[Ip-health] Release: TPP analysis

Sean Flynn sflynn at wcl.american.edu
Tue Dec 6 13:27:50 PST 2011

For Immediate Release
December 6, 2011


Sean Flynn: 202-294-5749 | sflynn at wcl.american.edu
Brook Baker: 617-259-0760 | b.baker at neu.edu
Margot Kaminski: margot.kaminski at gmail.com


Legal Scholars Release Critical Analysis of U.S. Proposals for
Intellectual Property and Pharmaceutical Chapters of the Trans Pacific

As trade officials from nine countries meet in Malaysia for the tenth
round of Trans-Pacific Partnership Agreement negotiations, a report
released today by legal scholars analyses the U.S. proposals for
chapters on intellectual property and pharmaceutical pricing.  The
report was prepared by Professors Sean Flynn (American University
Washington College of Law), Brook Baker (Northeastern University School
of Law), Prof. Margot Kaminski (Yale Information Society Project) and
PIJIP Fellow Jimmy Koo (American University Washington College of Law).

The full report is available at

The Trans Pacific Partnership Agreement is the first trade agreement
negotiated by the Obama Administration, and negotiators hope to conclude
the Agreement by 2012.

The scholars' analysis concludes that the "U.S. proposals, if adopted,
would upset the current international framework balancing the minimum
standards for exclusive rights for media and technology owners, on the
one hand, and the access rights of the public, competitors, innovators
and creators, on the other." The report notes that the "proposals, if
adopted, would create the highest intellectual property protection and
enforcement standards in any free trade agreement to date," predictably
leading "to higher prices and decreased access to a broad range of
consumer products in many TPP member countries, from medicines to
textbooks to information on the internet, with little or no benefit to
any TPP member in the form of increased innovation, creativity or local
economic activity." According to the report:

"No country, including the U.S., has an interest in ceding this much
policy flexibility to an international agreement, particularly through
an international agreement subject to such a limited public process. As
with the recently concluded and highly criticized ACTA, the TPP proposal
seeks to put in place a major and consequential shift in international
standards for domestic regulation with scant public process, on the one
side, and a highly structured and consultative relationship with a
limited range of commercial interests on the other. This process denies
TPP negotiators access to a full range of views and analysis that
deliberation in a public forum would attract. A better process would be
to reject the U.S. TPP proposal in its entirety and limit any
intellectual property, internet and pharmaceutical regulations to
standards already adopted through an open and transparent multilateral

Sean Flynn, Associate Director of American University Washington College
of Law Program on Information Justice and Intellectual Property and the
coordinator of the report described it as a call for a return to
democratic processes in international law making:

"The report concludes that the U.S. proposal would require changes in
the law of every TPP member country, despite the fact that this
agreement itself is being negotiated with no public process. It is
shocking that this kind of detailed analysis of public policy can only
be achieved through the leak of secret texts." 

Professor Brook Baker of Northeastern University School of Law called
particular attention the potential impact of the agreement on access to
medicine in developing countries:

"If the U.S. prevails in its IP proposals in the Trans-Pacific
Partnership, Big Pharma wins - big time - and poor patients lose -
literally becoming the dead weight loss of IP extremism.  The U.S.
proposals on easy standards of patentability, patent term extensions,
data monopolies, strong-arm enforcement, and restrictions on
price-for-value regulation may guarantee super-profits for major
pharmaceutical companies, but they systematically delay access to
affordable generic medicines essential to HIV/AIDS programming and other
health initiatives in developing country."

Margot Kaminski. Executive Director of the Yale Information Society
Project emphasized the dangers of making new internet regulatory policy
at the international level even while U.S. law on this issue is subject
to reform proposals.  

"The role of websites, search engines, and other third parties in online
copyright enforcement is being hotly debated in the domestic policy
arena right now, because of SOPA and PROTECT IP.  With this debate
ongoing, USTR absolutely shouldn't be exporting a version of
intermediary liability that goes above and beyond current US law,
without crucial privacy and due process protections."




Sean M Fiil Flynn

Associate Director

Program on Information Justice and Intellectual Property (PIJIP) 

American University Washington College of Law
4801 Massachusetts Ave., NW 
Washington, D.C. 20016
(202) 274-4157            


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