Trans-Pacific Partnership: Good or bad for the Internet?

8 December 2016 - A Workshop on Other in Guadalajara, Mexico

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Full Session Transcript

>> MILTON MUELLER: We're missing somebody.  We're going to wait a few more minutes and then we'll make some adjustments if that person doesn't show up, so can you just be patient for a few minutes.  Susan is sick.  Yeah.

All right.  Let's get started then.  So, greetings everyone.  My name is Milton Mueller.  I'm with Georgia Institute of Technology in Atlanta, USA and this workshop was organized by myself and Farzaneh along with partners and the Internet For Global Governance.  We apologize for this room.  We think there's still a few more seats in here if you enjoy rubbing elbows with your neighbors.  IGF is all about harmony and communication.

This workshop is about the Trans‑Pacific Partnership which is a trade agreement that was, I think initiated by the United States and involved various Pacific Rim countries, with the exception of China.  As you probably know, the TPP was opposed by both U.S. presidential candidates and is probably dead in the United States.  However, the content of the TPP includes what are undoubtedly going to be continuing issues regarding trade and information services and the role of intellectual property protection in those trade agreements.

So we have an actually very impressive array of trade experts and people from Civil Society, business, international organizations and government on the panel today and we're going to divide the discussion into, basically three parts here we are.  Here's Chinmayi.  So, I gave a brief introduction.  Do you have the agenda?  I have it here on my ‑‑

>> ARUN CHINMAYI: Thank you, so you introduced all the speakers ‑‑

>> MILTON MUELLER: No, I haven't, actually.

>> CHINMAYI ARUN: If you've had a brief introduction, feebly we'll get to what should and shouldn't be included in discussions.  Basically, the opening begins with Jeremy, Milton, and with you basically introducing the opening themes.

>> MILTON MUELLER: Okay, so Jeremy, on the Copyright and trademark aspects, Jeremy is going to open up, then I'm going to speak, and then Juan.

>> JEREMY MALCOLM: Thank you very much for that.  So, add we've heard, the TPP is likely to be dead in the United States, but the changes that it would have brought may still come into effect in other countries.  What those changes were ‑‑ let me break them down.  Some of them involved Copyright so the term of Copyright would have been extended from life plus 50 years to life plus 70 years in six of the 12 TPP countries.  The tough rules that the United States already has on digital rights management, that is digital locks, would have been put into force throughout the Pacific Rim.  Also very high standards of both civil and criminal enforcement of Copyright, including potential criminal penalties for reproductions on a commercial scale.  Commercial scale doesn't necessarily mean for profit, though.  It can be like maybe you run a fan website are where you do a lot of remixing of Copyright works.  If that's on a big enough scale, that could have been a criminal offense.

And civil enforcement including damages that go beyond what's needed to the Copyright owner on their original loss.  Other countries would have to adopt a similar model.  It wouldn't have to be an identical model but it would still have to involve a procedure for taking down content from the internet without a judicial review.  Except in one country.  Chile actually had an exception which allowed them to retain their judicial process but that wasn't available to any of the other countries.

So those were some of the Copyright changes that were required under the TPP.  In other areas of intellectual property, for example, trade secrets, it would have been a much harsher regime, including making it a criminal offense to even access trade secrets by a computer system whether or not those are even exposed by third parties so this posed risks to journalists, to whistle blowers, remembering that the TPP was throughout some countries that may be less Democratic than others.

The argument we sometimes hear is, this is not a problem.  This already represents the law in the United States, so what's the big deal.  Of course, I've already mentioned that it's not just affecting the United States.  There were a number of other countries that didn't already have these in their law, including, as I said, six countries that would have to add 20 years to the time of Copyright, which means subtracting 20 years from the public domain, but even if we limit ourselves to looking at the U.S., it's still damaging.  The U.S. might want to change its law to enact certain reforms.

Like, for example, often works are still within Copyright but we can't locate the Copyright owner in order to license those so some countries want to put in a special regime to allow the use of orphan works.  The U.S. is now ‑‑ if the TPP went into effect, the U.S. would be more retrained in reforming its law to allow for new provisions with orphan law.  That's just one example.  Many statutes of the TPP are based on the current state of Court precedents in the U.S. which also may change over time and there by render the U.S. in breach of the TPP if its law changes in a Court system.

This was actually the case during the negotiation for the TPP where at one point they were trying to put in protections for temporary digital copies because the current state of precedent suggested that temporary digital copies were protected by Copyright and then due to a new trend in Court decisions, that was thrown in doubt.  So if that had been enshrined in the TPP, the U.S. would have been inadvertently potentially in breach of its own law.

And then the third thing is that all though the TPP is now dead in the United States, other countries are considering sort of putting into effect, sort of a quasi‑implementation of a treaty that no longer exists.  Japan.  New Zealand has already passed a law which would change its domestic legislation, but luckily that's consistently on the TPP coming into effect, which doesn't seem to be the case but there are other countries that may be inconsistently changing their law to bring it into line with the TPP, such as Japan, possibly Chile, Peru, Singapore, and mal Asia may be doing that and once they've done that, they're not changing back.

And they're changing their law without any quid pro quo from the United States, so it doesn't make any sense.  The other thing that makes this still dangerous is that it's a starting point for the next round of negotiations.  If there is a TPP, then the starting point for these is going to be the TPP.  So these IP detriments are still a live issue for us and it's important that we are aware of those at the IGF.  Thank you very much.

>> CHINMAYI ARUN: Thank you, Jeremy.  So since we're all fans of controversy here, I should tell you how it's going to go.  Jeremy has talked about the danger to freedom, and now Milton is going to give a surprisingly moderate perspective because you think that the IP provisions are not great, but not necessarily dangerous.  And then finally, we will get to Juan Antonio who will disagree even more radically.

(laughter)

>> MILTON MUELLER: Okay. So thank you.  Again, I'm Milton Mueller, Internet Governance Project Georgia Institution of Technology and I can see from the audience here there is tremendous interest in the issue of trade and Internet Governance.  I think going forward, trade is going to be one of the central aspects of Internet Governance, as opposed to some of the older ICANN issues which are appreciate getting resolved so it's kind of disappointing that we were stuck over here in a closet and shifted around the at last minute, possibly leading some people to miss us.  But, again I am gratified to see the interest that is generated here.

In general, I want to make clear my overall perspective is that I'm very pro‑free trade.  I'm extremely liberal in my approach to trade agreements.  Just as the internet could be and should be borderless, I think that most markets in the world should be borderless and I'm against protectionism.  One of my concerns about the anti-TPP forces is that while the people criticizing the intellectual property aspects of the agreement are certainly correct in some of their criticisms, I view the sort of implied alliance with antitrade populism as being almost as dangerous as some of the alleged detriments of the intellectual property agreements. 

In other words, I don't think that the opponents of TPP who are acting on the basis of TPR have differentiated themselves from Donald Trump, of the sort that has already led to Brexit in the UK and to the election of Trump in the U.S.

It's notable that in the U.S., both of the candidates were coming out with an antitrade message.  So let me address some of the issues.  First of all, I agree that term extensions are bad and that we don't need them, and ever since the digital Millennium Copyright led to the first Mickey Mouse issue of extending a term that we have been in sort of an equilibrium around the world settling on a longer term.  The problem is that I think that's happening and is going to happen, to some extent, regardless of the trade agreement.  As Jeremy admitted, Europe and the U.S. are already at life plus 70.  And that's, in terms of the Copyright material that's produced in the world, that's a very, very large portion.  I don't know where India is in this.  I don't know where China is in this.  But I think that the issue of the term limits of Copyright is, I don't see the TPP as making that significantly worse than it is already.  So, I don't view that as a major issue.

With respect to the locking in of some bad intellectual property agreements, well, one of the few good things we've learned from Mr. Trump is that trade agreements can be trashed just like laws.  So, if, indeed, we find ourselves in a situation ten years from now where there is political will to reduce term limits on Copyright or to reduce the digital protections of anticircumvention and so on, I think that in fact we can get out of those trade agreements.  What we need and have always needed is a political will.  And I think that the IPR critique, again, by focusing singularly on IPR tends to overlook the benefits of the other aspects of the trade agreement, and since that will be the subject of some of the second section, I will not say anything more about that but I do think we need to take a balanced approach to that.

So to sum up, Jeremy and I rarely actually disagree about Copyright and intellectual property but we're looking at here is a different weighting of the overall benefits and detriments of the TPP.

>> CHINMAYI ARUN: Thank you, so Juan Antonio, while I promised drastic agreements.  I think people from countries like ours, Mexico, often have slightly different point of view given our regions, so it will be interesting to hear what you think.

>> JUAN ANTONIO DURANTES: Yes, thank you.  I was asked to disagree dramatically with the other speakers, and I will try to do that because I really think that TPP is a good agreement in terms of IP provisions, and of course Madam Speaker here and others will disagree with me.  But I think I will speak from these provisions on international trade law perspective.  And what I'm trying to do since we all think that the TPP future is very, very ‑‑ I mean, we don't know what is going to happen about disagreements, what I do think is that these p kind of negotiations and IP provisions and free trade agreements will remain there for the future.  So that is a reality that we cannot disagree, not even Burcu, I think, on.  And I think that we should bear in mind that, first of all, since the WTO creation, intellectual property was considered one of the pillars of WTO law and trade law.  As part of the old architecture of international trade laws.

So with trading goods, trading services, and IP, those three pillars are considered the main pillars of the international trade law.  So in that regard, and since trades agreement, even the trips agreement in article 1 recognized that provisions of the trips agreement are flawed and countries can build up on those provisions individually or unilaterally in their own laws.  For example, Mexico has, I don't know if you know but we were actually criticized a lot during the negotiations of the TPP because Mexico proposed as a term for could Copyright protection a hundred years after the date of the author.  And that's what we have in our national law.  That was the reason we were proposing that, because it was not actually very wise not to propose at least what we have in our own law as a part of the trade negotiations.

So that was annual example of a developing country or an emerging country proposing in an FTA, actually strongest protection for Copyrights, and I think that's basically a reality.  We all, in FTAs, will propose to go beyond what the WTO has as a multilateral side.  So WTO and WIPO are trade related organizations.  We must bear in mind that trade agreements are about trade, not about the internet, not about the Human Rights or the rights of the users of the internet.  And in that regard, those provision that's we include in trade agreements are basically related to how to protect intellectual property in this framework of integrating more the economies of the countries participating in those negotiations.  And in that regard, I think it's completely fair and lawful that courts pursue strongest protection of their IPR as part of their trade negotiations.

Of course, for example, in the TPP, there were countries that, within the IP negotiations didn't have a strong or offensive interest, but they needed to participate in those negotiations because they had interest, for example, in market access.  And that's where sometimes we, and with we end with results that are not positive to some sectors but for either sectors, of course, to have strong Copyrights for other sectors it's something they pursue ‑‑ for example, in the case of Mexico, two main areas of the IP negotiations were part of our integrations.  One was geographical implications, the other was Copyright but as part of that position we negotiate in TPP, we had to make concessions.  And like in other sections like enforcement, where we didn't have strong interest.

What I'm trying to say is every time a country enters into an FTA agreement, they will need to have offensive interests represented and also defensive interests, and the result will be the chapters on IP.  The TPP is an example, I think, of a balanced result on IP because even when the detractors of the agreement identify many provisions that go beyond and are unnecessary and are replying U.S. law, you have also to see that many of the defensive interests in that negotiation proposed and achieved provisions that actually tried to balance those offensive interests.  And I think that if you see, if you compare the TPP provisions to, for example, NAFTA, you will see on the users side on the promotion of culture or the exchange of information or the public domain, TPP contains better provisions and actually stronger provisions than those that we negotiated back in the 90s in the NAFTA.

So, in the end, I think that TPP provisions may not be perfect, of course.  But I think it's a good example of how to achieve a balanced result, in particular in the Copyrights section.  And provisions related to the digital environment which are basically what I think are of interest of this panel.  So, to sum up, I think that trade agreements will remain as a vehicle to propose and negotiate better and stronger protections for IPR.  This is going to be a reality regardless of what happens with the TPP and Trump in the U.S., and countries will remain interested to negotiate strongest protections in those FTAs because that's a way to balance sometimes even if they don't have interest in IPR, their interest will be in access for their agricultural goods.  Thank you.

>> CHINMAYI ARUN: Thank you for that very subtle and informative articulation of how the south views trade agreements.  I think that what you articulated is very important, especially from my point of view because we have a very strong interest in open access, and I think a lot of people in my part of the world would agree with Jeremy so it's good to know that there are varying opinions in countries like ours.  So with that, we are going to move to the next part.  I think what you were saying about different parts of the world.  The next part is about e‑commerce trade and services and the TPP.  And Burcu, if I can invite you to make the first intervention.

>> BURCU KILIC: So ‑‑ why you are not sitting next to me?  Okay. Yeah.  So, I am ‑‑ I've been asked to talk about the e‑commerce chapter of the TPP, but before I start to talk about the details of the chapter, I want to clarify something.  I've been working on the TPP for like last five years, and when Antonio ‑‑ Juan Antonio and others will know that I've been to most of the TPP runs, and I was representing the public interest and the consumers as a stakeholder during those negotiation rounds when I work for Public Season and Public Season has a very strong position on trade and we work very hard on the TPP, and we were successful with the Coalition in the U.S. to kill the TPP, at least in the U.S.

But I have to clarify, we have not antitrade.  We believe in trade.  But we believe in fair trade, and the TPP has had nothing to do with fair trade, so let's clarify that.  TPP is not a typically trade agreement.  When you talk about trade agreements, like when you think about trade agreements, you think about tariffs, right?  That was the main purpose of trade agreements in the 1,940s but TPP has like 30 chapters and only five of them are related to trade.  Okay.

The others are related to the rules.  Intellectual property is one of those.  The other was e‑commerce and e‑commerce chapter was the best chapter of the TPP because we've never seen that chapter before they signed the agreement and released it.  It has never been leaked so we didn't know what was in that chapter until the agreement was completed.  With IP, there were lots of leaks but with e‑commerce there weren't because there were no interest from the Civil Society, I guess businesses were interested in that chapter because every time there was a meeting about the TPP, USPR was promoting the e‑commerce chapter for the provision it included but we never knew those provisions and when the chapter was released, we saw that there are two very ‑‑ not two, but from the perspective of Internet Governance, there are two, maybe three important provisions and one of them was the cross‑board data transfers. 

Because TPP was like promoting digital economy, that's what they said.  And the other one was the ban on local server requirements and source codes.  And of course there are other provisions which are related to net neutrality, without saying the N word, and then other provisions on electronic signatures, consumer protection, various protection and others.

But among those, the cross data transfer position was very important because as Juan Antonio very well explained, trade agreements are about trade.  They are not about Human Rights, they are not about Internet Governance, so if you have rules for cross border data transfers, all these rules we care about, like privacy, that's a protection, they become ‑‑ because the rule is that the data should be transferred cross border, freely, and your privacy rules, your data protection rules, they become cross border non‑tariff barriers.  So the rule in the TPP is data should be flown freely.  So the countries shouldn't come up with barriers for that.  And the exception is a very limited exception, trade exception, countries that come with p some public policy measures but these public policy measures need to pass the test, which was established in the WTO all those years. 

And the interesting thing is like countries, this is not a special exception for privacy, although there is like a privacy component of it, and in Article 14, it's very similar provision to the TPP, but the problem is countries tried to use that exception before.  Many, many times when they came up with all these public policy measures which were non‑tariff barriers for the rules, the WTO rules, and there were 45 cases and it worked only one time for the countries.  So like privacy, data protection are not like trade exceptions under the TPP.  And we never had that conversation.  And we saw that when the text was released.

So that's the problem with the e‑commerce chapter.  With IP, we knew that and there were all these discussions.  Although we weren't allowed to see the text, because of the leaks, we could read.  We could comment.  We could analyze and we could give recommendations for the negotiators and the countries.  That's why IP chapter has improved a lot.  Like the IP chapter in 2011 was different than the IP chapter in 2015 but there were all these discussions because of the leak.  E‑commerce chapter, nothing, nothing, nothing.  So now, the TPP e‑commerce chapter is part of the digital trade agenda of the U.S. and it's not only in the TPP, those rules.  You see the e‑commerce chapter of TISA, literally the same rules. 

Even in RCEP, U.S. is not part of RCEP, we haven't seen that India is part of it and we haven't seen the e‑commerce chapter of RCEP but there's a common understanding between the parties and you see the same rules like cross border data transfers, ban upon local service requirements, net neutrality, and other provisions.  So TPP might be that, but we have to leave these provisions and the interesting thing is, I come to IGF every year and I hear people discussing privacy, data protection, multistakeholderrism and everything.  And then we have the TPP commerce chapter, the rules are made for us and no one asks.

My organization is one of the biggest consumers rights organizations in the U.S. and when we talk about privacy in the U.S., we talk about consumer privacy, no one approached us.  No one asked us, so what do you think now that privacy is a trade exception.  Nothing.  So as Milton said, the trade agreements are becoming more and more effective tool for Internet Governance, for regulating the internet, and we have to think about it.  We have to discuss this, and we have to come up with like and better standards which will work for both of the parties because like data, the cross border data transfers may have a legitimate place in the 21st century trade agreements, but this doesn't mean that we should compromise our privacy.  Thank you very much.

>> CHINMAYI ARUN: Thank you.  You're lucky that you have a consumer protection organization in the U.S. that fights for data protection rights.  We don't even have that so I think a lot of the points you high lied are really valid for multiple countries, and from that point, Cecile, if I could intervene and ask you to come up and say what it looks like from a developing point of view.

>> CECILE BARAYRER‑EL SHAMI: Okay.  Hello, my name is Cecile Barayrer and I would agree with the fact that the lack of consultation with real society is a problem.  However, I will have a more balanced approach.  Not a position, so it's easy for me because e‑commerce chapter in any regional trade agreement has never been really the most controversial one so compared to issues like IP and employment rights and so on.  So from our perspective, we see that the TPP provides for developing countries the ability to engage with a wide range of developed countries. 

So far, Chile, that has other engagement with other countries, the potential gains from that point of view from other developing countries are likely to be important from a trading perspective.  So I think that this has to be acknowledged.  The TPP is also a binding, enforceable agreement and it has potential to drive interoperability in area such like electronic contracts and data protection.  And also, the text of the TPP seems to establish a workable balanced approach to the issue of balancing data flows and data protection so, it imposes limits on the extent of data protection that signatories can provide in the national laws, specifically in relation with the cross‑border transfer data.

Now, these restrictions are reasonable but they do have an attempt to strike a balance in a very difficult area of trade, policy.  Recently commented on the potential role of the proposed TPP as setting new standards for the assessment of personal data transfer restrictions globally and that is not just in the TPP.  But we have also to acknowledge that the TPP raises also concerns for developing nations, and these concerns appear to be in other trade agreements as well.  So, in relation, specifically, to e‑commerce and digital economy, the following limitation may arise.  So one, consumer and society, we said, have not been consulted.  They were excluded from the very beginning and in the development of the TPP, so that is, indeed, a real problem in every discussion.  And the IP requirements for online services as well may go further than national laws in relation to the removal of copy right infringing material and the sharing of personal data.

And in the third area, we need also to look at is the dispute resolution procedures.  Not only the investor state settlement.  And there is significant disputes and conflicts in similar trade agreements, including with Peru and the U.S.  So there's a growing number of developing countries around the world that refuse to allow those closes for in future trade agreements.  Now, even in the case of measures not controversial, the degree to which developing countries already meeting the requirements differ from country to country.  In some cases, countries have been aim to negotiate special transition carriers that allow them to adapt and meet these requirements, such as Mexico and Viet Nam regarding the ISP provisions.  I think this is necessary, but the point is that countries are at very different levels, and that's the main issue with trade agreements, big countries like the U.S. and countries like Brunei that are not as advanced.

For instance, in Malaysia, they approved the TPP last February but they still have to pass 27 amendments to 27 laws so it's not something that's going to be done overnight.  In that respect, I would like to highlight that only half of developing countries have data protection laws in place.  So that's the main, how to make sure that these countries reach the level of meeting the requirements in the agreement.  I would like to conclude with agreeing with my colleague from Mexico saying that we still think the text is a good base for agreement.

>> CHINMAYI ARUN: Thank you very much, Susan Aaronson who was to join us and who is excellent at this, I'm afraid she is ill and she's not able to be here today, so we're going to move on to the third part of this which is, what should and shouldn't be included in trade agreements.  Currently, we've highlighted all the problems.  We haven't necessarily agreed on what the issue is, but this is sort of the more constructive part of this discussion.  So from that point of view, Nick, if you could begin.

>> NICK BAMBLE: Great, thank you.  And I think we have some other panelists for this session as well.  So.

>> Should we move?

>> NICK BAMBLE: Constant rotation.  I'm really happy to be here at IGF.  It's actually really cool that there are four or five panels about trade.  I think it's important for everyone in this community to recognize that trade is affecting Internet Governance, it matters and we should have the reverse as well, come together, come up with some ideals, text on trade and really push those in a positive, positive way.  So I see a few questions being raised by this panel so far.  Should trade policy attempt to deal with copy rights, intermediate liabilities, cross‑border information flows, these issues that have been arising, challenging the world right now.  Other kind of non-tariff barriers.  If trade does deal with these issues, and subsequently, what's the proper enabling variability or set of rules or ideals we need to allow users to take advantage of the internet as a global platform for commerce, for culture, for art, for education, for politics, for all the things we value about the internet.  And a necessary corollary from our last side, how do we make sure people are included and represented in negotiations I think is a critical question here of how we can move forward.

But before addressing this question, I want to take a quick step back to talk about why with we think she's issues should be addressed within trade.  Many of us know the stats about the internet and trade, but I'll rattle a few of them off.  While data 30 barely existed 20 to 25 years ago, now contribute to more than a flow of goods.  There are ‑‑ in the use of bandwidth in the last decade.  Trade between two countries is about nine and a half percent higher when anybody usage is high in these countries, about ten and a half percent lower when internet usage is low in those countries.  I Googled on YouTube, more than 60 percent of a viewer come from outside the platformer's country.  So these are about trade, not just about business.

Collaboration across borders increased from 9 percent to 30 percent.  Open source software projects like the development of the Apache web server of course involved collaboration around users around the world and for the average person of Twitter, more than 60 percent of your followers are outside of your home country, on average.  To some extent, this is preaching to the choir.  Most people here think there's a great advantage to preserving the open anybody.  I think if we took a survey of this room, which I won't do right now, there would be a lot of common ground and then we see the most significant threats to the open internet. 

Government actions like filtering, host cell blocking, mandatory disclosure of encryption keys, unbalanced Copyright laws, code laws, holding services liable for third party content under fake standards and so on.  We've seen a slow but steady erosion on some of the baseline principles on which the internet was built and of course these risk greater fragmentation, greater vulcanization down the way.  The question is, what do we do about these threats?  How should we this I about building global norms and engaging institutions that can keep the internet together, interoperable.  What tools are available?

Let's talk about trade.  Trade is one tool that can be used to progress the internet notion, advance the values around the internet.  It's far from perfect but many of our institutions are far from perfect.  That doesn't mean we should not try to use them and in addition improve them.  In addition, trade has been dealing with issues that affect the internet like Copyright for decades now.  Whether one likes this fact or not, it's better to engage and try to shape this conversation and move in a positive direction or we risk having even worse outcomes on many of these issues.  With that being said, a few ideas about reforms that can be made to trade agreement and policy to make sure they reflect the interest of all stakeholders.  I think the Brussels declaration which the ESS had a prominent role in provides a really good and public declaration and trade.  Recent political events in the U.S. and elsewhere have shown clearly that people don't feel they have a voice or participation in trade and we need participation from a much broader group of stakeholders.

Of course, we shouldn't think of trade negotiations as the obviously point of leverage.  We need more at the front end where countries are establishing their priorities and objectives, that's where the most valuable input can be provided.  Open in consultations, there are other arenas out there in which we can build norms and model texts that we want to see reflected in agreements around the world.  This is where a form like IGF could be quite helpful.  A collaborative form where governments, Civil Society, NGOs and users could hash out understandings and positive agenda.

You can think about tethering this, too, to the UN's stable development goals.  How can trade advance ensure it continues to function.  How can trade advance goals, like research and development, developing country extorts, these are all issues that trade can help advance if addressed in a sort of holistic and Broadway.  Of course, we're not going to all agree on the model text but I think we'd be surprised by how much we do agree on.  And finally, trade negotiators need to get smarter about the internet as they deal with these issues so along with opening up the process, we need to bring in more expertise.  Negotiators are aware of how rules that negotiate for one purpose and one context can have broader effects on the internet and can affect all the stakeholders there.  This is a complete framework for moving forward, but I hope it's a decent start.  I'm happy to talk more in the Q and A.  Thank you.

>> CHINMAYI ARUN: Thank you, Nick, for that very able illustration for both the fact that unlike the way in which the trade agreements might see it, trade agreements are about more than data barriers, that kind of thing.  But I think this is the first time I've seen anyone articulate ways in which we would leverage agreements to achieve some of the things this community would talk about because I think a lot of us see it as this closed door discussion that impacts our world and something we can't give much to.  So from that point of view, since we began with Jeremy criticizing the TPP fairly strongly, it would be nice to see how Jeremy responds to what Nick has to say and what else he has to add in this context.

>> JEREMY MALCOLM: Well, I actually agree with a lot of what Nick has had to say, although I would take issue with some aspects of it and I think it's understandable why Google's position is fairly pragmatic, since we have these trade agreements, since they're happening regardless, we might as well get on board and get whatever we can out of them.  But I suppose as a member of a digital Civil Society advocacy organization, I have a more idealistic position and I would say that there are some issues that we really ought to circumscribe and leave out of trade agreements because we're not going to get the right rules in that sort of closed venue.  And I think it's a great idea that we use the IGF but there's no indication at this point that the trade negotiators are going to pay any heed to that. 

So looking back in the history of trade negotiations, there have been times like at the world trade organization, for example, they have marked some issues out of scope and said, there's a boundary line between trade relevant rules and rules that may have been an impact but they're less trade relevant and we can deal with those elsewhere.  We can deal with those in a more dedicated body that has experts devoted to that topic.  Maybe health or even now days, even intellectual property rules are no longer being really dealt with at the WTO because they're so contentious and that has been the reason why they split off into side agreements.

We had the anticounterfeiting agreement, the TPP itself is not an ability of WTO members to agree on these rules so we don't have to deal with everything that's relevant to trade inside closed trade negotiations, which would develop as a way of dealing with things like tariffs and quotas and there was good reason why they were dealt with in a closed door fashion for those issues but when we're dealing with so many behind the border issues that are issues of domestic public policy, it's no longer as appropriate that they be dealt with in the same way.

So if we were to try and group internet related issues into those which should or shouldn't be dealt with in trade negotiations, there's a few criteria I think we should look at.  One is looking at the advisory process that the trade negotiators go through.  Do they have adequate offer cancel of effective stakeholders?  So, in the United States, there's a system of advisory committees which advise the U.S. trade representative on what sort of rules they should be seeking in their trade agreements and those are pretty much 90 percent plus industry lobbyists or industry representatives, at least.  So, we can, if we're dealing with issues that have a significant impact on consumers and users, you're not going to get good coverage of those interests through the trade advisory process that exists in the U.S. 

So that may be an indication that trade negotiations are not the right process, at least not until the trade advisory committees are opened up.  Another criterion we might want to look at when deciding whether to deal with an issue in trade negotiations is, is there another process that is more appropriate for dealing with this issue?  Like, is there a dedicated body that has more expertise in this?

And the TPP, for example, has rules on domain names.  Can anyone else in this room think of an organization that might be better qualified to deal with domain name policy?  Because I certainly can.  I don't think that is an issue that should be dealt with in trade agreements at all.  I think that's a pretty clear cut case.  A third criterion is are we trying to make rules in an area where legal regimes are still developing.  I think net neutrality is a good example of that.  We're still in the really early days of development of net neutrality agreements around the world and yet they were trying to shove this into TPP when we're nowhere near establishing those domestically so it's way too early to be throwing those in agreements.

Fourth, what if the technology itself is still developing?  That's another reason why you might not want to lock rules into trade agreements.  They put into TPP rules about disallowing countries from acquiring access to source code of digital products and yet, we've just seen in the news this year how consumer projects have been taken over by malicious bots and hijacking them to launch the biggest ever ‑‑ countries might be realizing they should be allowing review of these source codes before allowing them on the market.  The same as safety checks for motor vehicles.  The same with a web cam.  You ought not be allowing that on sale unless there's been a review but the TPP would have completely eliminated that possibility so that's another reason we don't want to be putting these rules into these.

The final agreements about whether we should be putting internet rules in trade agreements is, is there the possibility of the internet community, us, to review these rules and offer our feedback?  At the moment, there is not.  We have shown ‑‑ we're leading the way in this area, in a lot of ways, like the NETmundial conference we had had where we agreed on a set of non-binding principles, that was a ground breaking initiative by the Internet Governance community and the trade community is way behind us in that respect and I think if we are going to be making rules for trade agreements, they should think about a more open process like that.  The countries of the world have agreed to a multistakeholder approach to Internet Governance and we have to put it to them like, is that just words or do you really mean what you said because if you really mean what you said then the way you're negotiating trade agreements and putting that internet issue in there does not stand up to your supposed multistakeholder values.  So that's my slightly more critical position.

>> CHINMAYI ARUN: Okay. I believe that's what's known as throwing a gauntlet.  Internet Governance meets international trade.  So it's interesting because Jeremy is a lawyer with a background in multistakeholder institutions.  When I teach, I use some of his work on that body that deals with domain names and that's sort of got its own history of a different way of building norms and the world of international trade which you work with and arguably largely come from has its own rules and priorities, so it would be very interesting to hear what your take is on this.

>> JUAN ANTONIO DURANTES: Okay. Thank you.  Well, first of all, I would start by reiterating that IP is trade.  So this idea of having or criticizing TPP because it includes a chapter ‑‑ or any FTA because it includes a chapter on intellectual property, I think it doesn't have any basis.  I would disagree strongly with Burcu.  I think IP has been part of the international trade law for ages and of course a trade agreement is the best evidence of that.  So every time we will have an environment or a path that invades or has any relationship with Copyrights, patents, trademarks, GIs or any other subject of intellectual property then FTAs will and may have provisions that relate to those subjects.  So in that regard, if the internet has become a way to use and exploit Copyrights, it is actually very, I think, normal and understandable that FTAs will try or will deal with internet as much as it relates to the exploitation of a Copyright. 

And that's true, also, for trademarks and domain names.  The TPP provisions on Don domain names are related to the possibly invasion of trademark rights from the use and exploitation of those domain names.  Now, what I do think and I've agreed with everybody ‑‑ now what I think is that governments have a challenge in the future on how to bring more voices as part of their inputs for trade negotiations.  I think that's true, that the world has changed a lot and previously there was only ways to communicate with the private sector companies and those kind of agents and stakeholders in each country.  Now, we have a Civil Society that is very open and very active and I think governments will need to increase and improve their mechanisms to consult Civil Society groups and with that to bring more information in what they have as part of their positions in trade negotiations.

But I think, also, that Civil Society needs to understand better how trade negotiations work.  You cannot put a position at Civil Society in front of a government that will be, you can't negotiate trade or you can't negotiate IP.  You need to propose that can be subject to negotiation.  You cannot be part of this dialogue with the government by only saying no to trade negotiations.  And in that regard, I think that there is also a challenge from Civil Society groups on how to present in a better way, their views, to governments.  And they need to be reliable. 

Because governments, when they negotiate and they consult private sector, they know that the private sector will not go to the press and say, well look, they haven't heard me or they haven't do what I want or the other government or the other party in the trade negotiations proposing, these are things which will actually challenge and endanger in a very, very important way the position of the trade negotiator from one government.  So I think in that regard, you also would need to compliment on how to make the consultations with the private ‑‑ with the Civil Society or how to implement more reliable tools to consult the private sectors. 

Now, I think that so far, what I've seen as a trade negotiator is that if Civil Society groups actually talk with the substantive for example, Mexico's telecommunications institute which is involved in many ways policies related to the internet, those views from that substantive or regulatory authority will need to be actually bringing into the position of the government and that's a way to influence right now what the trade negotiators bring to the table.  So there are ways to negotiate and there are ways to make your views to be present in those discussions in their interagency process.  So I think that those are some comments that I have.

The only last thing is that they were mentioning that they were mentioning that FTA should not address issues in development in the national legislation under discussions.  I just want to underline that FTAs are a source of national law, and that's a reality, also.  Sometimes what you discuss in international organizations actually become part of your national law, so even if you have a national legislation on some issues, you will use what has been discussed in the international arena as the source of your national or domestic legislation.  Thank you.

>> CHINMAYI ARUN: Thank you so much.  I think the disagreement is pretty strongly here.  So since Susan Aaronson is not here, Milton is going to make the intervention.  And I gather disagrees once again.

>> MILTON MUELLER: The theme was what should be in trade agreements and I was actually quite shocked to hear Juan say, IP is trade, okay?  Because this is just obviously not correct.  IP is a right.  It is a legal right that is granted by government as a form of kind of an economic Monopoly for a limited duration granted over the production of certain kinds of things.  And the great trade economist Jack Isbadwadi back at the time of the trip agreements was wringing his hands, tearing his hair out saying, why are we putting this stuff into trade agreements because it's not trade.  It's about using the leverage of trade to enforce the extensions of these Monopolies and it's very distressing to hear this equation of IP and trade.  Maybe this explains the widespread belief of this among trade negotiators.

It's great to have a real trade negotiator on this panel.  I'm very happy that Juan is here but I'm really surprised at how ingrained this idea that trade is IP.  Trade is in the very flow of goods.  Very easy to see the example of a term of Copyright or the restriction of trade because it means you can't trade things that you could trade if the term were shorter.  I could sell you a video cassette copy of a Mickey Mouse cartoon if the Copyright was expired.  If it's not expired.  I can't, only Disney can.  That's a trade restriction.  It's not trade.  So therefore the extension, the idea that you get better creativity, more culture, more benefits by extending the Copyrighture more and more is just not true.  Economists just don't buy that anymore.  They look at it more as a rent seeking activity by Copyright holders.

So, it really is kind of a non‑tariff barrier, in the same category as privacy and so on.  And I agree that if we want to get these things out of trade gems and focus on facilitating trade and service agreements then we move need to move as many of these things out of the trade agreement as possible and not use them as leverage.  I think the explanation for trips in the mid-90's is that American pharmaceutical companies wanted to strengthen their protection and they used access to the U.S. market as leverage for getting that extension.  And that's the kind of thing that we don't want to see in trade agreements.  Thank you.

>> CHINMAYI ARUN: Absolutely.  Thank you, Milton.  So basically, we have another five to eight minutes of debate between the panelists before we throw it out to audience questions, so I welcome all the panelists to continue disagrees.

>> BURCU KILIC: So, I also want to comment on that Juan's comment about IP's trade.  IP has trade related aspects, but IP also has aspects which are related to education, which are related to innovation and creativity.  Which are relate to the technology development, which are related to social development.  So it's really, really hard to categorize IP as a trade because it started is IP trades, we are in a really, really serious danger because IP touches many things.  And everyone has a different approach like the creators and innovators and it's not only the right owners.  And there are some discussions, and I heard it even here whether IP is a human right and they focus on Copyright saying that Copyright is a human right because this is the nature of rights.  No, it's not.  It is a social right.

The thing is, if you look at the Human Rights declaration, there is like a protection of the creation, but then again, there is also an excess.  And it should be balanced.  Like, you know, because we want to promote as we look at ‑‑ as it is written in the U.S. institution progress of science and technology.  It shouldn't be that.  IP as trades

>> JUAN ANTONIO DURANTES: Well, I'm surprised that you're surprised.  I think that was something I missed during my previous intervention.  Governments are actually dealing with the internets from many, many perspectives and I think that one of the challenges from every government is how to implement the different views in a very harmonic and holistic way.  Not only trade but Human Rights and all the other elements that internet involves and I think that's part of what I think is important from this dialogue.  So provisions regarding the internet and other provisions in international law, it's some kind of objection from governments when they implement those provisions in their national legislations. 

For example, TPP with regard to provision actually refers to the right countries to implement those provisions in a manner that is harmonic and consistent with our institutional law and that was actually crafted more Mexico because we do have a strong protection on our Constitution for the internet users and that was a very, very important concern that our Civil Society provided or submitted to us and also the regulatory authorities that those provisional internet providers could actually become some of those rights and liberties from the internet users.  So the Mexican government actually negotiated in TPP this kind of provision that will allow to implement in a manner that it's harmonic and consistent.  Both from the trade perspective and considering the rights, the human rights of the users.  And I think that's a good example on how trade provisions can actually be implemented and I hope the Mexican Congress and Mexican authorities will be very, very successful in doing it in a manner that will actually become a model for all other countries to provide these kind of safe harbors for internet service providers in a manner that it does not affect or endanger the internet.

But I do think that in the moment that a good is related to an intellectual property right, in that precise moment, that good becomes and intellectual property becomes trade related.  So, if I sell a car, and that car is also protected by a trademark, that trademark becomes relevant for that trade transaction and I think in that regard, it is very, very normal and legally probable that we would put that into trade agreements.

>> CHINMAYI ARUN: Thank you very much.  I'm going to introduce you to the audience now and then maybe in ten minutes we'll finish up.

>> I'm from San Francisco.  I was actually surprised to hear that you say that IP is a trade issue.  It is a trade issue for only one type of stakeholder, a multinational corporation.  I don't think that somebody sitting down at a desk evenings while working during the day to write that person's first novel is thinking that that person's writing of the novel is governed bylaws that are established in international forums.  And I think one problem with trade negotiators like the U.S. trade representative is that they consider their only stakeholders to be multinational corporations.  And I thought I heard you sort of criticize Civil Society for not getting right how to play the game because they haven't submitted things in the right way. 

But if you don't know what the texts are, how do you know what comments to submit?  I want to talk about trademarks because nobody here has talked about the substance of the trademark provisions in the TPP.  The international trademark association, it sex a multistakeholder agreement of sorts had proposed trademark provisions that were ignored in TPP.  The trademark agreements in TPP are scandalously bad in the strand point of small American companies.  They violate American law in two consistent ways and they are completely inconsistent with American trademark law principles that are balanced.

And when I read that chapter, finally, my conclusion was that the only persons who participated in advising the USTR are either ignorant or malicious because there was no good faith way to agree to those provisions.  Now, that leads to transparency.  If you want good outcomes, you need good advice.  If you want good advice, you need broad advice.  And you can't get broad advice unless people know what to advise about.  And so, I think we have to come around whether the whole agreement should be shot down because of trademarks or not, I don't know, but I think that the lesson is that you're going to have this kind of blowback on trade if you are calling IP trade and you have IP provisions included that look like this and that are negotiating in this fashion ways that make the public feel as though all the international trade negotiators in the world have ganged up on them.  Instead of having their negotiator work for them, they feel that their trade negotiator is working against them.

>> CHINMAYI ARUN: Thank you for that.  So I think I'll take two or three interventions and then maybe we can respond.

>> CARLOS: Hello, my name is Carlos from Mexico.  The name of panelist is, I just want to have one question on how exactly is it good in a net neutrality e‑commerce chapter in point 15, footnote seven, again.  We have that panel about internet fragmentation on the TPPs allowing the ISPs to have interfragmentation through that policy as an exception to net neutrality.  I'd like to know exactly, how is that good for the internet if a conclusion of the panel is that we want to fight internet fragmentation.  But also has been said here that TPP in Mexico has been aligned to a Constitutional law.  Actually, that's absolutely untrue in many cases, and we have denounced that on internet forums, but I would like to know exactly for house compatible the notice on policy with article seven from the Constitution about avoiding prior censorship. 

It's clearly un-Constitutional but if you can explain that to me, I'll be very enlightened, according to Supreme Court ruling.  And lastly, as the gentleman said, I think arguments are a bad thing, should be avoided, however, can we agree that Civil Society needs to understand trade, yes?  But can we agree that trade negotiators need to understand better Human Rights or how Human Rights work because Civil Society understands law and actually wants to fight for the law to be applied.  And of course the nondisclosure agreements or laws are part of those so Civil Society needs to be included, is reliable, and if there is any concern about how laws can be broken in those, that's something that needs to happen first.  Not just launching supposedly a dominant, nonreliable.

>> From Thai governments.  Somebody asked for the trade reps on share of the commerce assets.  Thanks for your inputs.  One issue that I'd like to raise as a concern is two big aspects that we're looking at.  One is a trade agreement that's shaping up a lot of discussions and then there are a lot of chapters or provisions agreements relate to the internet e‑commerce or trades, set of provisions would be up for a country.  That's the first thing I'd like to address.  The second thing is that I hope you're aware of an initiative that's coming out in July that passed through the e‑commerce week itself the same years. 

Surprisingly in September, there is a proposal coming out with terms called electronic world trade platform.  Last month, one of the biggest economy proposed the draft for 11 ministerial discussions that led to electric world trade platform.  There are several topics that never include any e‑commerce chapters at all.  Tax rebate, categorization of the products, fast track process.  All these are new terms that have been.  I'd just like to apes how you see this affections for example RCEP because this is quite a big move from Montauk that has been positioned into the realm.  Thank you.

>> JUAN ANTONIO DURANTES: I guess to the gentleman here in front, I'll just say that I didn't criticize Civil Society for not presenting their views.  I'm just being realistic on the fact that I think governments have not been very, very successful in bringing those views to actually create or develop their positions but I think from talking from a Mexican perspective that when we actually reach out for Civil Society inputs, many times we got from them a reply saying we won't sign the confidentiality letter that the government is requesting and that created sort of no dialogue because there were not trusts from one side or the other.  So I think what I was trying to say is that we need to actually, in the future, become much more successful in bringing the views from the Civil Society, but Civil Society also will need to present their views in a way that it's more let's say, successful, in a way that bearing in mind how trade negotiations work.

Many times, for example, I got from Civil Society views saying, Mexico should actually provide or present a reservation to certain provision of the TPP agreement, and that's not possible in FTA, for example.  It's not possible this a country actually reserves part of one provisions or make some sort of an exclusion.  And that was something that I was explaining to them many times, and ‑‑ well, there are provisions crafted for certain countries.  But I cannot say when I signed, well, Mexico will not apply this or that provision.  That's not actually a way that trade agreements work.  That's possible in a UN convention, for example, in a WIPO convention, but it's not the case in an FTA. 

You accepted or not the full text of the treaties that you can actually exempt yourself after their negotiation was over from one particular provision, so that's just a specific example.  Now, I think that of course, I think that we will need to, or trade negotiators will need to be much more efficient on actually knowledgeable, know, much, much better the issues that they are dealing with in the future and I think that's a reality because things are becoming much more complex and much more multidisciplinary.  They will need to have views from many other stakeholders and traditional stakeholders which are private sector organizations.  Now, I disagree that TPP or any other trade agreement will only represent views of the countries.  In the case, for example, of Mexico, those hundred years were actually negotiated and requested to the Mexican Congress by composers and by authors society.  So you may think that they may have the influence of big companies but they are actually an author's society that represents the rights of the authors.

(inaudible)

>> CHINMAYI ARUN: Sorry, since only six minutes left ‑‑

>> JUAN ANTONIO DURANTES: The only last thing from my fellow colleague from Mexico which I actually know very well because we share sometimes the panels in the past, but one thing that I want to say is that I do think that article seven of the institution provides for certain rights to the users of the internet, but I don't see in any way that internet service providers provisions actually contradicts or reduce or actually harm any of the rights con taped in the article seven of the Constitution.  In any case, I'm not the Supreme Court.  The Supreme Court will have to review these provision if the TPP becomes law positive law in Mexico but in any case, that was the purpose of the agreement that we negotiate in Constitution.  The purpose was that whenever Mexico decide to implement this provision, they will need to hear Civil Society and the regulatory authorities to do it in a manner that does not in any way harm or be inconsistent with article 7 of the Constitution and that may imply that you will need an order from a Court to do that.

So, that's basically the way I would reply.  Sorry.

>> Okay.  I would like to thank the delegate from Thailand to raise this issue about trade for all, besides WTO, we can do things without all this rule making.  Meaning that the objective of the initiative is to bring about the benefits of e‑commerce to developing countries and there's a lot of debate at the moment at the WTO on e‑commerce, at the B20, at the G20, and actually there's a lot of coordination as well, so I would like you to know that we are all coordinated.  We are going to participate in the G20 to bring about this development dimension of e‑commerce, which is important, and that is besides all this discussion.  So, we all got this new platform proposed as basically, and so on and so forth. 

So there are efforts of the international community to coordinate and to bring about the benefits of e‑commerce, whether there's international agreement, regional agreement, et cetera.  And so conclude on the discussion we had, there's a lot of conflicting interest in such negotiation when you go to regional trade agreements.  Of course, but I think in now days with internet, we cannot but do this necessary intersection between policy, trade policy and internet policy like Nick mentioned earlier and others, and of course involve Civil Society. 

You have to come to the table and yeah, that's what you, I think, saying about the advisory process.  We're still functioning, even in Europe, laws are created by lawyers.  They are not technicians.  I can say that.  I'm a lawyer, but, so they are not technicians.  They don't know anything about internet so we do have this connection between the economic side, the civil side as well.  That's necessary.  We can't go back to the old days.

>> So, I have a couple of comments before I leave.  I have to run to the Human Rights section because I'm going to talk about trade and Human Rights if you want to hear more about that because last year we filed a complaint about the TPP and I want to talk more about that.  So comment on your question.  Before it, I have to say I'm a little disappointed to hear talking positively about the TPP because there are lots of problems with the TPP and other organizations came out and all criticize the TPP and e‑commerce chapter of the TPP is very, very problematic. 

We've never seen that chapter of we have never been consulted.  That chapter is not only about the businesses.  It's also about the consumers and the users and the consumer and user perspective lacks in this chapter.  That's the problem with all the agenda out there, because we had that discussion a couple of days ago, they are forcing the WTO to push for e‑commerce, an agreement, something like trips next year in the WTO and that's the same digital trade agenda, but whose agenda is that?  It's the big businesses agenda.  There are beneficial aspects of e‑commerce for developing countries but that agenda that those papers which are submitted, they don't talk about the infrastructure.  Are we all connected?  They don't talk about the competition.  So, and they don't talk about technology transfers.  They talk about cross‑border data transfers.  They talk about ban on local services.  They talk about net neutrality, soft net neutrality and other issues which will work for the big businesses.  Big multinational companies.  It's in their interest.

And I say this all the time.  We can come up with rules for the technology now because we don't know ‑‑ can't come up with rules for the technology now because we don't know the next ten years technology and the thing is the technological development between the developed and developing countries, the gap is huge.  We first need to discuss how to connect people.  How to provide infrastructure to the people of different countries and then we can talk about this digital trade agenda because that's not an interest of developing countries.  That's an interest of big developed countries and their multinational companies.  Thank you.

>> JEREMY MALCOLM: We're almost out of time so I'm just going to briefly address the remarks from the gentleman from the Mexican NGO, I'm sorry, I forget your name.  Is there anything in the TPP that's good for the internet?  And I think there are here and there some things, I think there's some merit in the provision on the local hosting mandates.  I have reservations about it, but most of the provisions in the TPP that could be good are nonbinding, and this is the problem.  For example, there is a provision on net neutrality.  It's completely nonbinding and ineffectual.  Likewise on spam.  Very nebulous and has no practical impact and finally in the Copyright section we wanted to find a provision that would require countries to adopt a fair use section in their law and the TPP doesn't do that. 

It leaves it completely nonbinding so I think the potential to address things that were good for the internet existed in the TPP but it was a lost opportunity because 90 percent of those issues were addressed in a way that was nonbinding.  Thank you.

>> MILTON MUELLER: I think Burcu's perspective in particular is overly negative about the e‑commerce positions that they are about competition, they are about opening these markets to new providers and things like data localization, which the agreement tries to stop is, data localization extremely protectionist provision.  It's about forcing you to operate in a particular jurisdiction before you can serve consumers and that also has sometimes some bad privacy aspects because if you're talking about the Russian government, they want your data in their jurisdiction because they want to be able to access that data very easily.  So I think again the anti-TPP people are in danger of sliding over the line of being against all trade and not making is clear actually how we are going to create these open and competitive markets which do serve the interest of consumers more than anything else.  So, I think we need to move forward from TPP with a learning from the mistakes, the excesses, and the intellectual property realm, and hopefully we can come out going forward with something more acceptable.

>> CHINMAYI ARUN: Okay.  I want to thank all the panelists and all of you for your time.  It's been a fascinating discussion, from my point of view, so really, big applause for everyone here.

(Session was concluded at 10:34 a.m. CST)