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Secret negotiations, empty promises: Copyright policymaking needs sunlight for better outcomes


We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Today’s topic for Copyright Week is Transparency: Whether in the form of laws, international agreements, or website terms and standards, copyright policy should be made through a participatory, democratic, and transparent process.

Creative Commons has been following the development of several multilateral trade agreements such as the renegotiation of the North American Free Trade Agreement (NAFTA), the Trans-Pacific Partnership (now known as the Comprehensive and Progressive Agreement, or CPTPP), and the EU-Mercosur Association Agreement (EU-Mercosur).

These sweeping and complex agreements attempt to introduce trade regulations on a wide variety of products, including goods and textiles, agricultural products, and automotive parts. In addition, the agreements introduce provisions regarding environmental regulation, pharmaceutical procurement, intellectual property, labor standards, and food safety.

These trade negotiations typically contain copyright provisions that would affect the commons and the public domain, creativity and sharing, and user rights in the digital age.

Secrecy ensures outcomes are serviceable to power

A fundamental flaw with NAFTA, CPTPP, EU-Mercosur, and nearly all other trade agreements is that the texts and negotiating meetings are entirely opaque to the populations those agreements would cover. They are developed and negotiated in secret—at least from the perspective of the public and civil society. Sometimes industry representatives and other business interests are invited to view texts or give recommendations on proceedings, typically  after they’ve agreed to a non-disclosure agreement (NDA) forbidding them from sharing the information with anyone else.

The draft text of a trade agreement is kept secret for a reason. If the public got a glimpse of what was in the document, they’d be totally opposed to it.

How does this play out? It means that  TPP was already complete and the text was published before we could accurately analyze (and rightly criticize) the provisions inside. Civil society organizations like Creative Commons and the broader public have been put at an extreme disadvantage, as only a privileged few stakeholders invited into the closed negotiation circle have had their interests fully considered. And civil society increasingly has to rely on leaks in order to discover what is going on behind closed doors.

It’s not surprising then that we see that when intellectual property is put on the bargaining table, there’s a significant push to drastically increase enforcement measures for rights holders, lengthen copyright terms, and demand harsh infringement penalties. If incumbent industries and rightsholder associations are the ones getting access instead of the public, the objectives of the negotiators will align with those parties that have the ability to shape it.

As we’ve written, this secretive copyright policy making process has a disconcerting effect:

Despite the various international agreements that aim to harmonize copyright, individual nations continue to use multilateral trade pacts as an opportunity to add increasingly onerous requirements and further lock up copyrighted works. This kind of venue shopping harms the commons and users by creating a “ladder effect”: increased IP protections are negotiated between a few countries, and then used to pressure other nations to adopt, rather than conducting a fair, public, and international discussion.

In a letter to NAFTA negotiators at the restart of that process, we demanded reforms to make the proceedings more transparent, inclusive and accountable. We said that it is unacceptable that binding rules on intellectual property, access to medicines, and a variety of other trade-related sectors will be reworked within a process that is inaccessible and often hostile to input from members of the public. All trade negotiations should be made through procedures that are transparent to the public and which include all stakeholders. Increased transparency and meaningful public participation will lead to better outcomes.

The lights are on, but nobody’s home?

Even though they rely on secrecy, governments working on multilateral trade agreements realize they can’t keep the public out forever. Some have set up some sort of feedback mechanism to collect the views of stakeholders. For example, during the lead up to the re-negotiation of NAFTA, Creative Commons and thousands of other interested parties submitted comments to the Canadian, Mexican, and U.S. consultations regarding the negotiating priorities and objectives. Are they listening? It’s not clear that any of our concerns (or those of like minded organisations working in the public interest) are reflected in the priorities published by the member governments (for example, see the summary U.S. objectives).

The examples generalize beyond trade negotiations. The EU has downplayed input from the public regarding its review of the copyright rules, discarding some, ignoring others, and demonstrating bias for professionally-written, pro-business, and English language responses. In the U.S., the Federal Communications Commission (FCC) was harshly criticized for a broken public consultation regarding its proposed rulemaking to repeal net neutrality, with evidence revealing responses from individuals who did not consent to it, and even comments from dead people.

Lather, rinse, repeat

At this point we feel like a broken record: the process of copyright policy making needs to drastically change in order to adequately take into consideration the rights of users and the public interest. It’s safe to assume that copyright and other intellectual property rights will continue to be included in bilateral and multilateral trade negotiations, so it’s imperative that the negotiations be radically reformed to make the proceedings transparent, inclusive and accountable. It’s absolutely crucial that negotiators lift the un-democratic and counterproductive secrecy that has pervaded most of the recent discussions.

As mentioned before, we would like to see: public release of text proposals by governments before negotiations with clear processes established for members of the public to comment on them; consolidated versions of negotiating texts published between negotiating rounds; locations and times of key meetings announced well ahead of time; and the establishment of consultative trade groups that are broadly representative of both business and public interest stakeholders with a commitment to conducting deliberations openly.

Posted 17 January 2018