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March 6, 2014

U.S. IPR Protection Insistence May Derail TPP Talks, Critics Say

IPI expert referenced: Tom Giovanetti | In The News | Media Hit
  Washington Internet Daily

By: Brian Dabbs

U.S. insistence on including strict intellectual property rights (IPR) protections in Trans-Pacific Partnership (TPP) negotiations threatens to derail the talks, said two panelists Wednesday at a Cato Institute event, as a raft of other unresolved issues continue to obstruct ongoing efforts to seal a deal. Industry pressure on the Office of the U.S. Trade Representative to include strict IPR provisions in a final deal also jeopardizes free-trade principles that ultimately would benefit U.S. consumers, said panelist and Cato Institute trade policy analyst Bill Watson.

"If the U.S. dropped out of the TPP negotiations tomorrow, the IP chapter would be written like that," said Watson of intellectual property. "These other countries have pretty much agreed on what it is they want to have in the TPP on IP. And the U.S. is pushing something else. ... This requires a lot of negotiating capital to get all the countries moved over there to the U.S. position. What else is the U.S. giving up?" American is insisting on 70 years of copyright protection after the death of the copyright holder, as opposed to the 50-year limit preferred by nearly all other 11 TPP participant nations, said Watson. WikiLeaks' disclosure of a confidential TPP chapter dated in August had prompted advocacy groups to claim there remains significant disagreement on TPP IPR provisions (WID Nov 14 p9).

America's IPR stance jeopardizes the "perceived legitimacy" of the U.S. TPP trade regime, said Margot Kaminski, executive director at Yale Law School's Information Society Project. The participant nations may choose to maintain tariff and nontariff barriers on agriculture, and other sectors, in exchange for IPR concessions, said Kaminski. But Trade Promotion Authority legislation, also known as fast track, provides a potential mechanism to counteract Industry Trade Advisory Committee (ITAC) influence on USTR, said Kaminski. The IPR ITAC is run solely by big-content and big-pharmaceutical companies, with virtually no Internet companies, she said.

"Fast track could be changed to have a system that allows less capture at the executive branch level," said Kaminski. "Congress puts in negotiating objectives, but there's no consequence if the executive branch chooses to ignore them." The failure to pass the Stop Online Piracy Act, introduced in 2011, shows Congress has some ability to contest corporate IPR interests, said Kaminski. Senate Finance Committee Chairman Max Baucus, D-Mont., Finance Committee ranking member Orrin Hatch, R-Utah, and House Ways and Means Chairman Dave Camp, R-Mich., introduced the current iteration of TPA, the bicameral Bipartisan Congressional Trade Priorities Act of 2014, on Jan. 9. The legislation mandates the "accelerated and full" implementation of the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a pact brokered during the WTO Uruguay Round of the General Agreement on Tariffs and Trade in 1994, provisions IPR detractors criticize.

Strong protection of IPR is critical to boosting U.S. exports through its free-trade agreements, said Cato panelist Tom Giovanetti, president of the Institute for Policy Innovation. "The largest silo of U.S. exports are the core IP industries. This is not a narrow set of IP industries. This is the main thing that we export," said Giovanetti. The IPR provisions the USTR is advocating in TPP are rightfully consistent with U.S. law, he said.

"Of course, we should be expecting them to advocate a commensurate copyright term with what we have in U.S. law," Giovanetti said. "What is the alternative? Is the alternative just for USTR to be out there advocating policies that are not reflected in U.S. law?" Many lawmakers and industry officials have pressed USTR to ensure the 12-year exclusivity lifespan remains in a final TPP pact. Since the ratification of TRIPS, foreign nations have increased funding for research and development, said Giovanetti, claiming strict IPR rules produce innovation.

The inclusion of strong IPR measures in TPP fundamentally sacrifices free-trade principles that foster more commerce and provide cheaper goods to consumers worldwide, said Watson. The comprehensive elimination of all trade barriers is the ultimate target of free-trade negotiations, and realistically corporate industry will not recant TPP support if strict IPR rules are excluded, said Watson. "Large-scale industry groups ... yes, they support IP in the trade agenda, but I don't think it's such a big issue that they would allow it to take the whole agenda hostage," said Watson. "There's a political calculation going on at USTR that I think is missing some pieces ... on net, it may be adding in intellectual property does more to harm the political liability of free trade agreements, than it does to bring on any kind of real support."


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