[Meera Nair, Fair Duty, Link (CC-BY)] ]Last week, international negotiators met in Ottawa to further discuss the Trans-Pacific Partnership (TPP) agreement. With the usual shroud of secrecy, few details regarding agenda and outcomes were released for public consumption. Nevertheless, based on a leaked copy of the chapter relating to intellectual property, there is sufficient reason for concern with respect to copyright. As reported last week (see Electronic Frontier Foundation here, Michael Geist here, Public Knowledge here, and VICE here) Canada’s copyright regime is likely to be challenged on at least two fronts:
[Jeremy Malcolm and Maira Sutton, EFF, Link (CC-BY)] Due to the unprecedented secrecy surrounding the Trans-Pacific Partnership (TPP) negotiations taking place this week in Ottawa, there was no formal opportunity to engage with negotiators about the concerns that EFF and many others have expressed—over issues such as the extension of copyright protection by 20 years, and the delegation of ISPs as copyright police with the power to remove content and terminate accounts.
With the alternative of allowing this round of negotiations to proceed without any public input on these important issues (and bearing in mind the maxim “If the mountain won’t come to Muhammad…”), EFF and its partners in the Our Fair Deal coalition decided to hold a side event of our own next to the venue of the negotiations. TPP negotiators were invited to watch keynote talks by two of Canada’s top copyright experts.
[Jeremy Malcolm and Maira Sutton, EFF, Link, (CC-BY)] Today, EFF and its partners in the global Our Fair Deal coalition join together with an even more diverse international network of creators, innovators, start-ups, educators, libraries, archives and users to release two new open letters to negotiators of the Trans-Pacific Partnership (TPP).
The TPP, although characterized as a free trade agreement, is actually far broader in its intended scope. Amongst many changes to which it could require the twelve negotiating countries to agree are a slate of increased rights and privileges for copyright rights holders.
Negotiators from the 12 countries negotiating the Trans Pacific Partnership are meeting in Singapore this week. Much of the press coverage has focused on differences between the U.S. and Japan over agricultural subsidies that have been difficult to overcome. However, there have been new developments on intellectual property as it relates to access to medicines.
Negotiators had previously been discussing a differential treatment plan, under which the TPP countries still “developing” would have been exempt from certain obligations on patent and data protection. This plan is reportedly still on the table.
Eli Lilly’s challenge of Canadian judicial decisions under NAFTA’s Investor-State Dispute Settlement (ISDS) is leading to concerns about ISDS in other trade negotiations. The company alleges that Canada violated its NAFTA obligation to grant patents on any inventions that “are new, result from an inventive step and are capable of industrial application” when courts found Eli Lilly’s drugs to fall short of Canadian utility standards.
The following excerpt is taken from a letter sent to USTR Michael Froman by AARP, AFL-CIO, AFSCME, the Alliance for a Just Society, Alliance for Retired Americans, Center for Medicare Advocacy, Inc., Center on Budget and Policy Priorities, Consumers Union, Medicare Rights Center, National Committee to Preserve Social Security and Medicare, and the National Senior Citizens Law Center.
Most of the letter discusses the medicines pricing provisions outside of the IP chapter. The section dealing with TPP and pharmaceutical patents is excerpted below.
Today I published a report with R Street Institute calling for Congress to restore constitutional copyright through significantly shorter copyright terms. I hope you check it out, as it delves into the impact of our unusually long copyright laws among a variety of aspects of society, historical preservation, orphan works, remix music, and the ability to make new movies based upon the public domain like Disney. Report full is here: http://www.rstreet.org/wp-content/uploads/2014/04/RSTREET20.pdf.
INTRODUCTION: Copyrights are intended to encourage creative works through the mechanism of a statutorily created limited property right. Under both economic and legal analysis, they are recognized as a form of government-granted monopoly.
At his joint press conference with Malaysian Prime Minister Najib Razak, Obama addressed concerns that intellectual property provisions in the Trans Pacific Partnership (TPP) will lead to “higher costs of medical supplies.” His response was that people who raise concerns about TPP intellectual property provisions and access to medicines have a “lack of knowledge” about what is happening in (secret) negotiations, and are therefore prone to “rumors” and “conspiracy theories.”
Obama’s comments could almost be considered an argument in favor of greater transparency, though that was obviously not his intent.
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.
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.
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.