Leaked TPP Draft Reveals Extreme Rights Holder Position Of US, Japan, Outraged Observers Say 17/10/2014 by William New, Intellectual Property Watch 5 Comments Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Critics poring over a newly leaked alleged draft of the Trans-Pacific Partnership agreement (TPP) intellectual property chapter say it shows the United States is taking an all-out lurch toward greater protection and less access, causing outrage among public interest groups. On 16 October, Wikileaks leaked a draft of the TPP agreement from the Ho Chi Minh City, Vietnam, round last May. The draft (dated 16 May 2014) and Wikileaks statement are available here. One of the most revealing aspects of the document is that it shows which countries take which positions – and shows the United States and Japan to be on the extreme when it comes to intellectual property protection and trimming of exceptions, sources say. Wikileaks entitled its release, “US and Japan Lead Attack on Affordable Cancer Treatments,” and said: “The last time the public got access to the TPP IP Chapter draft text was in November 2013 when WikiLeaks published the 30 August 2013 bracketed text. Since that point, some controversial and damaging areas have had little change; issues surrounding digital rights have moved little. However, there are significant industry-favouring additions within the areas of pharmaceuticals and patents. These additions are likely to affect access to important medicines such as cancer drugs and will also weaken the requirements needed to patent genes in plants, which will impact small farmers and boost the dominance of large agricultural corporations like Monsanto.” Wikileaks said a comparison shows some controversial areas have been removed, such as surgical method patents, which had caused concern among doctors who see the need to freely engage in medical procedures without fear of lawsuits. It also includes transition periods for developing countries to comply with the agreement. In its analysis, Wikileaks also said: “The new US-tabled Article QQ.E.20 will force Parties to enact an automatic monopoly period (marketing exclusivity) for life-saving drugs, with a choice for the groups to decide for definitive inclusion within the treaty of 0, 5, 8 or 12 years. Experts state that the United States is pushing for the maximum 12 years, with the countries’ Ministers to decide as the IP negotiators cannot agree on this controversial issue.” “If the US is successful in their bid,” it continued, “or even the alternative 8-year period comes into place, the Obama Administration will have gone back on its promise to make cancer drugs affordable, having previously pledged to reduce the monopoly period on biotech drugs from 12 to 7 years. This will mean patients needing these drugs will remain with hugely expensive medical bills for years to come. These costs are also generally unattainable for citizens in the developing countries in the TPP.” Also new in the May 2014 text is a “’drug company-friendly’ version of the TRIPS agreement for compulsory licensing of vital drugs patents,” it said. A graph in the Wikileaks analysis shows the frequency of overlap of countries, which shows high correlations between the US and Japan, Australia and New Zealand, Vietnam and Malaysia, and Brunei and Malaysia, among others. Singapore lines up fairly strongly with Australia, and Chile, Peru and Mexico correlate. The 12 nations negotiating the TPP are: the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei. This would represent 40 percent of world trade, according to Wikileaks. Canadian attorney and TPP observer Michael Geist highlighted that the graph suggests Canada holding out against US pressure. ‘Dangerous Game’ Public Citizen, named as a contact on the Wikileaks page, issued an analysis of the draft agreement, saying among other things that it shows the Obama administration playing loose with previous pledges. A Wall Street Journal article yesterday said, “Although the U.S. trade rep never publicly confirmed its negotiating position, the specter of 12 years of exclusivity has riled consumer groups. Last year, more than a dozen groups, including AARP and Consumers Union, wrote the White House over concerns expensive biologics will be out of reach for many Americans.” The article continued: “They also noted the White House budget regularly seeks a 7-year exclusivity period. ‘This [shorter exclusivity period] would be better than the status quo, but still impose needless costs on the system and suffering on U.S. citizens,’” said Peter Maybarduk, head of the Global Access to Medicines Campaign at Public Citizen. “But this leak shows us that the White House is playing a dangerous game: in this secretive negotiation, the Administration is pressing for the longer 12-year period and is surrendering that budget pledge,” he said. In addition, Public Citizen in another analysis [pdf] pointed to an important new addition to the text related to patents on plant-related inventions. The text now requires nations to accede to the 1991 version of UPOV as well as provide patents on plant-related inventions that cannot be protected under UPOV. “We think that this provision of the chapter has the potential to be extremely harmful to Pacific-Rim countries,” a Public Citizen representative said. ‘Problematic Provisions’ Médecins Sans Frontières (MSF, Doctors without Borders) pointed to “problematic provisions” on health. Judit Rius Sanjuan, US manager and legal policy advisor, MSF Access Campaign, said in a statement: “Although we’d much prefer if negotiating countries themselves abandoned the extreme secrecy that has characterized these negotiations, MSF welcomes the leak of the revised negotiating text as a means to facilitate an open, transparent discussion about the health impacts of this agreement on MSF medical operations and millions of patients in TPP countries and beyond.” “The leaked text reveals that most of the more problematic provisions are being pushed by the United States and Japan, while still being opposed by the majority of the rest of negotiating countries. While the Australian government continues to oppose many of the most problematic provisions, we are concerned about Australian support for the US government’s push to mandate rules that facilitate secondary and abusive patenting by pharmaceutical companies, which blocks more affordable generic competition. As countries prepare for TPP negotiations in Australia starting October 19, we once again urge all countries to reject harmful intellectual property provisions that will restrict access to medicines.” Rius cited some specifics. “Some of the most harmful provisions remaining in the text would: – Limit countries’ ability to exercise rights confirmed in the 2001 Doha Declaration, by restricting those rights to a specific list of diseases and situations. – Limit the capacity that countries have to restrict secondary patenting and abusive patenting by requiring patents on “new uses or methods of using a known product.” – Restrict countries’ ability to include important public health flexibilities in their own national laws, for example India’s Section 3(d) patent law which requires evidence of “enhanced efficacy” before additional patents can be granted on existing products. – Restrict countries’ ability to use to the full the public health flexibilities recognized in the TRIPS agreement, including compulsory licenses and patent exceptions. – Mandate that countries include TRIPS-plus measures in their national laws, including patent linkage, patent term extensions and new monopolies based on clinical data exclusivity, including for biological vaccines and medicines, which have never before been included in a US-led trade agreement.” ‘Corporate Pandering’ Knowledge Ecology International (KEI), which is named as a contact on the Wikileaks page, had very strong words about what the leaked draft reveals, showing a wanton reach in the single direction of more and stronger rights holder power. KEI said in its analysis: “Pandering to corporate right holders, Ambassador Michael Froman, on behalf of the United States, is favoring binding obligations for 95 years of copyright protection for corporate entities, restrictions on copyright exceptions allowed by the Berne Convention, new controls and liability for use of copyrighted works in in-house intranet online services, damages for infringements based upon the ‘suggested retail price’ of goods, expanded third parties liability for infringement, a requirement that compulsory licenses of patents be subject to a restrictive three-step test [limiting use of exceptions], 12 years of monopoly in data used to register biologic drugs and vaccines, expanded scope of patent protection for pharmaceutical drugs, vaccines and medical devices, extensions of patent terms beyond 20 years, and obligations of drug regulatory agencies to evaluate and enforce assertions that registered drugs and vaccines infringe on evergreening patents, to mention only a few issues in the 77 page document.” KEI explained in detail how this draft would undermine the flexibility nations have in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to issue compulsory licences on patented medicines in order to create affordable versions for their citizens. “What Ambassador Froman is proposing in the TPP, and other TPP negotiators have agreed to, is to require that all compulsory licenses be subject to the so called 3-step test, which is risky and restrictive,” KEI said. “This is a huge change in global norms on compulsory licensing of patents, and perhaps the single most consequential proposal in the TPP as regards patent rights.” On the developing country transition period, KEI said: “Developing countries are being asked to accept very restrictive standards for intellectual property in return for transition periods that defer the harm until current governments are now longer held accountable. This will be a short-term benefit in exchange for a long term harm.” ‘Not Pretty’ The Electronic Frontier Foundation (EFF) analysis said: “Today Wikileaks published a new draft of the Trans-Pacific Partnership (TPP)’s intellectual property chapter. This draft text, from May 2014, gives us another look into the current state of negotiations over this plurilateral trade agreement’s copyright provisions since another draft was leaked last year. And what we’re seeing isn’t pretty. The TPP still contains text on DRM, ISP liability, copyright term lengths, and criminal enforcement measures, and introduces new provisions on trade secrets that have us worried.” DRM refers to digital rights management, which are ways to control the use of content online. Internet service provider liability would place more burden on the providers. On copyright term lengths, the draft only showed possible lengths of terms from 50 to 100 years. On trade secrets, EFF said: “This text goes far beyond existing trade secrets law, which in the United States and other common law countries is usually a matter for the civil not the criminal courts. No public interest exception, such as for journalism, is provided. In practice, this could obligate countries into enacting a draconian anti-hacking law much like the Criminal Fraud and Abuse Act (CFAA) that was used to prosecute Aaron Swartz.” Concern Over Copyright Provisions The Association of Research Libraries (ARL) provided a detailed analysis of the copyright provisions of the draft treaty. The analysis shows, for instance, that countries appear to have agreed on “formalities,” which ARL said could be problematic. But it noted that the new draft appears to add in recognition of the Marrakesh Treaty on exceptions and limitations for blind and visually impaired readers, negotiated at the World Intellectual Property Organization in 2013. Public Knowledge also raised concerns about the copyright provisions. Carolina Rossini, vice president for international policy and strategy at Public Knowledge, said in a statement: “This leak reveals why the negotiations of the Trans-Pacific Partnership have been so secretive. The agreement exports some of the worst aspects of US copyright law and policy, without many of the balancing benefits. As drafted, it locks developing countries on the Pacific Rim into policies that hurt local creativity, restrict access to knowledge and slow innovation. It also threatens to lock US law and policy into a regime designed for the 20th century, hurting the ability for Congress to make necessary reforms.” In relation to a treaty on broadcasters’ rights being negotiated at WIPO, Google’s Bill Patry noted on a listserv: “For those who follow the WIPO broadcast treaty, it would appear that for the U.S., the debate about signal theft v. a content rights based approach is settled in favor of the latter, notwithstanding comments made that it hadn’t been settled. See Article QQG.ZZ.” That article states: Article QQ.G.ZZ: {Internet Retransmission} [US/SG/PE propose: CL/VN/MY/NZ/MX/CA/BN/JP oppose: No Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal [SG oppose: and, if any, of the signal].118]119 [ALTERNATE:120 FN attached to QQ.G.2: A Party may not limit this right in order to provide for a compulsory remuneration regime in cases where an over the air signal containing an audiovisual work is transmitted on the Internet.] Transparency, Accountability, Democracy Critics decried the secret process that perhaps predictability led to an agreement favouring those with privileged access. EFF said: “The latest TPP leak confirms that the US Trade Representative is not backing down from exporting the most severe interpretations of US copyright law. As we’ve reiterated for years, TPP is just the latest cycle of policy laundering that takes advantage of the secretive, special-interest dominated negotiating forum of trade agreements in order to continue heightening copyright standards around the world. The only way to make practical, public-interest driven digital policy is for our policymakers to be held accountable. Backroom trade negotiations are the epitome of a defective, undemocratic rulemaking system. As long as special corporate interests dominate the agenda of our international digital policymaking fora, Internet users will not stand for such illegitimate regulations.” Giving its reason for leaking the documents, Wikileaks Editor-in-Chief Julian Assange said in the statement, “The selective secrecy surrounding the TPP negotiations, which has let in a few cashed-up megacorps but excluded everyone else, reveals a telling fear of public scrutiny. By publishing this text we allow the public to engage in issues that will have such a fundamental impact on their lives.” The next round of TPP talks is scheduled for next week in Australia. Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related William New may be reached at wnew@ip-watch.ch."Leaked TPP Draft Reveals Extreme Rights Holder Position Of US, Japan, Outraged Observers Say" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
LB says 18/10/2014 at 11:07 am Greetings You write: “In addition, Public Citizen in another analysis [pdf] pointed to an important new addition to the text related to patents on plant-related inventions. The text now requires nations to accede to the 1991 version of UPOV as well as provide patents on plant-related inventions that cannot be protected under UPOV.” With all due respect, those provisions (and more – e.g. patenting animals) have been in the text since the first leaks dated 2011. kind regards Reply
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