Officially, the Chief Negotiators have backed off the prior commitment to end the TPP negotiation by October, but are still clinging to a goal to end the negotiation by the “end of the year.” But privately, none of the negotiators or stakeholders at this round would express any confidence that the intellectual property issues could be resolved by then. The issues still under contention are massive.

The intellectual property chapter has grown to over 80 pages of text – including all the bracketed suggestions and alternatives. Some negotiators describe it as the longest text currently under negotiation.

Many of the issues are completely blocked. There has not been any new negotiation text offered on the most controversial pharmaceutical provisions since the Melbourne round over a year ago. There is currently no mandate from many countries to negotiate (they only “consult” and “discuss”) the pharmaceutical reimbursement chapter. Barbara Weisel described the pharmaceutical issues as being in a “period of reflection,” and had no comment on when that period might end.

The recent spate of proposals for policy changes for US copyright law have caused a stir. The US is being asked how it can hold on to demands for parallel importation restrictions after the Kirtsaeng ruling, 70 year copyright terms after the Copyright Office proposed shifting them back to 50 years with formalities required for extensions, and strict restrictions on anti-circumvention liability exceptions when the Obama Administration and the Library of Congress have endorsed reforms that would violate the US proposal. Barbara Weisel stated that USTR is “doing what we can to work with Congress” to make sure that the TPP will not restrict policy options. But negotiators have said that there has been no visible movement on the USTR’s positions on Copyright issues, which will be negotiated this week.

And there is no plan to release any text to the public. This is stark contrast to the last to plurilateral agreements including countries in the region. The Free Trade Area for the Americas and the Anti-Counterfeiting Trade Agreement both released full texts of the negotiating document with brackets indicating text under consideration before the finalization of the texts. For ACTA, there were four publicly released texts between April 2010 and May 2011. For the TPP – none yet, despite the Chief Negotiators’ pronouncement of end of year finalization plans.

It offers a good discussion of the key problems with TPP -- things like the lack of transparency, the absence of meaningful public participation, and the deepening loss of national sovereignty -- before concluding with this excellent analysis of what's really going on with TPP, which also applies to TAFTA/TTIP:

In a global economy, trade policy has sweeping ramifications for every sector of the economy. Decisions on trade policy are really decisions on the relative power of corporations and governments. Trade policy affects employment rates, wage levels, the availability of capital, environmental conditions, public health, and much more. We cannot allow negotiations over these vital things to be conducted by secret bodies, without public oversight, comment, and ultimately the right of the public to affirm or reject these agreements.

The nature of trade pacts has changed significantly. Once upon a time, trade negotiations were largely about countries seeking advantage over other countries, or seeking to dismantle tariffs that prevented fair and open competition. Now the negotiations are about dominant industries seeking to prevent competition rather than encourage it. The negotiations are about dominant global-scale industries seeking to undercut government efforts to regulate them in the public interest. There is no such thing as a simple "trade pact" anymore.

As well as "less difficult" issues, the survey also dicusses where respondents think there's little hope of achieving agreement:

Interestingly, an issue that touches on some similar policy provisions -- the alignment of regulations concerning data protection and privacy [--] is considered extremely difficult, ranking 15th out of 17 issues surveyed. Transatlantic regulatory process convergence is particularly challenging, deemed by experts as both one of the most difficult issues (16th out of 17) and the most important overall to the agreement. Alignment in the use of GMOs and hormone-treated agricultural products was deemed most difficult.

Obviously, not too much can be read into the views of a fairly small and arbitrary group of people selected by The Bertelsmann Foundation and Atlantic Council. The fact that they think re-introducing some of ACTA's ideas might be one of the "less difficult" issues for TAFTA/TTIP suggests that they are either completely out of touch, or know something that we don't -- which is precisely why it's worth reading the full document just in case they do.

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A new report (pdf) from the UN Conference for Trade and Development (UNCTAD), pointed out to us by IP Watch, reveals just how widespread the use of investor-state dispute resolution mechanisms has already become:

The Issues Note reveals that 62 new cases were initiated in 2012, which constitutes the highest number of known ISDS [investor-state dispute settlement] claims ever filed in one year and confirms that foreign investors are increasingly resorting to investor-State arbitration.

…

By the end of 2012, the total number of known cases reached 518, and the total number of countries that have responded to one or more ISDS claims increased to 95. The overall number of concluded cases reached 244. Out of these, approximately 42 per cent were decided in favour of the State and 31 per cent in favour of the investor. Approximately 27 per cent of the cases were settled.

As an accompanying press release from UNCTAD points out, this growing recourse to international arbitration

amplif[ies] the need for public debate about the efficacy of the investor-State dispute settlement (ISDS) mechanism and ways to reform it

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That, in its turn, meant that public in those countries had very little chance to fight harmful provisions in a treaty, since the only way to do that was to persuade their government to reject it completely, which was extremely difficult after the years of negotiation. The European Parliament's dramatic refusal to agree to ACTA was largely because of the unusual division of power in the European Union.

TPP has adopted exactly the same process: negotiations behind closed doors, but this time, without even the occasional official release of drafts as happened with ACTA (luckily, there have been leaks.) And assuming the negotiations are concluded successfully, it is likely that national legislatures will be presented with the same take-it-or-leave-it offer, with huge pressure to accept.

More recently, the newly-announced transatlantic free trade agreement (TAFTA) between the US and the EU is gaining momentum, not least in terms of the countries that may ask to join. At the last count, these included Mexico, Canada and Turkey. The US has also started talking to West African states about a free trade agreement, and it's easy to see that being rolled into TAFTA at some point.

TPP is also expanding rapidly. Mexico and Canada have already joined, under pretty humiliating terms, while Japan has signalled that it wishes to do so. Recently we learned that South Korea and Taiwan are considering applying.

As we've noted before, putting together TPP and TAFTA, it's striking how they include all of the world's biggest economies outside the so-called BRICS group of emerging countries -- Brazil, Russia, India, China and South Africa. The natural response to being locked out of the two US-centric trade areas would be to form their own, and in fact India has begun talks with the Customs Union of Russia, Belarus and Kazakhstan about a free trade agreement. Significantly, enlarging that to including other nearby countries is already being mooted:

Kazakhstan's neighbour Kyrgyzstan is likely to be the fourth entrant and Tajikistan could over time be the fifth country to joint the Customs Union. Ukraine, Armenia and Moldovia would also be moving close to the Customs Union but for some time they are likely to be the first three countries outside the core.

Although bilateral trade agreements are hardly new -- Wikipedia lists dozens of them, some going back to the 1980s -- there has definitely been a step-change recently. Increasingly, the emphasis is on joining multilateral free trade agreements like TPP and TAFTA, involving significant numbers of countries. On the part of smaller nations, their interest is probably driven by a fear of getting shut out of key markets. But for the bigger players -- notably the US and EU -- it's a convenient way of imposing unpalatable policies not just on the citizens of other countries, but on their own, too.

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First of all, trade agreements don't dictate what laws Congress can and can't pass. If they're executive agreements, they can't override any laws passed by Congress in the past, and even if they're executed as treaties, they can be superseded by later acts of Congress. Just like Congress can pass a law that overrides an earlier law, it can pass a law that overrides an earlier treaty.

It is thus relevant that Justice Ginsburg writes, in dissenting from the majority opinion, that "[u]nlike the Court's holding, my position is consistent with the stance the United States has taken in international trade negotiations." But trade negotiators do not get to decide what the law is: Congress passes statutes and courts interpret them. The USTR is not part of this workflow. If trade negotiators have ever taken positions that are inconsistent with Kirtsaeng then those positions are now, and always have been contrary to US law. I would make a similar argument even if Kirtsaeng came out the other way: trade negotiators should not try to anticipate how contentious legal battles will turn out. They should steer clear of these areas entirely and allow the system to do its work.

“Article 4(2). Each Party shall provide to authors, performers, and producers of phonograms the right to authorize or prohibit the importation into that Party’s territory of copies of the work, performance, or phonogram made without authorization, or made outside that Party’s territory with the authorization of the author, performer, or producer of the phonogram.”

First, we insist that the European Union and United States release, in timely and ongoing fashion, any and all negotiating or pre-negotiation texts. We believe that secretive “trade” negotiations are absolutely unacceptable forums for devising binding rules that change national non-trade laws.

Second, we insist that the proposed TAFTA exclude any provisions related to patents, copyright, trademarks, data protection, geographical indications, or other forms of so-called “intellectual property”. Such provisions could impede our rights to health, culture, and free expression and otherwise affect our daily lives.

Past trade agreements negotiated by the US and EU have significantly increased the privileges of multinational corporations at the expense of society in general. Provisions in these agreements can, among many other concerns, limit free speech, constrain access to educational materials such as textbooks and academic journals, and, in the case of medicines, raise healthcare costs and contribute to preventable suffering and death.

Unless “intellectual property” is excluded from these talks, we fear that the outcome will be an agreement that inflicts the worst of both regimes’ rules on the other party. From a democratic perspective, we believe that important rules governing technology, health, and culture should be debated in the US Congress, the European Parliament, national parliaments, and other transparent forums where all stakeholders can be heard—not in closed negotiations that give privileged access to corporate insiders.

The TAFTA negotiations must not lead to a rewriting of patent and copyright rules in a way that tilts the balance even further away from the interests of citizens.

So we want your input: What do you think is the best way to stop these threats to Internet freedom? How can we best reach and engage more people in the battle to stop Big Media lobbyists and bureaucrats from censoring expression online?

The White House position, however, may be inconsistent with the U.S. proposal in the Trans-Pacific Partnership Agreement (TPP) and existing obligations in the KoreaU.S. Free Trade Agreement (KORUS) and other free trade agreements to which the United States is a party. This demonstrates the danger of including in international agreements rigid provisions that do not accommodate technological development.

KORUS obligates the United States and Korea to adopt provisions concerning the technological protection measures based on section 1201 of the DMCA. Furthermore, KORUS mandates that the parties "confine exceptions and limitations" to the circumvention prohibition to a specific list of exceptions that matches the specific exceptions in the DMCA. Cell phone unlocking, of course, is not on that list. KORUS does allow for administrative procedures like the DMCA's rule-making to adopt temporary exemptions, but not permanent ones. The challenge before Congress is to devise a permanent exception for cell phone unlocking that does not breach the obligations under KORUS and other similar free trade agreements.

The draft text for TPP is secret, but the U.S. proposal for the IP chapter was leaked two years ago. The leaked proposal contained KORUS's closed list of exceptions. Because TPP is currently under negotiation, there still is time to make sure that the TPP does not prevent national governments, including the United States, from amending their laws to permit the unlocking of cell phones and other wireless devices.

Just as the advancement of consumer well-being should be the "primary measurement" of whether the trade agreement should be signed or not, so the public must be recognized as the primary stakeholder that has a right to see all texts once they have been discussed. If they don't, then those negotiations simply forfeit any claim to real legitimacy in a world where basic transparency can be achieved instantly, and for almost zero cost, by publishing materials on the Web.

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We find it troubling that, even as the Trans-Pacific Partnership (TPP) Free Trade Agreement enters its 16th major round of negotiations this March in Singapore, U.S. negotiators still refuse to inform the American public what they have been proposing in our names. Shielding not only proposals, but agreed-upon texts from public view until after negotiations have concluded and the pact is finalized is not consistent with democratic principles. In this regard, the TPP appears to be even less transparent than some past trade negotiations. For example, in 2001, the United States joined with 33 other countries in releasing draft text of the Free Trade Area of the Americans, and draft texts within the World Trade Organization are frequently made available.

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Ten years ago, Jarvis appended this "mock copyright notice" to his blog posts:

It's mine, I tell you, mine! All mine! You can't have it because it's mine! You can read it (please); you can quote it (thanks); but I still own it because its mine! I own it and you don't. Nya-nya-nya. So there. COPYRIGHT ... by Jeff Jarvis.

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With regard to the second category, we identified sixteen (16) pages of responsive records. We have determined that all 16 pages of responsive records are exempt from disclosure under the deliberative process prong of section of the FOIA. The deliberative process privilege protects the decision making processes of government agencies by encouraging open and frank discussions on policy matters among subordinates and superiors. These records contain predecisional discussions regarding negotiating positions and their implications on future negotiations. Moreover, these documents contain policy recommendations and opinions shared between subordinates and superiors.

One key issue for both FTAs and BITs concerns investor-state arbitration procedures that allow companies, typically powerful global corporations, to take entire nations to court over actions that allegedly cause the company harm -- for example, by introducing stricter environmental legislation that requires additional expenditure at manufacturing plants. The trailblazer in taking advantage of these provisions is the tobacco giant Phillip Morris. Here's what it did in Uruguay, back in 2010:

The tobacco giant is suing Uruguay, alleging the country is violating Switzerland’s trade agreement by requiring that anti-smoking warnings cover 80 percent of cigarette packages. If World Bank arbitrators agree, Uruguay could be forced to pay the company millions of dollars.

But Uruguay -- whose Gross Domestic Product is $44 billion -- refuses to back down from Philip Morris, whose market capitalization equals $108 billion. And now the country is getting backing all across the world in its fight against tobacco.

It's also suing Australia for similar reasons:

On 1 December 2011 the Tobacco Plain Packaging Act 2011 received Royal Assent and became law in Australia.

The Act forms part of a comprehensive Australian Government strategy to reduce the rate of smoking in Australia. Smoking is one of the leading causes of preventable death and disease in Australia.

Philip Morris Asia is challenging the plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. On 21 December 2011, the Australian Government provided its response to Philip Morris Asia's Notice of Arbitration.

This underlines why it is crucially important for nations to get the wording of investor-state arbitration procedures right when negotiating FTAs, BITs and multilateral treaties like TPP. If they don't, they may well find that global corporations will exploit favorable clauses through the kind of treaty shopping practised by Phillip Morris to put countries at a disadvantage when arguing before international tribunals.

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On the eve of the World Conference on International Telecommunications (WCIT), we believe that it is the right time to reaffirm the U.S. Government's commitment to the multistakeholder model as the appropriate process for addressing Internet policy and governance issues. The multistakeholder model has enabled the Internet to flourish. It has promoted freedom of expression, both online and off. It has ensured the Internet is a robust, open platform for innovation, investment, economic growth and the creation of wealth throughout the world, including in developing countries.

[....] The Internet's decentralized, multistakeholder processes enable us all to benefit from the engagement of all interested parties. By encouraging the participation of industry, civil society, technical and academic experts, and governments from around the globe, multistakeholder processes result in broader and more creative problem solving. This is essential when dealing with the Internet, which thrives through the cooperation of many different parties.

The global community has many serious topics to discuss with respect to the Internet. Collectively, we need to ensure that these matters are taken up in suitable multistakeholder venues so that these discussions are well informed by the voices of all interested parties.

Our commitment to the multistakeholder model is based on the fact that transparency, inclusion and participation are the 21st century standards governing discussions related to modern communications.

We have and will continue to advocate for an Internet that is not dominated by any one player or group of players, and one that is free from bureaucratic layers that cannot keep up with the pace of change. We will work with everyone to ensure that we have a global Internet that allows all voices to be heard.

Academics, experts, consumer groups, Internet freedom organizations, libraries, educational institutions, patients and access to medicines groups have flown a long way from around the world to Auckland, New Zealand, to engage with delegates in the 15th round of Trans-Pacific Partnership negotiations.

For the first time, however, we have been locked out of the entire venue, except for a single day out of the 10 days of negotiations. This not only alienates us as members of public interest groups, but also the hundreds of thousands of innovators, educators, patients, students, and Internet users who have sent messages to government representatives expressing their concerns with the TPP. All of us oppose the complete unjustifiable secrecy around the negotiations, but more importantly, the IP provisions that could potentially threaten our rights, and innovation.

These new physical restrictions on us are reflective of the ongoing lack of transparency that has plagued the TPP negotiations from the very beginning.

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Both the EU and the United States are committed to a high level of intellectual property protection, including enforcement, and cooperate extensively through the Transatlantic IPR Working Group. Both sides agree that it would not be feasible in negotiations to seek to reconcile across the board differences in the IPR obligations that each typically includes in its comprehensive trade agreements. Before the launch of any negotiations, both sides would further consult on possible approaches to deal with IPR matters in a mutually satisfactory manner.

The movie industry's main motives for wining, dining and flattering the Prime Minister were not about Dotcom or subsidies, although it has an obvious interest in both.

The end-goal is to get Key's Government to drop its opposition to aggressive United States demands in the Trans-Pacific Partnership Agreement (TPPA) negotiations. New Zealand will host the next round of TPPA talks in Auckland in early December.

While John Key was in Los Angeles, top US intellectual property negotiators were in Wellington lobbying for their latest proposals.

Transient copies, such as buffer copies on a computer’s random access memory (RAM), are necessary for a host of streaming services that carry content over the internet to end users. Recognizing a right to exclude such copies, in addition to the ultimate right to distribute the content itself, adds another layer of licensing requirements that can block innovative services (like Netflix or Pandora) from being offered. Many other trade agreements and national and regional laws contain explicit exceptions for “transient” or “incidental” copies necessary for technological or other communications. But the Panama Free Trade Agreement contains nothing of the kind, and neither does Panama’s law. By extending protection to temporary electronic storage, with no clear exception for transient electronic copies – the Panama bill fails to give internet service providers and other businesses the legal certainty they need to enter and maintain operations in Panama’s market.

Free trade agreements have great potential to unleash new competition in markets, producing better products and services at lower prices. This assumes, however, that these agreements actually lower barriers to trade.

Unfortunately, due to misaligned priorities and poor drafting, the U.S. Government’s framework for free trade agreements has neglected aspects of U.S. law that are instrumental to a flourishing Internet sector, and in doing so has erected new barriers to tech exports.

The trend of expanding liability and constraining the balancing provisions of copyright law also manifested recently in Colombia. Also responding to a recently enacted Free Trade Agreement with the United States, Colombia hurriedly passed a controversial copyright revision this spring which similarly left little flexibility for technology innovation. The upshot of the copyright law revisions in these countries is to erode certainty and discourage investment by online services, e-commerce platforms, device manufacturers, and ISPs. This is not lowering barriers to market access.

It would be a mistake to understand this as solely an issue affecting U.S. exports, however. In fact, it is a more serious issue for our trading partners, because while U.S. firms may look to more fertile export markets, Colombian and Panamanian firms must survive at home before they can reasonably expand abroad.

Join me and make a difference. 303,000,000 Americans have just been offered access to the notoriously secret ITU WCIT documents. Just join ITAC, the State Department International Telecommunications Advisory Committee, and enjoy access. “It takes a simple email with a request to be placed on the ITAC listserv, based on some material interest in a given topic,” Paul Najarian of State writes. Simply send an email to join ITAC_Listserve_Requests@state.gov and you automatically have access to ITAC.

First, we welcome all interested stakeholders to participate in our WCIT preparatory process and help the U.S. Government form positions in advance of the conference. We solicit this input and feedback through the United States International Telecommunications Advisory Committee (ITAC). I believe that the ITAC process is critically important in helping the U.S. Government convene the type of open, public, and necessary consultations from all stakeholders that helps strengthen our positions in advance of the WCIT. The ITAC has advised the Department of State on U.S. participation in international telecommunications treaty organizations such as the International Telecommunication Union for decades and has, accordingly, been critical in the preparation of prior U.S. positions for meetings of international treaty organizations, developing and coordinating proposed contributions to international meetings and submitting them to the Department of State for consideration. For the WCIT, the ITAC will continue to serve this critical role. Therefore, we welcome any person and any and all organizations, whether corporate or non-profit, to participate in the ITAC if they would like to assist with the WCIT preparatory process.

Second, all WCIT preparatory documents – including revisions of the TD-62 compilations of Member States proposals, the final report of the Council Working Group, and Member State proposals – have been and will continue to be made available to interested ITAC member. It is imperative that we ensure full consideration of a WCIT proposal’s impact on economic growth, the Internet’s openness, and the world at large and this is best done through the adoption of open and transparent processes that allow for wide consultation. Thus, we will continue to share these WCIT documents with stakeholder so that they can provide more informed views and help us develop positions that reflect the input of the diverse range of interests in the United States.

Starting this week, I will proactively communicate our positions on participation and document availability to underscore the US Government’s commitment to transparency.