PK and EFF Tell Congress: Secret Negotiations Harm the Public Knowledge
PK and EFF Tell Congress: Secret Negotiations Harm the Public Knowledge
PK and EFF Tell Congress: Secret Negotiations Harm the Public Knowledge

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    As many of you know, PK and its friends have been fighting to lift the veil of secrecy that shrouds the Anti-Counterfeiting Trade Agreement (ACTA) negotiating process. The lack of public disclosure has meant that consumer advocates and the general public are left to plead their case in a near vacuum, without the ability to review and consider the documents and positions that the U.S. Trade Representative (USTR) is advancing on our behalf. Meanwhile, representatives of intellectual property (IP) owners belong to a trade advisory committee called ITAC 15, which holds confidential meetings. Through their membership on ITAC 15, IP owners may be able to influence provisions in ACTA.

    So when the House Ways and Means Committee's Subcommittee on Trade invited testimony on the functioning of trade advisory committees, PK and EFF filed testimony urging Congress to bring greater transparency into international negotiations that concern intellectual property and also to ensure public interest representation on ITAC-15.

    Here’s some background on provisions in the trade act that relate to trade advisory committees and their operation: The Trade Act of 1974 established three tiers of advisory committees to advise the President, the USTR, and Congress. The Advisory Committee for Trade Policy Negotiation is the first tier committee and is charged with giving general trade policy advice to the President. Five tier 2 advisory committees are charged with giving policy advise in specific areas such as environment, labor, agriculture, intergovernmental policy, and African affairs. The third tier consists of 16 Industry Trade Advisory Committees and 6 Agriculture Technical Advisory Committees, each charged with giving technical advice in a specific subject matter area to aid in the process of negotiation. Because some negotiations can involve sensitive material or negotiating positions, the law allows the USTR to close meetings and withhold documents from the public. Furthermore, although Congress intended for trade advisory committees to represent the public interest as well as businesses, the language of the statute does not clearly state how this requirement applies to tier 3 committees, including ITAC 15. In the absence of clear direction, the USTR holds the position that ITAC 15 is not open to public interest representation.

    As a result, industry groups such as the RIAA, the MPAA, and PhRMA (Pharmaceutical Research and Manufacturers of America) are members of ITAC 15 while public interest representatives, with the exception of one public health representative, are excluded. This gives the IP industry an opportunity to lock in its favored provisions into trade agreements, even when those provisions reflect controversial or unsettled interpretations of U.S. law. For instance, some free trade agreements contain provisions requiring the signing countries to provide to copyright owners the “exclusive right to authorize or prohibit reproductions, whether permanent or temporary.” Providing exclusive rights in temporary reproductions that are transitory exposes consumers, ISPs and Internet based services to liability for copyright infringement during the course of routine activities. Similarly harmful provisions can easily be part of ACTA. The secrecy surrounding the process further denies consumer representatives an opportunity to prevent such gradual erosion of users' rights.

    Transparency and greater public interest representation are absolutely necessary to ensure that the benefits of international IP agreements extend not only to IP owners but to all Americans. The importance of reforming the law to secure these goals becomes acute as rights owners move away from “inconvenient” democratic forums such as WIPO and call for IP agreements to be negotiated as secret trade agreements. Our testimony suggests means to achieve just these goals. We hope Congress will act on our suggestions.