As the U.S. and European consumer organizations met with intellectual property (IP) and trade agencies last week, interactions with state agency representatives over U.S. IP policies helped to further expose some underlying flaws in state policy approaches regulating global IP enforcement. It is clear that IP/trade agencies’ biased understanding of what constitutes a “stakeholder” and a “key interest” in agreements like the Anti-Counterfeiting Trade Agreement (ACTA), as well as their unfounded high valuation of what they call “IP-intensive” industries, are some of the problems that underlie the U.S. global IP enforcement agenda.

EFF is a member of the Trans-Atlantic Consumer Dialogue (TACD), a forum for U.S. and EU consumer rights organizations to meet and develop joint policy recommendations to the U.S. government and the European Union that advance consumer protections. Since 1998, over 70 member organizations have regularly released resolutions and statements of recommendations on issues covering food, information society, intellectual property, and transnational trade.

From June 4 to 6, the TACD met in Washington, D.C. to discuss new issues and future resolutions, and to meet with the U.S. and EU delegates to address policy recommendations that they have forwarded to state agencies. The focus of Tuesday afternoon was U.S. intellectual property policies. It remains clear that the U.S. is committed to secretly negotiating trade agreements that would extend restrictive regulation over the Internet. Given that this was the first meeting since ACTA had been signed in October 2011, this was a significantly pertinent issue.

A keynote speech by Ambassador Miriam Sapiro, Deputy U.S. Trade Representative (USTR), set the tone for the rest of the afternoon’s discussions. She again and again emphasized the importance of “multi-stakeholder input” and the necessity to increase transparency and opportunities for “public comment” during meetings over trans-Atlantic trade policies. Hopefully, she is referring to a process of negotiation that truly takes broad public interest into account: One that is inclusive of all relevant stakeholders, such as civil society, the private sector, as well as the technical community itself. If governments and companies are the only ones invited to the negotiating table to discuss Internet and IP policies, the process can hardly be called “multi-stakeholder.”

In the Q&A following her speech, a member of the TACD questioned the USTR’s true commitment to transparency in light of the negotiations over almost all recent bilateral and regional trade agreements (such as ACTA) that have excluded civil society. In response, the USTR spokesperson insisted that they have been transparent, claiming that they were “going to stakeholders” to determine what their issues were. They then claimed that “negotiating in public” prevents governments and “stakeholders” from putting all their interests on the table in a way that would compromise the agreement. Given that civil society has mostly been excluded from the negotiating table, their definition of a stakeholder could strictly be referring to private industry interests.

At the plenary session following this keynote, the Chief Economist from the U.S. Patent Trade Office (USPTO) were joined by two civil society members of TACD and an economics scholar at a panel to discuss a recent publication called the Intellectual Property and the U.S. Economy: Industries in Focus. In March 2010, the USPTO established the Office of the Chief Economist, tasked with assessing the direct impacts of intellectual property policy on the U.S. economy. This report was the first substantial paper that it produced, and it purportedly “examines both the important trends and economic characteristics of these highly IP- intensive industries and their meaningful contributions to the U.S. economy.” The USPTO representative claimed that this report was still “preliminary,” heavily emphasizing that this was not a “policy recommendation.”

Even so, this report has been widely cited by copyright and IP maximalists in arguing for more restrictive copyright policies because they claim the report definitively demonstrates how essential IP-protected industries are to the U.S. economy. Knowledge Economy International (KEI) excellently outlines some of the gaping flaws in this report. KEI asserts that the USPTO defines any “IP-intensive” job to cover anything that remotely benefits from copyright, patent, or a trademark. Under this definition, a bagger at a grocery store, a car mechanic, or even a bank teller could be deemed a job that is protected by IP. Such bloated economic figures seems to bolster the claim that IP must be protected above all interests because it is deemed such a integral part of the economy.

Following this panel session, TACD members met with U.S. and European Union government representatives to discuss concerns over IP policies. During discussions, the U.S. representatives emphasized the need to protect intellectual property interests, citing to the aforementioned misleading report on IP and the economy, claiming that the USPTO’s report definitively proves how “IP-intensive” jobs, and therefore IP-intensive industries, need prioritized policy protection. They went on to say that agreements like ACTA enable “better” enforcement of IP, and suggested that such agreements protect and even create more jobs. Moreover, they claimed that ACTA is much more transparent “relative to other trade agreements” and that opposition to the agreement is all based on unfounded rhetoric. Finally, the U.S. side addressed SOPA and PIPA, stating that these bills are not truly dead, and that some form of legislation must be passed to address the ongoing problem of “online piracy.”

In response, TACD members went around the table and brought up their issues with ACTA and other mechanisms enabling restrictive copyright enforcement. These comments mainly addressed the exclusion of civil society participation, as well as the collateral damage its IP policies would inflict through its restrictive enforcement measures. Below are some of the topics discussed:

• When asked that would happen to ACTA if the EU Parliament were to vote to reject the agreement, the U.S. representatives did not give a definitive answer. They claimed vaguely that counterfeiting is a global issue and that it would not necessarily have to involve the EU, concluding that they are “still looking into it.”

• One of the most threatening provisions of ACTA is one that enables the creation of an independent committee that would oversee implementation and enforcement of the agreement in each of the signatory countries. The concern is that the members of this committee would not be democratically elected and that the trend of secrecy will continue on through this venue. A consumer rights group representative asked whether they had set any of the rules and plans for this committee. Interestingly, the U.S. representatives claimed that there have been no discussions about this ACTA committee.

• Considering the complete secrecy over the negotiations, one consumer group representative asked the U.S. federal agencies what aspect of the agreement they were worried about being seen and what kinds of interests were they protecting in maintaining such confidentiality. The answer and explanation was that if versions of the agreement had been publicly available, “key interests” would have created expectations about their desired provisions being adopted in ACTA; and  that it would be problematic for these interests if their demands had to be abandoned in the final version of the agreement for the sake of compromise and resolution. Another consumer rights advocate challenged them and said that these key players, such as private industry, already did know what was carried within this agreement anyway. The TACD member representative asserted that the public’s ability to see the content of this agreement was vastly more important than the negotiating flexibility that would be derived from keeping it secret

The annual TACD meeting is an important venue for civil society members to attend and directly communicate IP and Internet policy concerns with federal agency representatives. On several occasions, TACD members demanded explanations on how confidentiality is consistent with any notion of democratic rulemaking. However, U.S. federal agency representatives continued to repeat the same dubious justifications to legitimize the exclusion of civil society from international trade and IP policies. It continues to be clear that government agencies do not grasp the true meaning of transparency. Moreover, without proper honest assessments of the impact and side effects of IP protections on the society and economy, the development of pragmatic IP policy will never be possible.