International Battle: Copyright Libertarians Apply ACTA Lessons Toward Tying Up USTR's Efforts for Trans-Pacific Partnership

By Louis Trager, Washington Internet Daily

BERKELEY, Calif. -- Opponents of the proposed Trans-Pacific Partnership (TPP) agreement are working to swarm over, under and around the Office of the U.S. Trade Representative (USTR) to avoid beefed-up international intellectual-property prerogatives and enforcement.  At the Innovate/Activate conference of online activists put on over the weekend by technology centers at New York Law School and the University of California-Berkeley's law school, speakers called the TPP a follow-up to the Anti-Counterfeiting Trade Agreement (ACTA) that's worse. 

The partnership agreement deliberations are largely secret, and the U.S. agency has proven responsive only to corporate interests, in this case mainly IP owners, and basically impervious to popular sentiment, speakers said.  "USTR does not care" what people outside its narrow constituency think about its work, said Peter Maybarduk, the director of Public Citizen's Access to Medicines Project, which fights patent restrictions on the availability of prescription drugs.  Matthew Kavanagh, the U.S. advocacy director of the Health Global Access Project, said, "Massive, massive money and power wants this [agreement] to happen.  The only people they hear from are industry."  The USTR's office didn't get back to us right away Monday.

Outside critics will be confined to literature tables at the Dallas site of a TPP negotiating round next month, speakers said.  Governments involved are said to have cranked up the watermarking security on documents to prevent the kind of leaks that have fueled opposition to ACTA, said Gwen Hinze, the Electronic Frontier Foundation's international intellectual property director.  A grassroots campaign aimed at the congressional committees that oversee the USTR "raised the profile of this issue" with Capitol Hill aides but "hasn't resulted in release of the text," she said.  The TPP's proposed provisions are so objectionable that "if we can raise this to the fever pitch where this becomes an issue, we will win," Kavanagh said.

The USTR's office has increasingly used executive agreements like the TPP to get around the requirement in Article II of the Constitution for Senate ratification of treaties, said Executive Director Margot Kaminski of Yale Law School's Information Society Project.  "Unfortunately, the constitutionality of the negotiating process is really, really hard to challenge in court," she said.  The alternative is to persuade Congress to rein in the USTR, Kaminski said.  "A huge intervention point" is telling senators that the TPP usurps their treaty power, she said.

Maybarduk said his group's strategy is to "delay every negotiating session as much as we can," disclose as much information about the TPP as possible and foment dissent among government officials.  That means supplying foreign officials involved with ammunition against the American position and promoting divisions within the U.S. government, he said.  Opponents can give federal officials outside the USTR's office "more ways to speak up" against the agency in meetings, Maybarduk said.  There's a broad goal of making the trade officials "look bad," he said.  "Fundamentally, it's about weakening USTR."  Kavanagh said his strategy is to encourage TPP leaks and try to persuade foreign governments to oppose it.  Negotiators "in four or five different countries are very much on our side," he said.

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