The Transpacific Partnership’s (TPP) intellectual property (IP) chapter would affect a wide variety of stakeholders including artists, artist intermediaries, Internet service providers, consumer electronics manufacturers, and the public. Yet the negotiation process of this chapter prevents a vast majority of these stakeholders from having any influence on it. This approach is likely to result in an agreement that adversely impacts democratic discourse, education, and innovation.
This section outlines Public Knowledge’s concerns with the process and substance of the TPP and suggests alternatives to current approaches.
The TPP Negotiation Process Ignores the Interests of the Majority
The TPP is being negotiated in complete secrecy. The negotiating texts or a meaningful description of the texts are not publicly available. Thus, many stakeholders, including the public, are unable to provide their feedback to negotiators. However, in the U.S. certain industry groups, including representatives of the largest film and movie trade associations, are provided privileged access to negotiating texts and other information about the TPP’s IP chapter. This imbalanced approach to seeking input will result in an agreement that protects the rights of large corporate copyright owners while ignoring the rights of libraries, archives, museums, educational institutions, follow on creators (documentary film-makers and some genres of musicians), and the general public. Such an imbalanced agreement would have a greater adverse impact on developing countries raising the price for access to knowledge and privileging U.S. content industries unfairly to the detriment of domestic industries.
In order to avoid these adverse impacts, the secrecy that shrouds TPP negotiations must end and greater public participation must be encouraged. This paper suggests two options TPP countries could pursue in order to end the secrecy: First, the TPP countries could publish the texts of IP related working documents that form the basis of the TPP negotiations. Here the term working document means a document that consolidates the positions of all negotiators, forms the basis of future negotiations, and reflects various options for designing particular provisions. To ensure that the public has a meaningful opportunity to influence the outcome of the negotiation, the publication should not be delayed too much after the working document is developed. In order to preserve the ability of negotiators to come up with creative proposals, information about the identity of parties proposing particular options may be deleted.
Second, TPP countries could provide access to the negotiating document to a broad range of public interest organizations on the condition of confidentiality. The selection of these organizations should be based on objective criteria and should require a demonstrated commitment to the public interest. While this option would improve the chances of arriving at a balanced IP chapter, it has several shortcomings: 1) it would exclude general public participation and no one organization or group of organizations could fully represent the public’s diverse interests; 2) criteria for selection of these organizations is likely to be controversial; and 3) public interest organizations generally rely on feedback from the public to inform their analyses and would be prevented from doing so.