December 6, 2011

Sean Flynn: 202-294-5749 |
Brook Baker: 617-259-0760 |
Margot Kaminski:

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 process.”

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.”