Wednesday, 21 May 2014

What Role for Transparency in Trade Treaties Including IP?

Trade and IP – Africa is no stranger to the intricate way in which these two are linked.  Scholars in America like to talk about this is a “new” conflation, but in the context of development in Africa, it seems the two have always been connected.

This week, American University Washington College of Law Program on Information Justice and Intellectual Property hosted a panel on Transparency and the Democratic Process in Trade Negotiations.  Lucky for those of us not in Washington, DC, the panel was streamed live and later posted on the school’s website. Evident by the host and list of speakers, if not by the panel title itself, this group is primarily interested in trade negotiations with respect to intellectual property. 

The panelists consisted of: Sean Flynn, professor at American University and well-known expert on the intersection of trade and IP; David Levine, professor at Elon University School of Law in North Carolina whose work focuses on “intellectual property law’s impact on public and private secrecy;” Peter Maybarduk, a human rights lawyer and advocate for access to medicines; Laura Roselle, a Political Science professor at Elon University who specializes in international political communication; and Susan Sell, professor at George Washington University and probably the most prominent non-lawyer in the IP and development conversation.

Mr. Maybarduk began the conversation with a look at the influence trade treaties have on domestic law.  His argument was essentially that trade treaties control a country’s ability to enact laws.  This prevents the populace from having a say in their own laws.  Thus, this is a very bad thing.  His desired process for treaty negotiations is that a working paper of the treaty should be released after every round of negotiations.  [This Little Leo has some concerns about both the underpinnings of this argument and the desired process, but this is not her soap box, so she’ll keep them to herself.  Feel free to email or leave a comment if you’d like to discuss.]

Ms. Rosselle had the opportunity to speak next and in many ways provided a counterpoint to Mr. Maybarduk.  She spoke about the elements needed for a treaty to be viewed as legitimate.  These included narrative and achievability components.  Transparency can be part of the narrative component; those in favor of secrecy often focus on the achievability component.  Too many cooks in the kitchen can spoil the meal. Narratives come in several types, like identity of the state, policy narratives and a narrative about the international system itself.  For a country like the United States where the identity of the state narrative includes freedom of speech and democratic involvement of the people, it is difficult to reconcile secrecy and the state identity narrative.  Ms. Rosselle also spoke of how the international system narrative is going through a huge shift since the end of the Cold War.  During the Cold War, there were two sides and every player was really just a part of one of the two main players.  Now, there are many more players at the table, with many different needs. Additionally, technological advances have made it much easier for groups and individuals who would not have been players before to disrupt negotiations.

Ms. Sell continued the discussion of how the treaty landscape has changed by discussing the shift from multi-lateral treaties to bi-lateral treaties.  This is something many in Africa have been watching closely, often for the reasons Ms. Sell stated.  She argues that the true targets in the recent EU-US trade negotiations are not the EU or US but China, Brazil, India and South Africa.  She also echoed Mr. Maybarduk’s concerns about countries (particularly the US in this case) not being able to change their domestic laws due to international obligations.  She argued that the US is exporting the worst parts of it’s IP laws and exclaimed “We’re not exporting fair use!”  Considering the verbatim fair use provision in Uganda’s (and Israel’s) copyright law, this Little Leo suggests that may not be an entirely correct statement.

Mr. Levine spoke on transparency itself.  What does it mean?  Are our leaks even transparent?  He expressed concern that we should know where our information is coming from and offered that good international negotiations should involve more exports on all sides of the issues so that divergent opinions can be heard.

Mr. Flynn, as the host of the program, wound up the conversation by recapping how American IP law-making has shifted from US regulatory arenas to the international sphere.

The program ended with a long segment of discussion and Q&As from the audience.  Sadly, though admittedly not unexpectedly, there was little mention of Africa aside from “we must save these unsuspecting countries from the terrible bilateral treaties that will be used against them as international standards.”  But that does not mean there isn’t good information in here for those of us who work in and care about the future of IP on the continent.  Transparency is one of those ideals that has been heavily integrated into the concept of democracy.  We see calls for it everywhere, anti-corruption movements and election monitoring are just two examples.  There’s a real opportunity here for discussion about transparency's role in treaty negotiations and the ways in which each country wishes to approach IP issues in their own trade negotiations.

The full program is linked above, and here.  It took them awhile to get started, so the panel doesn’t actually begin until around the 32 minute mark.  It also ends around 2:15, not the full 2 hours and 45 minutes it appears to last.

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