TPPA – A Stealth Attempt to Undermine Democracy

The below article was gernerously shared by Lori Wallach, the director of the USA organisation, Public Citizen’s Global Trade Watch.
Lori was recently in Melbourne for the TPPA talks and spoke at OccupyFriday on 2 March 2012. 

It takes quite a “trade” agreement to undermine financial regulation, increase drug prices, flood us with unsafe imported food and products, ban Buy America policies aimed at recovery and redevelopment, and empower corporations to attack our environmental and health safeguards before tribunals of corporate lawyers. Trade, in fact, is the least of the TPP.

Backdoor deregulation and imposition of new corporate investor and patent rights via “trade” negotiation began in the 1990s, with the “mission creep” of the World Trade Organization and North American Free Trade Agreement. But the TPP now threatens a slow motion stealth attack against a century of progressive domestic policy, of an unprecedented scope. At stake is nothing less than a democratic society’s ability to regulate a market economy in the broad public interest.

Under the framework now being negotiated, U.S. states and the federal government would be obliged to bring our existing and future policies into compliance with expansive norms set forth in 26 proposed TPP chapters. These include domestic policy on financial, healthcare, energy, telecommunications, and other service sector regulation; patents and copyrights; food and product standards; land use and natural resources; professional licensing and immigration; government procurement, and more.

The obligation that signatory countries “ensure conformity of their laws, regulations and administrative procedures” to these terms would be strongly enforced, including by our own government. Failure to do so would subject the U.S. to lawsuits before dispute resolution tribunals empowered to authorize trade sanctions against the U.S. until our policies are changed. Attacks against our non-trade laws could also be launched by any “investor” that happens to be incorporated in any one of these countries. And the TPP is being designed so that other countries – China, Japan, you name it – could join in the future.

We know this much only thanks to a combination of rare text leaks and grilling of trade negotiators. As trade lawyer Gary Horlick, a former U.S trade official with four decades in the game, recently noted: “This is the least transparent trade negotiation I have ever seen.” In fact, a recent text leak revealed that the parties signed a special secrecy Memorandum of Understanding that forbids released of negotiating documents for four years after a deal is done or abandoned.

Such an extreme proposal could only get this far under cover of unprecedented secrecy. Important policy decisions that could affect us all in myriad ways are now being made by executive branch trade officials and corporate allies, without public access to any documents or details, or input from members of Congress serving on most of the Committees whose jurisdiction is directly implicated. The involved governments have ignored a global “release the texts” campaign led by unions and civil society groups. This is especially appalling for the Obama administration, given its stated priority of enhancing government transparency. The opaque process has contributed to a near total absence of press coverage.

Meanwhile, more than 600 business representatives serving as official U.S. trade advisors have full access to an array of draft texts and an inside role in the process. The strategy is to squelch informed congressional and public debate until a deal is signed and any alternations become extremely difficult..

The implications for the principle and practice of democratic governance are especially dire. Setting binding rules in trade pacts does not facilitate later modifications even when governments or the public demands change. Not only would a vast array of decisions affecting our daily lives be made in venues where we have no role, but alterations to an adopted pact require consent by all signatory countries. Thus, accompanying the imposition of specific retrograde policies would be an unprecedented shift of power towards locking in corporate rule insulated against the normal means of democratic accountability, such as elections, advocacy and public protest.

If this description of the proposed TPP sounds far-fetched, consider the consequences of other “trade” pacts sold under the appealing brands of “trade expansion” and “free trade.” Canada is threatening key aspects of the Dodd-Frank financial reregulation package as violating NAFTA while Texas oil and gas tycoon T. Boone Pickens is using NAFTA to attack Canadian renewable energy policies. The European Commission staff contends that the proposed financial transaction tax conflicts with European WTO commitments. Billions in U.S. stimulus money leaked offshore, because of limits on Buy America procurement preferences already established in past trade pacts. Last year alone, the WTO struck down U.S. dolphin-safe-tuna and country-of-origin meat labeling and the ban on candy-flavored cigarettes, which is aimed at curbing youth smoking, as violating U.S. “trade” obligations.

Now, the TPP threatens to combine the most damaging elements of past pacts and expand on them. And, with the later addition of Japan, China, Russian, Indonesia and other Pacific Rim nations a large swath of the world’s nations could end up under this retrograde corporate rule regime. This is precisely the vision for TPP former U.S. trade officials and corporate lobbyists presented to the Obama transition team in their ultimately successful push to get Obama to engage in these talks: a Pacific region NAFTA-on-steroids that can increase offshoring while rolling back domestic consumer safety, financial, environmental and other safeguards.

Investor Rules to Facilitate Offshoring, Undermine Domestic Law

Past U.S.-sponsored “free trade” agreements have included a set of extreme foreign investor rights and U.S. negotiators are looking to use TPP to expand these terms. This package includes many special protections that incentivize offshoring of U.S. jobs, by eliminating risks typically associated with relocating to developing countries with rock bottom wages, while significantly handcuffing domestic regulatory officials from implementing even the most essential environmental, land use, health and safety laws that apply equally to domestic and foreign firms,

Under the U.S. FTA investment model, foreign firms are guaranteed a “minimum standard of treatment” that extends beyond being treated the same as local firms. And, a U.S. firm could obtain this treatment, effectively a pass on regulation, by simply selling some portion of its shares to a foreign subsidiary incorporated in one of the TPP nations. Such firms  also are granted new rights to obtain compensation from host governments for loss of “expected future profits” due to  health, environmental, zoning, labor, or other policies. Compensation can be obtained for indirect or “regulatory” takings, a concept championed by extreme conservatives but generally not recognized under the robust property rights provided by U.S. law.

The U.S. proposes that this chapter also forbid host countries from limiting capital transfers. This removes a prospective complication for U.S. firms considering relocating, and poses a risk to global financial stability. In an era when even the International Monetary Fund has reversed its traditional opposition to capital controls, imposing such limits via “trade” pact is both disingenuous and reckless policy.

The chapter also would establish new rights for foreign investors to acquire land, natural resources, factories and more. All performance requirements, including domestic content rules, would be forbidden. Freign firms or foreign subsidiaries of domestic firms would have new rights under the deal to operate such mines, polluting industrial facilities, toxic waste dumps, coal power plants – whatever investment they have acquired – under the terms of the agreement that limits domestic regulation. If the same policies applicable to domestic firms are applied to them, they can demand compensation from us taxpayers.

This raises concerns about our ability to determine what sorts of investment from what sorts of countries is best for our country, and to regulate foreign firms operating here so that they operate on equal terms with domestic firms and in compliance with our land use, environmental and health laws.

Most stunningly, these new rights in a public treaty could be privately enforceable. The U.S. is pushing for inclusion of “investor-state” enforcement. This little-known mechanism allows foreign firms to bypass domestic court systems and directly sue governments for cash damages (our tax dollars) over alleged violations of their new rights before UN and World Bank tribunals staffed by private sector attorneys who rotate between serving as “judges” and bringing cases for corporations. The scope of domestic policies that would be exposed to such attacks is vast, including government procurement decisions, regulatory permits, intellectual property rights, regulation of financial instruments such as derivatives, and more.

Avoiding domestic courts not only eliminates another major risk for firms seeking to relocate, but inclusion of this regime in past pacts is establishing an alarming two-track system of justice privileging corporations. Chevron is now asking one of these corporate tribunals to invalidate 18 years of U.S. and Ecuadorian court judgments that resulted in the company being ordered to pay for clean-up of horrific Amazonian toxic contamination. In other kangaroo trade courts, Philip Morris International is attacking Australian and Uruguayan cigarette plain-packaging policy.

Under similar NAFTA provisions, over $350 million has been paid to investors by governments over toxic waste dump permits, logging rules, bans of toxic substances and more. Currently, there are over $12 billion in pending corporate attacks on environmental, public health and transportation policy under existing U.S. free trade agreements—and the proposed TPP would create vast new opportunities for litigation. Even when governments win, they waste scarce budgetary resources defending national policies against these corporate attacks.

Green Procurement Policies Threatened

The pact’s procurement chapter would require that all firms operating in any signatory country be provided equal access to government procurement contracts over a certain dollar threshold. These rules not only constrain how our national and state governments may use our tax dollars in local construction projects and purchase of goods. They also limit what specifications governments can require for goods and services and the qualifications for bidding companies. Thus requiring that electricity come from renewable sources or that uniforms meet sweat-free standards could be forbidden. Rules excluding firms that refuse to meet prevailing wage requirements or that are based in countries with terrible human or labor rights records could be challenged. Effectively, these rules expropriate our tax dollars and transfer them into new private units for corporate profit, while eliminating important policy tools for job creation, development of green economy capacity and the building of demand for preferred business practices.

Backdoor Financial Deregulation

U.S. trade officials engaged in the TPP are seeking to extend older trade deals’ ban on capital controls, even as Rep. Barney Frank (D-Mass.) has demanded a review of whether the past pacts require changes. U.S. negotiators are also pushing for additional expansive limits on domestic financial regulation which conflict with policies now being implemented by many countries to get banks, insurance and securities firms under control.

This includes a prohibition on bans of risky services and financial products. It would expose to challenge domestic policies that set limits on firms’ size, the types of services any one firm may offer and the legal entity through which a service or product may be provided. This would foreclose many policy tools aimed at dealing with too-big-to-fail firms, limiting risk via firewalls or, for instance,  requiring clearing facilities for derivatives. These would be absolute bans on certain forms of regulation which countries would be forbidden to “adopt or maintain,” not requirements to treat domestic and foreign firms the same.

Higher Medicine Prices

The notion that any “free trade” agreement would expand monopoly rights for “rent seeking” (excess profits) would induce Adam Smith and David Ricardo to rotate in their graves.

But that’s exactly what our current trade policy does and TPP is poised to go further. According to a study conducted by the University of Minnesota, U.S. drug prices increased $6 billion when WTO patent rules required the U.S. to change its patent term from 17 to 20 years. The TPP would be even more of a gift to drug companies at the expense of consumers and taxpayers.

Leaked negotiating texts show that the TPP would extend monopoly controls over drug safety testing data, which could cut off millions of people from access to life-saving drugs. (Even when a patent monopoly ends, lower cost generics cannot be marketed because the safety data is withheld.) A majority of target TPP countries are developing nations with significant HIV-AIDS rates, so this is a particularly depraved proposal. Thanks to a leak, we know that U.S. negotiators are proposing to roll back even the modest trade pact access to medicine reforms obtained during the George W. Bush administration!

The U.S. proposal could also undermine the drug formularies of Australia, New Zealand and other countries that have successfully controlled drug costs. This could also boomerang home. State officials participating in the development of formulary rules for Medicare and Medicaid have reacted with alarm about how this proposal could undermine possible gains hard won here in the epic health care reform battle.

And there’s more…

Even given the lack of access to actual negotiating texts, we know that the scope of domestic policy space that could be foreclosed by this deal is immense.

The pact’s coverage of the service sector would include basically anything you can’t drop on your foot, from an education to healthcare. The rules would not be limited to trade in services, but would limit how we can regulate foreign service firms operating here. This would mean foreclosed domestic policy space for critical sectors such as health, energy, education, water, transportation and more. Even local land use and zoning policy is implicated.

These rules would even cover the movement of natural persons across borders to deliver a service, otherwise known as immigration and visa policy. Some past U.S. trade deals have guaranteed specific numbers of U.S. work visas. Other countries are demanding the same in the TPP. Whatever your view on immigration policy, obviously setting it behind closed doors in a trade pact whose terms cannot be altered without consent of all parties is a very bad idea.

We also know that there are several chapters that would impose limits on product environmental, health and safety standards. The U.S. has proposed a new “Regulatory Coherence” chapter that would require each signatory country to establish an agency to do cost-benefit analysis of regulation. And, we know that constraints on food and product safety and inspection are being negotiated, including a requirement that the U.S. accept imported food that does not meet our actual safety laws.

Consider just seafood, a lot of which is imported from TPP target countries. Before WTO and NAFTA, half of the seafood consumed here was imported. Today that figure is 84 percent, while the FDA only tests 0.1 percent of it. Rep. Rosa DeLauro (D-Conn.) uncovered that, even with this lax inspection, last year FDA issued numerous import alerts for Vietnamese seafood detained for misbranding, E. coli, antibiotic residues, microbial contamination, and other serious safety problems. Yet, the TPP could undercut even our current safety rules.

And, thanks to leaked texts, we know that the same provisions deemed to be a threat to Internet freedom and innovation found in the discredited Stop Online Piracy Act (SOPA) are lurking in TPP. This includes a requirement that each country establish large mandatory fines for unintentional, non-commercial, small scale copying of Internet content protected by copyright. Also forbidden would be circumvention of digital locks, even for lawful uses such as running the DVD you purchased on your computer running on Linux. As well as exposing us all to personal liability, the technology industry says these policies stifle innovation, given the threat of a multi-million dollar lawsuits.

Why Obama, Why Now?

All this begs an obvious question: why are Obama trade negotiators pushing a NAFTA-on-steroids deal that could potentially include China and the rest of Asia? Certainly the White House policy team does not want international preemption of the domestic agenda it is fighting to enact. Nor must the Chicago reelection campaign team be celebrating a deal that will infuriate its base while benefitting only Obama’s most implacable corporate opponents.

The most hopeful explanation is ignorance made possible by the sad habit of elite fealty to the “free trade” brand and extraordinary secrecy that has forestalled the external alarms that might otherwise warn officials outside of the “trade” policymaking silo of what is really at stake. Those in the U.S. government who are positioned to know the expansive non-trade policy implications are also those who support this approach, including many Clinton-era retreads connected to the passage of NAFTA.

Yet, if these talks result in the adoption of a final agreement based on the framework now under negotiation, it could lock our country onto a future path devastating to most of us.

The only good news is that, in the past, some attempts to use the Trojan Horse of “trade” negotiation to impose and lock in massive deregulation have been foiled. Citizen activism and pubicity derailed the proposed Free Trade Area of the Americas in 2005, the aborted Multilateral Agreement on Investment in 1998 – and the original attempt to negotiate a free trade area for APEC nations, many of who are parties to the TPP. Then, as now, the public, policymakers and the press can help derail these stealth attempts to undermine democracy by awakening to the threat before it is too late.


Pirate Party Australia’s Presentation to Trans-Pacific Partnership Stakeholders Meeting in Melbourne

Here is the speech that was presented by Pirate Party Australia President David Campbell at 11.45am at the TPPA stakeholders meeting in Melbourne. Thanks to Simon Frew (Deputy President) for authoring the speech and Mozart Palmer (Media Relations) for his contributions.

Pirate Party Australia, like many other attendees at the intellectual property section of this Agreement negotiation, first became aware of the proposed intellectual property provisions of the Trans-Pacific Partnership Agreement when the United States negotiating position was leaked last year.[1]

Much of the content of the leak is a wish-list for old media corporations who refuse to adapt to the Internet and instead pay massive “donations” to their government in order to push their legislative agenda against the interests of modern society. This wish-list echoes that of the intellectual property segments of the Stop Online Piracy Act – known as SOPA – and the Anti-Counterfeiting Trade Agreement – known as ACTA. The US TPPA provisions have been nicknamed “the son of ACTA”. The proposed solutions to online file-sharing will fundamentally change the operation of the Internet, to its detriment.

The extreme position of the leaked United States’ Intellectual Property chapter is highlighted by the unprecedented request for the negotiating texts to remain secret for four years after the agreement is signed. This secrecy is a perversion of democracy. The public would not be given a chance to oppose such a draconian attack on both the Internet and the civil liberties of citizens in all of the signatory countries. All of this to protect the corporate interests of a small sector of one industry? What about the cost to our democratic rights?

Considering the widespread international opposition to ACTA and SOPA, any secrecy around this agreement will discredit the TPPA in the eyes of many. We demand that a draft agreement be released before the treaty is finalised and signed to ensure our rights are adequately protected from marauding United States media conglomerates.

Transparency is the only way the Agreement will have any legitimacy. It is the 21st century and the time for secret negotiations on behalf of cashed up special interests has passed. The technology exists for governments to carry out these negotiations with complete transparency and it is time for citizens to have the right to know what is being carried out in their names. Our representatives cannot represent us if we are blind to their choices.

The secrecy surrounding the content of the negotiations makes discussing the Agreement extremely difficult. We are not exactly sure what we are arguing against. Our only verifiable guide is a leaked position paper provided to the citizens of the world by a non-profit whistle-blowing website – the same whistle-blowing website that is under constant attack by the United States for obeying the letter of the law and shedding light where corruption and greed have cast their sinister shadow. We would be able to provide a much clearer argument about what the Agreement should and should not include if we knew what was on the table. If negotiations were transparent, and if access to information was properly provided, the contributions from stakeholders & delegates at this consultation would be vastly improved.

In Australia, we have seen the harm that tighter intellectual property restrictions can cause through the Australia–US Free Trade Agreement. The Productivity Commission, a body that investigates the economic benefit or hindrance of various Australian economic policies, warned that agreeing to intellectual property provisions in free trade agreements needs to be subjected to a rigorous cost/benefit analysis.

The Australia–US Free Trade Agreement is believed to cost the Australian economy between 88 million and 763 million dollars a year in copyright enforcement alone. This is wealth being directly transferred from Australia to the United States – there is no net benefit to Australia derived from the tighter restrictions.[2]

If the US delegation gets its way, that and more will be forced upon your people and local economy, to what benefit? We urge delegates to reject the inclusion of any intellectual property provisions in your own national interests as they WILL harm your economies.

The intellectual property section of the Agreement as pushed for by the US in our leaked copy, will force Internet Service Providers along with large online content service providers such as Facebook, Google and other similar companies, to be liable for what their users access using their services. As an example, this in itself will make it impossible for Facebook to exist in its current form, as each photograph posted by every single user will need to be moderated to weed out copyright infringement before Facebook can host it. The same is true of YouTube, a Google owned service, in regard to video content. Their servers receive user content well in excess of an entire days worth of footage, every 60 seconds.

What is being proposed will not only harm the interests of the vast majority of countries at the negotiations, it will harm the interests of many companies in the United States. SOPA was opposed by the likes of Google and Facebook precisely because such a regime will make it difficult for these companies to maintain their current business models.

I will now proceed with an examination of the individual articles and paragraphs we have objection to.

Article 4.2 grants rights holders the right to control their products entry into each countries’ markets. Essentially this bans parallel imports, which is a direct attack on free trade. Australian consumers already suffer at the hands of unfair pricing of goods, services and cultural artifacts. Without some ability to access goods from other countries, the rights holders can dictate pricing on a country-by-country basis, being able to milk maximum profit from each customer.

Allowing parallel imports keeps prices down because retailers and consumers can find the lowest price for a product. The right to find the cheapest price for a good is one of the fundamental tenets of free trade, and the emerging global economy.

Another issue relating to parallel imports regards globalised communications – particularly the use of social media – and the need for people in ‘foreign’ markets to have access to content as soon as possible. One of the biggest motivations for people to share content online is the artificial and unnecessary delay of release times on a country-by-country basis.

As an aside, it makes sense for media companies to adopt synchronised global release dates, because any social media buzz, which will be global whether you like it or not, will help promote the product globally. Staggered release dates weaken any benefit from social media, and people denied access for living in the ‘wrong’ geographical region will be coerced by social pressures and advertisement displayed on globally available websites to access the material in the only way available to them – through online file-sharing.

Article 4.5 of the draft US intellectual property chapter extends copyright terms across the TPPA countries. For most countries involved in the negotiations, plans to extend copyright terms will directly harm your economies. As discussed earlier, these provisions in the Australia–US Free Trade Agreement had a negative impact on the Australian economy and will on all signatory countries except the US.

Article 4.9 proposes that circumventing copy protection on any media would be a criminal act. There are currently fair use exemptions for a range of reasons, from software experiment and study, to fair use for parody or comment and so on. Using a work for any reason other than as stated in the licence would risk criminal charges, even if the use is considered legal under current arrangements. This directly assaults the rights currently enjoyed by citizens in signatory countries to use media they have purchased how they wish. Rights could be locked up and sold once for each device, requiring consumers to purchase multiple licences to any media they wish to access. If they purchase a new iPod for example, they can no longer access their music collection on their new device and would need to re-licence all of their music.

Article 6 discusses fair use. There is currently a fair use exception for the transient copying of a file, which is removed from the US proposal. This is one of the most ill thought-through changes to the current system. All media streamed online is temporarily cached on the users’ computer so the video software can play it. This would become not only illegal, but criminal. More broadly the US draft intellectual property chapter removes many of the current fair use exceptions to copyright. This would harm peoples’ ability to interact with culture, which needs to be resisted.

Article 10.2 states that there must be a presumption that the rights holders’ claims to the right is valid, unless evidence to the contrary is produced. Aside from turning “innocent until proven guilty” on it’s head, this policy gives credence to various versions of “graduated response,” where a user has themselves removed from the Internet via cancellation of their Internet service based on a predetermined number of accusations, not proven violations of copyright.

In terms of patent law, this presumption is extremely problematic, as many granted patents have no actual basis for the claim. The effects of these policies can be witnessed primarily in the US, where there is a plethora of frivolous lawsuits around patents relating to computer software. Companies known broadly as ‘patent trolls,’ apply for patents on broad, obvious and fundamental ideas, violating the principle that a patent should be granted for only original and innovative developments. Recently a company called Eolas Holdings attempted to claim ownership of a patent for “any program that allowed access to the interactive web”.[3] This means that basically any program that uses the Internet would be required to pay Eolas Holdings a licencing fee to be able to distribute their products.

Thankfully they lost the case, yet it highlights the danger and cost of dealing with a presumption in favor of the organisation claiming the rights. A claim like this would need to be fought in court because the burden of proof would fall on the defendant to show the patent is invalid.

A similar trend can be found in copyright law. YouTube has an automated take-down system that allows rights holders to remove material that they hold copyright for. In the last week, a company called Rumblefish had a YouTube video taken down for breaching copyright on a ‘sound recording’. The closest thing to a recording in the video was a real bird call, which according to copyright law cannot be copyrighted as it occurs in nature.

This is precisely the sort of thing that will eventuate from the assumption in favour of rights holders, as proposed. Ordinary people who post videos for friends and acquaintances are not in a financial position to challenge such claims. Wrongful claims are a way for old media to directly obliterate the competition. As this is already happening, any claim that the TPPA would not cause such problems is patently (excuse the pun) ludicrous. This would just export the problem to all signatory countries.

Article 12.8 gives rights holders the right to demand personal information about customers of Internet Service Providers – or other service providers – on a mere accusation. This is a fundamental attack on the privacy of the citizens of all signatory countries. There is nothing to stop rights holders going on extensive fishing expeditions, searching through millions of users, looking for people to sue. This power is not granted to law enforcement without due process. Handing such powers to corporations without any requirement to show a breach has occurred is an attack upon the process of law. We have a right to not be placed under surveillance by companies based upon their word that illegal activity has occurred.

Article 14 contains border enforcement provisions which grant customs authorities the right to seize and destroy goods at borders, where they suspect the goods are infringing copyright, trademark or patent law. There is significant risk for goods to be wrongfully seized in transit, posing significant risk for any company engaged in global trade. This further exacerbates the situation of generic medicines, where seizures can negatively impact the health of citizens of signatory countries and beyond.

The agreement will result in funnelling vital health money out of developing countries, directly into the coffers of US pharmaceutical companies. There is no benefit in adopting any of these provisions for any participant country EXCEPT for the United States. It will have serious negative impacts on the health of many millions of people around the world, not just the countries in this agreement.

This has been shown through the experience of many participants in the TRIPS Plus agreements. A case in point is the US free trade agreement with Jordan. According to a study produced by Oxfam, the cost of medicine in Jordan has risen by an average of 20% as a result of the agreement. It is also threatening the viability of many government health programs in the country.[4]
Medicine Sans Frontier are deeply concerned with the impact this agreement will have upon their health programs. Over 80% of all medicine used by MSF is generic. Losing access to this source of medicine will result in literally millions of deaths. As an example, the introduction of generic medicines for AIDS patients reduced the cost of medicine by approximately 99%.[5] We must ask the delegates: “can your country afford such a drastic increase in health costs with no benefit in return?”

Just as the copyright section transfers value directly from each countries’ economy to the United States, the attacks on cheap medicine will result in much higher health costs in all signatory countries, with the extra costs being poured into the coffers of rich US pharmaceutical companies. For the good health of your citizens, we urge the delegates here to reject any attempt to crack down on generic medicines.

Article 15 is fraught with issues regarding what activities are to be considered criminal under the agreement.

Article 15.1 sets out criminal liability provisions that include criminal provisions for people engaged in copyright, trademark or patent violations on a “commercial scale”. Commercial scale includes: “significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain;” in other words, people not engaged in any sort of commercial activity at all. This is essentially to criminalise non-commercial file-sharing by stealth. This could lead to people being held criminally liable for copying a CD for a friend. Sharing should never be considered a criminal act.

Article 15.3 criminalises the use of camcorders in cinemas, regardless of intended use of said video, whether for personal or private use. There are already a raft of agreements and laws that cover this issue, and such a proposal would complicate an already confusing aspect of law.

Article 15.4 criminalises “aiding and abetting” intellectual property crimes (sic). There is no definition of what this means, and is so broad that it could mean anything from imposing liability upon intermediaries, such as Facebook and Google, to prosecuting the owners of a compromised wireless Internet hotspot that has been used to download copyrighted content. This poses a serious risk of inadvertently criminalising a significant portion of the population.

Trade negotiations are meant to provide mutual benefits to all signatory countries. The US draft intellectual property chapter will only benefit a few companies in the United States and will have a negative impact upon the culture and health of all signatory countries. As the primary exporters of intellectual property, the United States of America has the most to gain from the intellectual property segments of this agreement. All other members of this agreement are primarily importers of intellectual property. We urge all participating delegations to reject every aspect of the draft US intellectual property chapter as it will directly harm your economies and the well-being of your citizens.

pp xxxii & 166

Other sources and further reading

Access to Lifesaving Generic Medicines Threatened by US Trade Pact

PRESS RELEASE – Doctors without Borders


Public Health Safeguards Could Erode Under Trans-Pacific Partnership Agreement

New York, September 8, 2011 – Access to affordable lifesaving medicines will be threatened where they are needed most—in parts of the developing world—if the U.S. insists on implementing restrictive intellectual property policies in the Trans-Pacific Partnership (TPP) trade agreement, the international medical humanitarian organization Doctors Without Borders/Médecins Sans Frontières (MSF) warned today.

As the eighth round of closed-door TPP negotiations begins in Chicago this week, a leaked draft of the U.S. position indicates that the U.S. Trade Representative (USTR) is demanding aggressive intellectual property provisions that go beyond what international trade law requires, and is turning its back on previous commitments to safeguard public health in trade agreements.

For additional details, please view MSF’s TPP Issue Brief.

“Our experience around the world shows that MSF’s treatment programs – and our patients’ lives – depend on the availability of quality and affordable generic medicines,” explains Sophie Delaunay, executive director of MSF-USA. “What we’re seeing here is the U.S. and the pharmaceutical industry looking to impose some of the most stringent patent protections we’ve seen to date, significantly delaying introduction of generic medicines in the countries that sign up to the TPP and creating a fundamental contradiction between U.S. trade policy and U.S. commitments to global health.”

Encompassing nine countries to start (Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States), the TPP is billed as a vehicle for economic integration across the Asia Pacific region and a template for successive future regional trade agreements. As such, if hard-line intellectual property policies are included, the TPP has the potential to greatly diminish access to affordable medicines for millions of people in developing countries where MSF works and beyond.

The leaked USTR position paper, now available to the public, reveals that the U.S. is pushing its trade partners, including developing countries, to effectively lower the bar for granting patents, limit the capacity to challenge patents, and impose new forms of intellectual property enforcement – all measures that delay the introduction of more affordable generic drugs.

Correspondence and discussions between Congress and the USTR indicate that the U.S. will demand other harsh provisions that effectively delay the introduction of generic medicines. These could include “patent extensions” that extend monopolies beyond 20 years, “patent linkage,” which delays regulatory approval of generic drugs, and expanded “data exclusivity” terms, which further restrict access to the clinical data necessary for expedient generic drug approval.

Taken together, these provisions, if adopted, represent a major retreat from previous U.S. commitments to global health, including the 2007 bipartisan New Trade Policy, in which Congress and the Bush administration agreed to abide by important public health safeguards in future trade agreements. These safeguards give governments and patients in developing countries some relief from the most stringent intellectual property regulations when urgent public health needs are at stake.

Competition among generic manufacturers, for example, is what brought the price of the first generation of HIV medicines down by more than 99 percent over the last decade, from $10,000 per person per year in 2000 to as low as $60 per person per year today. This dramatic price drop has played a major role in helping scale up HIV/AIDS treatment to more than six million people in developing countries.

Stifling generic competition also has implications for the U.S. government’s own foreign aid policies. The U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) relies predominantly on the purchase of generic antiretroviral medicines, and has reported significant savings through the purchase of generic medicines. Vietnam, a TPP participant, is a PEPFAR-grant recipient.

“MSF urges the U.S. to stop chipping away at hard-won public health protections, including those enshrined in international law and the 2007 New Trade Policy, and to uphold its previous commitments to support generic competition and promote access to medicines,” said Judit Rius Sanjuan, U.S. manager of MSF’s Campaign for Access to Essential Medicines. “Policies that restrict competition thwart our ability to improve the lives of millions with affordable, lifesaving treatments.”

TPP negotiating parties are under no obligation to subject their negotiating positions to public scrutiny; only the final agreed-upon text will be made publicly available. MSF believes that regional and bilateral trade negotiations, including the TPP, should be conducted in an open and transparent manner that allows for participation by civil society and other relevant stakeholders, and ensures that public health needs are given adequate attention.

For more information, please see MSF’s Issue Brief on the TPP.