MFIA Clinic Files Lawsuit to Compel Disclosure of Documents Related to International Intellectual Property Trade Negotiations
Intellectual Property Watch (IP-Watch), represented by Yale Law School’s Media Freedom and Information Access Clinic (MFIA), has filed a federal lawsuit against the U.S. Trade Representative (USTR) seeking to compel meaningful disclosure regarding the secret negotiations over the intellectual property rules in the Trans-Pacific Partnership Agreement (TPP). IP-Watch is a non-profit independent news service that reports on the interests and behind-the-scenes dynamics that influence the design and implementation of international intellectual property policies.
The TPP is a proposed trade agreement being negotiated between 12 countries, encompassing over 40 percent of the world’s economy. The USTR, which represents the United States in trade talks, has conducted the negotiations in unprecedented secrecy, according to the lawsuit. Only a select group of industry representatives serving on official USTR advisory committees have had access to the substance of the negotiations, prompting some concern that the USTR’s negotiating positions have been heavily influenced by particular industries, to the exclusion of other stakeholders and independent experts concerned about the TPP’s effects on the general public.
Joshua Weinger ’14, a member of the MFIA clinic, said that passage of the TPP could have broad consequences, but that the USTR has shut the public almost entirely out of the negotiations. “The intellectual property provisions of the TPP could have a profound effect on the rights of anyone who buys, sells, or uses patented technology, and anyone who enjoys music, books, movies, software, or other copyrighted material,” Weinger said. “In other words, this agreement will affect everyone. But the U.S. government has received input only from a select set of interest groups that does not represent the general public.”
More than 18 months ago, IP-Watch filed a Freedom of Information Request (FOIA) request with the USTR seeking basic transparency regarding the TPP negotiations, including documents concerning the U.S. negotiating position and draft text of provisions affecting intellectual property rights. In addition, IP-Watch sought records about the communications between the USTR and the industry representatives who serve on the USTR’s Industry Trade Advisory Committees. The USTR refused to disclose almost all of the requested records, and has provided little justification for its lack of transparency, according to the lawsuit. IP-Watch filed an appeal with an internal USTR panel in August 2013, but has received no response, in violation of the 20-day deadline imposed by law. IP-Watch filed this lawsuit in order to ask the court to order the USTR to comply with its disclosure obligations under FOIA.
Brianna van Kan ’15, a member of the MFIA team representing IP-Watch explained that under FOIA, agencies must disclose documents they control, and can only redact information that falls within certain narrow exemptions. “The purpose of the lawsuit is to ask an independent judge to order the USTR to disclose the information IP-Watch seeks, and for that judge also to determine whether the USTR is justified in withholding so much information from the public,” van Kan said. “The information that IP-Watch seeks is crucial to inform the public about the legal rules that the government is advocating for in trade talks, and extent to which the USTR’s positions have been influenced by particular industry groups with special access.”
Ryan McCartney ’14, a member of the MFIA clinic, said the clinic is pleased to assist IP-Watch in this effort, noting how important it is for the public to have access to this information. “The public relies on the expertise of journalists like those at IP-Watch to decode and understand complex issues.” “The information we are seeking to obtain would allow IP-Watch and others to inform the public about the substance of a crucial intellectual property agreement, and the manner in which that agreement has been negotiated,” McCartney added.
William New, the Editor-in-Chief of IP-Watch is also a plaintiff in the lawsuit. Student members of the MFIA clinic are supervised by David Schulz ’78 and Jonathan Manes ’08. The MFIA Clinic’s mission is to support robust investigative journalism and to promote the public’s right of access of information in defense of democracy. The MFIA clinic is part of the Floyd Abrams Institute for Freedom of Expression at Yale Law School.