Yes, You Can Have An Open And Transparent Treaty Negotiation For Intellectual Property
from the proof-is-in-the-pudding dept
We had mentioned along with the news that the WIPO treaty for the blind had been signed in Marrakech that it proved that — contrary to the claims of the USTR — that you don’t need to keep negotiations of an intellectual property treaty secret. Sean Flynn has now expanded on this to debunk the USTR’s clearly untrue assertion.
The elements of WIPO’s transparency processes are varied. they start with ongoing releases of draft negotiating documents dating back to the beginning of the process. ACTA was marked by releases of negotiating texts only through leaks, until the EU parliament demanded increased transparency – after which point negotiators released four public texts in the final 12 months. The TPP negotiators claim they will complete their treaty this October (which no one believes). There has not been a single public release of text, thus failing to live up to even the meager standard for public releases that defined ACTA. The leaked texts of TPP that we have show a secret agreement to keep the texts of the proposals being considered until four years AFTER the conclusion of the agreement. Thus, even subsequent interpreters of the TPP may be prevented from seeing its legislative history.
WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear (but not be physically present in) break rooms where negotiators were working on specific issues. ACTA was not subject to any observation of negotiating rooms by non-parties. TPP negotiators even rejected a request by a U.S. Congressman to observe a negotiation.
WIPO set up a system of open and transparent structured stakeholder input, including published reports and summaries of stakeholder working groups composed of commercial and non-commercial interests alike. ACTA was, and TPP is, informed by structured input from multinational corporations who receive secret drafts of texts and submit reports to the United States Trade Representative. There are no consumer representatives among these advisers and none of their reports are public.
Transparency in WIPO continued through the final days of intense, often all night, negotiations in the final diplomatic conference. When negotiators reached a new breakthrough on the language concerning the controversial “3-step test” limiting uses of limitations and exceptions in national laws, that news was released to the public (enabling public news stories on it), along with the draft text of the agreement. There are now reports that a majority of the chapters of the TPP are concluded, and perhaps a majority of the articles in the IP section – but the public has no public text to see what those agreements might be.
The list goes on and on and the contrast is incredibly clear. The USTR is being misleading to downright dishonest in suggesting that it couldn’t possibly have the same level of transparency in the negotiations around agreements like the TPP or ACTA (or the upcoming TAFTA).