Jun 102015
 

sean at podiumFor immediate release

Sean Flynn is the Associate Director of the American University Washington College of Law Program on Information Justice and Intellectual Property

202-294-5749

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.”  Continue reading »

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May 192015
 

sean at podium

Sean Flynn, American University Washington College of Law, 202-294-5749,  sflynn@wcl.american.edu
David Levine, Elon University School of Law, 336-279-9298, dlevine3@elon.edu

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). Continue reading »

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May 142015
 

sean at podiumThe 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: Continue reading »

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May 052015
 

phillips150pxFCC 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). Continue reading »

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May 012015
 

sean at podium

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? Continue reading »

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Apr 302015
 

sean at podiumThe 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: Continue reading »

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Apr 232015
 

sean at podiumThis presentation is in the IP room. But my message is for the IP team to be talking to the ISDS folks next door. The reason is that there is an increasingly urgent need revise the EU and US ISDS templates to protect IP policy decisions from the ISDS chapters of trade agreements. Both the US and EU have been tinkering with their models of late. But both revised models fail to ensure a key domestic sovereignty protection that has been the core of international IP law for 130 years – the exclusive use of state-to-state dispute resolution for enforcement of international IP commitments. Continue reading »

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Apr 212015
 

sean - 150x150[Cross posted from the American Constitutional Society blog, Link] The Trade Promotion Authority (TPA) bill that was released last week contains a fascinating Section 8 on “Sovereignty.”  The section appears intended to make all trade agreements with the U.S. not binding to the extent that they contradict any provision of U.S. law, current or future.  If valid, the section would go a long way to calming fears in this country that new trade agreements, like the old ones, could be used by corporations or other countries to force the U.S. to alter domestic regulations.  (See, for example, analysis on how the leaked TPP text could enable challenges to intellectual property limitations and exceptions like the U.S. fair use doctrine). Continue reading »

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Apr 152015
 

sean - 150x150I 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. Continue reading »

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Apr 082015
 

sean - 150x150Last week I expressed my shock in seeing that the Trans Pacific Partnership agreement proposes to expand (or at least clarify) the ability of corporations to challenge intellectual property limitations and exceptions in so called investor-state dispute settlement (ISDS) tribunals. One source of that surprise came from my recollection of repeated meetings with USTR negotiators who assured me and others that ISDS forums were not intended to provide a means to challenge intellectual property limitations and exceptions. Continue reading »

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Mar 262015
 

sean - 150x150I 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. Continue reading »

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Mar 262015
 

sean at podiumToday’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.”

Continue reading »

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