http://www.ip-watch.org/2015/06/05/confidential-ustr-emails-show-close-industry-involvement-in-tpp-negotiations/
Confidential USTR Emails Show Close Industry Involvement In TPP
Negotiations
05/06/2015 BY WILLIAM NEW,
INTELLECTUAL PROPERTY WATCH
While a full range of stakeholders would be affected by the outcome
of the Trans-Pacific Partnership (TPP) agreement under secret negotiation
by the United States and a dozen trading partners, corporate representatives
have had a special seat at the negotiating table, as shown by hundreds
of pages of confidential emails from the US Trade Representative’s
office obtained by Intellectual Property Watch. The emails give a
rare and fascinating perspective on how policy is developed in the
trade office.
Years into the negotiation, the TPP is said to be nearing completion
and is the subject of a US congressional debate over renewal of fast-track
negotiating authority for the president (limiting Congress to a yes
or no vote). But the TPP text has never been made available to the
public of the countries negotiating it, except through periodic leaks
of parts of the text, making these emails timely for the debate.
Through a US Freedom of Information Act request, Intellectual Property
Watch has obtained some 400 pages of email traffic between USTR officials
and industry advisors. Most of the content of the emails is redacted
(blacked out), but they still give insight into the process.
The released emails, ranging from 2010 to 2013, are made public for
the first time here (1 of 4), here (2 of 4), here (3 of 4), and here
(4 of 4) [all pdf].
The FOIA request is the subject of a lawsuit brought on behalf of
IP-Watch by the Yale Law School Media Freedom and Information Access
Clinic.
Intellectual
Property Watch does not take a position on trade negotiations, but
has argued that the extreme secrecy of the TPP has made it too difficult
to write meaningful stories about the negotiations. Typical press
stories are limited to only the dates of meetings and the list of
agenda items, with no detail.
What is striking is not that government negotiators seek expertise
and advice from leading industry figures. But the emails reveal a
close-knit relationship between negotiators and the industry advisors
that is likely unmatched by any other stakeholders.
Records of engagement with other stakeholders, such as members of
Congress, small businesses, public interest advocacy groups, academics,
or any other “non-cleared” advisors, were not requested by IP-Watch,
so it is not possible to directly compare their level of access. But
it is difficult to imagine that, for instance, activists representing
the general public interest would receive this level of tight-knit
treatment, even if they also could be considered experts.
The cleared advisors in the email exchanges represent a range of industries
and companies, including law firms. They include (in no particular
order):
Recording
Industry Association of America, PhRMA, General Electric, Intel, Cisco,
White and Case, Advanced Medical Technology Association (AdvaMed),
Motion Picture Association of America, Wiley Rein, Entertainment Software
Association, Fanwood Chemical, American Chemistry Council, CropLife,
Medtronic, American Continental Group consultants, and Abbott. There
is also an exchange with generics pharmaceutical industry representatives.
Many of the industry representatives are themselves former USTR officials.
Examples of Exchanges
Exchanges between officials and industry cover just about any topic
affecting the TPP that came up during the period, such as expansion
of the TPP to include Japan and other countries, a transparency agreement
among negotiating countries, a public statement by USTR about access
to medicines, Canada and culture, US patent reform, IPR and environmental
information, software patentability, relations with the European Union,
other trade agreements and international developments, and as expected
numerous consultations over elements of the draft treaty text.
For instance, General Electric Aviation division representative Tanuja
Garde asks, “On trade secrets, can you share the language you tabled
or discuss by phone?” To which the USTR official Probir Mehta answers,
“Let’s chat; How about sometime Monday?” Elsewhere, Garde writes to
Mehta: “I heard about what was tabled in Dallas – great job. Have
you briefed the Chamber? [referring to the US Chamber of Commerce,
an industry association] Mehta replies: “Thanks Tanuja – actually
the thanks go to you and Joe!”
[referring to USTR official Joe Whitlock] We’ve briefed the US Chamber
led TPP IP Task Force last week.”
A number of other big companies are included in discussions on trade
secrets, such as DuPont, Corning, Microsoft and Qualcomm.
In another example, Entertainment Software Association (ESA) Vice
President Stevan Mitchell provides a draft ESA analysis on technological
protection measures (TPM) in the negotiation. The USTR reply is, “Are
you free next week for lunch at some point?”
Jennifer Sanford of Cisco Systems engaged on TPP and supply chain
issues.
Greg
Slater of Intel provided a memo on an undisclosed topic. Timothy Brightbill
of Wiley Rein is asked on short notice to provide language on state-owned
enterprises (SOE) for a government interagency proposal.
RIAA reviewed the telecommunications chapter and had questions, discussed
a “selected ITAC members’ re posted TPP copyright and enforcement
text,” made comments on language regarding internet service providers,
and provided information about legitimate online music services available
in New Zealand. The International IP Alliance also weighed in the
copyright and enforcement text. In addition, copyright industry representatives
sent their views on copyright limitations and exceptions and secondary
liability options, and safe harbors.
An ITAC is a USTR Industry Trade Advisory Committee, for which there
are several by industry sector.
At one point early on, Doug Nelson of CropLife said his team had been
lobbying government officials in Kuala Lumpur and Vietnam on “agchemical
data protection,” and that “their reception to our TRIPS Article 39.3
emphasis on data exclusivity was very positive.” He asked if CropLife
could make a presentation at an upcoming round of TPP talks in New
Zealand or if there was a spot on the US delegation for a representative.
USTR official Stan McCoy replied simply that they did not know how
the New Zealand government was going to handle private sector side
meetings.
At another point, Jim DeLisi of Fanwood Chemical said he had just
seen the text on rules of origin, and remarked, “Someone owes USTR
a royalty payment. These are our rules. … This is a very pleasant
surprise.”
In a further example, Ralph Ives of AdvaMed had an exchange with Barbara
Weisel of USTR about a CEO letter on TPP. Weisel said she would not
comment until she had seen the letter, and “please don’t name names
of negotiators in the letter, although I appreciate the thought.”
Ives responds apparently with a draft of the letter, saying, “I’m
not asking you to edit, of course, but let me know if something like
this would be ok to send.” Weisel responds with a request to meet
with him on it before he sends anything, and proceeds to make meeting
arrangements. Elsewhere, AdvaMed is involved in a discussion about
technical barriers to trade (TBT).
An Australian medical industry association is included in direct engagement
with USTR officials.
Among other things the emails show is that negotiators – and industry
representatives – work very hard and long hours, including weekends
and holidays, and countless trips around the world.
It is also clear that USTR officials try to stay within the rules
they are given, and may not even agree with level of secrecy of the
talks. At one point in 2012, Jared Ragland, director of the USTR Office
of Intellectual Property and Innovation, tells a lobbyist, “Happy
to have a quick call with you, and interested members, if necessary,
altho ugh I can’t really talk text with non-CAs as you know” (referring
to non-cleared advisors).
And at another point, there is a reference made to a request by USTR
lead negotiator Barbara Weisel for industry not to keep repeating
itself.
