

(Ellen Davidson/The Washington Post)

Susan Sell is a professor of political science at George Washington University, who has carried out landmark research on international negotiations over intellectual property. Below is her response to five questions about the intellectual property chapter of the proposed Trans-Pacific Partnership agreement, which the Obama administration has been negotiating with trading partners behind closed doors. A draft of the chapter was leaked to WikiLeaks two days ago.

The draft TPP text was kept secret from the general public. Who has seen it and why?

The United States Trade Representative and the Obama administration have kept the treaty texts secret from the public. However, they have shared texts with 700 or so “cleared advisers,” all of whom come from intellectual property rights holders’ industries. Members of the Industry Trade Advisory Committee on Intellectual Property Rights have had access to texts all along. These members include representatives of the Pharmaceutical Research and Manufacturers of America, the Recording Industry Association of America, the Entertainment Software Association, as well as firms such as Gilead Sciences, Johnson and Johnson, Verizon, Cisco Systems, and General Electric.

Select members of Congress have had very limited access to the draft treaty texts. After Thursday’s leak of the intellectual property chapter it is obvious why the USTR and the Obama administration have insisted on secrecy. From this text it appears that the U.S. administration is negotiating for intellectual property provisions that it knows it could not achieve through an open democratic process. For example, it includes provisions similar to those of the failed Stop Online Piracy Act (SOPA), and Protect Intellectual Property Act (PIPA), and the Anti-Counterfeiting Trade Agreement (ACTA) that the European Parliament ultimately rejected. The United States appears to be using the non-transparent Trans-Pacific Partnership negotiations as a deliberate end run around Congress on intellectual property, to achieve a presumably unpopular set of policy goals.

What’s in it that is interesting?

Some of the most interesting information in the leaked chapter identifies those who are proposing or opposing particular provisions. The United States (often with Australia, sometimes Japan) has taken extreme hard-line positions. For example, only the United States and Japan oppose the objectives in the treaty (Article QQ.A.2) that mention economic and social development, maintaining a balance between the interests of rights holders and users, protecting the public domain, quality examination procedures, and access to affordable medicines. I was somewhat surprised to see how strongly other countries are pushing back against U.S. demands, especially on issues related to access to medicines, Internet Service Provider liability, damages, and copyright in digital media.

People call it a Hollywood wish list – why?

Some provisions of the text resurrect pieces of SOPA and PIPA and ACTA that many found to be objectionable. The entertainment industries (movies and music) championed these agreements and sought stronger protections in the digital realm. These industries were stunned when SOPA and PIPA got killed. Only the United States and New Zealand oppose a provision that would require compensation for parties wrongfully accused of infringement (QQ.H.4). The United States is alone in proposing criminal procedures and penalties “even absent willful trademark, counterfeiting or copyright or related rights piracy”.

Only the United States and Australia oppose a provision limiting Internet Service Provider liability (QQ.I.1); U.S. copyright holders would like ISPs to be held liable for hosting infringing content. The United States also proposes extending copyright to life plus 95 years for corporate-owned copyrights. Hollywood consistently presses for longer copyright terms and it is doing so here.

What are the implications for access to medicine worldwide?

The United States is proposing a number of provisions designed to strengthen and extend brand-name pharmaceutical companies’ monopoly privileges. For example, several provisions would support the pharmaceutical firms’ practice of “ever-greening” in which a firm will hold a patent on drug ‘x’ in tablet form, then later obtain a patent on drug ‘x’ in a gel cap, and later still obtain another patent on the same drug in capsule form. This extends patent life on a known substance, despite no new medical efficacy; thus it delays generic competition.

The United States seeks patents for new uses of a known product (all other countries but Australia oppose this). The United States alone proposes damages for patent infringement of up to three times the amount of injury suffered. The United States and New Zealand oppose compensation for victims of enforcement abuse (QQ.H.4.4). The United States also proposes giving customs officials ex officio powers to seize goods in transit that are suspected of being counterfeit. Several years ago European seizures of lawfully produced Indian generic drugs en route to customers in Africa and Brazil threatened to disrupt generic supply chains, and India threatened to take its dispute over this practice to the World Trade Organization. Other U.S. proposals would create exclusive new rights over clinical trial data, so that generic firms would be prohibited from using those results to prove efficacy and bioequivalence. The United States also proposes patents for medical procedures. Overall, these provisions would reduce generic competition, reduce access to medicines, and raise drug prices. This seems ironic in light of Obama’s professed domestic commitment to affordable health care.

What political impact will the publication have?

If these provisions are widely publicized, I expect vigorous debate over the implications of these measures. Various activist groups are mobilizing already, and I think they are hoping for another SOPA/PIPA/ACTA defeat. In the short term, I expect that the release of this text will increase Congressional opposition to extending Fast Track negotiating authority to President Obama. Congress has already expressed displeasure at being shut out of this process. When its members see how provisions that had been defeated in a domestic, democratic, and deliberative process in January 2012 have been included in TPP I suspect that they will not be happy.

Susan Sell is professor of political science at George Washington University. She spent 2012-2013 as a fellow at the Woodrow Wilson Center, Washington DC, carrying out research for a new book on current debates over intellectual property. Her book, “Private Power, Public Law: The Globalization of Intellectual Property Rights” is the standard account in international relations of how intellectual property became an international issue.