States), Hong Kong, Iceland, Israel, Japan, Liechtenstein, Mexico, New Zealand, Norway, Pakistan, Panama, Paraguay, Peru, Republic of Korea, Switzerland,, Turkey and the United States.

Once more, the rising economies of the BRICS nations -- Brazil, Russia, India, China, South Africa -- are all absent, and the clear intent, as with TTIP and TPP, is to impose the West's terms on them. That's explicitly recognized by one of the chief proponents of TISA, the European Services Forum:

the possible future agreement would for the time being fall short of the participation of some of the leading emerging economies, notably Brazil, China, India and the ASEAN countries. It is not desirable that all those countries would reap the benefits of the possible future agreement without in turn having to contribute to it and to be bound by its rules.

The Australian government's page reveals that there have already been five rounds of negotiations -- all held behind closed doors, of course, just as with TTIP and TPP. The Public Information Session taking place in Geneva this week seems to mark the start of a new phase in those negotiations, at least allowing some token transparency. Perhaps this has been provoked by the growing public anger over the secrecy surrounding TPP and TAFTA/TTIP, and fears that the longer TISA was kept out of the limelight, the worse the reaction would be when people found out about it.

It seems appropriate, then, that the unexpected unveiling of this new global agreement should be greeted not only by an updated and more in-depth critique from the PSI -- "TISA versus Public Services" -- but also the first anti-TISA day of protest. Somehow, I don't think it will be the last.

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Filed Under: corporate sovereignty, isds, secrecy, tafta, tisa, tpp, trade agreement, trade in services agreement, transparency, ttip, ustr

International Music Organizations Claim Aereo Must Be Illegal Because Of International Trade Agreements

from the those-darn-international-obligations dept

For many years, we've highlighted how copyright maximalists have abused the international trade process to expand copyright monopolies around the globe. If you're interested in the history there, I highly recommend the book Information Feudalism: Who Owns the Knowledge Economy?, which details much of the history. Defenders of this policy love to pretend that international trade agreements can't bind US law, but reality is quite different. Time and time again, we've seen maximalists use international agreements to get their way either in ratcheting up copyright law even further, or pressuring courts into certain positions. This is one of the reasons (one of many) that we're so concerned about new agreements like the TPP and TTIP/TAFTA. Even if the USTR claims (incorrectly) that nothing in them goes beyond US law today, they can not only limit the changes Congress can make to copyright and patent law, but these issues can show up in court cases, potentially hindering innovation.

Here's a perfect example. We've been covering the Aereo case for quite some time, and as the Supreme Court prepares to hear the case in April, a bunch of international music organizations, led by the IFPI (basically the international version of the RIAA), have filed an amicus brief that pretty clearly says that the Supreme Court has to rule against Aereo because of existing international trade agreements that the US has signed. No joke. The brief directly claims that the appeals court ruling that found in favor of Aereo "places the United States in violation of its multilateral treaty commitments," as well as "its bilateral and regional agreements," and further that the Supreme Court has a duty to find against Aereo in order to respect the US's "treaty commitments."

Reading through the brief, you can see just how much copyright maximalists have succeeded in putting together a huge mess of international agreements (often built around issues totally unrelated to copyright, with a few copyright specific ones thrown in) that these groups can now claim require the Supreme Court to outlaw new innovations like Aereo. It further cites rulings in the EU and Canada that it suggests require the Supreme Court to follow suit. While there are some Justices who have made it clear time and time again that they don't care what foreign courts say, others have shown a willingness to follow suit.

Either way, this brief yet again highlights just how nefarious these international trade agreements can be, and how they can come back to bite new innovations years later. Defenders of copyright maximalism will insist that things like TPP and TTIP/TAFTA will have no impact on US law, but if those agreements come into force, you can bet that future US innovations will get stomped out of existence with certain players pointing to those agreements as a reason they need to be shut down.

Filed Under: broadcast, tafta, tpp, trade agreement, ttip, ustr
Companies: aereo, ifpi

Krugman Gets Informed, Changes His Tune On TPP

from the it's-not-about-free-trade dept

Late last year, we were dismayed by a Paul Krugman opinion piece in the NY Times in which he judged the TPP based on how it might impact free trade, saying he didn't understand why people were so upset about it. After lots of people called him out on that, including other economists who highlighted that the problems of TPP have little to do with "free trade" but with exporting questionable regulations and giving up corporate sovereignty, Krugman admitted to knowing little of the details and promising to spend more time reviewing them.

He's now done so and put forth a revised opinion on the TPP, in which he more or less admits that it's not a very good agreement. He doesn't think it's horrible, just like he didn't think it was wonderful before. He basically shifted from lukewarm support to lukewarm disapproval of it. However, at least he now recognizes that it's not about trade, but about helping out a few big companies:

What the T.P.P. would do, however, is increase the ability of certain corporations to assert control over intellectual property. Again, think drug patents and movie rights.

Is this a good thing from a global point of view? Doubtful. The kind of property rights we’re talking about here can alternatively be described as legal monopolies. True, temporary monopolies are, in fact, how we reward new ideas; but arguing that we need even more monopolization is very dubious — and has nothing at all to do with classical arguments for free trade.

Now, the corporations benefiting from enhanced control over intellectual property would often be American. But this doesn’t mean that the T.P.P. is in our national interest. What’s good for Big Pharma is by no means always good for America.

He then wonders why the Obama administration is so gung ho on the deal, and thinks they've been sold a bill of goods, believing the bill must be good because it has been labeled as a free trade agreement, with no one bothering to really think through the details.

So what I wonder is why the president is pushing the T.P.P. at all. The economic case is weak, at best, and his own party doesn’t like it. Why waste time and political capital on this project?

My guess is that we’re looking at a combination of Beltway conventional wisdom — Very Serious People always support entitlement cuts and trade deals — and officials caught in a 1990s time warp, still living in the days when New Democrats tried to prove that they weren’t old-style liberals by going all in for globalization. Whatever the motivations, however, the push for T.P.P. seems almost weirdly out of touch with both economic and political reality.

While I think Krugman underplays the potential downsides of a TPP agreement, at the very least his assessment this time actually involved taking the time to look at what's actually happening. His initial assessment was much more like what he now accuses TPP supporters of doing: just taking conventional Beltway wisdom, combined with a 1990s time warp.

Filed Under: economics, free trade, paul krugman, tpp, trade agreement

USTR Wants More Transparency In Drawing Up EU Regulations -- But Not In Drawing Up TAFTA/TTIP

from the hypocrisy,-thy-name-is-USTR dept

As we've noted many times before, one of the biggest problems with TAFTA/TTIP and TPP is the almost complete lack of transparency about the negotiations. Although the politicians like to assert that this is "inevitable" during any trade agreement where tough haggling over numbers needs to take place, this deliberately ignores the point that TPP and TTIP are not just trade agreements: they touch on areas that are the domain of public policy and democratic decision-making -- things like regulations, standards, approaches to copyright and patents etc. According to the European Commission's own figures, reductions in trade barriers are only expected to account for around 20% of the claimed economic benefits that could flow from TAFTA/TTIP: the rest comes from reducing "non-tariff barriers" -- the rather loaded name given to things like health, safety and environmental standards.

Against that background of a total refusal to allow the general public access to negotiating documents -- even those that are tabled, and therefore no longer secret -- this story in the Financial Times about the US Trade Representative, Michael Froman, demanding greater openness is, at first sight, rather surprising (NB: subscription or free registration required):

The US push for greater transparency in EU regulations was first made in broad terms by Michael Froman, US trade representative, in a speech in Brussels last September. But in specific proposals put forward in closed-door negotiations in recent weeks the US has stepped up the campaign and made clear that it is one of Washington's main negotiating priorities, according to people close to the talks.

Evidently, the USTR is looking for greater transparency only in the process of drawing up EU regulations, not more generally. That's plainly because US companies intend to lobby Brussels even more vociferously in this area, and to do that they need full access to draft regulations. Here's how Froman wants that to happen:

The US has proposed that EU regulators be required to publish the proposed texts of regulations and open them to public comment. It also wants regulators to be required to consider comments and explain why they had adopted -- or failed to adopt -- outside suggestions when they finalise regulations.

If such an approach were adopted, it would give US companies far more scope to intervene in the EU regulatory process, and perhaps enable them to take legal action against EU regulators -- a threat that would boost US (and EU) corporate influence considerably.

Of course, what's striking about those demands is that the reasoning given in support of them applies equally to the TAFTA/TTIP negotiations: we need to have the proposed texts published so that the public can comment on them and argue against measures there that are likely to have negative consequences for society. We also need to require negotiators to explain why they adopted or failed to adopt suggestions. The FT article quotes US officials as saying:

there is a growing emphasis on transparency in regulation and greater public consultations are increasingly important.

Except, it would seem, when it concerns secretive regulatory agreements like TAFTA/TTIP and TPP.

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Filed Under: tafta, tpp, trade agreement, transparency, ttip, ustr

USTR Thinks A Non-Transparent 'Public Interest' Committee Will Mollify Critics; It Won't

from the not-going-to-cut-it dept

We've been pointing out for years how the US Trade Representative is creating all sorts of problems for itself by its insistence on secretly negotiating trade agreements, in which only industry insiders and lobbyists are a part of the process and have access to the documents. The USTR has ridiculously tried to argue that it's transparent because it will meet with anyone who asks, never acknowledging that hearing from people is quite different from sharing what the USTR is actually negotiating in our name. As we've said before, if the only way the American public can find out about what the USTR is negotiating in our name is because Wikileaks has released the documents, then the USTR is not being transparent. A few weeks ago, we noted some signs that the USTR was beginning to panic, as it realized that its bogus claims about transparency weren't sitting well with Congress, and its hope to tie Congress's hands via "fast track" or "trade promotion authority" is on life support.

For the first time, the USTR has kinda sorta admitted that its current process of only sharing the negotiating documents with industry lobbyists -- something that even the strongly pro-business Bloomberg referred to as a "corporatist power grab" -- isn't necessarily in the public interest. In a speech, USTR Michael Froman announced the creation of a new "Public Interest Trade Advisory Committee" (PITAC):

I’m pleased to announce that we are upgrading our advisory system to provide a new forum for experts on issues like public health, development and consumer safety.

“A new Public Interest Trade Advisory Committee (PITAC) will join the Labor Advisory Committee and the Trade and Environment Policy Advisory Committees to provide a cross-cutting platform for input in the negotiations.

“We are calling on NGOs, academics, and other public interest groups to submit their candidates to be founding members of the PITAC.

Of course, just the fact that they think they need a "public interest" advisory committee begs the question: are they admitting that until now, they just didn't give a shit about the public interest? Aren't they effectively saying that all of those other advisory committees they have, made up of big industry lobbyists, have been pushing them to screw over the public interest, in favor of short term protectionism and profits?

You'd think that the entire point of what the USTR does is that it should be negotiating agreements in the public interest, and yet as far as I can tell, they've now admitted that was never the case before, and now they seem to think that rather than being an overreaching aim of all trade agreements, that it's one of multiple "competing interests." In fact, this new proposal is actually exactly what the corporate lobbyists themselves had pushed for a few years ago, when the USTR started considering adding non-corporate representatives to the other advisory committees. The lobbyists balked at that suggestion, saying that, if anything, a separate second-tier public interest committee should be created. And that's what's now happened, with Froman pretending that this is some sort of huge move to benefit the public interest.

But, more to the point, this seems much more like a way to try to mollify critics by attempting to bring some of the most vocal critics of the lack of transparency "into the fold" (which will include strict confidentiality agreements), hoping that this shuts them up.

It takes an astounding amount of cluelessness to think that the proper response to a lack of transparency is to create another committee with secret access to the negotiating text.

While Froman also insists that he will be taking "new steps to broaden public information on the progress of negotiations," including "an update on the status of negotiations," that's not the transparency people are asking for. They're not asking for status reports. They're asking for transparency on what the USTR is negotiating in our name (though, as now admitted, without any concern for "the public interest").

Other parts of Froman's speech were equally problematic. In it, he quotes the ridiculous statistic that "Intellectual property-intensive industries account for nearly 30 million American jobs" -- ignoring, of course, that this number has been totally debunked multiple times over. The study this is based on lumped all sorts of jobs that have nothing whatsoever to do with intellectual property protections into the category of "intellectual property-intensive industries," such that the leading such employer is grocery store employees. And, sorry, but the kid putting your canned veggies into a bag doesn't have his job because of intellectual property law.

He also pretends that the USTR is supporting the exporting of fair use with the following statement:

... for the first time in any trade agreement, we are asking our trading partners to secure robust balance in their copyright systems – an unprecedented move that draws directly on U.S. copyright exceptions and limitations, including fair use for important purposes such as scholarship, criticism, news commentary, teaching, and research.

That's misleading, at best. While it's true that this is the first time the USTR has included any such provisions in a trade agreement, the actual language shows that it's more about limiting fair use than expanding it.

He also tries to dismiss the concerns that TPP is somehow "related to SOPA." He's right. It's not SOPA, but this statement is again misleading in the extreme:

The United States will agree to nothing in TPP that goes beyond existing U.S. intellectual property law.

Except... that Congress is currently debating major copyright and patent reform -- and while the leaked proposals are mostly (though not entirely) consistent with US law, they would effectively lock in aspects of current law that many have suggested should be changed. That is, while it may not change that much today, it clearly would serve to block Congress from fixing the massive problems in today's copyright and patent law. And the USTR doesn't seem to even understand this -- in part because the folks that it spends the most time discussing intellectual property with -- the intellectual property trade advisory committee (ITAC 15) are pretty much all copyright/patent maximalists.

The speech is more of the same from the USTR. It makes a bunch of false and misleading statements, either out of ignorance or with the intention of directly misleading the public. The inclusion of this new "public interest" committee is a cheap ploy to try to buy off some critics with increased access, but does nothing to address the fundamental problems with the process and the agreement.

Filed Under: pitac, public interest, trade agreement, transparency, ustr

Learning From ACTA: Will TAFTA/TTIP Be More Transparent Than TPP?

from the hope-springs-eternal dept

Recently we wrote about the growing calls for transparency during the TPP negotiations. It's still early days for TAFTA/TTIP, but already there are some signs that senior politicians are becoming aware that transparency is no longer some minor aspect of these trade talks, but a hugely important issue in itself. We know this thanks to an earlier fight by the European Digital Rights (EDRi) group to obtain from the European Parliament various documents relating to ACTA -- the result of an infamously opaque process. Its complaint was directed to the little-known European Ombudsman:

an independent and impartial body that holds the EU administration to account. The Ombudsman investigates complaints about maladministration in EU institutions, bodies, offices, and agencies. Only the Court of Justice of the European Union, acting in its judicial capacity, falls outside the Ombudsman's mandate. The Ombudsman may find maladministration if an institution fails to respect fundamental rights, legal rules or principles, or the principles of good administration.

However, in this case the European Parliament explained that it was bound by a confidentiality agreement that had been negotiated by the European Commission, and was therefore unable to release the requested ACTA documents. Here's what the EU Ombudsman had to say on this:

The Ombudsman accepted this explanation, but advised Parliament to ensure that the Commission and the Council do not sign confidentiality agreements in the future that could undermine Parliament's ability to deliberate openly on such issues.

That advice in itself is noteworthy, since it specifically discourages the use of confidentiality agreements that might hamper transparency. In reply, the President of the European Parliament, Martin Schulz, explained:

in the context of the TTIP negotiations, no confidentiality agreement has been signed with the US. The negotiators instead committed to implementing the EU's access to documents rules. Schulz wrote that the Commission took the unprecedented step of publishing important documents at the start of the TTIP process and invited stakeholders to submit their views. He promised to keep reminding the Commission that a pro-active approach is needed to keep the public informed about the state of play in all such negotiations.

What exactly "keeping the public informed" about the TAFTA/TTIP negotiations means in practice is open to interpretation. But again, there's no denying that at least some progress is evident here. For a start, unlike with ACTA, there is no formal confidentiality agreement that politicians can point to as an excuse for not releasing documents. And more generally there is a recognition that transparency is a vitally important aspect of the negotiations that can no longer be ignored, even if it will still be resisted.

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Filed Under: acta, tafta, trade agreement, transparency, ttip

Australia Pushes South Korea Into Life-Plus-70 Copyright Terms As Part Of Free Trade Agreement

from the finally!-now-south-korea's-creators-will-have-a-reason-to-create! dept

When it comes to free trade agreements, the concessions to incumbent copyright industries always seem to be a foregone conclusion. Australia has made some bold steps towards fair use to be implemented in its copyright reform efforts (and in the face of heavy criticism), but on other fronts, it seems more than willing to take several steps back to compensate for any forward momentum. While copyright reform hums away in the background, legislators in the foreground are laying the path for more of the same stuff that hasn't worked anywhere else, like "three strikes" programs and web filtering.

Australia has just put the finishing touches on a free trade deal with South Korea, and hidden amongst the pages of legal wording is a 20-year gift to the copyright industries:

The Australian government today released the final negotiated terms of the Korea-Australia Free Trade Agreement (KAFTA), which is intended to give Australian businesses increased access to the South Korean market, and likewise for businesses from the Republic of Korea conducting business in Australia.

Under the terms of the agreement, Korea will extend its current copyright laws by 20 years to harmonise its copyright laws with Australia, so that both nations will have a copyright term of "not less than the life of the author and 70 years after the author's death", or 70 years after the first performance, recording, or publication of a work. The transition arrangements give South Korea two years to implement the copyright changes.

This puts yet another country on the Bono/Disney gold standard and helps ensure South Korea's public domain will be as impoverished as Australia's and the United States'. This must be the "level playing field" corporate copyright holders envision when they speak grandly about the tech industry "pitching in" to make sure the incumbents are still around to collect these royalties a half-century from now.

Filed Under: australia, copyright, south korea, trade agreement

Economic Benefits Of Trade Agreements - Past, Present And Future - Not At All Clear

from the hang-on-a-minute dept

As we've noted before, trade agreements are usually sold on the basis that they will bring economic benefits for large numbers of the citizens involved. But that doesn't always work out in practice, as earlier figures regarding the North American Free Trade Agreement (NAFTA) and South Korea-US free trade agreement (KORUS) indicated. New corrected 2013 year-end trade data from the US International Trade Commission shows that things aren't getting any better. Here's what's happening with NAFTA, as encapsulated (rather breathlessly) by Public Citizen (pdf):

A staggering U.S. trade deficit with Canada and Mexico after 20 years of the North American Free Trade Agreement (NAFTA)

The 2013 U.S. goods trade deficit with Mexico and Canada was $177 billion -- a nearly seven-fold increase above the pre-NAFTA level, when the United States enjoyed a small trade surplus with Mexico and a modest deficit with Canada

Even worse for U.S. workers, the non-oil NAFTA deficit has multiplied more than 13-fold, costing hundreds of thousands of U.S. jobs. Indeed, the share of the combined U.S. trade deficit with Mexico and Canada that is comprised of oil has declined since NAFTA.

Things are equally grim on the KORUS front:

A stunning decline in U.S. exports to Korea, a rise in imports from Korea, and a widening of the U.S. trade deficit under the Korea Free Trade Agreement (FTA).

20 out of 21 months since the Korea FTA took effect, U.S. goods exports to Korea have fallen below the average monthly level in the year before the deal.

U.S. average monthly exports to Korea since the FTA are 12 percent lower than the pre-FTA monthly average, while monthly imports from Korea are up 3 percent.

The monthly trade deficit with Korea has ballooned 49 percent compared to the pre-FTA level. These losses amount to tens of thousands of lost U.S. jobs

Part of the problem with future free trade agreements like TPP and TAFTA/TTIP is that (obviously) we have no historical figures; instead, we must rely on economic models to predict what the benefits might be. Embedded within models are many assumptions, and people will naturally disagree over how reasonable those are. For example, in New Zealand, the Sustainability Council has published details of its review of the model that the New Zealand government has depended upon in order to justify its enthusiasm for the TPP negotations. Here's what the Council claims to have found:

The government has repeatedly used estimates from a team of US economists to justify the Trans Pacific Partnership. This team put the economic gains for New Zealand at US$4.5 billion for 2025 (around NZ$5.5 billion) in their latest study for the Peterson Institute.

A detailed review of that study led by Dr Geoff Bertram concludes that a third of the stated benefits should not be counted at all as they are outside established economic theory. The Sustainability Council review also concludes that only a minor part of the remaining gains are justified. The total benefits likely to be available are less than a quarter of the US$4.1 billion of gains Trade Minister Tim Groser told Parliament would result for New Zealand from the TPP.

In exchange for a small gain in relative terms, New Zealand is being asked to sign away large slabs of its sovereignty. The TPP bundles the small gains from trade with a wide range of non-trade matters that will set privileges for foreign investors. These would impose serious costs in the form of limitations on a government's ability to protect the public interest.

Now, given the organization's name, it's quite likely that the Sustainability Council has an axe to grind here, but then so does the New Zealand government, which has invested a huge amount of time, money and political capital in the TPP negotiations. What that means is everyone's claims about benefits or lack of them need to be treated with caution. And that, in its turn, means that the TPP negotiators should think very hard before making real sacrifices for what may prove highly elusive gains.

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Filed Under: canada, korea, nafta, new zealand, tafta, tpp, trade agreement, ttip