Home opinion-and-analysis Open Sauce US focus is on IP in TPPA talks

As secret talks continue apace to put in place the so-called Trans Pacific Partnership Agreement, an awareness is slowly building that the trade deal will benefit only one party — the US — to the detriment of the eight other countries involved.

One person who has done much to make others aware of the one-sided nature of the proposed pact, despite the secrecy that surrounds the negotiations, is Krista Cox (pictured), staff attorney for Knowledge Ecology International (KEI).

KEI, says Cox, is "a non-profit, non-governmental organisation that searches for better outcomes, including new solutions to the management of knowledge resources with a focus on the social justice and human rights context".

Earlier this year, KEI leaked the IP draft of the TPPA, leaving people in no doubt as to the extent to which the Americans are willing to go in order to subjugate the rights of others to their desire for increased profits.

iTWire recently highlighted the efforts being made by the New Zealand group NZRise during the round of talks in Vietnam in June to inform delegates about the nature of the talks; Cox was able to organise presentations to delegates during the most recent round of TPPA talks in Chicago. She has also written a detailed account of the talks in Chicago.

A framework agreement for the TPPA is expected to be announced by US President Barack Obama at the APEC summit in November.

iTWire spoke to Cox about the TPPA and the implications it has for the eight countries - Peru, Malaysia, Australia, Chile, Vietnam, New Zealand, Brunei, and Singapore - that are involved in the negotiations with the US.

iTWire: First, can you tell us a little bit about what you do.
Don Christie
Krista Cox: I'm the staff attorney for Knowledge Ecology International (KEI), a non-profit, non-governmental organisation that searches for better outcomes, including new solutions to the management of knowledge resources with a focus on the social justice and human rights context. We believe that knowledge resources need to be managed in ways that are more efficient, fair and responsive to human needs.

KEI undertakes and publishes research and new ideas, engages in global public interest advocacy, provides technical advice to governments and other groups, enhances transparency of policy making, monitors the actions of key actions, among other activities. My work at KEI, and my previous employment at Universities Allied for Essential Medicines (UAEM), has focused on intellectual property issues and its interplay with human rights and social justice.


iTWire: Who controls the TPPA negotiations? Is it only the US or are there other countries that have something more than a subservient role?

KC: The United States certainly has unequal bargaining power in the TPPA negotiations. Looking at the share of GDP of each country in the negotiations, the US possesses over 88 per cent of the share of the GDP of the collective total of the nine negotiating partners. Although we have heard that negotiators from countries such as Vietnam have become increasingly vocal about their positions, an official from the US State Department told me that at the seventh round of negotiations it seemed to be a three-way discussion between the US, Australia and New Zealand only. With regard to the intellectual property negotiations, one developing country negotiator confided in me that although they are trying to push back against the US position, that the US will ultimately get what it wants. Several negotiators have suggested that US negotiators are acting like bullies.

iTWire: Why do you think countries like Australia which were not part of the four/five nations that signed a treaty with the US sometime ago - my understanding is that the TPPA is a fleshing out of an earlier "free trade" deal - are getting involved in this deal?

KC: Australia, Chile, Peru and Singapore all have free trade agreements with the US currently. These countries have reportedly taken positions that they do not want to the TPPA intellectual property provisions to go beyond those contained in their current bilateral FTAs with the US, but that seems unlikely to most observers, since the US is always asking for more. This issue also raises a subsequent question about why they feel they need a new FTA, since they already have one. The countries that have not previously entered into an FTA with the US want to resist the more aggressive US proposals, but at the same time, they think the TPPA will have important market access benefits. However, for everyone in the negotiations, there is one logical reason to be involved. If the IP norms in the agreement are eventually going to be imposed on US trading partners, it may be better to be at the table now, to have more of a voice.

iTWire: In your write-up, you mention that the USTR is believed to have tabled the rest of its controversial provisions relating to data protection for pharmaceutical products, patent linkage and patent term extensions in Chicago. Any more detail?

KC: Unfortunately, the highly secretive nature of this trade negotiation makes it extremely difficult to obtain details about specific provisions. We have to rely on leaks which are not a reliable, steady source of information and those leaking information are often subject to security clearance revocations or criminal sanctions. USTR has refused to release the actual texts of these new controversial provisions to the public.

iTWire: Are these provisions in addition to the material that was leaked by your website in February this year?

KC: Yes, in the leaked US proposal from February 2011, the US did not table its most controversial IP positions. Instead, it left "placeholder text" for issues of patent term extensions, data protection for pharmaceutical products and patent linkage. It was not until the eighth round of negotiations in Chicago that the US tabled the remainder of its IP text. According to USTR, it has now finished tabling its IP text, though there are still other chapters on which it is working out its positions.


iTWire: What impact will these provisions have on the other eight participating countries?

KC: Unfortunately, the provisions relating to patent term extensions, data protection for pharmaceutical products and patent linkage will all have negative impacts on the other eight trading partners if accepted into the final TPPA text, particularly for developing countries. These provisions all work to delay generic entry of medicines into the market, allowing for a longer period of time of monopoly control. It is sickening that USTR claims that these provisions work as an "access to medicines strategy," when in reality, it will effectively deny many patients access to affordable, life-saving medicines.

iTWire: Is the TPPA still on target for a November release of a framework agreement?

KC: It depends who you talk to. The US is certainly remaining optimistic about announcing some sort of framework, though Barbara Weisel of USTR has refrained from specifying what, exactly, will be ready and what type of form the framework will take. My impression is that the US is the most optimistic about having a strong framework agreement ready by the APEC summit in November, while some other negotiators do not believe that the text has progressed enough. Of course, as the Vietnamese chief negotiator noted during the seventh round of negotiations in June, some chapters are more ripe than others.

iTWire: And for how long will talks go on after this before a full treaty is announced?

KC: Again, that depends! How quickly can the nine countries come to an agreement? How hard will the other countries push back on USTR's proposals?

iTWire: Is there any benefit at all for the other participants apart from the US?

KC: Presumably, there is some benefit to other participants. Some countries may find that the size of this free trade area is valuable to their interests. Others may find that there are chapters that will benefit their own current economies. For the US, the IP chapter is one of the most important areas (and some have indicated that it is, in fact, the number one priority for the US) and one that we believe they are least willing to negotiate, whereas a different chapter may be seen as having more value to another country and the US may be willing to make concessions in those other areas.


iTWire: How does one go about organising the presentation to delegates? Why is the US allowing this when the talks are so secret?

KC: In order to present, one must register in advance to be a stakeholder and one also must register to make a presentation well in advance of the negotiating round. We have been able to register for the stakeholder platform on the past two negotiating rounds in Ho Chi Minh City and Chicago because we have a network of other NGOs and academics and all try to keep each other abreast of registration information. The registration for the US round was largely secretive - I had contacted USTR numerous times to try to get information about the dates and location for the round, including specific dates for stakeholder events and, to my knowledge, the round and stakeholder registration was never formally announced on their website. You have to already know about the negotiating round (or know someone who has this information) in order to register to make a presentation.

The US claims that the TPPA negotiating forum has been transparent in part because of the stakeholder platform, but in reality it does not add any true dimension of transparency. The texts still remain secret and the presentations either have to rely on a leaked text (if it is available, such as the USTR proposal for the IP chapter) or speak generally about the topic one is interested in. Furthermore, attendance at the stakeholder platform is by no means mandatory for negotiators. During an extended round like that in Chicago, negotiations for certain chapters may be scheduled every day and the stakeholder platform day may be their one day "off" and, as a result, (negotiators) may choose not to attend. Attendance by negotiators seemed to significantly dwindle down as the day progressed. These presentations give USTR a mechanism by which they can claim transparency, even though the negotiations are still shrouded in secrecy.

I have one final grievance about the stakeholder platform in Chicago which I think highlights the inequity between academia/NGOs and large corporate interests. When I asked USTR whether an academic copyright expert could have a timeslot to speak at the platform, I was told that he would have to give his presentation at 6:20pm which was simply too late to make a presentation. USTR suggested that our organisation cede half of our time slot to Jamie Boyle, which we did, meaning we each only had 10 minutes to speak. At the actual stakeholder platform, however, three presenters were permitted to deliver their presenters at 6:20pm or later. Who did these presenters represent? The Biotechnology Industry Organisation (BIO), Nucorp Corporation and the US Chamber of Commerce. Each of these presenters was given a full 20-minute timeslot.

iTWire: To your knowledge has any government broken ranks and spoken openly about the talks?

KC: Some governments are more open than others. It's hard for negotiators from any country to speak openly and publicly about the negotiations partly because they need to protect their own country's interests in the negotiations, but also because there is intense pressure from the US to keep these negotiations secret. At the outset of the negotiations, the negotiating countries signed a memorandum of understanding/negotiating guidelines which included provisions directing secrecy. We have not yet obtained a copy of these negotiating guidelines and at the Chicago round stakeholder briefing, Barbara Weisel said the release of this document would have to be discussed and also re-emphasised that the negotiating texts would not be released to the public. With these negotiating guidelines in place, it is extremely difficult for other countries to speak openly about the negotiations.

iTWire: How does the US government benefit if all the gains from the TPPA are being diverted to private companies?

KC: In theory, the US benefits by the increase in profits and wages from companies with a strong US presence. In practice, USTR is heavily lobbied by private corporations and a number of representatives on the trade advisory committees, particularly those on the IP or pharmaceutical committee. The firms with the most influence are large companies, including big foreign-owned companies. What results is a mostly an anti-consumer agenda. When these agreements change US norms, or lock-in anti-consumer policies, it also directly harms people living in the US. For example, consumer groups in the US do not want extended copyright terms or high drug prices. But there are also all sorts of hidden costs. By allowing copyright and patent damages to be much higher, some innovative businesses will be hurt. USTR does not make much of an effort to understand this. One example is orphan copyrighted works. USTR is trying to make it impossible to solve the orphan works problem, by pushing for tough global standards on damages. This type of proposal shuts off access to knowledge and eliminates some interesting new business models for works not even available from copyright owners. It is also pretty much impossible to manufacture smartphones these days without infringing patents. Ramping up patent damages has consequences on both innovation and consumer prices.

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Sam Varghese

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A professional journalist with decades of experience, Sam for nine years used DOS and then Windows, which led him to start experimenting with GNU/Linux in 1998. Since then he has written widely about the use of both free and open source software, and the people behind the code. His personal blog is titled Irregular Expression.

 

 

 

 

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