Over the past week, critics of the Trans-Pacific Partnership (TPP) Agreement—a free trade agreement (FTA) currently being negotiated by the United States and 11 of its trading partners across the Asia-Pacific region—have made a large hue and cry regarding a draft chapter of the agreement leaked on WikiLeaks pertaining to the TPP’s intellectual property (IP) provisions. Critics have lodged a litany of complaints against the TPP in general and the IP sections of the agreement in particular, including that the TPP has been negotiated “in secret,” that America’s TPP negotiators are attempting to surreptitiously circumvent existing U.S. law in negotiating the agreement, that the “onerous” protections for innovative products such as novel biologics would compromise access to medicines in the developing world, and that the TPP is likely to lead to much greater surveillance by Internet service providers (ISPs) on citizens’ online surfing habits. Yet each of these criticisms is either downright unfounded or significantly overblown, and the reality is that the “leaked TPP IP chapter” is really much ado about nothing, despite its scandalous trumpeting by those who wish to sow fear, doubt, and uncertainty regarding the TPP.
First, the reality is that the draft of the TPP’s IP chapter being circulated on the Internet is many months old now, dating from May 2014. So the content in it is dated, and certainly does not reflect the current state of negotiations, especially as negotiators convene again in Australia this weekend for another round of negotiations. Moreover, the draft of the TPP IP chapter leaked on WikiLeaks shows most of the IP language in brackets, meaning that very little of the IP text in that draft had been agreed upon by negotiating countries. That makes it very difficult for opponents of the TPP or its IP chapter to make realistic claims about what the TPP would require or how the TPP would alter America’s laws, as critics assert.
To this point, as Amanda Denton of the International Intellectual Property Alliance notes, some commentators, including Margot Kaminski, have asserted that the leaked TPP IP text amounts to an attempt to “bind” U.S. law through trade agreements. First of all, who cares? The idea that any nation should be able to do whatever it wants with regard to its own domestic laws when those laws affect trade is an idea that will prevent the global economy from functioning fully. This is the kind of excuse a nation like China makes when it wants to defend its mercantilist policies such as currency manipulation or forced technology transfer that directly harm other nations and contravene global trading norms.
But in any case, the reality is that since the United States began negotiating free trade agreements in 2000, no FTA has required a change to U.S. intellectual property laws. On the contrary, the U.S. negotiating position in the TPP with regard to copyright protections is not only consistent with U.S. law—matching the current duration of U.S. copyright law—but also reflects standards embodied in other existing U.S. FTAs (i.e. with Korea) that have been approved by the U.S. Congress. And, as Denton notes, the only copyright-related provision of the TPP that U.S. negotiators are advocating for which has not already been part of a Congressionally approved U.S. FTA is one that would enhance liability for aiding and abetting criminal copyright infringement, which itself is already a clearly established U.S. law. In short, as the implementing legislation for all recent U.S. FTAs makes apparent, U.S. trade negotiators are not using free trade agreements as back doors to change U.S. laws.
Others have argued that the chapter represents an attempt to resurrect provisions of the Stop Online Piracy Act (SOPA). But the complaint that the TPP threatens to endanger Internet freedom because it would condone Website blocking through domain name system (DNS) blocking (one of the key controversies related to the SOPA saga) has been revealed as a red herring, as this subject is entirely absent from the text and as U.S. Trade Representative Michael Froman has indicated that, “There is nothing in the Trans Pacific Partnership, zero” that has anything to do with this issue. The U.S. copyright system for digital content, established in large part by the Digital Millennium Copyright Act, generally gets the balance right when it comes to balancing concerns about copyright and digital content with ISP liability. And, as ITIF has argued, the U.S. government is right to push other nations, including Canada, to establish a system like that as part of the TPP.
In fact, perhaps the one area where there has been some question about whether U.S. negotiators have actually advocated in the TPP for a standard for intellectual property protections consistent with U.S. law—that is, 12 years of data protection for biologic drugs—is one area where it’s most important that U.S. negotiators indeed do so if biomedical innovation is to flourish throughout the countries in the TPP region. As ITIF writes in Ensuring the Trans-Pacific Partnership Becomes a Gold-Standard Trade Agreement, U.S. policymakers enshrined 12 years of data exclusivity for biologics in recognition of the need to maintain adequate incentives for biologics makers to invest in uncertain R&D activities while at the same time making room for competition by creating a path for biosimilar manufacturers to bring biosimilars to market. If the TPP Agreement fails to include 12 years of data exclusivity for biologics, then U.S. biopharmaceutical firms would both lose protections already granted under U.S. law and be placed at a competitive disadvantage to foreign, particularly European, biologics manufacturers, who can receive up to 11 years of protection.
At the same time, robust IP protections in the TPP will foster the potential for biomedical innovation in developing-country TPP nations. For instance, as Georgetown University Business School Professor Mike Ryan found in a comprehensive study of patent reform on biomedical innovation in Brazil, stronger IP laws provided incentives for biomedical technology entrepreneurs to make risky investments into innovation and facilitated technology markets among public-private technology innovation networks, enabling biomedical innovators in Brazil to tap into the nation’s rich natural biodiversity on an unprecedented scale. As to the charge that longer periods for data exclusivity in the TPP would compromise “access to medicines,” the reality is that both access to medicines and the existence of medicines are important. Certainly, addressing current challenges with the medicines available today is vital; however, we must also be concerned with continuing to invest in solutions to diseases and conditions which have not yet been solved. Doing so requires preserving sufficient incentives to invest in biomedical research—including 12 years of data exclusivity for biologics.
Finally, as to the blanket charge that the TPP and its IP chapter are being covertly negotiated in secret, the reality is that the IP chapters the United States has negotiated in recent FTAs with countries including Korea, Colombia, and Panama have been remarkably consistent. That the WikiLeaks-leaked draft of the TPP IP chapter should suggest that the U.S. is pursuing similar positions as to those it sought in the Korea FTA should not come as any kind of surprise. Moreover, the reality of trade negotiations is that, just as in poker, if you put all your cards face up on the table, it’s likely that you’ll lose. The United States government needs to be able to effectively negotiate trade agreements in the interest of American workers and consumers, and if they have to send every memo and draft to WikiLeaks you can be sure that other countries will win the game.
In short, the hullabaloo over the outdated draft text of the TPP IP chapter from May 2014 is just more of the same from the advocates who want less global economic integration and free everything (free drugs, free music, free broadband). As America’s negotiators convene in Australia with their counterparts from fellow TPP member countries this weekend, they need to steadfastly advocate for robust intellectual property protections and a TPP whose terms will foster innovation throughout all nations in the TPP.