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

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    The U.S. has included chapters on Intellectual Property (IP) in many of its trade agreements and negotiated these trade agreements in secret. Secrecy in negotiating (IP) aspects of trade agreements poses a grave danger to the public policy goals underlying U.S. copyright and patent laws. The public, which is affected by these agreements, is not allowed to present its views on proposed provisions. However, representatives of IP owners, through their membership in one Industry Trade Advisory Committee (ITAC), have the opportunity to influence their formulation.

    The House Ways and Means Committee, Subcommittee on Trade is examining the functioning of trade advisory committees. The Subcommittee held a hearing on this issue on July 21st and kept the hearing record open for members of the public to submit written testimony. Yesterday, PK and the EFF filed joint testimony in the record of the hearing. In our testimony, we urge Congress to amend the Trade Act to allow greater public input in the process of formulation of IP chapters of trade agreements and ensure greater transparency in the process of negotiation.

    By way of background, the Trade Act of 1974 provided for the establishment of 3 tiers of advisory committees to advise the United States Trade Representative (USTR) during the process of negotiation. The first two tiers are charged with providing policy advice and the third tier is charged with providing technical advice with respect to particular sectors of the economy, such as consumer goods, forest products, textiles etc. The third tier includes a committee on intellectual property issues- ITAC 15.

    The Federal Advisory Committees Act (FACA), which applies to trade advisory committees, requires the composition of these committees to take into account interests of all affected by their operation, including public interest. Congress enacted this provision to end industry domination of advisory committees. Yet, the Trade Act does not specify how this requirement may be applied to tier 3 committees. The USTR and the Department of Commerce, which administer ITAC-15, take the position that, with the exception of a few committees, non-business interests cannot be represented on tier 3 committees. Thus, ITAC-15’s membership includes groups representing the interests of IP owners such as the RIAA, the MPAA, and PhRMA (Pharmaceutical Research and Manufacturers Association). However, with the exception of one public health representative, there is no public interest representation on ITAC -15.

    Perhaps because of this, IP chapters of trade agreements have ignored the public interest and assumed international obligations harmful to the American public. For example, the U.S. – Australia Free Trade Agreement (FTA) requires both countries to provide copyright owners the exclusive right “to authorize or prohibit all reproductions, in any manner or form, temporary or permanent.” U.S. law does not extend protection to temporary reproductions that are transitory in nature and courts are divided as to how non-transitory a reproduction has to be in order to implicate rights of copyright owners. If temporary or transitory reproduction were considered a right granted to copyright owners, Internet Service Providers (ISPs), Internet based services such as webcasters and online music stores, and consumers would all be exposed to liability for copyright infringement during the course of routine activities. Similarly, the ongoing ACTA negotiation also raises the specter of eroding consumer interests. In order to prevent this, Congress should amend the Trade Act to allow public interest representation on ITAC 15.

    In addition, the process of negotiation should be transparent. The trade Act gives the USTR discretion to close documents and meetings of tier 3 advisory committees to the public. To ensure transparency, Congress should amend the Trade Act to ensure that this power does not result in a default rule of secrecy. While revealing all information may not be feasible, the USTR should, at a minimum, release information such as meeting dates, times and agendas; industry studies or other presentations made available to the USTR urging adoption of certain provisions in agreements; and draft negotiating texts after they are tabled before negotiating partners. This would allow members of the public to provide meaningful input and the USTR would benefit from their expertise.

    IP issues do not fit neatly within trade agreements. The justifications for secrecy that may apply to traditional aspects of trade agreements, such as tariffs, do not apply to IP aspects. Lifting this veil of secrecy is particularly important as IP industries abandon multilateral forums such as WIPO for agreements such as ACTA. As Congress reviews the functioning of trade advisory committees, we hope it will act on our recommendations.