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US Push On Intellectual Property In TPP Violates International Norms

WikiLeaks has once again provided key insight into the secret workings of governments. In a Nov. 13 release, the anti-secrecy organization published the draft text  of the intellectual property chapter of the Trans-Pacific Partnership Agreement (TPP).

One of the most controversial pieces of international law in recent years, the TPP is President Barack Obama’s signature Asia-Pacific economic project aimed at protecting American interests in the region. The current negotiations include twelve countries: the U.S., Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei. Over time, the U.S. hopes to expand TPP’s reach to incorporate all members of the Asia-Pacific Economic Cooperation forum — comprising roughly 40 percent of the world’s population, 55 percent of global GDP, and some of the world’s fastest growing economies. It is possible that South Korea, Thailand and even China might join the TPP in the future.

Since Wikileaks made the intellectual property (IP) chapter public, multiple organizations have provided extensive and detailed critiques. According to these analyses, the text demonstrates U.S. preference for increasing protections on existing copyrights and patents over balanced policies that promote global innovation, creativity and political freedom. The disclosures especially suggest the inordinate influence of the motion picture and pharmaceutical industries. In the first brief interview commenting on the leak, the U.S. Trade Representative Michael Froman defended the proposal saying it is within the bounds of U.S. law. He happened to make this comment while touring Paramount Pictures studios in Los Angeles.

Further analysis of the IP chapter shows that it violates international consensus on several important issues. First, the U.S. is pushing provisions that conflict with the World Intellectual Property Organization’s Development Agenda, which requires that development concerns be a formal part of global IP policy. Second, the chapter also takes a controversial approach to the World Trade Organization’s (WTO) Doha Declaration on the Trade Related Aspects of Intellectual Property Rights (TRIPS) and Public Health. TRIPS sets the standards for intellectual property protection in the world today, which are binding on all members of WTO. The Doha Declaration affirms that TRIPS signatories should interpret and implement TRIPS in a manner supportive of their own rights to protect public health and, in particular, to promote access to medicines for all. Although the IP chapter makes explicit reference to the Doha Declaration, the IP chapter is designed to narrow its scope, thereby limiting access to medicines and restricting what governments can do to protect public health.

Third, U.S. proposals also contradict the current policy discussions on access to medicines and on research & development at the World Health Organization and the UN Convention on Biological Diversity. Fourth, the TPP chapter also jeopardizes the flexibilities guaranteed under fair use doctrine by pushing for strict enforcement of copyrights online.

The significance of the leak

The secretly negotiated trade deal symbolizes the consolidation of a “forum shifting” — a strategy designed to establish an international norm while evading multilateral and more transparent international agreements on intellectual property and internet policy negotiations, and the rights they grant to the public sector.

In addition to reinforcing the secret environment normally preferred by private interests, the closed-door negotiation of TPP disregards broader international efforts, takes advantage of power imbalances against the developing world and limits citizens’ freedoms as internet users, patients and consumers. The current effort to rebrand the talks as “trade” and make the deals non-transparent also counters progress made through decades of cooperation between civil society organizations and governments to create room for public engagement on IP policy.

The leak also offers a remarkable view not just into the text, but into the diplomatic process as a whole. Earlierleaked versions of the text did not include other country positions, while this version reveals, through bracketed text in the document, who opposes or supports a piece of language, a phrase or an idea. In the current disclosures, Canada, Chile and New Zealand pushed back strongly against U.S. demands on IP, patents and copyright, while the U.S dominated the list of proposals pushed by a single country. This is further evidence that the strong campaigns from civil society, both through engagements at TPP negotiating rounds and through protests, has had some impact even while being aggressively excluded.

Copyrights and patents

The TPP chapter on IP reveals that the U.S. entertainment industry does not miss an opportunity to push its interests to the highest levels of government. In early 2012, the industry unsuccessfully sought to establish draconian rules against copyright infringement. The U.S. House bill, known as the Stop Online Piracy Act (SOPA), caused massive popular uproar and online protests by Google, Wikipedia and other websites, before it was shelved in committee.

While the TPP text does not include some of the extreme provisions in SOPA, it nevertheless seeks aggressive IP protection and copyright enforcement standards. For instance, the U.S. government pushed for:

  • an extension of copyright terms beyond the international norm of life plus 50 years to life plus 70 years. In the case of published works whose copyrights are owned by corporations, the term of protection would go from the current 50 years to 95 years from first publication. If U.S. proposals are accepted, copyrighted works such as this article will not enter the public domain until well into the 22nd century.
  • reduced flexibilities for TPP countries to tailor their domestic rules on copyright fair use, fair dealing, and  exceptions and limitations on the exclusive rights copyright owners have to reproduce their work for a determined time period.
  • technological protection mechanisms (TPMs) to enforce pre-defined limitations on the use and transfer of copyrighted digital content, which can prevent access and fair use,  and penalties against circumventing these TPMs.
  • increased liability for internet service providers for illegal or infringing content or behavior by third parties.
  • expanded copyright protection for digital temporary copies that are automatically copied by computers (into RAM, onto a video hardware buffer, etc.) during the course of routine operations.

These provisions, if established, would have a chilling effect for freedom of expression and consumer rights. They would dictate how people in TPP-signatory countries access, use, disseminate and share knowledge. Such restrictions would also create incentives for internet service providers to become internet police and crack down on users in ways that could greatly damage individual privacy and political freedom. Fortunately, Canada, New Zealand and Chile are fighting back with their own, more balanced proposals.

The TPP text on patents and medical test data has also been roundly criticized for limiting the availability of cheaper generic versions of medicines. Strikingly, U.S. demands would strengthen, lengthen, and broaden patent protections and restrict access to crucial medicines for treating cancer, heart disease and HIV/AIDS. In addition to expanding the scope of existing pharmaceutical patents, the proposals would also create new pharmaceutical monopolies by lowering TPP countries’ patentability standards and requiring patents be available for surgical and treatment methods as well as minor variations of old medicines. Not surprisingly, as the Wikileaks draft reveals, these U.S. proposals have received near-unanimous opposition by TPP-participatory countries. A counterproposal from Canada, Chile, Malaysia, New Zealand and Singapore preserves the TRIPS flexibilities for public health and access to medicines, which are affirmed by the Doha Declaration and leaves appropriate policy space to the discretion of individual countries.

US backlash

After years of secrecy and civil society frustration, the WikiLeaks release has sparked a reassessment in American public opinion against TPP. In a parallel development, several U.S. legislators announced their intentions to take trade policy back into Congress’ hands. A bipartisan group of lawmakers — 151 U.S. House Democrats and 23 Republicans — wrote in separate letters to President Obama vowing not to give the White House a free rein to “diplomatically legislate.”

Even if the TPP agreement, with its many secret chapters, is signed on schedule in December 2013, the U.S. Congress will have the last word. Due to Wikileaks’ release of the IP chapter, at least one piece of the TPP proposal is now in the realm of open politics, instead of under seal.

Carolina Rossini is project director for the Latin America Resource Center at the Internet Governance and Human Rights program at the New America Foundation’s Open Technology Institute.

Burcu Kilic is legal counsel for Public Citizen’s Global Access to Medicines Program

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