In 2011, Australia concluded the Anti-Counterfeiting Trade Agreement (ACTA). The agreement, which had been negotiated with the usual secrecy surrounding a trade agreement, was promptly slammed by academics, civil society, industry groups and the parliamentary committee charged with reviewing the agreement.  To date only one country, Japan, has gone on to ratify the agreement. It’s a stark example of what happens when a small number of people make agreements away from public scrutiny and input.

Public debate is something to be celebrated and encouraged. It allows us to participate meaningfully in the legislative process so that the law actually reflects the will of the people. As the High Court has held, it is essential for a functioning democracy. Besides, it makes for better policy. It enables experts and civil society to examine what is being proposed and point out unintended consequences, or things that might be unworkable.  

But public debate is only possible if government is transparent. It is impossible to have a robust and informed discussion about changes to our law if we don’t even know what those changes will be.

Recent experiences in the international trade arena suggest this pillar of democracy is being eroded. When domestic legislation is changed by way of international agreement, the traditional democratic process is bypassed, and with it many of the safeguards we take for granted.

The Trans-Pacific Partnership (TPP), a trade deal being negotiated between the US and 11 other Pacific Rim countries including Australia, has been shrouded in secrecy from the beginning.

So far, the TPP negotiating countries have released not a single negotiating text to the public. Instead, we have had to rely on unauthorised leaks to get some idea about what the TPP’s intellectual property chapter could mean for everyday Australians.

The TPP is an international trade deal, but it is likely to have serious ramifications for domestic copyright law and policy.  The deal looks likely to criminalise minor copyright infringement and extend the term of copyright for sound recordings and films, impacting on the rights of copyright creators, consumers and innovators.

These are significant matters, and they are currently being negotiated behind closed doors. When the public can finally see the agreement, it will be when we are enacting the provisions into domestic law. By then, it will be too late to argue for any substantive change. We will be bound by what our representatives signed up for in the final TPP negotiations.

Recent experience in the Korean Free Trade Agreement (KAFTA) should increase our wariness. After signing that deal we suddenly had a proposal (eventually quietly dropped) to overturn a high-court case, on the back of an admission that the intellectual property chapter, except for 'a few outstanding issues', was negotiated 'a few years ago'.  

The EU Commission has recently announced it will take steps to make its negotiations in another trade deal, the Trans-Atlantic Trade and Investment Partnership (TTIP), more transparent. It has already released a bundle of texts to the public.

There is no good reason why Australia should not follow the EU’s lead.  With the TPP negotiations continuing into 2015, it is not too late for the Australian government to join with the other TPP nations and release the remainder of the TPP negotiating texts.  

Transparency isn’t a guarantee that we will like what we see, or even that we will be able to change the things we view as unfair. Intellectual property standards have always involved a difficult balancing act between different interests, and when they form part of a bargain over the 29 chapters of an international trade agreement, it is unrealistic to expect ideal provisions. But transparency and the resulting public debate are some of our strongest democratic safeguards. They should be taken seriously.

This Copyright Week, join the Australian Digital Alliance in the call for greater transparency in copyright policy. Link to this blog, write to your local parliamentary representative or tweet with #releasethetext. 

*This post has been written by Suzy Wood for Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation