On 13th November, Wikileaks released a leaked copy of the consolidated IP negotiating chapter for the Trans-Pacific Partnership Agreement (TPP). [A big thanks to whoever leaked it to Wikileaks!]. This post will look into the contents of that leaked chapter and describe exactly how messed up it is – but first a tangential observation. In a couple of earlier posts (here and here) we had discussed certain (earlier) leaked provisions of the draft chapter US had put forth in the negotiations. Prior to that, we had covered the rise (2008) and fall (2012) of the ACTA. I’ve been very pleased to note that the amount of discussion and debate (and outrage) that has been occurring over this type of clandestine treaty making has steadily been rising. At the time of writing this, it’s been less than 48 hours since this latest leak. Yet I’ve been pleasantly surprised to find several websites discussing this leak and what it could mean. [Long post ahead]
Some of the sites which have covered it include KEI (1) & (2), EFF, Public Citizen, Washington Post, the Guardian and even crowdsourced reddit! There’s also a quick video segment here for those who don’t have time/patience to read through but want a brief idea. Hopefully this growing demand for accountability is the beginning of the end for the blatant policy laundering that has been occurring due to the single-stakeholder (i.e., industry) based treaty / policy making. On this note, it is also relevant to mention that about 170 House members (US), have signed onto a letter which signals their intent to remove this treaty from the fast-track approval process. If they carry through on this threat, it would be the first time in decades that a trade pact would not be going through this fast-track approval process.
The 95 page leaked chapter is dated August 30th, 2013 and is the document that was distributed to the Chief Negotiators after the 19th round of negotiations at Brunei earlier this year. It throws up several problematic issues, confirming many of the fears regarding what had been going on in these negotiations which were happening behind doors which opened for corporate interests but not for democratic representatives. I’ll quickly go over what seem to be the most noteworthy aspects of the document.
First off, it is clear that US has no qualms about being an “IP-terrorist”, so to speak. [FBI’s definition of terrorist: Acts dangerous to human life, that appear to influence the policy of a government by coercion and transcends national boundaries in terms of the means by which they are accomplished]. Provision after provision, the bracketed text (which show the negotiation stances of each country) show that the US stands alone in its blatant disregard for public interest. In KEI’s words, “The text reveals that the most anti-consumer and anti-freedom country in the negotiations is the United States”. Having said that, while the US is clearly the extremist in the room, other nations too, especially Japan and Australia seem like they have been swayed by corporate interests in varying degrees as well. On the positive side, it seems that some countries, led by Canada, are trying to push back on many of the harsher provisions. [Disclaimer: This is just my first impression on skimming through the 95 page document]. Though this treaty is being negotiated by 12 countries [United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei Darussalam], the provisions of this agreement, if it comes into force, will have a rippling effect as it will set the norms for future trade / IP agreements / dealings between any of these 12 countries and any other country in the world.
In the world of international IP (and trade) agreements, the TRIPS (WTO) Agreement has the most teeth due to its robust enforcement mechanism. It’s quite shameful that its come a time where the WTO draft making process now looks relatively fair but it is true that the WTO Agreements came with a reasonable amount of safeguards for public interest. Some countries, led by US, seek to to ensure that as few as possible of these public interest safeguards remain in the TPP draft.
Enforcement: The TPP seems to allow investor-state dispute resolution mechanisms. This would mean that corporates can directly proceed against states. Corporates would also retain the ability to lobby their own state to take action against the host state. And of course they could lobby their state to take action against the host state under the WTO as well. Seeing how Big Pharma and Hollywood don’t hesitate to lobby their government to randomly create new international trade agreements for their benefit, lobbying states to take action on their behalf should be simple enough. It effectively gives investors/corporates three methods of taking on states that may value public interest over corporate interest. And of course, non-compliant states would automatically fall in US’ Special 301 Watchlist.
Access to Medicines: Here, the US is relatively alone in its strong push for more exclusion rights and less access. US/JP have proposed (and all other countries have opposed) a provision directly opposing what our own Section 3(d) does – a provision that would prohibit the denial of patents which are granted “solely on the basis that the product did not result in enhanced efficacy of the known product.” In other words, a provision allowing evergreening. US has also proposed (to the opposition of all other countries) a provision which would mandate the allowance of patents on all plant and animal life. Similarly, they have called for the allowance of patents on surgical methods – which the TRIPS Agreement specifically says can be excluded from patent regimes. KEI also points out more nuanced implications of the text:
“…the unbracketed wording of Article QQ.A.5, which is designed to narrow the application of a 2001 WTO Doha Agreement TRIPS and Public Health, and its obligations to provide for “access to medicine for all.” By changing the language, the TPP makes it seem as if the provision is primarily about “HIV/AIDS, tuberculosis, malaria, [US oppose: chagas] and other epidemics as well as circumstances of extreme urgency or national emergency,” instead of all medicines and all diseases, including cancer.”
Other problematic proposals include patent term extensions (referred to as patent term “adjustments”), and introduction of exclusion rights over clinical information for market approval. US/JP are also opposing a provision which would allow member states to adopt appropriate measures to prevent “(a) the abuse of intellectual property rights by right holders or the resort to practices that unreasonably restrain trade or adversely affect the international transfer of technology; and (b) anticompetitive practices that may result from the abuse of intellectual property rights;, provided that such measures are consistent with this Agreement.” Similarly, there is a proposed provision which is still on the table – this provision is to say that the TPP wouldn’t limit countries usage of Article 31 of TRIPS (Compulsory licenses) – and this provision is still on the table. If this provision is not accepted, I’m not sure it would mean for the compulsory license regime under TRIPS.
Copyright Terms: Mexico has proposed an incredible 100 years plus life of author copyright term. A few other countries, including US have proposed 70 years plus life of author. They’ve also proposed 95 years for corporate works and 120 years for unpublished works. I’m yet to see a half decent argument as to why copyright terms should be even half of any of those lengths. Thankfully there are also a bunch of countries (NZ/BN/MY/VN/CA/JP) which are proposing that the term be determined by member states in accordance with their domestic laws and prior international agreements. Ironically enough, there have been policy pushes within US’ own domestic stage, including by the US Registrar of Copyrights for reducing copyright terms, which would be frustrated by their proposals in the international arena.
TPMs & RMIs: Technological Protection Measures find extensive mention in the draft negotiations with US vehemently pushing for draconian sanctions against circumvention and with Canada and Chile trying to water down the provisions to include more safeguards and exceptions. US/AU have also opposed proposals which would limit the applicability of these anti-circumvention provisions to copyrighted works. Specifically: “[CL/NZ/PE/VN/MY/BN/JP propose; AU/US oppose: … (2) Each Party may provide that such protections and remedies shall not hinder or prevent uses of copyright or related rights protected material that are permitted under exceptions or limitations to the exclusive rights of copyright […] owners, or the use of materials that are in the public domain.” This essentially means that US/AU are asking for strict criminal sanctions against anyone accessing any material that they don’t want them to access – regardless of whether it is in the public domain or whether fair use would allow one to access such materials – as long as they put in some kind of DRM over that material.
ISP Liability: ISP liability seems to be a more contentious issue with different countries taking different stances on how it should be addressed. To start off with, AU/US oppose any limitations to ISP liability, while Canada puts forward a more nuanced set of situations where ISP liability would be limited – including mere conduit, hosting information at the request of users, automatic caching, etc, provided there is a notification process and a set of legal incentives for ISPs to comply and legal remedies against those that don’t. Several countries have proposed that some of the conditions by which ISP liability can be limited is with the inclusion of subscriber termination and content blocking mechanisms.
Conclusion
While these seem to be the major areas of concern, there are still several areas of the text that I have not had the chance to examine. For example, James Love tweets, “With 700 corporate advisors on advisory boards, USTR could not draft a TPP damages section that would pass analysis by a legal intern.” 
In any case, The leaks show that up till August 30th at least, the draft TPP confirms what many had feared – the negotiations were so secretive because they had everything to hide. Soon after the leak went public, the US government put out a weak response which Mike Masnick rips apart here. Yesterday over 80 law professors have signed a letter to the Obama administration demanding that the proceedings of these negotiations be made more transparent. Hopefully the outrage is also extending to the citizens of other participating countries. This form of the TPP simply can not be accepted. Nevertheless, there are over 900 portions of text that are still not agreed upon – so hopefully demands for accountability may nudge countries into taking more consumer-friendly stances in these areas. It should be interesting to see how the negotiating countries now react to their stances being exposed.
