New leaks of the negotiating text of the Trans Pacific Partnership trade agreement reveal that the Obama administration is pushing forth radical proposals that critics say will threaten to harm consumers and innovators while rewarding big drug companies and "extremist copyright" policies.
Negotiators for the 12-nation trade pact failed last week to reach a final agreement at their meeting in Maui, a development Lori Wallach, director of Public Citizen's Global Trade Watch, cheered as "good news for people and the planet."
The new leaks are of the Intellectual Property Chapter, which includes provisions on copyright and patents, and were released this week by Knowledge Ecology International (KEI). The group says that the "text reflects the state of negotiations directly prior to" that Maui meeting.
James Love, director of the Washington, DC-based social justice organization, stated Tuesday that
[t]he May 11, 2015, text includes country positions, and reveals extensive disagreements among parties, as well as the isolation of the United States as the country that continues to be the most aggressive supporter of expanded intellectual property rights for drug companies, publishers and other companies.
The proposals contained in the TPP will harm consumers and in some cases block innovation. In countless ways, the Obama Administration has sought to expand and extend drug monopolies and raise drug prices. The astonishing collection of proposals pandering to big drug companies make more difficult the task of ensuring access to drugs for the treatment of cancer and other diseases and conditions.
The widely reported dispute over the number of years of protection for biologic drug test data is only one of dozens of measures that significantly expand the power of big drug companies to charge high prices. Taken together these provisions will take the public down a road of more and more rationing of medicines, and less and less equality of access. It could have and still can be different. Rather than focusing on more intellectual property rights for drug companies, and a death-inducing spiral of higher prices and access barriers, the trade agreement could seek new norms to expand the funding of medical R&D as a public good, an area where the United States has an admirable track record, such as the public funding of research at the NIH and other federal agencies. Many people reading the provisions released today will appreciate how misguided and wrong are the USTR’s values and negotiating objectives.
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Jeremy Malcolm of he Electronic Frontier Foundation explains some of the "restrictive U.S. proposals" on copyright that, based on the leaked texts, appear to remain from earlier drafts, including
- The prospect of the TPP requiring massively disproportionate damages awards for copyright infringement remains fully alive. The text continues to authorize a court to consider “any legitimate measures of value the rights holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.”
- This is in addition to offering pre-established damages at the election of the rights holder, which are to be set at a level not only to compensate the rights holder but also to deter future infringements. Countries that do not offer pre-established damages must instead allow their courts to order “additional damages,” such as exemplary or punitive damages, that go beyond compensating the rights holder for its actual loss.
- The text allows authorities to seize not only “suspected infringing goods” but also “materials and implements relevant to the infringement,” such as a server used to host infringing materials. In criminal cases, authorities are also explicitly authorized to destroy those goods, and the U.S. is opposing that this be limited to goods that have been “predominantly” used in the creation of infringing copies—thus a server could be seized and destroyed even if it hosted many non-infringing websites.
- The text continues to define “commercial scale” infringement, being the threshold over which criminal sanctions apply, to include “significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace.” Such provisions could be targeted at fans offering non-profit services such as native language subtitling for films, to give just one example.
Mike Masnick writes at Techdirt that "it appears that the US is still pushing for extremist copyright and patent policies and working hard to protect those who deliberately abuse such tools. It's fairly incredible how the USTR wants to deliberately support those who admittedly abuse those laws for anti-competitive purposes."
Among the innovators who are calling out the dangers the TPP poses with regard to intellectual property rules is Canadian documentary filmmaker Brett Gaylor, who writes Thursday that his own "2008 film Rip! A Remix Manifesto would have been illegal to make under the TPP."
"Sadly, the current trend is towards rules that lock up works of art and stifle independent creators' output," Gaylor writes, further warning that "the TPP will transform Canada's intellectual property rules into an alarmingly large barrier to free speech and free expression."
EFF's Malcolm said in a statement that what the leaks reveal is not unsurprising given the lack of stakeholders at the negotiating table:
A bad process results in a bad deal. Without users at the negotiating table, it's no wonder that the TPP is trampling on their rights. The latest leak text gives us no comfort that the final agreement will respect the concerns of ordinary citizens from around the Pacific rim. It's time for the negotiators to recognize a bad deal and walk away. If the cost of new market access is the loss of sovereignty over important areas of domestic policy such as intellectual property, that's too high a price to pay.
EFF, KEI, Public Citizen, and Techdirt are members of the Fair Deal coalition, which advocates for "fair deal [...] that opens up trade opportunities for TPP member states but doesn’t force copyright and other IP-related changes on us that could damage our future."