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.
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.
Yesterday the Cato Institute held an event titled “Intellectual Property in the Trans-Pacific Partnership: National Interest or Corporate Handout?” The panel, moderated by Cato’s Simon Lester, featured Tom Giovanetti (Institute for Policy Innovation), William Watson (Cato), and Margot Kaminski (Yale Information Society Project). The video of the event is here.
Lester opened the panel, noting that in the 1990s, trade experts discussed intellectual property in vague terms, not really understanding the particulars. At the time, bringing IP into the trade realm increased support for free trade. Today, however, people have realized the implications of stronger intellectual property protections, and it is causing trouble. The inclusion of intellectual property in the trade regime is generating opposition to trade agreements as much as it increasing support for them. Lester raised the possibility that debates over global intellectual property norms are better left to WIPO. He asked the panelist to address the issue of whether trade should remain part of the trade realm, and if so, what the rules ought to be.
USTR demands for hyper-secrecy in the Trans Atlantic Trade and Investment Partnership (TTIP) continue to be a major block to continuing negotiations. The current issue under discussion is access to US proposals by EU member states — which are of course themselves sovereign countries. The member states are demanding access to the text of proposals that would constrain their domestic law making, as they ave had in all other EU trade agreements (e.g. the recent EU-Canada FTA). But Inside US Trade (2/28/2014) reports that USTR Froman has offered only that “he might be able to allow the European Commission to share the U.S. negotiating documents it receives if they were accessible only in a secure reading room.”
The intellectual property chapter of the Trans-Pacific Partnership Agreement that Wikileaks posted in November signaled over 100 areas of disagreement. Those ‘square brackets’ have been rapidly disappearing in the lead-up to the ministerial meeting in Singapore this weekend, according to Professor Jane Kelsey, who is in Singapore monitoring the negotiations.
‘By the start of the officials’ meetings on Monday the 100-plus points of disagreement in last year’s intellectual property text had already been whittled away. I understand there have been further major decisions already this week, even before the ministers meet’, Kelsey said.
United States Trade Representative Froman announced yesterday that his agency will create a public interest trade advisory committee (PITAC) for academics and NGOs as part of the trade advisory committee structure. But instead of including public interest representatives within Industry Trade Advisory Committees, USTR has accepted the proposal of industry representatives to segregate non-industry views into a separate committee.
[Cross posted from susanchalmers.com] To those familiar with the United States’ approach to intellectual property rights (“IP”) and trade policy, it will come as no surprise that the US is pressing other countries to give IP owners more in the Trans Pacific Partnership Agreement (“TPP”), that is, more powerful economic rights and more power to enforce them.
Some, however, may be surprised by one way in which the United States Trade Representative (“USTR”) is angling to satisfy this aim through the TPP.