US Congressional Push For Release Of TPP Text; US Pressuring Nations Bilaterally?

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With talks on the controversial Trans-Pacific Partnership (TPP) agreement about to resume, members of Congress are putting pressure on the Obama administration to disclose what it’s seeking on intellectual property rights. And civil society groups say that even more worrying than the closed-door nature of the TPP negotiations is the United States’ increasing use of bilateral meetings to sway other countries.

The next round of TPP talks will be held from 6-15 September in Leesburg, Virginia (US).

In a letter to US Trade Representative Ron Kirk posted 5 September on the website of the Electronic Frontier Foundation (EFF), US Representative Darrell Issa (California Republican – corrected) and Senator Ron Wyden (Oregon Democrat) said they “insist – in the strongest terms possible” – that the administration tell Americans specifically what the USTR is seeking in the TPP with regard to IP rights.

International trade negotiations are complex and challenging, partly because the scope of free trade agreements has expanded over time, the lawmakers wrote. Free trade agreements (FTAs) now affect nearly every component of the US economy, not just in how businesses engage in international commerce, but also in ways that shape domestic policies, they said. Discipline related to IPR could affect how people gain internet access and constrain what they say online or how they collaborate and share content, they said. FTA IPR chapters influence how consumers gains access to new and innovative pharmaceutical drugs, they said. The IPR provisions of the TPP must not inappropriately contrain online activity, they said.

Americans know very little about what the USTR wants from the TPP but they “deserve to know what the administration is purportedly seeking” on their behalf, the letter said. “We insist that, as expeditiously as possible,” the USTR provide to the public detailed information about what obligations (and exceptions) the USTR is seeking in the IPR chapter, they said. They pressed the USTR to be “particularly explicit” about what it wants with regard to pharmaceuticals and enforcement if IP rights online. The administration must also tell Americans whether USTR is pursuing disciplines elsewhere in TPP that will promote an open and free internet, they said.

Global access to medicines and copyright exceptions and limitations are two key issues for civil society groups, they said in a 5 September press teleconference. No one really knows what’s happening behind the closed negotiating doors, so representatives from EFF, Knowledge Ecology International (KEI), Public Citizen and Public Knowledge commented on provisions in the IP chapter that were leaked earlier.

Access to Medicine a Key Issue

The TPP will eventually set a new, high global standard for 40 percent of the world’s population, via the IP provisions that were leaked, said EFF International IP Coordinator Maira Sutton. In the area of access to medicines, Public Citizen Global Access to Medicines Director Peter Maybarduk said the proposed agreement includes some of the most aggressive language he has seen to broaden the monopoly power pharmaceutical companies to control prices for things such as HIV/AIDS drugs.

In 2007, the Bush Administration and the Democratic-led Congress agreed on several safeguards for IP on pharmaceutical drugs, KEI Director James Love said. Among these were that developing countries would not have to abide by exclusive rights on test data in all cases, and that there would be no extension of patents beyond the 20 years permitted by the World Trade Organization, he said. But the USTR has taken these off the table, he said.

Another issue concerns biologic drugs, Love said, where there is controversy over whether the US will endorse a seven- or 12-year period of exclusivity. Current US law provides for mandatory compulsory licensing of drugs in certain circumstances, a provision which apparently is not in the TPP text, he said.

ISP Liability under Attack

The TPP opens the door to concerns about the liability of ISPs and other intermediaries, said EFF International IP Director Carolina Rossini. It pushes the US Digital Millennium Copyright Act on other countries which do not have such a measure, and goes beyond the DMCA and the Anti-Counterfeiting Trade Agreement by asking governments to create legal liability for intermediaries, she said. It paves the way for so-called “three-strikes” policies that could require ISPs to filter, block and deny internet access to alleged copyright infringers, she said. It shifts private IP enforcement to other parts of the world, which is dangerous, she added.

The TPP also raises difficult issues around technical protection measures (TPMs) because it criminalises circumvention of such systems and separates that from copyright infringement, Rossini said. That could prevent users from obtaining open-access materials, and restrict consumer rights if users are unable to break a TPM even though that would be legal under various exceptions and limitations to copyright liability, she said.

“Impressive Resistance” to US Proposals

Meanwhile, the groups have seen “impressive resistance” to some US proposals from several other delegations, Maybarduk said. Some chief negotiators, particularly those from developing economies, are distancing themselves from the US but are being faced with “bullying” by the USTR, he said. Asked whether the US has signalled any move toward softening its stance on issues such as access to medicines, Maybarduk said that some proposals are considered “non-starters” by the eight other negotiating members, and that the USTR should go back to the drawing board. The US’s “absurd position” on IP is holding up negotiations, he said.

Asked what they hope to accomplish in Leesburg, Rashmi Rangnath, staff attorney at Public Knowledge, said that the lack of transparency surround the talks means the groups’ ability to assess the results is limited. Patents are not on the agenda, so Maybarduk said he expects little formal progress there. But there is a danger of bilateral deals on the side, he said.

The US strategy is to pressure other nations bilaterally, Rossini said. Instead of using the plurilateral TPP to debate the issues, the US is visiting other countries to try to move the conversation one-on-one, she said. That makes civil society’s job even more difficult, she said.

The civil society groups also raised concern about the three-step test for copyright exceptions and limitations, something they issued a signed statement about recently (IPW, Bilateral/Regional Negotiations, 30 August 2012).

Dugie Standeford may be reached at info@ip-watch.ch.

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