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A controversial trade deal that would require significant revisions to both foreign and domestic intellectual property law moved forward last week as House and Senate leaders jointly introduced bills authorizing “Trade Promotion Authority” — otherwise known as fast-track approval — for the Trans-Pacific Partnership (TPP). Fast-track approval is a procedural mechanism that allows the executive branch to move forward more quickly, under ongoing obligations to disclose its negotiating stance to Congress, with assurances that individual Senators and Representatives can’t derail the deal at the last minute or demand domestic concessions once a deal has been struck with foreign negotiation partners.
The TPP is an international trade deal the United States is negotiating with Australia, Brunei, Chile, Canada, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. Together these countries represent more than 40% of global GDP, and a significant portion of the world’s intellectual property investors. While the U.S. Trade Representative has defended the negotiations, there are many critics of the deal. Some argue that U.S. drug companies are using the TPP to solidify unfair domestic controls on generics’ market entry, while expanding these controls into foreign markets. Others decry the secrecy that has become the hallmark of the TPP negotiations, especially where the intersection of intellectual property and public interest is concerned. The TPP apparently contains no mention of fair use in the copyright context, and in fact requires member countries to enact laws like the DMCA’s anti-circumvention provision, which is controversial here and could arguably infringe on the First Amendment right to freedom of speech (and of the press) in many instances.
Indeed, the USTR has refused to release any of the terms of the TPP, even an anonymized version that does not reveal which nation supported or opposed each provision. Senators Ron Wyden (D-OR) and Elizabeth Warren (D-MA) have each asked for the release of drafts of the TPP, to no avail. Although as members of Congress they have been “allowed” to see the text for themselves, they are “not allowed” to disclose its terms to the public.
In response, the radical transparency group Wikileaks obtained and published the negotiator’s text of the TPP — including the negotiator’s notes on which country supported, opposed, or was still contemplating each provision. The leaked draft seems to largely support the charges that entrenched interests are using the secret, “stakeholder” access the USTR has given them to enlarge their intellectual property rights, sometimes at the expense of foreign citizens’ pocketbooks, and sometimes even at the expense of American citizens’ fundamental rights to use, discuss, and debate ideas across technological platforms. One country apparently even proposed extending copyright protection to 100 years after the author’s death — which would have been a clear move toward permanent copyright at the expense of the public domain. Intellectual property theory suggests, nay, requires, that there be a balance between the owner’s right to exploit intellectual property and the public interest in copying information, processes, and tools in order to both improve them and exploit them for themselves (this is why patent terms are not endless). Based on this reading of the leaked text, it seems pretty clear that this balance is changing with the TPP, and that industry “stakeholders” are using their position inside the negotiations to obtain results that they could not obtain in the light of day.
Nevertheless, as last week’s activity in Congress shows, the TPP rolls on.
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