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.
Photo by Hemera/Thinkstock.
Imagine being invited to formally offer input on a huge piece of legislation, a proposed international agreement that could cover everything from intellectual property rights on the Internet to access to medicine to investment rights in the agreement’s signatory countries. For 10 minutes, you’d be able to say whatever you’d like about the proposed law—good, bad, or indifferent—to everyone involved in the negotiations. But there’s a caveat: All of your questions, all of your input, on what may be the most controversial part of the package, would have to be based on a version of the proposed international agreement that was 16 months old. And in that 16-month period, there were eight rounds of negotiations that could have changed any and all of the text to which you had access, but no one could tell you if that version was still accurate.
Would you still take the deal? This is not a hypothetical question; rather, this is the take-it-or-leave-it offer made to the public in May by the United States Trade Representative regarding the intellectual property rights chapter of the massively important but little-known Trans-Pacific Partnership Agreement (TPP). Unfortunately, this modest but sad excuse for public participation was the best offer to ask questions and offer input to TPP negotiators since the public phase of the negotiations began more than two years ago. So civil society groups, academics, experts (“nerds”), and regular Joe concerned citizens said yes.
The above Kafkaesque scenario reveals a truly odd and disturbing 21st-century situation. Asking informed questions is probably man’s oldest form of letting someone know his views. But in 2012, with all of the technology that allows for unprecedented (if not totally unfettered) flows of information, the vestiges of 20th-century secrecy continue to permeate international lawmaking, as reflected in the negotiations of TPP.
TPP is misleadingly labeled as a trade agreement, making it seem like a relatively narrow and limited agreement involving traditional topics like tariffs and exchange of goods—the sort of government-to-government discussions that seem too esoteric to have much impact on the everyday citizen. It is, in fact, much more than that. As explained by the USTR, TPP is an “ambitious, next-generation, Asia-Pacific trade agreement that reflects U.S. priorities and values.” President Obama, who announced the goal of creating TPP in November 2009, has said that TPP will “boost our economies, lowering barriers to trade and investment, increasing exports, and creating more jobs for our people, which is my No. 1 priority.” That sounds pretty important—and more than a little vague. Unfortunately, we don’t know much about it beyond those platitudes.
Here’s what we think we know. Based upon the leaks that have occurred, it seems that an enacted TPP would require significant changes in U.S. and/or other signatory countries’ laws. It would curb public access to vast amounts of information in the name of combating intellectual property infringement (or piracy, depending on your choice of words). The owner of the copyright in a song or movie could use a “technological protection measure”—what are often called “digital locks”—to prevent your access to it, even for educational purposes, and regardless of whether the owner had the legal right to do so. Your very ability to read this article, with hyperlinks in it, could be affected by TPP. So, too, might your access to works currently in the public domain and available free of charge. And these concerns are only related to the intellectual property rights chapter of TPP. There are apparently more than 20 chapters under negotiation, including “customs, cross-border services, telecommunications, government procurement, competition policy, and cooperation and capacity building,” as well as investment and financial services. Technically, TPP would only take effect in the 10 negotiating countries: Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, United States, and Vietnam. Mexico joined recently, and Canada and Japan may soon follow. But in reality, it would also affect citizens of any nations that interact with at least one of those 10—which means even the shut-off North Korea might feel its influence.
Sadly, even the above involves a fair amount of conjecture and speculation, rather than verifiable fact. This procedural bottleneck, fueled by a dogged adherence to a belief in 20th-century-style secrecy, requires direct engagement, even if that engagement is flawed and wildly inefficient. So, on July 2, I traveled to San Diego to take part in an experimental, bizarre, new, and terribly important civic duty: being among a fraction of the nearly 300 “registered stakeholders” to speak to the negotiators attending the 13th round of negotiations of the TPP—even though none of us had any clue what was really going on.
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.