Ever since the United States withdrew from the Trans-Pacific Partnership (TPP) back in January, the remaining eleven countries have been quietly attempting to bring a version of the agreement into force. Following some initial confusion,it was announced on Friday that they have reached an "agreement in principle" on "core elements" of a deal.
Even so Canada's trade minister, Canada's trade minister, Francois-Philippe Champagne confirmed that the agreement is far from being finalised, recognising that more work was needed on some key issues. Meanwhile the TPP has been renamed as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the official Ministerial statement, including the schedule of suspended provisions, was released yesterday.
This article is by Jeremy Malcolm and Jyoti Panday, and was originally published on EFF's Deeplinks blog. It is republished here under a Creative Commons CC-BY licence and has been slightly edited for spelling and context. See the original article.
We now know that almost the entire Intellectual Property (IP) chapter that had been the source of some of the most controversial elements of the original agreement has been suspended. Back in August, EFF wrote to the TPP ministers explaining why it would make no sense to include copyright term extension in the agreement, because literally none of the remaining parties to the TPP would benefit from doing so. The apparent decision of the eleven TPP countries to exclude not only the copyright provisions, but nearly the entire IP chapter from the agreement, more than vindicates this. As we have explained at length elsewhere, IP simply isn't an appropriate topic to be dealt with in trade negotiations, where issues such as the length of copyright and bans on circumventing DRM are traded off with totally unrelated issues like dairy quotas and sources of yarn used in garment manufacturing.
It is important to note that the agreement's IP chapter has only been "suspended". Ever since the U.S. pulled out of the TPP, the other countries involved have been trying to salvage the deal by suspending contentious elements. Suspending issues is a common tactic in trade negotiations as it allows countries to declare victory, despite major areas of disagreement. Moroeover, suspending provisions does not stop countries from discussing them. As Michael Geist has pointed out the IP chapter may still be subject to negotiation as part of working groups.
At present there is also little clarity on how the suspension of provisions would be treated if the U.S joins back to the agreement. The eleven countries could ratify an agreement that automatically reinstates these provisions when the U.S. comes back. If the countries end up being bound by provisions that they have not agreed to because of the U.S. joining back, the suspension of the IP chapter would not count for much.
Nevertheless, the exclusion of so much of the IP chapter at this stage of the negotiations is a strong rejection of US-oriented provisions and a good sign for copyright standards being discussed at other trade venues. Canada, which has the second biggest economy among remaining TPP countries after Japan is simultaneously negotiating the North American Free Trade Agreement (NAFTA) and will need to ensure consistency across NAFTA and TPP. Other TPP nations such as Vietnam and Japan are involved in the Regional Comprehensive Economic Partnership (RCEP) negotiations.
Although the IP chapter was the worst of the TPP, it was not the only concerning part of the agreement for users. There are provisions elsewhere in the agreement that pose a threat to user rights and that we remain concerned about. For example, the telecommunications chapter establishes a hierarchy of interests where unfettered trade in telecommunications services and measures to protect the security and confidentiality of messages are prioritised over privacy of personal data of users. The investment chapter includes an investor-state dispute settlement (ISDS) process which enables multinational companies to challenge any new law or government action at the federal, state, or local level, in a country that is a signatory to the agreement. The inclusion of such provisions not only don't make sense in trade agreements but is also an affront to democracy and a threat to any law designed to protect the public interest. The electronic commerce chapter, with its weak support for privacy, its toothless provisions on net neutrality, and the poor trade-off made between access to source code of imported products, and the security of end users also remains part of the agreement and is unlikely to change much.
Any renegotiation of the agreement can only be successful if member states improve upon and fix the broken process of trade negotiations that led us to the point. The TPP negotiations have been carried out in secret, without public participation or even visibility into the draft document, although corporate lobbyists had direct access to the texts and the ability to influence the agreement. Even when member states have initiated consultations on the TPP at the national level, brief consultation periods between submissions and ministerial meetings has left stakeholders frustrated and with the sense that it is just "consultation theatre". The only way we can trust that the TPP agreement will reflect users' interests is if the reopened negotiations are inclusive, transparent, balanced and create avenues for meaningful consultation and participation from stakeholders.
The decision to exclude some of the most dangerous threats to the public's rights to free expression, access to knowledge, and privacy online is a big win for users, if indeed the TPP countries follow through with that decision as now seems likely. However, the TPP was, and remains, a bad model for Internet regulation.
EFA has also been active in opposing elements of the TPP for some years. In August we wrote to Australian Trade Minister Steve Ciobo in relation to the copyright and ecommerce chapters, and just last week, we reiterated those concerns.