Wikileaks’ Release Of TPP Chapter On IP Blows Open Secret Trade Negotiation

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For years, the United States and partner governments have worked vigorously to keep the publics they represent from knowing what they are negotiating behind closed doors in the top-secret Trans-Pacific Partnership trade agreement. But today’s Wikileaks release of the draft intellectual property chapter blew that up, confirming the fears of public interest groups that this is an agreement heavily weighted toward big industry interests.

“If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons,” WikiLeaks’ Editor-in-Chief Julian Assange said in a release. “If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.”

In a live broadcast today [at minute 25], Assange said, “I think this release is going to pretty much kill it,” referring to the TPP. Assange, who said his team had worked with little sleep for four days to get this out, said that what is being pitched as intellectual property rights is really no more than a consolidation of monopoly control by large companies. This is a “major” release by Wikileaks, he said, showing the agreement would create new judicial institutions that would allow companies to sue governments with no rights. “It’s a big deal geopolitically,” Assange said, by creating a massive bloc that does not include China.

The 95-page text of the TPP IP chapter is from the 26-30 August 2013 round of negotiations in Brunei, and is available here (along with a press release).

“If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.” – Julian Assange

The group Just Foreign Policy has issued a reminder to people to fulfill their pledges on Wikileaks donation page, which totalled some US$70,000 if it posted the TPP. “WikiLeaks has rendered a tremendous service to the public,” it said.

There have been further negotiations on IP rights since August, and another round is planned for next week, from 19-24 November in Salt Lake City, Utah, according to sources.

The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP, Wikileaks notes in its press release. Participating countries include: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam.

US officials have indicated that they are pushing to complete negotiations as quickly as possible by or near year’s end, and have begun seeking support in Congress for trade promotion authority, which would limit Congress to a yes or no vote on the final treaty.

The chapter published by WikiLeaks “is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents,” it said.

The Text

Parts of the IP chapter have leaked in past years, but for the first time the whole chapter is public and shows the negotiating positions of the countries as well as areas of disagreement.

The text covers a wide range of topics, including definitions, relationship to other international agreements, and issues of patents, trademarks, copyright and industrial design. Examples are the promotion of patent cooperation, patentability, marketing approval for pharmaceuticals, requirements that geographical indications systems recognise trademark systems, and treatment of traditional knowledge, traditional cultural expressions and genetic resources, and setting out terms for limitations and exceptions to copyright.

Assange said that a “cringingly obsequious” Australia most often supported the hardline position of US negotiators against other countries. Nations such as Vietnam, Chile and Malaysia were more likely to be in opposition, Wikileaks said. Countries that already have bilateral accords with the United States have previously signalled reluctance to further expand their IP commitments.

Enforcement makes up the largest section of the chapter. Wikileaks said the chapter: “is devoted to detailing new policing measures, with far-reaching implications for individual rights, civil liberties, publishers, internet service providers and internet privacy, as well as for the creative, intellectual, biological and environmental commons. Particular measures proposed include supranational litigation tribunals to which sovereign national courts are expected to defer, but which have no human rights safeguards. The TPP IP Chapter states that these courts can conduct hearings with secret evidence. The IP Chapter also replicates many of the surveillance and enforcement provisions from the shelved SOPA and ACTA treaties.”

US advocacy group Public Citizen has circulated an analysis of what is new in the latest leak. The analysis is available here [pdf]. Knowledge Ecology International also circulated a detailed analysis of the text, available here.

Extreme Secrecy

Wikileaks pointed out the extraordinary level of secrecy of the talks to the public, while hundreds of industry advisers have had access to the text.

“Since the beginning of the TPP negotiations, the process of drafting and negotiating the treaty’s chapters has been shrouded in an unprecedented level of secrecy,” it said. “Access to drafts of the TPP chapters is shielded from the general public. Members of the US Congress are only able to view selected portions of treaty-related documents in highly restrictive conditions and under strict supervision. It has been previously revealed that only three individuals in each TPP nation have access to the full text of the agreement, while 600 ’trade advisers’ – lobbyists guarding the interests of large US corporations such as Chevron, Halliburton, Monsanto and Walmart – are granted privileged access to crucial sections of the treaty text.”

The aim of the TPP IP chapter is to address global concerns over piracy and counterfeiting, and raise standards in the partner countries, sometimes beyond what they agree in past bilateral agreements with the US.

The view of negotiating governments, led by the US, seems to be that if they can finish the deal with the fewest disruptive forces possible, it might get through. But as with the ill-fated Anti-Counterfeiting Trade Agreement (ACTA) and anti-piracy legislation (SOPA/PIPA) in the US Congress that met massive public resistance, this agreement also seems to be stoking anxieties that again the government is not acting in the best interest of the public.

Assange asserted in the live discussion today that the treaty appears aimed at isolating China economically. But Wikileaks noted that numerous key Pacific Rim and nearby nations – including Argentina, Ecuador, Colombia, South Korea, Indonesia, the Philippines as well as Russia and China – have not been involved in the drafting of the treaty.

Reactions Strong

Reaction to the text from civil society and advocacy groups was quick and strong. Where trade negotiators seem to be looking for ways to improve IP standards and enforcement, advocates fear it means eating away at civil liberties and access. The following are a few immediate reactions.

KEI (US)

“The document confirms fears that the negotiating parties are prepared to expand the reach of intellectual property rights, and shrink consumer rights and safeguards,” Knowledge Ecology International said in a blog post. “Compared to existing multilateral agreements, the TPP IPR chapter proposes the granting of more patents, the creation of intellectual property rights on data, the extension of the terms of protection for patents and copyrights, expansions of right holder privileges, and increases in the penalties for infringement.

“The TPP text shrinks the space for exceptions in all types of intellectual property rights,” KEI said. “Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.”

KEI went on to say, “The text reveals that the most anti-consumer and anti-freedom country in the negotiations is the United States, taking the most extreme and hard-line positions on most issues. But the text also reveals that several other countries in the negotiation are willing to compromise the public’s rights, in a quest for a new trade deal with the United States.” KEI also took a shot at the news media for what it called its “appalling acceptance of the secrecy.”

KEI offered a detailed analysis of the draft provisions on various types of IP rights, finding that in most areas the draft goes well beyond existing rules such as those in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This was particularly noted in the dispute settlement procedures, patents related to health, copyright exceptions, technical protection measures (even extending to the public domain), and damages (which it said are even “much worse” than those in ACTA).

Public Citizen (US)

Public Citizen issued a press release stating: “Secret documents published today by WikiLeaks and analyzed by Public Citizen reveal that the Obama administration is demanding terms that would limit Internet freedom and access to lifesaving medicines throughout the Asia-Pacific region and bind Americans to the same bad rules, belying the administration’s stated commitments to reduce health care costs and advance free expression online.”

The leak “shows the United States seeking to impose the most extreme demands of Big Pharma and Hollywood,” Public Citizen said, “despite the express and frequently universal opposition of U.S. trade partners.” It shows that “concerns raised by TPP negotiating partners and many civic groups worldwide regarding TPP undermining access to affordable medicines, the Internet and even textbooks have resulted in a deadlock over the TPP Intellectual Property Chapter, leading to an impasse in the TPP talks, the US group said.

“The Obama administration’s proposals are the worst – the most damaging for health – we have seen in a U.S. trade agreement to date,” Peter Maybarduk, director of Public Citizen’s global access to medicines program, said in the statement. “The Obama administration has backtracked from even the modest health considerations adopted under the Bush administration.”

“The Obama administration’s shameful bullying on behalf of the giant drug companies would lead to preventable suffering and death in Asia-Pacific countries,” he asserted. “And soon the administration is expected to propose additional TPP terms that would lock Americans into high prices for cancer drugs for years to come.”

Derechos Digitales (Chile)

The Chilean civil liberties group issued a press release (in Spanish) saying confirms rumours that the Chilean government is at risk of signing an agreement that would impact its development and have more costs than benefits, resulting in less access and higher prices. The agreement would weaken terms Chile negotiated in its bilateral trade agreement with the United States, it said.

MSF

“The leak of the secret text confirms that the U.S. government continues to steamroll its trading partners in the face of steadfast opposition over terms that will severely restrict access to affordable medicines for millions of people,” Judit Rius Sanjuan, US manager at the Médecins Sans Frontières (MSF, Doctors without Borders) Access Campaign, said in a statement. “The U.S. is refusing to back down from dangerous provisions that will impede timely access to affordable medicines.”

But, Sanjuan said, “It’s encouraging to see that some governments, including Canada, Chile, New Zealand, Malaysia and Singapore, are pushing back against some aspects of the U.S. position with their own proposal that better protects access to medicines; what is troubling is that the text also shows that some countries are willing to give in to the U.S. government’s damaging demands. We urge countries to stand strong to ensure that the harmful terms are removed before this deal is finalised.”

Michael Geist (Canada)

Canadian law professor Michael Geist gave his initial reaction, saying that Canada appears to be pushing back against US demands, but that “the U.S. – often joined by Australia – is demanding that Canada rollback its recent copyright reform legislation with a long list of draconian proposals.”

Australian Press

A report in the Australian New Age newspaper said the draft text shows proposals that would affect Australia’s laws on patents and pharmaceuticals, encouraging evergreening of patents, and with no protections for the nation’s tobacco plain-packaging provisions aimed at reducing tobacco use. Those provisions are the subject of legal disputes at the WTO and elsewhere.

In the news report, IP attorney Matthew Rimmer said, “One could see the TPP as a Christmas wish-list for major corporations, and the copyright parts of the text support such a view. … Hollywood, the music industry, big IT companies such as Microsoft and the pharmaceutical sector would all be very happy with this.”

William New may be reached at wnew@ip-watch.ch.

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