Today’s release of the TPP agreement confirms that its Investor State Dispute Settlement (ISDS) chapter would expand the rights of private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. The text contains broader provisions than 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.
As U.S. organizations and academics interested in issues related to good governance and transparency, we write to urge you to match the level of openness embarked upon by your counterpart from the European Union and make publicly available U.S. proposals for trade and investment agreements currently under negotiation, in particular, the Trans-Atlantic Trade and Investment Partnership (known as the “TTIP”). We believe that the public release of U.S. and European Union (EU) proposals must be a step toward achieving full transparency, which would be achieved by releasing consolidated draft texts after each negotiating round…
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.
USTR has reportedly tabled a new provision for the Trans-Pacific Partnership Agreement (TPP) that would carve out tobacco regulation from the effect of its investor-state dispute settlement (ISDS) chapter, which allows private companies to challenge domestic regulations in secretive and unaccountable international arbitration forums. ISDS challenges can generally be brought against domestic regulations whenever a company claims an “indirect” expropriation by regulation of an “investment,” which is defined to include “the expectation of gain or profit.”
Those with knowledge of the new tobacco text have revealed that the language proposed to be added to the investment chapter reads:
We write in response to your request for public comments on South Africa’s planned copyright legislation reform. We’re grateful for the chance to make a contribution in support of this extraordinary effort on the part of the Department of Trade and Industry to modernize South African copyright law and – in so doing – to make South Africa an international leader in the field at a critical moment in its history.
A workshop of academics and stakeholders on Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform commended South Africa’s Department of Trade and Industry (DTI) for its public release of a Copyright Amendment Bill that would expand and clarify many user rights in the Copyright Act. The general message from the stakeholders at the meeting to DTI was that the reform bill succeeds in addressing many of the most pressing issues for copyright reform today, putting in place a good structure through which the details of the provisions can be analyzed and improved.
Sean Flynn is the Associate Director of the American University Washington College of Law Program on Information Justice and Intellectual Property
A new leak of text from the Trans-Pacific Partnership Agreement contains new language — not included in any other trade agreement – clarifying application of trade law disciplines on drug pricing programs in the U.S.
Two previous agreements — with Korea and with Australia — contained restrictions on drug pricing programs, but were often thought not apply to any U.S. program. The texts of those agreements left any U.S. application ambiguous. But new language in the TPP leak makes clear the application of disciplines to “The Centers for Medicare & Medicaid Services (CMS), with respect to CMS’s role in making Medicare national coverage determinations.”
Senators Blumenthal, Brown, Baldwin, and Udall introduced today a trade negotiation transparency bill that would require that all formal U.S. proposals for trade agreement restrictions on domestic regulations be posted on a website. This is a common sense policy that should be broadly supported. The bill would require policies similar to the transparency policies currently followed by the European Union and by intergovernmental organizations that set similar minimum regulatory standards. But it would be a major change in the current process for trade negotiations followed by the U.S. Trade Representative, which are infamously secretive (See today’s Financial Times).
The Senate and House Reports on the Trade Promotion Authority bills working through Congress include important, albeit limited, steps toward endorsing balanced intellectual property norms in trade policy.
The Senate report, released today, states:
FCC Chairman Wheeler announced the members of the FCC’s Consumer Advisory Committee today, including Victoria Phillips, founding member of the American University Washington College of Law Program on Information Justice and Intellectual Property.
The Committee includes a diverse range of other public interest representatives, including two other other academic programs – California Western School of Law, New Media Rights, and Digital Policy Institute, Ball State University. The Committee is primarily made up of a broad range of non-profit representatives (including Consumer Electronics Association, Consumer Federation of America, Deaf and Hard of Hearing Consumer Advocacy Network, Free Press, National Consumer Law Center, New America Foundation, Open Technology Institute). Representatives also include representatives of regulators (National Association of Telecommunications Officers and Administrators) and industry (Google, Inc., Verizon Communications, and the Wireless Internet Service Provider Association).
In preparation for my role in warming up for Noam Chomsky on WORTFM Madison Wisconsin today, I put together this FAQ on the TPP ISDS leak and intellectual property policy concerns. As with all our posts, this is a CC-By product — please feel free to use or adapt for other purposes with attribution.
What is the core concern with ISDS?
The 2015 Special 301 Report continues a trend, beginning last year, of scrubbing a lot of language that long graced previous reports threatening other countries about WTO TRIPS and other international treaty violations. (See Special 301, A Historical Primer). This could be seen as an acknowledgment that such threats violate the World Trade Organization dispute settlement understanding. The WTO clearly states: