US push on intellectual property conflicts with international norms

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. Earlier leaked 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. 

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. 

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.

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