TPP Transparency Letter Covered by Ars Technica

"...On May 9, 2012, 30 legal academics wrote a letter to USTR's Ron Kirk “to express our profound concern and disappointment at the lack of public participation, transparency, and open government processes in the negotiation of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP).”

Kirk responded immediately, saying that he would provide a more detailed response later, but he wanted to make one thing clear right away:

“You may be surprised to know that USTR has conducted the most active outreach to all stakeholders relative to the TPP than in any [free trade agreement] previously, including the proposed disciplines on intellectual property,” Kirk wrote.

As the academics pointed out in their reply, this was setting the bar pretty low. “USTR’s consultation process consists of choosing with whom to share its international legislative proposals and leaving the rest of the country in the dark until the deal is done,” they wrote.

"We are dedicated to transparency, but sometimes what you put in a negotiating document is a negotiating position," said Ambassador Demetrios Marantis, the deputy US Trade Representative, in an interview with Ars. "It’s not necessarily what your actual position is. It’s in the judgment of the negotiators."

For the process to work well, negotiators argue they need to keep these negotiating positions private.

“I understand that many trade negotiations involve some amount of secrecy that can be difficult to do in public,” said Michael Geist, a law professor at the University of Ottawa and a signatory to the May 9 letter, when I spoke to him.

“But it seems to me that we’re incorporating stuff that hasn't been part of trade agreements until recently, and where there has been multilateral trade agreements there hasn't been more transparency. What you risk is a 'take it or leave it' approach.”

Beyond the process concerns around the fact that TPP has been negotiated essentially in secret for the last few years, the leaked IP chapter has given critics more substantive ammunition.

Among the most important are a lack of definition of fair use and public domain rights, extension of copyright to “life plus 70” (putting it in line with American law), treating temporary copies (such as in a cache or a video buffer on streaming sites) as copyrightable, and a ban on the circumvention of digital locks, among others..."


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