How The TPP Is Trouble: Public Interest Explicitly Tossed In Favor Of Corporate Interests

Michael Geist is counting down the days to when the TPP can first be signed in the US (February 4th) by going through and highlighting problematic aspects of the agreement. He's started with the simple fact that the TPP's intellectual property section is explicitly designed to favor corporations over the public. We've obviously discussed some of this ourselves, such as the fact that the only reference to things like the public's rights (such as fair use) is to recommend that countries consider them, but when it comes to stronger copyright and patents, the TPP requires them. Geist goes a bit further, looking at the history, noting that in early drafts, a group of countries including Canada, New Zealand, Chile, Peru, Vietnam, Brunei, Malaysia, Singapore and Mexico initially all supported objectives that emphasized the public's rights as well as corporations'. But, with the final version, basically all of that went out the window, and almost entirely because of the US striking a hard line in the negotiations (with some help from Japan, who joined the TPP process a bit later than others). Below were the originally proposed "objectives":

The objectives of this Chapter are:

• enhance the role of intellectual property in promoting economic and social development, particularly in relation to the new digital economy, technological innovation, the [PE: generation,] transfer and dissemination of technology and trade;
• reduce impediments to trade and investment by promoting deeper economic integration through effective and adequate creation, utilization, protection and enforcement of intellectual property rights, taking into account the different levels of economic development and capacity as well as differences in national legal systems;
• maintain a balance between the rights of intellectual property holders and the legitimate interests of users and the community in subject matter protected by intellectual property;
• protect the ability of Parties to identify, promote access to and preserve the public domain;
• ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
• promote operational efficiency of intellectual property systems, in particular through quality examination procedures during the granting of intellectual property rights.
• the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
• support each Party’s right to protect public health, including by facilitating timely access to affordable medicines.

There are some pretty good points in that list. I especially like ensuring that intellectual property does not, itself, become "barriers to legitimate trade." But, you'll notice basically none of that in the final version. Instead, the only thing that survived was one that, you guessed it, focuses more on the benefits to companies, than to the public:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

It's not a bad objective by any means, but it's pretty naked without all the others listed above. As Geist notes:

The objectives provision may not carry the same weight as positive obligations in the treaty, but they are important, reflecting the goals of the negotiating parties and providing a lens through which all other provisions can be interpreted. Canada and many other countries wanted to ensure that the lens promoted maintaining a balance between rights holders and users on all IP provisions. The exclusion from the objectives provision sets the tone for the IP chapter and highlights how user interests and the priorities of countries such as Canada were given limited weight within the final text.

All the more reason to question how this possibly benefits the public. Permalink |