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.”
India, like South Africa, is concerned about the Bilateral Investment Treaties (BITs) it has signed in the past. India has put out a draft its New Model text for BITs negotiations, Now posted online:
The last date for submission of comments is 10th April.
[Maira Sutton, EFF, Link (CC-BY)] “We are deeply concerned about this situation in which important decisions for our nation’s culture and society are being made behind closed doors” reads a joint public statement from Japanese activists who are fighting the copyright provisions in the Trans-Pacific Partnership (TPP). A group of artists, archivists, academics, and activists, have joined forces in Japan to call on their negotiators to oppose requirements in the TPP that would require their country, and five of the other 11 nations negotiating this secretive agreement, to expand their copyright terms to match the United States’ already excessive length of copyright.
Introduction: Recently the United States Trade Representative (USTR) released a memo to reporters with Q&A’s on Investor-to-State Dispute Settlement (ISDS). ISDS is a mechanism by which foreign investors can challenge national governments, alleging that the government violated their investor rights. These rights include the right to be fairly compensated for expropriated property and to non-discriminatory treatment, but also the right to a “minimum standard of treatment,” which includes “fair and equitable treatment” and “full protection and security” and the right to be free from “performance requirements.”
Earlier this month the Progressive Congressional Caucused released principles for guiding trade negotiations intended to “create a net increase of good American jobs, spur more balanced trade between partners, and improve governance, public health, and environmental protections around the world.” The full Principles for Trade are here (PDF). The section titled “Secure Affordable Access to Essential Medicines and Services” follows:
[Cross posted from Heesob’s IP Blog, Link] One of the controversies in implementing the KorUS FTA is whether biological products are subject to the patent linkage obligation of the KorUS FTA. The debate was provoked by the Korean government’s proposal which applies the patent linkage to biologics. But it is unclear if the FTA text imposes such an obligation.
Chapter 18 (IPRs) has no definition of pharmaceutical products for the patent linkage, only the provision of patent term extention defining a “new pharmaceutical product” as “a product that at least contains a new chemical entity that has not been previously approved as a pharmaceutical product in the territory of the Party.” See Article 18.8:5 FN21. In contrast, Chapter 5 (Pharmaceuticals and Medical Devices) makes clear that “pharmaceutical product or medical device means a pharmaceutical, biologic, medical device, or diagnostic product.”
Summary: Intellectual property (IP) protections proposed by the United States for the Trans-Pacific Partnership Agreement (TPPA) have sparked widespread alarm about the potential negative impact on access to affordable medicines. The most recently leaked draft of the IP chapter shows some shifts in the US position, presumably in response to ongoing resistance from other countries. While some problematic provisions identified in earlier drafts have been removed or mitigated, major concerns remain unresolved.
This week, the 16 Asian and Pacific countries negotiating the Regional Comprehensive Economic Partnership (RCEP) are meeting in Thailand. This trade agreement will include Australia, Brunei, Cambodia, China, India, Indonesia, Laos, Malaysia, Myanmar, New Zealand, Japan, the Philippines, Singapore, South Korea, Thailand, and Vietnam. According to the RCEP’s Guiding Principles stated at the beginning of the negotiations in 2012, the agreement will include an intellectual property chapter to promote “cooperation in the utilization, protection and enforcement” of IPR.
Japan’s proposed intellectual property text, which was leaked and has been posted online by KEI, includes numerous TRIPS Plus provisions. (South Korea is reported to be advocating for TRIPS-Plus provisions too.) Many of the provisions would be especially harmful to the Indian generic industry, which supplies the majority of medicines used by people in developing countries.
Last week the Obama Administration released its Budget for the upcoming fiscal year, which includes a number of policy proposals designed to save money for both the government and taxpayers. Its proposal to shorten the monopolies granted to brand name biologic drugs – and thereby hasten generic competition – would directly clash with the provisions the Administration seeks in the Trans Pacific Partnership.
Prepared statements from Chairman Orin Hatch, Ranking Minority Leader Wyden, and Ambassador Froman, and video of the full hearing are here. Actually, most of the hearing is on the video, but the committee edited out the protestors who disrupted the hearing. Democracy Now has the video and transcript of the protest here.
During Q&A, many of the Senators brought up enforcement of trade agreements as a very important area for USTR to focus its energies. Two Senators, in particular, indicated they wanted the U.S. to be been more active in trade disputes over intellectual property, through either FTA frameworks or bilateral measures:
In August 2014 a memorandum and supporting documents published on the website www.tppnocertification.org exposed how the United States uses a process called ‘certification’ to require other countries to implement the US’s interpretation of those other countries’ obligations under their free trade treaties.
Unless those countries’ comply, the US will not exchange the diplomatic notes that are necessary to bring the agreement into force. A number of examples showed how the US has used certification to intervene actively in other countries’ legislative processes in recent years.