US push on intellectual property conflicts with international norms

Revelation of secret agreement shows need for transparency and accountability

By Carolina Rossini and  Burcu Kilic                     al Jazeera               1 December 2013

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 TTP 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.

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.  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.    [Abridged]

http://america.aljazeera.com/opinions/2013/12/tpp-intellectualpropertywikileaks.html