I released a statement earlier today opining that the today’s leak of the Investor State Dispute Settlement (ISDS) chapter proposed for the Trans Pacific Partnership (TPP) agreement (available at https://wikileaks.org/tpp-investment/WikiLeaks-TPP-Investment-Chapter.pdf) would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. This note gives further background and analysis supporting that statement.
Today’s leak of the Investor State Dispute Settlement (ISDS) chapter proposed for the Trans Pacific Partnership (TPP) agreement would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. The text contains the same provisions that are being used by Eli Lilly to challenge Canada’s invalidation of patent extensions for new uses of two medicines originally developed in the 1970s. The same language is also being used by Philip Morris to challenge Uruguay’s regulation of advertising on cigarette packages as an “expropriation” of their trademarks. But the TPP language goes farther. It includes a new footnote, not previously released as part of any other investment chapter and not included in the U.S. model investment text — clarifying that private expropriation actions can be brought to challenge “the cancellation or nullification of such [intellectual property] rights,” as well as “exceptions to such rights.”
On Friday, I joined law professors Srividhya Ragavan of University of Oklahoma and Brook Baker of Northeastern University Brook Baker in comments to the Indian government on its recently released “Draft Intellectual Property Policy.” Our overarching comment is that the proposed policy makes a categorical and critical mistake of promoting intellectual property as an end in itself rather than as a means for achieving social and economic progress through enhanced production of and access to the fruits of creativity and innovation. The heart of the comment states:
Brand name pharmaceutical companies are advocating for inclusion of disciplines on public pharmaceutical reimbursement programs in the ongoing negotiations of the Trans-Pacific Partnership agreement (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) trade agreements. This post answers some frequently asked questions by U.S. public health advocates about these proposals.
Why is pharmaceutical reimbursement policy being negotiated in trade agreements?
Co-published on atlantic-community.org.
As the 7th Round of the Transatlantic Trade and Investment Partnership (TTIP) gets underway behind closed doors in Chevy Chase, Maryland, it is an opportune time to ask what proponents of a successful TTIP should learn from the latest failed trade agreement negotiation involving the U.S. and Europe – the Anti-Counterfeiting Trade Agreement (ACTA).
On August 18, a group of South African and international legal experts will work with South African filmmakers to better understand their rights as users as well as creators under copyright law. The meeting will focus on actions filmmakers can take to use and expand user rights in South Africa that are necessary to fully enable the vibrant filmmaking industry that already exists, and to support emerging artists.
We would like to invite you to a workshop on Copyright Users Rights and the Clearance Culture in South African Filmmaking on August 18, at 10h00, at the NFVF, 87 Central Street, Houghton, 2198, Johannesburg. This workshop will be hosted by SASFED and its Affiliates, the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law in the United States, and the Intellectual Property Unit at the University of Cape Town. The workshop follows, and will report back on, research by the partner organisations on documentary filmmaker views and perceptions on the rights of filmmakers to reuse and transform material in their filmmaking without licensing restrictions.
Fannie Rascle — French journalist (@fannierascle) working for a website called novethic.fr, interviewed me today for an article about TTIP and transparency. Here are her questions and my answers.
European Union documents relating to TTIP could be made public after a European Court of Justice ruling yesterday : do you think it is an important decision ?
I am not an expert on that opinion. I read it to say that the Commission has to justify its decisions to not release documents related to international negotiations. I believe that the justification is weak for not having any method for a country to share with its own citizens proposals to change international law. The making of law should be the most public of our governmental activities.
Last week, USTR announced that it was closing a “partially open” meeting of the Industry Trade Advisory Committee on Small and Minority Business. No reason was given for the closing of the meeting. But this led an office in Congress to request the Congressional Research Service to find out just how many open meetings of the ITACs there have been. The answer:
Since 2004, there have been 13 “partially open” meetings of ITACS. Oddly, all but one of the open meetings were of the small and minority business committee.
In the weeks leading up to today’s publication of the Special 301 report, Indian officials were reportedly ready to file a challenge to the program in the World Trade Organization. That threat seems to have been avoided by the USTR refusing industry calls to list India as a “priority foreign country.” This follows USTRs decision to suspend a 301 investigation of Ukraine because of the political situation in that country. This leaves the 2014 list again with no priority foreign countries listed.
30 international intellectual property law professors from around the world filed a brief in the U.S. Supreme Court today in ABC v. Aereo. Aereo is being accused of being directly liable for copyright infringement by supplying equipment for a remote DVR service that allows consumers to record and play back free-to-air television programming. The brief responds to arguments made by IFPI et al and some other amici supporting ABC that international copyright law — including the Berne Convention, WIPO Copyright Treaty and several Free Trade Agreements — control the case. This brief argues that international law is not controlling, but rather leaves countries free to hold that Aereo’s equipment only facilitates private copying by consumers.