That might seem a reasonable request, since there is no doubt that India's production of generics reduces the profits of the pharma companies in Europe, which could charge far higher prices were there no competition from generics. But what that overlooks -- and what secret negotiations allow those involved to overlook -- is the impact such a move would have on millions of people around the world.

A letter from a group of Cambodian activists that struggle to supply much-needed medicines to those too poor to buy them, published on the infojustice.org site, provides us with a rare insight into what the EU's demands would mean for the world's poor:

We are saddened that behind the rhetoric of democracy, human rights and freedom the EU is in fact prioritising corporate interests to the lives of millions of people. It is needless to say that those affordable generic drugs are absolutely vital for the lives of millions who otherwise cannot afford expensive treatment of life threatening diseases such as tuberculosis, malaria and HIV-AIDS. Many suffering from such serious diseases would not be able to survive without these generic drugs produced in India.

…

Having seen the importance of made-in-India generic drugs for the lives of millions, we in no ways can express our frustration about the attempt of EU and European pharmaceutical giants to control the production of these cheap medicines. This must stop right now. It is a true example of putting profits before people's lives and take advantage of people's illness for corporate profits. Our lives should not be regarded as a business opportunity. We urge the EU to reconsider its pursuit of intellectual property rights for medicines and to realise that blindly protecting the interests of large European pharmaceutical corporations will lead to nothing but a subtle form of genocide of the poor, their families and children in developing countries across the world.

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To break the deadlock on this issue, the moderate wing of the TPP club is apparently suggesting that the equivalent ACTA provisions should be re-used. It's interesting to see ACTA, which is still being fiercely fought in Europe because of its harsh and unbalanced nature, presented here as a milder option compared to TPP. If nothing else, that negotiating calculus emphasizes just how extreme TPP is.

However, it's also disturbing that ACTA, although not yet in force, is already being taken as the new baseline. Indeed, the article quoted above notes that ACTA's provisions "represent a much higher standard than the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)" - the previous benchmark here.

Moreover, as regards the current "compromise" idea of using ACTA's provisions instead of the US proposals for TPP, an industry source had the following to say:

the U.S. IPR text largely reflects the U.S.-Korea FTA [Free Trade Agreement] and it would be unlikely the U.S. would agree to provisions that are less strict in the area of criminal enforcement.

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UK Commission on Intellectual Property Rights. Integrating Intellectual Property Rights and Development Policy. 2002. (Link)

“…strong IP rights alone provide neither the necessary nor sufficient incentives for firms to invest in particular countries… The evidence that foreign investment is positively associated with IP protection in most developing countries is lacking.”

Robert L. Ostergard., Jr. “Policy Beyond Assumptions: Intellectual Property Rights and Economic Growth.” Chapter 2 of The Development Dilemma: The Political Economy of Intellectual Property Rights in the International System.  LFB Scholarly Publishing, New York. 2003

“…no consistent evidence emerged to show that IPR contributed significantly to economic growth cross-nationally.  Furthermore, when the nations are split into developed and developing countries, results to suggest otherwise did not emerge.”

Carsten Fink and Keith Maskus. “Why We Study Intellectual Property and What We Have Learned.” Chapter one of Intellectual Property and Development: Lessons from Economic Research. 2005. (Link)

“Existing research suggests that countries that strengthen their IPR are unlikely to experience a sudden boost in inflows of FDI.  At the same time, the empirical evidence does point to a positive role for IPRs in stimulating formal technology transfer.”

“Developing countries should carefully assess whether the economic benefits of such rules outweigh their costs. They also need to take into account the costs of administering and enforcing a reformed IPR system”

“We still know relatively little about the way technology diffuses internationally.”

Keith Mascus. “Incorporating a Globalized Intellectual Property Rights Regime Into an Economic Development Strategy.”  Ch. 15 of Intellectual Property, Growth and Trade. (ed. Mascus). Elsevier.  2008.

“Middle income countries must strike a complicated balance between promoting domestic learning and diffusion, through limited IP protection, and gaining greater access to international technologies through a strong regime… it makes little sense for these nations to adopt the strongly protectionist IP standards that exist in the U.S., the EU and other developed economies.  Rather, they should take advantage of the remaining policy space provided by the TRIPS Agreement.”

“It is questionable whether the poorest countries should devote significant development resources to legal reforms and enforcement of IPR.”

Kamal Saggi. “Intellectual Property Rights and International Technology Transfer via Trade and Foreign Direct Investment. Ch. 13 of Intellectual Property, Growth and Trade. (ed. Mascus). Elsevier.  2008.

“Overall, it is fair to say that the existing empirical evidence regarding the overall technology-transfer impacts of increased IPR protection in developing countries is inconclusive at this stage.  What is not yet clear is whether sufficient information flows will be induced to procure significant dynamic gains in those countries through more learning and local innovation.”

“Developing countries need not only to obtain foreign technologies but also to learn how to use them to their fullest potential.  In this context, it is useful to make a distinction between the initial introduction of a technology into a country and its subsequent diffusion within the domestic economy.”

 

Alexander Koff, Laura Baughman, Joseph Francois and Christine McDaniel. “Study on the Economic Impact of ‘TRIPS-Plus’ Free Trade Agreements.”  International Intellectual Property Institute and the U.S. Patent and Trademark Office. August 2011.

• TRIPS-Plus IPRs viewed as “important, but not essential” for attracting investment. Many other factors matter (taxes, human capital, clustering, etc).
• Many countries had recently changed laws to comply with TRIPS, so changes for FTAs had a smaller effect on investment.
• The way in which the obligations were implemented was important.   It is not wise to simply impose one legal framework on top of another.  Implementation of FTAs requires taking specific nations’ legal systems into account.

In general, the results show that stronger IPRs were not correlated with changes in FDI. They were correlated with changes in licensing, but not always in the direction one would expect. The data does not show that stronger IPRs required by FTAs drove significant amounts of tech transfer in these three countries.

We are particularly and specifically concerned that by the United States Trade Representative (USTR) took the opportunity of its hosting of the latest round of negotiations in Dallas, Texas, to begin this week, to further restrict public involvement in the negotiations by eliminating the full-day stakeholder forums that have been hosted at other rounds. We call on the USTR and all TPP negotiating countries to reverse course and work instead to expand, rather than contract, the opportunities for public engagement in the formation of the TPP’s intellectual property chapter.

At a time when the last international intellectual property law to be negotiated under a similar process, the Anti-Counterfeiting Trade Agreement, teeters on the edge of rejection by the European Parliament in large part because of the loss of faith in its secretive process demonstrated by hundreds of thousands of marchers across Europe, the move to scale back participation in the TPP appears highly unwise and counterproductive. The functional and theoretical impact of the lack of transparency and accountability in the TPP and other trade negotiations institutionalizes the kind of process that the late Senator Daniel Patrick Moynihan criticized as policy making through “ignorant armies clash[ing] by night.” This is no way to build support for a broad reaching new international law that will constrain democratic law making over intellectual property matters in the US and abroad, particularly in an era of massive and rapid technological change that is testing the bounds of our current policy framework.

Our first and most important suggestion is to immediately begin a policy of releasing to the public the kind of reports on US positions and proposals on intellectual property matters that are currently given only to Industry Trade Advisory Committee members under confidentiality agreements. The USTR has previously refused to share its own proposals with its own citizenry claiming that, under the Freedom of Information Act (FOIA), to do so would damage the national security of the United States. While we are sympathetic to the need for some confidentiality in the negotiation of international agreements, just as there is in domestic law making, there can be no national security justification, much less one sounding in good governance concerns, for preventing the United States public from seeing its own government’s proposals to restrain its own domestic legislation.

Indeed, there are many examples where the US engages in precisely the kind of information sharing about its proposals for international law making we request here. If, for example, this negotiation was happening in the World Intellectual Property Organization or World Trade Organization, all country proposals would be released to the public as a formal part of the negotiation process. This is, of course, also the process followed in a Congressional Committee mark up of a bill. And just last month USTR released to the public a 2012 revised model bilateral investment treaty (BIT), which one must assume reflects its positions in the TPP negotiation on the same titled chapter.

The unbalanced product results from an unbalanced process. The only private individuals in the US who have ongoing access to the US proposals on intellectual property matters are on an Industry Trade Advisory Committee (ITAC) which is dominated by brand name pharmaceutical manufacturers and the Hollywood entertainment industry. There is no representation on this committee for consumers, libraries, students, health advocacy or patient groups, or others users of intellectual property, and minimal representation of other affected businesses, such as generic drug manufacturers or internet service providers. We would never create US law or regulation through such a biased and closed process.

Mr. Flynn – I look forward to reviewing your letter, and will provide a more detailed response later. In the interim, you may be surprised to know that USTR has conducted the most, active outreach to all stakeholders relative to the TPP than in any FTA previously, including, the proposed disciplines on intellectual property.

I do not quarrel with any assertions that our work may not reflect the exact wishes of your colleagues, but, I am strongly offended by the assertion that our process has been non-transparent and lacked public participation. USTR has conducted in excess of 400 consultations with Congressional and private stakeholders on the TPP, including inviting stakeholders to all of the twelve negotiating rounds.

I trust that after you have received my more formal response you will make every effort to educate your colleagues as to the extraordinary efforts our staff has engaged in relative to drafting our proposed texts for the TPP.