ACTA (the Anti-Counterfeiting Trade Agreement) has shown us that openness when negotiating trade agreements leads to a better result – but it looks like this lesson that hasn’t been learnt by the negotiators of the TPP (Trans Pacific Partnership) free trade agreement.

At the beginning of the year Tech Liberty was involved in the campaign against the ACTA treaty. A major part of the problem with ACTA was that while we knew it was attempting to push more offensive IP laws, the secrecy around the negotiations meant we didn’t know what was in them.

Traditional Closed Model of Treaty Negotiation

ACTA followed the traditional model of negotiating a trade agreement (PDF), which goes something like this:

1. A number of countries get together and decide to negotiate an agreement.
2. The countries send their delegates to a series of meetings.
3. The delegates discuss what sort of things will be in the treaty and come up with an agenda.
4. Delegates present papers about particular topics.
5. Work starts on a draft agreement.
6. The delegates work through the draft removing points of difference.
7. The text is finalised and returned to the governments for signing.
8. In the democratic countries, the governments consult the people and then decide whether to sign the treaty or not.
9. The governments make any required law changes and then sign the treaty.

You’ll note that the consultation with the people comes after the treaty text has been finalised. The process is structured so that there’s no chance that a government could consult, then come back to the negotiations and ask for more changes to be made (and indeed, this could be a bit chaotic).

Of course, some countries might talk to interested people about what their position should be at stages 4 – 6, and the New Zealand government made some effort to do this. However, it’s very hard to provide useful input into a process where you’re not allowed to see what the participants are saying.

Finally, we note that it seems uncommon for a country to not sign a treaty that they were involved in negotiating. This makes it even more important to get the text of the treaty correct.

ACTA Revealed

The ACTA treaty started out by following this model but then something unusual happened: concerned insiders released a draft version of the treaty. This leaked draft was published on the Internet and suddenly we could see what the treaty said as well as the different positions of the participants on the remaining points of difference.

But we note that the world didn’t end when the draft text was leaked (and leaked multiple times as new versions were produced – someone on the inside obviously had problems with the treaty):

• As far as we know, there were no repercussions when people found out that countries had different opinions about certain sections.
• The treaty negotiations did not break down.
• The participating countries realised that secrecy was no longer an option and released an official draft text (albeit with less detail then the leaks).

Unfortunately our fears were confirmed and we found that the draft ACTA treaty contained a number of bad ideas that infringed on our civil liberties:

• Trying to turn civil or private infringement into a criminal act.
• Enforcing punitive statutory damages rather than leaving them up to the judge to determine.
• Blaming ISPs when people downloaded infringing material over their network, even though ISPs are just providing a connection.
• Obliging ISPs to breach the privacy of their users by forcing them to give up the identities of their users on demand from anyone.
• Banning people from circumventing digital locks on copyrighted works, even if the person is just doing it to use material they paid for.

Final ACTA

The draft text triggered strong opposition from people all over the globe. They pointed out flaws, made suggestions for improvement, and lobbied their governments.

While this was going on the negotiations continued and, one by one, those five points were either removed or significantly watered down. While the final version of the ACTA treaty isn’t ideal it is still a major improvement over what we saw in the early drafts.

Undoubtedly some of those changes would probably have happened even without the public pressure. But at the same time, it also must have had an influence, even if just strengthening the negotiating positions of those who opposed those five points. We note that negotiators have confirmed that public pressure did have an effect on the content of the ACTA treaty.

A Better, More Open, Model

Ultimately, we believe that we ended up with a better ACTA treaty due to the release of the draft text and the resulting reaction from the people who would be subject to it. Openness worked (and we note that this is how treaties such as TRIPS are negotiated).

Some positives of the open negotiation model:

• Lobby groups could work out whether they needed to take an interest.
• Interested parties could provide detailed feedback rather than having to submit nebulous general responses.
• Everyone is equal, unlike with ACTA where the US government shared early drafts with some lobby groups.
• Negotiators had a better idea of whether their people were behind them – or not.

Negotiating TPP

This brings us to the Trans Pacific Partnership. The next round of negotiations are being held in Auckland from the 6th-10th of December. The Ministry of Foreign Affairs and Trade will be hosting some stakeholder events, but these are very much in the old style of “we won’t tell you anything about what we’re discussing”.

At the moment the TPP negotiators are submitting papers about some of the topics that will be included in the treaty. What would be the harm if these were released? It’s not as if all the participants don’t get to read them so revealing them will not put any party at a disadvantage. And, when the negotiations get to that point, what would be the harm in releasing a draft text after each round?

[Edit: The New Zealand paper on IP Enforcement in TPP has been leaked.]

At Tech Liberty we’re big fans of democracy and believe that it relies on open and consultative government. Government works better when it involves more people and this applies to international trade treaty negotiations as much as anything else.

We believe that the TPP negotiations should reject the traditional closed model and switch to a more open negotiation. We’re not suggesting that countries should be obliged to reveal their own internal deliberations or reveal their negotiating bottom lines, rather that by gaining more input the negotiators will be able to do a better job of representing the interests of their respective governments and we will all end up with a better treaty.

If you’re a TPP negotiator and want to do your bit in favour of openness and a better treaty, please send documents to contact@techliberty.org.nz.