The negotiating parties to the Trans Pacific Partnership Agreement (TPP) announced today that they have reached an agreement on a broad international regulatory harmonization agreement that will bind the U.S. to a new set of international minimum standards on intellectual property and other issues. It is now clear that the TPP will be worse on both process and substance for public interest concerns than the last plurilateral intellectual property agreement that the U.S. negotiated — the Anti-Counterfeiting Trade Agreement (ACTA). What is notable about ACTA is that it failed. The EU Parliament overwhelmingly rejected it, and it was never submitted to Congress. And thus, as we consider the consideration of the TPP in Congress and other parliaments, ACTA is a useful reference point.
Process
The TPP continues its shameful record of being more secretive than ACTA.
ACTA should not be the baseline for transparency in international negotiations. If the TPP was negotiated as a multilateral treaty in the World Intellectual Property Organization, every draft of the agreement would be released to the public, including the one announced today. ACTA became hated in the public consciousness, and was rejected by the EU Parliament, in large part because of its secrecy. But the TPP is worse.
At the conclusion of ACTA, and twice during the negotiations, the official text of agreement as it then stood was released. There has not been a single release of TPP text – including today, the day the final agreement was announced. All that was released by USTR today was another fact sheet.
USTR Froman indicated in questioning today that he may intend to restrict any public access to the TPP text to the minimum amount allowed by law. Froman explained that he “looks forward to explaining the TPP fully to the American public, for at least 60 days out there in the public.” His 60 days reference is to the minimum period of public notice of the agreement required by the Trade Promotion Authority Act passed by Congress. Before that Act, Froman has indicated to the Senate Finance Committee only that the agreement “might” be released after it is signed.
There might not be much public debate on TPP. The Trade Promotion Authority bill requires that the USTR submit a notice of agreement to Congress 90 days before ratification, and include a 60 day public notice period. If he takes full advantage of that timeline, he could release the text 30 days from now – on November 5 – for a 60 day period that will include the Thanksgiving and Christmas recesses in Congress. Not exactly planned to maximize public debate.
Substance
It has become clear from recent leaks that the TPP will be much worse on substance for the two major mobilizations of public interest issues that killed ACTA – internet rights and access to medicines.
During the ACTA negotiation, mobilizations of internet rights and access to medicines advocates succeeded in influencing the text of the negotiation. Controversial provisions on enforcing patents by border guards and internet service liability obligations to police the internet were removed from the final deal.
Public interest concerns were codified in a number of broadly endorsed declarations. See Washington Declaration on Intellectual Property and the Public Interest, Urgent ACTA Communique: International Experts Find that Pending Anti-Counterfeiting Trade Agreement Threatens Public Interests; Declaration on Patent Protection: Regulatory Sovereignty under TRIPS, https://www.mpg.de/8132986/Patent-Declaration.pdf, Consumers in the Digital Age Joint Declaration on ACTA , Opinion of European Academics on Anti-Counterfeiting Trade Agreement.
The TPP will be substantively worse than ACTA on internet rights and access to medicines issues.
Unlike ACTA, TPP will apply to pharmaceuticals. Indeed, leaked drafts show that it will include the specific border provisions on patents removed from ACTA as well as many new restrictions on local patent policy – including on data exclusivity for biologic medicines – never included in any trade agreement.
On internet and access to knowledge issues, the TPP will also be considerably worse than ACTA. TPP includes many of the ISP liability and damages issues that were removed from ACTA, as well as new international obligations on copyright term and other issues never proposed for that agreement.
Perhaps most importantly for both Internet and medicines issues, the TPP includes an “investor state dispute settlement” (ISDS) provision that will allow private companies to challenge intellectual property limitations and exceptions in unaccountable foreign tribunals.
We can’s see the TPP. It is still secret. But we know enough now to be able confidently declare that it is worse than ACTA.
