Backgrounder for Reporters on #TPP and Trade: What do Countries Get from the US IP Chapter?

Written remarks of Sean Flynn, American University Washington College of Law Program on Information Justice and Intellectual Property

Press briefing on the Trans-Pacific Partnership Agreement negotiation, May 2, 2012, 2pm EST. Hosted by Public Knowledge.

I was asked to provide a brief primer on TPP and the link between its IP chapter and more traditional trade benefits. I think two main points are worth noting in any background on TPP, both of which point toward the huge barriers the U.S. is facing in getting a very maximalist IP chapter into the agreement. I conclude with a few questions trade reporters may consider asking country representatives.

1.  First, for most TPP members, there are little or no traditional trade benefits (e.g. in terms of improved market access from decreased tariffs) that will come from signing TPP.

This was made clear in the case of Chile at a seminar PIJIP hosted during the Santiago intersessional last month. Several very high level current or former trade officials – including Senator Ricardo Lagos – widely talked about as a presidential candidate – told a public audience that Chile would gain no market access in any TPP country because it already has FTAs with every member of the region. This may make Chile highly reticent to sign a maximalist IP chapter that it sees as all costs, no benefit to its local economy.

The same can be said for Australia, Singapore and Peru, who also have FTAs with the U.S. Look for these countries to tow a very hard line against elements of the US proposal that exceed their FTA.

And the rumor is the U.S. is offering nothing meaningful in terms of market access to New Zealand, and it has no FTA to begin with. So that country has little interest in signing on to any TRIPS-plus commitments on IP, a position it essentially took in a leaked white paper early in the negotiations.

So that leaves Vietnam, Brunei and Malaysia who might secure additional US market access from TPP, but who also have the most to lose from the IP provisions since right now they are starting from TRIPS but being asked to move to a KORUS+ and ACTA+ regime.

One benefit many talk about is the TPP expanding to include China and India. But how would you do that with a maximalist IP chapter that would overturn China’s win in the WTO and require amendment of India’s 2006 patent law?

2.  The second point is that the TPP IP chapter is a US driven proposal that is part of the maximalist enforcement agenda, which stands opposed to the so called “development agenda” being debated at WIPO and the WHO.

The maximalist agenda attempts to harmonize all countries to very high (US or above) norms on proprietor rights, but does nothing to harmonize limitations and exceptions needed to promote public interests and particular needs of developing countries.

At its core – the development agenda is the opposite. In open and multilateral forums, it is calling for a halt of maximalist standardization of protections, which is what TRIPS was about, and instead focusing on the harmonization of limitations and exceptions.

The development agenda is not just about developing countries. It is also the agenda of innovation and digital rights and culture. Entering this pact as the US desires could inhibit more positive developments at WIPO and at home that would be more carefully tailored to the development agenda.

[For more on this theme, see Public Interest Analysis of the TPP IP Chapter]

So here are some questions reporters might ask country teams following from these points: