November 13, 2013
Graphic posted on WikiLeaks’ page for its release of a chapter of the Trans-Pacific Partnership agreement
There are twelve countries that have been involved in the ultra-secretive process of negotiating the Trans-Pacific Partnership (TPP).
Six hundred corporate advisors have been given access to the text of this so-called free trade agreement while the public has been deprived of reading what is being negotiated on behalf of corporations. But that secrecy has been undermined significantly now that the media organization, WikiLeaks, has obtained and published a drafted copy of the intellectual property chapter in the agreement.
It was obtained after a TPP meeting in Brunei in August, and it shows country’s positions on the proposed provisions of the agreement.
According to the draft, the United States has been the most extreme negotiator in the process. The other eleven countries involved— Australia, Brunei, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam—have each pushed back on some of the most aggressive proposals for enforcement of intellectual property rights laws. However, Australia and New Zealand have often been more than willing to support the draconian measures proposed by the US.
The US has proposed "that its judicial authorities have the authority to order the seizure or forfeiture of assets the value of which corresponds to that of the assets derived from, or obtained directly or indirectly through, the infringing activity." New Zealand is the only other country that supports this section.
The US has also proposed that each country apply "criminal procedures and penalties," even "absent willful trademark counterfeiting or copyright or related rights privacy, at least in cases of knowing trafficking in" the following:
labels or packaging, of any type or nature, to which a counterfeit trademark 238 has been applied, the use of which is likely to cause confusion, to cause mistake, or to deceive; and counterfeit or illicit labels239 affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany the following:
a copy of a computer program or a literary work,
a copy of a motion picture or other audiovisual work,
documentation or packaging for such items; and
counterfeit documentation or packaging for items of the type described in subparagraph (b).]
This is only supported by the US.
"In civil judicial proceedings concerning patent infringement," the US would like countries to be able to have their "judicial authorities" increase any "damages to an amount that is up to three times the amount of the injury found or assessed." All countries involved in the negotiate process oppose this section.
Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, and Singapore each would like to be able to "limit the liability of, or the availability of remedies against, internet service providers" for copyright infringement that takes place on their communication networks. Both the US and Australia are opposed to this provision.
All countries except the US, Australia and Singapore oppose an entire section proposing a procedure for notifying internet service providers of copyright infringement.
The US and Australia want all countries negotiating to "ratify or accede" to the following agreements once the TPP is in force:
Patent Cooperation Treaty (1970), as amended in 1979;
Paris Convention for the Protection of Industrial Property (1967);
Berne Convention for the Protection of Literary and Artistic Works (1971);
Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (1989);
Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), as amended in 1980;
International Convention for the Protection of New Varieties of Plants [MX propose: (1961) as revised in 1972, 1978 or] (1991) (UPOV Convention);
Singapore Treaty on the Law of Trademarks (2006);
WIPO Copyright Treaty (1996); and
WIPO Performances and Phonograms Treaty (1996).
All the other countries are opposed (though footnotes indicate Mexico might be willing to support and Singapore will follow consensus).
The US wants other countries involved in the TPP to ratify the Patent Law Treaty of 2000. All countries besides the US are opposed.
The drafted chapter, especially where it indicates what the US supports and opposes, clearly shows how the agreement is being negotiated on behalf of some of the most powerful corporations in the world, like Monsanto, which has patents on corn and wheat. The process is also being heavily influenced by Hollywood and the music industry.
WikiLeaks editor-in-chief Julian Assange said the agreement reveals an effort to extend the "monopoly rights" of companies. It would serve corporations like Disney by making it easier to criminally prosecute individual for the downloading of films.
"If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs," Assange declared in a press release.
Knowledge Ecology International (KEI), which reviewed the drafted chapter ahead of its publication, posted an analysis of the TPP. KEI found it confirmed their fears that "negotiating parties are prepared to expand the reach of intellectual property rights and shrink consumer rights and safeguards." It is "bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation."
On secrecy around negotiations, KEI notes US negotiators "claim that the proposals need not be subject to public scrutiny because they are merely promoting US legal traditions. Other governments claim that they will resist corporate rights holder lobbying pressures. But the version released by Wikileaks reminds us why government officials supervised only by well-connected corporate advisors can’t be trusted."
It would be easier for corporations to "limit competition" and "raise prices in markets for drugs." Global standards for "obtaining patents" would be lowered, as rules would permit the filing of patents in developing countries, extend the term of patents for longer than 20 years and allow companies to rely on "test data" to prove drugs are "safe and effective."
The US strongly supports measures that would expand or increase monopolies and make drugs "more expensive and less accessible," according to KEI. It also would like to "change national and global norms" by expanding patents on "diagnostic, therapeutic, and surgical methods for the treatment of humans or animals."
This section of the agreement shows there is clear tension between the US and other countries over patenting such methods:
[US: Consistent with paragraph 1] each Party [US propose; AU/NZ/VN/BN/CL/PE/MY/SG/CA/MX oppose: shall make patents available for inventions for the following] [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: may also exclude from patentability]:
(a) plants and animals, [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose: other than microorganisms];
[JP oppose: (b)diagnostic, therapeutic, and surgical methods for the treatment of humans or animals [US propose; AU/SG/MY/NZ/CL/PE/VN/BN/CA/MX oppose: if they cover a method of using a machine, manufacture, or composition of matter]; [NZ/CL/PE/MY/AU/VN/BN/SG/CA/MX propose:] and
(c) essentially biological processes for the production of plants or animals, other than non-biological and microbiological processes for such production.]
[MX propose: (d) and the diagrams, plans, rules and methods for carrying out mental processes, playing games or doing business, and mathematical methods as such; software as such; methods to present information as such; and aesthetic creations and artistic or literary works.]
Some of the countries would like to exclude the above from "patentability," while the US, on behalf of medical companies, would like to patent the methods.
Additionally, disputes over copyrighted content distributed on the Internet would be settled by an international law and may be contrary to local laws of countries.
Expert in intellectual property law, Matthew Rimmer, told Philip Dorling of The Age in Australia, "The draft was 'very prescriptive’ and strongly reflected US trade objectives and multinational corporate interests 'with little focus on the rights and interests of consumers, let alone broader community interests.’"
"One could see the TPP as a Christmas wish-list for major corporations, and the copyright parts of the text support such a view," Rimmer added.
The allure of being part of a major legal and economic bloc that includes the United States may be too much for countries. It has been the position of the United States to be the most zealous in its support of corporations and hopefully persuade other countries, who do not want to see the secret process fall apart, come around to endorsing extreme proposals.
Reprehensibly, US media organizations like The New York Times have endorsed the deal, "A good agreement would lower duties and trade barriers on most products and services, strengthen labor and environmental protections, limit the ability of governments to tilt the playing field in favor of state-owned firms and balance the interests of consumers and creators of intellectual property. Such a deal will not only help individual countries but set an example for global trade talks."
The Times had not even read the deal. In fact, it indicated no opposition to the incredible secrecy around negotiations. Yet, days ago, it decided it would probably be good for the US and its relations with other Asian countries so let’s champion its great potential.
Thanks to WikiLeaks, it is now clear what the US aims to do with the TPP, and media organizations that have been silent about the deal and chosen to ignore what has been secretly happening between countries conspiring with the US on behalf of corporation should reconsider their decision to not cover this unfolding process.