Latest Intellectual Property Chapter Of TPP Agreement Leaked: Would Be A Disaster For Public Health

from the transparency-needed dept

For years, we've discussed the ridiculous and unnecessary secrecy concerning trade agreements negotiated by the USTR. The text of the negotiating documents and even the US's general position is kept secret until the very end, at which point concerns from the public and innovators no longer matter. Instead, the USTR relies on legacy industry "advisors" who are mostly interested in protecting what they have from disruption, change and innovation. For all the talk of how these agreements are "free trade" agreements, they tend to be anything but. They are focused on protecting a few industries against competition, disruption and innovation. The former US Trade Rep Ron Kirk was unusually honest a few years ago in admitting that these agreements would never get adopted if the public actually knew what was in them. A year ago, Wikileaks helped leak the "Intellectual Property" chapter of the Trans Pacific Partnership (TPP) agreement, and now it's done so again with a more recent version of the chapter. Public Citizen has put together a thorough analysis, highlighting a key change: the US pushing to delay access to affordable treatments for cancer and other diseases, in direct contrast to the pledges of the Obama administration.
Large brand-name drug firms want to use the TPP to impose rules throughout Asia that will raise prices on medicine purchases for consumers and governments, and be in effect for the next several decades. With billions at stake, Big Pharma wants the TPP to be a road map for rules that will govern Pacific Rim economies for the next several decades.

A U.S. proposal in the text – to provide long automatic monopolies for biotech drugs or biologics, which includes most new treatments for cancer – contradicts the policies included in recent White House budgets and if adopted would undermine key cost savings touted by the administration. The past budgets have included a specific pledge to shorten the same monopoly periods so as to reduce cost burdens on Medicare and Medicaid.

If the TPP is ratified with this U.S.-proposed provision included, Congress would be unable to reduce monopoly periods without risking significant penalties and investor-state arbitration.
Thankfully, other countries appear to be pushing back on this proposal, but the US is always the 800-pound gorilla in these negotiations. Still, as Wikileaks summarizes, the US is pushing strongly for "drug-company friendly" language that undermines existing agreements under TRIPS. In particular, TRIPS has long allowed countries to authorize the production of cheaper generic drugs to deal with significant health problems. Big Pharma -- showing how it really feels about public health -- has been angry about this for years, and appears to be using TPP as a vehicle to try to undermine it. Of course, they know better than to kill off this provision entirely, but rather, are looking to undermine it. Wikileaks explains:
Also new in the May 2014 text is a "drug company-friendly" version of the TRIPS agreement for compulsory licensing of vital drugs patents. This is a diminished version of the TRIPS agreement that was present in the 2013 text. In theory, by issuing a compulsory licence, a government can authorise cost-cutting generic competition with patented drugs, in exchange for royalty payments to the patent holder. It is a key tool to promote affordable access to medicines. The new exceptions are set out here and here, having deleted the option for "Other Use Without Authorisation of the Right Holder" in the August 2013 text. The current global norms for justifying exceptions to patents are set out in the TRIPS agreement under either Article 30 or 31. Article 30 is a 3-step test that is restrictive in what it grants exceptions for, and is open to interpretation with regards to procedures for doing these tests. Article 31 (referred to in the August 2013 text and now gone) is the one generally used on all compulsory licensing for HIV and cancer drugs. Whilst it is more restrictive, it is limited to cases where patent holders are paid, so as long as a drug qualifies (as most HIV and cancer drugs do) it is possible to get an exception to the patent held by big pharmaceutical companies, breaking big pharma's monopoly on life-saving drugs.

However, the new version of the text of the TPP IP Chapter has deleted the option to use this assessment procedure, requiring many judgement calls on aspects such as how this might "prejudice" the patent holder. This will mean that the procedure is more restrictive and open to interpretation, and therefore lobbying and manipulation. In short, the TPP will greatly reduce the ability for creating more affordable drugs to save more lives, and increase the pharmaceutical industry's ability to retain monopolies.
Elsewhere in the document, we see that the US and Japan (who appear to be aligned a lot against everyone else) are pushing for the following:
For greater certainty, a Party may not deny a patent solely on the basis that the product did not result in an enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application.
Consider this to be the "Eli Lilly clause." As you may recall, Eli Lilly is currently demanding $500 million from Canada under a corporate sovereignty ("investor state dispute settlement" or ISDS) tribunal, because Canada rejected some of its patents for not being any more effective than existing offerings. For most of us, it seems like a perfectly reasonable reason to reject a patent: your patented drug doesn't do anything to make it more useful than existing products. Canadian law agrees. But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive "new new thing" rather than the old, generic, cheaper offering that is just as (if not more) effective.

A bunch of countries are pushing for the right to cancel a patent if it "is used in a manner determined to be anti-competitive," but of course, the US and Japan are completely against such a thing. Instead, the US and Japan say it should only be cancelled on grounds that would have been justified for refusing to grant the patent in the first place. In other words, most of the countries recognize that patents can be abused in anti-competitive ways and want to protect against that. The US and Japan, on the other hand, appear to be happy with enabling anti-competitive abuses with patents. That says something.

In the copyright section, it appears that US goes beyond existing US law in asking that "making available" be considered one of the exclusive rights protected under copyright law. Some US courts consider "making available" to be considered part of the "distribution" right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that's not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include "making available" as an exclusive right for copyright holders.

There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public's rights. Except, when the details finally leaked, we realized the proposed language was actually about limiting fair use by putting a much stricter definition on it. That language is still in the agreement. There still appears to be debate about copyright term length, with at least some pushing to extend the copyright term, because, hey, copyright terms always expand. This comes despite even the head of the Copyright Office agreeing that copyright terms should be reduced.

The US is also looking to definitively kill off any chance of an Aereo-like solution (even if Congress were to pass a law in response to the Supreme Court), by saying that such a service shall not be allowed without authorization of the copyright holder. The agreement would also extend broken anti-circumvention rules that block non-infringing and perfectly reasonable uses. The US is (of course) pushing for more criminal copyright efforts (Vietnam and Malaysia are pushing back). The US, against pretty much everyone else, is also pushing for statutory damages to be a necessary option for civil copyright cases, despite the massive problems we've seen with statutory damages in the US and how it enables shady practices like copyright trolling.

There's a lot of debate about whether or not recording a movie in a theater should be a criminal act. The US, of course, is pushing for what appears to be an extreme definition where any recording should absolutely be seen as criminal. Other countries would like it to be more flexible, leaving it up to the countries to decide if they want to make it criminal. Singapore says the taping should be willful, and Mexico says it should only apply to a significant part of the film. The US doesn't care. If you accidentally record a bit of a movie? Go to jail.

There's a lot more in there, but, once again you can clearly see why the US remains so against any transparency at all in these negotiations. Having to actually answer for why they're only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.

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  • identicon
    Anonymous Coward, 16 Oct 2014 @ 8:12am

    No matter, in the agreement, the US (and Japan) push to require everyone to including "making available" as an exclusive right for copyright holders.

    Grant that, and no copyrighted object can be resold, or have its ownership transfered without the copyright holders permission. The maximalists are trying to extend copyright law to control the use of copies, and not just their production.

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

    • identicon
      Anonymous Coward, 16 Oct 2014 @ 8:52am

      Re:

      Abolish copyright. It's the only way.

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

    • icon
      tqk (profile), 16 Oct 2014 @ 9:37am

      Re:

      Grant that, and no copyrighted object can be resold, or have its ownership transfered without the copyright holders permission. The maximalists are trying to extend copyright law to control the use of copies, and not just their production.

      Not just control the use of copies. They're trying to destroy the right of first sale. You can't sell that book because you only paid for a licence to use it which isn't transferable. You never owned anything.

      Second hand textbooks, used computer games and other software, ephemera. Who's more evil: Walmart shoppers, or big pharma stockholders?

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

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 8:25am

    Someone in the USTR expects a huge revolving door favor for all this effort. Lets just hope it pays off because this person worked hard to undermine the public's trust.

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

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 8:34am

    Having to actually answer for why they're only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.
    The department tasked with the actual public welfare is located in the broom closet underneath the stairs to your right. Do watch your step!

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

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 8:40am

    "But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive "new new thing" rather than the old, generic, cheaper offering that is just as (if not more) effective. "

    and this is a problem with patent law. It's supposed to encourage innovation but instead it encourages the development of me-too drugs for the sake of getting a patent renewal.

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

  • icon
    Richard (profile), 16 Oct 2014 @ 9:00am

    Hmm

    I wonder what would happen if a disease arose where the failure to treat people in poor countries that can't afford much in the way of healthcare could backfire and threaten the populations of rich countries - including even the elites in those countries.

    Now that might make them think... Oh wait...

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

  • icon
    Kal Zekdor (profile), 16 Oct 2014 @ 1:28pm

    Depressing

    This is just... depressing.

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

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 1:55pm

    You would think this was a movie.

    That is some evil villain stuff right there.
    If countries actually agree to this, despite the huge public protests it will bring, they have well and truly sold themselves to companies, and probably for good.

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

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 2:43pm

    Make the rich richer while killing off everyone else. That seems to fall in line with how the current ruling class acts.

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

  • identicon
    Anonymous Coward, 16 Oct 2014 @ 5:28pm

    If you can't afford it, do without. I don't see what's so hard to understand about this.

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

  • identicon
    MAFIAA, 16 Oct 2014 @ 10:45pm

    Fascism never gets old.

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

  • identicon
    David E.H. Smith, 22 Oct 2014 @ 8:52pm

    YOUR submission to YOUR highest court re; TPP; how does YOURS differ from the submission below?

    YOUR submission to YOUR highest court re; TPP; how does YOURS differ from the submission below?
    Re; the TPP, C-CIT, CETA CORP.'s “secret” vulnerabilities & the articles listed below, would you please SHARE the info & questions below with your associates, friends & families so that they can make more informed decisions about their financial planning for their families who will SHARE it with 10 other people, etc.

    1) “The MERKEL (Chanc. Germ.) Letter; To Sue, or, Be Sued"?

    2) "PUTIN (Rus.); The WHITE KNIGHT"?

    3) “But, WILL INDIA & CHINA SUPPORT PUTIN (BRICS); The WHITE KNIGHT”?

    4) "CORPORATE TPP's, CETA's, et al, "SECRET" VULNERABILITIES.
    Which NON Shareholders WILL QUALIFY FOR EXEMPTIONS?

    I look forward to reading about your thoughts, your questions your feelings, your improvements, etc. regarding the enclosed.

    Sincerely,

    David E.H. Smith
    - Researcher
    -“Qui tam..."
    ********
    The SUPREME COURT of CANADA;
    The SHAREHOLDERS, corporates CANADA, CHINA, AMERICA, EUROPE, The TRANS PACIFIC NATIONS, et al,
    VERSUS
    the harmless non shareholders of Canada, both; Native & non Native, et al.

    TPPartnership, CETAgreement, C-CITreaty, et al; More Taxes & Less Services to pay The SHAREHOLDERS (Tribunals).

    “WILL The COURT CONSIDER...?”
    Are YOU Depriving your Highest Court of the INFO to Decide Against the Global Corporate Economy?
    Has Frau Bundaskanzarin Angela Merkel (Germ.) shared the Info with YOU?
    by David E.H. Smith

    (CAN.)...Therefore, as a consequence of the aforementioned abuses that have been listed in the enclosed research articles & the dire peril that these abuses puts the NON shareholding Canadians in, both; Native & non Native, et al, as an elaborate, ”inhumane”, ”unethical”, “immoral” & probably, criminal, enterprise, the writer humbly asks; under what circumstances would The Court consider the following?

    1) Will The Court consider ensuring that any further attempts by off shore enterprises, such as the aforementioned attempts by the global corporate “arrangements”, including
    corporate Canada & its associates within the government of Canada, et al, as a “reciprocity pool” of shared “secret decisions” against the non shareholders of Canada, et al,
    will be dealt with punitively.

    2) And, in the interim, until The Court can make a determination of any wrongful intent, &/or, abuses of the ”arrangements” as a criminal enterprise,
    will the open & public Supreme Court of Canada consider
    preventing the further use of the non shareholders' tax dollars from being used to make any, &/or, any more secret decisions against themselves, ie. the NON shareholders.

    3) Furthermore, can, or, will The Court consider ordering the return of any & all of the tax dollars that have been used by the government, &/or, corporate Canada & their lawyers, et al, that have been used for the development of the aforementioned “arrangements” of a what The Court may determine to be a criminal enterprise (for examples; a) as a means of using/legitimizing off-shore money, et al, b) laundering money from the proceeds of criminal enterprises, &/or, c) going toward the funding of “criminals”, et al, who may be involved in other criminal, or, unethical, or, inhumane, immoral enterprises),
    and thus,
    the tax dollars have not been used for the purposes that the taxpayers had intended, such as; for goods, services (particularly to police organizations & judiciaries for their investigation of, not only the aforementioned secret/privileged relationship between corporate Canada via its lobbyists
    and
    the executives of the relevant political parties,
    but, the alleged wrong doing by others, as well),
    programs, health, education, etc. that are consistent with the NON shareholders' understanding of what “good” government entails
    and
    return the tax dollars with punitive penalties paid to the NON shareholding Canadians, both: Native & non Native, et al.

    Similarly, given the reckless endangering situation that the government, et al, has placed the NON shareholders in, can, or, will the Court ensure that the necessary funds will be spent for their, the NON shareholders', intended purposes in order to “guarantee” these services, et al,
    and
    consider ordering corporate Canada, its shareholders & their lawyers, advisers & service beneficiaries of the present “arrangements” will be paid with their own funds, prior to presenting their future “adventures”, &/or, “arrangements” to:
    A) The Court, &/or, its representatives
    and then,
    B) the NON shareholders for their consideration, discussions, improvements, &/or, rejections, et al,
    in open forums that have eliminated the fear of recriminations, retributions, etc. by corporate Canada, its shareholders, The Tribunals, et al.

    4 A) And, lest one forgets that the revelation of the present perilous International treaties/”arrangements” began with the regard for the rights of Native Canadians as per the Treaties/”arrangements” that corporate Canada & the Government of Canada have “foisted” upon Native Canadians who have been deliberately deprived of the due diligence information, such as the information in The W.A.D. Accord, et al,

    I am compelled to ask The Court:
    will the Court consider whether, or, not The Court's recent “Tsilhqot'in Decision”, makes
    it easier for corporate Canada, its global economic associates, their shareholders, et al, to sue the Tsilhqot'in First Nation & other Native communities in Canada
    and thereby, to seek financial relief from the harmless NON shareholding, non Native Canadians via the Government of Canada? And, will The Court consider preventing
    any unrelated hardship to the NON shareholders as a consequence of the creation of the
    aforementioned Tribunals & corporate Canada & its associates intent to obtain the unencumbered access to the natural resources that are continuing to be found in Canada & irrespective of Native title to these lands & its resources?

    B) And, similarly, does the plan espoused by the American born Tom Eugene Flanagan which would enable First Nations communities to become municipalities, also make it easier for corporate Canada, its associates, et al, to sue Native communities, or, seek remedies from the Government of Canada (ie. from the NON shareholders) for any encumbrances that the new, Native municipalities, et al, might impose upon the development, &/or, access to the aforementioned natural resources, etc.?

    (And, regarding the settlement of Native land claims that are presently before Canadian courts, & will continue to be before the courts for some time, the following question can help The Court a great deal in these deliberations, and that is; how were Europeans convinced to settle in North America in the first place & in particular, the land that became known as Canada?)

    5) Therefore, can I only hope that given the enclosed information about the abuse, the potential for abuse & the intent of the aforementioned Tribunals which is:
    A) to abuse & to limit The Court's ability to hear...

    *******
    To SHARE Information & Questions re; The Relationship between Human
    (Nature) Rights & Economics in 1) the C-CI Treaty, the CET Agreement, TPP, et al, and 2) Native Canadian Treaties via The WAD Accord,
    see; davidehsmith.wordpress.com
    ...For a more Comprehensive Version of the above Submission;
    see; davidehsmith.wordpress.com
    ...For the FULL ARTICLE
    see; The Supreme Court of Canada.

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


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