Indiana Intellectual Property Law News
WikiLeaks recently released the entire Intellectual property Rights Chapter from the secret negotiated draft text of theTrans-Pacific Partnership (“TPP”) Intellectual Property Rights Chapter. The TPP is the largest-ever
economic treaty, encompassing nations representing more than 40 percent of the world’s gross domestic product (“GDP”). The WikiLeaks release of the text came ahead of the decisive TPP Chief Negotiators summit in Salt Lake City, Utah. The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states.
The TPP is the forerunner to the equally secret US-EU pact, the Transatlantic Trade and Investment Partnership (“TTIP”), for which President Obama initiated US-EU negotiations in January 2013. Together, the TPP and TTIP will cover more than 60 percent of global GDP. Both pacts exclude China.
Since the beginning of the TPP negotiations, the process of drafting and negotiating the treaty’s chapters has been shrouded in an unprecedented level of secrecy. Access to drafts of the TPP chapters is shielded from the general public. Members of the U.S. Congress are able to view only selected portions of treaty-related documents in highly restrictive conditions and under strict supervision. It has been previously revealed that only three individuals in each TPP nation have access to the full text of the agreement, while 600 ‘trade advisors’ – often lobbyists for large U.S. corporations – are granted privileged access to crucial sections of the treaty text.
The 95-page, 30,000-word Intellectual Property Chapter lays out provisions for instituting a far-reaching, transnational legal and enforcement regime, modifying or replacing existing laws in TPP member states. The Chapter’s subsections include agreements relating to patents (who may produce goods or drugs), copyright (who may transmit information), trademarks (who may describe information or goods as authentic) and industrial design.
The longest section of the Chapter – “Enforcement” – is devoted to detailing new policing measures, with implications for individual rights, civil liberties, publishers, internet service providers and internet privacy, as well as for the creative, intellectual, biological and environmental commons. Particular measures proposed include supranational litigation tribunals to which sovereign national courts are expected to defer, but which have no human rights safeguards. The TPP Intellectual Property Chapter states that these courts can conduct hearings with secret evidence. The Intellectual Property Chapter also replicates many of the surveillance and enforcement provisions from the shelved Stop Online Piracy Act and Anti-Counterfeiting Trade Agreement treaties.
The current TPP negotiation member states are the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei.
Practice Tip:
According to WikiLeaks, the TPP negotiations are at a critical stage. WikiLeaks contends that the Obama administration is preparing to fast-track the TPP treaty in a manner that will prevent the U.S. Congress from discussing or amending any parts of the treaty. Numerous TPP heads of state and senior government figures, including President Obama, have declared their intention to sign and ratify the TPP before the end of 2013.
WikiLeaks’ Editor-in-Chief Julian Assange stated: “The US administration is aggressively pushing the TPP through the US legislative process on the sly.” The advanced draft of the Intellectual Property Rights Chapter, published by WikiLeaks on November 13, 2013 was designed to provide the public with an opportunity to familiarize themselves with the details and implications of the TPP.
The consolidated text obtained by WikiLeaks after the August 2013 TPP meeting in Brunei – unlike any other TPP-related documents previously released to the public – contains annotations detailing each country’s positions on the issues under negotiation. Assange commented that a “cringingly obsequious” Australia is the nation most likely to support the hardline position of U.S. negotiators against other countries, while states including Vietnam, Chile and Malaysia are more likely to be in opposition. Numerous key Pacific Rim and nearby nations – including Argentina, Ecuador, Colombia, South Korea, Indonesia, the Philippines and, most significantly, Russia and China – have not been involved in the drafting of the treaty.
According to Assange, “If instituted, the TPP’s IP regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.”