Fixing International IP Capture? Some Problems with the Public Interest Trade Advisory Committee (PITAC)

U.S. Free Trade Agreements contain skewed intellectual property law because the Office of the U.S. Trade Representative (USTR) has been captured through asymmetric information flow.  I’ve written about this information flow problem at the USTR and its substantive consequences. The USTR’s lack of voluntary transparency, combined with its use of FOIA exemptions, exclusion from the APA, and exception from Federal Advisory Committee Act (FACA) requirements, has led to an advisory system that privileges access by and input from a subset of domestic IP policy actors.  This affects the IP law we export.

Since my paper was released, the Washington Post covered the USTR’s capture and published a helpful infographic showing the membership makeup of all trade advisory committees.  The New York Times published an oped criticizing the USTR advisory system.

USTR Michael Froman responded by announcing the formation of a new Public Interest Trade Advisory Committee (PITAC).  The PITAC, Froman announced, will include NGOs, academics, and other public interest groups.  It will “provide a cross-cutting platform for input in the negotiations.”  The call for nominations suggests that the membership will be more limited than Froman’s remarks indicated, requiring that applicants represent a U.S. organization with “a demonstrated interest in international trade.”  This will likely exclude most academics, and may exclude some NGOs.

Nonetheless, the PITAC is a step in the right direction.  The USTR has finally formally recognized that there’s a problem—the trade negotiating process suffers from both information capture and a legitimacy crisis.  The USTR has taken a public step towards addressing these problems.  Unlike previous efforts by the USTR, which amounted not to transparency but to transparency theater, the PITAC will give more public interest representatives access to negotiating texts, and that is unquestionably a good thing.

But you don’t solve information capture just by increasing access to the text.  Information capture occurs because of a combination of what information comes out, what information goes in, the kinds of access granted to negotiators, and the ability to make negotiators listen.  The structure of the USTR advisory committee system means that the PITAC is a weak fix, not a strong one.  As Sean Flynn points out, the USTR made the decision to isolate public interest groups on the PITAC rather than integrate them into chapter-level industry trade advisory committees.  This decision limits the PITAC’s efficacy, and means the PITAC is more an aesthetic than a substantive fix.

First, there’s the issue of overall numbers.  The Washington Post infographic shows that industry voices currently make up 85% of the membership of trade advisory committees.  Adding one public interest committee, which will likely have no more than 35 members, is only a small step towards achieving balanced input overall.

Second, the PITAC won’t meet as frequently with USTR negotiators as industry advisory committees do.  This is because it is a different category of committee—a mid-level, or “tier two,” advisory committee.  Industry Trade Advisory Committees meet with USTR negotiators an estimated six times a year (see How Frequent and Relevant are the meetings?).  By contrast, the mid-level committee on Trade and the Environment meets “as needed at the call of the U.S. Trade Representative.”  According to the AFL-CIO President Richard Trumka, the mid-level Labor Advisory Committee meets one-third as often as the industry advisory committees, just twice a year.

The third problem with isolating public interest groups on the PITAC is that they will not be able to perform the important role of conducting oversight over advice from industry advisers.  Most advice from industry advisory committees is informal oral advice given to negotiators.  PITAC members will not be privy to this oral advice, and so their role will be to react rather than converse.  PITAC members won’t know what industry groups ask for and counter that advice; they’ll only be able to search for changes in the text.

The fourth problem with the PITAC is that it encompasses too many topics.  This will dilute its members’ voices, and prevent them from developing relationships with chapter negotiators the way industry advisory committee members do.  The IP industry advisory committee focuses on the IP chapter, and presumably meets with the IP chapter negotiator.  The PITAC is not focused on a particular chapter or topic.  It will be a “cross-cutting” platform, in Froman’s words.  It thus won’t meet regularly with specific chapter negotiators.  And the message of individual public interest representatives on the PITAC won’t be as loud as the message of an entire (imbalanced) industry advisory committee.

The USTR already has a mid-level advisory committee on Trade and the Environment, where all members weigh in specifically about environmental concerns.  Instead of lumping together all remaining public interest concerns onto one catch-all committee, the USTR might consider creating narrower and consequently more effective public interest committees dedicated to particular issues, like digital civil liberties or public health.

Fifth, and this is a much bigger issue, the PITAC may face serious hurdles in getting the USTR to listen to its advice.  How effective can public interest groups be without transparency, without the ability to mobilize their constituents on the details of the text?  It may not just be a question of who is at the table, but how well the players at the table are able to make their voices heard.  Truly listening to the public interest may take a different system of governance.

I maintain what I concluded in my paper: Congress has a role to play here.  Congress could empower PITAC members by including public interest negotiating objectives and making those objectives enforceable—if the USTR does not listen to public interest groups and comply with negotiating objectives, it could get kicked out of a re-enacted Fast Track.

The bigger problem, as I’ve noted, is that the usual Congressional scheme governing information flow doesn’t currently apply to the USTR.  That is the source of these problems, and that is what needs to be addressed.  Congress can and should weigh in about the lack of transparency at the USTR.  Not all texts need to get released, but the current level of secrecy is untenable.  It leads to a lack of trust in the system and to bad policymaking on the ground.  And Congress could address the information capture problem head-on, by asking for balanced membership of advisory committees overall (okay), or balanced membership at the level of each individual industry advisory committee (preferable).

Many of these fixes could be done by the executive branch: the USTR could start voluntarily releasing texts, adding members to balance the viewpoints on individual industry advisory committees, and creating new mid-level advisory committees dedicated to empowering public interest voices in more specific subject matter areas.  But the USTR hasn’t done these things. The PITAC is palliative, and a positive step, but it’s not a harbinger of systemic change.

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