Electronic Frontier Foundation | 26 October 2016
What do trade agreements do for open access—and what don’t they do?
By Jeremy Malcolm
“If you can’t beat ’em, join ’em” seems to have become the tech industry’s attitude towards the current crop of trade agreements, such as the Trade in Services Agreement (TISA) and the Trans-Pacific Partnership (TPP). Their reasoning is just as these agreements can be used by big content to export the most restrictive elements of U.S. copyright law around the world, so too they can be used to export provisions that favor U.S. Internet platforms, such as rules on the free flow of data across borders.
But what about provisions favoring open access? Could trade agreements ensure that U.S. policies on open access, such as the 2013 White House open access memo, are also part of our nation’s trade policy?
They certainly could. But they don’t. As we explained last year, the provisions that America’s closed trade agreements lock into law would, if anything, place barriers in the way of open access initiatives, by enshrining tough protections for digital locks on content, criminally penalizing those who offer access to scholarly works without authority, and prohibiting TPP countries from requiring access to the source code of digital products.
The absence of support for open access in trade agreements comes as no surprise when considering that there are no representatives from the education sector, nor any library or archive representatives, in the relevant closed-door trade advisory committees that advise the U.S. Trade Representative on trade policy, such as the Intellectual Property Rights committee.
This contrasts with more open fora such as the World Intellectual Property Organization (WIPO), at which the library and archive communities are far better represented, and where the possibility of a future instrument that might preserve and promote open access policies is at least being openly discussed.
Open access has the potential to promote trade in high tech products and services, by assisting in the free flow of ideas and knowledge across borders and thereby stimulating innovation and business development around the world. In many ways, if we accept that intellectual property policy has a place in trade agreements at all, then open access rules should be a natural fit for inclusion amongst these rules.
The fact that open access policy hasn’t rated so much of a mention in current trade discussions doesn’t come as a surprise, but it does represent another indication of the irrelevance of these captured negotiations to large segments of the community, and of the pressing need for reform of the processes by which they are negotiated.