TPP Comes Back From the Dead… Or Does It?

By Jeremy Malcolm | The Electronic Frontier Foundation

Could the Trans-Pacific Partnership (TPP) be coming back from the dead? It is at least a possibility, following the release of a carefully-worded statement last Sunday from an APEC Ministerial meeting in Vietnam. The statement records the agreement of the eleven remaining partners of the TPP, aside from the United States which withdrew in January, to “launch a process to assess options to bring the comprehensive, high quality Agreement into force.” This assessment is to be completed by November this year, when a further APEC meeting in Vietnam is to be held.

We do know, however, that not all of the eleven countries are unified in their view about how the agreement could be brought into force. In particular, countries like Malaysia and Vietnam would like to see revisions to the treaty before they could accept a deal without the United States. This is hardly an unreasonable position, since it was the United States that pushed those countries to accept provisions such as an unreasonably long life plus 70 year copyright term, which is to no other country’s benefit.

Other TPP countries, such as Japan and New Zealand, are keen to bring the deal into force without any renegotiation, which could add years of further delay to the treaty’s completion. Japan also likely fears losing some of the controversial rules that it had pushed for, such as the ban on software source code audits. The country’s Trade Minister, Hiroshige Seko, has been quoted as saying, “No agreement other than TPP goes so far into digital trade, intellectual property and improving customs procedures.”

For now, that remains true; many of the TPP’s digital rules are indeed extreme and untested. But for how much longer? Industry lobbyists are pushing for the same digital trade rules to be included in Asia’s Regional Comprehensive Economic Partnership (RCEP) and in a renegotiated version of the North American Free Trade Agreement (NAFTA). Since RCEP and NAFTA together cover most of the same countries as the TPP, there will be little other rationale for the TPP to exist if lobbyists succeed in replicating its rules in those other deals.

Free Trade Rules that Benefit Users

It’s worth stressing that EFF is not against free trade. If trade agreements could be used to serve users rather than to make their lives more difficult EFF could accept or even actively support certain trade rules. For example, last week the Re:Create Coalition, of which EFF is a member, issued a statement explaining how the inclusion of fair use in trade agreements would make them more balanced than they are now. The complete statement, issued by Re:Create’s Executive Director Joshua Lamel, says:

If NAFTA is renegotiated and if it includes a chapter on copyright, that chapter must have mandatory language on copyright limitations and exceptions, including fair use. The United States cannot export one-sided enforcement provisions of copyright law without their equally important partner under U.S. law: fair use.

The U.S. should also take further steps to open up and demystify its trade policy-making processes, not only to Congress but also to the public at large, by publishing text proposals and consolidated drafts throughout the negotiation of trade agreements.

The last paragraph of this statement is key: we can’t trust that trade agreements will reflect users’ interests unless users have a voice in their development. Whether the TPP comes back into force or not, the insistence of trade negotiators on a model of secretive, back-room policymaking will lead to the same flawed rules popping up in other agreements, to the benefit of large corporations and the detriment of ordinary users.

At this point we have no faith that the TPP would be reopened for negotiation in a way that is inclusive, transparent and balanced, and we maintain our outright opposition to the deal. RCEP is being negotiated in an equally closed process, though we are continuing to lobby negotiators about our concerns with that agreement’s IP and Electronic Commerce chapters. As for NAFTA, we are urging the USTR to heed our recommendations for reform of the office’s practices before negotiations commence.

The death of the TPP didn’t mark the end of EFF’s work on trade negotiations and digital rights, and its reanimation won’t change our course either. No matter where the future of digital trade rules lie, our approach remains the same: advocating for users’ rights, and fighting for the reform of closed and captured processes. Until our concerns are heard and addressed, trade negotiators can be assured that regulating users’ digital lives through trade agreements isn’t going to get any easier.

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