In recent years, the number of bilateral and regional trade negotiations has been increasing. Many of these negotiations involve both developed and developing countries, and the ensuing free trade agreements often contain extensive provisions on the protection of intellectual property rights. These provisions usually impose a higher level of protection for intellectual property rights than is required under the Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS Agreement. These so-called “TRIPS-plus” provisions delay generic market entry and competition. As such, they run counter to UNITAID’s efforts to increase the affordability of, and access to, medicines and other medical products.
The New Zealand Parliament is considering the adoption of plain packaging of tobacco products with the introduction of the Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill 2014 (NZ). There has been strong support for the measure amongst the major parties – including the National Party; the Maori Party; the Labor Party; and the Greens. The New Zealand parliamentary debate has considered matters of public health and tobacco control; the role of intellectual property law; and the operation of international trade and investment law.
Two representatives have submitted a joint comment to the U.S. Trade Representative in response to its request for input on its proposed Public Interest Trrade Advisory Committee (PITAC). Reps. Davis and Larsen urge that the public advisory system should promote “three key values: balance, participation and inclusion.”
Yesterday, I was nominated by the Program on Information Justice and Intellectual Property for membership on the Industry Trade Advisory Committees dealing with Chemicals, Pharmaceuticals, Health/Science Products and Services (ITAC 3), Intellectual Property Rights (ITAC 15) and the Public Interest Trade Advisory Committee (PITAC). I was swiftly rejected by the coordinator of the ITACs because “Academic institutions, unless trading in educational services, do not qualify for ITAC membership.”
This comment is submitted on behalf of the undersigned legal academics. We are members of the Project on International Intellectual Property and the Public Interest, coordinated by the Program on Intellectual Property and the Public Interest (PIJIP). We write to provide the following comments on the Public Interest Trade Advisory Committee (PITAC) proposal.
A world leader in public health, Australia introduced plain packaging of tobacco products. Julia Gillard – the Prime Minister of Australia at the time responsible for plain packaging – has observed: “Since 1 December 2012, cigarettes packets in Australia do not sparkle with gold or silver and do not have any other way to catch and please the eye. They’re a uniform drab colour, with most of the box taken up with the most graphic health warnings. Gruesome pictures of disease perhaps better described as real pictures of the ugly truth.”
The public policy measure was designed to implement Australia’s obligations under international health law, and to address the public health impacts of tobacco. In particular, the measure was intended to address misleading and deceptive advertising by the Mad Men of the tobacco industry, which targeted consumers, including vulnerable populations, like children.
Excerpt from a joint position paper by the Commons Network, Medicines in Europe Forum, International Society of Drugs Bulletins, Health Action International Europe, UAEM Europe, and Salud Por Derecho. The full paper is posted here, under a Creative Commons license (CC-BY).
…The industry wish list includes several proposals to achieve strengthened intellectual property rules:
The USTR recently issued two notices seeking membership applications for its Trade Advisory Committee System. One notice seeks “Industry” advisors and another seeks those for a new “Public Interest” committee. Each notice announces that the Committees will be established “[p]ursuant to the Federal Advisory Committee Act, as amended (5 U.S.C. App.).” The Committees also operate under Charters which state that the Committees will be operated “in accordance with the provisions of the FACA, . . . with the exceptions set forth in the Trade Act.” That last line, it turns out, is key. The Trade Act gives USTR broad authority to exempt the operation of these committees from FACA open government requirements, which USTR uses habitually. One positive reform of the system would be for USTR at its discretion — or for Congress through the force of law — to apply all of the provisions of FACA to USTR’s advisory committees — just as would apply if these committees were being consulted on rule making by any other federal agency.
What’s your definition of the “public interest” when it comes to law and lawmaking? Is it a unitary concept, where we consider the good of society as a whole? If so, you might think that the public’s interest is in a “public interest” which encompasses “cross-cutting issues” that transcend narrow considerations and allows debate about and among competing interests. On the other hand, do you view the “public interest” more narrowly? If so, you might view the public’s interest as served by placing “public interest” in a box separate from other interests, like environmental, labor or intellectual property policy. From that perspective, the “public interest” is just another consideration in the panoply of considerations that make up society.
Congratulations on your recent appointment as Chair of the Senate Finance Committee. As technology companies with business models inextricably linked to the Internet, we admire your work as a staunch defender of users and online rights—most prominently when you led the fight against SOPA and PIPA in Congress.
Today we write about another emerging front in the battle to defend the free Internet — massive trade deals like the Trans-Pacific Partnership. These highly secretive, supranational agreements are reported to include provisions that vastly expand on any reasonable definition of “trade,” including provisions that impact patents, copyright, and privacy in ways that constrain legitimate online activity and innovation. We applaud your prior efforts as Senator to bring transparency and public participation to trade negotiations. We strongly urge you to uphold and expand this dedication into your new role.
We write to express our deep concern with reports about proposed provisions regarding intellectual property, investment and pharmaceuticals reimbursement in the Trans-Pacific Partnership negotiations (TPP). We believe those provisions if included in the final agreement, would severely threaten access to affordable medicines in the Asia-Pacific region, particularly in developing countries, and could have potentially serious consequences for patients in developed countries, including the United States.
A series of reports suggest that those provisions would go beyond the obligations under the Trade-Related Aspect of Intellectual Property Agreement (TRIPS) and would backtrack from the principles in the Bipartisan Agreement of May 10, 2007. Such measures could limit generic competition, lead to higher drug prices, and compromise access to affordable medicines.
USTR has proposed a differential treatment approach to the Trans Pacific Partnership intellectual property negotiations. The text would continue to include numerous TRIPS-Plus obligations favorable to branded pharmaceutical companies that restrict countries’ ability to craft laws and execute policies intended to maximize access to generic medicines. Analyses of the provisions found in the most recently leaked draft are available at infojustice.org/tpp-leak-analysis. USTR’s differential treatment proposal would exempt countries that do not meet the “high income” classification as defined by the World Bank – currently $12,616 GNI per capita – from three (not all) of these provisions. Malaysia, Mexico, Peru, and Vietnam do not meet the High Income threshold; though it has been pointed out that Malaysia and Mexico (both “Upper Middle Income” countries) are approaching it.