Stakeholders, Negotiators Meet in Leesburg to Talk IP

A widely available leaked draft of the TPP leaves too much room for restrictive interpretation, said Public Knowledge Staff Attorney Rashmi Rangnath, who presented on “Copyright Limitations and Exceptions in the TPP.” Rangnath pointed to the “three-step test,” which she said could give countries too much freedom in determining what constitutes legal unlicensed use of copyright material. She suggested negotiation proposals from the USTR spell out limitations and exceptions to intellectual property laws in more detail.

Like many who presented on what they see as the potential dangers of TPP’s intellectual property provisions, Rangnath stressed that stakeholders are working off of leaks of proposal drafts and criticized the lack of transparency surrounding the negotiations, referring to it as “a lockdown.” Without access to the government’s proposals, she said, “there’s no mechanism to hold them accountable.” While she’s unsure how much the leaked draft will resemble the final language, “my sense is that the most aggressive provisions will get watered down” after pushback from public interest groups and other countries participating in TPP negotiations, she said.

International Intellectual Property Alliance (IIPA) counsel Steven Metalitz challenged those that criticize USTR for its lack of transparency. “It’s quite understandable that people have this concern,” he said, but there’s little room for transparency in the negotiation process. “Trade negotiations are not going to be done in a fishbowl,” he said. The U.S. would need participants’ cooperation in opening up the negotiations, Metalitz said. “It’s not just something the U.S. government can do on its own."

By including the three-step test, Metalitz said, the TPP “uses a standard that every country in the TPP already recognizes.” The IIPA attempted to combat misinformation about things like the three-step test during its presentation, titled “IP Chapter in TPP: Myths and Realities -- A Fact Check.” The presentation cited claims by public interest groups such as the Electronic Frontier Foundation and Public Knowledge that the TPP could limit participating countries’ abilities to determine copyright limitations and exceptions, claims that the TPP could be used to deny Internet access to individuals and claims that the TPP is linked to failed anti-piracy legislation Stop Online Piracy Act and PROTECT IP Act.

These claims have dominated much of the online discussion about intellectual property rights in the TPP, Metalitz said. He hopes the IIPA presentation and presence at the forum will allow negotiators and other stakeholders to hear the other side of the story. “It’s more exciting for people on the Internet to hear that their rights are being taken away,” he told us when asked why he thought the discussion is imbalanced.

The TPP’s intellectual property provisions can help more than just major content producers, said Copyright Alliance Executive Director Sandra Aistars. The TPP can provide “strong intellectual property protections for everybody,” including the individual artists and content producers the alliance works with, she said. That alliance displayed at the event artwork by photographer Matt Herron, whose work includes images of civil rights protests from the 1960s. Without adequate intellectual property protections, Aistars said, images like Herron’s could be taken and used for commercial purposes. “That destroys the integrity of the image,” Aistars said, noting that the alliance is “a very strong defender of fair use” and Herron frequently allows educators to use his photographs.

The event’s setup was problematic, Rangnath said, explaining that she felt “very rushed” during her presentation. The ten-minute presentations took place simultaneously in four crowded adjacent rooms beginning at 11 a.m. At the same time, stakeholders interacted with negotiators and distributed informational material at presentation tables located in a nearby building. The Electronic Frontier Foundation had criticized the setup for being too condensed. The USTR said (http://xrl.us/bno8aj) it chose to include both presentations and time for one-on-one interaction after receiving feedback from stakeholders about previous rounds of negotiations.

Computer & Communications Industry Association Vice President Matt Schruers agreed the event was “quite chaotic,” but credited the USTR for “managing a lot of interest in a framework that isn’t designed to be open.” Schruers noted that the USTR is doing more to include stakeholder input for the TPP than has been done in the past.