EU-Mercosur trade agreement is poor copyright policymaking conducted in the dark

Journal des Dames et des Modes, Costumes Parisiens, fevrier
Users' rights must be expanded
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This week Creative Commons published an analysis of some of the copyright-related provisions contained in the trade agreement currently being negotiated between the European Union and the Mercosur bloc. The EU and this South American sub-regional group of Argentina, Brazil, Paraguay, and Uruguay have been in talks about the free trade agreement (FTA) since 2000. The EU-Mercosur negotiations are situation during a time when several of the affected countries—including Argentina, Uruguay, Paraguay and of course the EU—are involved in a review of their own copyright legal frameworks.

Tabled copyright rules protect powerful stakeholders, ignore public interest

As expected, the copyright provisions of the intellectual property chapter are nothing to write home about. The CC analysis shows that the policy direction suggested by the negotiators would be detrimental to the public domain, creativity and sharing, and user rights in the digital age.

For example, the draft IP chapter recommends a copyright term extension for those countries that don’t already follow the life + 70 term. It upholds more than adequate measures for protection and enforcement of rights, but doesn’t include similar safeguards to protect users rights and balanced approach to copyright. The draft IPR chapter includes prohibitions to circumventing technological protection measures to gain access to a work, as well as  a provision that would prohibit the creation and sharing of technologies that could enable a user to circumvent technological protection measures. You can read the full policy analysis here.

Of course, these and other provisions are not uncommon to many contemporary multilateral trade negotiations such as the Trans-Pacific Partnership (TPP) and the renegotiation of the North American Free Trade Agreement (NAFTA). Each of these agreements include provisions regulating intellectual property, and the recent negotiation of these trade pacts shows that when copyright is put on the table, there’s a significant push to drastically increase enforcement measures for rights holders, lengthen copyright terms, and demand harsh infringement penalties. While the demands of rightsholders are fully addressed, there’s little consideration given to the rights of the users.

Perhaps most striking in the draft EU-Mercosur agreement is the invisible (and powerful) hand of the EU, which wishes to export the intellectual property provisions most beneficial to rightsholders (such as harmonized longer terms), but only wants to permit the absolute minimum when it comes to limitations and exceptions (such as only temporary copying).

Policymaking in the shadows

We’ve argued that evidence-based policymaking should be a no-brainer, and that any copyright rules should be developed from reliable, impartial economic and policy research whose foundation is based on evidence and facts. We believe this information should be broadly available for public inspection, and public institutions should solicit and fairly incorporate feedback from a wide range of stakeholders. It’s certainly debatable whether the EU legislator has lived up to these expectations.

But the problems of transparency and public participation are manifold with multilateral trade agreements because these processes are conducted in secret with almost zero input from the public. Where the public can at least have a minimal say in how national-level legislation is crafted (through public consultations, elected representatives, etc.), with trade negotiations there is by design no method for involvement apart from a small group of corporate interests.

The EU-Mercosur process and nearly all the recent trade negotiations (TPP, NAFTA, RCEP) typically exclude civil society organisations and the public from participating in—or even observing—the negotiation meetings. And usually the text of the agreements are kept secret, which then requires leaks to be able to read about the provisions being discussed behind closed doors. This process needs to change. We agree with Creative Commons: trade agreement negotiations must be fully transparent and involve the public.

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