IP Protection Provisions in Trans Pacific Partnership Mar Potentially Beneficial Agreement

The Trans-Pacific Partnership (TPP), also known as the Trans-Pacific Strategic Economic Partnership Agreement, is a potentially favorable multilateral understanding for liberalising trade among member countries (Brunei, Chile, New Zealand, Singapore, Australia, Malaysia, Peru, Japan, United States and Vietnam). Currently being advanced by the  office of the US Trade Representative (USTR), the TPP started out as the Pacific Three Closer Economic Partnership (P3-CEP) between Singapore, Chile and New Zealand in 2002. Brunei joined in 2005, and the trade bloc became known as Pacific-4 (P4).

Trans Pacific Partnership Agreement Leaders

Leaders of the member states of the Trans-Pacific Strategic Economic Partnership Agreement (TPP). Pictured, from left, are Naoto Kan (Japan), Nguyễn Minh Triết (Vietnam), Julia Gillard (Australia), Sebastián Piñera (Chile), Lee Hsien Loong (Signapore), Barack Obama (United States), John Key (New Zealand), Hassanal Bolkiah (Brunei), Alan García (Peru), and Muhyiddin Yassin (Malaysia). Six of these leaders represent countries that are currently negotiating to join the group. (Gira a Asia / Chile)

Nob Akimoto’s primer on the TPP highlights some of the great points for the agreement.

P4 was a comprehensive trade agreement between these four countries (Brunei, Chile, New Zealand, Singapore) that would have called for a reduction of tariffs to zero by 2017 on all goods. Unlike most Free Trade Agreements (FTAs) the P4 was notable for being multilateral, including tariff elimination for agriculture and spanning a wide geographic area.

The original agreement covered all the main pillars of a free trade agreement, including trade in goods, rules of origin, trade remedies, sanitary and phytosanitary measures, technical barriers to trade, trade in services, intellectual property, government procurement and competition policy.

The Bad With the Good

The promising aspects of the TPP are tainted by the IP protection provisions of the U.S. The World Trade Organization (WTO) usually enforces the Trade-Related Aspects of Intellectual Property Rights (TRIPS) on the trade agreements of its member nations. But the US piggybacks its own copyright protections provisions, also known as TRIPS-Plus — which call for longer copyright terms, data exclusivity on medical testing data, bans on parallel importation (essentially importing cheaper versions of patented items from another country), and specifying what precisely can be patented.

If you thought SOPA and PIPA were a smokescreen, you wouldn’t be far from the truth. The U.S. not only bandies its TRIPS-Plus provisions on any agreement it goes into, it uses the PRO-IP (Prioritizing Resources and Organization for Intellectual Property Act of 2008) as a means to enforce the rules. Rules made under the serious and expensive lobbying of U.S. entertainment industry leaders. Which is no surprise one of the TPP provisions prevents New Zealand from importing cheaper DVDs of a movie from Singapore, so NZ is “encouraged” to buy them from the U.S. Akimoto sees the provisions for IP Rights in TPP resemble US domestic law, particularly because of the strong emphasis on pharmaceutical and multi-media prohibitions.

This is clearly a problem. The attempt to formalize the backward, draconian US copyright regime puts at risk countries that have developed their own new intellectual property standards. Chile and New Zealand for example have tried to create more progressive and open systems, which would fall under the weight of a fines system. Not only does this make TPP a substantially less attractive agreement for many countries, but the insistence on pushing bans for parallel imports may create a negative impact on public health sectors.

The U.S. tackles the IP Protection debacle on many fronts, and the Anti-Counterfeiting Trade Agreement (ACTA) is another weapon in the kitty. This plurilateral agreement aims to establish new intellectual property enforcement measures.  The U.S. has already passed it into law, and the EU is nearing ratification. The U.S. used the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP) to take down MegaUpload last week. Many countries are involved in these agreements, but the U.S. entertainment industry stands to gain from these measures that will establish their dominion over any piece of information even remotely connected to their ideas.

The Future of TPP

Perhaps this should read the future of IP instead of TPP. TPP continues its steady course towards ratification among the member countries, despite dissent from a variety of sectors — even cosplay enthusiasts. The real issue here is the inclusion of IP provisions that are said to be more restrictive than those contained in ACTA. Provisions injected by US industry lobbyists who throw their weight around, talking over the heads of sometimes important players who are not as well-funded. Akimoto points out this problem and offers a rallying point:

The IP provisions provide a stunning example of how a small, limited interest group can put in danger the wider goals of a good framework… Trade advocates should see IP provisions as an obstacle to free trade, and market access promoters should engage  more deeply with the idea of Free Trade Agreements as a way to promote their agenda. It’s definitely both a danger and an opportunity. Let’s work to make it the latter.