We already wrote about the leaking
of a recent draft of the IP chapter of the TPP agreement -- almost two years since the previous leak. While we're going to have some more posts digging deeper into many of the horrific problems with the agreement (and how it was created), first I just wanted to note -- and to respond to -- the USTR's weakass response to both the leak and the outcry that has surrounded it
The intellectual property negotiation in the Trans-Pacific Partnership discussions has not been completed and a final text has not been agreed to. We are working with Congress, stakeholders, and our TPP negotiating partners to reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values, including by seeking strong and balanced copyright protections, as well as advancing access to medicines while incentivizing the development of new, life-saving drugs.
So much bullshit in so few words. As per usual, this is the USTR at its most obnoxious and dismissive of legitimate concerns. First, while technically true that the agreement has not been completed, that doesn't mean that (1) there aren't substantial portions of it that are
complete and (2) it does not show the US's (and others') negotiating points and positions on various important issues. To try to dismiss the concerns by arguing it's not complete yet ignores that we finally
know what kind of pure crap the USTR is trying to shove down the throats of the American public, which they've worked on for years in secret.
Second is the claim that they are working with "Congress, stakeholders and our TPP negotiating partners." Again, let's define those carefully. First, "working with Congress." No, not really. As we've described
, the access Congress has is incredibly limited. The USTR is willing to work with a few
members of specific committees but when others, such as Senator Ron Wyden, sought access to the TPP documents they were greatly limited. And Wyden is not just any Senator, but the head of the Senate's Subcommittee on International Trade, Customs and Global Competitiveness.
While he, personally, was able to go to the USTR's offices to see the document, he would only be able to see it alone in a room. He would not be able to make any copies or take any notes. More importantly, he would not be able to bring any of his staffers who have direct technical expertise on the language -- such as the staff director of that committee, who had the necessary security clearance. Think about that for a second. The USTR claims that it works with Congress, and yet it denied
access to the document to the staff director of the Senate's subcommittee on international trade. How, exactly, is that "working with Congress"?
As for the "stakeholders," there are different kinds of "stakeholders" here and none of them are the American public. The USTR has Industry Trade Advisory Committees (ITACs)
. These are representatives of legacy industries. Take a look at the list of industries
represented. Where are the current innovators in that list? You won't find them. What you find is a big list of last century's industries -- the legacy players who are more interested in protectionism
and blocking competition
than in innovation.
Now, let's look specifically at the members of the "Intellectual Property" ITAC
. It's all companies or trade groups which represent big, old, legacy players
, who have strong interest in protecting their position, not in innovating and disrupting. The RIAA. GE. Johnson and Johnson. Verizon. The Executive Director of the "Coalition for Intellectual Property Rights"? Really? Could they put together a more biased group of people? Doubtful. Who on that list is looking out for the public interest? Who on that list is looking out for innovators? The answer is absolutely no one
That group is the main "stakeholder" that the USTR is referring to. They
get much greater access to the negotiating texts than most of Congress does. Then there's a second class of "stakeholders" which the USTR pretends to involve in the process. These are the "civil society" and public interest groups -- folks like Public Citizen, KEI and EFF -- who have been working hard to raise the concerns of the actual public and society. The USTR doesn't share crap with them. Nothing. Literally nothing. What they do
is every so often, if there is time and space permitting, let those groups hold "stakeholder meetings" in which they can present their arguments to the negotiators.
The USTR pretends this is "transparency" and "working with." It is neither. Transparency is about sharing
the details of what the USTR is doing in order to get feedback. Every so often "listening" to concerns of people who don't know for sure what's in the document is not transparency, and it's hardly "working with" those stakeholders. Is it really any surprise at all that when the only stakeholders who matter, the IP ITAC, all represent legacy industries that what comes out from the USTR is a bloated piece of crap designed to protect their interests against the rights of the public?
Third, the idea that the end result of this process is designed to "reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values." Again, that's not true. Which "innovative American industries" are actually represented on that list? Biotech, maybe, but the rest are all legacy players holding onto their markets, not creating economic growth. That doesn't promote high paying jobs -- it lets companies block out real innovation, slow down growth and limit jobs.
Fourth, "including by seeking strong and balanced copyright protections." Ha! First off, nothing in the released text suggests any look towards "balanced" copyright protections. It's entirely about locking in the worst of the worst, making an end run around Congress to block any potential future copyright reform that would fix many of the problems of today's copyright law. TPP is a time bomb designed to subvert real copyright reform. Just the fact that the statement itself argues that "strong" copyright protections are necessary for "balance" suggests that the USTR is not only biased, but totally clueless
about the state of copyright law today. Over and over and over again, we've seen that real innovation comes from allowing much greater flexibility and user rights -- not in ratcheting up enforcement and restrictions on innovation. Yet that's what the USTR gives us.
Finally, "incentivizing the development of new, life-saving drugs" may be the most sickening, disgusting and dishonest claim of them all. Whoever wrote this statement should look themselves in the mirror and ask themselves, seriously, how many people they personally are helping to die. The patent portions of the TPP will kill many, many people
by guaranteeing that they cannot possibly get access to life-saving drugs. The USTR is parroting the blatant lies of the pharmaceutical industry, who falsely argue that they need strong patent protection in order to "incentivize the development of new life-saving drugs." But there is little evidence to support this, beyond the whining complaints of the pharma industry. Most of the actual discoveries today are really done by universities and other research institutes, often funded by federal grants. It's only late in the process that the pharmaceuticals come in and grab the patents and then seek to focus on which drugs will be most profitable -- not which will save the most lives.
This is why the USTR and the rest of the administration fought so hard against revealing this text all along. They know that their arguments are weak excuses for legacy players seeking blatant protectionism and against the public interest and the interest of actual innovation. The former USTR, Ron Kirk, specifically had stated that if the text of the TPP were public it would make it very difficult to approve
, and now we know why. Because it's the worst form of political cronyism by the USTR, giving lots of favors to legacy industries at the expense of the public. When the USTR is unwilling to be transparent or have an open and full discussion with the public, it is not representing the interests of the American public. It is trying to pull a fast one on us.