Going the Way of the Doha? The TPP and Contested Intellectual Property and International Trade Linkages

Going the Way of the Doha? The TPP and Contested Intellectual Property and International Trade Linkages

It has been nearly twenty years since the Uruguay Round of World Trade Organization (WTO) trade talks that created the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. In the intervening decades, multilateral trade negotiations have stalled and international agreements relating to intellectual property (IP) law have trended towards bi- and plurilateral levels. And, if the late 2013 Wikilikeaks of a draft copy of the ongoing Trans-Pacific Partnership (TPP) negotiations is any indication, the TRIPS Agreement might remain the high-water mark for international IP coordination for the foreseeable future.

At the time of the Uruguay Round talks, IP matters were largely the domain of a small cadre of academics, lawyers, and policy-makers. The international diffusion of IP law via the TRIPS Agreement and within the WTO has given prominence to the role that IP law plays with respect to economic and human development in developed and developing nations.

Government negotiators, industry representatives, civil society advocates, and a host of other interested parties are now increasingly active in shaping IP law regimes. This considerable interest is complicating efforts to update legal and governance systems to meet contemporary and future realities.

In the past, large and established industries have effectively lobbied their governments to enact domestic IP reforms and to insert these previsions in international trade agreements in order to preserve their business interests. As some academics argue, the TRIPS Agreement was the result of concerted lobbying efforts by the entertainment and pharmaceutical industries in the United States. Against the backdrop of an emerging “knowledge based economy,” these and other industry groups are likely to continue pressing for changes that support their business practices.

However, coordinated activism against perceptions about increasing levels of IP protections is being led by a host of developing states as well as civil society critics in developed and developing countries. These groups are reacting to what they consider a proprietary ownership system over cultural and communicative processes that is deemed to serve the interests of dominant industries primarily located in developed states. These actors are seeking to ‘rebalance’ the international IP system to meet the socioeconomic development objectives of a diverse set of stakeholders in developed and developing countries. They often advocate for legal and socio-legal reforms that they contend will stimulate public policy objectives for technological innovation and economic growth while addressing the economic, social, cultural, and development needs of users, citizens, and emerging business practices.

The increasingly contested nature of IP negotiations has resulted in a patchwork of international trade and IP agreements that are negotiated outside of established multilateral forums. In particular, the US and EU have been actively seeking arenas where they are better able to reach agreement on complex issues. However, the failure of international discussions - such as the Anti-Counterfeiting Trade Agreement (ACTA) - as well as American legislation - notably the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (the PROTECT IP Act, or PIPA) - have cast doubt on the viability of these exercises.

ACTA, SOPA, and PIPA have failed (at least for now) for similar reasons;  the effort of creating these policies had been derailed due to sustained civil society and public interest opposition. A number of concerned groups argued that some of the policies within the proposed laws' scopes were too broadly construed, threatened civil liberties and development concerns, did not strike a ‘balance’ between private and public rights, and would have unforeseen consequences for economic growth, creativity, and innovation.

In the case of ACTA, the outcome of two years of negotiations between representatives for nearly 40 countries has been stalled, as the number of signatories required to ratify the treaty for it to come into effect has not been met. To date, only Japan has officially ratified the treaty; support for it has otherwise diminished. The European Parliament rejected the treaty in a landslide decision in 2012. David Martin, a Member from the United Kingdom, welcomed the move, saying, “The Treaty was too vague and was open to misinterpretation. I will always support civil liberties over intellectual property rights protection.”

SOPA and PIPA, domestic initiatives in the US, also met concerted backlash. In these cases, civil society groups were joined by corporations in the US technology sector and argued that the bills threatened the viability and functioning of the Internet, which would slow the pace of technological innovation as well as users’ rights. These protests culminated in an ‘Internet blackout’ that had many large websites—including Google and Wikipedia—display messages opposing SOPA and PIPA or  “went dark” entirely. In total, over 7000 websites joined in the protest. Following these protests, support for the bills dropped in both the House and the Senate and they were withdrawn.

The TPP negotiations have faced similar criticisms and may face similar opposition if and when the treaty is finalized. Opponents of the TPP argue that, as with all other trade agreements, secret negotiations and a lack of official releases of treaty drafts reduces transparency. Wikileaks’ release of the November 2013 negotiating text has provided fodder for the TPP’s critics and accentuated this problem. James Love, the Director of Knowledge Ecology International, responded to the leaked text arguing that “The TPP text shrinks the space for exceptions in all types of intellectual property rights. Negotiated in secret, the proposed text is bad for access to knowledge, bad for access to medicine, and profoundly bad for innovation.” Supporters of the negotiations have been quick to respond with the US Chamber of Commerce arguing, “the TPP negotiations represent an opportunity to establish strong rules to protect intellectual property, cultivate the digital economy, and combat trade and investment protectionism.”

It is important to recognize that the text released by Wikileaks is only a working draft of the negotiations. A close reading of the leaked version reveals that there are many unresolved issues that need to be addressed. Tellingly, the US negotiating position and its proposals appear to be at odds with the majority of the other parties. As well, the Canadian group has put forward the largest number of proposals for the text and has also been actively opposing so-called controversial provisions and offering alternatives. However, subsequently released documents from Wikileaks show that the American negotiators are working to press forward and exert pressure on disagreeing parties.

One proposal that is most indicative of the disagreements taking place during the negotiations surrounds the objectives of the TPP. A group of nine countries (the "Group"), including Canada, has proposed that the treaty should “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” (Q.Q.A.2 of leaked document) and “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” (Q.Q.A.2 of leaked document). The US and Japan both oppose this proposal as it is written.

The connections between “economic and social development” (emphasis added) as well as the need for a “balance” of IP holders and users highlight a general disagreement between the Group and the US/Japan over the role of IP law. It is unclear why the US and Japan oppose this wording, but it may be due to the fact that these countries are often wary of using language that can be interpreted in a manner that contradicts the primacy of the rights of IP holders. This divide also contributes to disagreements over proposals relating to access to medicines, the extension of copyright terms, and the rejection of exceptions or limitations on digital rights management and technological prevention measures.

Another round of negotiations has been scheduled for early 2014 in the hopes that an agreement can be reached by the end of the year. In order for this to occur, negotiating parties will need to resolve these and other differences. Even if an agreement is reached, the fates of ACTA, SOPA, and PIPA must be considered when trying to move the TPP towards domestic ratification. Having excluded a number of people from the negotiation process, the governments of the TPP signatory nations will need to make steps to assure their citizens that the treaty is beneficial and does not necessitate the opposition that felled the earlier attempts at IP reform.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at York University, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.