CLICK HERE FOR THE FULL PAPER

Draft Version 1.3

December 6, 2011

Authors:

Sean Flynn, American University Washington College of Law, Associate Director, PIJIP

Margot Kaminski, Yale Law School, Executive Director, Information Society Project

Brook Baker, Northeastern University School of Law, Program on Human Rights and the Global Economy

Jimmy Koo, American University Washington College of Law, Fellow, PIJIP

This briefing paper provides preliminary analysis of two leaked U.S. proposals for an intellectual property chapter in the Trans Pacific Partnership (TPP) agreement and of a related proposed chapter regulating pharmaceutical reimbursement programs.

The U.S. proposals, if adopted, would upset the current international framework balancing the minimum standards for exclusive rights for media and technology owners, on the one hand, and the access rights of the public, competitors, innovators and creators, on the other. The proposed U.S. IP chapter greatly exceeds the imperfect, but more balanced provisions codified in the 1994 WTO Trade-Related Aspects of Intellectual Property Rights Agreement [hereinafter TRIPS]. The proposals are primarily based on, and frequently go beyond, the maximalist and controversial standards of the Korea-U.S. Free Trade Agreement (KORUS) and the Anti-Counterfeiting Trade Agreement (ACTA), neither of which was subject to an open and transparent negotiation process. The provisions of the TPP proposals are inconsistent with the current laws in every TPP member country for which public analysis is available, including the U.S. itself. The proposal is also a new step for U.S. international policy, abandoning the development-oriented flexibilities on access to medicines expressed in the 2007 New Trade Deal between Congress and the Bush Administration.

The U.S. combined proposals are particularly inappropriate for developing countries where the risks and effects of exclusionary pricing by foreign monopolists are most acute. The U.S. TPP proposals are the latest manifestation of its maximalist agenda in international intellectual property, which stands in stark contrast to the “development agenda” being debated in more open, transparent multilateral forums. Substantively, the development agenda is focused on maximizing differentiation and flexibility in protection and enforcement, while globalizing a set of mandatory minimum limitations and exceptions – including for persons with visual impairments, for libraries, for educational uses and to promote access to needed medicines and technologies. CLICK HERE FOR THE FULL PAPER