Internet Governance

Reflections on the Transatlantic Trade and Investment Partnership (TTIP)

Why should the Internet community be interested in the Transatlantic Trade and Investment Partnership (TTIP)? How will it affect the Internet? These are questions that – for the time being – do not merit quick answers; it is rather premature to make any predictions.

We can, however, start preliminary discussions on how the TTIP could be structured and identify the principles that we think it should abide by. Indeed, we can rely on past experience and the governance structures that have been in place to deal with the Internet-related trade and public policy issues.

We already know two things about the TTIP: the first one is that, at least as of this stage, the TTIP will not cover criminal types of enforcement. You will recall, of course, that it was mainly the provisions on criminal sanctions that prompted the EU Parliament to overwhelmingly reject ACTA last year. Under the draft TTIP mandate criminal sanctions will not be in the TTIP’s agenda.

A second thing we know is that the TTIP will be a trade agreement, which will seek to cover a wide range of issues, including some issues related to the Internet. In a draft Resolution voted by the European Parliament in May, it was stated that, intellectual property will be part of the TTIP negotiations since “[…] intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy, […] the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPRs), including geographical indications, and should be consistent with existing international agreements.[1]

As it currently stands, therefore, the TTIP will address issues of copyright. I am not surprised by this. Including intellectual property discussion in trade agreements is neither new nor unprecedented. What is new is how such intellectual property discussions can affect the Internet. So, instead of debating on whether intellectual property provisions should be included in the TTIP, let’s focus on this: how to ensure that intellectual property discussions in the TTIP do not impose unnecessary burdens on copyright law, the Internet or its users.

The intellectual property chapter in the TTIP could provide a valuable perspective if approached in a way that seeks to strike a balance between the competing interests of all actors, includes limitations and exceptions that can allow the free flow of information and preserves the current role of intermediaries. I think we could all agree, judging also from past legislative attempts, that copyright provisions are more practical when they are proportional and respect fundamental rights, including the right to speak freely and to create, encourage and disseminate information and content in the Internet. The same rationale of proportionality should be preserved in the context of data protection and privacy.

One of the ways the negotiating nations could approach the intellectual property chapter – especially when deliberating on issues of proportionality, balance and scope – would be to do so under the approach that has guided Internet open standards to date. The benefit of this approach is not only its fresh outlook on this highly contested issue; it is the idea that the Internet has evolved technically in accordance with a set of specific principles, not too distant from the ones copyright is built on, that could help shape and put the discussions into a more concrete perspective. These principles are embodied in the practices of the organizations that have developed the Internet-related technologies – the Internet Engineering Task Force (IETF), the World Wide Consortium (W3C), the IEEE. This open standards approach has allowed the organic evolution of the Internet and its transformation into an economic and social tool.

Specifically, I am referring to the “Open Stand” modern paradigm for open standards, which includes the principles of a) cooperation; b) adherence to due process, broad consensus, transparency, balance and openness principles; c) collective empowerment; d) availability; and, e) voluntary adoption.

Finally the TTIP negotiations should be conducted in a transparent way. Transparency is an evolving concept – but fundamentally it refers to the ability of people to be part of an environment based on information commons. The Internet has reaffirmed multiple times the need for transparency – the need for information to be shared and for the right of people to be in the position to demand such information, especially when it relates to issues affecting the Internet. One of the interesting observations from the ACTA experience in particular was how protective users feel for the Internet. It was, further, the lack of information that prompted actors to criticize both ACTA as well as the currently negotiated Trans-Pacific Partnership Agreement (TTP).

As leading information economies, the United States and the Member States of the European Union have an obligation to continue to uphold and preserve the fundamental values such as transparency and the rule of law. The TTIP is also an opportunity for the US and EU Member States to put their Internet governance approach into action. This approach has been based on the need to encourage a multistakeholder and inclusive approach, which is based on the exchange of knowledge and information between all interested parties. The TTIP is an excellent chance to showcase this model in action

The TTIP can set a very good example for international policy making. It can provide the framework that will enable trade agreements to become more effective and practicable within the Internet economy and governance structures. But, the negotiators need to learn from past negotiations as well as from the modern policy environment – bring stakeholders in early to the process, implement a transparent approach, and, importantly, be mindful of the broad consequences of the provisions on the ability for ongoing innovation and growth.