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November 17, 2013

The truth about the leaked IP chapter of the Trans Pacific Partnership (TPP)

 
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Background

Agreements between nations are among the most difficult and contentious of political negotiations, and they require secrecy during the negotiation process. Not only because negotiations require taking politically difficult positions in real-time, but also because different nations and cultures don’t share the same values. Indeed, agreements between nations almost always involve totally different political systems: democracies, parliamentary systems, monarchies and maybe even totalitarian systems.

Trade agreements are particularly difficult, because in the process of obtaining concessions from other parties you yourself have to give other things up. Trade agreements, like almost any other kind of agreement between nations, would be impossible without confidentiality during negotiations.

In fact, one of the reasons why the multilateral trade liberalization process has ground to a halt is because it’s a somewhat more open process, and thus more subject to demagoguery by interest groups opposed to liberalized trade. Remember the WTO protests in Seattle?

The fact that radical activists have managed to bring the WTO to its knees is at least part of why U.S. strategy has switched to bilateral agreements among parties most likely to agree.

Now the same NGOs who have shut down the multilateral process are trying to kill the bilateral agreements, hyperventilating and MISLEADING about the details of the negotiations. They killed the Anti-Counterfeiting Trade Agreement (ACTA) through such tactics, and they have their sights set on any and all such agreements currently in negotiation—most notably the Trans-Pacific Partnership (TPP) with Pacific Rim nations, and the Transatlantic Trade and Investment Partnership (TTIP) with the EU.

That’s all context-setting for the furor that has erupted over the Wikileak of a draft of the intellectual property chapter of the TTP.

Those who want to shut down liberalized trade are using intellectual property as their vanguard issue, because it’s a great lever for them. After all, the average citizen doesn’t care about intellectual property, and when they’re confronted with IP protection, it’s probably most often in a context that inconveniences them. So there’s no broad public activism for intellectual property protection.

There is, however, a small but intense group of activists who see IP as a means by which corporations oppress the consumer and by which industrialized nations oppress developing countries (I’m not kidding). I’ve explained some of the philosophy behind this in another extended blog entry. [and, for that matter, in a speech from 2006]

These groups are constantly advocating against intellectual property protection, and so if a treaty includes a section on intellectual property, they’re against it.

Needless to say, they’re against the TPP, and have been salivating over the opportunity to get their hands on a draft of the IP chapter for some time.

Now, here’s the strategy: While there is no great groundswell of public support for intellectual property protection, there IS a great groundswell of support for the Internet. So, if you can set the two issues at odds with each other, and manufacture a case that somehow intellectual property protection threatens the Internet, well by gosh you might just have a useful tool for demagoguery. True, you’ll have to lie, a lot, but most activists aren’t too terribly troubled by things like honesty and ethics.

Both the Electronic Frontier Foundation (EFF) and our old pals at Knowledge Ecology International (KEI) have released breathless, hyperbolic critiques [EFF, KEI] of the leaked chapter, following closely their chosen strategy of posing intellectual property protection as somehow being at odds with “the Internet.”

The Truth About the Leaked Chapter

It’s somewhat bemusing to actually dig into the leaked chapter and see what the great fuss is all about, since 1) it’s already outdated, and 2) it’s a working document that is very much in flux.

We know that there have been subsequent negotiating sessions since the August 30th date of the leaked document. And since IP was a big part of the last negotiating session, the leaked document is almost certainly out-of-date.

And all substantive text is in brackets, which means the language is far from determined. Unfortunately, almost everything that matters is still up-in-the-air.

Nonetheless, several common charges are being made. Let’s examine them.

“The TPP expands IP protection beyond U.S. law”

Once we get to the actual text, it’s pretty interesting to find that the leaked text reveals NOT that the U.S is pushing for extreme positions, “secretly trying to implement SOPA,” “secretly trying to implement ACTA,” or that the TPP will “break the Internet.” One gets the feeling that those charges were going to be made regardless of the actual details of the leaked chapter.

What the U.S. is seeking through the TPP is 1) what already exists in U.S. law in some cases, 2) less than what U.S. law requires in other cases, or 3) language that already exists in recently implemented trade agreements, such as the US-Korea Free Trade Agreement. Whether it’s the duration of data protection for biologics, length of copyright term, protecting anti-circumvention technical protection methods (TPMs) and digital rights management (DRM), or fair use provisions, the positions being advocated by the U.S. in the leaked chapter demonstrate that the U.S. is simply asking its TPP partners to adopt IP policies that are an approximation of U.S. law and similar to existing U.S. trade agreements.

Importantly, the U.S. is NOT pushing for policies in excess of existing U.S. law, and thus the TPP makes no change to existing U.S. law. In fact, since 2000, none of the free trade agreements negotiated by the U.S. have required changes to U.S. law. This is an objective fact, despite the fact that both EFF, KEI and other Chicken Little NGOs claim that it does.

It turns out that opposition from groups like EFF and KEI simply reflect policy disagreements with existing U.S. law. Put simply, the CopyLeft and IP skeptic groups don’t like existing U.S. IP law. They don’t like strong copyright protection, they don’t like patents, and they don’t like enforcement, so they would not be expected to like a treaty which preserves such things already established U.S. law. They were always going to scream about the IP chapter of the TPP, because they don’t like IP, period.

Their problem is really with existing U.S. intellectual property law. Since they want to roll back U.S. intellectual property law, they certainly don’t want to see it become a norm in a trade agreement.

This is clear from both the EFF and KEI screeds. The title of the EFF document says that “US negotiators still trying to trade away Internet freedoms,” which is just the continuation of the lie that began with the network neutrality debate and was taken to offensive and absurd levels during the SOPA debate. No one is trying to “break the Internet” or “trade away Internet freedoms.”

EFF is arguing from the law as they would like it to be, rather than the law as it actually is. They don’t like DRM, so an agreement that protects a copyright owner’s right to implement DRM “threatens your Internet freedoms.” No it doesn’t, and that includes now, since DRM is currently legal.

They don’t like patents either, so they complain about language that is simply intended to encourage signatory countries to bring their patent practices more in line with existing U.S. law.

Although it’s KEI who REALLY doesn’t like patents. But KEI’s analysis is of a piece with EFF’s—it’s just criticizing the portions of the TPP that resemble existing U.S. law, because they don’t like U.S. law. They see that the TPP will encourage increased support and respect for patents, and they don’t like patents, so they don’t like the TPP.

“The TPP is being negotiated in secret and that in itself is proof that it’s bad”

Well, this argument is illogical and nuts. Hopefully, I already explained above why 1) confidentiality is necessary in trade agreements, and 2) this is just being used by those already in opposition to impugn the treaty. The fact that trade negotiations are not being conducted by Julian Assange on a wiki doesn’t mean that something nefarious is going on.

“The TPP is just a tool of Hollywood and the pharmaceutical industry”

It’s also important to address this charge that the TPP is a “Hollywood wish list,” or that the TPP is somehow just an instrument of the pharmaceutical industry.

What is true and good is that the TPP is designed to reflect the interests of the U.S. economy, and we should not apologize for that! Of bloody COURSE we are pushing for positions that are of benefit to the U.S. economy. Why on earth would we not?

The United States economy, along with the high-paying jobs everyone says we should be creating, is increasingly dependent on the industries that invent and create things that we can export to the rest of the world. To state the obvious, those are the goods covered by patents and copyright. So wouldn’t one expect a trade negotiation pushed by the U.S. to include provisions that are good for the industries that are driving the U.S. economy? Of course you would.

Trade agreements are about the goods and services that are exchanged between countries through trade. A big part of what the U.S. trades is the products of intellectual property. So of COURSE a trade agreement is going to seek to make protection of IP a norm. Duh!

“The TPP is all about forcing U.S. laws and standards on other, less-developed countries”

I can’t help but note that the people complaining about the IP chapter of the TPP never have any problem with the U.S. using trade agreements to push for U.S.-level LABOR standards, or ENVIRONMENTAL standards. That’s because they’re not opposed to using trade agreements as leverage to raise standards—they’re just opposed to IP.

We commonly use trade agreements as levers to try to get our trading partners to raise their legal standards in any number of areas—labor, environment, and human rights. It is perfectly consistent and along those same lines to ask our trading partners to raise their legal standards for IP protection as well.

But it’s important to note that the TPP IP chapter is careful to still allow for national flexibilities in a number of the IP areas, while still raising overall IP standards.

“The TPP is all about resurrecting SOPA”

SOPA was designed to provide new tools for dealing with overseas rogue websites that are outside the reach of U.S. law. I see nothing in the IP section of the TPP that would do this. So this charge is a lie intended to spread FUD (“fear, uncertainty, doubt”) and to try to coast on the coattails of the defeat of SOPA—nothing more.

Conclusion

If you don’t like existing U.S. IP law and practices, you probably aren’t going to like a trade agreement that seeks to make those laws and practices normative through a trade agreement. But that doesn’t mean there’s something wrong with the trade agreement—it just reflects your ideological disagreement with current IP law. And that’s the nature of almost all the clamor over the leaked IP chapter of the TPP.




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