What We Always Knew: The Trans-Pacific Partnership and Intellectual PropertyBinoy Kampmark
“This is about increasing the ability of global corporations to source wherever they can at the lowest cost.”
Michael Wessel, The Guardian, Oct 9, 2015
Diplomats, trade officials and delegations of the twelve negotiating countries behind the Trans-Pacific Partnership
Agreement were always doing one thing even as their respective masters were doing another. As the boardroom was carving
out democracy and sovereignty, the executives were selling vassalage as well worth it. As President Barack Obama, mask
off, was insisting on taking the globe, as far as it he could, further into an American trade orbit, free trade was
being sold in all signatory countries as an automatic godsend.
Secret during the entire phase of negotiations, it has only been the workings of WikiLeaks that has enabled global
citizens to get a glimpse about what exactly we are in for. The intellectual property chapter has now been released in
three phases, the first in November 2013, and the final on October 9, 2015.
The latter version, dated October 5, is the near, if not actual final product, one which will be sold to the twelve
respective parliaments when respective ratification and domestic legislation will have to be enacted. In every sense of
the term, it is a corporate seizure at the expense of a citizen’s worth, because obviously, having extended copyright
terms, paying more for pharmaceuticals, extending the length of patents, and attacking the generic drugs industry is
exactly what the general public need.
As the Electronic Frontier Foundation noted, the IP chapter “confirms our worst fears about the agreement, and dashes
few hopes we held out that its most onerous provisions wouldn’t survive to the end of the negotiations.”
Coming to the chapter with fresh eyes allows for an initially easy deception. The language in parts is bland and
general, taking cognisance of the IP rules for the “mutual advantage of producers and users” to “facilitate the
diffusion of information”. All this, it is suggested, is to aid access to the wonderful world of diversity that is the
public domain.
The public domain, however, is evidently seen to be one heavily circumscribed by both the State and its corporate
partners. The treaty entitles signatories to restrict information, for instance, through trial proceedings that would be
“detrimental to a party’s economic interests, international relations, or national defence or national security”.
Signatory states already have similar domestic restrictions designed to curb such information mechanisms as freedom of
information.
Privacy is also shot through, be it in instances when authorities in signatory states can provide names and addresses of
importers in violation to owners of that intellectual property. The entire chain of production and use is targeted, with
information including “any person involved in any aspects of the infringement or alleged infringement”. Third persons
said to be “involved in the production and distribution of such goods or services and of their channels of distribution”
are also netted.
As the text is chewed further, the restrictions, notably in terms of public use, start mounting. In fact, the public
seem to be a defanged, inconsequential presence. Copyright, for instance, is said to be matter for the parties to
balance within their domestic regulations, but the agreement does not bind parties to aim for that goal. There is no
mandatory fair use model provision to speak of.
As for how long such copyright terms would run, a protection period of 70 years is offered after performance or
publication, and if not published within 25 years after creation, for 70 years after that creation. Better, though not
by much, than the absurdly lengthy 120 year period initially proposed by the US Trade Representative.
Reduced then, to its barest form, only a few provisions identified by the EFF can be deemed to be less inhibitive than
what was found in initial drafts. Extending copyright protections to “buffer” copies in a computer system was eventually
dropped by the USTR. The parallel importation of cheaper versions of copyright works will be permitted, complemented by
an express authorisation of devices that bypass regions (EFF, Oct 9).
Leaving aside the evident influence of Hollywood in the entire affair, the heft of the pharmaceutical industries was
also made apparent. Stifling innovation in its name, the chapter effectively entrenches the most anti-competitive
practices of all by enforcing oligopolies with the grace, or gracelessness, of law. “The TPP,” argues Peter Maybarduk,
Public Citizen’s Global Access to Medicines Program Director, “would cost lives.”
The implications are extensive, but a few points should be noted. Patent Term adjustments (Article QQ.E.14), extensions
which delay the entry of generic medicines while also limiting access to cheaper medicines, looms large. Speed is of the
essence, with parties undertaking to “make best efforts to process applications for market approval of pharmaceutical
products in an efficient and timely manner, with a view to avoiding unreasonable and unnecessary delays.”
The state parties are given considerable leeway in terms of making “available a period of additional sui generis
protection to compensate for unreasonable curtailment of the effective patent term as a result of the marketing approval
process.”
Stifling measures regarding the release of generic drugs into the market is provided by QQ.E.15, which enables parties
to “adopt or maintain a regulatory review exception for pharmaceutical products”. In theory, this replicates provision
in states where generic drugs are permitted as exceptions which enable them to be made in small quantities before the
patent expires. Well and good, but for the fact that any such review must be mindful that the legitimate interests of
the patent owner shall not be unreasonably prejudiced.
Furthermore, market exclusivity is granted for pharmaceutical products for “at least five years” – a means of ensuring
that generic drug registration will be delayed for a designated period of time. Third parties are not permitted to
market the same or similar product using the same or other data regarding the safety and efficacy of that product. Even
if the parties accept applications for generic medicines within those five years, marketing approval can only take place
after the five year period has expired.
The insidious linking between the market, marketing approval and the patent, gleams with nefarious consequence before
the sickbed of humanity. It will also be distressing to some US Democrats who had hoped to build upon the May 10, 2007
deal made under the Bush administration. The “May 10 Agreement” had taken umbrage with patent term extensions and longer
marketing exclusivities.
At this point in time, as the clock ticks over respective domestic enactments by the 12 parliaments and congressional
bodies, the political classes within the party states will have to consider whether a corporate dictated subservience,
legally sanctioned, is better than such alternatives where the commonweal can prevail.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.
Email: bkampmark@gmail.com