Author: Sean Flynn

At TTP Negotiating Round, USTR Holds Firm on Secrecy and IP Maximalism

Here is some of what we learned at the TPP negotiation in Chicago this week. Transparency will be worse than ACTA. In response to the repeated calls in civil society and academic presentations for TPP negotiators to increase transparency in the process, including through ongoing releases of negotiating text, USTR officials signaled that the process will be less transparent than the extremely controversial process followed in the Anti-Counterfeiting Trade Agreement. This came in the public question and answer session with Assistant USTR Barbara Weisel and in conversations with USTR negotiators throughout the meeting. Weisel explained in a question and answer session that TPP negotiating countries signed an agreement at the onset of negotiations that the text will remain confidential throughout the negotiations. This may bar the kind of end-game release of text permitted in the ACTA process (which was only done after all major negotiating points had been finalized and was followed by no public process to accept public comments on the substance of the text). Public Citizen’s Lori Wallach asked if negotiators would release the confidentiality agreement itself, to which Weisel replied that “it’s something they have to discuss.” Assistant USTR for intellectual property Stan McCoy, the author of the infamous “transparency soup” memorandum on ACTA, called the ACTA negotiation “the most transparent process ever conducted by USTR” and intimated that (although not his responsibility in this agreement)...

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Global Congress Issues Washington Declaration on Intellectual Property and the Public Interest

With the U.S. round of the Trans-Pacific Partnership Agreement (TPPA) underway in Chicago, intellectual property and information policy experts from around the world have released a Washington Declaration on Intellectual Property and the Public Interest that challenges the dominant direction of the negotiations on intellectual property in U.S. trade agreements. The Declaration was created through a consultative process with over 180 experts from 35 countries in six continents at the Global Congress on Intellectual Property and the Public Interest, August 25-27 at American University Washington College of Law. Citing an “unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders” through recent trade agreements, the experts call for new efforts to “re-articulate the public interest dimension in intellectual property law and policy.” The Declaration’s recommendations are guided by two overarching points. First, “International intellectual property policy affects a broad range of interests within society, not just those of rights holders.” The Declaration thus concludes that “intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation.” In direct opposition to the procedures being followed for the TPPA, where negotiations are being conducted behind closed doors over text never released to the public, the Declaration calls for intellectual property agreements to be made only “within the existing forums responsible for intellectual property policy, where both developed and developing countries have...

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Global Congress on Public Interest Intellectual Property Law

SAVE THE DATE: August 25-27, 2011 American University Washington College of Law 4801 Massachusetts Ave, NW Washington DC, 20016 Please mark your calendars and plan to participate in one of the most important meetings on international intellectual property law of the year. American University Washington College of Law (WCL) will host the first annual Global Congress on Public Interest Intellectual Property August 25-27, 2011. The Global Congress will be co-hosted by WCL’s Program on Information Justice and Intellectual Property, Fundação Getulio Vargas’s Center for Technology and Society (Brazil), the American Assembly at Columbia University, the International Centre for Trade and Sustainable Development (Geneva), and the Institute for Global and International Studies at George Washington University. The ongoing international intellectual property enforcement agenda has come under increasing scrutiny from public interest advocates and independent researchers, including through the recently released Media Piracy in Emerging Economies report http://piracy.ssrc.org/the-report/. Taking these research and advocacy interventions as a starting point, the Global Congress on Public Interest Intellectual Property will serve as a site for the sharing of research, ideas and policy proposals for how international intellectual property law should be constructed to better protect the full range of global public interest concerns. The tentative schedule is as follows: August 25, 3-6pm Keynote Addresses: Framing the Current Moment Keynote addresses will be webcast live and will be followed by a gala welcoming reception. August...

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Statement in response to IMS v. Sorrell, US Sct

For immediate release. Attribute to Sean Flynn, Associate Director, American University Washington College of Law Program on Information Justice and Intellectual Property, on the decision of the Supreme Court in IMS v. Sorrell: For the first time in the Court’s history it has extended heightened First Amendment protection to the commercial trading of information that is neither from the public sphere nor destined for it. Vermont regulated only the commercial trade in prescription records that were purely for the purpose of targeting marketing to doctors to alter prescriptions toward more profitable outcomes. Doctors and patients do not advertise their records to the public when they use them to process prescriptions. And pharmaceutical marketers do not use prescription records like newspapers to inform the public about matters of generalized import — indeed, their contracts with dataminers prohibit them releasing any information from them to the public, or even the doctors they track. The First Amendment’s interests in promoting a marketplace of ideas and facilitating democratic decision making through the free flow of public information are not furthered by protecting from regulation the private commercial trade of private information in medical records. Indeed, speech in this case was not regulated at all. As the Dissent correctly noted: ‘Vermont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of...

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Mexico Congress Rejects ACTA

Geraldine Juarez in Mexico, geraldine@hipertextual.com, reports that the  Mexican Congress has approved a resolution asking the president to not sign ACTA. She reports that, in a public hearing after the voting with citizens, senators from the presidential party PAN assured Mexican civil society that ACTA will not be approved by parliament during this administration. Link to resolution in Spanish. Unofficial English translation. This presents an interesting development in the context of major challenges to the legality of the implementation of ACTA in the EU and US. In the EU, there is a challenge under the Lisbon Treaty to the competence of the Commission to enter agreements on criminal provisions. And in the US, legal academics have questioned (without response by the administration) the authority of the executive to enter the agreement as a sole executive order without any congressional approval. So — is ACTA just a soft law declaration by its executive branch negotiators? For more information, see a blog post by Geraldine Juarez, who has translated part of the resolution....

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WIPO’s Gurry Coopts “Positive Agenda” for Industry Concerns

In a video interview from the World Copyright Summit on June 8, Francis Gurry, the Director General of WIPO, makes a (possibly unintended) effort to coop the “positive agenda” terminology of advocates for the development agenda and access concerns in international IP. He says that the current copyright agenda at WIPO (i.e. the development agenda and the limitations and exceptions debates for visually impaired, libraries and education in SCCR) “… tends to be a negative one. It tends to be looking at the exceptions, the limitations, and the other ways of not having intellectual property. I’m very keen to see us coming back with a positive agenda for intellectual...

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Shape of U.S. TPP Pharmaceuticals Chapter Emerges

Sources knowledgeable about the U.S. negotiating position in the TPP confirm that the U.S. has now drafted a pharmaceutical chapter for the TPP negotiations. The chapter is modeled on the Korea-US (KORUS) FTA’s pharmaceutical chapter, as expected, but goes beyond it in various ways. Objectives. The objectives of the section include a statement recognizing the ability of governments to apply appropriate standards to monitor the quality, safety and efficacy of medicines. But this language does not include recognition of governments’ need to promote the affordability of medicines. Restrictions on reimbursement programs. The key provisions restricting the efficacy of pharmaceutical pricing programs is in a “procedural fairness” section. The section includes requirements to: Disclose all “methods” used to determine the amount of reimbursement; Give companies opportunities to comment on drug listing and reimbursement price decisions; -Many Medicaid programs establish their preferred drug lists in open meetings, but not all of them do and not all use notice and comment rule making for the making of their lists. Set the amount of reimbursements based on “market derived prices” in the party’s territory. -The KORUS agreement includes a similar requirement on market prices, but the language mandating that the market price be in the party’s territory is new. -The territorial restriction appears to make illegal the common practice of reference pricing – the consideration of prices offered in other territories as benchmarks...

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Initial Reaction to the 2011 Special 301 Report

The U.S. Trade Representative’s 2011 Special 301 Report was released yesterday afternoon at about 4pm.  (James Love from Knowledge Ecology International has an excellent blog on it here.) Overall, this year’s Special 301 Report shows relatively little effort to respond to public interest submissions outside of the medicines issue. Even on medicines, the section on the Doha Declaration is word for word what it said last year and there appears to be little variance in the policies demanded this year (but that will take some more scrubbing and comparing to previous reports to decipher). Notably, in its new “best practices” section, there is no mention of any best practice submitted by a public interest organization, of which there many. It is fairly clear that USTR feels no requirement to respond to a divided record before it. That may open it up for charges of arbitrary adjudication under U.S. administrative law. Many TPP members are mentioned, with New Zealand’s pharmaceutical pricing program singled out for the first time in such detail. 301 was used similarly during TRIPS negotiations, although most now recognize that the program has lost its bite – it is fairly well accepted (except by Pharma) that it would violate WTO rules to actually sanction a WTO member under special 301 with no WTO finding. This was admitted by IIPA counsel Steve Metalis in a recent event on...

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MPEE Study Signals that IP for Media and Medicines Cause Similar Problems for Middle Income Countries: Exclusionary Pricing

Today at New York University I will be participating in the official launch of the multi-year multi-country study of Media Piracy in Emerging Economies (http://piracy.ssrc.org), edited by Joe Karaganis at SSRC. Mike Palmedo and I contributed to the report, in particular in its second chapter exploring Networked Governance and the United States Trade Representative. The report signals that the public interest analyses of the globalization of intellectual property of the “access to medicines” and “access to knowledge” wings of the public interest intellectual property movements have converged. The analysis shows that in media and software markets intellectual property monopolies in middle income countries with high wealth inequality promote exclusionary pricing that public policies must respond to if we are to maximize global social welfare. The pricing problem has been long recognized with respect to the case of medicines. Witnessing global distribution of essential AIDS treatments at the same high price (over $10,000 /year) throughout the globe, from Uganda to the U.S., stoked an international outcry. In response, the Doha Declaration on TRIPS and Public Health, and many other global public statements, promoted broader use of intellectual property “flexibilities” in developing countries to ensure access to patented medicines. In medicines at least, the dominant global discourse has shifted from promotion of a one-size-fits all patent policy to broad acceptance that poorer countries need different policy tools to avoid pricing themselves...

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Comments to USTR Submitted for ACTA: Thirty Professors Say It Requires Congressional Approval

Click here for selected comments to USTR on ACTA from Civil Society Groups Cick here for the complete docket of comments (ustr-2010-0014) on regulations.gov Comment by Thirty Law Professors: SUMMARY:   We write to call on the Obama administration to comply with the Constitution by submitting the Anti-Counterfeiting Trade Agreement (ACTA) to Congress for approval. The executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent. The regulation of intellectual property and of foreign commerce, which are at the heart of ACTA’s terms, are Article I Section 8 powers of Congress; the President lacks constitutional authority to enter international agreements in this area as sole executive agreements lacking congressional authorization or approval. The unconstitutionality of the process by which the Obama Administration intends to implement ACTA is further highlighted by the fact ACTA will constrain U.S. law by locking in the policy choices ACTA makes and the requirements it imposes.  The choice of whether to adopt substantive constraints on U.S. law must be made with Congressional participation. That participation is even more critical here, because ACTA was drafted and negotiated under unprecedented and deliberate secrecy — a non-accountable process that excludes the meaningful participation of a wide range of interests. The process by which ACTA was created and the means by which the Obama administration intends to implement it is undemocratic and unconstitutional. Together, they...

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Call for sign ons: ACTA comment

Please join fellow legal academics in signing this draft statement to the administration on the constitutional problem with ACTA.  The submission is open for editing comments and signatures until FRIDAY FEBRUARY 11 AT 4PM eastern standard time.  The submission is open to any self identified “legal academic.” We welcome part time teachers and such and also academics from other disciplines that work on international trade law (international relations, etc.). FULL TEXT – Statement to the Obama Administration on the Constitutional Problem with ACTA To sign on or edit, send an email to me and cc Mike Palmedo (mpalmedo@wcl.american.edu). Please indicate if your signature relies on acceptance of any suggested edits. The initial signatories to the statement include myself, Brook Baker, Anthony Falzone, Lawrence Lessig, David Levine, Kevin Outterson, Frank Pasquale and Christopher Sprigman. The summary of the argument of the submission is pasted below. SUMMARY OF ARGUMENT We write to call on the Obama administration to comply with the Constitution by submitting the ACTA to Congress for approval. The executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent. The regulation of intellectual property and of foreign commerce that are at the heart of ACTA’s terms are Article I section 8 powers of Congress; the President lacks constitutional authority to enter international agreements in this area as sole executive agreements lacking congressional authorization or...

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USTR Considering Pharmaceutical Pricing Restrictions in TPP; Refuses to Follow May 10th Agreement on IP-Medicines Issues

Peter Maybarduk (Public Citizen) and Sean Flynn (representing Forum on Democracy and Trade) met with USTR staff on February 3 to be briefed on the administration’s negotiation of the TPP with respect to the planned IP chapter and the rumored chapter on pharmaceutical reimbursement programs. This meeting was requested to be on the record. A member of the USTR’s press staff was present and tape recorded the meeting (contact Carol Guthrie at cguthrie@ustr.eop.gov). USTR staff asked to be referred to as “USTR staff” rather than be identified by name. These are notes from the meeting by Sean Flynn. Peter may have additions and those will be incorporated into an amended set of notes at www.infojustice.org Pharmaceutical chapter Sean briefed the USTR staff on state government concerns with USTR pressing for new international restrictions on pharmaceutical reimbursement programs. He noted that in other areas USTR has announced publicly that is pushing for certain topics to be within the agreement. We know, for example, that the US supports inclusion of an IP chapter and an investment chapter and that discussions have taken place between countries on those chapters. We would therefore like USTR to state on the record whether it is proposing a pharmaceutical chapter, for example a chapter similar to those included with Australia and Korea. USTR first said it could not comment on discussions had between countries. When pressed,...

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U.S. State Legislators Call for Halt of Trade Restrictions on Pharmaceutical Pricing

On Friday, an organization of state legislators passed a resolution calling on the U.S. to halt the use of trade agreements to enact international disciplines on pharmaceutical pricing programs. The resolution was passed at the winter meeting of the National Legislative Association on Prescription Drug Prices, an organization of state legislators that work on health issues. The resolution specifically targets the ongoing negotiation of the Trans-Pacific Partnership (TPP), a plurilateral trade agreement among eight nations. To date, no negotiating text has been publicly released. But the branded drug lobby has requested the inclusion of a chapter in the agreement that would require countries to “appropriately recognize the value of patented medicines“ in public drug reimbursement programs and provide appeals for drug manufactures to challenge listing and reimbursement decisions of public health authorities. As explained in the resolution, public health programs run by states, including the administration of Medicaid drug benefits for over 40 million Americans, use the same types of price restraining preferred reimbursement formularies (known as preferred drug lists, or PDLs) as foreign governments. Many federal programs, including drug programs for Medicare and veterans hospitals, achieve reductions on drug prices through similar preferred reimbursement programs. The resolution recounts that these effective programs would be threatened by the kind of new international restraints on pharmaceutical pricing programs that the drug industry seeks: “Trade Agreements are reciprocal by nature, and...

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EU Approves ACTA – Leaked EU Letters Refer to "Treaty"

The EU has passed ACTA, in a close vote  with a 16 vote margin. [See the official record of the vote.]  The full text of the resolution is available here. There have also been two version of a leaked letter [one with comments, and one without comments] between De Gucht and ALDE MEPs discussing the vote. The annotated version appears to have been written by ALDE staff but I am not sure. Interesting that De Gucht calls ACTA is a “treaty,” an issue that raises competency issues in the EU as well as the U.S. USTR refuses to use that term, although it clearly is under international law. But treaties require congressional consent. Of course, so do executive orders on matters dealing with Article I sec. 8 powers of congress. For more on ACTA’s constitutional problem, please see my ealier blog post:...

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