EU Mandate For TAFTA Leaked: Includes Investor-State Dispute Resolution For Intellectual Monopolies
from the but-what-about-transparency? dept
One of the concerns about TAFTA/TTIP is that it would repeat the mistakes of ACTA and SOPA as far as intellectual monopolies were concerned. This led to a call by a group of public interest organizations for things like copyright and patents to be excluded from TAFTA (disclosure: I was involved in the drawing up of the text.) Needless to say, no notice was taken of that, and a couple of weeks ago the European Parliament duly passed a resolution on TAFTA that said:
the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights (IPRs), including geographical indications, and should be consistent with existing international agreements;
However, the important document is the one from the European Commission laying down the Directives that set the terms for the negotiations. By a happy chance, the German blog netzpolitik.org has just come into possession of a draft of these, and made them freely available (Microsoft Word document.)
The section dealing with intellectual monopolies confirms that they form part of the mandate, but is otherwise not very illuminating:
27. The Agreement shall cover issues related to intellectual property rights and should complement and build upon the TRIPS. The Agreement will reflect the high value placed by both Parties on intellectual property protection and build on the existing EU-US dialogue in this sphere.
It will be interesting to see how the attempt to protect EU Geographical Indications -- things like Parma ham -- goes given the US's long-standing dislike of them. But much more significant than this rather perfunctory section on intellectual monopolies is the one dealing with the increasingly-important area of investor-state dispute resolution:
28. Negotiations should, in particular, address areas most relevant for fostering the exchange of goods and services with IP content, with a view to supporting innovation. Negotiations should provide for enhanced protection of EU Geographical Indications through the Agreement. Both sides should explore opportunities to address other significant IPR issues.
Scope: the investment protection chapter of the Agreement should cover a broad range of investors and their investments, intellectual property rights included, whether the investment is made before or after the entry into force of the Agreement.
One of the key phrases here is "intellectual property rights included". That's deeply troubling because it essentially legitimizes attempts to extend a mechanism originally designed to prevent rogue states expropriating physical property from investors to the realm of intellectual monopolies. That is the basis of the argument made by Eli Lilly in suing Canada for $100 million, claiming that its "investment" in developing a drug had been expropriated by the courts there by not granting a patent on it.
Enforcement: the Agreement should aim to provide for an effective and state-of-the-art investor-to-state dispute settlement mechanism, providing for transparency, independence of arbitrators and predictability of the Agreement, including through the possibility of binding interpretation of the Agreement by the Parties. State-to-state dispute settlement should be included, but should not interfere with the right of investors to have recourse to the investor-to-state dispute settlement mechanisms.
It's not hard to imagine a similar approach being taken in the computer world if European countries definitively throw out software patents, as Germany is contemplating. US companies might sue for what they would claim is an "expropriation" of their investment and future rents. Similarly, if the US ever reduces the term of copyright, as the Register of Copyright, Maria Pallante, has called for, European publishers might sue the US government for the "expropriation" of their monopoly rights. The winners here will be big companies and their lawyers; losers will be the public in both the EU and US, who will be forced to "compensate" companies for these supposed losses, and who will find their national laws overruled by secret tribunals.
It's worth reading the whole document, not least because you and I weren't supposed to -- it's marked "restricted". And talking of transparency, here's what the European Commission is instructing its negotiators to push for in this area:
The Agreement will address issues of transparency. To this end, it will include provisions on:
That feeble list of non-measures is hardly what most of us think of as "transparency". But of course, the irony here is that even in the face of this failure to take openness seriously, a leak has already occurred, allowing anyone to read the supposedly confidential document. And judging by what has happened with ACTA and TPP in the past, further leaks of key texts will occur despite the best efforts of the negotiating parties to keep everything behind closed doors. So why not release all documents that have been tabled -- that is, those that are no longer secret? Being able to read them ought to be the right of citizens on both sides of the Atlantic; refusing to distribute them makes a mockery of the idea that the TAFTA/TTIP negotiations are being conducted in the public's name.
The commitment to consult stakeholders in advance of the introduction of measures with an impact on trade and investment;
The publication of general rules and measures with an impact on international trade and investment in goods and services;
Transparency as regards the application of measures having an impact on international trade and investment in goods or services.