Opening the Door on International Copyright Secrecy

I’m guest blogging on the topic of the Trans-Pacific Partnership at ALA Washington Office’s “District Dispatch” blog for Copyright Week.

o celebrate Copyright Week, the American Library Association will join a number of organizations around the world in exchanging ideas, information and actions about ways to reform copyright law. From Monday, January 13th until Saturday, January 18th, copyright experts will explore different aspects of copyright law on the District Dispatch. The guest article below comes from Laura Quilter, copyright and information policy librarian at the University of Massachusetts, Amherst.*

When news broke last year that Americans would no longer be able to “unlock” their smart phones, due to a little-known copyright proceeding, people were angry. What, I can’t move my smart phone to another phone service? There were editorials and Internet outrage, legislation introduced, calls for Congressional hearings — even the White House weighed in. Everyone agreed, it seemed, that the DMCA (the Digital Millennium Copyright Act) should be fixed to let people use their smart phones on any network, without potentially going to jail. Ultimately the Federal Communications Commission helped “solve” the problem, by brokering a private party agreement among five of the major cell phone operators. Problem solved, for now at least.

But not really, because there’s nothing to keep these parties at the table whenever a market advantage encourages them to drop out. Remember AT&T’s monopoly on Apple’s iPhone when it first came out? Some hot new mobile technology comes out, and suddenly there’s every incentive in the world to drop out of the agreement, or not have it apply to the Next New Thing. Good luck unlocking your wearable computing device — or worse, your cybernetic enhancements! — under the DMCA.

Ideally we would just fix the law — Congress could pass a targeted fix for this particular problem, or even better, amend the DMCA to fix not just the cellphone unlocking problem, but the Next New Thing problem, too.

But it turns out Congress can’t easily fix this problem, or a lot of others, because the U.S. is deeply embedded in a web of trade agreements, negotiated by the U.S. Trade Representative. These agreements entice other countries into tightening their intellectual property laws, and obligate us to do it too. So if Congress wants to ditch the DMCA altogether, it would disrupt a score of trade agreements with countries all around the world. Legally okay, but politically impossible. In other words, Congress has effectively ceded a large part of the legislative process to the U.S. Trade Representative.

And this is why it is more important than ever that we have transparency and accountability in these negotiations. The TPP (Trans-Pacific Partnership) has been negotiated in secrecy for three years, with representatives from a score of governments taking wish lists from — well, from whomever they want to talk to, and swearing everyone to secrecy. Who does the U.S. Trade Rep talk to? Consumer groups, patient groups, civil liberties advocates, librarians, technologists? Yeah, not so much. The U.S. Trade Rep talks to representatives of large industries and large corporations.

Which is why the TPP, according to the draft leaked last year, amounts to a huge give-away of consumer rights to major corporations all across the business spectrum. Copyright and patent law— dear to my heart — are almost the least of it. The TPP provisions that the U.S. has been arguing for include provisions enabling a trade court to nullify all sorts of domestic laws — worker, consumer, and environmental protections, for instance.

The copyright parts are pretty bad, and not just from the technology/consumer side. If you’re an author or musician who has to negotiate with publishers or record companies, you’re going to get stiffed — the rightsholders lobbied for language that broadens work-for-hire and threatens creators’ rights to terminate assignments.

If you use the public domain — which we all do — we’re all going to get stiffed, because there are proposals to lengthen the Berne-mandated terms from life + 50 years, to life + 70, or even life + 100 years.

And if you use a cell phone—well, guess what? The TPP makes the DMCA anti-circumvention provisions worse than they already are.

That’s just a few of the highlights, in just the copyright section. There’s a lot of bad stuff in there — provisions that harm the ability of countries to make their own medicines, for instance, or weaken civil liberties in criminal investigations. In fact there are many, many changes in multiple different areas of law.

Maybe you don’t believe me or think I’m overstating the case. It can’t be that bad, you think.

With ordinary legislation people could argue about it, maybe, and look at different versions, and compare the meaning of the provisions. That’s how Congress is supposed to work — and however dysfunctional it’s gotten, at least in principle We the People have a voice with our elected representatives.

But not the TPP, because not only is the negotiation completely secret – the only word we have on what they’re talking about came through on WikiLeaks! – they’re now trying to fast-track it, too. Senators Max Baucus and Orrin Hatch, and Representative Dave Camp, are trying to pass fast track authority for Congress. So once we finally do get a peek at the bill (brought in after 5:00p.m. on some Friday night, no doubt) they’ll rush it through with a minimum of public input and virtually no negotiation.

So we might disagree, or we might not—but if Congress and the U.S. Trade Representative get their way, it won’t matter what we — Left, Right, Center, or something else altogether — think. We’ll all just live with the consequences. Whatever they are.

Are we supposed to be a democracy? Or a government of secret back-room deals by power-brokers?

Democracy is only possible with openness and transparency, and with a chance for people to weigh in. Negotiating domestic policy in secret violates that principle. Attempting to procedurally out-maneuver the American people by minimizing public debate and input violates that principle and thumbs its nose at it, too.

Right now, we have one lone way to formally expression our concern: Tell Congress to vote AGAINST Fast Track authority, and to scrutinize the (secretly negotiated) TPP when it does finally get brought to Congress. Do that, NOW, if you think that sometimes even the best-intentioned smartest trade negotiators make a mistake or have a bad idea. Because secrecy means bad ideas don’t get caught until it’s too late.

Next? For legislators who are interested in actually legislating and representing the public, whether you’re for big government or small, smart or dumb, here’s a hint: Consider reining in the Trade Rep’s power. We don’t need secret negotiations setting domestic policy.

*The opinions stated in the guest article do not necessarily reflect the views of the American Library Association.

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