Wikileaks Releases Final Intellectual Property Chapter Of TPP Before Official Release

Failures

from the and-it-sucks dept

Last weekend, negotiators finally completed negotiations on the Trans Pacific Partnership (TPP) agreement. However, as we noted, there was no timetable for the release of the text (though some are now saying it may come out next week). Once again, it was ridiculous that the negotiating positions of the various countries was secret all along, and that the whole thing had been done behind closed doors. And to have them not be ready to release the text after completion of the negotiations was even more of a travesty. Wikileaks, however, got hold of the Intellectual Property Chapter and has released it online.

Much of what’s in there is (not surprisingly) the same as the previous leaked version, which was from May of this year. The newly leaked version, of course, confirms what New Zealand’s announcement had revealed earlier this week: multiple countries caved in so that TPP requires signatories to extend copyright to life plus 70 years — even though the US itself had been exploring reducing copyright terms (that now won’t be allowed). Similarly, it locks in dangerous anti-circumvention rules that have hindered innovation and freedom.

The final report shows that many of the problems we found in the May draft are still in this document. This includes the fact that while the agreement does at least make a nod to the public’s rights such as fair use (which it calls “limitations and exceptions”) it does so in a ridiculous way. All of the moves to make copyright stricter are mandatory in the TPP. They require signing countries to do things like extend terms and ratchet up punishment. But when it comes to fair use? Then it just says countries should explore the issue:

Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are consistent with Article QQ.G.16, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.

Shall endeavor? Every other clause is a flat out “shall.” But when it comes to fair use it’s “eh, maybe consider it.” That’s ridiculous, given just how important the public’s rights are and how things like fair use protect those rights.

There’s also the issue of the public domain. As we noted in the May draft, the US and Japan actively opposed including “acknowledging the importance of preserving the public domain” in the section for “Understandings in respect of this Chapter.” And it looks like the US won — as that phrase is no longer in that section — though there was a compromise. Further down in the document, a new section has been added acknowledging the public domain:

Article QQ.B.x: {Public Domain}

1. The Parties recognize the importance of a rich and accessible public domain.

2. The Parties also acknowledge the importance of informational materials, such as publicly accessible databases of registered intellectual property rights that assist in the identification of subject matter that has fallen into the public domain.

That’s better than nothing, but it is notable that this is no longer included in the section of “objectives.” Because, of course, this document has no objective to celebrate the public domain. The copyright extension terms show that the objective is to destroy the public domain. And, as the EFF notes in its analysis, by moving where this discussion of the public domain occurs, the negotiators made it a happy platitude rather than a required part of any intellectual property policy:

That paragraph on the public domain, for example, used to be much stronger in the first leaked draft, with specific obligations to identify, preserve and promote access to public domain material. All of that has now been lost in favor of a feeble, feel-good platitude that imposes no concrete obligations on the TPP parties whatsoever.

Also, with the May release, we noted that the US and Japan, in particular, opposed any language that allowed for punishment for abusing patents. Australia had proposed some language that said that a country could cancel, revoke or nullify a patent if “the patent is used in a manner determined to be anti-competitive, or abusive…” The US and Japan vehemently opposed this language and guess what is nowhere to be found in the document? You guessed it… The US and Japan also opposed a pretty simple statement that “Each Party may adopt or maintain measures to discourage vexatious or unreasonable proceedings as a result of the use of the exclusive rights of a patent.”

And yet, in the final document, the only time “unreasonable” appears is in relation to “unreasonable” delays in granting patents. It really makes you wonder, why is the US so against a simple clause allowing countries to stop the abuse of patents? What possible rationale could they have other than knowing that they’re helping companies abuse patents.

It also appears that negotiators did not heed the warnings from KEI and others that the last draft would go against a number of US laws that include exceptions for damages for infringement, including orphan works and sovereign immunity by state governments. In short, this would completely undermine the US’s plans for dealing with the orphan works problem, because the TPP requires there be damages for infringement, even as the proposal to solve orphan works is to create an exception for damages if the work is an orphan work and certain conditions have been met.

The good folks at KEI have been listing out many other problems with the final text, some of which we’ll explore as well. For example, the TPP says that patents can be available for “new uses of a known product, new methods of using a known product, or new processes of using a known product” which of course can lead to perfectly common products getting extra patent protection and limiting competition, and driving up prices. There is significant concern over this issue in the drug space.

On the question of extra protection for “biologics” (which was apparently the final sticking point), the agreement says 8 years or something that can deliver a “comparable outcome in the market” via “other measures.” This is problematic and will drive up healthcare costs and will almost certainly mean that people will die because they can’t afford these medicines. Australia had been holding out for five years, but apparently lost. As we noted a few months ago, this also undermines some fundamental principles of science in locking up important data.

The other tidbit that is potentially a big deal is that it appears that the Intellectual Property Chapter may not be subject to the corporate sovereignty chapter, meaning that companies would not be able to make use of the special “ISDS” (investor-state dispute settlement) tribunals to argue that new IP regulations somehow deprived them of expected profits from investment in those countries. If that’s true that would be quite interesting, but the details of the corporate sovereignty chapter have not yet leaked…

All in all the document is pretty much what was expected, which means… it’s problematic. The USTR should not have negotiated this, as it directly harms the interests of the American public as well as the entire internet sector. Congress should not pass this. This is a bad agreement, which is basically what you’d expect for something negotiated behind closed doors where only large industry lobbyists had full direct access to the text and the negotiators.

Filed Under: biologics, copyright, data, fair use, intellectual property, patents, public domain, tpp, ustr