This week an interagency hearing was hosted by the Office of the United States Trade Representative regarding Mexico’s addition to the secretive Trans-Pacific Partnership (TPP) negotiations. The pro-Internet community has largely been shut out of these discussions, and judging from the priorities highlighted by this latest hearing, there is little intention of changing that anytime soon.
Mike Palmedo of Infojustice.org reported on the three witnesses who testified on the issue of copyright. You can find the full details of that post here, or read our summary below.
James Love from Knowledge Ecology International (KEI) spoke to the issue that the has been highlighted by the pro-Internet community for months: the fact that these negotiations are not transparent, and that only lobbyists and corporate interests have been invited to participate. Love points out the major implications of this:
The addition of Mexico and Canada to the TPP negotiations creates a huge trading block, so its rules on IPR (and many other topics) will become new global norms. It is therefore deeply offensive that these legally binding durable norms are being fashioned in secret.”
The special treatment being given to corporate interests becomes even clearer when you look at how these groups are briefed on the negotiations. As Love notes,
The Chair of the advisory board for [Intellectual Property] is chaired by a PhRMA official while the public has no access to text. Sen. Wyden and many other Members of Congress have requested access to the text, and the public doesn’t understand why they’re shut out. Why are the proposed [Intellectual Property] provisions shown to drug companies but not to Doctors Without Borders?”
Fair use and the need for exceptions
Love also highlights how the TPP needs to consider the differing needs of the participating nations, especially as countries like Mexico join the negotiations. For example he points out that lower income countries should not be required to have the same level of intellectual property regulation as high income countries.
These copyright provisions are especially problematic for vulnerable groups. For example, the TPP contains no provisions to expand copyrighted materials for people with disabilities, such as visual impairments, while it does seek to raise the price of drugs, supporting profit- rather than patient-focused research.
The TPP also does not contain the Fair Use provisions seen in U.S. copyright law which encourage creativity and innovation. Love notes,
“Industries that depend on fair use to function and innovate are massive platforms of innovation in the U.S., and are totally reliant on limitations and exceptions to copyright. Yet the U.S. proposal on limitations and exceptions is more restrictive than current rules in [other free trade agreements]”.
Mexico’s laws aren’t strict enough
However Love seems to have been in a minority, as the other witnesses, representing corporate interests, testified that Mexico’s copyright law just isn’t strict enough for the TPP, and it will have to change that.
Contrary to Love’s comments on Fair Use, Eric Schwartz from the International Intellectual Property Alliance (IIPA) argued that “[t]he more countries harmonize copyright, the easier it is to disseminate copyrighted works across borders”. This ultimately means harmonizing up to the most restrictive standard.
Asked if there was any evidence that Mexican rightsholders were being negatively affected in other countries due to piracy, “Schwartz answered that he does not know of evidence specific to the question. But in piracy generally, successful producers become targets”. Jay Taylor from the Pharmaceutical Research and Manufacturers Association echoed these sentiments, stating that “Mexico needs to strengthen its enforcement... including through injunctions”.
These perspectives are unsurprising given that the TPP seeks to expand the power of conglomerates who make their money from strict copyright enforcement, however it is in direct conflict with Love’s emphasis on the importance of Fair Use provisions to encourage innovation.
Palmedo’s report suggests that these negotiations are continuing to shut out the pro-Internet community, giving preferential treatment to corporate interests and little consideration for the differing needs and resources of member states, and viewing innovation as secondary to profit.
This isn’t going to change unless these negotiations are made transparent, accountable, and open to public participation and to all interested stakeholders.