TPP Is Back, Minus Copyright Provisions And Pharma Patent Extensions, In A Clear Snub To Trump And The US

from the canada,-leader-of-the-free-world? dept

As Techdirt noted back in November, the Trans Pacific Partnership (TPP) agreement was not killed by Donald Trump's decision to pull the US out of the deal. Instead, something rather interesting happened: one of the TPP's worst chapters, dealing with copyright, was "suspended" at the insistence of the Canadian government, which suddenly took on a leading role. At the time, it wasn't clear whether this was merely a temporary ploy, or was permanent. With news that the clumsily-named "Comprehensive and Progressive Agreement for Trans-Pacific Partnership" (CPTPP) has been "concluded", it now seems that the exclusion of both copyright and pharma patent extensions is confirmed. As Michael Geist writes:

the IP chapter largely reflected U.S. demands and with its exit from the TPP, an overhaul that more closely aligns the agreement to international standards was needed. Canada succeeded on that front with an agreement to suspend most of the controversial IP provisions including those involving copyright term, patent extension, biologics protection, and digital lock rules.

That's the good news. But there's still plenty of bad stuff in the CPTPP, a sample of which is listed here by The Atlantic:

A controversial arrangement whereby companies can sue countries over their domestic laws, known as the investor-state dispute settlement [ISDS -- corporate sovereignty] system, remains in a reduced fashion. Labor and environmental protections are largely unchanged [and unsatisfactory]. The EFF's [Jeremy] Malcolm pointed to e-commerce provisions that provide only weak privacy protections, among other issues, as still being problematic. But overall, the new deal is so similar to the original that Canadian labor unions are furious that their government is still advancing it, just as labor groups in the U.S. objected under Obama.

That anger means that even in the absence of the copyright and pharma patent extensions, there is still likely to be some resistance to the new deal, and not just in Canada. For example, economists estimate that the CPTPP will boost Australia's economy by only 0.04% per year -- a negligible amount that will be swamped by fluctuations in other factors. Some Australian businesses warn that the continuing existence of bilateral trade deals with eight of the CPTPP countries will lead to a complex "noodle bowl" of rules and regulations that could make it harder, not easier, to conduct business with them. In New Zealand, a long-standing critic of TPP, Professor Jane Kelsey, is particularly worried about a chapter on electronic commerce. And in Malaysia, a consumer group has urged the government there not to sign the deal, which it said would be "even worse" than TPP for the country.

Although we still don't have the final details of the deal, and the lingering presence of corporate sovereignty is regrettable, the CPTPP signals a hopeful shift away from the usual intellectual monopoly maximalism. The omission of copyright and patents from the new deal is a significant defeat for the US, which has been the main driving force behind their routine inclusion. And the fact that the CPTPP is going ahead at all without the US is a clear snub to Trump and his rejection of such multilateral trade negotiations.

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Filed Under: canada, corporate sovereignty, cptpp, donald trump, isds, tpp, trade deals, trade negotiations, us

A Tale of Two Transparencies: Why The EU And Activists Will Always Disagree Over Trade Deal Negotiations

from the TTIP,-remember-that? dept

Although the Transatlantic Trade and Investment Partnership (TTIP) has dropped off the radar completely since Donald Trump's election, for some years it was a key concern of both the US and European governments, and a major theme of Techdirt's posts. One of the key issues was transparency -- or the lack of it. Eventually, the European Commission realized that its refusal to release information about the negotiations was seriously undermining its ability to sell the deal to the EU public, and it began making some changes on this front, as we discussed back in 2015. Since then, transparency has remained a theme of the European Commission's initiatives. Last month, in his annual State of the Union address, President Jean-Claude Juncker unveiled his proposals for trade policy. One of them was all about transparency:

the Commission has decided to publish as of now all its recommendations for negotiating directives for trade agreements (known as negotiating mandates). When they are submitted to the European Parliament and the Council, those documents will in parallel be sent automatically to all national Parliaments and will be made available to the general public. This should allow for a wide and inclusive debate on the planned agreements from the start.

An interesting article on Borderlex explores why moves to open up trade policy by the European Commission did not and probably never will satisfy activists who have been pushing for more transparency, and why in this area there is an unbridgeable gulf between them and the EU politicians. In contrast to Juncker's limited plan to publish negotiating directives in order to allow "a wide and inclusive debate on the planned agreements", this is what activists want, according to the article:

timely release of textual proposals on all negotiating positions, complete lists and minutes of meetings of Commission officials with third parties, consolidated texts, negotiating mandates, and all correspondence between third parties and officials.

Activists are keen to see what is happening in detail throughout the negotiations, not just some top-level view at the start, or the initial textual proposals for each chapter, but nothing afterwards. The article suggests that this is not simply a case of civil society wanting more information for its own sake, but rather reflects completely different conceptions of what transparency means. Transparency is intimately bound up with accountability, which raises the key question of: accountability to whom?

These two different views reflect a seminal academic distinction between 'delegation' and 'participation' models of accountability in international politics. In a 'delegation' model, an organisation (such as the Commission) is accountable to those who have granted it a mandate (in the EU: the Council, the [European Parliament] and national parliaments). Transparency and participation should first and foremost be directed to them. Extending managed transparency to the wider public can be instrumentally used to increase trust.

In a 'participation model', in contrast, organisations are accountable to those who bear the burden of the decisions that are taken. If contemporary trade policy impacts people's daily lives, the people -- directly or through civil society organisations that claim to represent them -- should be able to see what is going on, and be able to influence the process. Therefore, there is a presupposition for openness, disclosure, and close participation.

The article's authors suggest that for activists, transparency is a means to an end -- gaining influence through participation -- and it is the European Commission's refusal to allow civil society any meaningful role in trade negotiations that guarantees that token releases of a few policy documents will never be enough.

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Filed Under: activists, eu, trade negotiations, transparency, ttip

Here's Why The EU Is Crazy Not To Insist On Full Transparency During TAFTA/TTIP

from the information-asymmetry dept

One of the most recent Snowden stories has garnered relatively little attention, perhaps because it appeared (in English) on the Danish site Information.dk:

At the Copenhagen Climate Summit in 2009, the world's nations were supposed to reach an agreement that would protect future generations against catastrophic climate change. But not everyone was playing by the rules. A leaked document now reveals that the US employed the NSA, its signals intelligence agency, to intercept information about other countries' views on the climate negotiations before and during the summit. According to observers, the spying may have contributed to the Americans getting their way in the negotiations

As the report on Information.dk explains, the US was able to use inside knowledge of the negotiating positions of other countries to strengthen its bargaining position. Indeed, it didn't bother bargaining at all, since it learned that there was a "final" proposal being held in reserve to reach an agreement that would give it pretty much what it wanted. It knew that it only had to wait.

It's a great story, and well-worth reading, but here I want to concentrate on its implications for another major agreement, currently being negotiated: TAFTA/TTIP. On the one side is the US, on the other, the 28 nations that go to make up the European Union. Because they have differing views on the TAFTA/TTIP negotiations, it's necessary to pass around many documents conveying information about the current negotiations, and seek to obtain some kind of consensus on future EU proposals and flexibilities.

In the wake of Snowden's revelations, security will doubtless be much better than during the Copenhagen Summit, when supposedly secret messages were sent using unencrypted emails. But it only needs one weak link in the European Union's security chain -- somebody who forgets to encrypt his or her message, or who leaves it on a system that has been compromised -- and the NSA will be able to access that information, and pass it on to the US negotiators, just as it did in Copenhagen.

The key point is that there is a profound information asymmetry in the TAFTA/TTIP talks. Although the spy agencies of the EU countries will doubtless be trying their best to obtain confidential information about US negotiating tactics, it will be much harder than it is for the US to do the same about EU positions. That's because the NSA is far larger, and far more expert than the EU agencies. GCHQ is probably the nearest in terms of capabilities, but is so closely allied with the NSA in other areas that it probably won't be trying too hard so as not to annoy its paymaster.

This more or less guarantees that the US will know everything about the EU's negotiating plans during TAFTA/TTIP, while the EU will remain in the dark about the US intentions. That not only undercuts the European Commission's argument that releasing documents is not possible because they must remain secret during the negotiations -- they won't be -- it also gives the EU a huge incentive to insist on full transparency for the talks. That way, the EU negotiators would be able to see at least some US documents that currently are hidden from them, whereas the US would gain little that it didn't already know through more dubious means.

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Filed Under: eu, nsa, secrecy, surveillance, tafta, trade negotiations, transparency, ttip

Is This Real? Is This Recall? MPAA Hosts Screening Of Total Recall To 'Educate' Congress On 'Benefits' Of IP Protection

from the is-that-real?-do-you-recall? dept

It's been said that Hollywood is completely out of ideas, and all it does these days is the same thing over and over again. That seems to be the case both on the policy front and with its movies. So how perfect is it that the MPAA's gift-of-the-month to Congress is a showing of the remake of the movie Total Recall? As we noted in our post about the MPAA's special showing of the latest Batman flick, to get around breaking gift giving guidelines, the MPAA includes a special "educational component," before its movies, which somehow makes it okay. We heard from attendees of the Batman showing that (amazingly) no mention of copyright or piracy issues was made in the "educational" component. Rather it was a presentation about the Natural History Museum and how it was doing things with IMAX, as well as a Time Warner presentation about its online offerings like HBO GO, TV Everywhere and Ultra Violet.

However, this month, the MPAA will more directly address the copyright issue, as you can see in the invite below, where they note the "educational" component will be about "the impact of film in the global economy and the benefit of IP protection to global trade." As the tagline of the movie says, "Is it real? Is it recall?" One has to imagine that the "educational" content will be particularly one sided, and I'd question how "real" the lesson will be. The stats that the MPAA is fond of throwing out are rarely anywhere close to reality. The presentation almost certainly won't "recall" the fact that due to the MPAA's own ridiculously extreme position on "IP protection" in "global trade," the ACTA agreement has more or less killed the agreement (at least for the majority of Europe).

If Congress wants an educational lesson on the role of IP and international trade, they might want to "recall" that the MPAA is just about the last place to go to get any sense of "reality."

Filed Under: congress, education, ip, screenings, total recall, trade negotiations
Companies: mpaa

Maine Demands That The US Be More Open And Transparent In TPP & Other International Trade Negotiations

from the good-for-them dept

As the administration continues to be ridiculously secretive about negotiations on the Trans Pacific Partnership (TPP) agreement, it seems that even various state governments are growing concerned about the process. The Maine state legislature issued a joint resolution demanding that the administration be much more open in how it negotiates international trade agreements. The resolution states that it strongly supports good international agreements, but that they need to be open and transparent. It notes that the lack of transparency has meant that trade negotiations have come to agreements against states' own interests and that the negotiators do not consult the states, despite the massive impact these agreements have on state economies. Then it specifically calls out the TPP, and says that the administration must improve the process. Here's just a few of the lines from the resolution, though you can read the whole thing at the link above.

WHEREAS, existing trade agreements have effects that extend significantly beyond the bounds of traditional trade matters, such as tariffs and quotas, and can undermine Maine's regulatory authority and constitutionally guaranteed authority to protect the public health, safety and welfare; and

WHEREAS, a succession of federal trade negotiators from both political parties over the years has failed to operate in a transparent manner and failed to meaningfully consult with states on the far-reaching impact of trade agreements on state and local laws, even when binding the State of Maine to the terms of these agreements; and

WHEREAS, the negative effect of existing trade agreements on Maine's regulatory authority and constitutionally guaranteed authority to protect the public health, safety and welfare has occurred in part because United States trade policy has been formulated and implemented in a process that lacks transparency, fails to properly recognize the principles of state sovereignty and lacks any meaningful opportunity for congressional review and acceptance; and

WHEREAS, the United States Trade Representative is currently negotiating the terms of a proposed Trans-Pacific Partnership Agreement, which will have a significant effect upon the citizens and commerce of the State of Maine; and

WHEREAS, there is a current opportunity for improving the process by which significant foreign trade policy agreements such as the Trans-Pacific Partnership Agreement are negotiated; now, therefore, be it

RESOLVED: That We, your Memorialists, respectfully urge and request the President of the United States and the Congress of the United States to improve the process by which United States trade agreements are developed and implemented in order to encourage meaningful transparency and appropriately acknowledge the vital role of state sovereignty and afford more meaningful opportunity for congressional review and acceptance

When even the state governments are complaining about the lack of transparency in trade negotiations that impact them, can the USTR really continue to pretend that there are no problems with the way it goes about these negotiations?

Filed Under: maine, tpp, trade agreements, trade negotiations, ustr

Hollywood Gets To Party With TPP Negotiators; Public Interest Groups Get Thrown Out Of Hotel

from the yeah,-that-doesn't-look-corrupt-at-all dept

We've been talking about the ridiculous levels of secrecy around the TPP (Trans-Pacific Partnership) agreement -- a trade agreement that is being designed to push through basically everything that Hollywood wants in international copyright law. Last week, we mentioned that various civil society groups were planning to hold an open meeting about TPP in the same hotel where the negotiations were being held (in Hollywood, of course).

However, it appears that once the USTR found out about this, it got the hotel to cancel the group's reservation at the hotel. According to Sean Flynn, the Associate Director of the Program on Information Justice and Intellectual Property (PIJIP) at American University:

The public interest briefing was booked last week and advertised to all delegations, including the host USTR. An hour after the invitation was sent, we received a cancellation of our venue by the hotel. The cancellation by by Sophie Jones, Event Sales Manager, Sofitel Los Angeles stated:

“I am sorry to be the bearer of bad news but unfortunately we will not be able to move forward with your luncheon for Tuesday January 31st. It was brought to my attention that we have a confidential group in house and we will not be allowing any other groups in the meeting space that day. Again, my apologies for the late notice. Hopefully we can work together in the near future.”

Okay. I guess if no other groups are allowed in the meeting space that day it's understandable. Except... oops... someone in the group confirmed that the hotel was lying:

After receiving the cancellation, members of an advocacy organization called the hotel and were able to book a room for a claimed private event not related to the TPP. Apparently only TPP-related events were banned from the hotel at the request of an unidentified party. USTR is serving as the host of this meeting.

Well, at least MPAA execs were similarly blocked from access to the negotiators, too, right? Nope:

The film industry did not have similar problems – they hosted a multi-hour tour of 20th Century Fox Studies last night, led by a representative of the studio’s government relations office.

Yeah. This is what corruption looks, smells and tastes like. And the MPAA still doesn't get it. They still think that backroom deals like this are fine and that the public won't notice or care. That's quite a bet to make, and one they may regret.

Filed Under: acta, hollywood, secrecy, sopa, tpp, trade negotiations
Companies: mpaa

Good News, Bad News: ACTA, TPP And Lessons Not Learned

from the enough-is-never-enough dept

As attention gradually shifts from the Anti-Counterfeiting Trade Agreement (ACTA) to the Trans Pacific Partnership (TPP) agreement, Kimberlee Weatherall at the University of Queensland, Australia, has had the excellent idea of looking at them as part of a larger trend in a study entitled "Intellectual Property in ACTA and the TPP: Lessons Not Learned":

In this paper I am interested in what ACTA as it emerged from the negotiating process has to teach us about the negotiation of international agreements in IP, and in whether we can see any evidence that those lessons have been learned or are being applied to the TPP negotiations.

What emerges is a fascinating picture of good news and bad news. For example, the bad news is that ACTA goes well beyond the enforcement provisions of the previous benchmark trade agreement TRIPS:

The provisions of ACTA are far more elaborated than any other existing multilateral agreement. The obligations included in ACTA extend considerably beyond TRIPS as the latter relates to enforcement. Examples of TRIPS-plus provisions include the obligations to provide for an account of profits as a remedy for IP infringement, to provide statutory or at least additional damages and legal costs, obligations on an infringer or alleged infringer to provide information about the origin and distribution network of the infringing goods, powers for customs authorities to provide right holders with information where goods have been seized at the border, broader criminal provisions including secondary criminal liability for aiding and abetting activities and liability of corporate persons, an optional camcording offence, and provisions on enforcement in the digital environment that have no equivalent in TRIPS and include detail not found in the relevant WIPO Treaties.

But the good news is that ACTA was originally much worse, and lacked many crucial safeguards:

However, the final text of ACTA concluded in December 2010 is very different from the early leaked texts that started to emerge in January 2010. The Final Text retreats from some of earlier proposals for even stronger and less qualified IP enforcement measures.

Overall, the finalised version of the ACTA introduced a series of safeguards, exceptions and protections for users and parties to litigation, backed away from significant strengthening of the enforcement apparatus in relation to patents and geographical indications; left the scope of border measures in the hands of individual countries, almost completely abandoned any attempt to dictate the way that enforcement will occur in the digital environment or the ways that intermediaries in that environment will be regulated, and significantly watered down the provisions on criminal enforcement. In all these areas, the countries who have, historically, been the most enthusiastic proponents of strong IP law and strong IP enforcement, could not reach agreement.

Weatherall draws an important conclusion from this retreat:

One way to see ACTA, then, is as an exemplar of the maximum level of enforcement that will draw support from these important countries, and, hence, as a maximum set of provisions that could conceivably be multilateralised in some future global negotiations, even before the interests of large developing countries and the BRIC countries are taken into account.

In a sense, bad as ACTA is, it represents the worst that might receive support from other nations around the world, particularly the key ones who were not involved in ACTA – Brazil, Russia, India and China.

And yet despite this failure to get its more extreme proposals accepted by the other participants during the ACTA negotiations, the US does not seem to have drawn the same conclusion. Based on the few leaked documents we have from the secretive TPP talks, Weatherall notes:

Assuming these leaked documents are genuine, they demonstrate a divide between the largely TRIPS-consistent, broad and general suggestions of New Zealand and Chile on the one hand, and very detailed US proposals which are not only TRIPS-plus, but go further than the chapters included in previous US trade agreements and further, notably, than ACTA.

Further, the TPP draft produced by the US includes none of the safeguards for users and parties to litigation which were negotiated into the ACTA, such as the inclusion of a reference to TRIPS Articles 7 and 8, allowance for the protection of privacy, a requirement that procedures be fair, equitable, and proportionate, and that measures not create barriers to legitimate trade.

For TPP, then, the US is trying to rewind the clock on the ACTA negotiations, and start once more from a negotiating position that even fellow ACTA participants thought went too far.

In sum, the US is treating neither its existing FTAs which the US has agreed with parties involved in the TPP negotiations, nor its past negotiations with Congress in the form of the May 10, 2007 Agreement, nor ACTA, as a ceiling for the IP provisions it will seek to include in the TPP. Rather, the US appears to be treating past FTAs and ACTA as a starting point on which to build further and stronger IP-related obligations. The wisdom of this approach is questionable, to say the least.

Once again, that's both good news and bad news. It's good news that the US may be setting itself up for yet another climbdown in this area, as happened with ACTA, if the other nations simply refuse to accept those positions. That would mean that the TPP agreement won't be as bad as it looks in the leaks.

The bad news is that the US clearly does not currently accept that there will ever be a "ceiling" or "maximum level of enforcement" as Weatherall puts it. Put another way, however few counterbalancing rights the public has now in the realm of intellectual monopolies, the US aims to reduce them further.

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Filed Under: acta, copyright, tpp, trade negotiations

Out ACTA-ing ACTA: All TPP Negotiating Documents To Be Kept Secret Until Four Years After Ratification

from the it's-a-secret-it's-a-secret dept

The Anti-Counterfeiting Trade Agreement (ACTA) has now been signed by several nations – even if its actual status is by no means clear. But that doesn't mean governments have finished with their trade negotiations behind closed doors. As Techdirt reported earlier this year, the Trans Pacific Partnership (TPP) agreement is, in some ways, even worse than ACTA, and looks to be a conscious attempt to apply the tricks developed there to circumvent scrutiny yet further.

For example, like ACTA, TPP is being negotiated in secret. But that, apparently, is not enough: a memorandum has been signed that stipulates only the final treaty will be revealed at the conclusion of the negotiations:

The parties have apparently agreed that all documents except the final text will be kept secret for four years after the agreement comes into force or the negotiations collapse. This reverses the trend in many recent negotiations to release draft texts and related documents. The existence of agreement was only discovered through a cover note to the leaked text of the intellectual property chapter.

Not only that, but it seems that even the memorandum about secrecy is going to remain secret:

An open letter to Prime Minister John Key and Trade Minister Tim Groser from unions, civil liberties, church, public health, development, environmental and trade justice groups has demanded the release of the secrecy document. The Green Party and Mana Movement have both endorsed the call.

The release of the secrecy memorandum was requested during the Chicago round of negotiations in early October. New Zealand lead negotiator Mark Sinclair has asked for responses from the other countries, but there is no guarantee they will agree.

In fact, if the ACTA negotiations are anything to go by, they certainly won't, because the US won't let them – it blocked attempts by other negotiating parties to release ACTA drafts.

It's not hard to see why the US wants to keep its dirty laundry private. Like the recently-signed bilateral trade agreements with Colombia, Panama, and South Korea, these treaties are incredibly one-sided, essentially giving the US media companies everything they are demanding in an attempt to prop up their dying business models through disproportionate copyright enforcement legislation around the world. The drafts would presumably make that much clearer.

Of course, that these US industries should seek such advantageous terms is only natural. What's not so clear is why other countries continue to acquiesce, when the treaties are plainly bad for both their citizens and their own creative industries (although various Wikileaks cables give us a hint). A good first step in re-asserting their sovereignty would be to insist on real transparency as a pre-condition for trade negotiations with the US – and no more secret memoranda about secrecy.

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Filed Under: acta, secrecy, tpp, trade negotiations