Nov 142013

In the midst of the controversy surrounding the release of a Trans Pacific Partnership Agreement (TPP) negotiating text on intellectual property by Wikileaks yesterday, over 80 law professors of intellectual property law and related disciplines have written to President Obama, Members of Congress and the United States Trade Representative calling for the creation of a public process to vet the TPP’S intellectual property proposals.

The letter specifically notes that “even in light of yesterday’s release by WikiLeaks,” public debate on the agreement’s proposals “beyond speculation would be impossible since there has not been any official release of text.”

It continues:

“Nor does yesterday’s leaked text solve the problem of transparency and accountability since it is both unofficial and perhaps out-of-date. It should be (and remains) the role of our government, and not leakers, to create public dialogue by sharing the accurate and current informational foundations required for meaningful public input.”

Many of the letters’ signatories might support an ultimate TPP agreement and are supporters and practitioners in the field of international intellectual property law. But they state their collective fear that continuing to follow a closed process where the public is informed only through leaks will doom the agreement to the fate of the last secretly negotiated intellectual property agreement – the Anti-Counterfeiting Trade Agreement (ACTA).

Like TPP, ACTA was negotiated under unprecedented secrecy with the public informed of its contents manly through leaks. The result of the secretive process was rising public distrust, erupting in mass protests and criticism upon the finalization of the agreement. The EU parliament followed with a rejection of ACTA by an overwhelming margin of 478 (opposed) – 39 (in favor). The Obama administration has not presented ACTA to Congress or otherwise expressed its intent to ratify the accord.

The law professor letter recounts that “[d]espite the broad public interest in and the effect of similar proposals in the TPP, TPP is following a process even more secretive than ACTA, which is amplifying public distrust and creating an environment conducive to an unbalanced and indefensible final product.” It calls on the administration to “support immediately changing the secretive TPP negotiation process in law and in practice, and follow instead the example set by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.”

The Marrakesh Treaty referred to in the letter was the last successful international intellectual property agreement, and it was negotiated through a highly participatory and inclusive process. In that process, all proposals for text for the agreement were shared openly with all stakeholders – unlike in the TPP and ACTA where only a narrow group of industry advisers on so called “Industry Trade Advisory Committees” obtain access to U.S. proposals on an ongoing basis. The end result in the Marrakesh agreement was praised by industry and consumer representatives alike as being a balanced product of a transparent and participatory process.

The law professors admonish that the TPP process, by contrast, “is inconsistent with core United States democratic values; the process should be changed.” The letter makes specific suggestions for Congress and the Administration to give the U.S. public the same information given to select corporate advisers through the ITAC process – which would be required by U.S. law if USTR’s policy making process was covered by the same standards that apply to other agencies through the Federal Advisory Committee Act and the Freedom of Information Act. USTR has claimed that its processes are exempt form each of these Watergate era open government laws.

Links to background documents on the issues referenced in the letter may be found at