Last week Jim McDermott wrote an op-ed in Roll Call on the TPP in which he warned that the U.S. proposal for intellectual property in the TPP could “cost millions of lives in developing countries.” McDermott wrote that the proposal extends patent monopolies on pharmaceuticals further than TRIPS: “It would extend patents beyond the current 20-year norm and block national regulators from using existing clinical trial data to approve the production of generic or “bio-similar” drugs. Alarmingly, the proposal also outlaws ‘pre-grant opposition’ that allows doctors and patients to provide information to their governments about patents they believe do not meet national rules, an important democratic safeguard. The proposal also requires the patenting of new versions of old medicines, even when the new versions offer no additional therapeutic benefits. It even requires patenting of surgical, therapeutic and diagnostic methods, which not only is unethical but also could increase medical liability and the cost of practice.”
It’s hard to find a person who is pleased with the current shape of the copyright system. In most countries. People who attempt to earn a living from this system also try to have digital monitoring systems work for them. Meanwhile, users are have less and less rights. „Lady with an Ermine” is laughing about our battle to use her image (see below). The public domain is shrinking. There are some efforts to expropriate some of its areas. Therefore, user’s rights are tightened. There are new proposals on the table that focus on finding a way to narrow fair use and to cut proposed exceptions for unprivileged people (impaired or just living in Global South).
Therefore, once again we ask the following question: what should a good copyright system look like? Is it possible to live without sharing? Will artists disapear if we make copyright less strict? Can we make culture without artists?
Tim Berners-Lee’s visit to Brazil last week has rekindled hopes for a civil society frustrated by six postponed votes on the bill known as “Marco Civil.” This groundbreaking federal legislation would guarantee civil rights in the use of the Internet, and is sometimes called a “Constitution for the Internet.” For the bill’s rapporteur, Representative Molon, having the inventor of the World Wide Web visit and publicly support the Marco Civil is an essential step in breaking the legislative logjam.
Representatives Waxman, Lee, DeLauro, Schakowsky, and Bass have sent a letter to Acting U.S. Trade Representative Demetrios Marantis supporting a proposal by Haiti to allow poor countries extra time to enact stronger rules on patent, copyrights, and other forms of intellectual property.
The issue involves the implementation of the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which requires countries to adopt certain intellectual property standards. For instance, the TRIPS Agreement requires 20 year patents on all inventions (including medicines) and long copyrights on most works (including textbooks). TRIPS rules give IP owners the ability to set monopoly prices for goods, which can be unaffordable for many, especially in poor countries. Therefore, Least Developed Countries (LDCs) were granted extra time to implement TRIPS when the WTO was established, and this transition period was subsequently extended.
For many non-U.S. parties and public interest advocates, the Trans-Pacific Partnership Agreement (TPP) intellectual property chapter is seen primarily as a threat. It is the latest step in a long running agenda to shift between policy making forums to achieve new global “maximalist” intellectual property policies that are not achievable in multilateral forums. This narrative is correct. And the real politics of the negotiation suggests that the most positive outcome for the IP chapter may be its (or the larger agreement’s) failure. But the agreement’s negotiations does offer opportunities to discuss what a positive IP chapter might look like. Here is one more idea in that larger dialogue – ban the use of Special 301 between its parties.
As the Trans Pacific Partnership creeps toward an end game (which appears far off) it may be worth spending more time discussing positive proposals for amending the proposal in various ways. I have previously written on ideas for positive proposals from the perspective of the non-U.S. parties, both in the form of a short list of proposals and in a longer jointly-written article. This note focuses on copyright proposals for the TPP that should be of interest to U.S. negotiators in order to bring their proposal in line with their expressed policy goals as well as with recent copyright reform proposals discussed in Congress and by the Librarian of Congress.
Buenos Aires (May 16, 2013).
ALIFAR, the Latin American generic pharmaceutical association, released a press release today announcing that it “decided to collectively support their associations from Chile, Mexico and Peru during TPP negotiations.” The announcement follows a three day meeting in Cartagena de Indias, Colombia. The release recounts that ALIFAR has issued a statement encouraging the Chilean, Mexican and Peruvian Governments “not to accept new and higher IP rights protection and enforcement standards that erode TRIPS’ flexibilities.” The statement continues:
“In that context, ALIFAR will join efforts with those advocacy groups sharing its strategic vision about intellectual property, access to medicines and public health.”
In this year’s Special 301 report, the United States Trade Representative listed Ukraine as a “Priority Foreign Country” (aka PFC), triggering a 30 day countdown to initiate an investigation under Section 301 of the Trade Act to determine trade sanctions. 19 USC 2412(2)(A). This is only the second time that the U.S. has threatened a WTO-member country with sanctions as a PFC. And thus it is an appropriate time to ask what restrictions the World Trade Organization places on the operation of the Special 301 program. As described more fully below, any sanction of Ukraine, including removal of General System of Preferences (GSP) benefits, would likely violate WTO rules. Indeed, the listing of Ukraine as a PFC, and the more general operation of “watch lists” threatening sanctions for intellectual property matters, could be challenged under the WTO even prior to any sanction actually going into effect.
The first Obama campaign for the presidency reached out to access to medicines campaigners to join the broad coalition he was building to gain the presidency. In response to their concerns, he declared that his presidency would “break the stranglehold that a few big drug and insurance companies have on these life-saving drugs,” and pledged support for “the rights of sovereign nations to access quality-assured, low-cost generic medication to meet their pressing public health needs under the WTO’s Declaration on Trade Related Aspects of Intellectual Property Rights (TRIPS).” The Obama administration has now produced five Special 301 reports cataloging its policies on intellectual property and access to medicines. In the first three reports, as detailed below, the administration received low marks on its commitments from public health campaigners.
This is a quick note about one of the items in this year’s Special 301 Report, released by USTR this morning. The report attacks the recent Indian Novartis ruling in unusually direct language. The ruling upheld the denial of a patent on Glivec for failing to meet patentability requirements under Section 3(d) of the Indian Patents Act, (a longer explanation is here). The Special 301 report has this to say on the matter:
One of the diverse sources from which the international intellectual property regime emanates is an annual unilateral adjudication of foreign government trade policies by the United States under the so-called “Special 301” program and report. For over two decades the report has functioned as one of the primary sticks for the U.S.’s “carrot and stick” approach to international intellectual property policy. The report weighs countries’ compliance with intellectual property standards and enforcement efforts—both those embedded in existing treaties and those the U.S. would like to see adopted. It threatens and rewards countries via inclusion on or delisting from its annual ‘Watch List’ (“WL”) and ‘Priority Watch List’ (“PWL”), and has the power to implement unilateral trade sanctions when U.S. demands are not met. The construction of the report requires the administration to take decisions on which countries it views as having “adequate” intellectual property protection. The report is thus a key expression of the trade policy of the U.S. in intellectual property matters.
[FFII press release (CC-NY-SA)] The EU Commission decided to keep the trade agreement with Singapore secret until it enters into force. With this decision the Commission betrays European citizens and democracy, according to the Foundation for a Free Information Infrastructure (FFII).
In December 2012 EU Trade Commissioner Karel De Gucht and Singapore’s Minister of Trade and Industry Lim Hng Kiang completed final negotiations on a free trade agreement between the European Union and Singapore. The FFII wanted to analyse whether the text of the agreement is compatible with human rights enshrined in the UN International Covenant on Economic, Social and Cultural Rights. The FFII noted the Commission had not published the text and asked where it could be found.