The many dangers of the international agreements’ top secret negotiations

One thing we can agree on is that nobody has to know. ^[1]Copyright by Bigwillyoliver under the Creative Commons Attribution-Share Alike 3.0 Unported

The EU has been quite active on its external relations through the secretive negotiations for the Transatlantic Trade and Investment Partnership (TTIP) or the Trade in Services Agreement (TISA).

The irony is that, considering the unavoidable wide-ranging effects which are expected, the public at large would have great interest in scrutinizing the ongoing negotiations. However, it seems that not many individuals are fully aware of what is going on. Indeed, if some negotiating documents were not leaked, the general population – where you and I belong – would not even know what most of them is about. In this context, it is difficult to explain and believe in the need of such confidentially to ensure the conducting of effective negotiations.

One would have expected that some lessons were learned with the strong opposition from the public faced by the controversial Anti-Counterfeiting Trade Agreement (ACTA), where the same secretive strategy was employed. History, it seems, keeps repeating itself. Nevertheless, following the European Ombudsman pressure for more transparency and accessibility to the public, the European Commission published last month some TTIP negotiating documents.

Thus said, this exacerbated confidentiality and limited public participation has a serious impact regarding the awareness of the threat that their successful conclusion will entail for individuals. People are not able to contest or agree on what they do not know about. To keep information in the dark is, since the beginning of times, the most effective way to ensure that no opposition is raised.

Being negotiated by 23 member countries of the World Trade Organisation (WTO), including the EU, TISA, according to recent leaked documents, will have serious implications regarding transfer, access, processing or storing of information, including personal data, implying looser rules for service suppliers in international data transfers. Indeed, countries with stronger data protection regimes would be required to put those standards aside in order to comply with the agreement.

Similarly, the recognition that consumers should be able to access and use services and applications of their choice available on the Internet, subject to reasonable network management, raises concerns regarding net neutrality, which is an unfortunate outcome considering the progress achieved by the European Parliament on this issue in regards of the Telecoms Single Market.

Not to mention all the contentious issues at so many levels surrounding TTIP, being negotiated by the USA and the EU… From food regulations, to environmental standards, intellectual property, to the investor state dispute settlement, and data protection. If you think about any specific concern, you might actually find it associated with TTIP.

Due to time and space restrictions, I do not intend to address here in detail all the issues at stake. Moreover, and to be honest, I have not fully read the entirety of texts leaked or otherwise publicly made available. Nevertheless, I am fully aware that those versions no longer correspond to the most recent state of play of those negotiations. And no relief can be found in such circumstance.

Thus said, none withstanding all the controversies concerning the abovementioned agreements, the EU should also pay attention to the other agreements in which negotiating it does not participate. I am specifically referring to the Trans-Pacific Partnership (TPP), between the USA and 11 Asia–Pacific countries, which include Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam, some of which the EU is also bilaterally engaging.

In this context, I certainly do not want to miss raising two of my favourite issues (or should I say prior concerns?) associated with DRM (Digital Rights Management) and copyright.

Indeed, the TPP contains a chapter on intellectual property covering copyright, trademarks, and patents, intedning to address a vast range of issues, such as trade secrets, circumvention of DRM, ISP liability, copyright term lengths, and criminal enforcement measures, establishing far more restrictive standards than those currently existing on an international level.

DRM, as you may be quite well aware, refers to technical measures aiming to restrict copyrighted content, namely limiting the number of devices on which you can play a video you legally purchased. So, yes, when you try to read an eBook or listen to a song on a different platform, it can be illegal. All in the name of the ‘anti-piracy’ slogan. But do not despair: you can always buy the same book or the same song again in order to be able to use it in another format. Publishers and studios: 1 – you and I: 0.

Besides being directly prejudicial to consumers, these are also indirectly affected as such technical measures also jeopardize the exercise of fair use rights, or the ability to use copyrighted work without interfering with the copyright owner’s right. Competition and innovation are consequently choked. And considering the not so past events, I could not go on without mentioning that the technologies associated with DRM can actually involve serious security risks to consumers. It suffices to remember that, a few years ago, Sony sold millions of music CDs with software technologies which would install undisclosed files on users’ computers, exposing them to attacks by third parties.

As for the copyright term protections, TPP will extend the length of such protection. We are talking, for instance, of approximately one hundred years after publication or after creation for corporate owned works, far longer than what is currently required by the Berne Convention (WIPO) or the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

While it is unquestionable that copyright is needed in order to provide an incentive for creativity, it is difficult to imagine how such lengthy regimes can actually be an incentive to creativity. They certainly are highly detrimental to the general interest and I really cannot fathom who, besides large corporations, actually financially benefit from such outcome. Broader copyright regimes, which delay the entrance of works into the public domain, require obviously the payment of continued royalties for content. And considering that authors and creators usually receive low royalties, it mostly serves the interests of large corporations. It is like Mickey Mouse v. public domain all over again but now at a much larger scale.

In this context, and as if it wasn’t enough, service providers may be intended to be private enforcers of copyright, removing infringing content from the Internet without a court order. This represents a serious threat for the exercise of freedoms of expression and of speech on the Internet.

Moreover, users can be held liable for criminal copyright infringement in regards of non-commercial acts, i.e., who were not seeking financial gain from sharing or making available copyrighted works.

Why is this a much bigger problem than it already seems?

Well, despite being negotiated by twelve countries, TPP will evidently affect other countries beyond those involved in the negotiations, as those will likely also be required to comply to its requirements as a condition of bilateral trade agreements with its signatory members.

If its current spirit is indeed to be maintained, it will lead to a pressure for an extension of restrictive IP laws worldwide, affecting the freedom of speech, right to privacy of users and the possibility of creation and innovation across the globe.

Considering all this, while the EU itself has struggling over the Internet and copyright, the TPP is also something it should worry about.