The Most Important Trade Agreement That We Know Nothing About
The Trans-Pacific Partnership could completely change intellectual property law. But the details are being kept secret.
The only thing that I knew with certainty was that I didn’t know much about what was happening in the TPP negotiations, and therefore I couldn’t offer much in the way of substantive questions and input, which was the point that I wanted to make to the negotiators. Other than “cleared advisors”—primarily industry representatives—no one outside the inner circle knows what is currently being negotiated in TPP. Most members of Congress do not even know what is in TPP. Indeed, the last publicly available text of TPP’s intellectual property chapter is a leaked version dated Feb. 10, 2011. Nonetheless, the goal of the “stakeholder engagement event,” as the TPP “Welcome Stakeholders!” packet explained, was to provide an “open and productive forum.” Yet the public knows more about the aggregate numbers of nuclear warheads the United States and Russia have deployed on intercontinental and submarine-launched ballistic missiles under the New Strategic Arms Reduction Treaty than it does about U.S. negotiating positions in TPP. Thus, on “openness,” the TPP negotiators and USTR have failed.
Does getting an “F” on openness lead to an “F” on productivity? That depends on how you assess the productivity of allowing civil-society groups like Public Citizen and academic institutions like American University Washington College of Law’s Program on Information Justice and Intellectual Property to address the negotiators and attempt to ask questions and offer meaningful input based upon a 16-month-old leaked text that may no longer reflect what the negotiators are actually negotiating, as they did on July 2. On that rubric, based upon my own observations in San Diego, a “D” would seem like a generous grade.
Especially given the leaks, failing to release a current TPP text seems odd, largely pointless, and arguably counterproductive. Now is the time when expert (“nerd”) questions and input are most needed. TPP, unlike the standard trade agreement, requires public input because it involves broad questions like what the Internet will be, not a relatively narrow trade question like how many automobiles should be traded with Korea.
This same closed-door mentality that killed the Stop Online Piracy Act and has led to the near death of the Anti-Counterfeiting Trade Agreement. It likely will kill TPP if its negotiations do not change course. At a minimum, it will lead to an imbalanced and poorly drafted law.
More broadly, the TPP negotiations are part of a larger trend to maintain the last vestiges of a predigital society in which keeping a secret was much easier. But especially in lawmaking, officials should be at the vanguard of adjusting to the new contours of information flows. USTR, other countries, and all lawmakers should embrace the informed question and embrace the nerd. They will learn much in the process and antagonize fewer people for the betterment of all. They will have a better chance of creating a substantively and procedurally 21st-century agreement, which should not just be USTR’s goal but the collective goal of the United States. But they need to embrace the informed questions quickly, as the 14th round of the TPP negotiations are now scheduled in just a few weeks.
This article arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.
David S. Levine is an associate professor at Elon University School of Law, an affiliate scholar at the Center for Internet and Society at Stanford Law School, and the founder and host of Hearsay Culture on KZSU-FM Stanford University.