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TPP Redefines Intellectual Property – And People Will Die

The full text of the Trans-Pacific Partnership has finally been released and, as my Reverb Press colleague Elisabeth Parker writes, it’s pretty damned bad.

But there is one area where TPP is extra awful: intellectual property. Now, this may not seem the sexiest of topics but bear with me on this one. TPP’s treatment of intellectual property issues is, in a word, wretched. Of course, they start off Chapter 18 with some blather about creativity and whatnot, but the meat of the intellectual property chapter gives a lie to the optimistic open:

“Having regard to the underlying public policy objectives of national systems, the Parties recognise the need to:
(a) promote innovation and creativity;
(b) facilitate the diffusion of information, knowledge, technology, culture and the arts; and
(c) foster competition and open and efficient markets[.]”

And we’re off into a tangle of dust-dry sentences and paragraphs that have all the entertainment value of a phone-book from the 70s. But buried in all of it we have gems such as the following, which seem so straightforward, but then collapse into vaguery once you get to that slippery little phrase “bad faith intent:”

“In connection with each Party’s system for the management of [country-code top-level domain] domain names, appropriate remedies shall be available at least in cases in which a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trademark.”

None of us were using our freedom of speech anyway, so no big deal.
“Bad faith intent” indeed. Were I a good enough lawyer, I wager I could make that phrase mean whatever I pleased and get sites such as, oh, WalMartSucks, shutdown and their owners fined. Neat. That won’t have any sort of chilling effect on anything at all. Except, perhaps, speech. But that’s cool. None of us were using our freedom of speech anyway, so no big deal, right? And a funny thing is missing from all the discussion of intellectual property and copyright: any mention of parody or satire. This is a bit of a glaring omission, I would say.

But it gets worse. For the signatories of TPP, copyright protection is extended to 70 years after the death of the author or content producer:

“Each Party shall provide that in cases in which the term of protection of a work, performance or phonogram is to be calculated:

(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death[.]”

That’s a fine gift to huge providers of content: the Disneys and the Sonys of the world. For the rest of us? It’s a loss, as vast amounts of content will be kept out of the public domain for decades. And what method, pray tell, does the TPP offer for enforcing these absurd copyright provisions? Civil and criminal penalties, of course. Penalties crop up all over Chapter 18, for offenses ranging from modifying rights management information for nefarious purposes to selling devices that may be used to decrypt satellite or cable signals. And let’s not neglect our humble Internet Service Providers, for they have some new responsibilities as well:

[T]hese conditions shall include a requirement for Internet Service Providers to expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the copyright infringement or becoming aware of facts or circumstances from which the infringement is apparent, such as through receiving a notice of alleged infringement from the right holder or a person authorised to act on its behalf,
(b) An Internet Service Provider that removes or disables access to material in good faith under subparagraph (a) shall be exempt from any liability for having done so, provided that it takes reasonable steps in advance or promptly after to notify the person whose material is removed or disabled.”

So that is all very nice. But here is the nastiest bit of all: TPP’s application of intellectual property rights to biologic drugs -— things such as vaccines and anti-toxins. You know, the sort of treatments that prevent people from dying.

“With regard to protecting new biologics, a Party shall either:

(a) with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic,60,61 provide effective market protection through the implementation of Article 18.50.1 (Protection of Undisclosed Test or Other Data) and Article 18.50.3, mutatis mutandis, for a period of at least eight years from the date of first marketing approval of that product in that Party; or, alternatively,

(b) with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic, provide effective market protection:
        (i) through the implementation of Article 18.50.1 (Protection of Undisclosed Test or Other Data) and Article 18.50.3, mutatis mutandis, for a period of at least five years from the date of first marketing approval of that product in that Party[.]”

Now that doesn’t sound too bad. Between five and eight years of protection before the clinical data on a given biologic is released, and competing companies can use that data to produce generic versions. No harm there, it seems. Hell, the United States currently offers 12 years of protection, and American negotiators pushed for that to be the standard in TPP. The five to eight year range is actually a bit less restrictive. Except for the fact that some of the TPP signatories have had zero years of data protection for biologics. Countries like Peru and Mexico, bound by the terms of TPP, will have to wait at least five years before enjoying access to cheaper generic versions of biologics. And higher prices mean that the poor and the neediest of these nations will miss out on life-saving treatments. Is it any wonder that Médecins Sans Frontières is so adamantly opposed to TPP?

From beginning to end, TPP’s bold redefinition of intellectual property is an utter disaster. It restricts content, ignores parody and satire, requires ISP’s to engage in de facto censorship, and, most inexcusably, will make it far harder for the poor to access life-saving vaccines and medications. TPP is a moral monstrosity, and its stance on intellectual property is but the latest piece of evidence against it. TPP must be stopped.

Image: Images Money, Creative Commons 2.0

Akira Watts failed to graduate with a B.A. in philosophy from Amherst College and now does an assortment of IT related things. He has been writing a nebulously plotted literary choose-your-own-adventure work for the past five years. He lives in Santa Fe, NM with a small fish and a cat the size of a yeti. Before joining the team at Reverb Press, Akira was a frequent contributor at Truthout.org READ MORE BY AKIRA.