This analysis was written by Maira Sutton, a global policy analyst at the Electronic Frontier Foundation.
The Office of the United States Trade Representative published its updated objectives for the Trans-Pacific Partnership (TPP) agreement, including its priorities in the Intellectual Property (IP) chapter of the multilateral trade agreement. Its new objectives in copyright enforcement mostly contain some vague rhetorical changes while continuing to bolster bloated claims about the necessity of IP enforcement for the U.S. economy without any commitment to protecting users’ rights. The U.S. Trade Rep’s language reflects the underlying, ongoing problem with the executive agency’s misplaced priorities on negotiating international trade deals.
Exaggerated Claims of Importance of “IP-Intensive Industries”
The U.S. Trade Rep starts off the “Intellectual Property” section by claiming how vital its enforcement is to economic growth and jobs by citing a dubious 2-year old report from the U.S. Patent Trade Office (USPTO). This report, called the Intellectual Property and the U.S. Economy: Industries in Focus, is often referenced by State officials to claim how reliant the U.S. economy is on copyrights and patents.
For starters, the USPTO defines any “IP-intensive” job to cover anything that remotely benefits from copyright, patent, or trademark protection. Under this definition, bagging at a grocery store, repairing cars, or even manufacturing can all be deemed jobs that are protected by IP. It goes on to say that such jobs that are “directly or indirectly attributable” to intellectual property “pay higher wages to their workers” without citing evidence. Unless the folks at the U.S. Trade Rep’s office know of some particularly well-paid workers at U.S. grocery stores, we’re going to call foul on this claim. Where is the data that backs this sweeping statement?
Such inflated statements reflect one of the biggest problems with the U.S. Trade Rep: they continue to justify expanding copyright and patent enforcement without any grounding in factual analysis of their policies. Of course, these grandiose statements of public benefit are only used to thinly veil the actual benefactors of their policies: the big, corporate rightsholders who are influencing the priorities of the U.S. Trade Rep.
Restrictive Definition of Fair Use
As we have seen from the leaked November 2013 draft text of the “Intellectual Property” chapter, the agreement holds weak safeguards for fair use rights in the form of a restrictive “Three-Step Test” system, which can be used to limit how countries establish rights for users to use, modify, and access copyrighted works.
It is welcome that the U.S. Trade Rep is explicit about seeking any sort of fair use rights for users. But the language here reveals the trade office’s position that a “balance” in copyright systems can be achieved by simply having an enumerated list of exceptions to the overarching rule that creative works are locked up and controlled by rightsholders. Since their first priority is the “strong protection for patents, trademarks, [and] copyrights,” it seems the U.S. Trade Rep itself should also call for the explicit defense of users’ rights against the encroachment of over-expansive IP rights so it itself maintains a balance of priorities.
Selective Transparency for “Intellectual Property” Issues
Strangely, it commits to promoting “transparency and due process,” but only with respect to “trademarks and geographical indications.” Are they admitting that they do not seek the same principles when it comes to copyrights and patents? Based upon the November 2013 leak, the U.S. Trade Rep already fails to uphold these values in its proposed texts on Internet Service Provider (ISP) liability provisions and digital rights management (DRM). They have been calling for draconian measures for private firms and law enforcement to crack down on users’ activities, often without a requirement of judicial oversight or disclosure of takedown processes.
Safeguards in its ISP Liability and DRM Proposals
The last listed priority does give us the tiniest glimmer of hope that the U.S. Trade Rep is taking into consideration the concerns of start-ups and new tech businesses. They now claim to seek safeharbor protections for ISPs and provisions over technological protection measures (aka DRM) that will “foster new business models and legitimate commerce in the digital environment.” Although vague, it is reassuring that they are at least giving acknowledgement to creators and innovators who are threatened by existing copyright enforcement measures. In this case too, the last leaked text revealed that the U.S. Trade Rep’s proposals are still vastly inconsistent with this particular priority.
All in all, these updated IP objectives reflect a subtle positive shift in the U.S. Trade Rep’s rhetoric around copyright and patent enforcement in acknowledging that there must be some sort of balance in their proposals. But none of this matters if it is not reflected in the proposals they are pushing forth in the TPP negotiations. There’s no way of confirming whether the U.S. Trade Rep is upholding these priorities until it conducts its policymaking transparently and reveals the text to the public—unless of course, there is another leaked draft. This secrecy and lack of oversight has been, and continues to be, the fundamental curse that undermines the legitimacy of TPP and similar trade deals.
There are now several reports that the next TPP negotiation round will be held in Vancouver from July 3-12. This will be an opportunity for the U.S. Trade Rep to re-think its approach to copyright and patent policies, and to uphold some of these stated new priorities that include other considerations beyond the narrow, relentless objective of enforcing rightsholders’ monopolistic control over creative works. Given the U.S. Trade Rep’s shameful history of acting on behalf of corporate interests at the expense of the public interest however, we won’t be holding our breath.