One of the worst parts of the Anti-Counterfeiting Trade Agreement (ACTA) was its ridiculous secrecy, under which it was easy for negotiators and industry reps to see draft text, but impossible for the public to do so except through leaks. Thankfully, those leaks showed just how bad ACTA was going to be for the Internet, and public pressure helped remove the worst provisions.
But the basic approach to doing deals didn't die, and it's back again this week as negotiators meet in Hollywood to discuss a new, totally secret intellectual property chapter for the Trans-Pacific Partnership (TPP), a regional trade agreement.
Civil society and digital rights groups would dearly love to be part of the process; barring that, they'd like to know simply what the process is so that they can at least mount press conferences of their own. But even that is difficult.
According to Sean Flynn, an American University professor who has worked on these issues for several years, the cloud of secrecy is again in force. "Although there has been no official announcement about the planned meeting, public interest advocacy organizations have determined that intellectual property negotiations will be held January 31-Feb 4th at a hotel in West Hollywood," he wrote last night in an e-mail.
Flynn helped to organize a "public interest briefing" that would take place at the hotel and be open to any TPP negotiators interested in hearing a different perspective. It was not to be:
The public interest briefing was booked last week and advertised to all delegations, including the host USTR [US Trade Representative]. An hour after the invitation was sent, we received a cancellation of our venue by the hotel. The cancelation 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.”
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.
The meeting did take place... at a restaurant across the street from the hotel. A later, two-hour conference was held at the USC Law School and is available for streaming. The whole episode sounds both petty and farcical on USTR's part, but the issues are deadly serious.
Last year, versions of the TPP's US-written IP chapter leaked; its provisions went well beyond even ACTA, which was already the new high-water mark for IP enforcement. Where do things stand now? Are the other TPP countries on board with the US approach? Who knows! It's all secret.
While ACTA at least claimed not to exceed US law, Flynn and other professors allege that the leaked TPP IP chapter does go beyond what's in US law, doing things like extending copyright protection even to temporary "buffer" copies so crucial to digital devices.
As for USTR, it claims to be conducting "an unprecedented fifty-state domestic outreach strategy for TPP," and it's even hosting a largely worthless TPP blog. People can send comments to USTR through a special Web form, and negotiators do take in presentations from civil society groups on some occasions.
But negotiators still insist of shielding their work from the public, even on matters of increasing public concern, such as digital copyrights. And each agreement they negotiate mysteriously ends up just a bit tougher than the one before it. The time for "trust us" is over, and unlike ACTA, people want meaningful access to TPP documents before the draft text has been so worked over that no substantive change is possible. But without significant public pressure, that's not going to happen. Again.
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