EU-US Trade Negotiations Continue Shutting out the Public—When Will They Learn?

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Nego­tia­tors from across the Atlantic met this week 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 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 the y 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. asset_upload_file816_12714.

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.