By, Tyler Snell*

A growing pernicious trend that is greatly affecting digital policy around the world is called “policy laundering” – the use of secretive international trade agreements to pressure countries to commit to restrictive or overly broad laws that would not ordinarily pass a transparent, democratic process.

 

Not only is the behind-closed-doors procedure questionable, many of the representatives negotiating such agreements are not elected representatives but rather trade appointees and powerful multinational corporate lobbyists. Policy laundering deprives each jurisdiction, and most important their citizens, the chance to engage in a legitimate legislative debate.

Copyright law, which is not an actual trade issue, has been a particular target of these private international trade negotiations. In the United States, for example, the Digital Millennium Copyright Act (DMCA) made it illegal to record a CD directly to an MP3 player; instead it must go through a computer. It also prohibited unlocking a cell phone if you bought it from a specific wireless carrier. How did these strange and restrictive laws come about? Policy laundering.

U.S. Assistant Secretary of Commerce Bruce Lehman was unable to garner the support he needed domestically to pass laws that made digital rights management (DRM) circumvention illegal, so he went to the United Nations’ WIPO (World Intellectual Property Organization) to insert the laws into an international copyright treaty. He then took the same policy that failed to pass a democratically elected congress in the U.S. and told them that the DMCA was now required to become federal law that applied domestically and for American citizens and companies operating abroad.

Latin America faces the very real threat of this dangerous practice with the Trans-Pacific Partnership (TPP), a multinational trade agreement that has become the poster-child of policy laundering through the opaque and undemocratic negotiation processes it continues to use. Started in 2005 between Singapore, Chile, New Zealand and Brunei, membership expanded to include the United States, Australia, Vietnam and Peru in 2008. Malaysia entered into negotiations in 2010, Japan in 2011, and Canada and Mexico become the last official entrants into the negotiations in 2012. Colombia, who has free trade agreements with five of the twelve TPP countries, has been trying to gain access to the talks but remains an unlikely candidate until this round of negotiations closes.

The current rounds of TPP negotiations in Canada have taken a further turn for the worse considering the undisclosed session schedules and location, which changed from Ottawa to Vancouver at the last minute and even left important negotiators out of the loop. This preoccupation with secrecy is alarming and restricts the public’s ability to integrate into the process. Though given the fact that over the five years of negotiations, not a single official statement or position has been released by any country, this continued secrecy is not surprising. Everything we know about the agenda of the TPP negotiations comes from a 2011 Wikileaks exposure of the proposed Intellectual Property chapter and later documents from the November 2013 Salt Lake negotiations. A worrisome trend in the TPP talks is that civil society organizations have not been invited to the negotiating table but large, multinational businesses have been afforded extraordinary influence over negotiating positions. The MPAA has had access to the complete text of the agreement while members of the United States Congress were kept in the dark.

What these leaks exposed is especially concerning to the many different businesses and individuals that are affected by copyright law. Unlike most industries, which consider overregulation a trade barrier, the MPAA (Motion Picture Association of America), RIAA (Recording Industry Association of America) and other multinational companies consider lack of copyright enforcement to be a significant trade barrier. As a result, these powerful industries are seeking harsh and restrictive intellectual property laws that hurt freedom of expression and innovation.

Among the many controversial provisions that have brought together a motley coalition of environmental activists, medical health professionals, and digital rights defenders to oppose the TPP are the devastating and far-reaching laws that the leaked intellectual property chapter exposes. Among the most dangerous stipulations affecting digital rights include:

• The prohibition of “unlocking” or “breaking” digital rights management (DRM) protections even for non-infringing uses (similar to the DMCA’s provisions that prohibit cell phone unlocking)
• The requirement of copyright licenses for temporary ‘buffer copies’, the small copies that computers need to make in the process of moving data around. This would require greater permissions and licensing for consumers for data they already own. Given that all computers regularly use such buffer copies to transfer data, when streaming a song legally, for example, this could have far-reaching effects for the open internet.
• The encouragement of ISPs to adopt ‘three strikes’ laws where they, rather than a court of law, become the arbiters of user liability with the power to kick someone off the internet after being accused of three copyright infringements. This SOPA-like stipulation could open the doors to censorship, and incidentally has been denounced by the UN. Chile would be forced to nullify its 2010 law that far better protects users by implementing a judicial notice-and-takedown regime, giving users the ability to remove infringing content before punishment.
• The harsh penalties for small-scale copyright infringement that go beyond US law and send small-scale infringers to jail.
• The lack of copyright limitations and exceptions such as fair use, library preservation, and adaptation of creative works for the disabled. There is a place in the text for future additions of exceptions, but as it stands there currently are none.
• The vast extension of copyright protections. Currently, copyrighted works pass into the public domain no less than 50 years after the death of the creator. The TPP would extend this to the creator’s life plus 70 years or 120 years for corporate-owned works.

(Content thanks to Public Knowledge and the Electronic Frontier Foundation)

Perhaps the most disturbing proposition is the creation of an ‘investor-state’ arbitration model that would give multinational corporations the power to directly sue sovereign national governments in an international tribunal for restitution, unjust expropriation, and for “alleged diminution of their potential profits as a result of regulation.” It is this type of dangerous arbitration system that permitted American cigarette maker Philip Morris to sue the government of Uruguay for $2 billion dollars for enacting laws that limit the sale and marketing of cigarettes because it violated a free trade agreement they had signed. These judicial systems especially hurt developing countries that do not have the financial resources for international arbitration that multinational giants like Philip Morris do.

President Obama contends that a successful TPP agreement remains a top priority for his administration, and promises to release the agreement’s text to Congress and the public in November. Australian Trade Minister Andrew Robb is not quite so optimistic about the timeline, saying he hopes that the agreement will be concluded in the first half of 2015. While one can hope that the final agreement improves upon the troublesome provisions that currently exist, the lack of negotiation transparency that has only worsened with the current round of talks coupled with the failure to include civil society representatives does not bode well for global consumers, especially in the developing world.

The TPP has become the current battlefield where nations negotiating multinational free trade agreements, ostensibly to lower barriers to inter-country trade, result in creating far-reaching social laws that threaten online freedom of expression and innovation.

To learn more about the TPP and voice your concerns with your legislators go to: http://ourfairdeal.org/

* Google Policy Fellow in Karisma Foundation for the summer 2014.