TTIP – a brief victory of hope over experience

By EDRi · May 22, 2013

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Deutsch: [TTIP – ein flüchtiger Sieg der Hoffnung über die Erfahrung |]

The European Commission this week started providing some insight into
its plans for the Transatlantic Trade and Investment Partnership (TTIP)
– in an event in the European Parliament organised by Dutch Liberal MEP,
Marietje Schaake and in a “civil society” meeting in the Commission itself.

Both meetings started very promisingly. The Commission explained that it
wasn’t seeking to harmonise intellectual property legislation in both
jurisdictions and said that it would only include such issues where a
problem was identified by stakeholders – just a narrow range of issues
and only “geographic indicators” have so far been selected. So, great,
only identified problems would be addressed. That would be an
appropriate, balanced and conservative approach.

This begs an obvious question, however, which we asked the Commission
during its “civil society” meeting. If the list of issues to be
addressed in the “IPR chapter” is limited and only includes
clearly identified problems, will the Commission undertake
to publish details of each such problem that is addressed in the final
draft? The Commission responded that it would not make such an
undertaking, because it could not be expected to provide details of
“every single detail” of the agreement tackling intellectual property.
Suddenly, we had moved from a narrow, focussed exercise to address a
small number of identified problems, to a list of measures that was
potentially so long that it would be unreasonable to ask the Commission
to explain what problems it was seeking to solve.

The Commission then addressed the issue of enforcement, which was so
controversial in ACTA. It said that no domestic enforcement would be
addressed but – bizarrely – the agreement will probably include
enforcement in third countries. Suddenly, we had moved from a narrow,
focussed exercise to address barriers to trade between the EU and US to
the setting up a joint EU/US “Team America: World Police” in order to
enforce we don’t quite know whose law in we don’t quite know which
country. The big question is whether it will promote or acknowledge
privatised enforcement by US companies abroad – as it currently happens
via payment providers and Google’s global implementation of the Digital
Millenium Copyright Act.

At both meetings, the Commission was careful to stress that TTIP was not
a “new ACTA”. This too provided five minutes of hope that lessons had
been learned and the same old mistakes would not be made again. Then,
the discussion turned to transparency and the Commission confirmed that,
as things currently stand, the level of transparency would be identical
to what was done with ACTA. More bizarrely, the European Parliament’s
International Trade Committee supports this disastrous model. The text
adopted is as follows:

“Recalls the need for pro-active outreach and continuous and transparent
engagement by the Commission with a wide range of the stakeholders,
including business, environmental, agricultural, consumer, labour and
other representatives, throughout the negotiation process, in order to
ensure fact-based discussions, build trust in the negotiations, obtain
proportionate input from various sides and foster public support by
taking stakeholders’ concerns into consideration; encourages all
stakeholders to actively participate and put forward initiatives and
information relevant to the negotiations”

To paraphrase Churchill – never in the history of mankind was so little
meaning conveyed by so many words to such little effect…

On a positive note, at the Commission “civil society” meeting, officials
broke their long-standing rule and commented on a leaked document. The
leaked draft mandate refers, in the context of the cost of legislation,
to the need to “otherwise achieve legitimate regulatory objectives”.
This sounds very much like the kind of privatised enforcement proposed
in ACTA and blind support for “self-regulatory” measures that replace
legislation (and democratic scrutiny). The Commission’s response was
clear that “cooperative enforcement” and other forms of
“self-regulation” are indeed what is meant by this text. The inclusion
of “investor-state” measures in the mandate also adds a further level of
corporate power to the initiative (see FFII link below).

Citizen groups at the event were heavily outnumbered by other parts of
what the European Commission apparently considers to be “civil society”.
Groups understood to be “civil society” by the European Commission in
this context include the European Patent Office, the Transatlantic
Business Council, the International Federation of the Phonographic
Industry, the German Chemical Industry Association, the Confederation of
British Industry, the Confederation of European Community Cigarette
Manufacturers and Eurocommerce.

The plan is to finish the negotiations at the end of the current session
of the European Parliament and the current mandate of the European
Commission. Therefore, a vote on approval of TTIP is likely to take
place at the beginning of the new session of Parliament – a safe
distance from the next elections.

“Civil Society” meeting participants (17.05.2013)

Leaked EU Mandate (12.03.2013)

Investor-state relations: ACTA is back, completed with investment
protections (10.07.2012)

(Contribution by Joe McNamee – EDRi)