As the saying goes, “if you don’t succeed the first time, try, try again.” Despite the defeats of the Stop Online Piracy Act (SOPA), the Protect IP Act (PIPA), the Anti-Counterfeiting Trade Agreement (ACTA) and a host of other intellectual property rights laws, the Obama administration is stubbornly pushing forward in strengthening media copyright infringement enforcement and penalties — despite overwhelming rejection of the agenda from the president’s own party base.

In a way, the president really doesn’t have much of a choice in this matter. Most of the Democrats’ key supporters are media producers, and — without them — a Clintonesque coalition of industrialists that has proven necessary to combat Republican Super PAC money cannot be formed. Sony, Microsoft, Comcast and Disney have all called on the president to protect their intellectual property on the veiled threat that the Democrats may lose Hollywood’s support should they choose to do nothing.

Hence, the notion that the administration would try again is not at all shocking. But, as the world has learned since WikiLeaks released the draft text of the still under-negotiations Trans-Pacific Partnership Intellectual Property Rights Charter, there is much to be concerned about.

A new world order

The Trans-Pacific Partnership Agreement is the largest economic treaty ever drafted. Constituting national economies equivalent to more than 40 percent of the world’s gross domestic product, the Agreement has the capability to define international trade and governmental policies toward manufacturing for decades to come. Despite this, the development and negotiation of this treaty was so secretive that members of Congress did not have access to the entire text, even though 600 “trade advisers” — representing the largest corporate powers — had free access to the document in its entirety. When the treaty arrives on Capitol Hill for ratification, Congress will be denied the right to amend — forcing the Senate to accept or reject the proposal as is.

The leaked section of the TPP — the Intellectual Property Rights Charter — is among the most important parts of the treaty, as it deals with Internet services, medicines, copyrights, civil liberties and biological patents. Currently, the 12 treaty member states — the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei — are in an active state of disagreement concerning many of the proposals included in the charter. From Nov. 19 – 24 in Salt Lake City, however, negotiators will come together to finalize the formal agreement. The leak portion was obtained after the Brunei TPP meeting from Aug. 26 – 30.

“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,” said Julian Assange, editor-in-chief of WikiLeaks. “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.”

Discussion points

Major concerns of the treaty:

More than a dozen proposals that would curtail the generics market for medications. The treaty tightened the language of the 2001 Declaration on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and Public Health — which states, “We recognize the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics” — toward focusing on cases of epidemic, national emergency or extreme urgency. This — in effect — reduces the call for access to generics; particularly, in light of calls to extend patent terms, to allow patenting in nations without pharmaceutical manufacturing capabilities (which would undermine generics’ sales in those countries) and to allow clinical test data — instead of human trials — to serve as evidence of medication safety. This will create a monopoly in which the large pharmaceutical companies can get their product out to market faster and with less consideration for safety, and protect their exclusive right to the medication for longer — which would limit competition. The United States is the primary supporter of these measures. This expansion of patent protection will also protect bioengineering firms, such as those that produce genetically-modified organisms.

The patenting of surgical methods

Currently, the World Trade Organization allows countries to exclude from patent consideration “diagnostic, therapeutic and surgical methods for the treatment of humans or animals.” Such a consideration prevents John Hopkins University from patenting open heart surgery, for example, preventing a monopolization of services. The United States is pushing to permit such patenting.

In effect, this supports the medical-device industry; if a manufacturer controls the right to a device and the rights to how to install the device, that manufacturer can license physicians to use their “system,” charge more for the licensing fee, and increase their profit margins exponentially. Medronic, Abbott, Johnson and Johnson, DameTech, North Coast Medical, and Airmed Biotech — all of which serve as “cleared advisers” to the United States Trade Representative — will all directly benefit from this.

Extension of copyrights

Currently, the 1886 Berne Convention for the Protection of Literary and Artistic Works establishes a copyright term to be for the life of the creator of the copyrighted work plus fifty years. The treaty seeks to make the copyright period longer, extend it to all commercial recordings and re-enforce the digital material copyright process. All of this is extremely contemptuous: the United States, Australia, Peru, Singapore and Chile are seeking a copyright term of life for 70 years for a natural person. The U.S. wants 95 years of exclusive rights for corporations, while Australia, Peru, Singapore and Chile want 75 years. Mexico wants life plus 100 years for natural persons’ copyrights and 75 for corporations. For unpublished works, the U.S. wants 120 years.

Restriction of “fair use”

Under the Berne Convention, exceptions to the copyright law — quotations, topical news of the day, speeches, public affairs issues, musical compensations and use for educational purposes — were specifically allowed. Any other “fair-use” exception had to be denied under a three-step test that states that the copyright owners have the exclusive rights to the copyright in question, current laws do not already make an exception for the copyrighted material and the material is not an audio or visual recording. TPP will tighten these exceptions, allowing governments to draft laws that could curtail “fair use” in the name of protecting right holders. This could significantly undercut the press and the media.

Ending geographically-based patenting

The United States is against a proposal that is generally held by the remainder of the member states, in which geographically-based patents — or the patenting of a region-specific product — is struck down. This is of interest to many countries, as many goods — particularly, electronic goods — which are sold at one price in the United States are sold at a higher price abroad. It is argued that if a foreign retailer can sell the American version of a product at the American price, he should be allowed to. This, in effect, would end all regional restrictions, such as region codes on DVDs.

Criminalizing the breaking of technical protection measures

The United States is seeking to make the breaking of technical protection measures on intellectual properties — such as “bootlegging” a copyrighted DVD or “jailbreaking” an iPhone — a separate punishable action apart from copyright infringement. This would extend to situations where no copyright infringement occurred — such as the downloading of public domain materials. The exact extent of this provision is unknown, as the negotiating transcript is unavailable.

Increases in damages from infringement

Under TRIPS, a copyright holder is only due damages limited to the sum of the royalties the copyright holder would have received should a proper license have been secured — roughly, the retail price of the material, excluding any punitive costs. The treaty changes this, suggesting that “In determining the amount of damages under paragraph 2, its judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.” This ambiguity makes it easier to financially punish copyright violators — for example, a magazine that downloads a copyrighted picture without being aware of the active copyright may be forced to pay the full licensing fee for the picture for each iteration the picture was published — without establishing an obligation to prove harm by the copyright owner. This can promote and encourage “patent trolling,” or the practice of buying trademarks and patents with the intent of going after alleged intellectual rights violators.

Public disdain

Considering the wide-reaching and potentially unsettling nature of the treaty, it is understandable why the administration would like to keep it under wraps. Since the leak has been disclosed, criticism of the Obama administration has came hard and fast.

“The leak of the secret text confirms that the U.S. government continues to steamroll its trading partners in the face of steadfast opposition over terms that will severely restrict access to affordable medicines for millions of people,” said Judit Rius Sanjuan, U.S. manager of Doctors Without Borders’ Access Campaign, which works to provide drugs and medical care in developing countries. “The U.S. is refusing to back down from dangerous provisions that will impede timely access to affordable medicines.

“It’s encouraging to see that some governments, including Canada, Chile, New Zealand, Malaysia, and Singapore, are pushing back against some aspects of the U.S. position with their own proposal that better protects access to medicines; what is troubling is that the text also shows that some countries are willing to give in to the US government’s damaging demands. We urge countries to stand strong to ensure that the harmful terms are removed before this deal is finalised.”

Peter Maybarduk, director of Public Citizen’s global access to medicines program, said the Obama administration’s proposals are the worst and most damaging for health seen in a U.S. trade agreement to date. Adding that the Obama administration has backtracked from even the modest health considerations adopted under the Bush administration.

“The Obama administration’s shameful bullying on behalf of the giant drug companies would lead to preventable suffering and death in Asia-Pacific countries,” Maybarduk said. “And soon the administration is expected to propose additional TPP terms that would lock Americans into high prices for cancer drugs for years to come.”

In a letter to the president signed by the AARP, the Alliance for Retired Americans, the Alliance for a Just Society, the American Federation of State, County and Municipal Employees, Families USA, the National Association of Counties, and the National Women’s Law Center, asked for a reconsideration of TPP’s potential effect on the public health.

“We appreciate that international trade has the potential to raise the standard of living and quality of life for people in the United States and around the world,” the letter read. “However, the proposals that have been advanced by the USTR related to the pharmaceutical, biologic and medical device industries could do the opposite by undermining access to affordable health care for millions in the United States and around the world.”

The letter goes on to urge that the TPP agreement and future trade agreements do not limit the tools available to states or the federal government to manage pharmaceutical and medical device costs in public programs, and that agreements do not bind the U.S. to a 12-year exclusivity period for brand-name biologic drugs.

Nevertheless, the United States is determine to complete negotiations by the end of this year. “I think the important thing to remember is that the reason we are in the TPP discussion is the same as the reasons Singapore is — same for Japan and the other countries are — that it is in each of our own interest for there to be high quality agreement that benefits each of us individually and all of us together collectively,” said Treasury Secretary Jack Lew earlier this week.

It’s unknown if the leak reflects the current language of the treaty or if the European treaty members can resist the United States. But, should the U.S. gets its way, the treaty could represent the largest infringement of civil liberties and social protections in modern history. This is not the type of thing that should be talked about behind locked doors. This should not be kept secret. The fact that it is represents a grand and possibly fatal level of distrust between the administration and the American people.