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 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.

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.
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:
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.


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.
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.

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:

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.
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.

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Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, May 31st, 2013 @ 12:37am

    If the IP maximalists want to keep control of their 'intellectual property' so badly, maybe they should just keep it locked up in their brains...

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, May 31st, 2013 @ 1:52am


    The only reason they wish to strengthen their ownership is so that they can continue to extract rents for all uses of intellectual property. That is why they only want to license contents and ideas.

    reply to this | link to this | view in thread ]

  3. icon
    silverscarcat (profile), May 31st, 2013 @ 2:35am

    It's always about transparency with you guys, isn't it?

    Why can't you trust the government to do good work in secret?

    I mean, screwing over the public for the rights of the few elite rich folks is a time-honored tradition.

    Won't you think of the rich and powerful for once?

    What about them?! Don't they deserve to have their rights put ahead of all of the poor and middle class?

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, May 31st, 2013 @ 2:52am

    A Pyrhus win in the parliament

    Actually the parliament voted for a nota saying that audiovisual culture should be kept out of the negotiations. Unfortunately the above mentioned mandate says nothing of the sort. On the other hand, this is a way for the parliament to keep their hands free for eventually voting against the final deal. We will, however, see a new parliament before that time, which will make it far easier for the parliament to act independent of these agreements.

    Unfortunately the commissions lackeys in EPP and ECR are looking stable with the inclusion of new countries, but 2014 is too far in the future for real polls to have been conducted outside of UK.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, May 31st, 2013 @ 4:17am

    there should be no secrecy at all when negotiations are taking place which, in one way or another will affect the public. there is also no way that public representing bodies should be left out of the negotiations. if something is being discussed 'in secret', it can only mean that the interests are not in favor of the public. and dont forget, the public are the biggest body on the planet, not, as companies like to make out, the minority!

    reply to this | link to this | view in thread ]

  6. identicon
    The Real Michael, May 31st, 2013 @ 4:34am

    "The Agreement will address issues of transparency. To this end, it will include provisions on:

    The commitment to consult stakeholders in advance of the introduction of measures with an impact on trade and investment;"

    What this means is that they want to give stakeholders a chance to review any new measures introduced so that they can have a hand in shaping the process, as opposed to the common citizens who as we all know has no say over the laws which will invariably affect them. What this also means is that insiders will have foreknowledge (i.e. insider knowledge) of any and all potential market-affecting shifts, which could potentially be *ahem* advantageous to their stock portfolios.

    It sure is a rough and tumble life for elite aristocrats in the 21st Century.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, May 31st, 2013 @ 5:49am

    IP probably will collapse at some point.
    Specially if the sheep start producing the things they need, instead of waiting for a job that may never come or for other to give it to them.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, May 31st, 2013 @ 6:39am

    I finally get it. Transparency is not general transparency but transparency only for investors. Thats how they can keep telling us they are the most transparent ever and not really lie. So the rest of us, that would be 95% or more, just have to suck it up and get rich so we can invest and get insight and influence. Piece of cake.

    reply to this | link to this | view in thread ]

  9. identicon
    Androgynous Cowherd, May 31st, 2013 @ 7:48am

    WTO, anyone?

    27. The Agreement shall cover issues related to intellectual property rights and should complement and build upon the TRIPS.

    Er ... didn't the recent discussion about the US's Special 301 list indicate that it's actually against WTO rules for one WTO member to attempt to impose super-TRIPS IP rules on another WTO member? And aren't the US and EU both WTO members?

    Seems like any IPR stuff in TAFTA that goes beyond TRIPS could be toothless, with none of the "remedies" specified in TAFTA being allowed by the WTO (and anything that falls within TRIPS being required to go through the WTO's TRIPS-dispute process and not route around it).

    reply to this | link to this | view in thread ]

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