TTIP Talks Should Be Transparent, Focus on Copyright Limitations, Privacy, Advocates Tell Negotiators

Advocates repeatedly urged transparency in the process, citing previous trade negotiations that had successfully been transparent. James Love, director of Knowledge Ecology International, called for published trade documents to “put us all on an equal” level. “I wish you didn’t have two classes of citizens in the U.S.” -- those that are on companies’ advisory boards and can see the drafts and proposals and those that aren’t -- he said. Individuals and nonprofit groups like Love’s should be able to see the documents without signing a nondisclosure agreement, he said. Seeing the texts after signing an NDA “would have no value to us” since members of the group “couldn’t talk to the general public” or media about what they had read, he continued. Love contrasted the closed TTIP process with the open process that led to the World Intellectual Property Organization’s Treaty for the Visually Impaired. Drafts were being released to stakeholders and the public daily during that process, which “improved the agreement,” he said.

Provisions that could affect the Internet should be “transparent as soon as possible,” said General Counsel Markham Erickson of the Internet Association, which includes Google, Facebook, Yahoo and Amazon. The U.S. should publish its proposals that deal with the Internet, as those are “policy issues that really have implications for users,” not just Internet companies, he said. “There is absolutely no reason to classify the documents,” said Susan Grant, director-consumer protection at Consumer Federation of America, in a prepared statement. USTR “should provide regular updates on its website, including timely posting of all documents,” she said, pointing to the Free Trade Area of the Americas, the Multilateral Agreement on Investments and other as examples of trade negotiations with publicly available texts. “Classifying them as secret only serves to fuel distrust about whether our government is acting for the benefit of all of just for certain business interests,” she said.

"It’s far from clear” that TTIP should include an intellectual property chapter, said technology lawyer Jonathan Band, on behalf of the Computer and Communications Industry Association. Including a chapter where it’s not needed could harm the process, as having a controversial intellectual property chapter could “really impede other areas where agreement could be reached,” he said. Erickson said he expects many stakeholders will lobby for the inclusion of an intellectual property rights chapter in TTIP. While the Internet Association doesn’t think such a chapter is necessary, if one is included, “we want to be careful that we're promoting a fair, balanced approach,” he said.

If TTIP does address intellectual property, it should not promote an “asymmetrical” copyright framework by expanding copyright protections without expanding limitations and exceptions to those protections, Erickson said. Any copyright framework should include a fair use exception, an international exhaustion provision and Digital Millennium Copyright Act (DMCA) safe harbor protections, he continued.

TTIP shouldn’t create liability for intermediaries, such as websites and search engines, Erickson said. In the U.S., online platforms are not liable for the content posted by users, so “they don’t have to prescreen speech,” he said: “That kind of protection is not enjoyed around the globe,” and TTIP should promote those protections. “The conduits, the platforms, that make that speech possible should not be held liable,” he said. The EU’s E-Commerce Directive doesn’t provide the same safe harbor directives as the DMCA, including that it doesn’t extend liability limitations to search engines, Band said. TTIP is an opportunity for the U.S. and the EU to reaffirm their commitments to limit the liability of intermediaries, including expanding the limitations to search engines, he said.

TTIP shouldn’t be used to weaken intellectual property rights, said Mark Schultz, co-director of academic programs at George Mason University’s Center for the Protection of Intellectual Property. TTIP is a chance for the U.S. and EU to engage in “progressive improvement and harmonization” of their separately strong intellectual property right regimes, and negotiators should ignore the argument that an intellectual property chapter isn’t needed because both parties have such strong regimes, he said. “Just because the rights are strong, doesn’t mean they're necessarily effective,” especially across borders, he said. Intermediaries shouldn’t be shielded from liability under TTIP, he said. TTIP “shouldn’t enshrine a broken safe harbor system” that “is groaning under the weight of takedown notices,” he continued. Instead, the agreement should “provide political and legal space for voluntary agreements” to be reached by content producers and platforms, he said.

TTIP should allow cross-border flow of data, which can often be limited by laws that “come in the guise of substantive law,” Erickson said. Protectionist policies to prevent foreign competitors from having access to a country’s market are often written as cybersecurity or privacy legislation, he continued. “We want to be careful about not using these as an excuse” to keep foreign competitors out, he said. The CCIA is also opposed to “forced localization” for software and hardware, Band said.

TTIP shouldn’t consider data protection policies, as “both the EU and the U.S. are in the process of formally reviewing their data privacy regimes,” said Jeff Chester, executive director of the Center for Digital Democracy, in prepared remarks. The EU “is far ahead of the U.S.” in its review, and its “approach to privacy as a fundamental Human Right is widely viewed by the U.S. consumer groups as a much more effective approach to data protection than the consumer-harm regime of the U.S.,” which allows companies to “gather, analyze, and operationalize massive amounts of online and offline data,” he said. “The U.S. -- unfortunately -- has a long way to go before its system can be considered the equivalent of the EU.” Grant described the U.S.-EU data protection safe harbor program as a “sham” that is “shoddily enforced,” asking the U.S. administration to “produce the privacy legislation that it has promised and put its full weight behind getting it enacted.” If businesses want to have cross-border data flows, they need to support “real interoperability,” which “requires that consumers have equivalent privacy rights and remedies on both sides of the Atlantic,” she said.

There should be “a full and frank discussion” about the reports of National Security Agency surveillance programs before trade agreements are crafted to address data collection, Chester said. The U.S. Trade Representative should “call on the newly formed U.S. and EU review on privacy- and national security-related issues … to report its findings to the public,” Chester said. “Data and e-commerce-related trade matters should not be addressed by the negotiators” until the report is made public and the ensuing discussion takes place, he continued. Chester said the USTR should create a “diverse” task force of “NGOs, commercial representatives, independent experts and trade policymakers” to address privacy concerns related to digital trade. The USTR should “adopt a process where the goal of fostering commerce and economic growth is accompanies by an inclusive, 21st-century approach to policymaking in the public interest,” which includes protecting privacy and other civil liberties, he said. “The civil liberties of individuals, including their right to privacy, should not be treated as just another commodity to be traded through negotiation.”