[Ip-health] IP-Watch: Confidential USTR Emails Show Close Industry Involvement In TPP Negotiations

Thiru Balasubramaniam thiru at keionline.org
Fri Jun 5 08:21:40 PDT 2015


Confidential USTR Emails Show Close Industry Involvement In TPP Negotiations

05/06/2015 BY WILLIAM NEW,


While a full range of stakeholders would be affected by the outcome of the
Trans-Pacific Partnership (TPP) agreement under secret negotiation by the
United States and a dozen trading partners, corporate representatives have
had a special seat at the negotiating table, as shown by hundreds of pages
of confidential emails from the US Trade Representative’s office obtained
by Intellectual Property Watch. The emails give a rare and fascinating
perspective on how policy is developed in the trade office.

Years into the negotiation, the TPP is said to be nearing completion and is
the subject of a US congressional debate over renewal of fast-track
negotiating authority for the president (limiting Congress to a yes or no
vote). But the TPP text has never been made available to the public of the
countries negotiating it, except through periodic leaks of parts of the
text, making these emails timely for the debate.

Through a US Freedom of Information Act request, Intellectual Property
Watch has obtained some 400 pages of email traffic between USTR officials
and industry advisors. Most of the content of the emails is redacted
(blacked out), but they still give insight into the process.

The released emails, ranging from 2010 to 2013, are made public for the
first time here (1 of 4), here (2 of 4), here (3 of 4), and here (4 of 4)
[all pdf].

The FOIA request is the subject of a lawsuit brought on behalf of IP-Watch
by the Yale Law School Media Freedom and Information Access Clinic.
Intellectual Property Watch does not take a position on trade negotiations,
but has argued that the extreme secrecy of the TPP has made it too
difficult to write meaningful stories about the negotiations. Typical press
stories are limited to only the dates of meetings and the list of agenda
items, with no detail.

What is striking is not that government negotiators seek expertise and
advice from leading industry figures. But the emails reveal a close-knit
relationship between negotiators and the industry advisors that is likely
unmatched by any other stakeholders.

Records of engagement with other stakeholders, such as members of Congress,
small businesses, public interest advocacy groups, academics, or any other
“non-cleared” advisors, were not requested by IP-Watch, so it is not
possible to directly compare their level of access. But it is difficult to
imagine that, for instance, activists representing the general public
interest would receive this level of tight-knit treatment, even if they
also could be considered experts.

The cleared advisors in the email exchanges represent a range of industries
and companies, including law firms. They include (in no particular order):
Recording Industry Association of America, PhRMA, General Electric, Intel,
Cisco, White and Case, Advanced Medical Technology Association (AdvaMed),
Motion Picture Association of America, Wiley Rein, Entertainment Software
Association, Fanwood Chemical, American Chemistry Council, CropLife,
Medtronic, American Continental Group consultants, and Abbott. There is
also an exchange with generics pharmaceutical industry representatives.

Many of the industry representatives are themselves former USTR officials.

Examples of Exchanges

Exchanges between officials and industry cover just about any topic
affecting the TPP that came up during the period, such as expansion of the
TPP to include Japan and other countries, a transparency agreement among
negotiating countries, a public statement by USTR about access to
medicines, Canada and culture, US patent reform, IPR and environmental
information, software patentability, relations with the European Union,
other trade agreements and international developments, and as expected
numerous consultations over elements of the draft treaty text.

For instance, General Electric Aviation division representative Tanuja
Garde asks, “On trade secrets, can you share the language you tabled or
discuss by phone?” To which the USTR official Probir Mehta answers, “Let’s
chat; How about sometime Monday?” Elsewhere, Garde writes to Mehta: “I
heard about what was tabled in Dallas – great job. Have you briefed the
Chamber? [referring to the US Chamber of Commerce, an industry association]
Mehta replies: “Thanks Tanuja – actually the thanks go to you and Joe!”
[referring to USTR official Joe Whitlock] We’ve briefed the US Chamber led
TPP IP Task Force last week.”

A number of other big companies are included in discussions on trade
secrets, such as DuPont, Corning, Microsoft and Qualcomm.

In another example, Entertainment Software Association (ESA) Vice President
Stevan Mitchell provides a draft ESA analysis on technological protection
measures (TPM) in the negotiation. The USTR reply is, “Are you free next
week for lunch at some point?”

Jennifer Sanford of Cisco Systems engaged on TPP and supply chain issues.
Greg Slater of Intel provided a memo on an undisclosed topic. Timothy
Brightbill of Wiley Rein is asked on short notice to provide language on
state-owned enterprises (SOE) for a government interagency proposal.

RIAA reviewed the telecommunications chapter and had questions, discussed a
“selected ITAC members’ re posted TPP copyright and enforcement text,” made
comments on language regarding internet service providers, and provided
information about legitimate online music services available in New
Zealand. The International IP Alliance also weighed in the copyright and
enforcement text. In addition, copyright industry representatives sent
their views on copyright limitations and exceptions and secondary liability
options, and safe harbors.

An ITAC is a USTR Industry Trade Advisory Committee, for which there are
several by industry sector.

At one point early on, Doug Nelson of CropLife said his team had been
lobbying government officials in Kuala Lumpur and Vietnam on “agchemical
data protection,” and that “their reception to our TRIPS Article 39.3
emphasis on data exclusivity was very positive.” He asked if CropLife could
make a presentation at an upcoming round of TPP talks in New Zealand or if
there was a spot on the US delegation for a representative. USTR official
Stan McCoy replied simply that they did not know how the New Zealand
government was going to handle private sector side meetings.

At another point, Jim DeLisi of Fanwood Chemical said he had just seen the
text on rules of origin, and remarked, “Someone owes USTR a royalty
payment. These are our rules. … This is a very pleasant surprise.”

In a further example, Ralph Ives of AdvaMed had an exchange with Barbara
Weisel of USTR about a CEO letter on TPP. Weisel said she would not comment
until she had seen the letter, and “please don’t name names of negotiators
in the letter, although I appreciate the thought.” Ives responds apparently
with a draft of the letter, saying, “I’m not asking you to edit, of course,
but let me know if something like this would be ok to send.” Weisel
responds with a request to meet with him on it before he sends anything,
and proceeds to make meeting arrangements. Elsewhere, AdvaMed is involved
in a discussion about technical barriers to trade (TBT).

An Australian medical industry association is included in direct engagement
with USTR officials.

Among other things the emails show is that negotiators – and industry
representatives – work very hard and long hours, including weekends and
holidays, and countless trips around the world.

It is also clear that USTR officials try to stay within the rules they are
given, and may not even agree with level of secrecy of the talks. At one
point in 2012, Jared Ragland, director of the USTR Office of Intellectual
Property and Innovation, tells a lobbyist, “Happy to have a quick call with
you, and interested members, if necessary, altho ugh I can’t really talk
text with non-CAs as you know” (referring to non-cleared advisors).

And at another point, there is a reference made to a request by USTR lead
negotiator Barbara Weisel for industry not to keep repeating itself.

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