Trade secrets revealed

Published : Nov 27, 2013 12:31 IST

In Kuala Lumpur, Malayasia, on October 11, activists protest against the Trans-Pacific Partnership (TPP) treaty being negotiated in secret  by 12 countries, including Malaysia, that together account for 40 per cent global GDP.

In Kuala Lumpur, Malayasia, on October 11, activists protest against the Trans-Pacific Partnership (TPP) treaty being negotiated in secret by 12 countries, including Malaysia, that together account for 40 per cent global GDP.

IT should not be a surprise to us that knowledge is power: after all, many ancient hierarchical civilisations were founded on that very principle. But perhaps, at no previous time in history has there been such a concerted attempt to appropriate and control the production, dissemination and use of knowledge, not by those with political power, but by private companies supposedly operating in the cause of social progress.

Of all the various monopolies and forms of control that have come to characterise the world today, the control over knowledge is probably the most insidious and potentially devastating. The TRIPS (Trade-related Aspects of Intellectual Property Rights) agreement that was signed along with other trade agreements in 1994 was more than just a significant success for the lobbies of multinational drug companies and other corporate behemoths. It was also a breakthrough in a negative sense, one that really became what is called a “game changer” in terms of its implications for the ways that knowledge is gained and shared (or not shared), for the ways that creativity and innovation are defined and straitjacketed, and even for the ways that lives are lived or lost.

The very concept of “intellectual property” is relatively recent: the word was first used apparently only in the mid-19th century, when it was still not stretched beyond a general term meaning “the holding of understanding or discernment”. From there, the leap to “knowledge that can be commercially transacted” was still a rather big one, which developed only in the later decades of the 19th century. And only in the late 20th century did this come to be seen as a property right, on a par with other property rights that now appear to have become more pervasive and dominant than human rights.

The TRIPS agreement, and the alacrity with which governments pushed by external pressure or their own corporate lobbies moved to implement it, played a big role in making Intellectual Property Rights (IPRs) respectable and even “mainstreaming” them. So much so, the TRIPS agreement itself, deadly as it has been to the process of emulation that has historically been essential for industrialisation and development, now seems like a rather safe and flexible treaty, since it allowed for some loopholes (such as compulsory licensing and parallel imports) to prevent the extreme concentration that would otherwise ensue in most economic sectors.

But the corporate lobby had tasted blood, and then went searching for more of it in regional and bilateral trade agreements (so-called “Free Trade Agreements”, or FTAs, and now “Comprehensive Economic Partnership Agreements”, or CEPAs). As a result, many of the recently signed FTAs have had TRIPS-plus provisions, in terms of even greater laxity in defining patentable inventions, greater spread in defining violations and greater stringency of punishment for those found guilty of infringing IPRs.

Even so, the document published recently by WikiLeaks as the draft chapter on IPRs being negotiated secretly under the proposed Trans-Pacific Partnership, is breathtaking in its audacity and overweening ambition to cement the complete corporate takeover of as much knowledge as possible. It brings into the open yet another great betrayal by the Barack Obama administration in the United States, of as much its own people as of the people in the rest of the world.

Secret negotiations The proposed Trans-Pacific Partnership treaty is being negotiated in secret by delegations from the 12 countries (the United States, Japan, Mexico, Canada, Australia, Malaysia, Chile, Singapore, Peru, Vietnam, New Zealand and Brunei Darussalam) that together account for 40 per cent of global gross domestic product (GDP). The negotiations have been kept secret from the public of each of these countries—although 700 representatives of various corporations have access to the text and clearly have been determining its contents. The leaked chapter covers proposed international obligations and enforcement mechanisms for copyright, trademark and patent law, and includes the combined positions of all of the parties as they were by the end of August 2013—since then there have apparently been two more revisions.

The trouble begins at the start of the chapter, with the very first “Principle”: “Each Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter ” (emphasis added). Fine safeguards, with only a small but deadly caveat at the end. For, as it happens, in achieving any of these worthy goals there is very little that could be effective and actually be consistent with the provisions of the chapter.

Consider just some of the provisions that would have implications for pharmaceuticals and health. The draft chapter proposes expansion of the scope of drug patents to include minor changes to existing medications (a practice commonly employed by drug companies, known as “evergreening”). It would institute patent linkage, which would make it more difficult for many generic drugs to enter markets. It would lengthen the terms of patents by forcing countries to extend patents’ terms during lengthy review processes.

The U.S.’ demands would strengthen, lengthen and broaden pharmaceutical monopolies on drugs for cancer, heart disease and human immunodeficiency virus/aquired immune deficiency syndrome (HIV/AIDS), and in general make even life-saving drugs more expensive and inaccessible in all the member countries. They would require further transformation of countries’ laws on patents and medical test data, and they would reduce the scope of exemption in the use of medical formulations through public procurement for a public purpose.

What is also clear is how the U.S. government pushed for particularly adverse conditions that other countries involved have continued to resist. One bracketed section (which means the matter is still being negotiated) suggests that the U.S. and Australia have demanded that patents shall be available for any new uses of or methods of using an already known product , which the other countries have opposed. Similarly, the U.S. and Japan have asked for the clause “a Party may not deny a patent solely on the basis that the product did not result in enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application”. If accepted, these would be akin to having patent rules on steroids, going well beyond even the current U.S. Patent Law.

Bizarre provisions A remarkable feature is the U.S. insistence of some particularly scary and even bizarre provisions. Thus, the U.S. has proposed patents for “diagnostic, therapeutic, and surgical methods for the treatment of humans or animals if they cover a method of using a machine, manufacture, or composition of matter”. This even goes beyond the current U.S. law, which exempts “the performance of a medical or surgical procedure on a body”. In extreme form this would actually provide patent protection to any surgical procedure other than those performed with one’s bare hands. Clearly, the proposed new regime would lead to a dramatic reduction in access to drugs and medical procedures because of rising prices, and would also impede innovation rather than encouraging it.

The copyright provisions are just as restrictive. The draft chapter shows that the U.S. has suggested rules that would affect Internet use. “Each Party shall provide that authors, performers, and producers of phonograms have the right to authorise or prohibit all reproductions of their works, performances, and phonograms, in any manner or form, permanent or temporary (including temporary storage in electronic form).” This actually runs counter to how modern computer systems operate, and would make even automatic downloads potentially liable.

The U.S. also wants signatories to force Internet Service Providers (ISPs) to enforce privately copyright protection rules. So ISPs would be required: to filter online communications for possible instance of copyright infringement; to terminate users’ Internet access after three allegations of copyright infringement; to block websites that may be engaged in copyright infringement; and to reveal identities of alleged online copyright infringers to the entities that hold the copyrights. These would fundamentally transform the Internet and make it not only more restrictive but less transparent and open.

There are also proposals to lengthen the period of copyright protection, which under the TRIPS Agreement is capped at the life of the author of a work plus 50 years. The U.S. wants to extend copyright term protections to the life of the author plus 70 years for works by individuals, and either 95 years after publication or 120 years after creation for corporate owned works (like those of say, the Disney Corporation).

All these deadly provisions are then to be subject to supranational litigation tribunals to which sovereign national courts are expected to defer, but which have no human rights safeguards. What is worse, the chapter provides that these courts can conduct closed and secret hearings with secret evidence. It was already evident that the U.S. administration had sold out to corporate interests, but the extent to which it is prepared to violate the human rights of its own people in order to serve those interests is still breathtaking. Worse, it is trying to browbeat other governments, including some in countries with significantly poor populations like Peru and Vietnam, into accepting these dreadful conditions by holding up the tiny carrot of some slight increase in market access to the U.S.

Once again, WikiLeaks has rendered a signal service to people across the world, bringing into the open a major international treaty that would have far-reaching consequences for peoples’ lives not just in the signatory countries, but eventually everywhere in the world. If sunlight is truly the best disinfectant, then this insalubrious and dangerous plan should immediately die like a vampire.

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