[Ip-health] Carolina Rossini and Burcu Kilic in Al Jazeera America: US push on intellectual property conflicts with international norms

Thiru Balasubramaniam thiru at keionline.org
Sun Dec 1 23:10:56 PST 2013

US push on intellectual property conflicts with international norms

Revelation of secret agreement shows need for transparency and

December 1, 2013

by Carolina Rossini<http://america.aljazeera.com/profiles/r/carolina-rossini.html>
 and Burcu Kilic <http://america.aljazeera.com/profiles/k/burcu-kilic.html>

WikiLeaks has once again provided key insight into the secret workings of
governments. In a Nov. 13 release, the anti-secrecy organization published
thedraft text  <https://wikileaks.org/tpp/> of the intellectual property
chapter of the Trans-Pacific Partnership Agreement (TPP).

One of the most controversial pieces of international law in recent years,
theTPP <https://www.eff.org/issues/tpp> 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 <http://www.apec.org/> 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 <http://keionline.org/node/1825>
provided <http://www.michaelgeist.ca/tags/tpp>
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. He happened to make this comment while
Pictures studios in Los Angeles.

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.
If U.S. proposals are accepted, copyrighted works such as this article will
not enter the public domain until well into the 22nd century.

The leak also offers a remarkable view not just into the text, but into the
diplomatic process as a whole. Earlier
the text did not include other country positions, while this version
reveals, through bracketed text in the document, who opposes or supports a
piece of language, a phrase or an idea. 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<http://infojustice.org/archives/31256> 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
Copyrights and patents

The TPP chapter on IP reveals that the U.S. entertainment industry does not
miss an opportunity to push its interests to the highest levels of
government. In early 2012, the industry unsuccessfully sought to establish
draconian rules against copyright infringement. The U.S. House bill, known
as the Stop Online Piracy Act (SOPA), caused massive popular uproar and
online protests by Google, Wikipedia and other websites, before it was
shelved in committee.

While the TPP text does not include some of the extreme provisions in SOPA,
it nevertheless seeks aggressive IP protection and copyright enforcement
standards. For instance, the U.S. government pushed for:

   - an extension of copyright terms beyond the international norm of life
   plus 50 years to life plus 70 years. In the case of published works whose
   copyrights are owned by corporations, the term of protection would go from
   the current 50 years to 95 years from first publication. If U.S. proposals
   are accepted, copyrighted works such as this article will not enter the
   public domain until well into the 22nd
   - reduced flexibilities<https://docs.google.com/file/d/0B1D4c0Fur4gdVGpuLTdrMmxlOU0/edit?pli=1>
   TPP countries to tailor their domestic rules on copyright fair use, fair
   dealing, and  exceptions and limitations on the exclusive rights copyright
   owners have to reproduce their work for a determined time period.
   - technological protection mechanisms (TPMs) to enforce pre-defined
   limitations on the use and transfer of copyrighted digital content, which
   can prevent access and fair use,  and penalties against circumventing these
   - increased<https://docs.google.com/file/d/0B1D4c0Fur4gdQmpnUDBkT3lkc2c/edit?pli=1>
   internet service providers for illegal or infringing content or behavior by
   third parties.
   - expanded copyright protection for digital temporary
   are automatically copied by computers (into RAM, onto a video hardware
   buffer, etc.) during the course of routine operations.

These provisions, if established, would have a chilling effect for freedom
of expression <http://www.ifex.org/international/2012/11/22/tpp_censorship/>
 andconsumer rights<https://docs.google.com/document/d/1B8FGJWmlI1oyxfjuObKvg3ZN_cpE10t44UfPimiZgdg/edit>.
They would dictate how people in TPP-signatory countries access, use,
disseminate and share knowledge. Such restrictions would also create
incentives for internet service providers to become internet police and
crack down on users in ways that could greatly damage individual privacy
and political freedom. Fortunately, Canada, New Zealand and Chile are
fighting back with their own, more balanced proposals.

The TPP text on patents and medical test data has also been roundly
criticized for limiting the availability of cheaper generic versions of
medicines. Strikingly, U.S. demands would strengthen, lengthen, and broaden
patent protections and restrict access to crucial medicines for treating
cancer, heart disease and HIV/AIDS. In addition to expanding the scope of
existing pharmaceutical patents, the proposals would also
pharmaceutical monopolies by lowering TPP countries’ patentability
standards and requiring patents be available for surgical and treatment
methods as well as minor variations of old medicines. Not surprisingly, as
the Wikileaks draft reveals, these U.S. proposals have received
near-unanimous opposition by TPP-participatory countries. A counterproposal
from Canada, Chile, Malaysia, New Zealand and Singapore preserves the TRIPS
flexibilities for public health and access to medicines, which are affirmed
by the Doha Declaration and leaves appropriate policy space to the
discretion of individual countries.
US backlash

After years of secrecy and civil society frustration, the WikiLeaks release
has sparked a reassessment in American public opinion against TPP. In a
parallel development, several U.S. legislators announced their intentions
to take trade policy back into Congress’ hands. A bipartisan group of
lawmakers — 151 U.S. House Democrats and 23 Republicans —
separate letters to President Obama vowing not to give the White House a
free rein to “diplomatically legislate.”

Even if the TPP agreement, with its many secret chapters, is signed on
schedule in December 2013, the U.S. Congress will have the last word. Due
to Wikileaks’ release of the IP chapter, at least one piece of the TPP
proposal is now in the realm of open politics, instead of under seal.

*Carolina Rossini is project director for the Latin America Resource Center
at the Internet Governance and Human Rights program at the New America
Foundation's Open Technology Institute.*

*Burcu Kilic is legal counsel for Public Citizen's Global Access to
Medicines Program.*

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