Having observed critics of trade agreements for around 20 years now, I've often wondered about their precise views. It's clear they don't like trade agreements, but what exactly do they want to see from the trade regime? Some of them are almost certainly protectionists, or have made alliances with protectionists, so they just oppose free trade in general. I don't see how they'll ever by happy with a trade agreement (unless it's an agreement not to trade!). With others, though, things seem a little more nuanced. They may be fine with free trade in the abstract, but simply have concerns about specific parts of actual trade agreements.
To satisfy my curiosity about this, I did something very simple and straightforward: I asked one of them! I follow Maira Sutton of the Electronic Frontier Foundation (EFF) on twitter, and she leaves no doubt that she despises the TPP. She has a steady stream of tweets, blog posts and other publications making this clear. But her concerns always seemed, as far as I could tell, to be about IP issues only (and for the sake of full disclosure, I share some of her concerns). What exactly are the IP issues in the TPP that worry her? And what does she think of protectionism and other non-IP aspects of trade agreements? To find out, I interviewed her. This is just one data point in the universe of the views of trade critics, and I don't know how representative it is, but I found it interesting nonetheless. Our exchange follows. Thanks to Maira for agreeing to go on the record with this!
SL: You've been critical of some of the proposed TPP provisions related to IP protection. Could you briefly describe your main concerns in this regard?
MS: EFF has been following the trade policy debate from very early on, when we realized that many of the digital copyright provisions that Hollywood and other big content industries wanted to pass at the domestic level in the United States, could get cycled through international policy making venues more easily, then in turn, force US lawmakers to pass rules that would fulfill these new obligations. The first and most blatant example of this was the UN World Intellectual Property Organization (WIPO) Copyright Treaty, which was the first international agreement prohibiting the act of bypassing Digital Rights Management (DRM) on technologies. DRM are technologies that are put there to allegedly prevent the piracy of content used on those platforms and to protect users from security vulnerabilities, but in practice, they control what you can and can't do with the devices or media that you've purchased. These rules were previously rejected in Congress, but once they were enshrined in a WIPO treaty, Congress was forced to codify these rules into US law.
So the first concern are these DRM "anti-circumvention" rules (DRM is also called technological protection measures) that are now also in the proposed TPP agreement, as we know from leaked versions of the text. In the years since such rules have been in place in the US and abroad, they have chilled speech, stifled innovation, and suppressed important security research. When someone can't unlock digital content to remix or comment on those works—rights that are protected under fair use—these rules directly undermine our free speech. When third-parties or curious hobbyists are unable to unlock these devices to repair, study, tinker, or buy those things used, innovation and economic activity is stifled. And when security researchers are silenced from releasing important findings for fear that they may face heavy consequences over the very act of circumventing DRM on the platforms they researched, the public is at increased risk from security vulnerabilities that never get exposed or fixed. In these and other ways, these anti-circumvention rules have caused years of immeasurable harm for users who are restricted from having the right to control and use the digital devices and works they have rightfully purchased.
The second main concern is what's called "ISP liability", which determine the legal liability of intermediary content providers, such as Internet service providers like Comcast and AT&T, and content platforms like Facebook, Google, or most any other website. The question is how much those services are liable for the content they transmit to its subscribers and users. The concern with the TPP's rules is that they will pave the way for those services to undertake the financial and administrative burdens to enforce copyright online, thereby making them more willing to filter out content, block access to websites, or terminate user accounts in order to avoid the legal liability of their users' activities.
But those are just two of the many issues we're concerned about in the TPP. We're also alarmed by language found in the latest leak on trade secrets—the way it's written, it could be used to crack down on whistle blowers and journalists who report on corporate wrongdoing on a "computer system". Recent reports have also indicated that negotiators have already agreed upon the inclusion of the United States' already excessive copyright term length of life of the author plus 70 years. This is a prime example of how the TPP's copyright provisions require other nations to adopt our restrictive rules, but will also lock the US into laws that even our own lawmakers are now in the process of reviewing for likely reform. The White House continues to allege that these provisions will not change US law, but tying us down to new regulatory obligations in the TPP will surely prevent us from urgently needed changes to our laws.
SL: You described a copyright term of life of the author plus 70 year as "excessive". Do you have any views on what an appropriate term length would be?
MS: I said "excessive" because of the harmful side effects that have resulted from those copyright terms here in the United States. Of course, giving artists monopoly rights can be pitched as an incentive to make more works, because it simplifies the business model of selling copies and derivatives of those works. But those policy aims needs to be weighed against the huge costs they have on the public domain. Having a rich public domain, a cultural commons, is crucial to enabling new innovation and creativity. When works are locked up for close to 140 years (depending on the lifespan of the creator), that means all kinds of works—videos, photos, songs, etc.—are out of the reach for new artists and creators. If they were shorter, we'd be able to archive and index all kinds of works so that we can all remix and re-purpose things that would otherwise not see the light of day.
Which brings me to the other major problem: orphan works, whose authors are long gone or nowhere to be found. For example, there are old records and films that are disintegrating before our eyes, and yet various copyright restrictions are impeding their preservation. Not only are we losing access to culture, we're losing the actual original content. There's also an incredible study that shows how decades of books aren't available from sellers, like Amazon, due to the duration of copyright. For example, there are more new books for sale on Amazon that were made in the 1890s than from the 1990s! Copyright holders might not necessarily care to create reproductions of a work because they just don't see themselves profiting from it. We are seeing a massive loss of culture because we're giving people and companies, who may or may not even be the creator, monopoly rights over our culture.
The length of copyright terms ought to balance these concerns in a way that's supported by facts. Some economists have said that it should be, at most, seven to 14 years from their publication—which is how long it used to be before they kept extending it again and again. I'd say it's probably closer to that than 70 years after the death of an author. At least that way the creators themselves will see the fruits of their labor and work their darnedest to have people see, appreciate, and pay them for their work. We should be asking ourselves if it makes sense to give artists copyrights so that their estates can go after new artists for making new, popular works.
SL: How do you see the proper balance of domestic action and international coordination on IP issues? You are critical of the way the TPP is approaching IP issues, but that seems to be based on the specific policies pursued. If the policies were more to your liking, would you be comfortable with international treaties or other agreements addressing IP issues? If so, would you suggest trade agreements, WIPO, or something else as the appropriate fora? Or should these issues be dealt with solely in the domestic arena?
MS: The main issue is whether such policy making spaces are transparent and democratic in a way that prevents a few powerful private industries from influencing their policy outcomes. When the US Trade Representative pushes for certain copyright provisions in trade deals, or even in their annual Special 301 report, they're advocating for Hollywood—not for the Internet, not for any one of the thousands of users who have experienced negative consequences of over-restrictive copyright rules. The policies that will harm users and the free and open Internet are there because the process is secretive and captured by certain industries. So while it would be great if these trade agreements included provisions that struck a good balance between upholding the interests of users and those of creators, I can't see how that would ever be possible until the secretive, corporate-captured process is reformed.
In this regard, WIPO is a more ideal venue than trade negotiations to enact IP policy. At least now, it makes their working texts public, and civil society representatives are allowed at the table where country delegates debate and draft treaties and recommendations. This is one reason why it passed a treaty for persons with visual and reading disabilities to circumvent DRM (the issue described above), to have the right to unlock content and translate books into formats they can access and read. Civil society groups drove this treaty at WIPO. And yet, it took around 10 years because they faced an incredible amount of resistance from content industry representatives and state officials who still buy into the rhetoric that more copyright protection is always necessary. So while WIPO is now better since they became more participatory and open, it's still far from perfect.
Policy choices about innovation should be decided democratically, whether that's at the domestic or international level. Even in the US now, we're undergoing a copyright review process where we're starting to revisit the policies that were enacted under the Digital Millennium Copyright Act (DMCA). We hope that when they go back to the drawing board and design new copyright policies, they'll seriously consider the fact that creativity and the experience of culture now looks very different than it did when the DMCA passed and that it will continue to quickly evolve. Lawmakers must have an open honest dialogue with their constituents about how to achieve the goals of copyright, without having the government, or corporations through state coercion, violate our free speech or privacy, and ensure that culture and knowledge is not siloed by increasingly draconian copyright restrictions. A policy making venue that enables such discussions, while also transparent and fruitful, is yet to be created.
SL: I know that traditional trade policy is not the focus of your work, but I'm curious what your views are on the historical core of trade negotiations. Do you have an opinion on the use of trade talks to promote reciprocal tariff reductions? In your opinion, are there economic benefits to the lowering of tariffs around the world?
MS: Sure. If I have my EFF hat on, I don't really have a position about this either way—what's problematic is that agreements like TPP now contain rules that would lead to more digital copyright regulations that are in many ways, rather protectionist. These onerous regulations do not belong in these deals.
If I'm speaking just for myself, I'd say that there are economic benefits to lowering tariffs around the world. Both companies and consumers can profit from increased imports and exports, and eliminating such barriers can help ease the trade of various commodities and goods. I will say though, that I'm not a complete "free trader", because I do think people should be able to enact things like food safety laws, environmental protections, and other rules that are decided democratically at the national level. I'm opposed to any policy in a trade agreement that could undermine national sovereignty, like say, investor-state dispute settlement rules, that could leave such public interest laws vulnerable to adjudication from companies that claim such rules undermine their expected future profits.
And yet, TPP, and other ongoing trade negotiations, are largely not about eliminating tariffs. Most all of the TPP countries have very low tariffs, with Japan's agricultural sector largely being the exception. I believe the White House is exaggerating the problem of high tariffs impeding United States exports, and that ultimately, their main objective with TPP is really about imposing an array of regulatory obligations that would mostly benefit U.S.-based companies involved in international commerce. These issues are not, to my understanding, "traditional" trade issues. I can't say that all of them are necessarily bad or good, both because I only cover the issues in the TPP that involve digital policies, but also because the whole thing is secret. But I will reiterate what I previously said: that when it comes to rules and regulations that will impact our every day lives, those should never be considered or decided in secret without public participation. That's what's happening with digital copyright rules in the TPP.
SL: If I could press you a bit on the regulation and sovereignty issues, you expressed concern with trade rules that interfere with domestic policy-making. I think I can safely assume that you would be opposed to trade rules that, for example, interfere with a prohibition on GM foods. But what about domestic laws or regulations that explicitly treat foreign products worse than domestic ones? For example, imagine a clean energy law that required the use of domestically-produced solar panels rather than foreign ones in order to get tax benefits. What's your view of that kind of discriminatory regulation?
MS: For me, it again goes back to whether such issues ought to be decided in a venue like the TPP negotiations. If there is such a discriminatory regulation, which seems to serve no other purpose than to subsidize domestic industry at the expense of foreign products, then that can already be challenged through the WTO and its rules of non-discrimination. But if there was some discriminatory rule that was not about origin, but was instead about meeting a certain standard of energy efficiency to earn the tax benefit, I can't see myself disputing that. The validity of policies comes down to whether there's a legitimate, practical reason for them, rather than being purely anti-competitive.
The same goes for mandates requiring certain kinds of data be hosted locally. EFF wouldn't support these to the extent that they favor local services, because that would interfere with the free flow of data online. But we can concede the need for particularly sensitive data to be housed in a jurisdiction where there are locally-enforceable data protection laws that can guard it against physical or legal intrusion by foreign actors.
I'm not a general trade policy expert and I've only examined TPP in terms of its negotiation process and the digital regulations it contains. But I personally wouldn't be opposed to an agreement like TPP if it was really only about striking down tariff barriers and anti-competitive regulations. However, it seems like modern trade agreements are less about that, than enacting binding rules that would harm the ability for democratically-decided, domestic policies to take hold. In the area of copyright, that has meant increasingly restrictive enforcement rules that could harm the millions of users whose interests are not being represented in these closed-off negotiations.
