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EU-US trade negotiations continue shutting out the public - when will they learn?

REUTERS/Francois Lenoir

This article was originally published on eff.org on 3 October 2014.

Negotiators from across the Atlantic met this week [29 September-3 October 2014] in Chevy Chase, Maryland to continue discussing the terms of the EU-US trade agreement, the Transatlantic Trade and Investment Partnership (TTIP). This is the seventh round of secretive meetings, and not much is known about the exact issues that are on the negotiating table. However a press release issued today [3 October] confirms that "intellectual property" (IP) rights were one of four areas given focus in this round of negotiations. Given how notoriously captured by corporate interests IP discussions in trade negotiations are, this has us very worried.

The TTIP negotiations have been rife with controversy. Leaders from both regions rightly fear that they will face the same huge opposition from the public as they did with the Anti-Counterfeiting Trade Agreement (ACTA) two years ago. Tens of thousands of protestors across Europe headed to the streets and pressured their representatives to reject ACTA, and succeeded in defeating the agreement when the EU voted down its ratification. EU and US trade officials may have finally realized that Internet users will not let them get away with including draconian copyright provisions in omnibus treaties. But as they try to allay fears and claim that they no longer seek to include such copyright terms in TTIP, they still have not learned the more important lesson from ACTA - shutting out the public from seeing or participating in a given policymaking venue only guarantees that the public will see those resulting policies as illegitimate.

Intellectual Property Beyond Copyright

If copyright is supposedly out (though how are we to know, since it's secret?), what other so-called intellectual property rights might be included in TTIP? First, patent law remains on the table. Whilst the EU and the US already have similar substantive patent laws, our concern is that by cementing the existing form of these laws in a binding trade agreement, much needed substantial reforms in this area may become much more difficult.

Second, as we mentioned in a previous post, there will almost certainly be new protection of "trade secrets." Since this is so new, it's worth spending a bit more time on its ramifications. Trade secrets are different to either copyright or patents, in that they only protect information that is disclosed in confidence and kept secret - but they are otherwise broader in what they protect, potentially including any economically valuable information at all, whether or not it is creative or inventive - and for a potentially infinite length of time. For example:

  • In one recent case, a computer security expert was sued under trade secrets law by Microsoft for supplying unreleased security patches ("hotfixes") for the Windows 8 operating system to a tech blogger.
  • In another, one online dating service sued another for $6 million for allegedly copying its system for organizing speed dating events.

The scope of any agreement in the TTIP on trade secrets laws is unclear, as is how that agreement might effect US law. But without offering any comment on the merits of the lawsuits mentioned above, they nevertheless make it obvious how trade secrets law could be misused to limit access to security information, and to stifle technological innovation. Thus the inclusion of new provisions on trade secrets in the TTIP should alarm us.

Investor-State (AKA Corporate Sovereignty) Provisions

Outside of intellectual property, there are other provisions that pose a huge threat to users. One of the most controversial aspects of TTIP is the investor-state provisions. Under investor-state dispute settlement (ISDS), if a regulation gets in the way of a foreign investor's ability to profit from their investment, the investor can sue a country for monetary damages based on both alleged lost profits and "expected future profits." Investor-state provisions therefore require the creation of a new court system, because national courts apparently can't be trusted to administer this kind of lawsuit.

The construction of these investor-state courts hardly allow for impartial rulemaking. In existing ISDS courts, they are comprised of three private-sector attorneys who take turns being judge and/or corporate advocate. Corporate plaintiffs in ISDS cases can demand hundreds of millions, or even billions of dollars in damages against countries. Even a threat of an ISDS case can be enough for nations to strike down whatever policy a corporation doesn't like, because they simply cannot afford to lose and be forced to pay such exorbitant penalties.

Since these supposed lost "investments" can even include intellectual property, big media companies could use ISDS to undermine pro-user policies. For example, even fair use in the United States could be challenged using ISDS. Under the broad powers that this system affords to corporations, big media companies could use ISDS to claim that some law or court ruling that expands fair use in the US poses a threat to their copyright protection, and therefore their future profits. Or what's more likely to happen is that they could use the threat of an ISDS lawsuit to squash the pro-user policy before it even passes.

Thankfully there's increasing resistance to omit ISDS provisions from trade agreements. The Comprehensive Economic and Trade Agreement (CETA), is a trade deal between Canada and the EU that was concluded recently. Since the text was officially made public last week the German Economy Minister indicated that they would reject both CETA and TTIP, as long as it included those provisions. Then this Summer, the European Commission held a public consultation on ISDS. Organizations and individuals across Europe took part en masse, to tell their representatives that they did not want public policy to be driven by corporate interests. By the closing date they received over 150,000 responses. At the chief negotiators' briefing this week, the EU Chief Negotiator stated that they have frozen discussions on ISDS until they could process and analyze all of the responses they received. Hopefully, they will listen to the public's concerns and remove the toxic, undemocratic ISDS provisions altogether.

Free Flow of Information

Although the EU negotiators have offered their assurance that the TTIP will not seek to harmonize privacy laws across the Atlantic, indications are that the US negotiators will continue to propose provisions that impact on the free flow of data across borders, as part of the agreement's e-commerce chapter. Most likely these may mirror those being discussed in the equally secretive Trans-Pacific Partnership, which in turn shares language with the US–South Korea trade agreement.

A US-based tech trade association, the Internet Association, has also suggested the inclusion of new provisions on intermediary liability in trade negotiations such as the TTIP. Such provisions would seek to export CDA 230 of United States law, which protects Internet intermediaries from liability for the speech of their users, and in turn makes those intermediaries more likely to be willing to host that speech online. This law has played a very important role in creating an enabling environment for creativity and innovation on the Internet in this country, and thereby in other countries which access content on US-based content services.

But note that CDA 230 was passed by democratically elected representatives in Congress. The extension of this important Internet law into trade agreements, perhaps in a stunted or mutated form, by unelected officials who negotiate behind closed doors, could end up as a bad deal. Which leads into our next and final point.

Growing Public Pressure for Transparency

As with all of these trade agreements, the fundamental issue is transparency. The secrecy shrouding these deals leads to harmful, draconian digital policies. As a result of sustained pressure from civil society, the European Ombudsman launched two investigations into the Council of the EU and the European Commission over the lack of transparency in TTIP, and now has called for a public consultation on TTIP's transparency issues.

The European Commissioner conducted a public consultation on ISDS, and the European Ombudsman is now open to receiving comments on the TTIP's transparency issues. So what is the US Trade Representative doing to enable public participation? Despite all their claims of being transparent, they have pretty much made no effort to include public input into the negotiations. According to Knowledge Ecology International, who attended the TTIP stakeholder engagement sessions in Maryland, they were only given 10 minutes to speak to negotiators, and at a venue that was not easily accessible to the public. So much for engaging with negotiators.

As long as these omnibus treaties lock out the public from negotiations, we stand opposed to any terms that will impact users' rights. It is impossible to create laws that respect common, public interests as long as corporate representatives and trade bureaucrats are the only ones who are able to see and craft their provisions. It's a wonder that EU and US trade representatives have not yet learned their lesson from ACTA. When they shut out the public and continue to resist even minimum requirements for democratic legitimacy, then the public has every right to reject such policy instruments outright.

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