JEFTA: Another Secret Trade Agreement Comes to Light

Reports are surfacing that there is another trade agreement that is currently being negotiated: JEFTA (EU-Japan Deep and Comprehensive Free Trade Agreement). The trade agreement is between Europe and Japan.

We noted yesterday that CETA (Comprehensive Economic Trade Agreement) went from being the junior trade agreement around the block to the only one surviving after the Trump administration took over. Now, word is surfacing that CETA may not be all that alone after all. Left Foot Forward mentioned the existence of this agreement earlier, so we did some looking into it.

It turns out, this agreement there is, in fact, a trade agreement being negotiated between Europe and Japan. The European Union website has an official website about it. Apart from the emphasis that this trade agreement really is on trade, there isn’t a whole lot on the website that really indicates what it’s all about besides a 314 page impact assessment.

We already know that other trade agreements like TPP, TTIP, and TiSA is less about breaking down trade deals and tariffs and more about lawmaking on a grand scale. The question is, does JEFTA do the same thing? If so, does this have an impact on digital rights?

It would appear that the answer to both of those questions is “yes”. Unfortunately, the impact statement doesn’t really go into any details outside of a few vague references. From the assessment:

– One additional issue is public performance right in sound recordings, which is not implemented in Japanese law.
– Despite sector specific impacts (agriculture, audiovisuals and broadcasting), the sector-wide economic implications are less than with other countries on intellectual property (IP). It is assumed that the agreement will have moderate and asymmetrical impact.

What is clear is that the International Federation for the Phonographic Industry Association (IFPI) already has a hand in this trade agreement. From the assessment:

The International Federation of the Phonographic Industry (IFPI) supported the question of ICMP and enquired after the composition of Annex 3 asking, in particular why the audio-visual services sector is absent. IFPI also enquired further explanation of the sector selection criteria. IFPI questioned how the team would review the economic impact of the FTA as well as the potential of the FTA to strengthen intellectual property.

Apart from the footwear industry and in particular the EU manufacturers of leader shoes, responses from the music industry flag the absence of legal protection in Japan. In particular, stakeholders flag the absence of legal protection for the use of sound recordings for the purpose of public performance (in the sense of Art.15(1) of the WIPO Phonograms and Performances Treaty) represents a regulatory obstacle to doing business because it prevents commercial licensing of sound recordings to numerous entities which use those recordings in the course of their business (e.g. perform music in public venues such as shopping malls, night clubs, hotels, restaurants, etc.) This gap in the scope of copyright protection represents lost revenues to two categories of music right holders (producers and performing artists).

The overall secrecy of this trade agreement has already raised alarm bells for human rights and other activist organizations. A joint letter was published demanding more transparency for the trade agreement:

We, the undersigned civil society organisations from Japan and Europe, hereby express our deep concern about the EU-Japan Deep and Comprehensive Free Trade Agreement (JEFTA).

In the EU and Japan, the lack of public scrutiny and accountability of trade deals is fuelling public distrust.

Yet since March 2013, the European Union and the Japanese government have been negotiating a deep and comprehensive trade agreement which would cover a third of the world’s GDP. The 18th round of negotiations took place in Tokyo in December 2016, and whilst the negotiations might come to a close soon, on the EU side, the mandate given to the negotiators is still not public, and on the Japanese side, secrecy is total.

Little is known, despite the many legitimate concerns raised by civil society organisations and trade unions. Based on the very shallow information included in the EU summary of the negotiations, the deal could lead to the privatisation of public services; grant foreign investors special privileges to sue states in a parallel justice system; hurt small-scale farmers; negatively impact fundamental rights, such as the right to privacy and data protection; limit the EU’s and Japan’s ability to roll back excessive intellectual property rights; and put additional burdens on regulators, strengthening the role of corporate lobbyists in the policy-making process.

Neither most parliamentarians in EU member states and in Japan, nor European and Japanese civil society organisations and trade unions know the content of the discussions. Nor have they seen draft chapters or been consulted. We condemn this opacity.

It’s hard to say if negotiators are willing to budge on negotiating laws in secret like this. In the past, negotiators were extremely reluctant to really give any details of the text of various trade agreements. This led to a reliance on leaked chapters and distrust on the whole negotiating process. As we are seeing with CETA, laws are negotiated in secret, packaged together, then require wholehearted acceptance with as little public scrutiny as possible.

The pitfall here is that we know substantially less about JEFTA as of right now. So the concern right now for many will be, “why the secrecy?” and “what is in the agreement that requires such secrecy in the first place?” For now, it appears we’ll b playing the guessing game once again with this secret trade agreement.

Drew Wilson on Twitter: @icecube85 and Google+.



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