Electronic Frontier Foundation | 2 May 2016
Why releasing text isn’t enough: behind the scenes of TTIP
By Jeremy Malcolm
Today the draft text of the U.S.-Europe free trade agreement, the Trans-Atlantic Trade and Investment Partnership (TTIP), was leaked by Greenpeace Netherlands. The leak reveals for the first time the current state of the text of 15 chapters and annexes, along with a confidential commentary from the European Union.
There’s not much concerning digital rights issues in the current text, because text on most of those issues has not been tabled yet. The closest that we have is the Electronic communications/Telecommunications chapter, which despite its broader-seeming title, is almost entirely about the liberalization of the telecommunications sector, and raises few obvious concerns.
In particular we have not yet seen provisions on other digital policy issues, such as the provisions in the TPP’s e-commerce chapter that promote the free flow of information across borders, as well as copyright rules such as those in the TPP’s intellectual property chapter.
Free Flow of Information
There are two reasons why the free flow provisions are yet to be agreed. First, they depend on the U.S. and Europe reaching a common understanding on how to reconcile them with privacy and data protection rules. So far, this is addressed only obliquely through an EU text proposal, "Each Party shall ensure the confidentiality of electronic communications and related traffic data by means of a public electronic communication network and publicly available electronic communications services without restricting trade in services." The parties’ recent agreement on a new Privacy Shield regime goes some way towards bridging their differences on this topic, but that controversial agreement remains vulnerable to legal challenge and is far from a solid framework for the treatment of the same topic in TTIP.
The second reason why provisions on free flow of digital information haven’t found their way into TTIP is Europe’s insistence on maintaining the artificial barriers that require a separate license to be obtained to make digital content available in each country. Further insight into this stand-off comes from a paragraph of the March 2016 document on the State of Play in the TTIP Negotiations [PDF] that was amongst today’s leaks:
Discussions on e-commerce covered all proposals except for the provisions on data flows and computing facilities. There was good progress on understanding each other’s proposals and on exploring potential possibilities for compromise. With regard to non-discrimination of digital products, the US emphasized that they are very interested in this concept irrespective of the coverage of audio-visual services. They signaled some openness to refer to a more neutral term (digital content instead of digital products) and to exclude audio-visual services from this provision.
An intellectual property chapter was not amongst those leaked today. The European State of Play document explains why, and warns of the possible consequences of the U.S. negotiators’ delay:
the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement).
When confronted with the EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders and has very limited chances of being accepted, the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its “model” creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA.
What this essentially means is that the U.S. Trade Representative (USTR) is compelled by last year’s Trade Promotion Authority (Fast Track) law to negotiate trade agreements with the objective of providing rightholders with "the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works". A failure to secure this outcome in TTIP would likely create difficulties for the agreement’s passage through Congress, much as the TPP is currently encountering difficulties from Congressional hardliners over the USTR’s failure to agree to 12 year terms of protection for biologic medicines.
Similarly, the Europeans are concerned about the lack of progress from the U.S. side in implementing copyright and patent law changes in U.S. domestic law. Europe describes these as including "the draft laws on patent reform (addressing the problem of patent trolls) and on the copyright sectors identified as offensive interests by the EU (broadcasting rights, public performance and resale rights)." Although we too decry the delay in addressing patent reform, Congress is right to demur over Europe’s demands that broadcasters and performers be given new copyright-like powers.
Of course, it would be no loss if there were no intellectual property chapter in the TTIP at all. Copyright, patents and other so-called intellectual property rights have, at best, a tenuous connection to trade and they impact constituencies whom trade negotiators consistently overlook. As such, EFF has long held that intellectual property does not belong in trade agreements at all.
Where are the Users?
The fact that the most useful information about TTIP has come, not from the leaked texts of the chapters themselves, but from the State of Play document, is very telling. It shows that much more is required to reform these closed trade agreements than simply releasing the text. Access to the draft texts alone, while the negotiations themselves remain closed and opaque, is worth very little. Only through inside access to the negotiations themselves is their broader context revealed.
This means that all affected stakeholders, not just the privileged insiders of trade advisory committees, should have appropriate levels of access to all stages of the negotiations, from agenda setting to drafting. Moreover, unlike today’s release of text, this access should be a dialogue, in which stakeholders from outside the trade microcosm are empowered to discuss their concerns with negotiators, and to make a case for their own priorities to be reflected in the agreement. (Some more concrete suggestions in this regard appear in the Brussels Declaration on Trade the Internet that EFF and its partners concluded earlier this year.)
As welcome as today’s leak is, it doesn’t fix these systemic flaws in the process of negotiating trade agreements such as TTIP and the TPP. Until both sides of TTIP accept significant reforms to the way in which the negotiations are being conducted, we cannot expect that this agreement will respond to the actual needs of users, creators and innovators.