By co-authoring a Nov. 14 intellectual property law scholars letter to President Obama and Congress, as well as a front page Dec. 6 column in the Los Angeles and San Francisco editions of the Daily Journal, California’s largest legal newspaper, Elon Law Professor David S. Levine continued to detail implications of secrecy in international law making.
The Trans-Pacific Partnership Agreement (TPP) is a free trade agreement currently being negotiated by numerous countries including the United States.
With Sean Flynn, associate director of the American University Washington College of Law’s Program on Information Justice and Intellectual Property, Levine co-authored a November 14 letter to President Obama, Congress and U.S. Trade Representative Michael Froman calling on them “to support immediately changing the secretive TPP negotiation process in law and in practice.” The letter was signed by more than 80 U.S. intellectual property law professors and reported on by numerous national news publications.
On Dec. 6, a column authored by Flynn and Levine was published in the Los Angeles Daily Journal and San Francisco Daily Journal.
“The TPP is being negotiated under what is perhaps the most secretive and selective process ever used for such a broad ranging agreement,” Flynn and Levine write in the column. “On the one side, the administration has classified all of its proposals and other TPP negotiating texts as national security secrets — insulated from disclosure under the Freedom of Information Act under the same rubric applicable to nuclear weapons secrets and terrorist investigations. And it signed an agreement pledging that no legislative history of the TPP would be released until four years after its conclusion. On the other side, 16 corporate advisors on a secretive intellectual property Industry Trade Advisory Committee are given privileged access to negotiating texts and hold private meetings with administration negotiators on an ongoing basis.”
Referencing a document made available by WikiLeaks that may be the content of a current draft of the TPP, Flynn and Levine reference “unbalanced” U.S. proposals for the agreement, including “the ability of drug companies to extend patent protection with endless new claims for new uses of existing medicines, even if it ‘did not result in enhanced efficacy of the known product.’” They also raise concerns about the extension of copyright terms and the power of the law to diminish copyright fair uses.
Flynn and Levine call for the current text and future proposals of the TPP to be made public on an ongoing basis, and for Congress and the Obama administration to “revisit exemptions from open government laws such as the Freedom of Information Act and the Federal Advisory Committee Act being used to keep the trade negotiation process shrouded in secrecy.”
Active in policy analysis, Levine has made presentations to the negotiators at several negotiating rounds for the TPP, testified before the Library of Congress and co-authored influential law professors’ letters regarding the TPP, Stop Online Piracy Act (SOPA) and the Anti-Counterfeiting Trade Agreement (ACTA), and is a member of the North Carolina Mining and Energy Commission’s Protection of Trade Secret and Proprietary Information Study Group that is tasked with writing the state’s hydraulic fracturing regulations..