By Maira Sutton, www.eff.org
May 8th, 2015
TPP protest at fundraiser for President Obama in Los Angeles. Source Lauren Steiner.
Prominent experts at the United Nations have now indicated that secretive trade agreements such as the Trans-Pacific Partnership (TPP) undermine human rights around the world, both because of the secretive, corporate-dominated process, and due to the substantive content of the provisions that arise out of these opaque negotiations.
Last week, an independent UN expert on the promotion of a democratic and equitable international order, Alfred de Zayas, said that the secrecy surrounding trade negotiations is a threat to human rights because it disenfranchises and excludes the public from “the right and opportunity to take part in the conduct of public affairs.” He urges human rights impact assessments be undertaken immediately as part of the negotiation process, and goes on to say that fast tracking these deals to approval has a detrimental impact on a democratic, equitable world order. We agree, and have been fighting Fast Track legislation in the U.S. to stop back-room negotiations that led to the TPP’s provisions become legitimized by the bill’s passage.
In his statements, he particularly singles out trade agreements’ investor-state dispute settlement (ISDS) provisions. They allow investors to sue nations over legislative and administrative rules alleging that they harm their profits. Zayas says:
The apparent lack of independence, transparency and accountability of ISDS tribunals also entails a violation (prima-facie) of the fundamental principle of legality laid down in international human rights law, including article 14 of the ICCPR, which requires that suits at law be adjudicated by independent tribunals.
We have also written about these rules, which were included in the most recent leak of the TPP’s Investment Chapter a few months ago, for including such sweeping definitions that could pave the way for companies to file ISDS suits that undermine fair use or other user protections in copyright laws of signatory nations.
Copyright Can Hinder Access to Science and Culture
In another recent report, the UN Special Rapporteur in the field of cultural rights points to how laws worldwide have trended toward strengthening copyright protections with little consideration for their human rights implications, such as how they harm people’s right to access science and culture. Special Rapporteur Farida Shaheed says that copyright laws now go far beyond prohibiting just literal copying, and makes activities such as translation, distribution, and modification illegal without permission or license from the copyright holder.
In light of copyright’s extensive prohibitive measures, the main challenge is that international treaties with copyright rules often make restrictive protections mandatory while treating exceptions and limitations rules, like fair use, optional for countries to enact—this is problem, she says, that stems from international agreement negotiations conducted in secrecy with “substantial corporate participation but without an equivalent participation of elected officials and other public interest voices.” We of course recognize this with the TPP, which contains a weak “three-step test” framework that could hinder signatory nations from enacting new exceptions and limitations to copyright. If passed, it could even threaten the United States’ more permissive, open-ended fair use system.
Many other copyright provisions in the TPP could undermine users’ right to take part in cultural life. The criminalization of DRM circumvention harms peoples’ ability to free content from these digital restrictions for remixing, and prevents people with disabilities from converting their media or software into formats that they can access. U.S.-style copyright takedown ruleswould mean we would see a continued rise in cases where fair use or public domain works are removed from platforms in the name of copyright enforcement with no judicial oversight.Dangerously low thresholds for criminality could lead to cases where people who simply share copyrighted works on a “commercial scale”—for example if it happens to go viral—could be deemed a criminal, alongside heavy penalties that could be a chilling effect on people who want to upload new derivative works, even if they are protected by fair use.
It’s therefore heartening to see UN experts come out to criticize these secretive trade agreements, for both their procedural flaws and substantive deficiencies. We have been saying for years that this process is not only illegitimate, it undermines current and future efforts to adapt and reform laws that make sense for users and new technological realities. That is whywe joined over 2,000 other public interest groups to oppose Fast Track for the TPP. Lawmakers and trade officials who now work to drive these harmful, anti-user treaties forward ought to realize that their passage would tie their names to a legacy of regressive, human rights-violating policies and practices.
You can take action by getting in touch with your congressional representatives and let them know that we’re counting on them to defend the Internet from the White House’s secret, anti-user deals.
If you’re on Twitter, help us call on influential members of Congress to come out against this bill.
Read about all of our concerns with the TPP agreement:
- Anti-Circumvention of Digital Rights Management (DRM)
- Criminalization of Investigative Journalism, Security Research, and Whistleblowing
- ISP Liability: Internet Intermediaries as Copyright Cops
- Criminal Copyright Enforcement
- Expansion of Copyright Terms
- “Investor-State” Provisions Could Undermine User Protections in Copyright
- Restrictions on Fair Use