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Trans-Pacific Partnership Raises Intellectual Property Concerns

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By Casey C. Sullivan, Esq. on October 23, 2015 6:58 AM

In early October, negotiators finally put the finishing touches on the Trans-Pacific Partnership. The TPP is the largest regional trade agreement ever, binding 12 Pacific nations and 800 million people, and effecting 40 percent of global GDP.

But the text of the agreement remains a secret -- except, that is, the parts that have been released by WikiLeaks. The "public secrets" website has published the text of the TPP governing intellectual property rights, raising concerns that the partnership's treatment of intellectual property could harm the public interest.

The TPP: One Really Big Secret

The TPP is ambitious in size and scope, representing the largest free trade agreement in decades. But it has long been criticized for its secrecy. Negotiations were conducted in secret -- as was necessary to allow for frank bargaining, the U.S. government said. Even after the agreement was finalized, it has still not been officially released. Even though Congress must approve the Partnership before the U.S. can join, the finalized text still might not be publically available for a few more weeks, according to The New York Times.

Enter WikiLeaks. The group released a copy of the agreement's intellectual property chapter just a few days after negotiations ended. The TPP covers patents, trademarks, copyrights and other intellectual property in an attempt to create a more coherent international IP system. But the leaked text has lead many advocates to raise concerns about the effect the agreement will have on journalism, medicine, and free information. For example, the Electronic Frontier Foundation, long a TPP skeptic, declared that the leaked text was "all that we feared."

Copyright Complaints

One of the biggest objections that groups like the EFF have is to the expansion of copyright terms under the TPP. When it comes to copyright terms, the agreement globalizes (or rather, Pacificizes) the American approach to copyrights. It would expand copyright protection to "not less than the life of the author and 70 years after the author's death."

The text also prohibits circumventing "any effective technological measure that controls access to a protected work." In doing so, it mimics restrictions on unauthorized access found in the U.S. Digital Millennium Copyright Act -- restrictions which have been heavily criticized at home for years.

Health Care Complaints

The TPP's IP section also deals heavily with pharmaceuticals. The agreement grants drug companies a 12 year monopoly over "biologics" before the production of cheaper, generic equivalents is allowed. Biologics are cutting-edge drugs that are isolated from natural sources and often manufactured by biotechnology.

Twelve years is a shorter term than U.S. pharmaceutical companies want, but much longer than international health advocates find acceptable. Generic competition brings down prices -- by as much as 99 percent in the case of HIV/AIDs-fighting antiretroviral medicines -- and ensures that poor patients can have access to life saving medicines. Doctors Without Borders, for example, has issued strong condemnation of the agreement.

A Partnership With Bite

The TPP doesn't leave it to governments to enforce its terms. It creates an investor-state dispute resolution mechanism that would allow everyone from hedge-funds to small time inventors to bring trade disputes before a binding, international resolution panel.

Such dispute resolution mechanisms are nothing new, but in the past, they've been limited to governments. When tuna interests, for example, wanted to end the United States' dolphin-safe tuna rules, they had to lobby the Mexican government to bring the case before the World Trade Organization. (The WTO then ruled that the dolphin protections at issue were an impermissible barrier to trade.) Under the Trans-Pacific Partnership, companies themselves would be able to bring up disputes directly. The TPP's rulings would be enforceable through "trade retaliation," or economic sanctions against offending countries.

Not a Sure Thing

There's a lot of momentum behind the Trans-Pacific Partnership. After years of negotiations, few countries are likely to walk away over intellectual property rights -- or objections from their domestic dairy and auto industries for that matter.

But, the Partnership is not yet a sure thing. Congress has months to approve or reject the deal. (The grant of fast track trade authority to the Obama administration in June means they can only give an up or down vote.) The Partnership has already faced a good amount of criticism from American companies, who think it will undermine their businesses, and liberal politicians, who view it as a boon to international corporations.

The more heated the current election cycle gets, the more politicized the issue may become. Hillary Clinton, for example, recently announced her opposition to the TPP. Donald Trump, we imagine, is still developing a position.

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